Close search

Search the handbook

  • 08 Crime and Punishment
  • Fundamental Legal Rights
handbook symbol Tasmanian Legal

Fundamental Legal Rights

Basic rights either derived from the common law or contained in legislation are as set out below.

Rights of a Defendant in a Trial by Judge and Jury

A person to be tried on indictment in the Supreme Court has the right to disclosure. Disclosure involves the prosecution giving copies of written statements of all evidence to be led against the defendant at the trial (Crown papers). A person tried in the Court of Petty Sessions may apply for and receive relevant police documents under Right to Information legislation. These include witness statements and other evidence. The prosecution has a duty not to proceed if they believe there is no substantial prospect of conviction.

A defendant also has a right to a preliminary hearing of all the evidence in front of a magistrate or justice of the peace (s61Justices Act 1959). This is known as a preliminary hearing. At a preliminary hearing a person may elect to cross-examine witnesses. At this hearing an accused, or their counsel, can cross-examine witnesses. An accused can give evidence if they wish. Any decision regarding the preliminary proceedings is in the hands of the Supreme Court.

Innocent Until Proven Guilty

The basis of our system of criminal justice is that a person is to be considered innocent, if charged with a crime or offence, until proven guilty. The civil law system in Europe makes the opposite presumption. A person is guilty until proven innocent in their criminal justice courts.

Proof ‘Beyond Reasonable Doubt’

The prosecution must satisfy the magistrate or jury (Magistrates Court or Supreme Court), that the accused person is guilty beyond reasonable doubt. If there is any reasonable doubt whether the accused is guilty, they should be ‘acquitted’, that is, found to be not guilty of the offence.

It is not up to the accused to establish their innocence, although sometimes the accused has to show that there is sufficient evidence to raise an issue as a defence. For example, a judge will not instruct a jury to consider the defendant acted in self-defence without the defendant raising this as a defence. In some cases, the burden of proving a particular defence, such as insanity, may be on the accused person, but only on the balance of probabilities.

The Right to Remain Silent

A basic right, strongly enforced by the courts, is that a person is not required to answer any questions put by a police officer, except in certain limited situations. This right extends to a person’s jury trial or summary trial. A person cannot be compelled to give evidence at their trial.


The prosecutor’s duty includes calling relevant witnesses who may assist the defence case (unless the prosecutor believes them not to be truthful), and advising the defence of anything known that may conceivably assist the accused.

Double Jeopardy

A person once acquitted cannot be re-tried. Likewise a person cannot be punished twice. This is known as autre fois acquittal or autre fois convict. There can, however, be a re-trial if a jury cannot reach a decision or if a court on appeal quashes a conviction or acquittal.


Every person arrested can apply to a magistrate for bail, save for a charge of murder. If a person is refused bail by a magistrate, that person may make an application for bail in the Supreme Court before a judge. The Bail Act 1994 (Tas) is the primary Act governing questions of bail.

In family violence matters, bail will not be granted unless the court, judge or police officer deciding the grant of bail is satisfied that the release of the person on bail would not be likely to adversely affect the safety, wellbeing and interests of an affected person or child (s12Family Violence Act 2004 (Tas)).

A Right to Contest the Admissibility of Evidence

A defendant can contest the admissibility of evidence against them in some circumstances. As with raising a defence, it is up to the defence to raise the issue of admissibility to the court. One area of evidential admissibility is the grounds that the evidence was improperly or illegally obtained. In Tasmania, the Criminal Law (Detention and Interrogation) Act 1995 (Tas) regulates police conduct for those in their custody. This includes the interview, interrogation and charging process. The Evidence Act 2001 (Tas) provides that a court has a discretion to exclude evidence where that evidence was improperly or illegally obtained.

Evidence unfairly or illegally obtained may be admitted as evidence at the trial by a judge or magistrate in the exercise of their discretion, but evidence proved to be obtained under duress must always be disallowed. The type of improper or illegal conduct will heavily influence the discretion of the court in its decision. For example, obtaining a confession by beating a defendant, or the use of an illegal listening device, would heavily influence the court to exclude evidence. The court will look at the nature of the conduct and also the value of the evidence. The process is  done by a ‘trial within a trial’ known as a voir dire (vwah deer). This means the court will consider the admissibility question before presenting the evidence (or not) to the jury. If a jury is in attendance, they will leave the court room while the judge hears both sides of the argument and makes a decision.

Page last updated 09/03/2021

Previous Section Which Court?
Next Section Search and Arrest