In two previous posts on R v Rich (Ruling No 2)  VSC 141, I discussed how the Charter’s transitional provision on proceedings prevented the Charter from applying in that case and how Rich was able to rely on the common law to obtain a ruling that Corrections Victoria should pimp up his in-cell computer with the latest software. But there’s an incongruity between these two aspects of the ruling that was briefly addressed by Lasry J. After noting that both sides conceded that Charter s. 49(2) applied to the proceedings (and hence the Charter didn’t), he wrote:
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.
Let’s start with that last paragraph. Given that Lasry J’s ruling was entirely concerned with the conduct of Corrections Victoria (specifically the IT department of the Melbourne Remand Centre), how can he say that his orders were not made against that public authority? The answer reveals a quite fundamental gap in the Charter’s protections for Victorians awaiting criminal charges.Here are the ‘orders’ made by Lasry J in relation to Windows Vista:
87 Second, at this stage, I also do not propose to further adjourn the trial of the accused from the present date of 21 July 2008 by way of temporary stay. In my opinion, and subject to paragraphs 88-97 (below), under the arrangements as they stand or are proposed to be improved, the accused can obtain a fair trial. However, of course the matter remains under supervision and review.
…89 Fourth, however, there is a risk of unfairness to the accused if he does not have a reasonable opportunity to reconstitute the hard disk drives to which I have earlier referred as soon as possible to enable him to have access to the data and to instruct his lawyers about it, whether on the question of his financial affairs or on the issue of alibi. This conclusion should not be regarded as meaning that I consider the data itself to be integral to a fair trial of the accused. However, in view of what I am told, he must have the opportunity to peruse it and instruct his lawyers about it.
90 Fifth, that data should be reconstituted in the most efficient and timely way possible and if that involves the use of the software programs Windows Vista and Filemaker Pro 8.5, then they should be used. I consider the reasons offered by Corrections in relation to that software do not deal with the issue concerning me.
91 Sixth, if the reconstitution of the data does not occur promptly, I would then reconsider my conclusion expressed in paragraph 87 (above).
Technically, Lasry J made no orders at all. His sole order was that he wouldn‘t order a stay, i.e. a non-order.The rest of it was basically a threat: that he might make a different order if Corrections Victoria didn’t lift its game. This strange approach represents the common law of Australia when it comes to trial rights. Absent legislation or well-established common law doctrines, the courts won’t tell the executive to do anything when it comes to keeping a trial fair. Rather, they’ll only enforce the fair trial right in a negative way: by stopping the defendant from having an unfair trial. That’s OK as far as the separation of powers is concerned, because the only orders that are made are those that relate to what the court itself does or doesn’t do. Of course, if one ignores these formalities and looks at the practicalities of the order, we might beg to differ…
The flipside of this criminal trial approach is how fair trial arguments are dealt with in non-trial (i.e. civil) proceedings. Again, it’s worth going back to Hugo Alistair Rich’s earlier proceedings concerning his (non-)privilege or having an in-cell computer. In addition to rejecting Rich’s claim that Corrections Victoria was in breach of its own legislation and regulations, Mandie J also rejected Rich’s claim that Corrections Victoria was undermining his right to a fair trial. He did so in these rather surprising terms:
One thing is clear. The plaintiff has a fundamental right to a fair trial. That right is relevant to this proceeding in the sense that, if that right is found to be the only source of whatever arguable claim the plaintiff has to access to an in-cell computer, then it is not for the civil courts to protect that right and the plaintiff cannot resort to the civil courts for protection thereof.
In other words, Rich’s reliance on his rights is a barrier to his ability to sue Corrections Victoria for breaching those rights! Justice Mandie relied on a 1978 NSW judgment, Smith v Commissioner for Corrective Services  1 NSWLR 317 on a similar prison claim to adequate facilities for consulting with lawyers, which said:
The powers of the courts in their several criminal jurisdictions are wider and more effective than the powers to make the declaration of, and to make ancillary orders to enforce, a right, if it exists, in the way sought in proceedings such as the present. In particular, the powers and discretions of the judge who presides at a criminal trial…are more ample. Thus the judge who exercises criminal jurisdiction, prior to or at the trial, has the overriding duty to ensure that the accused has a fair trial…the judge has some overriding powers which impose on him a discretion, and indeed a duty, to do that which is fair to the accused. To ensure that the trial is fair to the accused, it is necessary that he be given a fair and reasonable opportunity to consult with, and instruct, his legal advisers, and to obtain their legal advice in relation to the charges against him. It is to be expected that, when an accused is confined prior to the trial, the authorities responsible for his custody will accord him this opportunity without the need for intervention by the judge or magistrate. If, however, they fail to do so, or if the accused or his legal advisers consider they have so failed, there are ample opportunities for them to seek the intervention of the criminal courts in exercise of the various powers of those courts. If the Court intervenes and gives a direction as to what is to occur prior to the trial, there are ample sanctions, if those charged with the custody were minded to disregard or neglect to obey the directions….
Quite apart from the wider powers and discretions of the courts exercising criminal jurisdiction, they are in a superior position to determine and direct what should be done, and when it should be done. They have ready access to the relevant circumstances which must include the nature of the charge and the demands of the pending trial. All the foregoing circumstances make it totally inappropriate to seek the intervention of the civil courts, in proceedings such as the present, or for the civil courts to exercise any discretion they have to intervene, even assuming the relevant right could be established.
So, because criminal courts are better suited than civil ones to dealing with these issues, civil courts should apply the discretion available to them to decline to give relief in judicial review claims that concern proceedings in the criminal courts. Now, this is certainly reasonable from a policy perspective. Indeed, in the UK, there is some well-accepted jurisprudence against this so-called ‘satellite litigation’ under the Human Rights Act 1998.
However, confining fair trial claims to criminal proceedings has some significant disadvantages from a Charter perspective. First, civil remedies – i.e. administrative law remedies like mandamus, injunctions, etc – are much more straightforward than the criminal remedy of seeking a stay (or related remedies like bail.) As I’ve argued elsewhere, criminal remedies are rarely aimed at illegality as such, but rather at the application of other standards, like fairness or the balance of justice. It’s arguable that, aside from exclusion of illegally obtained evidence, no criminal remedies fall with the Charter’s messy remedies provision, Charter s.39(1). Moreover, because the remedies are so discretionary, their application can be frustrated by a court that fails to give proper regard to Charter rights, something that courts acting judicially are free to do because of Charter s. 4(1)(j)‘s exemption of them from the definition of public authority. Neither of these problems arise in the UK, because courts are public authorities there and there is no restriction like Charter s. 39(1). These are Victorian problems (and ones that might be side-stepped if the dodgy s6(2)(b) argument gets up.)
This unique new situation in Victoria suggests that, at least since 1/1/8 when the conduct mandate kicked in, the premise behind the 1978 NSW decision – that criminal courts are more effective than civil ones at dealing with fair trial claims – is wrong. Surely, now, the strongest remedy a defendant in Rich’s position can seek is one that argues that Corrections Victoria has breached its obligations under Charter s. 38(1) to act compatibly with Rich’s right to a fair trial. On my (and Evans and Evans’s) reading of Charter s. 39(1), all the standard adminstrative law remedies can be applied in such an instance (assuming that no statute exempts Corrections Victoria from them), a position that is far less clear for criminal proceeding applications for a stay. In short, satellite litigation is now the best way to enforce Charter rights. So, doctrines like the 1978 NSW judgment that push people towards criminal process are a spanner in the works, making it especially hard for criminal defendants to get the benefit of their supposedly significant trial process protections under Charter s. 25.
For the next while, pushing people towards criminal proceedings for their remedies will be even worse for them, because Charter s. 49(2) will definitely prevent any such remedies for people (like Rich) who were charged in 2006 or earlier. Indeed, I think there’s good reason to think that Charter s. 49(2) should be interpreted as preventing civil remedies that are intimately related to such criminal proceedings, as otherwise the transitional provision will just be capricious. If that’s right, then even without the implied restrictions on civil proceedings, Rich still wouldn’t have been able to rely on the Charter in such proceedings to get his IT in order.