(Mis)applying the Charter’s stupidest section

Ragg v Magistrates Court of Victoria & Corcoris [2008] VSC 1 is the third reported case to expressly hold that the Charter doesn’t affect the issues it addresses. However, it’s the first case to do so in 2008, after the Charter’s operative provisions had commenced. Like two pre-2008 cases, the court held that s. 49(2), one of the Charter’s transitional provisions, stopped the Charter from applying.

corcoris.jpgJarod Ragg is a federal cop who’d been given a summons to produce documents under s. 43 of the Magistrates Courts Act 1989. (These were once known as subpoena decus tecum. As my Prac/Proc lecturer taught me: ‘Decus’ means documents and ‘tecum’ means you have to take’em to court.) The summons was from businessman Nicholas Corcoris (pictured), who is charged with multiple counts of tax evasion and wants the documents to test the evidence against him at his committal in March this year. Corcoris wasn’t happy with what the police had chosen to give him and managed to get someone (presumably a registrar at the Magistrates Court) to issue a summons for just about every document that had ever floated past Ragg’s desk relating to Corcoris. That’s a lot of documents, as the investigation against him was a massive joint ATO/AFP investigation dating back to 2002 called Operation Tarpan. So, Ragg asked a magistrate to strike out the summons as an abuse of process. After the magistrate said no, Ragg went to the Supreme Court for judicial review. That’s this case.

On 24th January 2008, Bell J ruled (in passing) that the Charter didn’t apply:

[36] This judicial review application was issued by Mr Ragg on 21 December 2007 before the commencement of the relevant provisions of the Charter of Human Rights and Responsibilities Act 2006, which was 1 January 2008. By the transitional provisions in s 49(2), the Charter “does not affect” the proceeding.

Did he apply s. 49(2) correctly? Nope. Charter s. 49(2), the Charter’s stupidest section, says this:

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

The ‘commencement of Part 2′ of the Charter – which gave Victorians lots of lots of rights, but no means to enforce them – was on 1st January 2007. Justice Bell mistakenly used the date when Divisions 3 and 4 of Part 3 – which gives public authorities and courts some limited responsibilities to respect Victorians’ rights – commenced, one year later. Maybe the judge – who got the date right in a case last year – was misled by the Charter’s incorrect explanatory memorandum on s. 49(2), which makes the same error. Or maybe he wrongly assumed that s. 49(2) made any sense at all.

Justice Bell’s finding that the proceeding before him began on 20th December 2007 meant that Charter s. 49(2) had no application . So, is Ragg the first victim of a misapplication of the Charter? Probably not, because Bell J arguably got other things wrong about s. 49(2).

Section 49(2) is actually a very ambiguous provision. To understand why, consider the key dates in Ragg’s dealings with Corcoris:

  • sometime in 2002: commencement of Operation Tarpan
  • sometime later in 2002: various warrants issued to investigate Corcoris’s businesses
  • 13th December 2004: Corcoris arrested and charged with tax evasion
  • two occasions from 2005-2007: Corcoris’s committal listed and then adjourned
  • late May 2007: most recent occasion when Corcoris’s committal adjourned
  • sometime between June and December 2007: Corcoris’s committal hearing finally listed for 3 March 2008
  • 10th December 2007: Corcoris issues Ragg with the first of two summonses
  • sometime between 10th and 20th December 2007: Ragg applies for the summonses to be quashed
  • 20th December 2007: a magistrate rejects Ragg’s request
  • 21st December 2007: Ragg applies for judicial review of the magistrate’s decision
  • 27th December 2007: judicial review application first heard before Bell J
  • 7th January 2008: second hearing before Bell J
  • 24th January 2008: Bell J rejects the application
  • 3rd March 2008: date listed for the start of Corcoris’s commital hearing

Which of these dates counts as the ‘commencement’ of the ‘proceedings’ before Bell J?

The first step is to identify the relevant ‘proceedings’. Justice Bell thought the proceedings were the judicial review application. But judicial review doesn’t happen in a vacuum. In this case the judicial review was of a Magistrates Court matter: an abuse of process application. And that application was, in turn, a review of a decision by someone to issue a summons to Ragg under s. 43(2) of the Magistrates Act 1989. But it doesn’t end there, because summonses don’t happen in a vacuum either. Rather, such a summons must be applied for by a ‘party to a criminal proceedings’, in this case Corcoris. So, the judicial review was of an application to quash a summons that was issued in relation to a criminal proceedings: Corcoris’s prosecution for tax evasion.

I can’t say that Bell J’s approach to separate out the judicial application as the relevant ‘proceedings’ is definitely wrong. But I think this approach causes an absurd outcome: it means that the Charter will apply in (some) interlocutory proceedings that occur during the prosecution of Corcoris, but not in the main hearings that determine his fate (the mentions, the committal, the trial and any sentencing or appeal.) That’s weird and would seem to encourage defendants in Corcoris’s position to make lots of side applications just to get the benefit of the Charter. That’s why I think that, instead, the ‘proceeding’ under s. 49(2) should always be the entire matter that the particular question before the court relates to. In the criminal matters, that will be a particular investigation or prosecution, in this case Corcoris’s investigation and prosecution for tax evasion.

The second step is to work out when this proceeding against Corcoris ‘commenced’ under Charter s. 49(2). There’s already a precedent on that exact question, from the first ever Charter case (R v Williams [2007] VSC 2) when King J rejected gangster Carl Williams’ attempt to have his trial for a gangland murder adjourned until the Charter commenced. She held that an adjournment wouldn’t help Williams, because nothing could change the fact that his proceedings commenced the moment he was ‘charged’ back in December 2004. That meant that Charter s. 49(2) would prevent the Charter from applying in his trial, no matter when it occurred and no matter how long it was adjourned. So, applying King J’s approach to this case, the judicial review application was caught by Charter s. 49(2) because Corcoris was also first charged in December 2004.

You could actually argue that Corcoris’s proceedings started even earlier. Justice King’s reasoning was that ‘commencement’ in criminal proceedings under Charter s. 49(2) should be the same time that Charter s. 25’s criminal proceedings rights kick in, which is when a defendant is charged. That makes sense, but ‘charged’ in Charter s. 25 doesn’t necessarily mean the same thing as the formal charge under Victorian criminal procedure. Rights are expressed in general terms that are independent of the local nomenclature of processes. (The term of art is ‘autonomous.’) What matters is substance, not form. Overseas courts, who are more familiar with inquisitorial processes, tend to pick a different moment for the start of proceedings: the moment when a person first comes under official investigation. That would equate to the commencement of Operation Tarpan, back in 2002. Notice how the more generous a reading is given to defendants’ rights under Charter s. 25(2), the more Charter s. 49(2) exempts proceedings against defendants from protection of their rights. Stupid s. 49(2)!

The quite unfortunate effect of Charter s. 49(2) is obvious in a case like Corcoris’s. The AFP has taken forever to bring him to trial. Indeed, they’ve had to pay a lot of his legal costs because the courts have held that the delays are the fault of the AFP. But, even though most of the key events in Corcoris’s proceedings will now post-date the commencement of the Charter, the Charter will never play any role in the state’s treatment of him (including the rights concerning unreasonable delays in trials.) The Charter won’t apply in Corcoris’s March 2008 committal (if it goes ahead) or his trial later in 2008 or sometime in 2009. If Corcoris is convicted and appeals, the Charter won’t apply in his appeal. If he wins his appeal, the Charter won’t apply in his next trial in, say, 2012. Or the one after that in 2015. Whatever you think of Corcoris, it seems absurd that he gets no benefit from the Charter even though most other defendants tried at the same time as him will get that benefit. That’s Charter s. 49(2) for you.

By the way, even Bell J’s approach to Charter s. 49(2) – which, while bizarre in effect, would give Corcoris some limited benefits from the Charter – doesn’t necessarily mean that the Charter should have been applied in Ragg’ s judicial review application. That’s because the key operative provisions of the Charter only commenced right before Bell J’s decision, so they only bound him, not the other players in the case. A judicial review application looks at whether the other players mis-applied the law as it existed when they made their decisions, which is before the interpretation and conduct mandates commenced. The interpretation mandate couldn’t affect Bell J’s decision, because judicial review isn’t governed by a statutory provision. And the conduct mandate couldn’t apply to Bell J’s judicial review decision either, because s. 4(1)(j) removes courts exercising non-‘administrative functions’ from the definition of ‘public authority’ and, hence, the mandate.

(Actually, even if all the events happened in 2008, the conduct mandate still wouldn’t apply to the conduct of the AFP or ATO – because, as Commonwealth entities, they aren’t s.4 public authorities either, although Bell J seemed to miss this subtlety when he briefly touched on it – or the magistrates court in deciding (as a judicial function) the abuse of process application; arguably, though the issuing of the summons by the registrar or whoever would have been subject to the mandate, because that’s an administrative function. I’ve spoken elsewhere at length on how difficult and silly s. 4(1)(j) is!)

So, no, Corcoris isn’t the first person to suffer a miscarriage of justice because of a misreading of the Charter. Justice Bell got the right result, but for the wrong reasons. Anyway, Bell J ended up giving Corcoris the benefit of lots of human rights, relying on an alternative argument he’s repeatedly pushed that ICCPR rights may be directly applicable in Victorian courts. I won’t comment on whether that’s a correct argument or not, but it certainly will get conservative commentators riled up about activist judges. The Charter was meant to put a stop to that debate. Alas, the Charter’s own stupid provisions will keep this side-issue alive for a long time.

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