Slow as things have been on the Charter front in Victoria, they’ve been even slower in the ACT, now nearing the end of the fourth year of its Human Rights Act. The Territorians have had just one case in the first quarter of this year, brought down on the last day in March. However, it’s an important case (or, more correctly, part of a very important series of ACT human rights decisions, summarised over at ACTHRA here, here and here.)
In R v DA  ACTSC 26, a unnamed defendant being tried for an unnamed charge (a Canberran gangland murder?) feared that some of the mysterious evidence against him would cause lay Canberrans to have an emotional reaction. If one of those emotional Canberrans is on DA’s jury, then this raises a human rights issue under s21 of the ACT’s Act, which is similar to the Charter’s s24(1):
A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
The prosecution argued that the risk of an emotional reaction can be managed by the usual common law approach: censor the evidence and/or tell the jury not to be emotional (and don’t forget to cross your fingers) That’s all a fair hearing requires.
DA had a different solution: let a judge (who apparently have superior emotional control) try the case instead. ACT law (unlike the Commonwealth Constitution’s ‘right‘ to a jury trial) permits defendants to elect to have a trial before a judge for just this reason. The problem was that DA had missed his ‘election’ date (unwittingly, he claims.) But DA had a further solution: long before the HRA was enacted, a court ruled that the election right is not a once-off; rather, it will be revived if the indictment or the trial date is changed. So, DA asked, even though there was no particular reason to do either of those things, could the Court just make one of them happen so that he can make fresh election? In R v DA, Higgins CJ decided to do what DA asked. He cited the ACT HRA’s fair hearing right as the reason why:
[T]here is recognised at common law a right to not have an unfair trial, which is different from s 21 of the Human Rights Act 2004 (ACT) which confers a right to a fair trial. That is a very different emphasis. It seems to me that activates the remarks that Kirby J made in Nudd v The Queen  HCA 9; 80 ALJR 614 where his Honour departed from the approach of the other members of the Court on that very distinction. The majority were looking at the question of the right to avoid, in respect of a trial, unfairness. His Honour referred to various Human Rights Conventions, including the International Covenant on Civil and Political Rights (ICCPR) upon which the Human Rights Act 2004 of this Territory is based, and as a result held that there is, or ought to be, a right recognised under common law to a fair trial…. We do not have to have that debate in this Territory because that right is conferred by the Human Rights Act 2004, thereby modifying the common law accordingly.
In essence, it comes down to this. This is not a case where I could hold that to vacate the trial date, so as to reinstate the s 68B right in the accused to elect for trial by judge alone, would result in an unfair trial. It seems to me that is no longer the test: the test is whether the accused has the right to make an election as part of the holding of a fair trial. In other words, fairness is not only a question of objective fact, but also a question of perception…
It seems to me that, having regard to s 21 of the Human Rights Act 2004, I ought to give decisive weight in the circumstance of there being no prejudice to the Crown or to any Crown witness, or to the trial, the efficiency or otherwise of the trial. Indeed it may be to the greater efficiency of the trial to accede to the application made, so I do so.
These are fighting words, according to Richard Refshauge, the ACT’s most recent DPP and an incoming judge in Higgins CJ’s own court. In relation to an earlier judgment that also held that HRA s21 sets out a ‘positive’ right to a fair trial, rather than the common law’s ‘negative’ right not to have an unfair trial, Refshauge wrote:
I have to say that I find that statement at least curious. It proceeds on an apparent view that fairness of criminal trials is a continuum: fair… neither fair nor unfair… unfair. I reject that continuum. It seems to me that there is no such thing as a trial that is neither fair nor unfair. If a trial is not fair, then it is unfair. If a trial is not unfair, then it is fair….
Accordingly, despite what the court has said, I remain of the view that in general terms, the fair trial principle enshrined in the Human Rights Act 2004 (ACT) remains closely aligned, if not identical, with the principle at common law.
Is this seemingly esoteric dispute important? I happen to think it is and that Higgins is right and Refshauge is very wrong.
Refshauge’s view that the fairness of a trial is a binary ‘yes/no’ question matches the common law view. On that approach, fairness is a ‘test’ where a judge decides whether or not the procedures followed in the trial (and, in some circumstances, the result) are fair or not. If they meet the fairness test – determined, of course, by centuries of precedent, supplemented sometimes by legislation, that sets out what is and isn’t required – then that’s it: there can be no complaint about the fairness of the trial. Applied to DA’s argument, the sole issue would be whether or not he was given adequate opportunity to elect to have a judge according to the applicable procedures. If he did, then it’s fair for him to be tried by a jury. If not, then it isn’t. End of story.
Higgins’s view is that fairness is relative question. One trial can be fairer than another. In particular, it’s possible to make a trial fairer than the law requires. And that’s precisely what is required by the human right to a fair trial: that everyone (to the extent that human rights law requires) must do what they can to make a person’s trial as fair as possible (subject, of course, to competing interests, including other rights, that make it reasonable not to do so.) In DA’s case, it didn’t matter whether or not the strict law had been followed. What mattered was that it was obviously possible to make DA’s trial a little bit fairer by giving him another chance to opt for a judge-only trial. Also, importantly, there was no compelling reason not to do so; in particular, Higgins held that a change in decision-maker wouldn’t prejudice the prosecution and that DA’s election right could be triggered by only nominally vacating the set trial date, replacing it with either the same one or a very similar one, i.e. no unjustified forum shopping or dragging out the process. So, there’s no harm and, therefore, the right to a fair trial required that DA’s request be granted.
Higgins’s approach was applied in 2006 in Stephens v McCallum  ACTCA 13, where the defendant was convicted of a breach of a domestic violence order entirely on the basis of a tape recording of the complainant describing his violent conduct. (The same complainant at the trial said that she no longer remembered the incident.) Such recordings are typically inadmissible, but the defendant’s own lawyer foolishly put the recording in evidence (which, under the uniform evidence law, makes it admissible for its hearsay use.) The common law view is that such stupidity only renders the defendant’s trial unfair if it can be established that the defence lawyer was incompetent enough to have caused justice to miscarry. The Court of Appeal (including Higgins), though, held that, under the HRA, it was enough that evidence that shouldn’t have gone in did. The Court also noted that the ACT prosecutor (a public authority under Victoria’s Charter, and of course led by Refshauge in 2006) added to the problem by not calling the complainant as its first witness (which would have made it clear to everyone that the case against the defendant rested solely on a tape recording.)
I think that Higgins’s view is not only logical – of course fairness is relative – but also exactly consistent with how human rights law should work. Human rights aren’t about ticking boxes, they’re about doing your best to fulfill a particular (rights) objective, subject only to other competing rights or interests. The Refshauge view – alas, one I fear is likely to be shared by most judges – is a recipe for complacency about the current law (and antipathy towards proposed changes.)
Where Higgins and I part company is, of course, in whether the requirements of HRA s. 21 or Charter s. 24 translate into legal requirements binding on anyone, notably Higgins CJ himself. DA follows a not-particularly-venerable ACT tradition of simply ignoring the question of how the various rights in the HRA are implemented by that same statute. Higgins doesn’t make any pretense to be re-interpreting the applicable provision of the ACT’s Supreme Court Act (which happens to be the only explicit legal effect of the HRA at present.) Instead, he simply treats HRA s. 21 as directly binding on him I don’t think that view is sustainable, and certainly not without more analysis.
However, things may be different under the Charter. In Victoria, the conduct mandate requires public authorities to follow the requirements of Charter s. 24, including the obligation to do what you can to make every trial as fair as possible. Courts acting judicially (the best suited institution to further such an obligation) are (alas) not bound by the conduct mandate, however they are bound acting administratively (including, maybe, decisions to vacate a trial date) and prosecutors are certainly bound (including, arguably, decisions to nominally amend an indictment.) Whether the conduct mandate will amount to much given Charter ss. 38(2) and 39(1) is another matter, of course. Here’s hoping though that the Victorian courts don’t follow Refshauge’s view and let Charter s. 24(1) whither on the common law vine before these other provisions are even considered.