It’s a sign of the lacklustre start to the Charter that, on the cusp of its fifth month, its stunning news that the Charter’s actually been applied again. I’m actually late to this news, which was reported in the Herald Sun last week. This is the third time the Charter has been applied. The first time was Bongiorno J’s dodgy bail judgment in the Supreme Court in mid-January. The second was a Magistrates’ Court bail judgment a week later. And the third….. another Magistrates’ Court bail judgment. Here’s the article while I try to calm down:
A HUGE court backlog has seen a man accused of belonging to a Mokbel drug cartel freed on bail. Melbourne Magistrates’ Court heard Zlate Cvetanovski, 41, was unlikely to face trial until well into 2010, more than two years after his arrest by Purana Taskforce detectives. Mr Cvetanovski is accused of being an apprentice amphetamines cook in Tony Mokbel’s drug syndicate and of trafficking a large commercial quantity of methylamphetamine between June 2005 and April 2006. Police allege he was paid $200,000 to help manufacture amphetamines at a secret lab and that he had links to members of the Mokbel family. He is also charged with dealing with $72,175 in cash, alleged to be proceeds of crime. The court heard he was on bail for unrelated matters when arrested on returning from a gambling trip in Sydney last week.
Magistrate Peter Couzens said higher courts and the new Charter of Human Rights made it clear that defendants were entitled to have their cases heard without delay. A check by the prosecution with the County Court — where the case will be heard if Mr Cvetanovski is ordered to stand trial — indicated it would not be listed for at least two years from the time of his arrest. “By anyone’s standards, that type of delay is totally unacceptable,” Mr Couzens said. Defence lawyer Damian Sheales told the court that his own experience of delays at the County Court included a day where there were 19 trials awaiting judges. The magistrate said that had the case against Mr Cvetanovski been overwhelming, he may have denied bail in spite of the delay. But there were no fingerprints tying him to the drug laboratory, and the case relied heavily on the evidence of informers who were themselves drug traffickers, he said. Mr Couzens granted Mr Cvetanovski, of Avondale Heights, $350,000 bail, with conditions. He is due to return to court in July.
The magistrate seems to have applied Charter s. 25(2)(c):
(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees-
(c) to be tried without unreasonable delay…
(Again, Charter s.21(5)(b) could scarcely be relied upon, given that Cvetanovski has been on remand for all of one week!)
However, as previously discussed, the mere fact that a defendant has been denied an ‘entitlement’ doesn’t mean that any rights have been breached or that he gets a remedy. Here’s the run-down: (a) the proceedings seem to be covered by the dreaded Charter s. 49(2), as the charges are described as being more than two years old; (b) it’s not at all clear which public authority (if any) breached the defendant’s entitlement. Is the County Court to blame for the delay? If so, was it acting in an administrative capacity? And is there a law that makes the delay reasonable under Charter s38(2) or may count as a reasonable limit under Charter s7(2)? (There have been interesting reports lately that delays have been due to the fast-tracking of rape cases, something that is required by this provision. So how is the County Court in breach of the conduct mandate?) And is bail a remedy a falls within Charter s39(1)? Or did the Magistrate go for s6(2)(b)? If so, what about the constitutional issue? (c) Also, as it seems that Cventanovski breached his bail conditions (a gambling trip?) how has the magistrate gotten around s4(4)(d) of the Bail Act, which bars bail in these cirumcstances ‘unless the accused person shows cause why his detention in custody is not justified’? Was the interpretation mandate applied to this provision? If so, how is this reading ‘consistent’ with the provision’s ‘purpose’?
Unfortunately, while Magistrates have to give their reasons for such divisions (see s4(i) of the Bail Act), they aren’t published. But something tells me that the Magistrate didn’t work through all these issues, but just cited Gray v DPP  VSC 4, in yet another passing mention. When is someone going to take that damned decision to the Court of Appeal? All up, more of the same. Four months in and the Charter has yet to be applied with proper analysis.