Justice Bongiorno’s judgment in Gray v DPP  VSC 4 makes history as the first time the Charter has been applied by a court; it is also the first time that a defendant has gotten a remedy for a breach of the Charter. But did Bongiorono J apply the Charter correctly?
The lucky Victorian beneficiary of these firsts is Echuca’s Kelly Gray, apparently a prospective member of the Bandidos. On 4th November 2007, someone beat-up Swan Hill’s Carl Slee with a baseball bat. Slee says that the batsman identified himself as Gray; Slee and another witness also picked Gray out of a photoboard and Gray has a ‘Prospect’ jacket just like the bat guy. Gray was arrested and charged a month later after refusing to cooperate with the Swan Hill police. This case isn’t about whether Gray bashed Slee, but rather about whether he should stay in custody while the courts sort that out. That bail question has a human rights dimension because it seems that Gray’s trial (in Mildura) probably won’t't happen until the end of 2008 (and, also, the prosecutor couldn’t give the Court any clear information about that.) According to Bongiorno J, it was possible that Gray would spend more time waiting for his trial then he would spend in prison if he was found guilty.
Gray was initially refused bail in the Kerang Magistrates’ Court on 10th December 2007. This case involved his second attempt to get bail, before the Supreme Court a month later. That put him on the right side of the Charter’s full commencement date, so Bongiorno J could apply the Charter, which he did:
 That a person may serve more time on remand than his ultimate sentence is a significant matter on any consideration of bail at common law. It is of even greater significance now in light of the existence of the Charter and the provisions to which I have referred. If the Charter in fact guarantees a timely trial, the inability of the Crown to provide that trial as required by the Charter must have an effect on the question of bail. It would be difficult to argue that a trial which may well be not held until after the applicant had spent more time in Custody than he is likely to serve upon a sentence would be a trial held within a reasonable time. The only remedy the Court can provide an accused for a failure by the Crown to meet its Charter obligations in this regard (or to ensure that it does not breach those obligations so as to prejudice the applicant), is to release him on bail – at least the only remedy short of a permanent stay of proceedings.
So, is this right? Let’s break it down.
First, it’s certainly true that the Charter s. 21(5)(b) gives detained Victorians a ‘right to a trial without unreasonable delay’. Better still, Charter s. 21(5)(c) also says that Gray must be released if he isn’t given his detainee’s right to a trial without unreasonable delay. But, at the time of his bail application, Gray had only been in custody for six weeks. So, I don’t think s. 21(5)(c) is triggered yet. However, Charter s. 25(2)(c) gives charged Victorians – and Gray’s also one of those – an entitlement to a guarantee that their trial will happen without unreasonable delay. Arguably, that was triggered the moment that Gray wasn’t given that ‘guarantee’. So, I guess that’s why Bongiorno focusses on Charter s. 25(2)(c) and not Charter s. 21(3). Subtle.
But, second, it’s not at all clear that this breach of Gray’s Charter s. 25(2)(c) rights ‘must have an effect on the question of bail’, and, in particular, that bail is a ‘remedy the Court can provide an accused for a failure by the Crown to meet its Charter obligations’. One problem is that it’s not clear whether the Crown (i.e. the prosecutor) failed to meet its obligations. Isn’t the timing of Gray’s trial up to the Magistrates’ Court in Mildura? It seems to me that the prosecutor’s only failure was in acting as a messenger between the Magistrates’ Court and the Supreme Court. Maybe that breaches the Crown’s Charter obligations to give Gray a fair hearing on the question of bail, but Bongiorno J didn’t discuss Charter s. 24(1). The distinction between the prosecutor and the court is potentially important, because, while public prosecutors are fully bound by the conduct mandate, courts are only bound in their ‘administrative’ functions (see Charter s. 4(1)(j).) Is the timing of a trial an administrative or judicial matter? The note to Charter s. 4(1)(j) says that listing is administrative, but King J in R v Williams  VSC 2 has already held (albeit in dicta) that adjournments are judicial. Hmmm.
Anyway, even if the Crown or court (acting administratively) has breached Gray’s Charter rights, that’s not the end of the matter. There are two more questions. The first is whether the main exception to the conduct mandate applies:
38 (2) Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.
The second is whether there’s a remedy for a breach of the conduct mandate:
39(1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.
These two provisions, while quite technical, together raise a very practical question: what happens if someone’s Charter rights are breached by someone who’s bound by the conduct mandate? In particular, what happens if a person awaiting a trial is denied a minimum guarantee? Do they just get released? Yikes! What if resource problems meant that there was a huge backlog in trials in some part of Victoria affecting every remandee?
But that’s where Charter ss. 38(2) & 39(1) come in. Charter s. 38(2) says that the requirements of other laws (e.g. laws that try to strike a balance between the quality of justice and its speed, or giving priority to some cases over others, or putting a distance between publicity and the trial) might make it reasonable to delay trials unreasonably. [EDIT: The House of Lords finds such a law in O v Crown Court at Harrow  UKHL 42, .] Moreover, even if there aren’t any such laws – or their impact is read down under the interpetation mandate – Charter s. 39(1) says that the fact that Gray’s rights have been breached doesn’t necessarily mean that a court has to give him whatever he asks for. Rather, courts only have to give Gray what he’d be entitled to if someone broke a regular law, i.e. a remedy ‘on the ground’ that that person’s act ‘was unlawful.’ Most criminal justice ‘remedies’ aren’t for illegality, but rather for more complex scenarios. The Bail Act 1977 is an example: its a remedy that is available whenever the reasons to keep someone on remand aren’t compelling, or are outweighed by the reasons to keep him or her out.
My view is that bail (and, I’d add, the remedy of a permanent stay) aren’t covered by Charter s. 39(1); they aren’t remedies for the ‘ground’ of illegality, so they aren’t available as a remedy for a breach of any Charter guarantees. Rather, the pertinent remedy for unlawful detention is habeus corpus. I’m not sure whether or not the illegal denial of a listing is a trigger for that remedy. (I think an illegal breach of Charter s. 21(5)(c) – which requires that someone be released – would be, but that’s a few months away and [new EDIT!] depends on whether it would be reasonable for a correctional facility to release a remandee in the face of a court order.) [EDIT: And I've now come across a UK case that ruled that a breach of the UK equivalent to Charter. s25(2)(c) doesn't mean that trials must be stayed (absent the unusual provisions that apply in Scotland.) I'd say that the same applies to release on bail.]
Justice Bongiorno didn’t look at any of these Charter provisions, even though they together governed the availability of the remedy he actually gave to Gray. He also didn’t address some alternative possibilities, like whether his own conduct was governed by the conduct mandate or how the statutory provision he was applying had to be interpreted in light of the interpretation mandate. I discussed these issues in my earlier post (though it turns out that the applicable provision was s 4(4) of the Bail Act 1977, because Gray was charged with aggravated burglar. It looks to me like that provision is less amenable to reinterpretation than s. 4(3).)
Whew! I’m glad I don’t have actually have to apply the Charter’s operative provisions myself. Alas, it looks like Bongiorno J feels that way too…