Charter not applied again!

This Friday’s judgment in R v Rich (Ruling No 2) [2008] 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.

2 thoughts on “Charter not applied again!

  1. With respect, it appears to me that Counsel on behalf of Hugo Rich made an unnecessary concession on 2 May 2008 in R v Rich (Ruling No. 2) [2008] VSC 141 parts of which I take the liberty of reproducing hereunder.

    “Charter of Human Rights and Responsibilities

    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).

    However, that was not quite the end of the matter so far as the accused was concerned. In the written submissions (though not pursued in oral submissions) it was asserted that the Charter applied to Corrections Victoria and has done so since 1 January 2008. It was put that Corrections are acting unlawfully by preventing the accused from properly preparing his trial and instructing his legal representatives, and reliance was placed on s 38.
    The concluding submission was that the Charter applied to the accused to the extent that it makes unlawful conduct of public authorities which is incompatible with a human right or failing to give proper consideration to a relevant human right.

    I am considering the question of whether or not a temporary stay should be granted in the criminal proceedings brought by the Crown against the accused. The accused has conceded that the Charter does not apply on those issues. I have already made clear that Corrections, although a participant in the proceedings, is not a party against whom I would propose to make any orders and I therefore do not propose to resolve any questions raised under Division 4 of the Charter”.

    The decision of Betty King in R v Carl Williams [2007] VSC 2 turned on section 49 (2), of the Charter of Human Rights and Responsibilities Act 2006 (Vic) which provides:

    “This Charter does not effect any proceedings commenced or concluded before the commencement of Part 2”.

    It was clear in the case of Carl Williams that any relevant proceedings were commenced before 01 January 2008 [when Part 2 came into force], but it appears to me that Rich’s case can be distinguished from that of Carl Williams.

    When an accused is charged with a crime, the proceedings as first commenced are between the informant and the accused and proceed very much as if a civil matter until the committal. The case law makes this clear.

    After the committal, the proceedings in relation to an Indictable offence become a “Plea of the Crown” only when the Crown Prosecutor [in Victoria a Statutory Office, and an appointment conferred pursuant to the provisions section 31, of the Public Prosecutions Act 1994 (Vic)] has filed a Presentment.

    In Victoria, this traditionally occurs only after the Office of Public Prosecutions has forwarded the file to a Crown Prosecutor; all matters have been considered and the matter is getting ready for trial. Pursuant to section 4, of the Crimes (Criminal Trials) Act 1999 (Vic), the presentment should be filed 14 days before the first directions hearing.

    It is not unusual for the Presentment to be filed, just as the accused is brought before the Court for the first arraignment. I say “first arraignment” because section 5, of the Crimes (Criminal Trials) Act 1999 (Vic) provides that:

    “(1) The court may, between the filing of the presentment and the day on which the trial is due to commence, from time to time on the application of a party or of its own motion conduct a directions hearing.

    (2) At the beginning of the first directions hearing each count in the presentment must be read to the accused and the accused asked to plead to that count”.

    These provisions in Victoria allow the Court to hear all the preliminary arguments before the jury is empanelled. The accused is arraigned [asked to plead] at the first directions hearing because that is when a large body of established case law says the trial commences and the provisions are designed to ensure that all the preliminary arguments and rulings are part of the trial. The accused is thereafter again arraigned in front of the jury.

    The point is that for the purposes of section 49(2), of the Charter the “proceedings” by way of trial against Rich only commenced when he was first arraigned and if that was after 01 January 2008 then the Charter applies to his Trial.

    This is subject of course to those provisions set out by Betty King in R v Williams (Carl) which say that,

    “the rights established within part 2 of the Charter are not absolute rights, as has been submitted by the defence, but are rights that may be limited by the general limitation established in section 7 of the Charter. In the second reading Speech the Honourable the Attorney-general stated:

    ‘Part 2 reflects that rights should not generally be seen as absolute but must be balanced against each other and against other competing public interests. Clause 7 is a general limitations clause that lists the factors that need to be taken into account in the balancing process. It will assist courts and government in deciding when a limitation arising under the law is reasonable and demonstrably justified in a free and democratic society. Where a right is so limited, then action taken in accordance with that limitation will not be prohibited under the charter, and is not incompatible with the right.

    Further in the explanatory memorandum under the heading Part 2 – Human rights, it is stated:
    ‘The Charter provides a general limitation clause in clause 7. it is described in further detail below. It is one of the key provisions in the Charter. This clause recognises that no right is absolute and that there may be various limitations imposed on any right. In addition, specific limitations sometimes apply in relation to a particular right, as provided in the specific clause outlining the right to be protected’”.

    This is what happens when Roman Catholics draft a Human Rights Charter and determine that it shall not be incompatible with Roman Catholic Law and Doctrine. The retiring Roman Catholic Chief Justice of the High Court of Australia, Murray Gleeson AO repeatedly said in his speeches and judgments that “no right is absolute” seeming to ignore the fact that if it is not absolute, it is not a right.

    The appointment of the new Roman Catholic Chief Justice of the High Court of Australia Robert French means that we can expect more of the variable, relative morality of Roman Catholicism where everything is judged on a case-by-case basis and decided where in the “basket of evils” the Greater Good lies.

  2. King J’s reasoning in Williams clearly opted for the proceedings commencing with a ‘charge’, not an ‘arraignment.’ Maybe she’s wrong. Bongiorno J in the Benbrika cases seems to agree with you. My question is why Charter s. 49(2) is necessary anyway and what ‘affects’ means (or ought to mean.) Note that Part 2 commenced on 1/1/7, not 1/1/8. You’re not alone in getting that one wrong.

    As for the origins of Charter s. 7(2), they aren’t local to Australia but come from the jurisprudence of Israel’s and Germany’s top national courts and in the text of Canada’s Charter. That’s quite a mix of religions.

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