Burnnard, Amanda --- "The Right to a Fair Trial: Young Offenders and the Victorian Charter of Human Rights and Responsibilities" [2008] CICrimJust 24; (2008) 20(2) Current Issues in Criminal Justice 173

^[∗] BA/LLB(Hons). The author wishes to thank John Tobin of the University of Melbourne for his assistance and Justice Kevin Bell of the Supreme Court of Victoria for his contributions to the research conducted in the form of an interview. The views discussed in the article are the opinions of the author only and do not represent the views of any other person, office or agency.

^[1] Unless otherwise indicated, the terms ‘child’ and ‘young person’ are used interchangeably in this article to refer to any person aged 10 to 18.

^[2] These provisions are either specific to children or are likely to have particular repercussions for trials involving children. It should be acknowledged that children are also entitled to the generic rights in relation to criminal law listed in the Charter, such as the presumption of innocence, the right to be informed of the charge, the right to prepare a defence, the right to examine witnesses and the right to Legal Aid if applicable. However, these rights are not discussed here due to the limited scope of this article. For more information on the likely content of these general rights, see Joseph et al 2000; Butler & Butler 2005.

^[3] A child is in need of therapeutic treatment if he or she is between ten and 15 years old, and has exhibited sexually abusive behaviours (Children, Youth and Families Act 2005(Vic) s244).

^[4] The appellants also argued that their trial breached Article 14, which prohibits discrimination, in relation to the age of criminal responsibility, and Article 5, which relates to lawful detention, as the appellants were sentenced to a period of detention at ‘Her Majesty’s Pleasure’. However, the limited scope of this article prevents the discussion of these arguments.

^[5] It should be noted that the reasoning of the ECHR in this regard appears to be quite contradictory, as the raised dock was held to be a favourable measure provided to assist the appellants in the ECHR’s determination that Article 3 had not been breached (T v United Kingdom at [65]).

^[6] In the Trial Division of the Supreme Court, judges may choose whether or not to wig, and counsel will usually take their cue from the presiding judge.

^[7] This is not to say that individual judges do not believe that offenders should be treated differently because of their age and immaturity.