This Friday’s judgment in R v Rich (Ruling No 2)  VSC 141 is yet another occasion for the Charter to be ignored in a Victorian human rights judgment. Readers of this blog will be familiar with the drill: criminal matter; interlocutory application; passing mention; Charter not applicable; rights claim upheld anyway. But the case does raise a number of interesting issues.
Hugo Alistair Rich has spent the last few years in the Melbourne Remand Centre awaiting his trial on a murder charge associated with an armed robbery in Blackburn North. He has been keeping his jailers busy by litigating over his privileges. He lost his first battle in October last year, when he failed to convince a judge that the withdrawal of his in-cell computer – that’s a location, not a brand – was a breach of Victoria’s vague and convoluted regulations dealing with prisoner ‘privileges’. His second battle – over the removal of a phone number from his list of allowed calls after one of his calls was improperly diverted – surmounted that hurdle, but failed at the factual threshold, after Justice Lex Lasry accepted evidence that he could ring the same person via another (apparently slightly less convenient) number. The decisions noted two further legal options for Rich to pursue his complaints about privileges: by arguing that Corrections Victoria had exercised a statutory discretion in bad faith and to convince his trial judge that his remand conditions meant that his trial would be unfair.
Rich took the second option, arguing before Lasry J – who has drawn the short straw of being his trial judge in the murder trial – that the computer situation (which has evolved somewhat since October) means that he cannot adequately defend himself at his murder trial (originally scheduled for March, but now set for July.) Rich naturally relied on his relevant rights in Charter s. 25(2). However, Corrections Victoria and the OPP argued that Rich was charged too early to have any Charter rights and Rich backed down on that:
In this matter solicitors for the accused had originally sought to contend that the Charter of Human Rights and Responsibilities Act 2006 (Vic) (“the Charter”) had application in this matter. Subsequently both Corrections and the Crown made submissions that the Charter does not apply in these proceedings based on the judgment of King J in R v Williams. Counsel for the accused in their written reply conceded that the Charter does not apply directly as a result of the provisions of s 49(2).
Nothing new there. But the case actually raises a number of interesting issues and I’ll deal with those in several further posts.