Warren’s Charter

No, the blog isn’t back. But I thought it was worth easing my resolve a touch to mark an event that is an antidote, for now, to so much that bothered me last year: a genuinely great Charter decision.

No, make that a terrific Charter decision! The best decision ever! OMFG… The case is Re an application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381. This is the resolution (for now) of what I referred to on Charterblog as Bongiorno J’s challenge, here and here.

The case concerns Victorian anti-organised-crime legislation, passed in 2004 at the height of the gangland war (don’t mention the war! It’s suppressed.) which gave the Orwellian ‘Chief Examiner’ the power (on application to a court) to coercively question (or demand documents from) anyone suspected of involving in organised crime. (Similar powers are awarded to the Director, Police Integrity and the Special Investigators Monitor, in police corruption matters.) No, the coercion isn’t torture, but only up to five years in Barwon’s Acacia Unit.

Crucially, the legislation expressly abrogates the privilege against self-incrimination but only provides for a limited immunity against the use of answers in a later prosecution:

39. Privilege against self-incrimination abrogated

(1) A person is not excused from answering a question or giving information at an examination, or from producing a document or other thing at an examination or in accordance with a witness summons, on the ground that the answer to the question, the information, or the production of the document or other thing,
might tend to incriminate the person or make the person liable to a penalty.

(2) Subsection (3) limits the use that can be made of any answers given at an examination before the Chief Examiner, or documents or other things produced at an examination before the Chief Examiner or in accordance with a witness summons.

(3) The answer, or the document or other thing, is not admissible in evidence against the person in- (a) a criminal proceeding; or (b) a proceeding for the imposition of a penalty- other than- (c) proceedings in respect of an offence against this Act; or (d) proceedings under the Confiscation Act 1997; or (e) a proceeding in respect of- (i) in the case of an answer, the falsity of the answer; or (ii) in the case of the production of a document, the falsity of any statement contained in the document.

Section 39(3) stops the examinee’s answers or compelled documents being used against him/her. But the controversy is that it doesn’t stop the later use of evidence derived from those answer/documents being used against the examinee in a criminal prosecution. So, if you are asked to say where you buried a body (on pain of contempt or perjury), your answers can’t be used against you, but the body can! Great. The controversy is heightened because the legislation specifically allows the questioning of people facing criminal charges. (See s29. The Chief Examiner is required to take reasonable steps not to ‘prejudice’ the ongoing proceedings, a nod to an earlier High Court case, Hammond.)

I called this Bongiorno’s challenge, because he decided last year in an unpublished decision that the Charter ‘s rights against self-incrimination mean that courts, in granting applications to the Chief Examiner, should include a condition barring the questioning of charged persons. The present case is an appeal to the Supreme Court against the imposition of such a condition. The identity of the charged person remains a mystery. CoughMokbel! Actually, I have no idea. Hilariously, the identity of the applicant, DAS, ‘a member of Victoria police’, is also a mystery. Joanna Davidson represented him/her/it, and Kris Walker represented VEOHRC, in a rare intervention. [But see the EDIT below.] It’s an all-acronym case! But the A-G was a no-show.

The case went before Warren CJ. Now, I’ve been very hard on Marilyn Warren in my blogging, mainly because of her role in the Unberbelly debacle, but also because of her cavalier treatment of a lesser free speech claim in a leaking case. Those were indeed awful decisions. But I no longer question Warren’s abilities or dedication to the Charter. This decision is a tour de force, not only of Charter law, but also of the law of self-incrimination and evidence. Full disclosure: it also accords (somewhat) with what SARC said in its report on a similar scheme in the Police Integrity Bill: . Go SARC! It also largely contradicts what the Police Minister said in response to SARC’s queries. Sorry Bob…

The whole of Warren’s decision is worth reading, but here are the highlights:

Giuseppe De Simone redux

[EDIT: Here, at last, the post VCAT suppressed, originally written over a month ago. Who knows why the suppression was ordered or lifted? The case is now available online.]

He’s baaaack! Giuseppe De Simone, readers will recall, scored a brief Charter mention on Halloween in his succesful appeal against his conviction for biting a police officer in the aftermath of a supermarket dispute involving an ice-cream he ate. But that isn’t the end of his business in Victoria’s judicial system or, for that matter, his significance for the Charter. In a recent VCAT judgment, he had another bite of the Charter cherry. Actually, it was his third. And it raises one novel issue (involving Charter s. 33, the Supreme Court referral provision) and a host of familiar ones.

The context is a building contract dispute relating to the Seachange Retirement Village at Ocean Grove  (which, for those who don’t know, is quite close to Barwon Heads, which, for those who don’t know, is the real life location of Pearl Bay, which, for those who don’t know, lucky you.) The owners of the land have sued the builders for non-performance (after the Charter s. 49(2) cut-off date, it seems) and the builders have counterclaimed for misleading conduct. In the thick of things is De Simone, managing director of the owners. On 27th July 2006, two days after the Charter became law, he sent the builders, who said they needed evidence of financing for insurance purposes, a letter on an accountant’s letterhead that appeared to confirm financing. Alas, it seems, it didn’t, but was instead a letter about a subsidiary money matter. This led to De Simone being personally joined in the action. The recent VCAT case was De Simone’s attempt to stay that part of the action.

But, before we get there, there’s an earlier Charter angle. The original VCAT officer appointed to the case early last year was Senior Member Roger Young. Young fairly quickly started to have problems with De Simone, who, it turns out, ‘has studied law but has not been a legal practitioner’. The worst sort! De Simone represented himself (for the most part) in the various directions and interlocutory hearings that arose last year and he and Young obviously didn’t get along, with Young often shutting down De Simone’s contributions (and pointedly suggesting he get a lawyer) and De Simone making applications for Young to step down due to apprehended bias (one of which was prompted by the ‘lawyer’ suggestion, which Young conceded was a lame joke.) In the end, it seems, Young just started to lose it, stopping De Simone from making relevant submissions, criticising De Simone for skipping a meeting that Young had excused him from and, most damningly, saying things like: ‘Gee whiz, I’m getting sick of you!’ (Surely likely to be the last non-ironic use of the term ‘gee whiz’ ever.) So, in the middle of this year, in Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors [2008] VCAT 1479, VCAT’s (then) acting President Ian Ross exercised his powers to take over the case, citing apprehended bias, De Simone’s fair hearing right and Charter s. 24. The latter was a classic passing mention, with all the lameness and fuzziness that follows from it. Fortunately, Ross’s latest Charter judgment on the case is more substantial.

De Simone’s case for having the civil claim against him stayed arises because the builders not only sued in VCAT but also referred De Simone’s alleged financing letter shenanigans to the Geelong police. De Simone has not yet been charged (either at the time of his application, in July, or the time of the ruling, in late November), but it was accepted by all parties in the hearing that the probability of  a charge of obtaining financial advantage by deception was ‘high’, although the time-line is not known. De Simone’s application therefore raised the same issue as Trevor Flugge’s (successful) stay application: whether the civil proceedings should be stayed to avoid prejudicing the defence of the future criminal proceedings and, in particular, whether the unpopular 1982 judgment of McMahon v Gould, which generally favoured the rights of civil litigants, should be applied. However, whereas Flugge’s action faced some significant barriers to raising the Charter (due to the federal context and the  Charter’s lack of direct application to common law rules), De Simone’s action lacks those barriers: VCAT’s jurisdiction is both Victorian and statutory.

The initial (and most novel) issue in Seachange Mangement Pty Ltd v Bevnol Constructions and Developments Pty Ltd [2008] VCAT 2629 is whether the questions pose by De Simone’s Charter challenge should be resolved by VCAT or by the Supreme Court. De Simone requested the later. Here’s the relevant Charter provision:

33(1) If, in a proceeding before a court or tribunal, a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter, that question may be referred to the Supreme Court if- (a) a party has made an application for referral; and (b) the court or tribunal considers that the question is appropriate for determination by the Supreme Court.

(2) If a question has been referred to the Supreme Court under subsection (1), the court or tribunal referring the question must not- (a) make a determination to which the question is relevant while the referral is pending; or (b) proceed in a manner or make a determination that is inconsistent with the opinion of the Supreme Court on the question.

(3) If a question is referred under subsection (1) by the Trial Division of the Supreme Court, the referral is to be made to the Court of Appeal.

This provision is the result of a recommendation by the Consultation Committee. (Interestingly, and pertinently, the Committee’s draft also required a referral to the Court of Appeal instead of the Supreme Court if the referral was from a VCAT President or Vice-President, but that equitable treatment of VCAT and the Supreme Court was excised by the meddlers. )  The Committee explained that sometimes lower courts ‘need guidance on an interpretative question’ and that the Committee ’sees value’ in having the Supreme Court decide them (following notice to the A-G and VEORHC.) So, it’s another plank in the Committee’s ‘don’t let lesser lawyers or officers stuff up our precious Charter; that’s a job for the Attorney-General and the Supreme Court’ philosophy. However, unlike the risible Charter s. 35, this provision is ameliorated by the sensible constraints of requiring both a party request and a determination by the first instance officer, before the higher authorities stick their collective nose in.

God knows why De Simone made his application (relating to both the application of Charter s. 24 directly to VCAT and its application to the procedural provisions in the VCAT Act), though you’d have to wonder whether he just wanted to delay the civil claim against him under Charter. s33(2)(a), which would probably be as good as getting a stay. But the interesting question is when and on what basis such an application should be granted under Charter. s. 33(1)(b). Neither the Consultation Committee’s report nor the EM given even the slightest hint of when a question ‘is appropriate for determination by the Supreme Court’ [sic - or the Court of Appeal.] Here’s Ross’s take:

I am not persuaded that it is appropriate to refer either of these questions to the Supreme Court pursuant to s 38(1) [sic]. The issues raised by the questions were fully ventilated in the proceedings as was the application of the relevant principles to the facts of this matter. In my view the most expeditious course is to determine the application. Any party aggrieved by the decision may exercise their appeal rights and the issues sought to be determined by the referral application may be determined in that context.

Well, I’m not persuaded by this. Surely, the major issue under Charter s. 33(1(b) is whether or not the question is important enough to require authoritative determination, both for the benefit of the immediate matter and for other similar proceedings. The application of McMahon v Gould in VCAT matters would seem to fit the bill, especially given the enormous criticism of that case, including recently in the Supreme Court. The major counter-factor would be the impact of Charter s. 33(2)(a) on the proceeding itself. Perhaps that’d be a weighty factor, but Ross doesn’t discuss whether or not the builders or owners would be prejudiced by delaying the counter-claim against De Simone (who, it must be remembered, was a late joinder to the original dispute between the two companies.) Of course, there’s a certain sense in Ross’s notion that the matter could be dealt with by the Supreme Court on appeal (and that there’s no reason why Ross can’t resolve the matter himself), but that sense seems to be at odds with the whole (elitist) point of Charter s. 33.

Personally, if the parties are willing – or if one party is keen and the other isn’t prejudiced overly –  it strikes me as a good thing to fast-track major issues to the Supreme Court and Court of Appeal, at least while so many crucial things about the Charter remain unresolved. For instance, what really is the point of Bell J’s current lengthy hearings about mental health, FOI and the definition of public authority, when those matters are all so contentious that they will inevitably have to be sorted out by the Court of Appeal (and perhaps the High Court)? If the parties are fine with doing things the slow way, then I have no objection. But otherwise? The quicker these major questions about how the Charter works are authoratitively resolved, the better, surely?

Anyhow, for better or for worse, Ross proceeded to resolve the matter himself. The good news is that he (and, it seems, the lawyers, and maybe even De Simone) were well versed in Charter Operative Provisions 101:

The Charter may impact on VCAT’s work in three ways:

• if VCAT is a ‘public authority’ s 38(1) provides that it would be unlawful for it to act incompatibly with human rights (subject to the exceptions in ss 338(2) and (4));
  
• all statutory provisions must be interpreted in a way that is compatible with human rights (s 32(1)); and
  
• the Charter applies to courts and tribunals to the extent that they have functions under Part 2 and Division 3 of Part 3 of the Charter (s 6(2)(b)).

Oh, thank you Ian Ross! You can read! I’m not being facetious. You are streets ahead of most of your supposed betters on the Supreme Court: the Bongiornos, the Lasries, the Hollingworths, etc. You’ve even noticed the exceptions to the conduct mandate, including the most important one. Praise be. After nearly a year of blogging this stuff, I’m genuinely impressed. Which is actually tragic. Alas – readers of the blog know what’s coming! – Ross’s approach to the subtleties of the Charter didn’t quite match his precise grasp of the basics.

Wrapping up 2008

To date, I’ve covered 47 cases that mentioned the Charter in 2008. There’s another two that I’ve written a post on but VCAT won’t let me tell you about those. And there’s another four [EDIT: five, as it turns out] left. But the clock is ticking and I won’t have time to do a post on each of them. So, instead, here’s a set of short-takes:

Morgan v Department of Human Services (General) [2008] VCAT 2420: This is an FOI case from VCAT, but not the major case foreshadowed in the VGSO seminar, which I think was the subject of hearings last week. Instead, Ms Morgan is a litigant-in-person who alleges that various agencies of DHS committed manner of wrongs against her and her son in relation to eviction from and provision of crisis accommodation. Her initial step was to launch a private prosecution, but the DPP took it over and then dropped it. She then made an FOI request to DHS, who refused to release 128 documents, claiming a variety of FOI exemptions. She disputes the exemptions, hence the VCAT hearing. The Charter appears to arise in two ways: (1) Morgan alleges that the initial wrongs by the DHS agencies included breaches of various Charter rights: equality, privacy, families/children, liberty. Senior Member Robert Davis held this Charter angle made no difference, given that Morgan was already alleging all manner of illegality. Fair enough, though the position might be different for some other rights, like the right to life, that incorporate a right to a state investigation – arguably, FOI is needed to make sure the state doesn’t duck that job. (2) Davis noted that, in interpreted the FOI Act’s exemptions, he had to ‘give regard to [Charter] s32 in particular and the Charter in general.’ But nothing came of this. No sign of any analysis of what rights the exemptions may be incompatible with. I guess that’ll be up to Bell when he delivers judgment in XYZ v Victoria Police.

Kilkenny v Frankston CC [2008] VCAT 256: This is a plain old residential planning dispute from the Melbourne suburb of Seaford. So, what’s the Charter angle?:

Ms Kilkenny and Mr Colgan expressed concern about the potential for overlooking onto their property from a south facing window to the stairwell. Their grounds assert that the window would cause overlooking causing unreasonable loss of privacy. They also asserted that the charter of human rights had been breached as the council had not given adequate regard to their privacy. However, these concerns were allayed when Mr Kirk agreed to the inclusion of a condition on the permit requiring the deletion of the window in question and for it to be replaced with a skylight. Ms Kilkenny and Mr Colgan agreed that with this change, they were no longer concerned about overlooking or that their rights under the charter were breached.

Well, that’s a relief. I bet Phil Lynch will add this one to his list of feelgood stories about how the Charter is making a real difference! I’m sad, of course, because I would have loved for this one to go to the High Court so they could solve the many fascinating issues Ms Kilkenny’s and Mr Colgan’s assertion raises about the potential ‘horizontal effect’ of the Charter!

A R M v Secretary to the Department of Justice [2008] VSCA 266: This is the companion case to the fizzer, RJE. Unlike RJE, ARM didn’t escape his ESO. That’s unsurprising, because he had quite the history of offending (though, weirdly, he only got a short sentence for his most recent offence, which was against a 19 year-old) and, indeed, he conceded that he was likely to re-offend without supervision. His complaint was that an eight-year order was excessive, because of expert evidence that he’d be fine after a three-year course of treatment. The Court of Appeal held, convincingly, that the trial judge’s order of a three-year review (and two-year reviews thereafter) would do. That’s fair enough. Indeed, there seems to be no difference in substance, so why was ARM even in the court of appeal? Anyway, he did have two smaller victories: (1) He managed to head off an astonishing argument by the government that the SSOMA only allowed appeals against orders, not the duration of them. What was that about ‘model litigants’ not relying on ‘technical defences’? (2) He also won a non-pyrrhic victory, by getting the Court of Appeal to suppress his identity. This involved overcoming another nasty technical defence, but was otherwise easy, as the Court of Appeal felt that non-suppression would be a punishment and that there was no public interest in knowing who ARM was anyway. And that’s where the Charter got a passing mention:

In other cases it may be necessary to consider the right to privacy and reputation conferred by s 13 of the Charter of Human Rights and Responsibilities and, along with it, the effect of s 32 of the Charter on the interpretation of s 42 of the Act.

Yeah, well, in other cases – and in this case, for that matter – it might have been appropriate to consider Charter s 15 too, don’t you reckon? Derryn Hinch would undoubtedly say that Charter s 17 is worth a look too. But, boy, it’s not looking good for his challenge, is it?

Tilley v The Queen [2008] HCA 58: And, in what appears to be the [EDIT: second-] last Charter case of the year, it’s the first one that isn’t in a Victorian court or tribunal, though I guess Kenneth Hayne is still a Victorian of sorts. Not that he went easy on his former court. He was livid that convicted heroin trafficker, Peter Tilley, had to wait almost two years before he got an appeal hearing in the Court of Appeal, and then an astonishing further year before the Court delivered a judgment. (One of Tilley’s co-conspirators (ahem) completed his life sentence during that interlude!) Tilley was now seeking special leave in the High Court because the Court of Appeal, despite spending so long in contemplation, apparently forgot to consider some of his appeal grounds. Before Hayne, he argued that he had only one year left of his five-year non-parole period and an appellate success after that would be pointless unless he got bail. That triggered one half of a High Court precedent on bail pending special leave, but alas Hayne held that Tilley failed the other half, which required that the special leave application had a good chance of succeeding. Anyway, in the midst of Hayne’s raking the Court of Appeal over the coals, he said this:

It is neither necessary nor appropriate to examine here what, if any, consequences now follow in Victoria in this respect from s 25 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) and its provision that: “(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees – … (c) to be tried without unreasonable delay”.

Nice to know he’s heard of the Charter. But why wasn’t it necessary or appropriate to actually apply the thing? Two explanations: (1) Charter s. 49(2), the bane of all ‘unreasonable delay’ cases for now. Tilley, of course, was charged yonks ago, but there would seem to be an argument that his proceedings before Hayne were separate from his criminal proceedings. (This makes a mockery of Charter s. 49(2), of course, but it deserves that.) (2) The High Court wasn’t exercising appellate jurisdiction (which might involve reviewing whether or not the Court of Appeal should have applied the Charter during the appeal) but original jurisdiction (and, in particular, s73 of the Constitution, which is the source of the High Court’s bail power.) So, no Charter s. 32 (the constitution isn’t a Victorian statutory provision), no Charter s. 38 (the High Court isn’t a public authority) and no Charter s. 6(2)(b) (the High Court isn’t a Victorian court or tribunal), right? Well, maybe. But what about the Judiciary Act and, in particular, this provision?:

79(1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

Now, I certainly know very little about federal jurisdiction – Gummow: ‘I just felt a disturbance in the force!’ – and it may well be that this provision doesn’t bind the High Court exercising original jurisdiction. But, on the off-chance that it does, then wouldn’t it be arguable that Charter s. 25(2)(c) is a law ‘relating to procedure’ and that one or other of the operative provisions – Charter s. 6(2)(b) perhaps – is picked up by s79 in applications like Tilley’s? (As I understand things, this pick-up can even apply to state laws expressed to apply only to Victorian courts.)  And might that mean that Hayne has to rethink that rather restrictive High Court precedent on bail, to the extent that it limits Tilley’s rights under Charter s. 25(2)(c)? Just some crazy speculation, but maybe someone else is smoking what I’m smoking. [EDIT: Hey, someone was, but the Federal Court and the High Court didn't inhale; interpretation is probably the least likely operative provision to be picked up, I imagine.] Not Hayne though, but he did give Tilley a little help, expediting his (doomed) special leave application.

And that’s it for my short takes. Not that short really. Despite my next post, I might just add some additional short takes on the off-chance that more 2008 judgments emerge on Austlii, even next year. But, as for 2009 judgments, you’re on your own.

[EDIT: As promised, here's a short take on a new 2008 case that has appeared on Austlii:

Drummond v Telstra Corporation Limited [2008] VCAT 2630 is an unfair dismissal case trying to qualify as an anti-discrimination case.

The Charter vs One-Man Conspiracies

One of the flurry of Charter passing mentions this week is R v Dickson [2008] VSCA 271, an appeal by a former AFP officer who was convicted of posing as a customs officer to facilitate the theft of some counterfeit cigarettes being held in a Port Melbourne warehouse. He was convicted of conspiring with three other people: Holmes (then a Victoria Police officer), Purdy (an associate of Holmes’s) and Wang (the fence, turned Crown witness.) But there were problems with each of these alleged co-conspirators. At Dickson’s first trial (which was joint with Holmes and Purdy), the trial judge directed an acquittal of the latter two. Because the jury had to be discharged, Dickson was tried again on his own, and it was only then that the prosecution joined Wang as a co-conspirator (arguing that, given his guilty plea, including his role in the original joint trial would have been too confusing for the jury.

The theft occurred in January 2004 and Dickson’s first trial ended in mid-2006. However, it was not until late 2007 that the new presentment against Dickson was filed. Moreover, the prosecution stuffed that one up and they had to have another go in early 2008. These events later events all happened after the Charter s. 49(2) cut-off date of 1/1/7 (and the final presentment occurred after the Charter s. 49(3) cut-off date of 1/1/8.) The convicted Dickson appealed on numerous grounds, including complaints against the presentment and the conduct of the trial, as well as an (apparently vague) complaint that ‘he did not receive a fair trial within the meaning of’ the Charter. The Court of Appeal refused leave and had this to say about the Charter ground:

Counsel for the Crown did not dispute that the filing of the ‘new’ presentment amounted to ‘the commencement of proceedings’ within the meaning of the Charter of Human Rights and Responsibilities Act 2006, and, against that background, the contention was advanced on behalf of the applicant that there has been a breach of s 25(2)(c) of the Charter and a failure to ensure that the applicant was ‘tried without unreasonable delay’. Therefore it was said, the verdict should not be permitted to stand.

Just pausing there, a couple of things to note. First, the Crown here seems to be conceding and the Court seems to be accepting, in what appears to be a first, that King J’s view on the meaning of ‘commenced’ in Charter s. 49(2) as meaning the laying of charges isn’t the end of the story. As I’ve speculated previously, if the charges are changed down the track, then arguably the proceedings re-commence, potentially bringing old criminal proceedings into the purview of the Charter. Certainly, the application of the Charter in this case would otherwise make no sense, as Dickson was originally charged (and, indeed, tried) well before 1/1/7. Second, Dickson’s ‘fair hearing’ complaint seems to have morphed into an ‘unreasonable delay’ complaint, which is a much narrower argument and was dispatched as follows by Vincent, Weinberg and Robson:

There is no need to expand upon the relationship between the rights accorded under the Charter and the principles which this Court must apply in performing its role under s 568 of the Crimes Act in addressing an application for leave to appeal against conviction. The present matter involved a number of alleged offenders and hearings and, having regard to the reasonable expectations that could be placed upon our criminal justice system, could not be assessed as inordinately protracted or resulting in the unreasonable or unjustified delay of the hearing at which the applicant was convicted. Addressed by reference to the function of this Court under s 568, there is certainly nothing that could give rise to any reasonable concern that the lapse of time between the occurrence of the events in question and the time at which it was conducted or by reason of some form of forensic disadvantage that the applicant may have suffered. Indeed none was ever suggested by his counsel.

And there’s two more things to say about this. First, it’s far from clear that there’s ‘no need to expand upon the relationship between’ the Charter and Victoria’s statutory appeal provision:

568(1) The Court of Appeal on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal

To the contrary, the Charter’s interpretation mandate may have changed the meaning of that provision (and terms like ‘miscarriage of justice’) and, as well, the Charter’s conduct mandate may have changed what trial and pre-trial events amounted to a ‘wrong decision on any question of law’.

Second, in particular, the Court of Appeal’s assessment focuses only on the ‘reasonable expectations of the criminal justice system’ and the risk of ‘forensic disadvantage’. But that arguably gives short shrift the ‘minimum guarantee’ offered by Charter s. 25(2)(c), which may well cover broader concerns, such as the defendant’s entitlement to a system and processes that can resolve the question of his guilt of theft in under four years, absent exceptional difficulties. In particular, the major delay in this case was the prosecution’s charging of Holmes and Purdy and what proved to be an inadequate case, thus costing Dickson his chance to have the matter resolved in 2006. Dickson’s reasonable expectations and whether or not he suffered a forensic disadvantage are arguably beside the point, as the Charter may have changed the ‘function of this Court under s. 568′ beyond the confines of traditional appellate law.

Anyway, I’m a bit surprised that Dickson’s ‘fair hearing’ complaint ended up shrinking to a ‘reasonable delay’ complaint, as his other appeal grounds raised quite different human rights concerns.

The right to Miranda

Two days ago, in Salduz v Turkey [2008] ECHR 1542, the Grand Chamber of the European Court of Human Rights unanimously overruled one of its lower chambers, in a case concerning a young man accused of breach of Turkey’s anti-terrorism laws through his alleged involvement with the PKK. Seventeen year-old Yusuf Salduz, arrested on suspicion of being involved in a PKK demonstration and hanging an illegal banner (“Long Live Leader Apo”) from a bridge, was interrogated for two days by government security officers. In accordance with the then Turkish security laws, he was not allowed a lawyer, though he was told of his right to remain silent. He confessed to the allegations and gave samples of his handwriting, which an expert report was unable to conclusively match with the banner. After his charge, he retracted the confession, but was convicted on evidence including the confession, a further expert report and evidence from his alleged partners in PKK-support.

But the facts scarcely matter. At issue was this ECHR right:

6.3 Everyone charged with a criminal offence has the following minimum rights:… (c) to defend himself in person or through legal assistance of his own choosing…

The terms of this right appear to speak about the trial itself. The ECtHR has held that it (and its allied fair hearing right) can have implications for pre-trial interrogation, but that requirement was couched in terms of flexible reasonableness standards:

National laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings. In such circumstances, Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. However, this right has so far been considered capable of being subject to restrictions for good cause. The question, in each case, has therefore been whether the restriction was justified and, if so, whether, in the light of the entirety of the proceedings, it has not deprived the accused of a fair hearing, for even a justified restriction is capable of doing so in certain circumstances…

But not any more:

[T]he Court finds that in order for the right to a fair trial to remain sufficiently “practical and effective” Article 6 § 1 [the ECHR fair hearing right] requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6…  The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.

This pronouncement recalls the most famous criminal procedure case of all time: the Warren’s Court’s ruling in Miranda v Arizona:

[W]e hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him

What was startling about Miranda, and is startling about Salduz, is the mandatory nature of the rule: no lawyer (and no waiver) = no admissible confession. Indeed, the link between the two cases runs deep indeed. Salduz, like Miranda, bases its rule explicitly on the privilege against self-incrimination:

In this respect, the Court underlines the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial..  At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task it is, among other things, to help to ensure respect of the right of an accused not to incriminate himself. This right indeed presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused…  Early access to a lawyer is part of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self-incrimination.

And Salduz, like Miranda, takes a narrow view of what can count as a waiver of the right to a lawyer:

The Court further recalls that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial… However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance…  Thus, in the present case, no reliance can be placed on the assertion in the form stating his rights that the applicant had been reminded of his right to remain silent.

All of this is most exciting in Victoria, where Miranda has never been the rule.

The Charter in passing

After midday on 22nd February 2006, four or so months before the Charter was enacted, Peter Kokkios took a walk through Richmond’s public housing estate, not far from where I live. He was approached by a short skinny man and a tall fat one – that rules me out! – who asked him for a cigarette. When Kokkios said no, the next request was for his $1800(!) Tag Heuer watch, a request backed up by a syringe produced by the skinny guy. After taking a further $50 from Kokkios’s pocket, they ran off, with the taller one shouting ‘Come on Ant!’. Who was this ‘Ant’?

Mr Kokkios recalled that the skinny man had bloodshot and baggy eyes along with bad skin and bad breath. Mr Kokkis recalled that he was about 5 feet 10 inches tall and his hair, which was slicked or combed back, was black. He recalled that the skinny man looked European – Italian or Greek – was clean shaven, had brown eyes, a very long and skinny face and was approximately 20 to 25 years old. He recalled that he was wearing a red top and black ‘parachute’ tracksuit pants and a red T-shirt.

The next day, Kokkios identified Antonio Falcone from a photoboard. Falcone’s alibi wasn’t the best. He said that he went with his mum to the Commonwealth bank on nearby Bridge Road to get some money out, but left empty-handed when it turned out his account was in the red. A computer record showed that his discussion with the bank happened at 11.40AM. The disappointed pair went home. A couple of hours later, Falcone pawned some of Mrs Falcone’s jewelry. He denied having entered the housing estate that or wearing red or black clothing.

At Falcone’s trial for armed robbery, late last year, the deliberating jury had the following question for the trial judge:

If we find that we can place him at the scene, but believe he is not the man with the syringe, can we still find him guilty?

The jury’s question probably arose because of the account of Raglus, another possible eyewitness, who said he saw two men eyeing off a flash car near the housing estate close to midday. The witness also identified Falcone from a photoboard, but said that it was the other taller guy who was wearing red and black. After consulting both counsel, the trial judge responded:

If you find that the accused man wasn’t the one with the syringe, then you must have a reasonable doubt about the identification made by Mr Kokkios as identifying this accused man because he gives no description of Man No. 2 other than broader and bigger than Man No. 1. So if you were to reach this position then you must look at what’s left before you in the case and that’s the evidence of Scott Raglus and what you make of that, the evidence of Mr Trojan the man at the bank and what you make of that, the evidence of Mr Falcone and Detective Senior Constable Roberts and finally what the accused man had to say during his interview with the police. So that’s how I’m going to answer your question and I’ll otherwise ask you to return to the jury room and if there’s anything else that I can assist you with, please let me know

I’m not convinced that this is actually what the jury wanted to know. This account is directed to whether or not the evidence could support a finding that Falcone was the other man. But I suspect that what the jury really wanted to know was whether you could still be guilty of armed robbery even if you weren’t the one carrying the syringe. Because of the doctrine of ‘acting in concert’, the answer is, almost certainly, yes, as the trial judge had earlier directed them. Three days later, the jury convicted Falcone of armed robbery. In R v Falcone [2008] VSC 225, the Court of Appeal overturned Falcone’s conviction and ordered a new trial. The reason was that the Crown’s sole theory presented in the trial was that Falcone was the guy with the syringe. Australia’s common law doesn’t allow a new factual theory to be introduced without the defendant having a chance to respond. So, the trial judge should, instead, have answered ‘no’. 

This mundane, if somewhat depressing, procedural error yielded the following Charter remark from Vickery J, writing the judgment for the court:

The right to a fair trial is an essential safeguard of the liberty of the individual under the law. It finds expression in Article 14 of the International Covenant on Civil and Political Rights 1966 and is reinforced by s 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

This is a ‘passing mention’. I complained about this practice back in February, during the (in hindsight) happy era when the Supreme Court’s jurisprudence was characterised by feel-good vagueness, rather than the misreadings and lousy analysis that soon rose to the fore. It is to be distinguished from both the outright sloppiness of approaches like Bongiorno’s and Lasry’s (amongst other reasons, because the Charter wasn’t applicable in Falcone’s case due to Charter s. 49(2)) and also the helpful approach of Neave and Warren (who mentioned the Charter to indicate what difference it may make in the future.) Rather, Vickery’s approach is similar to the dull jurisprudence of the ACT Supreme Court on its HRA, where the Charter is seen as, in some vague and unimportant way, restating the existing law. It’s worth recalling why this is a lousy practice.

The Charter vs taxi passengers

October 31st is the date I pronounced the biggest Charter day EVER, given the thrilling combination of two passing mentions in the Court of Appeal and the revelation on Stateline of the (then) most significant Charter challenge to date. Now, thanks to the slow drip feed of cases onto Austlii, I’ve discovered that that Halloween was even bigger still.

XFJ v Director of Public Transport [2008] VCAT 2303 ponders this question:

[W]ould you want to ride with a man who stabbed his wife to death in 1990, never mind the circumstances? Would you want one of your children to ride in those circumstances?

If not, then you might want to skip catching taxis in Melbourne.

As diligent readers of this blog know, the Charter has already been raised by an insurance fraudster wanting to ride a bus, in the face of the Transport Act 1983’s licensing scheme. Peter Swain’s insurance fraud was a ‘category two’ offence, meaning that there was a presumption against him ever having a public transport licence. But serious violent offenders face a much tougher burden:

169(2) The Director must not issue or renew a driver accreditation if the Director is aware that the applicant-… (b) has been found guilty of a category 1 offence…

VCAT can allow such persons, including murderers, to drive, although perhaps it’d take a brave VCAT member to do so. XFJ, though, managed to slip out of the regime for managing the licensing of criminals altogether, despite these uncontested facts:

XFJ came to Australia in 1989 as a refugee from the upheavals in Ethiopia. He left Ethiopia, travelling through Sudan to Egypt. He says he suffered many hardships in the course of his flight from Ethiopia, including imprisonment and torture in Egypt. In 1990, XFJ, who is now aged 52 years, was in the grip of a serious depressive episode. He was contemplating suicide. Apparently he carried a piece of rope around with him. In the event however, the violent action which he took first was not directed against himself, but against his estranged wife. He killed her with repeated knife blows. Thereafter, he attempted to commit suicide himself by hanging, but the attempt failed when the limb on the tree which he sought to hang himself from broke.

XFJ’s jury found him not guilty of murder on the ground of insanity. He was detained at the Governor’s pleasure and eventually released into the community in 1998 and from all constraints in 2003. The Transport Act has a provision deeming such persons to be offenders for the purpose of the licensing scheme, leading the Director of Public Transport to initially deny him a licence. However, a closer inspection of the provision revealed that it didn’t cover people like XFJ who were dealt with under the pre-1997 insanity regime. Instead, XFJ’s application for a taxi licence had to be dealt with just like most people’s:

169(1) …[T]he Director may grant the application if the Director is satisfied- (a) that the issuing of accreditation is appropriate having regard to the public care objective; and (b) that the applicant- (i) is technically competent and sufficiently fit and healthy to be able to provide the service; and (ii) is suitable in other respects to provide the service; and (c) that the applicant has complied with the application requirements under this Division.

In June this year, safely on the right side of Charter s. 49(3) ,the then Director, Jim Betts, made his decision: to refuse XFJ’s application, citing the public care objective and XFJ’s suitability ‘in other respects’ and, thus, dashing XFJ’s hopes for a flexible job to assist him in caring for his 19-month old, who alas has leukemia.

Appealing to VCAT as his last hope, XFJ raised the Charter. VCAT Deputy President (and Charter virgin) Michael Macnamara dealt with the Charter argument as follows:

I should note that Mr Stanton, on behalf of XFJ, impressed me with a number of arguments arising under the Charter of Human Rights and Responsibilities Act 2006. It has not been denied that, having regard to the timing relative to the present proceeding, that the Charter applies. Again, without rehearsing the arguments which were put by Mr Stanton, and the counterarguments put by Ms McKenzie, it is sufficient, so far as the Charter is concerned, for me to note that Section 32(1) of the Charter Act provides:

(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 human rights may be considered in interpreting a statutory provision.

In my view, the approach which I am about to take, relative to the Transport Act 1983, is in accordance with those provisions, and no issue arises of any inconsistency between the Transport Act and the Charter of Human Rights and Responsibilities Act 2006. Hence, even although issues relative to the Charter have been raised and argued before me, it is, as far as I can see, unnecessary for me to consider giving notice to, or inviting argument from, either the Attorney General or the Human Rights Commission.

Hey, no fair! I want to hear what those impressive Charter arguments (and counterarguments) are.

The rights of the woman without a face

The Age today caught Melbournians up with a crime mystery that’s been circulating for a year now. It concerns an alleged  serial killer, linked to dozens of crimes, big and small, by her DNA. Sometimes called the “Phantom of Heilbronn”, the Age uses her other nickname:

On New Year’s Day in 2003 at Dietzenbach, near Frankfurt, an office was broken into and a coffee tin of loose change stolen. “It was a professional job,” said Guenter Horn, another high-profile prosecutor liaising with police. “She left no fingerprints. But she did leave a scraping of skin, and that was enough to pin the job on (the Woman Without a Face).” In all there have been 30 break-ins and hold-ups that have yielded her DNA identity, in addition to the murders.

On May 2005, in the city of Worms, a local gypsy turned a gun on his brother. Police later found the phantom’s DNA on one of the bullets. Police went on television in April 2005 with an appeal to the public for tips, but to no avail. Then came the killing of officer Michele Kiesewetter. She and a colleague who has never been named were assigned to an undercover drugs squad in Heilbronn when at least two people climbed into the back of the car and shot them both in the head at point-blank range. Ms Kiesewetter died instantly, her partner lingered on in a coma for months, before the bullet lodged behind his right eye was removed. He remembers nothing of the incident. Nothing was taken from them save their handcuffs. Chief Superintendent Horst Haug of Special Commission Parkplatz said: “It was brutal, apparently random and with no apparent motive. What are we dealing with here? And who is the accomplice?”

Police revealed that other DNA traces were found at crime scenes indicating she sometimes operated in tandem with another. But no two crime scenes yielded the same DNA, indicating she picks up and discards helpers with the same casual abandon with which she kills. Kurt Kletzer, a noted Viennese psychiatrist, says the Woman Without a Face is “intriguing and disturbing” in equal measure.

To me, the case has an intriguing and disturbing resemblance to a hypothetical I once raised with a Victorian Parliamentary Committee on 2003, back in my earlier incarnation as a researcher on mass DNA screenings. As it happens, Germany is the world’s leader in ginormous mass DNA screenings, some literally of 100,000 and many in the tens of thousands. Soko Parkplatz is a relatively small one, with only a couple of thousand samples taken from Germany women to date. The thousands of samples are either from Germany’s DNA database of convicted offenders or a so-called voluntary mass screening of some other usual suspects. But that screening assumes that the Woman Without a Face is a criminal! The real woman may be a lot closer than the Germany police seem to think.

Right before I testified, a representative from Victoria Police was asked what he thought of the idea of creating a database of police DNA for elimination purposes. DI Cowlishaw of Victoria Police’ DNA implementation unit said:

The database has been set up for the purpose of finding out who has committed crimes and putting criminals on it. Police officers have very strict rules as to who they can get a DNA sample from. What a lot of police officers say, and have objection to, is that they have committed no offence themselves, apart from being a police officer, and they have been asked to go on a database, where people who have committed crimes such as thefts, theft of motor cars and those sorts of offences, which by community standards are considered to be serious offences, do not have to go on a database. A lot of them object on those grounds.

These are, of course, all claims that would now been framed in terms of the Charter. Indeed, the government has taken a broad and enlightened view of the scope of all sorts of criminal process rights, but only when they apply to police officers. Cowlishaw went on to make a dubious claim that Victoria’s current legislation doesn’t even permit police officers (as opposed to ‘third party volunteers’) from being asked for their DNA.

So, rights vary depending on whether the volunteer is a second party or a third party. But which party is the woman without a face?

More on the sex offenders’ challenge

I happened to be in the legal precinct today and dropped by to listen in at the sex offenders’ challenge in the Court of Appeal. Pamela Tate was speaking (presumably for the Secretary, rather than with her ‘neutral’ hat on intevening for the Attorney-General. At least, that’s sure how it sounded.) There were nine barristers there (presumably three each for the two fiends – I spotted Kris Walker. Some VEOHRC staff were there, but it didn’t look like the commission was intervening. [EDIT: Nope, they are intervening, and will speak after the S-G. So, maybe I'm wrong and the A-G was intervening too? It'd be handy if they could colour-code those wigs of theirs.] There was no talk of a declaration, so I assume none of the required Charter s. 36(3) notices are out on that one.  

It’s dangerous to try to sense the mood when you only watch part of a case – as the mood can be the opposite when the other side speaks – but the case didn’t seem to be going at all well for Tate, with Maxwell and Weinberg both hammering into her. Nettle was quieter and even helped her out every now and then.

Anyway, some tidbits I picked up:

• A comity of errors: One issue (possibly the only one) is the interpretation of ‘likely’ in s11 of the SSOMA. It certainly does seem to be in the cards that the CoA will overrule Callaway in TSM (despite only being a three-judge bench.) Indeed, both sides seemed to disagree with Callaway, with Tate describing his judgment as somewhat confused (which it is.) Hilariously, Tate’s argument is that Victoria should follow the present approach of the NSW Court of Appeal. Regular readers will recall that the NSWCA reached that interpretation reluctantly out of comity with Callaway in TSM! To sustain her argument, Tate had to claim that the NSWCA’s actually misinterpreted Callaway and somehow stumbled onto the right answer.  It’s hard to see how this sort of error can be persuasive, especially when the NSWCA clearly said that, but for comity, it wouldn’t have followed TSM at all but rather would have adopted a stricter standard (which, presumably, Tate thinks is the wrong standard.) Tate, trying to get away from Tilman, relied instead on the follow-up case, Cornwall. Readers will recall that Cornwall was the first bloke the NSWCA refused to detain, ruling that there was no ‘high degree of probability that he was likely’ to re-offend and that electronic supervision would do. He had his bracelet off and melted away within 30 minutes. Surprising that the Victorian government thinks that that’s the perfect test. I guess that Tate will argue that, although the NSWCA stated the correct test in Cornwall, they nevertheless misapplied it to the facts. 

• A non-’trivial’ bar: Tate’s big pitch was that, whatever the test is, it shouldn’t be quantitative. That’s because she knew that the court would then go for the ‘more likely than not’ standard that the NSWCA would have backed were it not for TSM, which would certainly narrow the SSOMA scheme. Not that she said that; rather, she argued (1) it would go against the legislature’s choice to use the word ‘likely’, which she claimed (to Weinberg’s incredulity) wasn’t quantitative. Maxwell kept point out that all that was clear is that the test isn’t normative (e.g. a Briginshaw-like standard that re-adjusted itself according to what issues were at stake.) Tate very reluctantly agreed with that. 2) It would encourage over-reliance on statistical expert evidence. Weinberg’s response was that the best way to stop statistical evidence is to stop asking for it and listening to it. Maxwell was concerned that trial judges need an intelligible standard. He could hardly keep a straight face when Tate suggested that defining ‘likely’ to mean ‘a sufficiently substantial risk’ would provide the required certainty (and wouldn’t be ‘normative’.)  The judges then mooted the idea that the bar should be high indeed, given how extraordinary ESOs are. Tate firmly stated that the bar should not be ‘trivial’. That’s quite a concession. She then embarked on some stats to show that of the 150 eligible offenders released last year, the Secretary only called for reports on 34 and only sought orders on 10. Of those tenm seven were granted and the other three were… pending. Weinberg asked whether that meant that none had been refused. ‘Um’ retorted the S-G, until Weinberg pointed out the math. Tate countered with more stats, which suggested that of 40 court applications to date, ’several were withdrawn’, one was reversed on appeal and one was rejected. A high bar indeed. Attrition stats are always tricky in a discretionary system aren’t they?

• A non-criminal process for locking up criminals: ‘So, you’d better address Charter s 7(2) then’, said Maxwell. Uh, there’s an intervening step, said Tate: have any rights been limited? That is indeed true, but why she wanted to embark down that road is beyond me. But embark she did, passionately arguing that Charter ss. 25(c), 26 and 27 didn’t apply because of Fardon, the High Court’s umpteenth refusal to apply Kable. Maxwell was a bit dubious about the relevance of Chapter 3 to the meaning of ‘punish’, but Tate pressed Gummow’s  ’normative scheme’ approach. According to Gummow, ESOs are nothing at all like criminal sentencing, because ESOs are simply triggered by guilt but are imposed for other reasons. As opposed to sentencing, which… um…. anyway. Tate also mentioned a UK case that Maxwell snorted was about non-contact orders, not supervision. Somehow, the model litigant didn’t see fit to talk about Belcher, where the NZCA held that almost identical legislation was punishment for the purposes of NZBoRA’s criminal process rights. I guess that’s in the written arguments. But why wouldn’t she be responding to what her opponents said on that? I hope they know about it! Weinberg raised the fact that SSOMA says that proceedings are criminal. Tate said that was not-determinative but just a starting point and was just a mechanism to ensure that the Secretary had the same obligations as a prosecutor. Weinberg was confused: does the Secretary usually have less obligations than a prosecutor? Nettle chimed in with something about having to call adverse witnesses. Maxwell suggested that, if the proceedings are criminal, then maybe contested facts need to be proven beyond reasonable doubt? Tate said she was sur that the test was balance of probabilities. But you’ve gotta wonder if that will be true in 2010 when s141 of the Evidence Act 2008 kicks in.

• ESOs and helicopter mums: Tate did concede that ESOs limited one right: freedom of movement. (It’s not clear whether or not the fiends raised any others. Self-incrim, alas, didn’t get a look-in.) So, it’s time for 7(2). Tate started by saying that you need to look closely at the nature of the right. Weinberg said: movement’s pretty important isn’t it? It’s essential to liberty. Tate argued that, at international law, ESOs don’t engage the right to liberty at all. Maxwell asked her to say that again so that no-one misunderstands it. Ouch. She valiantly insisted that ESOs could be likened to mum and dad telling the kids to phone then when they get to their destination. Weinberg pointed out that, regardless, movement was high on the scale in 7(2)(a). Tate sounded unhappy about that. I wonder what’s high on her scale? Life, I guess. What I don’t get here is that all the arguments were about the mandatory bits of the ESO scheme. But an ESO also exposes you to the discretion of the Adult Parole Board, which can order stuff like mandatory medical treatment, having to ‘reside’ at Ararat Prison, who you can associate with, whether you can use the net, etc. There are plenty of rights limitations there. The Board, of course, isn’t bound by the Charter. So why don’t ESOs engage all those rights? It’s not clear that that’s what the sex offenders are arguing, though. Strange.

And that was it for the day. They’re at it again tomorrow, but I’ll skip it.

Again, caution is necessary, but Tate seemed to know that she’s going to ‘lose’ at least 2-1, in the sense that the judges are going to toughen up the TSL threshold to ‘more likely than not’, at least and cite the Charter as the reason. I can’t help but think that Tate is just going through the motions now and planning a High Court appeal, where the judges who were in the majority in Fardon will presumably be more sympathetic to her take on things.

More on Bongiorno’s challenge

Further to this previous post, I’ve belatedly noticed that the Charter issue relating to the coercive questioning powers in the Major Crimes (Investigative Powers) Act 2004 is discussed in the Annual Report of the Special Investigations Monitor (SIM). Here’s the discussion:

During one application for a CPO in the period under review, His Honour Justice Bongiorno raised the possible conflict between s. 25(2)(k) of the Charter of Human Rights and Responsibilities Act 2006 (the Charter) and s. 39 of the MCIP Act. The application concerned a person who was already charged by police for the offences the subject of the application for the coercive powers order. His Honour expressed concern that Victoria Police sought to summon that person to attend for examination and therefore be compelled to testify against himself/herself or to confess guilt contrary to s. 25(2)(k) of the Charter. Accordingly, His Honour sought written submissions on the matter and adjourned the application for the coercive powers order until resolution of the potential conflict.

Subsequent to this application for a CPO before Justice Bongiorno, a further two applications for a CPO and an application for an extension of a current CPO were made before His Honour Justice Cummins. The two applications for a CPO were adjourned on the grounds that the same issue as that raised by Justice Bongiorno applied. In respect of the application for an extension of a current CPO, His Honour Justice Cummins imposed a condition in the following terms:

“Any person who has been charged with any offence linked to the organised crime offence – the subject of the CPO – will not be summoned to give evidence (at an examination) until resolution of the issue with respect to s. 25(2)(k) of the Charter of Human Rights and Responsibilities Act 2006.”

The Chief Examiner has advised the SIM that on the instructions of the Chief Commissioner of Police, written submissions, to which the Solicitor General has contributed, have now been compiled by the Victorian Government Solicitor’s Office and submitted to His Honour Justice Bongiorno for consideration. Important issues are involved which are yet to be determined by the Supreme Court.

This fits what I previously discussed. It’d be great to see those written submissions. I’ve never entirely understood why these things aren’t published somewhere. How likely is it that the Solicitor-General’s arguments are going to be full of confidential information? 

What is of particular interest is the news that Cummins J imposed a condition on an existing CPO barring its use in relation to charged defendants. Previously, I couldn’t see how a potential breach of the Charter required that this step was taken. But I hadn’t noticed this provision of the Major Crimes (Investigative Powers) Act 2004:

8 The Supreme Court may make a coercive powers order if satisfied- (a) that there are reasonable grounds for the suspicion founding the application for the order; and (b) that it is in the public interest to make the order, having regard to- (i) the nature and gravity of the alleged organised crime offence in respect of which the order is sought; and (ii) the impact of the use of coercive powers on the rights of members of the community.

It could be argued that the interpretation mandate now requires that s8(b)(ii) be interpreted to require the Supreme Court to refuse an order (or impose conditions on it) if to do otherwise would be to authorise a breach of Charter rights. On the other hand, though, there’s a question of whether or not this interpretation is tenable, given the balancing test between crime-control and due-process envisaged by s8(b) and the apparent purpose of the legislature to strike such a balance. Presumably, this issue could be resolved by some close attention to Charter s. 7(2).

Interestingly, the same SIM report discusses a court judgment, CR v Attorney-General [2007] VSC 263, about the limits of the Supreme Court’s power to impose conditions on a CPO:

9(1) A coercive powers order must state that the Supreme Court is satisfied of the matters referred to in section 8(a) and (b) having regard to the matters referred to in section 8(b)(i) and (ii).

(2) A coercive powers order must also specify-… (g) any conditions on the use of coercive powers under the order.

Some cheeky judges started imposing a condition that any witness summons be made by the court (rather than by an alternative provision allowing the Chief Examiner to make the summons.) The Chief Ex challenged this as overriding the legislation’s permission for him to do exactly that. But the court held that the rights component of s8(b) allows courts to override the legislation in that way:

The sex offenders’ challenge

My guess last post was right. (Of course, presumably the whole legal community knew this, but not me.) It’s on!:

Two convicted sex offenders are invoking Victoria’s human rights charter to appeal against being given an extended supervision order in what is a legal first.

One of the applicants is a child sex offender jailed for more than 10 years for his crimes. The man, whose name is suppressed, was convicted for sex crimes against his teenage daughter, another teenage girl and his adult partner. He was given a 10-year extended supervision order when he finished his jail term after a County Court judge found a “high degree of probability” he was likely to further offend. However, his lawyer Graham Thomas SC told a Court of Appeal hearing today his client was not a high-risk child sex offender and therefore not eligible to to be subject to the order.

Mr Thomas also said the sentencing judge had indicated she did not believe the man was suitable for an order but later changed her position. But counsel representing the secretary to the Department of Justice, David Grace QC, said the man’s crimes were premeditated and opportunistic. Mr Grace said the sentencing judge included in her reasons the fact the man had shown a lack of insight into his behaviour by denying his wrongdoing. He said the man jumped bail on the day he was due to attend his court hearing on his application for an extended supervision order and had refused to take part in a sex offenders program, despite being offered many times. Mr Grace said the man continued to “thumb his nose up at authority” and suggested he tried to create relationships with females with children while he was in jail so he could groom them for sexual offending.

The second sex offender is appealing an eight-year extended supervision order imposed on him by the County Court on the basis it is too long. The man, whose name is also suppressed, was jailed for more than a year for indecent assault and will also use the charter to argue his case.

Victoria became the first Australian state to implement a Charter of Human Rights and Responsibilities on January 1 and it is the first time it will be considered by Victoria’s appeal court. The hearing before Justices Geoffrey Nettle, President Chris Maxwell and Mark Weinberg continues tomorrow.

Um, it’s actually the sixth time the Charter will be ‘considered’ by Victoria’s appeal court. The appeal court cited the Charter once in 2006 and four times again this year, including in its appalling Underbelly decision. Here’s hoping, though, that this will be the first time the Court actually does the Charter justice, in analysis if not in the final result. Interestingly, all three judges in this hearing are Charter virgins. The case, argued today, is listed for a second day of argument tomorrow. [EDIT: And here's the Hun's take. The tabloid refers to the offenders as 'sex fiends' (fair enough, I guess) and, as is the norm, gives more details of the legal argument than the Age.]

But what is being argued? The article is tantalisingly vague. I can see three types of rights arguments could be made about extended supervision orders (ESOs):

Napping in the High Court

Once upon a midnight dreary, while I pondered, weak and weary,
Over many a quaint and curious volume of forgotten [law]–
While I nodded, nearly napping, suddenly there came a tapping,
As of some one gently rapping, rapping at my chamber door.
“‘Tis some visitor,” I muttered, “tapping at my chamber door–
Only this, and nothing more.”

Actually, it was Judge Dodd’s aides loudly dropping those law booksto wake him up during a deadly dull drug trial.  On Thursday, the High Court added another short volume. At last, we are blessed with the reasons for judgment in  Cesan v The Queen; Mas Rivadavia v The Queen [2008] HCA 52. The problem of sleeping judges raises two great questions and one silly one:

First, how can you tell if a judge is asleep? Recently, Refshauge J of the ACT Supreme Court had to determine whether he had nodded off during a deeply-dull-sounding matter about tracing improperly transferred Commonwealth funds. Allan Endresz, one of the matter’s twenty-nine defendants, having heard about the High Court allowing Cesan’s appeal, started claiming that Refshauge was occassionally driftig off during the triall. The judge told Endresz that his argument would be stronger if he pointed it out when it happened. Andresz didn’t quite comply, with his next allegation and the alleged nap being separated by a lunch break. However, matters came to a head when Edresz produced one of his employees who had been sitting in the gallery with a notebook. TTime pressures meant that Refshauge himself had to rule on whether he had been asleep at the times noted, which he noticed was as silly (and common) as a judge ruling on whether she or he was biased. He resolved the issue by considering the evidence: that no-one noticed any snoring; that Endresz’s main evidence (a fake objection to test the judge’s wakefulness that received a slow response) was inconclusive; that other counsel disagreed with Endresz’s observations; that Refshauge didn’t recall being asleep; that his notes showed no signs of ’squiggles’; and that the tape recording of the incident was both familiar to him and appeared to catch him coughing. Mystery solved. Refshauge ruled that he had his eyes shut to concentrate and would be cautious about his demeanour in future.

The factualy mystery was less happily resolved in Ceasan’s case. Although the defendants raised Judge Dodd’s snoozes with their counsel, he advised them that they were better off with Dodd than 85% of the NSW judiciary. (French CJ concluded that this wasn’t a reference to the judciary’s sleepiness, but rather their pro-prosecution bias. What a relief!) But they did offer a slew of affidavits from themselves and their supporters on appeal. Conveniently for them, the majority of the NSWCCA (presumably part of the 85%) were so certain that sleepiness was no injustice that they glibly accepted the evidence that Dodd was napping and the ensuring circumstances (presumably assisted by medical evidence about Dodd.) So, facts weren’t the problem in the High Court.

Second, is a sleeping judge a miscarriage of justice? This is the question the NSWCCA came a cropper on, with the majority holding that the judge’s mere physical presence (unaccompanied by actual consciousness) was enough, at least if the judge wasn’t required to make any legal rulings while napping. The High Court overruled that, but on two quite different grounds. The majority focused exclusively on evidence that the jury was distracted by the judge’s napping. Cesan’s sister said:

During the times when the judge was asleep for long periods I noticed that many of the jurors appeared not to be paying attention to what was being said and would appear restless. They would fidget, look at each other, watch the judge, look around, appear to be scribbling and generally appeared to lose concentration. This was very different to how the jury reacted when the judge was awake. At those times they would appear to be paying attention, generally looking at whoever was speaking or at their papers when asked. It was very obvious to me that there was a real difference in the jury’s behaviour when the judge was asleep.

Others testified that jurors joked, and jurors and officials slept while Dodd nodded. The majority held that such conduct was at odds with a proper trial. Trial judges had better be careful not to trigger a wave of yawns in future trials.

The new Chief Justice Robert French took a bolder view, holding that the jury’s conduct was mere evidence of a deeper problem causeed by the judge’s behaviour:

If, by reason of sleep episodes or serious inattention, the reality or the appearance exists that a trial judge has substantially failed to discharge his or her duty of supervision and control of the trial process in a trial by jury, then enough has been made out to establish a miscarriage of justice. 

The problem, French held, is the appearance of justice. Without that appearance, there might be miscarriage of justice. Refshauge better keep his eyes wide open in futere.

French held that the absence of complaint by counsel wasn’t determinative, given the amount of sleep proven and the evidence of jury distraction:

The question whether there has been the reality or appearance of a substantial failure by the judge to perform his or her duty will require assessment of a number of factors including: 1. Whether the conduct of the judge can be said to have affected the outcome of the trial. 2. Whether the conduct of the judge has created a risk that the outcome of the trial may have been affected. 3. Whether counsel raised the question of the trial judge’s conduct at the trial. 4. Whether the jury appeared to have noticed or to have been distracted or otherwise affected by the judge’s conduct.

Alas,  the other four Howard appointees and Gummow didn’ even mention French’s approach. Interesting politics, there. Perhaps they couldn’t stomach the fact that French cited a European Court of Human Rights judgment on the right to a fair hearing for his ‘appearance of justice approach.’ More likely, they were probably pissed off that French spent much of his judgment defining the term ‘miscarriage of justice’, contrary to the Gleeson court’s approach to interpreting appeal statutes, where century-old terms have been belatedly deemed undefinable and definitions are regarded as inappropriate and irrelevant judicial glosses. 

And, now, the silly question: should the defendants get a new trial?

Bongiorno’s challenge

Last Friday’s Stateline brought some major Charter news:

As part of its election commitment, the Victorian Government introduced a Charter of Human Rights. Now Supreme Court judge Justice Bernard Bongiorno has questioned whether aspects of coercive powers legislation are in conflict with the Charter. He’s called for written submissions before deciding on the matter and has halted the granting of coercive orders to police in cases where the subject of the order has already been charged.

Um, ‘election commitment’? The Bracks Government was elected to its second term in 2002 and its third term in November 2006. Hulls’s Justice Statement announcing the Charter consultation was in May 2004 and the Charter was on the statute books in July 2006. George Williams has said that the short time frame was designed to fit in with ‘the electoral cycle’. So, let’s not engage in any revisionism, OK?

Anyway, assuming that Stateline can be trusted on the rest of its story, this is, at last, a significant Charter challenge to some significant Victorian legislation that has significant legs. Interesting that the Charter issue appears to have been raised by Bongiorno himself. That’d be the third time he’s done that (see here and here.) The challenge appears to be to the Major Crime (Investigative Powers) Act 2004, which was passed in the midst of the gangland war. (Don’t mention the war!) Its provisions allow for a ‘coercive powers order’ in the following situation:

5(1) Subject to subsection (2), a member of the police force may apply to the Supreme Court for a coercive powers order if the member suspects on reasonable grounds that an organised crime offence has been, is being or is likely to be committed.

8 The Supreme Court may make a coercive powers order if satisfied-

(a) that there are reasonable grounds for the suspicion founding the application for the order; and

(b) that it is in the public interest to make the order, having regard to- (i) the nature and gravity of the alleged organised crime offence in respect of which the order is sought; and (ii) the impact of the use of coercive powers on the rights of members of the community.

The order allows the issuing of a ‘witness summons’ to anyone over 16. That’s an offer you can’t refuse:

37(1) A person served, as prescribed by this Act, with a witness summons to appear as a witness at an examination before the Chief Examiner must not, without reasonable excuse- (a) fail to attend as required by the summons; or (b) fail to attend from day to day unless excused, or released from further attendance, by the Chief Examiner.

(2) A person appearing as a witness before the Chief Examiner must not- (a) at an examination, refuse or fail to answer a question that he or she is required to answer by the Chief Examiner; or (b) without reasonable excuse, refuse or fail to produce a document or other thing that he or she was required to produce by the witness summons.

(3) A person who contravenes subsection (1) or (2) is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum).

39(1) A person is not excused from answering a question or giving information at an examination, or from producing a document or other thing at an examination or in accordance with a witness summons, on the ground that the answer to the question, the information, or the production of the document or other thing, might tend to incriminate the person or make the person liable to a penalty.

So, what’s the problem? Well, it probably isn’t the Charter right to freedom of expression, because that it is glossed by a significant exception:

15(3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary-…  (b) for the protection of national security, public order, public health or public morality.

Rather, the likely ground of challenge is the Charter’s two rights affording a privilege against self-incrimination:

The meaning of doubt

It is commonplace for jurors in Australian criminal trials to ask the trial judge to define ‘reasonable doubt’. It is also commonplace for trial judges to refuse to do so. Indeed, it is mandatory. Here’s Owen Dixon from a 1961 High Court judgment:

[I]t is a mistake to depart from the time-honoured formula. It is, I think, used by ordinary people and is understood well enough by the average man in the community. The attempts to substitute other expressions, of which there have been many examples not only here but in England, have never prospered. It is wise as well as proper to avoid such expressions.

A new jury study by NSW’s Bureau of Crime Statistics & Research proves that Dixon was wrong. 1225 jurors in 112 NSW criminal trials were asked the folllowing question

[P]eople tried in court are presumed to be innocent, unless and until they are proved guilty ‘beyond reasonable doubt’. In your view, does the phrase ‘beyond reasonable doubt’ mean [pretty likely the person is guilty/very likely the person is guilty/almost sure the person is guilty/sure the person is guilty]?

The results:

Pretty likely person is guilty: N= 119 (10.1%)

Very likely person is guilty: N= 137 (11.6%)

Almost sure person is guilty: N= 270 (22.9%)

Sure person is guilty: N= 652 (55.4%)

No-one will be panicking about the 78.3% of jurors in the latter two categories. But, bearing in mind that jurors were given a choice of all four options, the 21.7% in the first two categories are a disaster. It gets worse:

Jurors’ understanding of the concept ‘beyond reasonable doubt’ is significantly related to their understanding of the judge’s instructions on the law, whether the trial dealt with adult/child sexual offences or other offences and whether English was the juror’s first language.

Virtually every other comparative court takes the view that ‘beyond reasonable doubt’ must be defined by the judge. Here are some of the mandatory definitions:

• United Kingdom: ”You must be completely satisfied’ or better still: ‘You must feel sure of the prisoner’s guilt’.
• New Zealand: “A reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence.”
• Canada: ‘[A] reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence’.
• United States: A reasonable doubt is ‘one that is founded upon a real tangible substantial basis and not upon mere caprice and conjecture. It must be such doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. It is an actual substantial doubt. It is a doubt that a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a moral certainty.’

But the High Court of Australia’s major authority, Green v R [1971] HCA 55, enforces the smug view that the phrase needs no definition in terms that are anything but glib:

[I]n this instance the learned trial judge, undeterred by the failures of illustrious predecessors, has made a new endeavour to explain that which requires no explanation and to improve upon the traditional formula. So far from succeeding where they did not, he has, in our opinion, not only confused the jury but has misdirected them. In consequence there must be a new trial not only in the case of Green but in that of each of the others tried with him for, as we have observed, the quoted passage of the summing up was applicable to the case of each of them. Public time and expenditure has been wasted and the time elapsing between the making of the charges and their final disposal has been unnecessarily prolonged.

The Court has maintained its view in the face of continued questioning by jurors about the definition, and even jury requests for a dictionary. The line of cases is a classic example of the non-genius of the common law method, which – in the field of trial practice – develops fixed views of fairness and practice in the absence of (and impervious to) empirical research. Doubtless, BOCSAR’s study will be dismissed as irrelevant and contrary to accepted understandings about the capacities of lay jurors.

One of my hopes for the Charter is that its right to a fair hearing, while in completely generic terms, will encourage – I’d say mandate – a re-evaluation of such non-evidence-based approaches to trial practices in Victoria. How can it be said that these two rights are being respected when 20% of jurors think that ‘proof beyond reasonable doubt’ means that guilt is ‘pretty likely’ or ‘very likely’, and when the numbers vary depending on what offence is being charged?:

24(1) A person charged with a criminal offence… has the right to have the charge… decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

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

The bad news is that the common law is exempted from the Charter. Heaven forbid that Victoria’s courts depart from Australia’s terrific unified common law. The Constitution would snap in half!

The good news

SARC on dust, death and dodgy fish

The Scrutiny of Acts and Regulations Committee’s 13th Alert Digest for the year (considering a record number of bills, at least in recent years) highlights three Charter issues:

• Asbestos Diseases Compensation Bill: SARC queries whether the new procedures designed to take account of the lengthy latency and fatal result of asbestos diseases should be extended to cover non-asbestos diseases with similar charcateristics, pursuant to the Charter right to equal and effective protection against (impairment) discrimination.

• Coroners BIll: SARC expresses its concern that the Bill will amend the Charter’s definition of ‘court’ to cover the newly created Coroners Court, thus bringing the new body within the Charter’s partial exemption for courts and tribunals from the conduct mandate (despite the new body having no role in either developing the common law or resolving private disputes.) SARC will ask the Attorney-General what the (exempt) non-administrative capacities of the Coroners Court would be and whether there are any ‘exceptional circumstances’ (a la the override provision) that justify a permanent narrowing of the Charter’s protection for human rights.

• Primary Industries Legislation Amendment BIll: SARC commends an excellent statement of compatibility, but also has (what, for it, are) strong words about one provision, which significantly extends an existing offence of selling or possessing an illegally taken fish to cover selling or possessing a fish that has ever been illegally ‘dealt with’ under any Australian law. ‘Dealt with’ includes just about anything anyone ever does with the fish, including transporting and possessing it.  SARC has two concerns: First, that the existing offence includes a reverse onus on the issue of whether the defendant knew or ought to have known of the illegality. This is especially concerning, because the offence applies to consumers, not just commercial operators, and it carries a potential six month sentence. Second, the headings of both the existing provision and the amendment only refer to sale, not possession, so people who plan to possess a fish will have to read the text of the provision to know that they risk prison unless they can prove that they didn’t know about any illegal dealings. The strong words:

The Committee therefore considers that clause 68 may be incompatible with the Charter.

 SARC referred the issue of compatibility with Charter s. 25(1) to parliament and will write to the Miister about the headings (and the otherwise excellent statement of compatibility.)

The Charter’s complex war on terror

Re Kent [2008] VSC 431 is the first Supreme Court Charter bail case since Kelly Gray became the first ever Charter beneficiary. Remember when judges were using the Charter to grant bail to people with long waits for their trials, without any care to the niceties of the statute’s application, notice, operative or remedies provisions?

Although neither counsel mentioned the Charter in his or her submissions and no argument based on its provisions was put, either by the applicant or by the Crown, the provisions referred to would appear to be highly relevant to the question of bail… 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.

Ah, but the Charter’s a tougher, much more negative statute these days:

The applicant was arrested and charged with the offences on 8 November 2005 and has remained in custody since… The applicant was placed on trial before Mr Justice Bongiorno on 4 February 2008… On 16 September 2008 the jury announced that it was not able to reach a unanimous decision in relation to the case of the applicant… The applicant has been remanded for retrial and that trial would be unlikely to commence before the middle of next year. He will have been in custody for three years on 8 November next.When application was first made to this court, reliance was placed upon the Charter of Human Rights and Responsibilities Act 2006. Notices were duly given. When the matter first came on for hearing on 7 October 2008, counsel for the applicant Mr J.V. O’Sullivan abandoned that argument. It would seem as a matter of statutory interpretation it was doomed to failure in any event.

Now, instead of judges raising the Charter themselves, lawyers do the raising, and then engage in some Foucaudian self-discipline, hurriedly disowning any reliance on human rights before a judge can tell them off for doing so. That of course doesn’t stop the judge from swatting the Charter away like an annoying mosquito, without even bothering to spell out what the problem is. 

Whereas Gray was charged late last year with a bog standard crime (aggravated burglary involving a baseball bat), Shane Kent was charged three years ago with the terrorist offences (achieved by providing a ‘resource’, possessing a ‘document’ and joining an ‘organisation’, all with the requisite links to a terrorist act, albeit not any act in particular.) These circumstances pose two apparent difficulties for terror defendants like Kent when it comes to relying on the Charter:

First, Kent is a federal criminal defendant. The Charter’s interpretation mandate doesn’t apply to federal statutes and its obligations mandate doesn’t apply to federal authorities. That being said, Australia’s constitutional arrangements do raise some interesting questions about the application of the Charter to the laws governing Kent’s prosecution:

• Federal criminal law: The Commonwealth’s Criminal Code, like other federal statutes, is beyond the reach of the Charter’s interpretation mandate, which is limited to statutes ‘passed by the Parliament of Victoria’. But there’s a complication in this case, because the Commonwealth provisions, to the extent that they fall outside of regular federal constitutional powers, depend on a reference contained in a state statute: the Terrorism (Commonwealth Powers) Act 2003. Its referral is limited to a schedule setting out offences, including the ones Kent is charged with, and amendments to those offences. The Charter, of course, applies to the state statute, which raises some fascinating (if marginal) issues about the effect of a new interpretation rule on an existing referral statute. 

• Federal criminal procedure: Kent is subject to a federal provision reversing the usual presumption in favour of bail and instead barring bail unless there are exceptional circumstances. Again, the Charter cannot directly apply to the federal statute. But query whether s68 of the Judiciary Act, a federal provision that ‘picks up’ state laws ‘respecting… a procedure… for holding accused persons to bail’ therefore picks up the Charter’s rights with respect to bail and relevant operative provisions giving those rights legal effect. Given that the interpretation mandate is limited to Victorian laws, I guess that it still can’t apply to the federal bail law. Likewise, the conduct mandate is limited to Victorian public authorities. The only such authority is, of course, the Supreme Court itself, but it is only bound in its administrative capacities. Is bail such a capacity? Anyway, the Cth DPP more or less conceded that the enormous delay faced by Kent – who has only faced one of his three charges to date, and the jury hung on that after a six month trial, and who won’t be retried to next year – was an exceptional circumstance under the Cth law.

• State criminal procedure: As it happens, the Cth DPP’s argument that Kent shouldn’t get bail rested on a state law: a routine provision of the Bail Act 1977 (Vic), which bars bail if there’s an ‘unacceptable risk’ that Kent could skip bail, commit an offence or pervert the course of justice. That provision applies to Kent because of s68 of the Judiciary Act, but surely that section also picks up the Charter, including its interpretation mandate and whatever the Charter’s detainee and defendant rights have to offer? Does the meaning of what is ‘unacceptable’ vary when a person faces four years on remand? 

Are these complex and difficult matters what Justice Paul Coghlan was eluding to when he dismissed the Charter as a ‘matter of statutory interpretation’? Alas, probably not.

Instead, he was presumably referring to the Charter’s very worst provision:

49(2) This Charter does not affect any proceedings commenced or concluded before the commencement of Part 2.

This stupid provision, read literally, bars all of the Charter’s protections forever to any criminal defendant charged before 2007. That includes the application of the Charter to questions that arise long after the Charter’s commencement date, like the question of Kent’s bail following his failed 2008 trial on one of his charges. What possible justification is there for allowing Kelly Gray, charged late last year and requesting bail early this year, to rely on his Charter rights against delayed trials, while barring Shane Kent, charged three years ago and requesting bail right now, from relying on the exact same rights? Alas, ours is not to reason why, but instead to apply Charter s. 49(2) as a ‘matter of statutory interpretation’. 

But did Coghlan interpret Charter s. 49(2) correctly? There are three reasons why this ‘matter of statutory interpretation’ isn’t so simple when it comes to Kent.

The right to jury nullification

I’m absolutely thrilled at today’s verdict in the trial of Joseph ‘Jihad Jack’ Thomas. This is the second time a jury has examined the case against Thomas and issued a split verdict, clearing him of major terrorism charges and convicting him of trivia. In both trials, the verdict was surprising in light of the evidence, where Thomas confessed to the appearance of being a terrorist, but claimed that it was all a ruse.

While it may be that both juries diligently applied the requirement of proof beyond reasonable doubt, I suspect – and indeed hope – that the split verdicts were deliberate messages aimed at the Australian authorities, expressing outrage at their connivance in conduct that is much worse than anything Thomas is accused of.

There’s been some talk lately of abolishing juries. I’m torn by such calls. The complex task of fact-finding strikes me as ideally suited to professionals, who can be trained for their job and can be expected to provide testable reasons for their decisions. But professionals so often tend to toe official lines. These conflicting criteria for good fact-finders appear in the Charter’s fair hearing right:

24(1) A person charged with a criminal offence…  has the right to have the charge… decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

Lord Devlin beautifully expressed how competence (via the long service of professional life) can be at odds with independence when it comes to the task of finding the facts that connect the law to individuals:

The power that puts the jury above the law can never be safely entrusted to a single person or to an institution, no matter how great or how good. For it is an absolute power and, given time, absolute power corrupts absolutely. But jurors are anonymous characters who meet upon a random and unexpected summons to a single task (or perhaps a few), whose accomplishment is their dissolution. Power lies beneath their feet but they tread on it so swiftly that they are not burnt.

The juries of Jihad Jack managed to accomplish a justice that completely eluded the various institutions involved: the AFP, the Cth DPP, the Supreme Court, the Court of Appeal and the High Court.

The Charter, alas, was inapplicable in Thomas’s trials, due in part to its federal aspects (the involvement of AFP and ASIO, and the federal offences) and also (in relation to state aspects, such as court procedure) because of  the Charter’s appalling transitional provision. If the Charter had been applicable, some weighty rights indeed would have been engaged:

• Charter s. 10 (torture): Not only was Thomas (on all accounts) tortured and degraded at the hands of Pakistani and CIA agents, but Cummins J appallingly admitted confessions he made to escape further torture.
• Charter ss. 14, 15 & 16 (civil freedoms):The ridiculous offence of receiving money from (as opposed to funding) a terrorist organisation, without any requirement to prove an intent to further the organisation’s aims or to commit a crime, would, if it was a Victorian offence, have almost certainly engages the Charter’s rights to belief, expression and association. While these rights can be subjected to ‘lawful restrictions’, that caveat requires that the restrictions be accessible and proportionate. Charging Thomas with an offence that was recently created while he was out-of-contact overseas scarcely meets the first requirement; the 25 year maximum penalty (and the oppressive five-year sentence Cummins imposed) make a mockery out of the second.
• Charter s. 25(2)(b) (right to a lawyer): The AFP told Thomas of his right to communicate with a lawyer, but simultaneously informed him that he couldn’t exercise it (due to Pakistani restrictions.) Their failure to stop the interview then and there is what made his first trial possible, after Cummins appallingly held that compliance with Thomas’s rights wasn’t required in the circumstance. If Thomas had access to a lawyer, he would have been made aware of the new offences (and, of course, advised to exercise his right to silence.)
• Charter s. 26 (double jeopardy): The Court of Appeal, after correcting the erroroneous admission of THomas’s tortured and unadvised confessions, which permitted his first trial, erroneously permitted a second trial, sidestepping a clear High Court authority (not to mention a major ruling of the US Supreme Court) to allow the prosecution to have a second go based on entirely new evidence. The outgoing Chief Justice and Hayne J weren’t bothered.

The new evidence was interviews given by Thomas that were published after his first wrongful conviction. A lot of commentators have glibly observed that Thomas was ‘badly advised’ about giving that interview. But I disagree.

Playing the Charter card

One of the interesting bits of human rights law that is implicit in Part 2 of the Charter is the law about when these rights are gained and lost. People under criminal investigation and prosecution have lots and lots of rights:

21(4) A person who is arrested or detained must be informed at the time of arrest or detention of the reason for the arrest or detention and must be promptly informed about any proceedings to be brought against him or her. (5) A person who is arrested or detained on a criminal charge- (a) must be promptly brought before a court; and (b) has the right to be brought to trial without unreasonable delay; and (c) must be released if paragraph (a) or (b) is not complied with. (6) A person awaiting trial must not be automatically detained in custody, but his or her release may be subject to guarantees to appear- (a) for trial; and (b) at any other stage of the judicial proceeding; and (c) if appropriate, for execution of judgment. (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.

25(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees- (a) to be informed promptly and in detail of the nature and reason for the charge in a language or, if necessary, a type of communication that he or she speaks or understands; and (b) to have adequate time and facilities to prepare his or her defence and to communicate with a lawyer or advisor chosen by him or her; and (c) to be tried without unreasonable delay; and (d) to be tried in person, and to defend himself or herself personally or through legal assistance chosen by him or her or, if eligible, through legal aid provided by Victoria Legal Aid under the Legal Aid Act 1978; and (e) to be told, if he or she does not have legal assistance, about the right, if eligible, to legal aid under the Legal Aid Act 1978; and (f) to have legal aid provided if the interests of justice require it, without any costs payable by him or her if he or she meets the eligibility criteria set out in the Legal Aid Act 1978…

This lengthy list of rights can prove problematic for law enforcement, who have to keep track of what they are meant to say and do.

Famously, the four warnings set out by the US Supreme Court in Miranda v Arizona have appeared on cards that police carry around so that they don’t read the wrong rights.  Ernesto Miranda himself, following his retrial, conviction and sentence for rape, made a living selling signed copies of Miranda cards. He was killed in a bar fight in 1976. And, according to my comparative criminal procedure teacher, the police officer who arrested the alleged killer at the scene picked a Miranda card out of Miranda’s own pocket and read the man his rights (which he exercised.)  So, Justice White was not entirely correct when he famously lamented, in his dissent, that the Miranda ruling would free killers to kill more victims who are “are uncertain, unnamed and unrepresented in this case.”

The other solution is the holdings of overseas courts that not all criminal process rights are automatic and mandatory. Rather, some of them have to be asserted – e.g. habeus corpus – and many of them can be waived, e.g. the  right to be given a legal aid lawyer if eligible. There are lots of overseas cases on whether assertion and waiver apply for particular rights, how assertion and waiver can occur and the state’s duties to work out exactly what is happening. Behind these questions is a difficult policy question about whether criminal process rights are the responsibility of the state or the individuals who have them. The really controversial part of Miranda is its holding that defendants don’t have to assert their right to silence or to a lawyer; rather, they always have those rights until they are expressly and unequivocally waived, in practice by signing an express waiver form. Other countries, including Australia and Canada, don’t go so far, requiring assertions in some cases and permitting implicit and equivocal waivers in others.

But can Australians and Canadians gain American-style waiver rights through the use of the police’s own tool?: a rights card.

The rights of difficult defendants

A new (non-)Charter case, Devine & Legg v VCAT [2008] VSC 410, is the Supreme Court’s second foray into Victoria’s controversial laws on racial and religious vilification, which include this provision:

8(1) A person must not, on the ground of the religious belief or activity of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.

Note Engage in conduct includes use of the internet or e-mail to publish or transmit statements or other material.

In the first foray, in the better known Catch the Fires Ministry case, the Court of Appeal rejected a constitutional challenge to the legislation, primarily because it fell outside the scope of the implied right to political communication, but also because it was reasonably adapted to the end of religious tolerance. Doubtless, there’ll be a Charter challenge sometime in relation to freedom of expression, which lacks the scope issue. But not this case, which is instead concerned with the law’s enforcement procedure.

NSW residents Dyson Devine & Vivienne Legg are the authors of the now defunct gaiaguys.net, which contained numerous allegations of crime and corruption, including the claim that Ordo Templi Orientis, whose members follow a religion called Thelema, are pedophiles. Given their views – and tendency towards conspiracy theories – it’s perhaps unsurprising that they weren’t amenable to the conciliation process envisaged for complaints under the Victorian law. Nor, as it turns out, were they cooperative when the case moved to VCAT, refusing to respond to any part of the proceedings, although their angry comments on their website showed that they were well aware of them. Their non-compliance in some ways detracted from the force of Deputy President Anne Coghlan’s ruling in July last year that the Act had been breached, as Coghlan simply accepted the unchallenged evidence of OTO and never ruled on whether Devine & Legg had established the defence of good faith public interest commentary. Rather, the main substantive outcome was an order telling them to remove the offending words from their website.

The present matter arose because – surprise surprise – Devine & Legg didn’t follow the order. Where to from here? One option is for the DPP to charge them with the criminal offences in the Racial and Religious Tolerance Act, which carry up to six months in prison. But the other option was to bring a proceeding for contempt of VCAT:

137(1) A person is guilty of contempt of the Tribunal if they… (f) do any other act that would, if the Tribunal were the Supreme Court, constitute contempt of that Court.

(2) If it is alleged or appears to the Tribunal that a person is guilty of contempt of the Tribunal, the Tribunal may- (a) direct that the person be arrested and brought before the Tribunal; or (b) issue a warrant for his or her arrest in the form prescribed by the rules.

(3) On the person being brought before the Tribunal, the Tribunal must cause them to be informed of the contempt with which they are charged and thereafter adopt any procedure that the Tribunal thinks fit.

In October last year, VCAT Vice President (and judge) Marilyn Harbison ordered the arrest of Devine & Legg, who were brought from Coffs Harbour to appear before her on 27th November. As required Harbison informed them of the charge and set the hearing for the following day:

Her Honour: Now you understand that if I don’t remand you in custody, I can still proceed with the matter whether you’re here or not?

Mr Devine: Yes Your Honour, we probably think that would be the best thing under the circumstances since we don’t intend to defend ourselves. We wouldn’t be here now had we not been arrested.

Ms Legg: May I add something to that, Your Honour?

Her Honour: Yes

Ms Legg: The only thing I wanted to add was in regard to determining a prison sentence or whether this should be sentenced on us – I’m sorry, I don’t know the terminology, we would have arguments about naturally the merits of what we’ve done and thus whether we really deserve this but I see that falls under the same category as the other matter of whether we should have been charged in the first place but I would argue the merits of what we’ve done under those circumstances as to why we shoudn’t be treated as criminals.

Her Honour: Yes, thank you. Look, I’m not going to take up the invitation of the applicants to imprison them overnight. I don’t think it’s appropriate. I don’t think there’s anything to be gained. What I propose to do is simply to discharge the warrants. I have explained to the respondents, Ms Devine and Ms Legg, that I will deal with this matter of contempt. I will deal with it at ten o’clock tomorrow morning whether they are here or not.

 When – surprise surprise – neither defendant showed up the next day, Harbison, citing the necessity of enforcing VCAT’s authority, the need to signal that religious vilification will not be tolerated and the need to specifically deter the defendants from further breaches, sentenced them both to nine months imprisonment (i.e. three months more than the maximum for the offence of vilification, but less than a fifth of the maximum sentence for contempt.) The pair, re-arrested in early January, served a month-and-a-half in prison before apologising for the contempt and agreeing to take down the website.

On 21st February 2008, a week before their release, they commenced a judicial review proceeding in the Supreme Court, alleging that Harbison’s decision ‘breached the plaintiffs’ right to a fair hearing under the Charter’.

The Thirty-Eight Steps

I’m not done yet with Sabet v Medical Practitioners Board of Victoria [2008] VSC 346, arguably the most significant Charter judgment to date (and the most flawed). In this post, I look at the overall approach Hollingworth J adopted to analysing a Charter s. 38(1) claim:

I accept the Solicitor-General’s suggestion that in analysing whether there has been a breach of a human right under the Charter it is useful to ask the following three questions:

(a) Has a Charter right been engaged? (the engagement question)
(b) If so, did the public authority impose any limitation on the right? (the limitation question)
(c) Was any such limitation reasonable and justified within the circumstances set out in s 7(2)? (the justification question)

In my previous posts, I said that, while Hollingworth completely blew the first question, she nevertheless correctly (if overly tersely) answered the second question. But was that the right question to ask? I don’t think so. Moreover, Pamela Tate’s list omitted some important questions too.

Here are the questions Hollingworth should have asked (in this or any other case involving a decision made under a Victorian statutory provision):

1. Did the decision or its consequences engage a Charter right? (the engagement question)
2. If so, did the public authority’s decision either (a) limit a Charter right? (b) fail to do something required by a Charter right? (c) involve a failure to give proper consideration to a Charter right? (the compatibility question)
3. If so, was making a different decision or giving proper consideration to that Charter right reasonable in light of the governing statutory provision? (the statutory defence question)
4. If not, is the statutory provision a demonstrably justified and reasonable limit on Charter rights? (the reasonable limits question)
5. If not, is there an alternative interpretation (consistent with the provision’s purpose) that would make it reasonable to make a different decision or give consideration? (the interpretation question)

Sabet deserved an answer to each of these questions, but instead he only got answers (of sorts) to Tate’s three questions. What did they leave out?