An Un-Chartered conviction

A development I have long feared has come to pass:  a guilty verdict in a Victorian criminal case has been upheld despite a Charter argument that might have led to an acquittal. This year, most criminal cases where the Charter has been considered have been interlocutory or collateral matters: bail, DNA sampling, proceeds of crime, trial process, etc. The one exception was DPP v Zierk [2008] VSC 184, where the Charter was held not to apply (and Warren CJ, of course, made it clear that she’d blow it off anyway even if it had) but the defendant was nevertheless acquitted on ordinary statutory interpretation grounds.

Not so in Howe & Ors v Harvey; DPP v Tinkler & Ors [2008] VSCA 181, where the Court of Appeal upheld five findings by the Magistrates Court of breaches of s26 of the (since repealed) Children and Young Persons Act 1989, which provided:

26(1) A person must not publish or cause to be published—

(a) except with the permission of the President, a report of a proceeding in the Court or of a proceeding in any other court arising out of a proceeding in the Court that contains any particulars likely to lead to the identification of— (i) the particular venue of the Children’s Court, other than the Koori Court (Criminal Division) and the Neighbourhood Justice Division, in which the proceeding was heard; or (ii) a child or other party to the proceeding; or (iii) a witness in the proceeding; or

(b) except with the permission of the President, a picture as being or including a picture of a child or other party to, or a witness in, a proceeding referred to in paragraph (a); or

(c) except with the permission of the Secretary granted in special circumstances in relation to a child who is the subject of a custody to Secretary order or a guardianship to Secretary order, any matter that contains any particulars likely to lead to the identification of a child as being the subject of an order made by the Court.


(a) In the case of a body corporate – 500 penalty units.

(b) In any other case – 100 penalty units or imprisonment for 2 years

The case concerned stories (arising in a chain of events recounted by Media Watch here) in the Herald Sun, Today Tonight and Sunrise to the effect that a 14-year old had ‘won a divorce from his mother… on the grounds of irreconcilable differences.’, accompanied by the usual blather about crazy authorities, spoilt brats and parents’ rights. The child had obtained a protection order from the Children’s Court under the then s84 of the CYPA (now s274 of the Children, Young Persons and Families Act 2005.)

Crucially, the various reports gave the child’s name and showed his photo, so it might seem a no-brainer that they breached s26. However, the Court of Appeal expressly ruled that s26(1)(a), at least, was ambiguous in one very relevant respect: does the ban only cover reports that identify the proceedings as Children’s (or related) Court proceedings, or does it extend to the situation here, where the reports only mentioned the outcome of the process and either didn’t mention the Children’s Court or buried it in a reference to ‘the authorities’.? The defendants pointed to numerous decisions elsewhere in Australia and overseas that read similar (but not identical) provisions narrowly, e.g. confining them to narrative accounts of proceedings or to photos while a proceeding was ongoing or to revelations that would have been understood by an ordinary member of the public. In each case, a narrower reading could arguably have meant that the various reports weren’t in breach of the section and, therefore, that the guilty verdicts were wrong.

It might also be thought that the defendants may gain little help from the Charter, because their rights are not the only ones at stake. Charter free expression is balanced against others’ rights, both internally and in two other express rights:

15(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria…

(3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary- (a) to respect the rights and reputation of other persons

17(2) Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

24(3) All judgments or decisions made by a court or tribunal in a criminal or civil proceeding must be made public unless the best interests of a child otherwise requires or a law other than this Charter otherwise permits.

However, the defendants drew on powerful arguments from the case-law to the effect that a narrow reading of s26 is the appropriate way to strike the balance.

Notably, in Clayton v Clayton [2006] EWCA Civ 878, the UK Court of Appeal gave a narrow reading to a provision that was similar to s26(1)(b) (confining it to ongoing procedures), on three grounds. First, that a decision by the relevant court on a case-by-case basis (available under inherent jurisdiction) was preferable to a blanket decision. (Victoria’s Children’s Court has the power to suppress individual proceedings, whether or not s26 applies, derived from the powers of the Magistrates Court.) Second, that a blanket, open-ended and ambiguous ban would fail the ‘lawful restriction’ test for limits on human rights, while a specific ban issued by the court in question would make it clear to everyone what publications were permitted.  Third, that the penal context – note that s26 carries a potential prison sentence – meant that ambiguities should be resolved in favour of a narrower reading of a criminal provision. These concerns are all familiar parts of human rights law that are routinely applied to resolve difficult conflicts between competing rights and interests and, indeed, the UK case was expressly concerned with the balance between free speech and children’s privacy rights.

So, actually, it’s surely a no-brainer that, at least in the resolution of statutory interpretation questions that the Victorian Court of Appeal considered ambiguous, close attention should be paid to cases like Clayton v Clayton pursuant to Charter s. 32:

32(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

Alas, no:

Clayton can be distinguished on the basis that the Court of Appeal was required to interpret the legislation consistently with the European Convention… In the instant case, it was not contended in oral submissions that the Charter of Human Rights and Responsibilities Act 2006 should be applied in interpreting s 26(1), so the same considerations do not apply.

Oh dear. I’m a little baffled by the reference to ‘oral submissions’. Did the defendants rely on the Charter in written submissions? If so, why don’t they count? But the problem is clear enough.

It’s not that two of the five defendants were corporations: the Herald and Weekly Times Pty Ltd and Channel Seven Melbourne Pty Ltd. It’s true that neither of these defendants have any Charter rights at all thanks to Charter s. 6 and the unfortunate view that giving rights to corporations facing prosecution and  fines would be ‘perverse’. Think what those evil media corporations do if they were given a right to a fair hearing? Those non-human monsters would surely ‘abuse’ it! Alas, the same cannot be said for the three human defendants: the respective editor, director and EP (snicker!) of the three publications. Despite being agents of corporate devils, they still have Charter rights. What an oversight. But nevermind…

Presumably, what actually stopped all of these defendants from raising the Charter was Charter s. 49(2), the Charter’s stupidest provision:

49(2) This Charter does not affect any proceedings commenced or concluded before the commencement of Part 2.

In this case, there’s no doubt that Charter s. 49(2) applied (so there was no need for the courts to somehow conjure up a broader transitional rule to avoid applying the Charter.) However, this case exposes in its clearest form the unfairness of Charter s. 49(2).

My critique of Charter s. 49(2) was published in the Law Institute Journal a few months back (complete with a gorgeous cartoon.) While part of the problem of Charter s. 49(2) is that its terms are ambiguous and, in parts, baffling (and frequently misread), the major issue with the section is that it is perversely overbroad, especially in criminal matters:

From this year on, Victoria’s courts will be reinterpreting the state’s legislation and providing remedies for public authorities’ failures to fulfil their new obligations under the Charter. However, proceedings captured by s49(2) will have to be conducted as if the Charter never existed. Parties, lawyers and judges alike will have to ignore, or even reverse, any transformations going on outside their courtroom, whether incremental or revolutionary, including potential changes to the criminal procedural law on bail, trial processes, sentencing and appeals. Presumably, some time in the next couple of years, two defendants in a Victorian court will have a bemused conversation about how their simultaneous trials for identical Victorian offences are nevertheless governed by significantly different legal systems.

Since I wrote that (in April, just as the present case was being argued in the Court of Appeal), the potential for the Charter to have any sort of dramatic effect at all on the legal system has dimmed somewhat. But, nevertheless, this case shows the cost I set out above.

If the Charter had applied, Clayton v Clayton‘s application of European human rights law would make it a major authority, rather than a reason to distinguish it. It is at least doubtful that the Victorian Court of Appeal would have decided (as it did) to construe many features of s26 as broadly as it did. For instance, the Court may not have so readily distinguished the many Australian decisions cited by the defendants that gave narrow readings to provisions like s26, confining them to revelations of information that an ordinary reader would have discerned and to narrative accounts of decisions. The Court may not have so confidently decided that a broad reading of the law ‘provides an appropriate balance between protecting children and promoting freedom of speech and open justice.’ The Court may not have so happily applied Victoria’s statutory intepretation rule requiring courts to prefer a construction that furthers a statute’s purpose over one that does not, in order to give the term ‘report of  proceeding’ as wide ambit to ‘protect’ as many children as possible (even though the Children’s Court could still protect all the children who needed it on a case-by-case basis).  And the Court may not have so readily decided to ignore the ‘rule of construction relating to penal provisions’ on the ground that ordinary rules can resolve any ambiguity.

In short, if the Charter had applied, s26 may well have been given a narrower reading that cleared some or all of the defendants of a guilty verdict and a fine. Instead, the new decision gives s26 (and therefore the new s534 of the CYFA) a wider scope than any similar provision in Australia (and, one suspects, the common law world). While the Charter will, of course, eventually apply to prosecutions under the new s534 of the CYFA, it seems to me that it is perverse, in the ninth month of the Charter’s full operation, to be construing ambiguous provisions with major human rights implications without reference to it and in a way that is at odds not just with overseas decisions, but local ones too.

A particular example of this perversity is the Court of Appeal’s surprising dicta that s26’s (and, therefore, the new s534’s) ban on identification may extend, not merely to identification to a general reader unfamiliar with the parties:

[W]e are inclined to think that s26(1) would be breached if the particulars which are published are sufficient to enable those who know a child (for example, his or her school friends or neighbours) to identify him or her as the child who had been involved in court proceedings, even though a general reader would not do so. It is, however, unnecessary to determine that issue for the purposes of this appeal.

This is an incredibly wide reading of s26(1) that would make it virtually impossible to provide any factual details at all about a particular decision of the Children’s Court. It belies the Court’s later claim that:

Section 26(1)(a) does not prevent debate about the power of the Children’s Court to make Guardianship to Secretary orders to deal with a child who has ‘irreconcilable differences’ with his parents. Proceeings under the Children and Young Persons Act 1989 must be conducted in open court, unless the Court makes an order to the contrarry. There is no restriction on publishing details of those proceedings…

A perusal of the UK case would have shown this for the nonsense that it is. In that case, a parent of the child in question, who claimed to be a moderate campaigner for father’s rights, wanted to use his experience (when kidnapping the child, natch) to make his case that the UK family court was procedurally unfair. While this free speech argument would doubtless be laughed out of a Victorian court, the UK court was quick to recognise that the right to free speech is at its most important when the views being expressed are distasteful to the authorities. For those overly swayed by the contents of the speech whose claim is being protected, note that the Court’s approach to s26 would also cover a Four Corners documentary following up the consequences of a Children’s Court decision on the people involved. Although s26 does provide for the President to allow such a publication, the President’s decision is exempt from the Charter’s obligations mandate (pursuant to Charter s4(1)(J)); the Charter also would not be available for proceedings that commenced before 1/1/2007 (pursuant to Charter s49(2)).

Despite the suppression-obsession of the current court – Justice Murray Kellam has the dishonour of having sat on both this case and the Court of Appeal’s dreadful Underbelly judgment –  I’d like to think that the court’s dicta will be overruled in a case where the Charter was in operation. And that raises a question of the propriety of the court making such statements at all in cases that happen to fall within Charter s. 49(2). For starters, it potentially misleads the media (for whom, presumably, the dicta was intended) about the law that will determine any prosecution for a publication that occurs today. Moreover, it may well be that the court’s dicta will only have a likely application in cases presently in the pipeline (that are also subject to Charter s. 49(2)). Given that potential confined operation, statements like these should not be made at all, as their sole effect would seem to be a prejudgment of current matters.

This is just one example of the problem caused by the staggered operation of the Charter that is required by Charter s. 49(2), where the law varies depending, not on when it is applied, but on when a proceeding was originally commenced. As I said in my LIJ article:

Other human rights statutes have been introduced without this degree of disparity. The UK courts developed a rule of reason for proceedings that fell outside their Act’s narrow transitional provision: the Act applies to post-commencement proceedings founded on pre-commencement event unless doing so will ‘produce an unfair result for one party or the other.’ This principle, drawn from both the common law and the fair hearing right that the Act itself promotes, requires an approach that varies according to the particular legal effect in question and the party relying on it. In civil trials involving pre-commencement events, the substantive law won’t change unless the relevant civil entitlement vested post-commencement. By contrast, in criminal cases, the defendant will typically be able to benefit from the full retrospective operation of the Act, as ‘[t]he prosecution does not have an accrued or vested right in any sense.’

There would be no unfairness whatsoever in changing the rules on interpreting s26 from those that applied when the offences were committed (and, indeed, when the defendants were convicted.) The prosecution has no legitimate interest in preserving convictions that would not be upheld if the same offence was committed now. (The state would have an interest if costs were to be awarded against it, so that’s a reason why costs should not be ordered.) The position is less clear, to say the least, for the defendants, who do have a legitimate claim to be dealt with no less favourably under the Charter than they would have been without it. Thus, it would have been wrong to have applied the Charter to the DPP’s appeals relating to a number of other individuals (journalists, TV presenters, etc) who were acquitted on the somewhat dodgy basis that they didn’t ’cause’ the offending material to be published. (Surely, they aided the publication?)

Obviously, I think that Charter s. 49(2) is a dreadful provision and ought to be reformed (if not just repealed.) But, in my LIJ article, I put forward an argument that the provision could also be cured… by the Charter itself!:

In any other year, this article would conclude with a presumably fruitless call for urgent amendment to s49(2). However, this year there is another option: s32 of the Charter, which requires courts to give all Victorian statutes a rights-compatible reading if possible and, in particular, permits them to consider relevant overseas precedents like those in the UK. While s32’s interpretation mandate clearly extends to the Charter itself, applying it to s49(2) would require a ruling that a provision that merely denies legal remedies for breaches of some people’s rights can be incompatible with those rights. Such an argument must overcome the considerable difficulty that the rights in Part 2 of the Charter do not include a general right to a legal remedy.

Using s32 to interpret “affect” in s49(2) as meaning “affect in a way that is unfair to a party to the proceedings” would also require further findings. Is s49(2) subject to s32 (rather than the reverse)? Does s49(2)’s capriciousness go beyond the “reasonable limits” on rights that s7(2) of the Charter permits? Is the UK approach consistent with the purpose of s49(2)? And is it a credible interpretation of the word “affect”? These are difficult issues, but answering “yes” to all four certainly isn’t out of the question. Applying s32 in this way – or, failing that, issuing a declaration of inconsistent interpretation with respect to s49(2) – would clearly be a bold step, but the reward for Victorians in general and litigants in particular would be tremendous.

Section 49(2) is exactly the sort of using-a-sledgehammer-to-crack-a-nut law that the Charter itself is supposed to prevent. While narrowing the section’s scope would be capricious, narrowing its effect in line with the UK approach would be the opposite.

I’ve got to admit that this argument, while in my view very attractive, struggles somewhat against the ‘considerable difficulty’ mentioned above. Evans and Evans argue that Charter s. 32(2), by allowing a court to take into account an international law ‘relating to’ a human right, permits courts to consider Article 2.3 of the ICCPR:

2.3. Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.

A nice argument, but I’m not sure that the words ‘relating to’ can bear it. An alternative is to focus on Charter rights that carry positive obligations. Perhaps Charter s. 15(2) – and in particular the implicit need to only limit expression with ‘lawful restrictions’ – is one of those. Perhaps.

In the meantime, Messrs Howe, Carey and McPherson join Rob Hulls’s happy list of criminals who couldn’t use the Charter successfully. And the Court of Appeal is free to continue its merry suppression of anything and everything. Between Hulls and the Court of Appeal, we may as well just suppress the whole Charter.

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