Burnside on Mokbel

Alongside letters to the editor furious at the anti-lawyer comments made by some (not me) in last week’s Sunday Age article, today’s Age publishes an OpEd from Julian Burnside stating the bleeding obvious point that Mokbel is gonna be tried, notoriously or otherwise. Speaking of the contrary argument put by Bagaric et al in the Age:

It is interesting to note that the people who advance this argument are generally people who oppose the charter of rights for other, unrelated reasons. The theory seems to be that if you can point to the charter producing incongruous results, it would be better not to protect rights at all. But that argument has two basic flaws. First, it implies that the right to a fair trial originates in the charter. Second, it suggests that publicity will make a case untriable, and result in a defendant being set free without a trial. Both points are wrong.

He’s certainly right about the second point. He cites the obvious counter-examples (Gallagher, Glennon, Dupas- not Carl Williams?) and the remedies of delay (which I also mentioned last week), moving the trial (Thomas Towle? – try Mokbel in Mildura!) and jury directions. He forgets suppression orders. I wish we all could. It’s hilarious that, after going to all that trouble to ban the colour and drama of Underbelly, its sequel is being played out live on television – every leg of Mokbel’s long-haul flight from Greece – at the very moment that Goussis’s jury are poised to go into deliberations about the very same murder that Mokbel is being extradited on to face charges. Is the jury sequestered? If not, why hasn’t Justice King suppressed the nightly news? Or ordered that Mokbel be given a new name or just flown back to Greece?

But the first of Burnside’s points – about the overlap between the common law and the Charter –  is a dangerous oversimplification. It’s true, of course, that Mokbel would have been able to make a similar argument without the Charter. However, while that lets the Charter off-the-hook regarding Mokbel, it also risks letting judges off-the-hook regarding Victoria’s law on fair trials. The Charter’s ss 24(1) and 25(2) don’t have their origins in the common law, but rather in the international law of human rights. While both using the same term (or slogan?), the two concepts of fairness may well be quite different. The common law’s right is shaped by centuries of common law, including the recent work (good or otherwise) of Australia’s High Court. The Charter’s right, by contrast, is shaped on decades of interrnational and comparative law.

More crucially, the common law’s right has always been – first and foremost – a right to have a trial according to law. Courts who enforce the common law’s fair tial right keep an eagle eye out for errors of law or bad behaviour by the players. What this excludes is that the law itself may be wrong. As I’ve argued elsewhere, Australian courts – notably the High Court – have angrilly dismissed the idea that a valid law can make a trial unfair. Here’s what they said when a defendant argued that his trial was unfair because of NSW’s rape shield law:

Brennan CJ: However you describe it, the proposition is: because it is according to law, it will not be a fair trial?
Mr Bodor: Yes.
Brennan CJ: How can that be?
Mr Bodor: Because the evidence is available which demonstrates that any attack, if I can call it that, upon the complainant must be incomplete, it cannot be assessed in its true context, in its true light.
McHugh J: But that overlooks the view that Parliament took a considered decision. They were not lacking people when this legislation was introduced to warn those who had the carriage of this matter as to what the result of this sort of legislation could bring about, but Parliament went ahead and legislated. That being so, how could a trial be regarded as fair [sic unfair] when the Parliament has said this evidence has to be excluded?

And this:

Mr Kintomanis: If Parliament was to reintroduce the Test Act and deprive Roman Catholics of certain privileges like giving evidence in court, so if you were stuck with a Roman Catholic witness you would be in difficulties, one could not say that there would be a fair trial.
McHugh J: Why not?
Kirby J: It seems very unfair to me.
Brennan CJ: I think your time is up, Mr Kintominas. You are saved by the bell perhaps.

But he wasn’t saved by the bell. Brennan and McHugh were so disturbed by the suggestion that a law can make a trial unfair that they refused special leave just to make sure that the idea was given no oxygen:

To grant special leave would be to elevate to the level of arguability the proposition that a court may decline to exercise its jurisdiction to try a criminal case because it forms the view that a law enacted by the Parliament is unfair.

They certainly take their job seriously, don’t they?

Now, to be sure, the Charter doesn’t allow a court to decline to exercise its jurisdiction either. But it does require courts to re-interpret legislation, where possible, to be compatible with rights and also to make declarations when they can’t. If the idea that Charter ss 24 & 25 do no more than re-state the common law takes root, then these powers will not be exercised against statutes that are regarded as doing no more than embodying the common law. That’ll be cause for celebration only for those Charter opponents who, in their opposition to judicial activism in develping and enforcing Charer rights, somehow miss how much of Victoria’s common law is subject to that same activism, both good and bad.

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