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s24 – Fair Hearing
Charter requires consideration of ‘special circumstances’ of alleged infringement offenders Taha v Broadmeadows Magistrates’ Court & Ors; Brookes v Magistrates’ Court of Victoria & Anor [2011] VSC 642 (16 December 2011) Summary The Supreme Court has held that infringements officers and courts may have a duty to inquire whether a person has ‘special circumstances’ – [...]
Grand Chamber considers whether testimony of absent witness violates fair trial right Al-Khawaja and Tahery v United Kingdom – 26766/05 [2011] ECHR 2127 (15 December 2011) Summary The Grand Chamber of the European Court of Human Rights recently considered the admissibility of statements made by an absent witness and the application of the ‘sole or [...]
Admissibility of unsolicited statements made in a police interview Jude v Her Majesty’s Advocate (Scotland) [2011] UKSC 55 (23 November 2011) Summary In this case, the Supreme Court of the United Kingdom held that admitting evidence of unsolicited statements made to the police by an accused who had waived his right to access legal advice [...]
Legal advice not essential before a detainee can be taken to have validly waived the right to legal advice McGowan (Procurator Fiscal, Edinburgh) v B (Scotland) [2011] UKSC 154 (23 November 2011) Summary In this case, the Supreme Court of the United Kingdom held that it is not necessary for an accused in custody to [...]
People detained pending deportation have the right to timely and adequate reasons for arrest in a language they can understand Mahajna v Secretary of State for the Home Department [2011] EWHC 2481 (Admin) (30 September 2011) Summary The High Court of England and Wales has upheld the right of people under arrest to be given [...]
Canadian Appeal Court considers scope of the right to legal counsel R v JWC, 2011 ONCA 550 (10 August 2011) Summary This is an unusual criminal law case in which the only evidence against the defendant, JWC, was a statement he made to police in which he confessed to numerous sexual assaults of a number [...]
State breached positive obligations to safeguard and protect the right to respect for private life by failing to prevent dog attack Georgel and Georgeta Stoicescu v Romania [2011] ECHR 1193 (26 July 2011) Summary In an important judgment on the scope of article 8 of the European Convention on Human Rights, the European Court of [...]
Balancing the right to a fair and public hearing with national security Home Office v Tariq [2011] UKSC 35 (13 July 2011) Summary In this case, the United Kingdom Supreme Court considered the nature and scope of the right to a fair hearing and, in particular, the circumstances in which the nature of allegations against [...]
Right to fair trial without unreasonable delay R v Kara Lesley Mills [2011] ACTSC 109 (1 July 2011) Summary In R v Kara Lesley Mills [2011] ACTSC 109 (R v Mills), the ACT Supreme Court delivered an important judgment concerning the right to a fair trial in criminal proceedings with a particular focus on circumstances [...]
Right to legal representation in disciplinary proceedings R (on the application of G) v The Governors of X School [2011] UKSC 30 (29 June 2011) Summary The UK Supreme Court has held that where one set of proceedings determines an individual’s civil rights or obligations, they may have procedural rights under article 6 of the [...]
South African Constitutional Court considers the right of appeal to or review by a higher court Qhinga and Others v S (CCT 50/10) [2011] ZACC 18 (25 May 2011) Summary The Constitutional Court in South Africa recently considered an application for leave to appeal against a dismissal by the Supreme Court of Appeal of a [...]
Court supports Charter protection of privacy in police interviews DPP v KW [2011] VCC (2 May 2011) The County Court recently handed down a decision in relation to the use by Victoria Police of ‘pretext conversations’ to gather evidence. The matter involved an application by KW to have evidence of a recording of a phone [...]
Counter Terrorism and the Use of Undisclosed Evidence BB, R (on the application of) v Special Immigration Appeals Commission & Anor [2011] EWHC 336 (Admin) (25 February 2011) Summary This case considered procedural requirements in the hearing of bail applications made by persons detained on undisclosed national security grounds. The England and Wales High Court [...]
When Torture Abroad Will Prevent Prosecution of a Terrorist Defendant Ahmed & Anor v The Queen [2011] EWCA Crim 184 (25 February 2011) Summary The applicant claimed that his prosecution for terrorism offences would amount to an abuse of process, on the grounds that British authorities were complicit in his torture committed abroad by Pakistani [...]
Aboriginal Children Returned to Care of Maternal Grandmother as Court Finds Charter Applies to Child Welfare Proceedings Secretary to the Department of Human Services v Sanding [2011] VSC 42 (22 February 2011) Summary The Supreme Court of Victoria has ruled that the Children’s Court of Victoria (‘Court’) had the discretion to make orders returning four [...]
Sufficient Flexibility to Preserve Right to Fair Trail R v Ahmad, 2011 SCC 6 (10 February 2011) Summary The Supreme Court of Canada has held that a two court scheme regulating the disclosure of information relating to international relations, national defence or national security in criminal proceedings does not violate the right to a fair trial. Properly [...]
Right to Free Expression and Open Justice may Permit Broadcasting of Evidence Canadian Broadcasting Corp v Canada, 2011 SCC 3 (28 January 2011) Summary The Supreme Court of Canada (the Court) held that the broadcasting of a video recording of a pre-trial statement tendered in evidence at trial may be protected by the right to [...]
What is the Relevance of the Charter to ‘Open Justice’ and the ‘Public Interest’? Inquest into the Death of Tyler Cassidy: Ruling on suppression application by the Chief Commissioner of Police pursuant to s 73(2)(b) of the Coroners Act 2008 During the coronial inquest into the fatal shooting of a teenager by the Victoria Police, [...]
The Use of the Victorian Charter in Criminal Interlocutory Proceedings Wells v The Queen (No 2) [2010] VSCA 294 (4 November 2010) The Court of Appeal dismissed this interlocutory criminal appeal. The applicant in part sought a permanent stay of a criminal trial on the basis that the Charter rights relating to criminal proceedings (ss 24 [...]
Right to Lawyer Pre-Questioning: Admissions by Detained Suspect with Legal Representation are Incompatible with Right to Fair Trial Cadder v Her Majesty’s Advocate (Scotland) [2010] UKSC 43 (26 October 2010) The United Kingdom Supreme Court has overturned convention and UK precedent by holding that admissions made by a detained suspect prior to charge, without legal [...]
Right to a Fair Hearing and Disciplinary Proceedings in Prison King v Secretary of State for Justice [2010] EWHC 2522 (Admin) (13 October 2010) The High Court of Justice has held that disciplinary proceedings may constitute the determination of civil rights, invoking the rights under art 6(1) of the European Convention on Human Rights. The [...]
Balancing the Right to a Fair Hearing and the Right to Religion: Canadian Court Considers Wearing of Veil in Criminal Proceeding R v NS, 2010 ONCA 670 (13 October 2010) The Ontario Court of Appeal recently handed down a significant decision regarding the conflict between the constitutional rights of a witness in a criminal proceeding [...]
Limitation Periods and the Right of Access to the Courts Road Accident Fund and Another v Mdeyide [2010] ZACC 18 (30 September 2010) The Constitutional Court of South Africa has held that an inflexible 3-year time limit for lodging a claim for personal injuries sustained in a transport accident is a justified limitation on the [...]
The Right to a Fair Hearing within a Reasonable Time McFarlane v Ireland [2010] ECHR 1272 (10 September 2010) In a decision of the Grand Chamber of the European Court of Human Rights, Ireland was held by twelve votes to five to be in breach of the right to have a hearing within a reasonable [...]
Adrakhim Usaev v Russian Federation, UN Doc CCPR/C/99/D/1577/2007 (20 August 2010) The Human Rights Committee, in consideration of a communication submitted under the Optional Protocol to the International Covenant on Civil and Political Rights, ruled that a man currently imprisoned in Russia had been subjected by the law enforcement authorities to torture or cruel, inhuman [...]
Control Orders and the Deprivation of Liberty AN v Secretary of State for the Home Department [2010] EWCA Civ 869 (28 July 2010) A recent decision before the England and Wales Court of Appeal has found that if a control order is legally flawed, or revoked by the Secretary of State, then it shall be [...]
Balancing the Right to Freedom of Expression and the Right to a Fair Trial Toronto Star Newspapers Ltd v Canada, 2010 SCC 21 (10 June 2010) Legislation providing for mandatory publication bans on bail application hearings was upheld by the Supreme Court of Canada as a reasonable compromise between protecting the accused person’s right to [...]
Threat of Torture during Interrogation Amounts to Inhuman Treatment Gafgen v Germany [2010] ECHR 759 (1 June 2010) The Grand Chamber of the European Court of Human Rights has found, by majority, that a threat of torture amounted to inhuman treatment, but was not sufficiently cruel to amount to torture within the meaning of the [...]
Protection of the Family and the Right to Determination of Status without Unreasonable Delay Gonzalez v Guyana, UN Doc CCPR/C/98/D/1246/2004 (21 May 2010) The UN Human Rights Committee has held that an undue delay in judicial proceedings to naturalize Mr Gonzalez as a citizen of Guyana constituted unreasonable and arbitrary interference with the right to [...]
Right to State-Funded Legal Aid in Coronial Inquest: Legal Aid Funding May be Necessary for State to Discharge Investigative Obligation Humberstone, R (on the application of) v Legal Services Commission [2010] EWHC 760 (Admin) (13 April 2010) Article 2 of the European Convention of Human Rights provides that the right to life is a fundamental [...]
‘Deeming’ Traffic Offences Breaches Right to Presumption of Innocence and Silence Krumpholz v Austria [2010] ECHR 341 (18 March 2010) In Krumpholz v Austria, the European Court of Human Rights held that deeming the owner of a vehicle to have committed a traffic offence (by virtue of their ownership of the vehicle) breaches the European [...]
Torture, Executive Accountability and the Rule of Law Mohamed v Secretary of State for Foreign & Commonwealth Affairs [2010] EWCA Civ 65 (10 Feb 2010) On 10 February 2010, the Court of Appeal (the Lord Chief Justice, the Master of the Rolls and the President of the Queen’s Bench presiding) published its decision in the [...]
Right to a Fair Hearing and Legal Representation in Disciplinary Proceedings G, R (on the application of) v X School & Ors [2010] EWCA Civ 1 (20 January 2010) The English Court of Appeal has held that proceedings that are not by themselves determinative of civil rights or obligations may still be subject to the [...]
Legality of Detention Pursuant to Prisoner Transfer Agreement when Original Trial Unfair Orobator v HMP Holloway & Anor [2010] EWHC 58 (Admin) (20 January 2010) In this case, the England and Wales High Court rejected a British citizen’s challenge to her detention in the UK after being convicted of drug offences in Laos. While the [...]
Control Orders, the Right to a Fair Hearing and Compensation for Unlawful Deprivation of Liberty Secretary of State for the Home Department v AF [2010] EWHC 42 (Admin) (18 January 2010) The England and Wales High Court recently held that non-derogating control orders imposed on two UK citizens under anti-terrorism legislation were void ab initio. [...]
UK Supreme Court Considers whether the Right to a Fair Hearing Requires the Availability and Examination of Witnesses R v Horncastle & Ors [2009] UKSC 14 (9 December 2009) The new UK Supreme Court (replacing the House of Lords) has delivered an important judgment concerning the role of hearsay evidence; in particular, evidence adduced from [...]
Right to a Fair Hearing and the Duty of the Court to Unrepresented Litigants Russell v Yarra Ranges Shire Council [2009] VSC 486 (29 October 2009) On 29 October 2009, Kaye J of the Supreme Court of Victoria considered the duty that a court or Tribunal might owe to an unrepresented litigant to ensure that [...]
Planning Law and the Right to a Fair Hearing Thomson v ACT Planning and Land Authority [2009] ACAT 38 (2 October 2009) On 2 October 2009, the ACT Civil and Administrative Tribunal (‘ACAT’) handed down a decision which discussed whether the limitation on ACAT’s jurisdiction to hear applications for review of planning decisions breached the [...]
Access to Court Fundamental to Right to Fair Hearing Materials Fabrication Pty Ltd v Baulderstone Pty Ltd [2009] VSC 405 (8 September 2009) On 8 September 2009, Vickery J of the Victorian Supreme Court handed down a decision which considered the right to commence a civil proceeding. In the decision, Vickery J noted that the [...]
The Right to a Fair Hearing and the Privilege Against Self-Incrimination under the Victorian Charter Re an application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381 (7 September 2009) In a landmark decision for the operation of the Charter of Human Rights and Responsibilities, Warren CJ of the Supreme Court of Victoria, [...]
Interpretation and Limitation of Rights in relation to Extended Supervision of Sex Offender Secretary to the Department of Justice v AB [2009] VCC 1132 (28 August 2009) The Victorian County Court has handed down a decision which considers in some detail the application of the interpretative obligation in the Victorian Charter of Human Rights and [...]
Freedom of Information and Access to the Courts Brümmer v Minister for Social Development and Others (CCT 25/09) [2009] ZACC 21 (13 August 2009) On 13 August 2009, the Constitutional Court of South Africa handed down a decision regarding the rights of access to court and access to information. The Court determined that, in certain [...]
Freedom of Information, Freedom of Expression and the Charter Smeaton v Victorian WorkCover Authority [2009] VCAT 1195 (5 August 2009) The Applicant sought review of a decision by the Victorian WorkCover Authority to transfer documents that were the subject of a Freedom of Information request by the Applicant to the Ombudsman. The effect of the [...]
Right to a Fair Hearing, Control Orders and Counter-Terrorism Secretary of State for the Home Department v AF & Anor [2009] UKHL 28 (10 June 2009) Nine Lords of the House of Lords have unanimously followed the Grand Chamber of the European Court of Human Rights in Strasbourg (ECHR) in the decision of A v [...]
Costs in Public Interest and Constitutional Litigation Trustees for the time being of the Biowatch Trust v Registrar Genetic Resources and Others (CCT 80/08) [2009] ZACC 14 (3 June 2009) The Constitutional Court of South Africa has confirmed that the general rule for an award of costs in constitutional litigation between a private party and [...]
Vexatious Litigants and the Rights to a Fair Hearing, Access to a Court and Legal Aid Kay v Victorian Attorney-General & Anor (Victorian Court of Appeal, Unreported, 19 May 2009) In this case, the Victorian Court of Appeal considered whether the making of a vexatious litigant order was compatible with the right to a fair [...]
Right of Access to Court Imposes Positive Obligation on Courts to Inform Litigants of Rights and Entitlements Kulikowski v Poland [2009] ECHR 18353/03 (19 May 2009) The European Court of Human Rights has held that the right to access courts imposes positive obligations on courts to inform individuals of their entitlements, that delays in obtaining [...]
Referral of Question of Law under Victorian Charter De Simone v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building) [2009] VCAT 888 (13 May 2009) For the first time, VCAT has referred a question of law arising under the Charter for determination by the Supreme Court, by way of s 33 of the [...]
Right to Legal Aid and a Lawyer of One’s Choice Hakimi v Legal Aid Commission (ACT) [2009] ACTSC 48 (12 May 2009) The ACT Supreme Court has ruled that there is no absolute right for a legally aided person to choose their own lawyer. This case was the first application made under amendments to the [...]
Failure to Review Involuntary Treatment a Breach of Human Rights Kracke v Mental Health Review Board [2009] VCAT 646 (23 April 2009) On 23 April 2009, Justice Bell, President of the Victorian Civil and Administrative Tribunal, handed down a significant decision which discussed in detail important aspects of the application and operation of the Charter. [...]
Courts and Tribunals Directly Bound by Charter Rights De Simone v Bevnol Constructions and Developments Pty Ltd (2009) (Unreported, Supreme Court of Victoria, Court of Appeal, Neave JA and William AJA, 3 April 2009) The Court of Appeal held that courts and tribunals are bound by ss 24 (right to a fair hearing) and 25 [...]
Right to Fair Hearing and Legal Representation in Disciplinary Proceedings Lam Siu Po v Commissioner of Police [2009] HKCFA 24 (26 March 2009) In a case relating to the validity of a statutory bar to legal representation in police disciplinary proceedings, the Court of Final Appeal of Hong Kong established the following principles: the right [...]
Prohibition against Arbitrary Detention and the Right to Procedural Fairness A and Ors v United Kingdom [2009] ECHR 3455/05 [Grand Chamber] (19 February 2009) In a case relating to the detention of non-national terror suspects in the UK, the European Court of Human Rights held that: detention pending deportation cannot be justified under art 5(1)(f) [...]
House of Lords considers Human Rights Implications of Potential Torture of Terror Suspects RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10 (18 February 2009) In this case the House of Lords dismissed appeals by RB and U, Algerian nationals, from the Court of Appeal which had allowed their appeals from [...]
Self-Represented Litigants and the Right to a Fair Hearing Davies v Commonwealth Bank of Australia Ltd (Credit) [2009] VCAT 90 (28 January 2009) This case considered the correct approach to be followed in dealing with unrepresented litigants and balancing their rights to a fair trial and access to justice with defendants’ rights. Facts Unrepresented applicants [...]
Right to Liberty and Judicial Review of Lawfulness of Detention Black v Secretary of State for Justice [2009] UKHL 1 (21 January 2009) The House of Lords has held that the Justice Secretary’s power to determine whether certain long-term prisoners should be released on parole does not constitute a breach of art 5 of the [...]
Balancing the Right to a Fair Hearing with the Protection of Vulnerable Persons Wright & Ors v Secretary of State for Health & Anor [2009] UKHL 3 (21 January 2009) The House of Lords has recently issued a declaration of incompatibly under the Human Rights Act 1998 (UK) (‘HR Act’) in relation to the Care [...]
Reliance on Witness Statement where Cross-Examination not Available may Violate Right to a Fair Hearing Al-Khawaja and Tahery v United Kingdom [2009] ECHR 26766/05 (20 January 2009) The European Court of Human Rights has held that allowing a witness statement to be admitted as evidence where the witness is not available for cross examination and [...]
The Grand Chamber of the European Court of Human Rights has overruled a lower chamber decision, finding that the right to a fair trial (prescribed in art 6 of European Convention on Human Rights) includes access to legal assistance during the investigation stage of a suspect by the police. Detailed case note.
In this case, VCAT found that the Charter rights to a fair hearing (s 24) and the rights in criminal proceedings (s 25) do not extend to persons who are being investigated by police for possible commission of a criminal offence. Detailed case note.
The Supreme Court of Victoria (Robson J) has held that civil penalty proceedings against five former directors of AWB Limited should be stayed in the exercise of the Court’s inherent jurisdiction. This was on the basis that criminal proceedings are threatened against them for conduct that is substantially the same as the conduct that is [...]
This case concerned an application for special costs. The Supreme Court of British Columbia held that the proceeding was public interest litigation, and that special costs could therefore be awarded to the plaintiffs. Detailed case note.
Article 6(1) of the European Convention of Human Rights provides, ‘[i]n the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing … by an independent and impartial tribunal established by law.’ This case was an appeal from a decision of the High Court holding that art 6(1) [...]
The author, Mr Aboushanif, lodged a Communication under the First Optional Protocol to the ICCPR claiming that Norway had violated his rights under art 14(5) of the Covenant. Article 14(5) states that: ‘Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.’ [...]
In this case Vickery J decided that it was appropriate in a free and democratic society to temporarily curtail freedom of media expression to guarantee X the right to a fair trial. Detailed case note.
The England and Wales High Court has held that the UK Government has a positive duty to take steps to ensure that a United Kingdom resident about whom the UK Government had exculpatory material had access to that material for the purpose of defending charges under the US Military Commissions Act of 2006. Detailed case [...]
The European Court of Human Rights has held that Poland violated its obligation to ensure a fair trial under art 6 of the European Convention on Human Rights by failing to grant legal aid to an individual in respect of civil proceedings. However, the Court held that a denial of legal aid was justified where [...]
This was a case regarding an application for permits to subdivide land and construct various buildings ancillary to a freeway which would involve the removal of native vegetation to the detriment of the Growling Grass Frog. During the hearing of the merits, a challenge was made to VCAT’s jurisdiction to hear the matter and submissions [...]
The European Court of Human Rights has held that the right to a fair hearing requires an oral hearing which may only be dispensed of in exceptional circumstances. Detailed case note.
In this case, the European Court of Human Rights considered human rights issues arising from involuntary admission and treatment on the ground of mental illness. Detailed case note.
In an ex tempore judgment delivered by Higgins CJ, the ACT Supreme Court has stated that s 21 of the Human Rights Act 2004 (ACT) confers a positive right to a fair trial and thereby modifies the common law which merely provides for the right to be free from an unfair trial. Detailed case note.
The applicants had been charged with terrorism-related offences under the Commonwealth Criminal Code. They applied to have the trial stayed on grounds of unfairness, arguing the conditions of their incarceration and of their transport to and from Court each trial day were increasingly affecting their capacity to properly defend the charges against them. Detailed case [...]
In a recent decision, the Victorian Court of Appeal (Warren CJ, Vincent and Kellam JJA) considered the jurisdiction of a trial judge to make suppression orders to restrain an apprehended contempt of court. In doing so, it discussed issues that will be relevant in balancing the Charter right to freedom of expression (protected by s [...]
The ACT Supreme Court has missed an opportunity to consider the meaning of the right to a fair hearing in s 21(1) of the Human Rights Act 2004 (ACT) in the context of an application for adjournment of a civil matter based on reasons including lack of legal representation. Detailed case note.
The UK Court of Appeal has held that the Parole Board does not possess the necessary independence required by art 5(4) of the European Convention on Human Rights. This decision may be relevant to a determination under s 24 of the Victorian Charter as to whether a court or tribunal is ‘competent, independent and impartial’. [...]
The Victorian Civil and Administrative Tribunal has allowed an application to reconstitute the Tribunal, on the basis that a respondent to the proceedings would not receive a fair hearing before a particular Tribunal Member. The Tribunal’s decision stated that the Charter has reinforced the positive duty of courts and tribunals to provide assistance to litigants [...]
In a significant decision, the Supreme Court of Victoria has outlined the nature and scope of the principle of ‘equality of arms’ as an aspect of the right to a fair hearing. While the Court held that the Victorian Charter did not apply to the proceeding (as it was commenced prior to the entry into [...]
The European Court of Human Rights in Oganova v Georgia found that, generally, the right to a fair hearing implies the right to an oral hearing but that, in certain special circumstances, it may be permissible for an appellate court to determine a matter by written submissions in the interests of the efficient administration of [...]
The European Court of Human Rights has held that the right to a fair hearing subsumes a right of access to a court and that a requirement to pay substantial court fees to file or proceed with a claim may constitute a violation of that right. Detailed case note.
A recent decision of the England and Wales High Court considered whether the Parole Board had the necessary independence required by art 5(4) of the European Convention on Human Rights and may be relevant to a determination under s 24 of the Victorian Charter as to whether a court or tribunal is ‘competent, independent and [...]
In a very significant decision, the Supreme Court of Victoria has considered the relevance and application of the human rights to equality before the law, access to justice and the right to a fair hearing under the ICCPR to the right to a fair trial under Victorian law and the obligations of the court to [...]
In an important decision regarding the nature and scope of the right to equality before the courts, the UN Human Rights Committee has found Australia in violation of art 14(1) of the International Covenant on Civil and Political Rights. Detailed case note.
Two recent decisions of the European Court of Human Rights regarding the scope and content of art 6 of the European Convention on Human Rights have confirmed that the right to a fair hearing subsumes a right of access to the courts. Detailed case note.
Two recent decisions of the European Court of Human Rights regarding the scope and content of art 6 of the European Convention on Human Rights have confirmed that the right to a fair hearing subsumes a right of access to the courts. Detailed case note.
In a judgment handed down on 19 April 2007, the Grand Chamber of European Court of Human Rights considered the scope of the right to a fair hearing in the context of civil proceedings, with particular reference to the acceptable length of proceedings and the necessity of an oral hearing. Detailed case note.
The UK High Court of Justice has quashed a decision by the Minister for Legal Aid to refuse the family of two people killed in a train crash funding to be legally represented at the coroner’s inquest. Central to the decision was the finding that funding was necessary to carry out an effective investigation into [...]
The ACT Supreme Court has recently considered the relevance of the right to a fair trial under s 21 of the Human Rights Act 2004 (ACT) to the extension of time limits in civil proceedings. Detailed case note.
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