The angel in the details

Last post, I praised Bell J’s decision in Kortel v Mirik & Mirik [2008] VSC 103. Such praise isn’t a common feature on this blog, because I spend a lot of time on the details of the Charter, which I think are very important but many others neglect. The Charter isn’t just – or even mainly – a fundamental statement of principle. It’s a statute with lots of different elements that interact or conflict in significant ways. Those details contain devils, but a bigger devil is trying to brush them aside in a rush to say something fundamental about rights. That path just leads to error and to overreach.

I don’t think there’s much doubt that Bell J is a big picture judge, and that may well be why his instincts led him to the right response to VEOHRC’s dubious intervention in this case. But I suspect he’s no details judge. This judgment has lots of details that support that suspicion:

(a) When Bell J realised that the Miriks were unrepresented, he leapt straight to the dubious issue raised by s6(2)(b). There was no need to do that. VEOHRC, when it issued its notice of intervention, recognised that there is a much more straightforward Charter provision that comes into play:

[S]ection 32 of the Charter requires the Court to construe section 85G of the Sentencing Act 1991 (Vic) in a way that is compatible with sections 8(3) and 24(1) of the Charter.

Section 85G(2) of the Sentencing Act 1991 provides:

85G(2) A court must not make a compensation order without giving the offender a reasonable opportunity to be heard on the application for the order.

Surely, the major issue is whether ‘a reasonable opportunity’ includes having a lawyer or some sort of equivalent assistance? Section 6(2)(b) is a sideshow.

(b) I’m also dubious about Bell J’s reliance on s24(1):

[U]nder s 6(2)(b), the Charter applies to courts and tribunals “to the extent that they have functions under Part 2”. Section 24(1) is in Part 2. It provides, among other things, that a party to a civil proceeding has a right to have it decided “after a fair … hearing.” I thought the question arose whether the obligation of the court to ensure a fair hearing to the respondents as unrepresented litigants – which is a procedural obligation – involved the performance of a function of the kind specified in s 24(1). I also thought s 8 might be relevant in this regard, in so far as it may have procedural implications.

But the Victorian courts have held that compensation orders are criminal proceedings, not civil proceedings, given that they are premised on a conviction, are heard by the sentencing court and are resolved by factors (rehabilitation, impecuniosity) that are rarely at play in civil matters. Of course, s24(1) applies to criminal defendants too (at least assuming that that a compensation order is part of having a ‘charge decided’, but that’s not great stress, given that the Crimes Act includes such orders in the definition of a ‘sentence’.) But s25(2)(f) is for criminal defendants only:

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

(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

Although the reference to the Legal Aid Act is unfortunate, surely this right stands out as the most relevant one by far? At least, this right should have been listed in the s35(1) notice. (I’m surprised that VEOHRC didn’t argue it either.)

(c) Equally, I note that Bell J rejected VEOHRC’s request to hold a hearing under Order 47 rule 4 of the Supreme Court (General Civil Procedure) Rules 2005, even though those rules only apply in ‘civil proceedings’. Surely, the Supreme Court (Criminal Procedure) Rules were the relevant ones. (I have to admit, though, that I’m no expert on civ proc, to say the least, so maybe I’m missing a subtlety here.)

(d) I’m also a little worried that Bell J didn’t spell out why he thinks Charter s. 8(3) may matter. I hope it isn’t because he thinks that poor defendants shouldn’t be discriminated against, because poverty isn’t a discrimination ground (although there is an argument that the ‘equal protection of the law’ principle isn’t limited to those grounds.) But, here’s hoping what he had in mind was the Miriks various impairments, which are discrimination grounds.

(e) And also, in my view, Bell J neglected the possible application of Charter s49(2). It’s at least arguable that, given that compensation order hearings are ‘criminal proceedings’ that are founded on a guilty verdict, they are really a continuation of the original criminal prosecution of the Miriks. Which started in 2005. Of course, views could differ on this, but surely it was a key point to address from the get-go.

I didn’t like VEOHRC’s willingness to waste the parties’ time on a point that wouldn’t make a difference. But ignoring crucial details can also do that, or even generate a wrong result that has to be corrected on appeal. Everyone, especially judges, needs to start paying more attention to the Charter’s details.

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