The rights of difficult defendants

A new (non-)Charter case, Devine & Legg v VCAT [2008] VSC 410, is the Supreme Court’s second foray into Victoria’s controversial laws on racial and religious vilification, which include this provision:

8(1) A person must not, on the ground of the religious belief or activity of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.

Note Engage in conduct includes use of the internet or e-mail to publish or transmit statements or other material.

In the first foray, in the better known Catch the Fires Ministry case, the Court of Appeal rejected a constitutional challenge to the legislation, primarily because it fell outside the scope of the implied right to political communication, but also because it was reasonably adapted to the end of religious tolerance. Doubtless, there’ll be a Charter challenge sometime in relation to freedom of expression, which lacks the scope issue. But not this case, which is instead concerned with the law’s enforcement procedure.

NSW residents Dyson Devine & Vivienne Legg are the authors of the now defunct, which contained numerous allegations of crime and corruption, including the claim that Ordo Templi Orientis, whose members follow a religion called Thelema, are pedophiles. Given their views – and tendency towards conspiracy theories – it’s perhaps unsurprising that they weren’t amenable to the conciliation process envisaged for complaints under the Victorian law. Nor, as it turns out, were they cooperative when the case moved to VCAT, refusing to respond to any part of the proceedings, although their angry comments on their website showed that they were well aware of them. Their non-compliance in some ways detracted from the force of Deputy President Anne Coghlan’s ruling in July last year that the Act had been breached, as Coghlan simply accepted the unchallenged evidence of OTO and never ruled on whether Devine & Legg had established the defence of good faith public interest commentary. Rather, the main substantive outcome was an order telling them to remove the offending words from their website.

The present matter arose because – surprise surprise – Devine & Legg didn’t follow the order. Where to from here? One option is for the DPP to charge them with the criminal offences in the Racial and Religious Tolerance Act, which carry up to six months in prison. But the other option was to bring a proceeding for contempt of VCAT:

137(1) A person is guilty of contempt of the Tribunal if they… (f) do any other act that would, if the Tribunal were the Supreme Court, constitute contempt of that Court.

(2) If it is alleged or appears to the Tribunal that a person is guilty of contempt of the Tribunal, the Tribunal may- (a) direct that the person be arrested and brought before the Tribunal; or (b) issue a warrant for his or her arrest in the form prescribed by the rules.

(3) On the person being brought before the Tribunal, the Tribunal must cause them to be informed of the contempt with which they are charged and thereafter adopt any procedure that the Tribunal thinks fit.

In October last year, VCAT Vice President (and judge) Marilyn Harbison ordered the arrest of Devine & Legg, who were brought from Coffs Harbour to appear before her on 27th November. As required Harbison informed them of the charge and set the hearing for the following day:

Her Honour: Now you understand that if I don’t remand you in custody, I can still proceed with the matter whether you’re here or not?

Mr Devine: Yes Your Honour, we probably think that would be the best thing under the circumstances since we don’t intend to defend ourselves. We wouldn’t be here now had we not been arrested.

Ms Legg: May I add something to that, Your Honour?

Her Honour: Yes

Ms Legg: The only thing I wanted to add was in regard to determining a prison sentence or whether this should be sentenced on us – I’m sorry, I don’t know the terminology, we would have arguments about naturally the merits of what we’ve done and thus whether we really deserve this but I see that falls under the same category as the other matter of whether we should have been charged in the first place but I would argue the merits of what we’ve done under those circumstances as to why we shoudn’t be treated as criminals.

Her Honour: Yes, thank you. Look, I’m not going to take up the invitation of the applicants to imprison them overnight. I don’t think it’s appropriate. I don’t think there’s anything to be gained. What I propose to do is simply to discharge the warrants. I have explained to the respondents, Ms Devine and Ms Legg, that I will deal with this matter of contempt. I will deal with it at ten o’clock tomorrow morning whether they are here or not.

 When – surprise surprise – neither defendant showed up the next day, Harbison, citing the necessity of enforcing VCAT’s authority, the need to signal that religious vilification will not be tolerated and the need to specifically deter the defendants from further breaches, sentenced them both to nine months imprisonment (i.e. three months more than the maximum for the offence of vilification, but less than a fifth of the maximum sentence for contempt.) The pair, re-arrested in early January, served a month-and-a-half in prison before apologising for the contempt and agreeing to take down the website.

On 21st February 2008, a week before their release, they commenced a judicial review proceeding in the Supreme Court, alleging that Harbison’s decision ‘breached the plaintiffs’ right to a fair hearing under the Charter’. Their main allegation, ‘the high point of the plaintiffs’ case’, was that VCAT should not have imposed a custodial sentence when the charge and sentence occurred in their absence. The relevant Charter right would seem to be this one:

25(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees- … (d) to be tried in person…

While it might seem obvious that this right has been breached, overseas decisions have held that defendant can waive this right, including by absconding. However, the English Court of Appeal imposed strict conditions on when a matter can proceed without the defendant:

1. A defendant has, in general, a right to be present at his trial and a right to be legally represented.

2. Those rights can be waived, separately or together, wholly or in part, by the defendant himself. They may be wholly waived if, knowing, or having the means of knowledge as to, when and where his trial is to take place, he deliberately and voluntarily absents himself and/or withdraws instructions from those representing him. They may be waived in part if, being present and represented at the outset, the defendant, during the course of the trial, behaves in such a way as to obstruct the proper course of the proceedings and/or withdraws his instructions from those representing him.

3. The trial judge has a discretion as to whether a trial should take place or continue in the absence of a defendant and/or his legal representatives.

4. That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented.

5. In exercising that discretion, fairness to the defence is of prime importance but fairness to the prosecution must also be taken into account. The judge must have regard to all the circumstances of the case including, in particular: (i) the nature and circumstances of the defendant’s behaviour in absenting himself from the trial or disrupting it, as the case may be and, in particular, whether his behaviour was deliberate, voluntary and such as plainly waived his right to appear; (ii) whether an adjournment might result in the defendant being caught or attending voluntarily and/or not disrupting the proceedings; (iii) the likely length of such an adjournment; (iv) whether the defendant, though absent, is, or wishes to be, legally represented at the trial or has, by his conduct, waived his right to representation; (v) whether an absent defendant’s legal representatives are able to receive instructions from him during the trial and the extent to which they are able to present his defence; (vi) the extent of the disadvantage to the defendant in not being able to give his account of events, having regard to the nature of the evidence against him; (vii) the risk of the jury reaching an improper conclusion about the absence of the defendant; (viii) the seriousness of the offence, which affects defendant, victim and public; (ix) the general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates; (x) the effect of delay on the memories of witnesses; (xi) where there is more than one defendant and not all have absconded, the undesirability of separate trials, and the prospects of a fair trial for the defendants who are present.

6. If the judge decides that a trial should take place or continue in the absence of an unrepresented defendant, he must ensure that the trial is as fair as the circumstances permit. He must, in particular, take reasonable steps, both during the giving of evidence and in the summing up, to expose weaknesses in the prosecution case and to make such points on behalf of the defendant as the evidence permits. In summing up he must warn the jury that absence is not an admission of guilt and adds nothing to the prosecution case.

It is, frankly, hard to see how Harbison’s proceeding satisfied these conditions. While Devine & Legg most certainly voluntarily absconded and, indeed, deliberately flouted the proceeding, it seems equally clear – and subsequent events clearly showed – that they could be brought back before the court relatively quickly (for a matter that has been running since 2005.) The hearing itself scarcely took a day and mostly consisted of witnesses adopting their statements, so it is unclear what would be lost by adjourning it until the defendants were re-arrested. The House of Lords, on appeal, rejected condition 5(viii) – the seriousness of the allegation – and held that ‘it is generally desirable that a defendant be represented even if he has voluntarily absconded’. This seems especially important given that Legg indicated that there were matters that could be put in relation to sentencing.

That being said, overseas courts have all upheld trials in abstentia in circumstances like this one. However, there are two crucial difference about this case. First, the defendants were not only tried but sentenced in abstentia, and both the New Zealand Court of Appeal and the European Court of Human Rights have specifically held that sentencing in abstentia is especially inapt under human rights law. Indeed, Victoria’s Magistrates’ Court Act was amended just two years ago to bar that court from ever imposing a custodial sentence when the defendant wasn’t present, with Rob Hulls stating in Parliament (while the Charter was being enacted):

[T]he government wishes to ensure that it is no longer a possibility given its inherent unfairness to the defendant.

Moreover, there’s a particular unfairness with adopting this procedure in relation to VCAT’s contempt powers. The VCAT Act provides for an appeal to the Court of Appeal against a conviction and sentence for contempt of VCAT. However, the VCAT Act also provides:

138(3) Despite anything to the contrary in Part VI of the Crimes Act 1958, as applied by subsection (1), the Court of Appeal does not have power to give leave to extend the time within which notice of application for leave to appeal may be given.

The reason for this draconian provision is unclear, but its effect is to bar all appeal rights altogether fourteen days after conviction and sentence, no matter how compelling the appeal would otherwise be. In Devine’s and Legg’s case, they irrevocably lost their appeal right on 12th December 2007, two days before they learnt of the VCAT orders (according to their unchallenged affidavits) and a week before copies of those orders were served on them. Instead, their only recourse was to apply for the hearing to be reopened on the grounds that they had a reasonable excuse for non-attendance – the fate of this unlikely application isn’t clear – or to apply for judicial review of Harbison’s orders in the Supreme Court. There seems to be n argument that s138(3) of the VCAT Act is incompatible with this Charter right:

25(4) Any person convicted of a criminal offence has the right to have the conviction and any sentence imposed in respect of it reviewed by a higher court in accordance with law.

(assuming that ‘in accordance with law’ includes – as is usual – the notion of the accessibility of any procedure.)

So, it seems to me that, all up, Devine & Legg, despite not exactly being poster children for the human rights movement, have some excellent Charter arguments to raise. Doubtless, their fate is largely caused by themselves. But, in contrast to vexatious litigants, vexatious defendants – especially vexatious criminal defendants – are an unavoidable problem that courts (and tribunals) have to manage very carefully. Devine & Legg would seem to have some terrific arguments that Harbison should not have proceeded with the November 28 hearing (and, indeed, that she made a terrible mistake in releasing them the day before.)

Alas, Justice David Beach held:

The Charter has no direct application in this case.

He went on to dismiss the application for judicial review, holding that VCAT was under no obligation to try or sentence defendants in their presence, once they had been duly notified of what would happen.

Devine and Legg will no doubt see the non-application of the Charter as another instance of the conspiracy of Freemasons and the like out to protect the supposed pedophiles of Ordo Templi Orientis. Alas, as readers of this blog well know, the real explanation is much more mundane and much more disturbing: Victorian judges simply cannot read. To be continued…

One thought on “The rights of difficult defendants

  1. Pingback: Gans Quote on Victorian Judges and the Charter | James5

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