The Charter in passing

After midday on 22nd February 2006, four or so months before the Charter was enacted, Peter Kokkios took a walk through Richmond’s public housing estate, not far from where I live. He was approached by a short skinny man and a tall fat one – that rules me out! – who asked him for a cigarette. When Kokkios said no, the next request was for his $1800(!) Tag Heuer watch, a request backed up by a syringe produced by the skinny guy. After taking a further $50 from Kokkios’s pocket, they ran off, with the taller one shouting ‘Come on Ant!’. Who was this ‘Ant’?

Mr Kokkios recalled that the skinny man had bloodshot and baggy eyes along with bad skin and bad breath. Mr Kokkis recalled that he was about 5 feet 10 inches tall and his hair, which was slicked or combed back, was black. He recalled that the skinny man looked European – Italian or Greek – was clean shaven, had brown eyes, a very long and skinny face and was approximately 20 to 25 years old. He recalled that he was wearing a red top and black ‘parachute’ tracksuit pants and a red T-shirt.

The next day, Kokkios identified Antonio Falcone from a photoboard. Falcone’s alibi wasn’t the best. He said that he went with his mum to the Commonwealth bank on nearby Bridge Road to get some money out, but left empty-handed when it turned out his account was in the red. A computer record showed that his discussion with the bank happened at 11.40AM. The disappointed pair went home. A couple of hours later, Falcone pawned some of Mrs Falcone’s jewelry. He denied having entered the housing estate that or wearing red or black clothing.

At Falcone’s trial for armed robbery, late last year, the deliberating jury had the following question for the trial judge:

If we find that we can place him at the scene, but believe he is not the man with the syringe, can we still find him guilty?

The jury’s question probably arose because of the account of Raglus, another possible eyewitness, who said he saw two men eyeing off a flash car near the housing estate close to midday. The witness also identified Falcone from a photoboard, but said that it was the other taller guy who was wearing red and black. After consulting both counsel, the trial judge responded:

If you find that the accused man wasn’t the one with the syringe, then you must have a reasonable doubt about the identification made by Mr Kokkios as identifying this accused man because he gives no description of Man No. 2 other than broader and bigger than Man No. 1. So if you were to reach this position then you must look at what’s left before you in the case and that’s the evidence of Scott Raglus and what you make of that, the evidence of Mr Trojan the man at the bank and what you make of that, the evidence of Mr Falcone and Detective Senior Constable Roberts and finally what the accused man had to say during his interview with the police. So that’s how I’m going to answer your question and I’ll otherwise ask you to return to the jury room and if there’s anything else that I can assist you with, please let me know

I’m not convinced that this is actually what the jury wanted to know. This account is directed to whether or not the evidence could support a finding that Falcone was the other man. But I suspect that what the jury really wanted to know was whether you could still be guilty of armed robbery even if you weren’t the one carrying the syringe. Because of the doctrine of ‘acting in concert’, the answer is, almost certainly, yes, as the trial judge had earlier directed them. Three days later, the jury convicted Falcone of armed robbery. In R v Falcone [2008] VSC 225, the Court of Appeal overturned Falcone’s conviction and ordered a new trial. The reason was that the Crown’s sole theory presented in the trial was that Falcone was the guy with the syringe. Australia’s common law doesn’t allow a new factual theory to be introduced without the defendant having a chance to respond. So, the trial judge should, instead, have answered ‘no’. 

This mundane, if somewhat depressing, procedural error yielded the following Charter remark from Vickery J, writing the judgment for the court:

The right to a fair trial is an essential safeguard of the liberty of the individual under the law. It finds expression in Article 14 of the International Covenant on Civil and Political Rights 1966 and is reinforced by s 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

This is a ‘passing mention’. I complained about this practice back in February, during the (in hindsight) happy era when the Supreme Court’s jurisprudence was characterised by feel-good vagueness, rather than the misreadings and lousy analysis that soon rose to the fore. It is to be distinguished from both the outright sloppiness of approaches like Bongiorno’s and Lasry’s (amongst other reasons, because the Charter wasn’t applicable in Falcone’s case due to Charter s. 49(2)) and also the helpful approach of Neave and Warren (who mentioned the Charter to indicate what difference it may make in the future.) Rather, Vickery’s approach is similar to the dull jurisprudence of the ACT Supreme Court on its HRA, where the Charter is seen as, in some vague and unimportant way, restating the existing law. It’s worth recalling why this is a lousy practice.

Actually, Vickery’s passing mention gave me a distinct sense of deja vu and it didn’t take me long to work out why. In the second Underbelly case, the same judge also discussed the right to a fair trial, quoting worthy High Court judges from the good-old pre-Gleeson days and then noting that the right is ‘reinforced’ by s24 of the Charter and ‘also reflected at international level’ by Article 14 of the ICCPR. At the time, I thought that Vickery’s Charter mention might have influenced him to a more sensible ruling than the Court of Appeal had managed on Underbelly, but it now seems that Vickery’s Charter mention was probably just a pro forma reference, the sort that my law students use all the time, some in the mistaken belief that it gets them ‘comparative law analysis’ brownie points, the others because they are trained to feel uncomfortable at stating any legal principles without a citation to something. As I always tell my class, mentioning a case or a statute in brackets after every point of law is bad analysis, as it doesn’t explain how the authority provides support for the legal claim and often brushes over differences between the legal claim and the authority in question.

In February, I noted that pointless passing mentions, by giving the false impression that the Charter has played a role in the analysis, may lead to other interstate courts starting to distinguish or ignore Victorian jurisprudence, even if it was otherwise persuasive or even fell within the doctrine of comity. I also complained that it contributes to the poor practice of paying inadequate attention to the Charter’s operative provisions. Saying that s24 ‘reinforces’ the common law fails to note that, once the transititional provision is dodged, it actually introduces two new rules: one on the interpretation of statutes, the other on the obligations of public authorities. (There’s also arguably a third based on the murky s6(2)(b).) ‘Reinforced’ is accurate, but imprecise.

But my real problem with Vickery’s ‘reinforced’ formulation, combined with the ‘finds expression’ formulation with respect to the ICCPR, is that it gives the false impression that the common law fair trial right and the ICCPR and comparative (and hence Charter) right are identical. There’s no reason to think that. Rather, it may well be that the Charter’s notion of fairness is different to the common law’s. Despite their similar terminology, the two doctrines are the product of different legal developments, with the common law’s gradual development (and recent ossifying) being somewhat different to the more modern legal developments from global human rights law. One way of putting it is that Australia’s common law is the High Court’s baby (for better or, more recently, for worse), whereas the Charter isn’t tied to the High Court’s approach. 

Indeed, Vickery’s assumption that the Charter and the common law are identical when it comes to the issue he was considering is belied by the terms of Charter s. 25(2)(a):

25(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees- (a) to be informed promptly and in detail of the nature and reason for the charge…

There’s an argument here that Falcone’s entitlement to notice of the precise case against him might need to be given well before the trial itself, something the common law doesn’t presently require. If judges just think of the Charter’s criminal procedure rights simply in terms of ‘fairness’, then they’ll miss these sorts of subtleties. Given the miserable analysis to date in cases where the Charter does apply, I think it’s important for judges (and law students) to make sure that every Charter remark they make is not merely accurate but also precise. Otherwise, it’s best not to mention the Charter at all.

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