The quiet Charter

Today marks thirty days since the last reported Charter case (Zierk, on 30th May.) I’m basing this on Austlii reporting, which covers the VSC, VCA and VCAT, but not the Magistrates’ or County Courts. That’s the whole month of June, the sixth month of the Charter’s full operation, without this major statute being so much as mentioned by the state’s top court and administrative law workhorse.

What does this mean? Here’s some possibilities:

First, it could just be a statistical blip (something that’s almost inevitable given the tiny sample size.) Last month, May, there were six cases that got a Charter mention, compared to one in April, so this month might have some evening up. On the other hand, I can’t see next month being big, with the winter recess and all. And surely everyone was expecting the numbers to grow as the year progressed?

Second, it could be a welcome development: a decline in pointless passing mentions of the Charter that do little more than pay symbolic lip service to a statute that has a number of non-symbolic and highly complex provisions.

Third, it could be a worrying development, pointing to a gap in confidence or access to the Charter amongst litigants. There are a number of potential culprits: (a) the stupid transitional provision, Charter s. 49(2) (though its effect should be declining as time passes.) (b) the notice provision, Charter s. 35 (which Bongiorno J reckons imposes a mandatory delay as a penalty for raising the Charter, but which I don’t think requires that at all) (c) s78B of the Judiciary Act 1903 (Cth), which – in combination with some dubious constitutional arguments being put by the Attorney-General and some dubious refusals by the courts to apply its expedition provisions – will impose mandatory delays and costs as a penalty for raising the Charter; (d) the Charter’s numerous drafting problems, which might have scared off litigants who don’t want to hire a QC to nut out all the weirdness; (e) the Charter’s many gaps and loopholes, which might have narrowed its potential operation to too few cases.

Despite mulling this over, I really have no idea what is going on. For all I know, there have been heaps of Charter cases but in the lower courts or settled before any judgment is reached. And there may be a stack in the pipeline.

But, from my Austlii-based perspective, there did seem to me to me a fair number of openings for Charter arguments in the last month. Here are some from just the past week from the Supreme Court:

The Charter vs Jack Bauer

The TV series 24 – whose shtick is its real time format, where every second on your TV equates to a second of plot development – was originally pitched with a plot about a couple on their wedding day. But it was quickly switched to a terrorism drama, which it has maintained for six seasons now. Terrorism is a natural for the real time format, because of the recurrence of ticking bombs, inevitably with red LED countdowns, or their equivalents: ticking viruses, ticking nerve gas, ticking nukes, ticking deaths of all varieties.

And all that ticking has given the show its signature moral dilemma: what do you do when the one person who knows where the bomb (or equivalent) is won’t tell you? For Jack Bauer, the series protagonist, there’s no dilemma at all. He just tortures them with whatever’s handy: drugs, an electric cord, even a towel. The series writers know where they stand, because Bauer’s approach usually (though not always) saves more lives than its costs.

But, in real life, there’s a legal issue. In 1999, the Supreme Court of Israel was asked to rule on the legality of torture in a hypothetical ticking bomb situation, in a case on whether the state security service could apply low level torture methods (akin to those approved by Bush) on suspected terrorists:

In the course of their argument, the state presented the “ticking bomb” argument. A given suspect is arrested by the GSS. He holds information regarding the location of a bomb that was set and will imminently explode. There is no way to diffuse the bomb without this information. If the information is obtained, the bomb may be neutralized. If the bomb is not neutralized, scores will be killed and injured. Is a GSS investigator authorized to employ physical means in order to obtain this information?

The Supreme Court ruled that the criminal law defence of necessity could not provide any advance authority for torture, because the nature of the defence was an improvised response to an emergency. However, the Court did not resolve two further questions:

We are not dealing with the criminal liability of a GSS investigator who employed physical interrogation methods under circumstances of “necessity.” Nor are we addressing the issue of the admissibility or probative value of evidence obtained as a result of a GSS investigator’s application of physical means against a suspect.

In the last couple of years, Germany’s courts have had to deal with both of these questions in an extraordinary non-terrorism case. And, this Monday, the European Court of Human Rights will have to resolve the second one.

In 2002, 11-year-old Jakob von Metzler disappeared shortly after getting off his school bus. An hour later, a ransom letter was sent to the boy’s family – his father was a senior bank executive – demanding 1 million Euro. The money was dropped off at a tram station and the police observed a law student, Magnus Gäfgen, the brother of a friend of Jakob’s, picking it up. Gäfgen, who later said that he wanted to impress his wealthy girlfriend and lead a life of luxury that matched his planned status as a lawyer, banked part of the money. He was arrested at Frankfurt airport trying to leave the country. At his interrogation in Frankfurt’s central police station, the law student accused others of perpetrating the kidnapping and claimed that the boy was alive, citing several hiding places none of which yielded Jakob. Cue the ticking clock.

Concerned that the boy was starving or exposed to the elements somewhere, the Vice President of the Frankfurt police, Wolfgang Daschner, signed an official note ordering a subordinate to inflict pain on Gäfgen (without causing ‘injuries’) under medical supervision. Within ten minutes of being confronted with this threat (which Gäfgen claimed included the prospect of being raped by fellow detainees) and without any inflicting of actual pain, Gäfgen confessed that he had killed Jakob and directed the police to the lake where the body had been dumped and other evidence tied Gäfgen to the kidnapping. Gäfgen later confessed to the murder and kidnapping to the police and  before a court. These events created an extreme dilemma for the German courts. What were they to do now with Gäfgen and Daschner?

The Charter vs professional discipline

My thanks again to Gabrielle McKinnon at ACTHRA for keeping tabs on tabloids and spotting yet another front page Charter article by the Herald Sun. (It’s interesting – not to mention inconvenient – to me that the Age doesn’t have the same level of interest in the Charter’s use in legal proceedings.) Here’s the news:

A SUBURBAN GP charged with raping a female patient claims authorities who tried to stop him from practising as a doctor breached his human rights. Dr Ahmed Mohamed Sabet has taken Supreme Court action using Victoria’s new Human Rights Charter to fight the Medical Practitioners Board’s interim decision to stop him treating patients. Barrister Jeremy Ruskin, QC, told the court yesterday that Dr Sabet was innocent until proven guilty of the rape charges, but the board had ignored this by suspending his registration in April. “The (board) is bound to uphold the presumption of innocence every time it deals with a criminal charge,” Mr Ruskin said.

The court has heard Dr Sabet’s legal challenge is a test case of the charter that will determine the power of several medical, sporting and professional tribunals to discipline a person charged with a crime. Dr Sabet, who works at Duff St Medical Clinic in Cranbourne West and at a laser hair removal clinic in Princes St, Kew, is allowed to continue practising while his case is before the court. He is not allowed to see female patients. Mr Ruskin told Justice Elizabeth Hollingworth that his client faced three charges of rape and five of indecent assault arising from a consultation with a woman known only as YZ in October 2007. Another woman, known as AB, had made a complaint of sexual assault by Dr Sabet arising out of a consultation in July 2006. That case was already under investigation by the board.

Mr Ruskin took the court on a Cook’s tour of human rights charters around the world and said in most jurisdictions the presumption of innocence was binding on tribunals. He said that in its decision to suspend Dr Sabet’s registration, the board found the circumstances of the examinations of of AB and YZ were disturbingly similar. “They have assumed guilt and that is our complaint,” he said. Tim Ginnane, SC, for the board, told the judge that protection of the public was a very important part of its functions. “The board’s function is protective rather than punitive,” Mr Ginnane said.

AS the Hun righty points out, this case appears to raise a very big question about the role of disciplinary tribunals under the Charter, where those tribunals are concerned with conduct that could be the subject of criminal charges. More broadly, it raises the vexed question of parallel criminal and non-criminal proceedings.

The key provisions at issue are these:

25(1) A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

38(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

Some threshold issues. First, it seems clear enough that the Medical Practitioners Board is a public authority for the purposes of the Charter, as it is established by a statute (s. 65 of the now-repealed Medical Practice Act 1994, continued by s. 117 of the Health Professions Regulation Act 2005) and I don’t think it’s much of a stretch to regard its various functions, notably its function of investigating and sanctioning misconduct by doctors, as public functions according to the test in Charter s. 4(2). So, the Board is obliged to act compatibly with all rights, including Charter s. 25(1), unless it has a defence.

Second, there is an issue about the scope of Charter s. 25(1). The heading of s. 25 is ‘rights in criminal proceedings’ and a Medical Practitioners Board hearing isn’t a criminal proceeding. This issue (in a different context) was the subject of correspondence between the Attorney-General and the Scrutiny of Acts and Regulations Committee (whom I advise), after SARC raised the question of whether a new power to stop people working with children (WWC) on the basis of (dropped) criminal charges in ‘exceptional circumstances’ was contrary to Charter s. 25(1):

The Committee reported that the Statement of Compatibility did not address the compatibility of the new ‘exceptional circumstances’ discretion in light of Charter s25(1), which gives “a person charged with a criminal offence.. . the right to be presumed innocent until proved guilty according to law.” The Committee noted that “the European Court of Human Rights has held that an equivalent provision under the European Convention on Human Rights and Fundamental Freedoms ‘may be infringed not only by a judge or court but also by other public authorities’ …”

Response: I note that the right to be presumed innocent is a right in criminal proceedings, and accordingly, protects a person in the context of a trial. It has also been held to be relevant to pre-trial matters such as bail, and post-trial matters such as sentencing. These are all, however, stages of the criminal process. The cases cited by the Committee involve statements made in the context of, or in close connection with, criminal proceedings. As noted above, the presumption of innocence does not apply outside of this context. Taking into account proceedings for certain crimes in assessing an application for a WWC does not engage the right, as it is a process which occurs outside of the criminal process.

Suffice it to say that I’m dubious about using the title of a section to read it down (especially when the section gives a fundamental right.) Rather, surely the ECtHR was right when it said:

[T]he Court reiterates that the Convention must be interpreted in such a way as to guarantee rights which are practical and effective as opposed to theoretical and illusory. That also applies to the right enshrined in Article 6 para. 2 (art. 6-2). 36. The Court considers that the presumption of innocence may be infringed not only by a judge or court but also by other public authorities.

The case involved a press conference held by a government minister stating matter-of-factly that a businessman had been involved in the murder of a French MP. The businessman had just been arrested but charges of murder were later dropped. The Court held that it was sufficient that the press conference referred to the pending charges to engage the right to be presumed innocent. In short, there can be no technical knock-out for a claim of a breach of Charter s. 25(1) just because a particular proceeding is or isn’t criminal. Rather, the issue is the substance of the right.

So, third, there’s the subtance of Charter s. 25(1).

Uniform Tasman evidence law

The Evidence Bill 2008 was introduced into Parliament yesterday. This initiative was first announced in the 2004 Justice Statement, the same document where the Charter consultation was announced. A press release from Hulls yesterday trumpeted the savings for business in the modernisation of Victoria’s largely common-law based law of evidence, as well as some particular amendments to the rules of hearsay and witnesses. This focus on some very narrow features of the bill reflects the lack of any significant support from any significant of the Victorian community for its raison d’etre, which is the replacement of the common law of evidence with more accessible statutory rules. The Victorian Bill, like the Uniform Evidence Legislation movement it follows, is really the brainchild of law reform bodies.

A particular driver in Victoria, as Hulls’s press release notes, is  consistency with other jurisdictions:

Mr Hulls said the new Act would also improve the ability of Victorian courts to conduct cases efficiently and in a way that was consistent with practices in other state courts and the Federal Court. “Uniform national evidence laws are important because they provide consistent rules across all courts,” Mr Hulls said.

In fact, Victoria is presently surrounded by UEL jurisdictions: Tasmania to the south, NSW to the North and the Commonwealth in federal courts (but not federal matters heard in state courts.) On the other hand, South Australia to the west, as well as Queensland, Western Australia and the Northern Territory remain common law jurisdictions. Win some, lose some and, anyway, Victoria jumping ships may prompt the remainder to follow.

But, as I’ve argued elsewhere, Victoria’s evidence law will, in some respects, not be completely uniform with other UEL jurisdictions. Whereas Victoria’s common law is (largely) unaffected by the Charter, all provisions of the new bill will be subject to the interpretation mandate:

32(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights. (2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

The result is that some provisions of the new bill may have a different meaning here than in NSW, even where the NSW meaning has long been settled and Victoria’s provision is identical. The actual differences may not emerge for some time, as they will depend on courts’ calls about the rights compatibility of the accepted meanings and, where a right is limited, whether or not a compatible meaning is available given a provision’s wording and purpose. There’s even the prospect that a Victorian UEL provision will be the subject of a declaration of inconsistent interpretation, effectively a condemnation of several other jurisdictions’ provisions too. Any resulting dialogue will need to be mediated by SCAG.

The other human rights statute jurisdiction – the ACT – is a UEL jurisdiction too, but it doesn’t have this problem because its UEL legislation is actually contained in a Commonwealth statute (though there’s some talk of the statute being ‘repatriated’ to the ACT.) Rather, the jurisdiction Victorians may need to look to to understand the effect of the Charter on their UEL is outside of Australia.

The right to release

The more I look into the law on parole and human rights, the clearer it becomes to me (until more than the current sentence from Hulls on this topic goes on the public record) that the concern of the parole boards about having the Charter applied to them is with these bits of Charter s. 21:

21(3) A person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law.

21(7) Any person deprived of liberty by arrest or detention is entitled to apply to a court for a declaration or order regarding the lawfulness of his or her detention, and the court must- (a) make a decision without delay; and (b) order the release of the person if it finds that the detention is unlawful.

Now, just reading these provisions on their own without reference to ECHR caselaw, these two provisions are about the start and continuation of deprivation of liberty. The requirements aren’t exactly mind-bending: deprivation of liberty must occur through lawful procedures and there must be a (court) procedure to test that the detention continues to be lawful.

These provisions make most sense when you consider the usual criminal process context of arrest: cops need a law to arrest someone and must swiftly bring a person before a court to test to lawfulness of that arrest. However, they can also apply in other contexts. Indeed, the ECHR equivalent to Charter s. 21(3) actually contains an exhaustive list of when someone can be deprived of liberty:

5.1 …No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

a. the lawful detention of a person after conviction by a competent court;

b. the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

d. the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

e. the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

f. the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

Now, as Article 5.1.a makes clear, one such situation is after a person has been convicted. Although neither Article 5.1 or Charter s. 21 uses the term, this is the sentence phase, when someone may be given a sentence of imprisonment and will be detained pursuant to that.

I would have thought, then, that the sole effect of Charter s. 21 on people serving a sentence of imprisonment is to require that the original sentence be done ‘in accordance with procedures, established by law’ and that prisoners have a right to ask a court to rule on whether their detention, at any moment, is in accordance with that original sentence. This would be satisfied by Victorian sentencing law and the right to habeas corpus (in Victoria known, less gloriously, as Order 57 of the civil procedure rules) (as well as other Victorian provisions allowing someone to challenge their sentence.)

But that’s where ECHR law on Article 5.4 mixes things up.

The price of powerful parole boards

Yesterday’s decision by Justice Harper to grant leave to Robin Fletcher (referred to in the newspapers as the paedophile witch) for an early review of his extended supervision order demonstrates that increasing the power of parole boards is a tricky thing. In Secretary, Department of Justice v Fletcher [2008] VSC 217, the provision that Harper J had to apply was this one from the SSOMA Act:

21(3) The offender, with the leave of the court, may apply to the court at any time for it to undertake a review of an extended supervision order made by it.

The Department argued that the test for whether leave should be granted should be the same one that the Court of Appeal uses to determine whether to grant leave to appeal against a sentence. That’s a surprising analogy for the Department to draw, given that Attorney-General’s view, put to Parliament in the Statement of Compatibility to the recent bill extending the monitoring scheme that ESOs are neither punishment nor penalties. In any event, Harper J rejected it:

It is not an analogy that attracts me. A person who is made subject to an extended supervision order is no longer a prisoner under sentence. A person in Mr Fletcher’s position should in my opinion be given leave to apply for a review of such an order if the court is satisfied that new facts or circumstances, justifying such a review, have arisen since the order was made.

It is a little disappointing that the Charter’s interpretation mandate wasn’t referred to in reaching this conclusion.While I don’t think that parole decisions trigger the Charter s. 21 protections for deprivation of liberty, it’s pretty clear that an ESO does. The English cases on the ECHR equivalent to Charter s. 21(7), described last post, arguably could suggest that defendants should have a ready chance to challenge ESOs in a court to test the continuing need for the order, something that would surely have favoured Harper J’s approach.

Anyway, what is interesting is Harper J’s reasons for granting Flectcher a review. He didn’t seem to be moved by alleged factual changes of circumstance about Fletcher’s condition or the expertise that led to the original ESO. Rather, it was legal changes that interested him, notably the amendment to the SSOMA in 2006 (itself the result of a challenge by Flectcher) to permit the Adult Parole Board to order that Fletcher live within the permiter of his former prison:

I regard the giving to Mr Fletcher of a direction, unlawful when made, that he reside within Ararat Prison, as a new fact and circumstance. Had it been known, when the original hearing before Gillard J took place in May 2006, that this direction was proposed, his Honour’s attitude to the Secretary’s application would have been different. So much can be said with confidence, because his Honour subsequently held that the direction was unlawful. And, for the reasons to which I have already referred, Mr Fletcher’s attitude would also have been different.

I acknowledge that the giving of the direction was a new fact or circumstance partly because it was, when given, beyond power; since then, Parliament has amended the legislation, so that what was once unlawful is now within power. To that extent, the “new” fact or circumstance has been removed.

In my opinion, however, the point – that the direction to reside on land within the perimeter of Ararat Prison was a fact or circumstance which might have affected the outcome of the Secretary’s application before Gillard J – remains good. Any judge, it seems to me, would be bound – when considering whether he or she was satisfied to the “high degree of probability” required by s.11(1) of the Act – by the reasoning of the High Court in Briginshaw v Briginshaw….

Now, there’s two ways this has a wider significance than Fletcher’s case.

The Charter vs parole boards

I’m weeks late on a very big Victorian development. (Proves I’m not keeping tabs on the Public Accounts and Estimates Committee, the Herald Sun or ACTHRA!) As I blogged about six months ago, three public authorities who would otherwise be bound by the Charter’s conduct mandate have been exempted from it by regulation, due to expire at the end of this year. The state’s three parole boards, we were told, needed time to ensure that their operations would comply with the conduct mandate, despite it having been enacted almost eighteen months before it commenced. Now it seems that thirty months (and maybe forever) will not be enough.

Here’s what Attorney-General Rob Hulls said in evidence earlier this month before the PAEC:

Mr BARBER — The adult parole board, Youth Residential Board and Youth Parole Board have all be exempted from the human rights charter by regulation and the human rights commission said that they were unaware of the rationale for that and that such provisions were extremely significant. I believe your response was that this was done for a period of one year in order to allow for a review of the impact of the charter on those bodies’ work and also to consider the resources that they would require to comply. Can you let us know what those resources are, the progress of the review and whether it will still be for only one year

Mr HULLS — It is a good question. I actually met with the heads of the Youth Parole Board and adult parole board only last week about this very matter, because they are seeking an extension of the exemption. They have put their case to me in relation to that and I have not made a decision yet about whether to go down that path or not. They have suggested that natural justice is not afforded to people seeking parole and they have to make decisions, often very quickly, in the interests of the broader community. They are aware that no right under the charter is absolute, but they are indeed seeking a further period of exemption.

This is the first time that the parole boards’ concerns (and the government’s response) have appeared on the record. Unfortunately, these are slim pickings and they leave me worried about the quality of legal analysis that’s occurring behind the scenes.

Section 69(2) of the Corrections Act 1986 says that the Adult Parole Board ‘is not bound by the rules of natural justice’ and the parole boards appear to be worried that Charter s. 38(1) will nevertheless impose just such a requirement. They are presumably also worried that Charter s. 38(2) won’t let them off a hook, as the Corrections Act doesn’t tell the Board not to follow the rules of natural justice and instead just leaves procedure up to them. Hulls’s reference to how ‘no right under the charter is absolute’ is a reference to Charter s. 7(2), I guess, but my (admittedly controversial) view is that Charter s. 7(2) doesn’t restrict the requirements of the conduct mandate (though it may prevent a declaration of inconsistent interpretation about s. 69(2)).

So, I’m with the argument so far. But what Charter rights are the parole boards concerned about?

Underbelly on the inside

Oh, this takes the cake!:

Victorian Opposition Leader Ted Baillieu has slammed the screening of crime drama Underbelly to youth prison inmates as hypocritical and inappropriate. The TV drama, currently banned in Victoria, was shown to teenage inmates at the Melbourne Juvenile Justice Centre, News Ltd newspapers reported today. A state government inquiry has been launched into the screening of the graphic show based on Melbourne’s bloody gangland wars. It’s believed a staff member at the prison is suspected of smuggling the pirated DVD into the centre, News Ltd said. “There is a certain degree of hypocrisy here when you’ve got the judiciary saying this can’t be shown, and the government basically sanctioning the showing of it to prisoners,” Mr Baillieu told reporters in Melbourne today.

“I’ve got to say I think it is inappropriate and we need to know how it happened.” Acting Premier and Attorney-General Rob Hulls said the government was taking the allegations seriously. He said the investigation would determine if the DVD had indeed been screened. “People who are in youth detention obviously have to be treated appropriately and the government takes their treatment very seriously and that’s why this is a serious investigation,” he told reporters in Melbourne today. “I expect the inquiry will establish whether or not that occurred and in what circumstances, and if action needs to be taken I expect it will be.” About 15 teenage inmates in the remand section are believed to have watched up to 10 episodes last week. A relative of one of the killers depicted in the show is believed to have been one of them, News Ltd said.

Supreme Court Justice Betty King banned the screening of Underbelly in Victoria in February. The order was initially imposed to protect the trial of gangland killer Ange Goussis over the murder of Lewis Moran. Although Goussis has been convicted, the order stands.

Now, as any (and perhaps only) readers of this blog would know, the last paragraph is wrong. Not only was King’s order quashed by the Court of Appeal, and the Court’s own order was limited to Channel 9 and its affiliates – presumably not including the rogue screw – but the order expired with Evan Goussis’s conviction in May. The impression that an order still exists is due to the intemperate (and potentially illegal) media release of Jeremy Rapke, DPP and official censor:

Mr Rapke said – “I will not hesitate to take contempt of court proceedings against any person or organisation that deliberately publishes ‘Underbelly’ or any part of it“.

Off you go Rapke! Don’t hesitate! A prison officer – you could easily find out his or her name if your wanted to – has published a part – indeed nearly all – of Underbelly. Oh, but what’s the contempt of court here exactly?

Bob Carr vs prison health

In a parliament known for its high percentage of lawyers (in contrast to Victoria’s), I forgot that Bob Carr is a rare exception: a journalist. So, I perhaps he can forgiven for not doing the very basic legal research required to test his rights statute anecdotes, which, it seems, he (or his UK mate) probably just gathered by googling. Here are his two UKHRA claims concerning prisoners:

In Scotland, because of a delay in placing toilets in prison cells, the Scottish Law Reporter estimates that prisoners may be entitled to awards totalling pound stg. 76 million ($158.7 million) because their cells violated the European Charter of Fundamental Rights. The Government had been caught up with another priority, expanding drug rehabilitation programs for inmates. Last year, pound stg. 750,000 was paid to 197 heroin-addicted prisoners who successfully argued that cutting short their treatment while in prison breached their human rights.

Now, he has the law right in both cases but he left out some interesting facts  and made one serious misrepresentation.

One interesting fact is that the ‘Scottish Law Reporter‘ isn’t, despite its name, a professional legal journal but rather a blog (and who would trust what’s written in a blog?) In fact, this blog mostly just sets out others’ comments and the entry apparently relied on by Carr (for the claim about the conflicting government priorities) was actually an Oped written by Lord McCluskey. He happens to be a long-time critic of the HRA (and the Canadian Charter) whose strident criticism of the HRA back in 2000 (including aspersions cast on particular European nations and the claims of ‘convicted prisoners [and] men engaged in homosexual conduct in private’), delivered in a Scottish newspaper right after he rejected an appeal of Dutch nations raising their ECHR rights, saw that decision overturned and him effectively barred from all future HRA cases. No wonder he author of the blog (“Legal Beagle’) described the OpEd as ‘pontification.’ Carr’s journalism skills seem to be a little rusty!

Another curiosity is that, in contrast to his willingness to mention the relevant rights in his BC doctors anecdote, Carr (unlike McCluskey) somehow failed to mention that the main right in issue in both of the cases described by Carr was the right against ‘degrading treatment’, which, in Europe and Australia is protected in the following terms:

10 A person must not be- (a) subjected to torture; or (b) treated or punished in a cruel, inhuman or degrading way…

Fancy giving the courts a say (when it comes to statutory interpretation and executive discretion) on issues like this? (The toileting case also relied on the right to privacy, but only as an alternative if the degrading treatment argument was incorrect.)

Also, neither of the payouts he mentions was ordered by a court, but was rather the product of a a legal settlement between the various crowns involved and the prisoners, in each case with the crown insisting that it careful chose between meritorious and unmeritorious claims. But there were earlier court decisions in each case. The Scottish case involved a remandee who had suffered from extreme eczema from the age of 2 months who, despite suffering an infected outbreak, was placed in a cell block that used the toileting practice of ’slopping out’ – basically, you and your cellmate shit in a bucket that you  and other prisoners poured into a communal trough up to four times a day, a practice long abolished elsewhere in the UK and slated for abolition years earlier in Scotland before funding was diverted – and not moved despite having one of the worst outbreaks a prison doctor had ever seen. The heroin case was a ECtHR ruling involving a heroin-addict who died three weeks after being imprisoned, having spent most of the time of vomiting. The ruling was based on poor medical response to her dehydration, but the English authorities were probably a little chilled by the Court’s endorsement of her treatment with heroin withdrawal medication, as they had recently switched to a ‘cold turkey’ approach to heroin addicts. In short, both cases – and the resulting settlements – concerned the duty of the state with respect to prisoners’ health, hardly a matter that is typically regarded as the proper realm of parliamentary politics.

And what of Carr’s delicious claim that the Scottish toileting problem was the result of diversion of funding to drug rehabilitation, which presumably would have been handy to those heroin-addict prisoners (or at least any Scottish ones?)

The margin of appreciation

This really has been a big week. My particular interest in criminal justice led me to ignore, until just now, the biggest human rights decision of the week: In re P [2007] UKHL 38. This case concerned the right of unmarried couples to adopt. The couple in this case were opposite-sex de factos, who had jointly cared for the mother’s kid for ten years and wanted to make that joint parenting (but not their relationship) ‘official’. That ambition was blocked by the Adoption (Northern Ireland) Order 1987:

14(1) An adoption order shall not be made on the application of more than one person except in the circumstances specified in paragraph[s] (2) …

(2) An adoption order may be made on the application of a married couple where both the husband and the wife have attained the age of 21 years.

The substantive human rights issue was whether this order was at odds with the ECHR’s equality rights.

One question under the ECHR is whether discrimination against unmarried couples if allowed. This depends on whether being unmarried is a ’status’. Amazingly, the Court of Appeal held that being unmarried isn’t a status, but just a lack of status. Baroness Hale, while forgiving of the take of ‘family lawyers’ on this topic, held, along with the other laws, that lack of status is a status. This wouldn’t arise as an issue in Victoria, which, while having a closed list of attributes for the purposes of the Charter’s equality rights, has a somewhat lengthier list than the ECHR and includes both the presence and absence of marital status, which includes being in a domestic relationship or a registered relationship.

The other question is whether the discrimination is justified. Baroness Hale, along with some of the other Lords, raised her eyebrows at the couple’s decision not to marry:

It is therefore appropriate to look with deep suspicion at the reasons why a couple who wish to adopt are unwilling to marry one another. These are not the olden days when the husband and wife were one person in law and that person was the husband. A desire to reject legal patriarchy is no longer a rational reason to reject marriage. It is not expensive to get married. Marriage should not be confused with the wedding. The only rational reason to reject the legal consequences of marriage is the desire to avoid the financial responsibilities towards one another which it imposes on both husband and wife. Why should any couple who wish to take advantage of the law in order to become the legal parents of a child be anxious to avoid those responsibilities which could become so important to the child’s welfare if things went wrong in the future?

Man, what is her problem? But, anyway, Hale was willing to accept that the prospective adoptive parents crazy views shouldn’t be taken out on their (unfortunate) prospective adoptive child, who would also be discriminated against by the restriction on adoption to married couples. All the Lords were dubious about the Crown’s argument that marriage serves as a good proxy for testing the long-lastingness of a relationship. Putting aside some factual doubts about this – not that the Lords seemed to have those – they were unconvinced by the need to have any proxy at all, given that entitlement to apply to adopt was just the first step in a lengthy vetting process that looks to the best interests of children.

Instead, the big difficulty the Lords faced was the political sensitivity of the issue of adoption. They were all well aware of this, as the change in English law five years ago to allow unmarried couples (including, gulp, gays) to adopt was a painful process where the relevant provisions changed as the bill shuttled back and forth between the houses of parliament. It was pretty obvious that a similar change would not go down all that well in Northern Ireland. This issue of political sensitivity – who makes the call? – broke down to three sub-issues:

The right to be a fool

Self-represented litigants have fools for clients and idiots for lawyers. And, if they are criminal defendants, they also have a Charter right to be both:

25(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees-…(d) to be tried in person, and to defend himself or herself personally or through legal assistance chosen by him or her…

But does someone with a mental illness have a right to be a fool?

In Indiana v Edwards, the US Supreme Court dealt with a man who shot someone while trying to steal a pair of shoes and who was denied a chance to represent himself at both of his trials (the second for attempted murder after the first jury hung on that charge.) The defendant, Edwards, have passed the two hurdles that traditionally stood in the way of exercising his right to defend himself. First, he had – after taking medicine for his schizophrenia – been declared fit to stand trial. Second, he had freely and voluntarily waived his constitutional right to counsel. (It’s not clear that this second test would be required under the Charter, where both the right to counsel and the right to self-represent are explicit. In the States, only the first is explicit, whereas the second is implied from the Due Process clause.) Edwards didn’t want a lawyer, he said, because his lawyer seemed ill-prepared and wanted to argue ‘lack of intent’ instead of ’self-defence.’

But the Indianna courts held (and the USSC agreed) that Edwards had to pass a third test: that he was mentally competent to defend himself personally. Doubts about the latter were presumably inspired by defence filings like this one:

The appointed motion of permissive intervention filed therein the court superior on, 6–26–01 caused a stay of action and apon it’s expiration or thereafter three years the plan to establish a youth program to and for the coordination of aspects of law enforcement to prevent and reduce crime amoung young people in Indiana became a diplomatic act as under the Safe Streets Act of 1967, “A omnibuc considerate agent: I membered clients within the public and others that at/production of the courts actions showcased causes. The costs of the stay (Trial Rule 60) has a derivative property that is: my knowledged events as not unexpended to contract the membered clients is the commission of finding a facilitie for this plan or project to become organization of administrative recommendations conditioned by governors.

Riiiight.  Not that this sort of gibberish is unheard of amongst trained (or training) legal professionals!

The Charter vs anonymity

The other House of Lords judgment I’ve been waiting for, R v Davis [2008] UKHL 36, was a pleasant surprise. Penned by a different set of lords (no Hoffman or Hale), it rejects the use of anonymous witnesses where they are a major part of the prosecution case, at both common law and under the European Convention:

Whatever may be the position in that regard, I do not believe that the Strasbourg Court would accept that the use of anonymous evidence in the present case satisfied the requirements of article 6. Not only was the evidence on any view the sole or decisive basis on which alone the defendant could have been convicted, but effective cross-examination in the present case depended upon investigating the potential motives for the three witnesses giving what the defence maintained was a lying and presumably conspiratorial account. Cross-examination was hampered by the witnesses’ anonymity, by the mechanical distortion of their voices and by their giving evidence from behind screens, so that the appellant (and, since he was not prepared to put himself in a position where he had information that his client did not, his counsel) could not see the witnesses. Assuming that the sole or decisive nature of the evidence is not itself fatal, it is on any view an important factor which would require to be very clearly counter-balanced by other factors. Here there are none. The other factors are here very prejudicial in their impact on effective cross-examination.

The ruling came despite the extremely compelling case for anonymity from the facts. In the case being appealed from, a gunman entered a crowded New Years Eve party and shot a man, apparently due to a grudge. The same bullet also killed a uninvolved person in the next room. In another case decided at the same time by the court below, members of the “Johnson Crew” were attacked in a party at the Uniseven Hair Salon by members of the “Burger Bar Crew” (obviously not a lot of happening venues in Birmingham!) in revenge for a killing of a member of their crew. Five uninvolved people were badly injured. Common to both cases was the problem (also described in Underbelly) of uninvolved living witnesses refusing to testify out of fear for being shot. The Court of Appeal approved a regime where screens and voice modulators were used to shield the identify of the witnesses from the defendant (and, to preserve their relationship, the defendant’s lawyers) but not from the judge or jury. But the House of Lords held that, at least where the anonymous evidence is a major part of the case, such a course prevents the defendants from effectively defending themselves by investigating the bona fides of each witness.

Alas, this powerful judgment may well be of limited importance under the Charter. The most relevant right in the ECHR is this one:

6.3 Everyone charged with a criminal offence has the following minimum rights:… (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.

Alas, here’s how the same right looks in the Charter:

25(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees… (g) to examine, or have examined, witnesses against him or her, unless otherwise provided for by law…

Oy. So, anonymous witnesses are fine in Victoria, so long as a (reasonably clear ) law provides for their use.

This unfortunate road through Victorians’ confrontation rights was, alas, paved with good intentions by the Charter’s Consultation Committee, as I outlined in an earlier paper:

The right not to make mistakes

The House of Lords judgment, R v G [2008] UKHL 37, is  the sort of judgment that makes me appreciate our top court.  The case involved a 15 year-old charged with rape of a 12 year-old. Prosecutors accepted the 15 year-old’s plea on the basis that it could not be established whether or not the 12 year-old consented and where she had admitted to telling G that she was 15. The crime that G was convicted of did not require proof of either non-consent or knowledge (or the absence of mistake) about the other person’s age because the victim was under 13. He initially got a 12 month youth detention order but that was replaced on appeal with a conditional discharge. However, he was still concerned about having the offence of rape on his record. His main argument was that it was unfair for him to be convicted of a charge purely on the basis of the victim being under 13 when he reasonably believed that she was 15.

But it turns out that the UK Human Rights Act gives less protection to people accused of bad conduct than Australia’s common law, at least as far as claims of mistake are concerned. The Lords gave short shrift to the argument that the Convention’s rights to a fair trial (Article 6(1)) and to be presumed innocent (Article 6(2)) include a right to be acquitted absent proof that the conduct wasn’t mistaken. Here’s Lord Hoffman:

Article 6(1) provides that in the determination of his civil rights or any criminal charge, everyone is entitled to a “fair and public hearing” and article 6(2) provides that everyone charged with a criminal offence “shall be presumed innocent until proved guilty according to law”. It is settled law that Article 6(1) guarantees fair procedure and the observance of the principle of the separation of powers but not that either the civil or criminal law will have any particular substantive content: see Matthews v Ministry of Defence [2003] UKHL 4; [2003] 1 AC 1163. Likewise, article 6(2) requires him to be presumed innocent of the offence but does not say anything about what the mental or other elements of the offence should be. In the case of civil law, this was established (after a moment of aberration) by Z v United Kingdom (2002) 34 EHRR 3. There is no reason why the reasoning should not apply equally to the substantive content of the criminal law.

That’s some curious analysis at the end there. A lot of people think that criminal trials should have more protections than civil trials  Indeed, that the presumption of innocence doesn’t even apply in civil trial, which is why it wasn’t protected (or, indeed, mentioned) in Z v United Kingdom (which was just about Article 6(1)). Oy.

There’s no surprise in the ruling that the right to a fair hearing is procedural, not substantive, but what did the House of Lords do about those pesky ECtHR precedents, which is the very reason the case came before them? Lord Hoffman again:

The only authority which is said to cast any doubt upon this proposition is the decision of the Strasbourg court in Salabiaku v France (1988) 13 EHRR 379 and in particular a statement in paragraph 28 (at p.388) that “presumptions of fact or of law” in criminal proceedings should be confined “within reasonable limits”. No one has yet discovered what this paragraph means but your Lordships were referred to a wealth of academic learning which tries to solve the riddle. My Lords, I think that judges and academic writers have picked over the carcass of this unfortunate case so many times in attempts to find some intelligible meat on its bones that the time has come to call a halt. The Strasbourg court, uninhibited by a doctrine of precedent or the need to find a ratio decidendi, seems to have ignored it. It is not mentioned in Z v United Kingdom (2002) 34 EHRR 3.

OK, so we just disregard ECtHR precedents we don’t like. Lord Hoffman’s implication that the ECtHR did that itself in Z v UK again somehow misses the point that the presumption of innocence – the ‘essential issue’ in Salabiaku – wasn’t applicable or mentioned in Z, a case about child protection.

Anyway, the more interesting human right raised by the case of G – a fifteen year-old convicted of the rape of a twelve year-old who (they both say) told G that she was fifteen and who (he says) had consensual sex – is the right to privacy:

13 A person has the right- (a) not to have his or her privacy…  arbitrarily interfered with…

Or maybe not. Here’s Lord Hoffman again:

They didn’t know Jack!

On the same day the Joseph Thomas’s lawyers got leave from their trial judge to take their appeal against the Court of Appeal’s order of a new trial to the High Court, a copy of the judgment being appealed from is at last available on Austlii, having presumably receiving approval from the censors. The judgment reveals that torture remains a part of Thomas’s life, this time in the form of increasingly tortured reasoning from the Court of Appeal, including using his own civil liberties against him.

In the aftermath of the Court of Appeal’s courageous ruling that all of the evidence presented at Joseph Thomas’s 2006 trial was inadmissible (what with the torture and lack of a lawyer and all that), segments of the  media were furious. The Australian blamed the judges, with its ‘legal affairs editor’, Chris Mitchell, asking: “Why could they not find a reason to protect society from this man?’ The Court of Appeal promptly found just such a way, exercising its discretion to order a new trial for Thomas instead of entering an acquittal. This maneuver required the DPP to interrupt the court just as it was about the issue its order quashing the conviction; the DPP presumably wasn’t as shocked as the media by the outcome of the appeal. 

Ordering a new trial immediately after declaring that all of the evidence at the old trial was inadmissible was also a pretty gutsy move for the court. The crystal clear authority on the discretion is a unanimous High Court decision from 1984:

The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had. In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case. In the present case, the admissible evidence given at the trial satisfies this test. Then the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused.

The Court of Appeal got around this inconvenient precedent by declaring that the High Court weren’t thinking of a case like Jihad Jack. (The High Court case involved an alleged assault against a manager of the Nauru Phosphate Corporation, where a lot – but not all – of the evidence was hearsay.) What was different about Jack?:

… [T]he evidence on which the prosecution would rely on a retrial of this appellant [was] evidence which was not known – and could not have been known – to the Crown at the time of the trial. Although the ABC interviews had taken place before the trial, this was a matter of which the Crown, inevitably, knew nothing… For practical purposes, the additional evidence did not exist at the date of the trial.

So, the Court of Appeal claimed, the decision on whether or not to hold a new trial depended on the cogency, not just of the (non-existent) admissible evidence at Thomas’s original trial, but also the evidence that has since been discovered by the Crown, courtesy (the Crown said) of the broadcast of the Four Corners interview the first Monday after the verdict in Thomas’s original trial.

This new appeal was brought because the claim that the Four Corners interview was fresh evidence turns out to be a bit whiffy.

The right to Ned

It’s been a big week for Victorian icons and human rights. On Tuesday, an anonymous local reportedly attended a meeting of the Hepburn Shire Council to protest rate rises and the ensuing gentrification of Victoria’s spa country by Melbournians. Carrying a placard to that effect (albeit wordier), he underlined his point by borrowing a friend’s Ned Kelly mask – always handy to have one of those around – to ensure that his point got attention. In a way, his plan worked very well. His protest would doubtless have been ignored, were it not for the decision of the Council to shut down the meeting, citing Ned’s refusal to remove his mask as intimidatory. Indeed, Ned would surely have had the advantage if it came to a firefight.

Both sides to this dispute cited legal precedent. Ned claimed that the Australian Constitution gave priority to locals over newcomers like Hepburn Mayor Heyes. (Must be somewhere in Chapter 3.) The Council claimed that no legislatures in Australia had to put up with masked protesters. But, for once, the law is on Ned’s side. There’s the implied freedom of political communication, of course, but what about the Charter (another young upstart law?) I would have thought that the combination of these three sections means that Hepburn Shire Council’s conduct was on the nose:

The right to Aussie Rules

The Charter, at last, is the lead story in the Herald Sun. And not, as I would have predicted, to pillory the statute for freeing a rapist or terrorist or some such. How could I miss the fateful interaction between Victorians’ human rights and Victorians’ main obsession? Alas, I’d voice my own views on AFL here, pursuant to Charter s. 15(2), were it  not for Charter s. 15(3)(b)…

The issue is girls in footy (as opposed to women on the Footy Show):

A 14-YEAR-old girl is attempting use Victoria’s new Charter of Human Rights to allow her to play finals footy with her local team. In what could be a precedent-setting case, Evelyn Rannstrom’s parents are arguing their daughter should be able to continue playing in the under-14s team at Gembrook Cockatoo Junior Football Club as they push for the finals. Ms Rannstrom has been denied an age exemption by the Dandenong Ranges Junior Football League to play in the under-14s as AFL Victoria rules exclude girls from playing once they turn 14 and discourage them from playing with boys above the level of under-12s.

Earlier this year, Ms Rannstrom’s parents lodged complaints against AFL Victoria at the Victorian Equal Opportunity and Human Rights Commission. However this failed and today the case moved to the Victorian Civil and Administration Tribunal where it was argued that under the terms of Victoria’s new Charter of Human Rights, she should be allowed to play. The Charter became law on July 25 last year.

Apart from that last sentence – a year out and ignoring the crucial commencement dates – this is an accurate summary. Nice to see that everyone’s dropping the Responsibilities these days.

The case looks set to be a test (if far from the only one) for the interesting question of the interaction between the Equal Opportunity Act 1995 and the Charter. Here’s my quick take on the issues:

The coming judgment

Well, the full judgment in the case of Joseph Terrance Thomas – oops Joseph Terrance T –  isn’t out yet. But the Court of Appeal registry and library – who were very helpful to someone who rang as a member of the public and didn’t have to drop the U-bomb – tell me that the judgment won’t be restricted and so we’ll see it soon. What’s the delay? It needs a looking-over to make sure that it won’t prejudice the coming trial. Let’s imagine the checklist:

a. drama: The Four Corners show that is the main evidence in the coming trial has a quite good dramatisation of the AFP interview in Pakistan.

b. portrayal by actors: ditto

c. salacious behaviour: you mean the bit when a CIA agent said that he’d send someone to rape Thomas’s wife? Am I allowed to mention that?

d. humorous dialogue: My favourite bit of the Four Corners show was where the defendant is asked what he was like as a child. Answer: “A terror”. Now, there’s an admission!

e. music: The defendant was in a rock band – the Frontal Lobotomies or some such – but the Underbelly soundtrack it aint.

f. mixing fact and fiction: Just check out Vincent JA’s insane hypothetical below.

I can see why they’ve summoned the fair trial censors.

Anyway, as the full judgment is on its way, I’ll hold off analysing the summary. But, for those who can’t be bothered looking at the court website, here it is. The big news: it even mentions some human rights!  I pity the fools…

The messy gift of Charter s. 39(1)

This is the last in my series of posts on the Charter’s most difficult provision:

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.

The first post considered the ambiguous origins of all the above words. The second looked at the ambiguous final eighteen words, The third turned to the first thirty six words, focusing on two ambiguous ones: ‘may seek’. This post looks at another three or so ambiguous words. And then we’re done!

To recap, Charter s. 39(1) limits what courts can do when a public authority breaches its conduct mandate. A court can only do something about such a breach if the first thirty-six words of Charter s. 39(1) are satisfied. Those words set out a test about how certain non-Charter laws apply to a particular thing done by a public authority. My view is that they don’t require that the thing the authority did actually be illegal under non-Charter law or even that there be any suggestion to that effect. Instead, they are concerned with a hypothetical: what would happen if the thing was illegal under non-Charter law? If there’d be a relief of remedy in that situation (obviously sourced from non-Charter law), then a court can provide the exact same remedy for a breach of the conduct mandate occasioned by the exact same conduct by the exact same public authority. To quote Evans and Evans, Charter s 39(1) permits the conduct mandate ‘to supply an element of unlawfulness that some other law requires in order to obtain relief or a remedy’.

As I’ve said repeatedly, it seems quite unnecessary to go through the hypothetical of wondering what would happen if a public authority’s conduct was unlawful under a non-Charter law. That’s because Charter s. 38 itself provides that a breach of the conduct mandate is unlawful. So, instead of doing all this imagining, why not just ask a legal question: what can a court do when the public authority in question does something unlawful? The answer is provided by Victoria’s law on relief and remedies, just as it is when any other law declares something to be unlawful. Charter s. 39(1)’s main purpose appears to be just to make it clear (not that its wording actually makes anything clear) that the Charter itself doesn’t provide any reliefs and remedies itself. This is pretty obvious, when you compare the Charter to other jurisdictions that have express remedy provisions, like the UK and (from 2009) the ACT, but it isn’t so obvious when you look at what happened in the US and NZ, where such special remedies were held to be implicit in the mere existence of legal rights.

However, whether it’s needed or not, Charter s39(1)’s language now governs what reliefs or remedies non-Charter law can give for Charter breaches. This post is concerned with that language. The crucial point to note is that Charter ss 38(1) & 39(1) are exclusively concerned with ‘unlawfulness’ a term that doesn’t cover the field when it comes to the law on relief or remedies.

Another jihad against Jack

Today’s news is a big disappointment to me:

Victorian man Jack Thomas will be retried on terror charges after an appeal by his lawyers was dismissed today. The former Melbourne taxi driver, dubbed Jihad Jack, was cleared of terror charges in 2006 but the Victorian Court of Appeal today ordered a retrial following new alleged evidence. The retrial was ordered on charges of accepting money from al-Qaeda and possessing a false Australian passport following interviews Thomas did with the ABC’s Four Corners program. But Thomas’ lawyers argued the prosecution case was relying on a media interview that did not provide fresh evidence and did not warrant Thomas being retried. Today Justices Chris Maxwell, Peter Buchanan and Frank Vincent rejected the appeal and ordered the trial to go ahead.

With a retrial pending, it’s difficult to fully discuss this case (and I guess we won’t be seeing any docudramas any time soon.) The new judgment from the VCA is yet to appear on Austlii and maybe it won’t, given that the other judgments from this case have all been taken down, as has the Four Corners interview. (Subscribers to commercial databases, or visitors to any law library, can, of course, read the relevant judgments in the Victorian Reports. And the less privileged can google. But we must keep up pretences.)

But the Age article reveals the basics. Thomas was tried. The trial was bung. (Why the reasons for this have to be a secret is beyond me, but I’ll leave it at that.) Now he’s being re-tried. There’s nothing unusual about re-trials, but the odd thing here is that the main (and perhaps sole) evidence to be adduced at the re-trial is a Four Corners interview Thomas did that was screened after Thomas’s original trial. So, his new trial will be based exclusively on evidence that wasn’t adduced at the original bung trial.

The question of whether or not Thomas should be re-tried turns, in part, on this statutory provision:

568(2) …[T]he Court of Appeal shall, if it allows an appeal against conviction, quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial to be had.

There’s a clear test for how this discretion should be exercised, from a unanimous High Court judgment from 1984 (ah the good old days):

The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had. In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case. In the present case, the admissible evidence given at the trial satisfies this test. Then the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused.

It’s obvious that the first test is not met in this case. But the Court of Appeal decided that the High Court’s test doesn’t apply when there’s new ‘fresh’ evidence (fresh in the sense that the prosecution didn’t and couldn’t know about it. Apparently, the AFP and the Cth DPP doesn’t know anything about who alleged terrorists are speaking with. I feel so safe. [EDIT: No, it turns out ASIO did know, but apparently that wasn’t enough to make it ‘fresh’. Eh, why bother with a ‘fresh’ requirement anyway?) And they also decided that any unfairness to Thomas from the sequence of events (including the fact that the error in Thomas’s original trial was only detected after the interview was broadcast, which is hardly Thomas’s fault) was outweighed by the burning need to prosecute Thomas for the brand spanking new offence of receiving funds from terrorists with its oh-so-appropriate twenty-five year maximum penalty. These appeal judges are warriors for justice.

Now I’m curious about a lot of things about this case, including whether or not the Court of Appeal (which was so bold in its original appeal judgment) was affected by the media storm that followed it – including personal attacks on President Maxwell, who was part of the bench on all the subsequent backtracks – and also the question of whether the new evidence, fresh or otherwise, is admissible given the law on admissions (such as it is.) But what I’m really really curious about is whether the Charter has played any role in today’s appeal.

The right to make mistakes

This week is shaping up as a big one for criminal justice and human rights. In Victoria, something big may (or may not) be happening at 9.30AM on Monday. And in the UK, two major HRA judgments will appear sometime on Wednesday. One concerns the compatibility of anonymous witnesses (in the context of gangland wars in England) with the HRA’s fair trial rights, part of the broader question of whether the right to a fair trial includes a US-style right to confrontation. (Probably not, but the details will be interesting.)

The second – an appeal from G v R [2006] EWCrim 821-  is more momentous: does the HRA confer a right to the defence of mistake of fact? The timing is great, given last week’s High Court decision on the common law version of that right. Indeed, both decisions involve child sexual assault and the issue of mistake of fact as to age. England’s common law approach on mistake under statutory offences differs from Australia’s, but will the HRA bring the two systems back into line? That question is not just of interest to the English, but rather has direct implications in Victoria, with its intepretation mandate and declaration power.

The major question in the English case is whether the defence of mistake is required by the UKHRA equivalent to the presumption of innocence:

25(1) A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

The orthodox view is that this right is a procedural one: it requires that the elements of any criminal offence must be proven beyond reasonable doubt, but doesn’t control what those elements are. 

The problem with this view is that it produces an absurdity.