The Charter’s War on the War on Terror

Today brings the stunning – if not exactly surprising – news that Melbourne’s vast terrorism trial is starting to unravel. Justice Bongiorno – not a favourite on this blog – has ruled that he will order a (non-permanent) stay of the trial and hear bail applications unless the defendants’ harsh remand conditions – long journeys, shackles, strips searches and the usual GITMO trappings in Barwon – are replaced with normal remand conditions at the Melbourne Assessment Prison in Spencer Street.

The reason for the ruling is that the present conditions leave the defendants too exhausted and unbalanced to concentrate on the complexities of the trial. Such an argument naturally brings two Charter provisions to mind:

22 (1) All persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.

(2) An accused person who is detained or a person detained without charge must be segregated from persons who have been convicted of offences, except where reasonably necessary.

(3) An accused person who is detained or a person detained without charge must be treated in a way that is appropriate for a person who has not been convicted.

25 (2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees-…

(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…

But, as anyone who has read this blog would realise, there’s a major barrier to applying the Charter to this trial: the Charter’s stupidest section, s. 49(2). Fortunately, that section was both considered and even (vaguely) analysed in the ruling.

Justice Bongiorno observed:

it was only barely arguable that the Charter would apply of its own force to this case having regard to the transitional provision contained in s 49(2). Unless a somewhat strained meaning was attributed to the word “proceeding” this proceeding, of which the accuseds’ trial is a part, commenced well before the commencement of Part 2 of the Charter – possibly more than a year before. The accused were originally arraigned on 18 December 2006. Even if the indictment filed that day was subsequently amended and eventually replaced by another version which was “filed over,” as the common Victorian expression has it, the accuseds’ trial actually commenced in December 2006…

Breaking this down: First, Bongiorno appears to support an argument I’ve made that ‘proceedings’ has to be given a wide reading, covering the underlying cause (e.g. the criminal proceeding), rather than the particular question  the court happens to be dealing with (e.g. the stay application.)

Second, that being said, he also seems to treat the proceeding as the trial, i.e. starting with the defendants’ arraignment in December 2006, rather than the prosecution, starting with the defendants being charged.  This appears to be inconsistent with King J in R v Williams. It is a pity that Bongiorno J doesn’t refer to an on-point ruling from a fellow Supreme Court judge; it is also bewildering given that Williams remains the only significant Charter ruling thus far. How could he miss it?

Third, my initial reading of Bongiorno J’s statement that proceedings ‘commenced well before the commencement of Part 2 of the Charter – possibly a year before’, combined with the reference to the arraignment date of 18 December 2006 – as meaning that he had followed Bell J’s error in Ragg (and the Charter’s bodgy EM) in getting the date wrong. However, I’ll be charitable and assume that Bongiorno was actually referring – without actually mentioning the date or explaining why – to the defendants’ November 2005 charging, which is indeed (more than) a year before the 1/1/7 commencement date.

Finally, there’s the interesting question of changes in charges, under either King J’s formulation or Bongiorno J’s. I haven’t yet read the various Victorian and UK judgments he cites, but they’re all from past decades. How can they be determinative of the meaning of Charter s. 49(2)?

That being said, what if Bongiorno is right and the relevant date is the arraignment? That would mean that the defendants missed out on the cut-off by two weeks. You’d have to wonder if that date was chosen deliberately. (Of course, that particular conspiracy theory would assume that anyone in the Cth DPP had even heard of the Charter at that point.)

Justice Bongiorno doesn’t, of course, spell out how the Charter would actually make a difference in this case. As readers of this blog well know, it’s not enough that Corrections Victoria (or some other public authority) is in breach of Charter ss. 22 or 25(2)(b). There’s still Charter ss 38(2) and 39(1) to consider. Perhaps Charter s. 49(2) has saved us, on this occassion, from another Gray day.

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