Should you Pay for your Rights?

According to one prosecutor recently before the courts, you should.

In a recent case in which we appeared before the Local Court our client elected to have the trial of his charges heard by a jury rather than a magistrate. 

Cases that involve a level of seriousness (called indictable offences) carry with them a right to a trial by jury. This right stems in part from the Commonwealth Constitution. For practicality sake (if everyone had a trial by jury then we would have a backlog of years), most matters are left in the Local Court where a magistrate hears the case instead of a jury. This allows cases to proceed quickly and without delay or expense to the state of a more involved jury trial.

However everyone has the right, when facing those sorts of cases, to have their day in court before a jury of their peers. Do do that, the defendant simply elects.

The process involves moving a case from the Local Court to a District Court where a jury will be empaneled and hear the case.

In our recent case, involving alleged use by Police of a taser, our client elected to have his case heard by a jury. The Police Prosecutor appearing made an application for costs against our client – an application that was dismissed by the Court. 

Police cannot demand you pay a fee for the exercise of your rights. To think so is not only plainly wrong as a matter of law, it is a misguided understanding of the basic philosophy behind rights. They are not their for be exercised under great hardship or pressure or fear of a costs application and it is regrettable that the application was made at all. Fortunately in NSW we have a court system that works hard to ensure the preservation of your rights. In this case, our client was not only free to ensure on his rights, he could do so free of charge.

A cautionary reminder never to back down on legally insisting upon your rights.

A Kernaghan.