The Charter’s complex war on terror

Re Kent [2008] VSC 431 is the first Supreme Court Charter bail case since Kelly Gray became the first ever Charter beneficiary. Remember when judges were using the Charter to grant bail to people with long waits for their trials, without any care to the niceties of the statute’s application, notice, operative or remedies provisions?

Although neither counsel mentioned the Charter in his or her submissions and no argument based on its provisions was put, either by the applicant or by the Crown, the provisions referred to would appear to be highly relevant to the question of bail… If the Charter in fact guarantees a timely trial, the inability of the Crown to provide that trial as required by the Charter must have an effect on the question of bail. It would be difficult to argue that a trial which may well be not held until after the applicant had spent more time in Custody than he is likely to serve upon a sentence would be a trial held within a reasonable time. The only remedy the Court can provide an accused for a failure by the Crown to meet its Charter obligations in this regard (or to ensure that it does not breach those obligations so as to prejudice the applicant), is to release him on bail – at least the only remedy short of a permanent stay of proceedings.

Ah, but the Charter’s a tougher, much more negative statute these days:

The applicant was arrested and charged with the offences on 8 November 2005 and has remained in custody since… The applicant was placed on trial before Mr Justice Bongiorno on 4 February 2008… On 16 September 2008 the jury announced that it was not able to reach a unanimous decision in relation to the case of the applicant… The applicant has been remanded for retrial and that trial would be unlikely to commence before the middle of next year. He will have been in custody for three years on 8 November next.When application was first made to this court, reliance was placed upon the Charter of Human Rights and Responsibilities Act 2006. Notices were duly given. When the matter first came on for hearing on 7 October 2008, counsel for the applicant Mr J.V. O’Sullivan abandoned that argument. It would seem as a matter of statutory interpretation it was doomed to failure in any event.

Now, instead of judges raising the Charter themselves, lawyers do the raising, and then engage in some Foucaudian self-discipline, hurriedly disowning any reliance on human rights before a judge can tell them off for doing so. That of course doesn’t stop the judge from swatting the Charter away like an annoying mosquito, without even bothering to spell out what the problem is. 

Whereas Gray was charged late last year with a bog standard crime (aggravated burglary involving a baseball bat), Shane Kent was charged three years ago with the terrorist offences (achieved by providing a ‘resource’, possessing a ‘document’ and joining an ‘organisation’, all with the requisite links to a terrorist act, albeit not any act in particular.) These circumstances pose two apparent difficulties for terror defendants like Kent when it comes to relying on the Charter:

First, Kent is a federal criminal defendant. The Charter’s interpretation mandate doesn’t apply to federal statutes and its obligations mandate doesn’t apply to federal authorities. That being said, Australia’s constitutional arrangements do raise some interesting questions about the application of the Charter to the laws governing Kent’s prosecution:

  • Federal criminal law: The Commonwealth’s Criminal Code, like other federal statutes, is beyond the reach of the Charter’s interpretation mandate, which is limited to statutes ‘passed by the Parliament of Victoria’. But there’s a complication in this case, because the Commonwealth provisions, to the extent that they fall outside of regular federal constitutional powers, depend on a reference contained in a state statute: the Terrorism (Commonwealth Powers) Act 2003. Its referral is limited to a schedule setting out offences, including the ones Kent is charged with, and amendments to those offences. The Charter, of course, applies to the state statute, which raises some fascinating (if marginal) issues about the effect of a new interpretation rule on an existing referral statute. 
  • Federal criminal procedure: Kent is subject to a federal provision reversing the usual presumption in favour of bail and instead barring bail unless there are exceptional circumstances. Again, the Charter cannot directly apply to the federal statute. But query whether s68 of the Judiciary Act, a federal provision that ‘picks up’ state laws ‘respecting… a procedure… for holding accused persons to bail’ therefore picks up the Charter’s rights with respect to bail and relevant operative provisions giving those rights legal effect. Given that the interpretation mandate is limited to Victorian laws, I guess that it still can’t apply to the federal bail law. Likewise, the conduct mandate is limited to Victorian public authorities. The only such authority is, of course, the Supreme Court itself, but it is only bound in its administrative capacities. Is bail such a capacity? Anyway, the Cth DPP more or less conceded that the enormous delay faced by Kent – who has only faced one of his three charges to date, and the jury hung on that after a six month trial, and who won’t be retried to next year – was an exceptional circumstance under the Cth law.
  • State criminal procedure: As it happens, the Cth DPP’s argument that Kent shouldn’t get bail rested on a state law: a routine provision of the Bail Act 1977 (Vic), which bars bail if there’s an ‘unacceptable risk’ that Kent could skip bail, commit an offence or pervert the course of justice. That provision applies to Kent because of s68 of the Judiciary Act, but surely that section also picks up the Charter, including its interpretation mandate and whatever the Charter’s detainee and defendant rights have to offer? Does the meaning of what is ‘unacceptable’ vary when a person faces four years on remand? 

Are these complex and difficult matters what Justice Paul Coghlan was eluding to when he dismissed the Charter as a ‘matter of statutory interpretation’? Alas, probably not.

Instead, he was presumably referring to the Charter’s very worst provision:

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

This stupid provision, read literally, bars all of the Charter’s protections forever to any criminal defendant charged before 2007. That includes the application of the Charter to questions that arise long after the Charter’s commencement date, like the question of Kent’s bail following his failed 2008 trial on one of his charges. What possible justification is there for allowing Kelly Gray, charged late last year and requesting bail early this year, to rely on his Charter rights against delayed trials, while barring Shane Kent, charged three years ago and requesting bail right now, from relying on the exact same rights? Alas, ours is not to reason why, but instead to apply Charter s. 49(2) as a ‘matter of statutory interpretation’. 

But did Coghlan interpret Charter s. 49(2) correctly? There are three reasons why this ‘matter of statutory interpretation’ isn’t so simple when it comes to Kent.

  • affects’: Because Charter s. 49(2)’s impact is so ludicrous, I’ve argued that’s its key operative word -‘affects’ – should be read, consistently with UKHRA authorities on retrospective application, to be limited to vested rights. There are none, of course, in this case. Certainly, the prosecution has no such interest when it comes to Kent. As I’ve argued elsewhere, even if this isn’t the natural meaning of ‘affects’, there’s a neat argument that the Charter’s interpretation mandate should be brought to bear to give it such a meaning. The argument is especially compelling in delay cases like this one.
  • ‘proceedings’: The key word defining the scope of Charter s. 49(2) – ‘proceedings’ – is quite vague. If it refers to the entire criminal proceeding against Kent, then Charter s. 49(2) applies, because Kent was charged in 2005 (assuming, of course, that King J was right in R v Williams about the meaning of ‘commenced’ in this context.) But criminal prosecutions can be seen as broken into numerous smaller matters, such as bail applications like this one. If the bail application is itself a ‘proceeding’ under Charter s. 49(2), then it falls outside the provision’s scope, because it presumably commenced about a month ago, some twenty months after the commencement of Part 2. While I take the view that collateral proceedings are subsumed into the main criminal proceedings, it’d be nice if Coghlan actually resolved that unresolved question of statutory interpretation here, given that it is obviously germane to Kent’s application.
  • ‘or concluded’: The other, quite compelling, counter-argument is that the proceedings against Kent should be taken, for the purposes of Charter s. 49(2), to have restarted after his previous trial ‘concluded’ a couple of months ago. In that case, not just the bail application but also his entire coming trial would be governed by the Charter. Given the gross unfairness of Charter s. 49(2) when it comes to people facing lengthy and repeated trials, the sense of this interpretation is obvious, isn’t it?

In my view, none of these ‘matters of statutory interpretation’ are at all obvious. Not only should Coghlan spell out the stance he’s taking on each of these matters, but he should have refrained from making any conclusory statements about the Charter’s application in this circumstances. It’s true that Kent’s lawyers dropped their reliance on the Charter, but it’s not clear to me that that relieves Coghlan from assessing whether or not the Charter applies and its legal effect in this case, especially when Charter s. 35 notices have been issued. And what a pity that the Attorney-General didn’t intervene to point out all these arguments to Coghlan? Again, you have to wonder what the point of Charter s. 35 is if a judge confronting difficult questions of statutory interpretation is left without the claimed benefit of high quality advice from the Attorney-General, and is led into an apparent error of thinking that the questions are straightforward.

The saving grace, of course, is that Kent got his bail anyway, by virtue of the fact that all of his alleged terrorist buddies are either in prison facing likely very lengthy sentences, or have been cleared of the charges against them. (You’d have to wonder too why the control order regime wouldn’t be an answer to the claims of unacceptable risk.) But the fact that Coghlan’s glib and smug analysis was harmless in this case doesn’t answer the grave concerns that judgements like this raise about the capacity of the Supreme Court to correctly apply an important new statute that could be quite important in cases such as these.

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