The Charter vs Mokbel’s trial

Sunday’s Age has an article on the Charter that, for once, isn’t about the broad question of whether human rights should be protected, but instead the details of how the Charter works. The article’s hook is the coming trial of Tony Mokbel, now that the relevant law appears set to switch from Greece to Victoria.

The article discusses Mokbel’s prospects for parlaying his notoriety into an argument that trying him at all will breach this Charter right:

24(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 article presented a variety of seemingly opposing views:

Mr Bagaric said Mokbel could argue he could not receive a fair trail under this provision.

Barrister Ben Ihle, who acts for both the prosecution and defence, agreed that Mokbel — who has a claim before the European Court of Human Rights but is expected to soon return to Australia after Greece’s justice minister Sotiris Hadjigakis last week approved his extradition — could use the charter’s fair trial argument successfully. “There might be some merit in that — you’d be hard-pressed to find a Victorian that doesn’t know the name Tony Mokbel,” Mr Ihle said.

But Melbourne Law School Associate Professor Jeremy Gans, who writes a blog on the charter, said it was unlikely a court would agree a fair trial was impossible. Courts were more likely simply to delay the trial until Mokbel’s notoriety faded.

It’s not clear to me that the three of us  disagree, though I do seem to be the only one willing to make the actual call. In brief, here are the barriers to Mokbel avoiding trial because of this Charter:

First, as I mention in the article, a permanent stay is only necessary if other remedies don’t suffice. Apart from delaying the trial, there’s also mechanisms such as a change of venue or jury directions. Maybe Justice King can just ban Mokbel’s name from the press for a few years. I think we can more or less assume that Underbelly will be limited to Victorians who are willing to either breach Nine’s copyright or pick up the DVDs interstate.

Second, the common law already requires a court to stop a trial that cannot be fair, including because of a prejudiced jury. It’s not at all clear that Charter s. 24(1) is any tougher than that.

Third, even if the Charter is tougher than the common law, it can be argued that the common law is a reasonable limit on Charter s. 24(1) that satisfies the test in Charter s. 7(2).

Fourth, even if the common law is unreasonable, Mokbel will either need to identify a statute whose terms are amenable to re-interpretation in a way that would give him a stay in these circumstances or a Victorian public authority whose conduct can be identified as infringing his rights to an impartial trial. Remember that the court doing Mokbel’s trial isn’t a public authority (so its conduct count, unless the long-shot s6(2)(b) argument wins the day.)

Fifth, even if such a Victorian public authority can be identified, there must be no laws that make it reasonable for the public authority to do whatever it did.

Sixth, even if that condition is satisfied, Mokbel will have to find a Victorian law that provides a permanent stay as a relief or remedy for unlawful conduct of that particular sort in his particular circumstances.

Seventh, he will also have to overcome any effect of the Charter’s overbroad transitional provisions. He has the good fortune of being charged after the 1/1/7 cut-off date, but any conduct he identifies as breaching his rights will have to have happened this year.

Good luck with all that, Tony.

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