Transition in Indonesia

bali-bombers-executed-herald-sun_1226226932385Indonesia enacted its human rights law in 2000 and its constitutional court began operation in 2003. Its very first decision was to declare unconstitutional the retrospective application of Indoensia’s anti-terror laws to the Bali bombings. More recently, it issued a ten-year moratorium on the death penalty. And, today, the Bali bombers Amrozi, Mukhlas and Imam Samudra, who were convicted under Indonesia’s anti-terror laws, were executed for their crimes. It’s a case study of how transitional issues can cause a human rights law to go awry. Such issues, in a much less extreme form, also bedevil Victoria’s Charter.

SIx days after the Bali bombings, Indonesian President Megawati Sukanoputri issued an emergency decree setting out new terrorism offences. The Indonesian Legislative Assembly confirmed that law, as well as a further emergecy decree stating that the terrorism offences could be used against the Bali bombers. Various Bali bombers were soon convicted and sentenced to death. All of them raised constitutional objections to their trial and convictions based on this provision of the Indonesia’s Bill of Rights:

Art 28I(1) The rights to life, to remain free from torture, to freedom of thought and conscience, to adhere to a religion, the right not to be enslaved, to be treated as an individual before the law, and the right not to be prosecuted on the basis of retroactive legislation, are fundamental human rights that shall not be curtailed under any circumstance

This provision is clearly relevant to the Bali Bombers, who were convicted under a law passed six days after the bombings and whose life is very much at stake.

Article 28I(1) covers the ground of a number of  Charter rights, including:

9 Every person has the right to life and has the right not to be arbitrarily deprived of life.

27(1) A person must not be found guilty of a criminal offence because of conduct that was not a criminal offence when it was engaged in.

(4) Nothing in this section affects the trial or punishment of any person for any act or omission which was a criminal offence under international law at the time it was done or omitted to be done.

The omission of an equivalent to Charter s. 27(4) in Indonesia is controversial, given the repeated claims of human rights abuses by former regimes. The Bali court trying the bombers all rejected the bombers constitutional arguments, on the basis that the bombings were offences against international law and that in any case they should be limited in accordance with an Indonesian Constitutional provisions concerned with respecting the rights of others, which could be regarded as roughly similar to Charter s. 7(2).

However, when a lesser participant in the bombings – Maskyur Abdul Kadir – took his conviction for pariticpating in the bombings to the Constitutional Court in 2004, the Court, in a 5-4 decision, construed Art 28I(1) according to its literal terms and declare Indonesia’s terrorism law unconstitutional in relation to its retrospective effect, including to the Bali bombings. Since 2004, all prosecutions in relation to the Bali bombings have since been conducted under the existing Criminal Code, covering offences like murder and using explosives (which still carry the death penalty.) There would seem to be no cogent objection to retrying the people already convicted – including  Amrozi, Mukhlas and Imam Samudra – under those laws.

So far, so straightforward. But then things get weird. And deadly. Continue reading

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. Continue reading

Lost in transition

On October 3rd, Carolyn Evans spoke at the annual ‘Protecting Human Rights’ conference about the Charter litigation to date and pointed out Victorian judges’ and tribunal members’ troubling inability to get a simple date right when reading Charter s. 49(2), a matter that this blog has given a lot of attention. The day before, the Charter’s appalling transitional provision was being debated in the Supreme Court, in a hearing enhanced by the Attorney-General’s intervention. And, just one week later, another misreading for Evans’s list, in Devine & Legg v VCAT [2008] VSC 410.

Readers of this blog will know Charter s. 49(2) by heart:

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

And here’s what Justice David Beach had to say about the application of the Charter:

The Charter has no direct application in this case. The VCAT proceeding was commenced and concluded prior to the operative commencement date of Division 3 of Part 3 of the Charter. This proposition is not contested by the plaintiffs. The plaintiffs now rely on the decisions of Tomasevic v Travaglini and DPP v TY (No.3) as authority for the propositions that the rights in the Charter “apply in substance” prior to the Charter’s commencement date by “operation of international law on Victorian law directly”. Whilst the Attorney General contends that this is an over-simplification of the principles expressed by Bell J in Tomasevic, the Attorney General accepts that the body of international covenants from which the relevant rights in the Charter are drawn may be used as an interpretive aid and, in appropriate cases, as a relevant consideration in the exercise of judicial powers and discretions. Further, there is no issue between the parties that the common law has long recognised a right to a fair trial.

This is, for what it’s worth, a new wrinkle in the sad history of misreadings of Charter s. 49(2): instead of simply wrongly assuming that Part 2 commenced the same time as Divisions 3 and 4 of Part 3, Beach just replaces the words ‘Part 2′ with “Division 3 of Part 3’. The result is the same: the reach of the Charter’s appalling transitional provision for proceedings is extended by a year. It’s true that, unfortunately, Devine & Legg (or, more precisely, Victoria Legal Aid) apparently joined in the error. But why on earth didn’t Beach listen to the Attorney-General, who intervened as of right in the proceedings under Charter s. 35 just so the Supreme Court wouldn’t be misled by bad lawyering?

Now, some people will say that Beach J still got the right result. After all, didn’t the VCAT proceedings over racial vilification commence in 2005? Well, they did, but that wasn’t the matter before Beach. Continue reading

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.

Penalty:

(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. Continue reading

Hulls’s Charter report card

Rob Hulls, acting premier, deputy premier, A-G and founding father, came to speak at Melbourne Law School today. Alas, the students were not hanging from the rafters as they do for Kirbs. And more’s the pity because, much to my surprise, Hulls is a gifted speaker and, moreover, had plenty of interesting things to say. That may well not be news to people who know him, but I’ve never heard him speak before outside of head-kickin’ soundbites on the news. And, call me jaded (really!), but I’m used to politicians just blabbing out a bunch of mundane political-feed-good-speak, scribbled out by some bored public servant the day before. Yes, I’m talking about you Rob McClelland. (I’m judging that by the media releases he sends me. Maybe you just have to be there.) For that matter, most of the things I read these days, purportedly written by Hulls, are some pretty turgid and defensive statements of compatibility.

So, it was great to hear him describe his journey from law school to acting premier, via Queensland. And it was frankly inspiring to hear his commitment to improving the justice system. It was the latter that brought me to his speech, hoping to hear some tidbits about Justice Statement 2: Electric Boogaloo. He mentioned some new lists for courts (mental health) and the unification of the court system. I thought at first that that meant shifting VCAT to the old magistrates’ court building (which it probably does), but it also apparently means having a single statute for all of the courts. (Big new statutes are defintely not music to my ears, although that one does sound like a great idea.) And lots and lots of ADR – appropriate dispute resolution. Aw.

Anyway, the Charter got a relatively brief mention as one of his achievements, with him emphasising how its main aim is to restrain the executive. (No mention of the parole boards!) And a student asked Hulls about the chances of economic and social rights being introduced after the 2011 review. Hulls’s answer: nope. Basically, it won’t happen unless there’s bipartisan support for the Charter, and we’re a long way from that. Indeed. (Strange that he didn’t mention the federal charter either, which surely is a factor).

But there was one last comment he made that I want to explore a touch. He noted that there are still ‘doomsayers’ who predict that the courts will become clogged with Charter litigation and that criminals will roam the streets. His response was to note, as a positive thing, that the Charter has not yet been raised successfully by any criminal defendants. Is that true? It depends on your definition:

  • There’s Kelly Gray from Echuca, who got bail from Bongiorno J back in January, on the basis of his Charter right to a guarantee of a trial without delay. I’m not sure why he doesn’t count: perhaps because he didn’t raise the Charter (Bongiorno did), perhaps because Bongiorno more or less ignored the whole of Part 3 to give him bail.
  • There’re at least two more Charter bailees, Qang Hung Pham and  Zlate Cvetanvoski, reported in the media in the Magistrates’ Court. Surely they count? Or is Hulls only talking about cases where Charter s. 35 notices were issued (i.e. Supreme and County Court cases?) For all I know, there’ve been hundreds of these cases.
  • And what about the brothers Mirik? It’s true that the court didn’t apply the Charter in their case, but that’s because, once the Miriks issued their Charter s. 35 notices and everyone intervened, Victoria Legal Aid blinked and gave them a (joint) counsel. It’s clear that, but for the Charter, they would have been on their own when it came to defending against a crimes compensation claim. Do you need a court order to count? Or is Hulls discounting them because, like Bell J, he thought the proceedings were civil?
  • Next, there’s TP: she avoided eviction for her ex-partner’s crimes. But this is a pretty slim case, as TP was no criminal herself (even though the Department of Housing was happy to treat her like one, instead of the victim of violence they later conceded her to be) and the proceeding was certainly civil. Still, VCAT member Nhill certainly thought that the Charter will mean that future evictions of criminals will be even harder. Good news for the doomsayers?
  • Finally, Hai Minh Nguyen and Andrew Duncan, drug offenders, got some sort of vague ruling in their favour from the County Court using the Charter, in their battle against the proceeds squad’s designs on their houses. The Supreme Court affirmed the ruling, without mentioning the Charter.

OK, so Hulls is fairly close to the mark in his claims that the Charter has not benefitted any criminals (give or take the odd baillee and asset-rich drug offender.) Of course, it’d be good to know what was going on the in the County and Magistrates’ Courts, where most criminal defendants hang out. Maybe that proposed unified court system will manage to have a unified website for publishing judgments too?

But isn’t it also worth asking whether the lack of happy defendants is evidence that the Charter is working. Hulls conceded that a number of defendants have tried and failed. Apart from (possibly) the above, who are fish the Charter rejects?: Continue reading

VCAT vs Charter s. 49

Of the four potential Charter cases that came out this week, just one is now available online: the VCAT decision, BAE Systems Australia Ltd (Anti-Discrimination) [2008] VCAT 1799. As I guessed, this is an application by a defence contractor for an exemption from the Equal Opportunity Act‘s ban on nationality discrimination in employment, to fit in with the US’s discriminatory approach to security. VCAT Deputy President Cate McKenzie didn’t much like the US’s policy:

[A]lthough this comment is unlikely to influence the framing of the Australian and US security requirements, I would have thought that the use of nationality-based measures to prevent unauthorised access to information or material is a blunt and imperfect instrument. Assessment of individuals on a non-stereotyped basis, or training and education about the importance of the obligation of secrecy, would seem to me to be a better approach.

No kidding. But, just like every other decision that’s ever been made on this issue, McKenzie granted the exemption (albeit with more conditions than BAE wanted.) South Australia’s Equal Opportunity Tribunal granted BAE an exemption last year, so VCAT’s exemption saved 180 employees at BAE’s Abbotsford digs from having to move to Adelaide! Discrimination was obviously the lesser of two evils. Alas, McKenzie, in passing, engaged in some Charter analysis of unprecedented lousiness.

As I previously noted, VCAT had granted a number of similar exemptions last year, accompanied by warnings that, next time, the Charter may change things, with the Charter’s interpretation mandate becoming operational at the start of this year. In the ACT, where a brand new interpretation mandate identical to the Charter’s kicked in on 18th March this year, its equivalent to VCAT has already considered whether its approach to exemptions was compatible with human rights. (It decided that it was.) But, amazingly, McKenzie held that the Charter’s interpretation mandate, which was in place for two-and-a-half months before the ACT’s, didn’t apply to BAE’s application!

Alas, McKenzie was helped to this conclusion by VEOHRC. This is what Victoria’s defender of both equal opportunity and human rights (and typically the only opponent to applications for exemption) had to say in relation to BAE’s application:

Apart from submissions by BAE, the only other submission received was a letter from the Commission noting that the Victorian Charter of Human Rights and Responsibilities (the Charter) did not apply to this proceeding and also that, if VCAT granted the exemption subject to conditions involving reporting to the Commission, the Commission would be willing to accept this role.

Although we aren’t told, it sounds like VEOHRC is relying on the Charter’s transitional provision for proceedings:

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

Part 2 commenced on 1 January 2007. So, when did BAE’s proceeding commence?:

On 24 December 2007 BAE applied to VCAT for exemption under s83 of the EO Act.

Oh no. Oh god no. Not again. Please not again. So now VEOHRC can’t read a statute either. I blame our lousy law schools…

Fortunately, Deputy President McKenzie has the apparently rare ability to get a simple date right:

The explanatory memorandum for the Bill which eventually became the Charter explains that s2 was intended as a staggered commencement provision, in order to allow government to review existing laws, policies and procedures for Charter compliance. Among other things, it says that s 49 provides that the Charter ‘does not apply to legal proceedings commenced before 1 January 2008’ and that the Charter ‘may not be relied on in proceedings commenced before that date’. It explains that s49(3) means that ‘the obligations upon public authorities in the Charter to do not apply to an act or decision made before 1 January 2008’. There is a difficulty with s49(2). It provides that the Charter does not apply to proceedings commenced or concluded before the commencement of Part 2. That part commenced on 1 January 2007, not 1 January 2008. But s2 directly provides that Division 3 of Part 3 (the division in which the obligation to interpret statutes in a rights-compatible way appears) commences on 1 January 2008.

In the light of the explanatory memorandum, I suspect that the reference to the commencement of Part 2 in s49(2) is an error. However, the wording is clear and I am not prepared to say that the result is so absurd that Parliament could never have intended it. After all, the bulk of the Charter commenced on 1 January 2007. If s49(2) contains an error, it is an error that will need to be corrected by Parliament. In my view, s49(2) does not apply to this proceeding, because this proceeding was commenced after the commencement of Part 2, that is after 1 January 2007

Thank god. She’s completely right about all of that. Alas, despite that second-last sentence, she still ‘corrected’ Parliament’s error with her own woeful approach to retrospectivity: Continue reading

The Charter vs DNA sampling

I spoke too soon last post (as I often do.) The Charter has gotten a mention in a County Court judgment that is public available. I’ve known for a while that the County Court does publish selected judgments online, but they nearly all seem to be cases concerning the Accident Compensation Act. Fascinating for all those who want to know the percentage impairment for the loss of a middle figure or whatever. However, a search on the word ‘Charter’ that I typed in just now popped out a criminal case  brought down in June: R v Long [2008] VCC 595, curiously filed under ‘L’. Not that the judgment proves illuminating of anything except Victorian judges’ continuing inability to read the statutes they’re asked to apply.

This matter was a follow-up to a 2007 crimnial trial. Michael Long faced nine charges relating to an incident with Jeanette Long (his wife? Or ex-wife?), including kidnapping and rape; however, he was only convicted of a single charge relating to slapping her in the face. The police wanted to retain a DNA sample taken in relation to the more serious charges, so they asked the trial judge, Susan Cohen, to make an order. And here’s where the Charter got a mention:

In the course of written submissions, an issue was raised on behalf of the respondent concerning the Charter of Human Rights. I had my preliminary views notified to both parties with a request for any further submissions on them, and no such submissions were forthcoming. I have not changed my preliminary views as then set out, except to note that although this matter bears a 2006 file number, the presentment was not in fact filed until July 2007. However, as that date, and indeed the whole of the trial, the jury verdict and the sentencing, occurred prior to the commencement of the Charter of Human Rights, the same reasoning applies and I am not satisfied that it has any application in this proceeding. The merits of the substantive argument can be left for another case.

Well, that’s pretty vague, but it seems obvious what’s going on. Judge Cohen is applying the dreaded Charter s. 49(2):

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

But, as readers of this blog – and anyone who bothers to read the Charter’s commencement clause – well knows, Part 2 commenced on 1/1/7. So, ‘the whole of the trial, the jury verdict and the sentencing occurred’ after the relevant commencement. Judge Cohen, like Bell J and VCAT Member Nihill before her, has got the date wrong, presumably misled by the Charter’s incorrect EM. That being said, again like Bell J, it looks like she may actually have gotten the right result, because, if R v Williams [2007] VSC 2 is correct, then the fact that Long was charged before 1/1/7 (as it seems he was) is enough to mean the Charter s. 49(2) applied. But that assumes that this DNA proceeding is part of the earlier one; no matter what date Cohen J was using, she should have considered that question.

Enough is enough, surely. This is now becoming quite a trend. Isn’t it about time an urgent all-points bulletin was sent to all judges pointing out the correct date in Charter s. 49(2)?

It’s a pity that Cohen J (mis-)applied Charter s. 49(2), because I would have liked to have known more about the Charter arguments in this case, which raise a potential conflict between Victoria’s DNA sampling regime and the Charter. Continue reading