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 decisive test’ in the context of the right to a fair trial. It held by majority that convictions based solely or decisively on such statements will not automatically constitute a breach of the right to a fair trial contained in article 6 of the European Convention on Human Rights. The majority considered that in such cases, the appropriate inquiry is whether sufficient counterbalancing factors are in place to ensure that the overall fairness of the trial is not unacceptably prejudiced. Such factors may include whether the accused is able to test the evidence of an absent witness by means other than cross-examination and other measures, which permit a fair and proper assessment of the reliability of that evidence (such as whether the evidence is corroborated).

Facts

This decision considered two applications, which arose out of hearsay evidence admitted pursuant to legislative exceptions to the hearsay rule, in each applicant’s trial in the UK Crown Court. Both applicants’ convictions had been upheld on appeal to the UK Court of Appeal.

Mr Al-Khawaja had been convicted of indecently assaulting two patients while they were under hypnosis. One complainant was unable to give evidence in person because she died before trial, but her statement to police was read to the jury. Two friends whom she had told of the alleged assault also gave evidence. The Trial Judge found, and the Grand Chamber accepted, that her evidence was decisive in respect of the count alleged.

Mr Tahery had been convicted of wounding with intent following the stabbing of another man during a fight. Uncorroborated evidence of a witness (T) was given by way of statement because T was too frightened to give oral evidence. The Grand Chamber found this statement to be the decisive, if not the sole, evidence against Mr Tahery.

Decision

The Grand Chamber unanimously found a breach of article 6 in the case of Mr Tahery but, by majority, rejected Mr Al-Khawaja’s application. The relationship between the right to a fair and public hearing (article 6(1)) and the principle that everyone charged with a criminal offence has, as a minimum right, the right to examine or have examined witnesses against him (article 6(3)(d)), in the European Convention was of critical importance.

In January 2009, a Chamber of the European Court of Human Rights had considered these applications and held that article 6(3)(d) was an express guarantee, which could not be considered merely as a matter to be taken into account in assessing the fairness of a trial. It therefore found a violation of article 6(1), read in conjunction with article 6(3)(d), in respect of each application. In R v Horncastle [2009] UKSC 14 (a later decision discussed by the Grand Chamber), the UK Supreme Court declined to follow the Chamber’s approach and rejected any principle on the basis of which a conviction based solely or decisively on evidence provided by an absent or anonymous witness must necessarily be set aside.

The decision of the Grand Chamber explained that the guarantees in article 6(3)(d) are specific aspects of the right to a fair hearing in article 6(1), and that the primary concern under article 6(1) is to “evaluate the overall fairness of the criminal proceedings”. Although it reaffirmed the rationale of the ‘sole or decisive test’, the Grand Chamber considered that the admission of hearsay evidence, which is the sole or decisive evidence against a defendant does not constitute an ‘automatic’ breach of article 6. In determining the question of fairness, the rules of evidence of the legal system concerned must be taken into account. The Grand Chamber noted that these legislative schemes are designed as protective mechanisms in respect of the hearsay evidence of absent witnesses. While the relevant UK legislative provisions were found to be “in principle, strong safeguards designed to ensure fairness”, the Grand Chamber looked beyond these provisions to ensure that the evidence admitted pursuant to them did not compromise the fairness of the trials. In respect of each application, the Grand Chamber considered:

• whether it was necessary to admit the witness statement;
• whether the untested evidence was the sole or decisive basis of conviction; and
• whether there were sufficient counterbalancing factors to ensure that each trial, judged as a whole, was fair.

In Al-Khawaja’s case, the Trial Judge made clear that the statement was decisive evidence in respect of the relevant charge. The death of the witness made it plainly necessary to admit the statement if her evidence was to be received. The statement was recorded in proper form, corroborative evidence was given at trial by two of the complainant’s friends (with only minor inconsistencies), and there were strong similarities between the accounts of the assaults on the two complainants, between whom there was no evidence of any collusion. In that context, the majority found that there was no breach of article 6.

In Tahery’s case, T was the only witness who had claimed to see the stabbing, his eyewitness statement was uncorroborated and the statement had been made two days after the event. The Grand Chamber considered that the statement constituted at least the decisive, if not the sole, evidence against Tahery. No witness, when questioned at the scene, claimed to have seen Tahery stab the complainant. The Grand Chamber considered that neither the ability of Tahery to challenge the evidence by giving evidence himself or calling other witnesses, nor the warning by the Trial Judge to the jury to approach T’s evidence with care, was sufficient to “counterbalance the handicap under which the defence laboured”. Even if Tahery had given evidence, he was unable to test the truthfulness and reliability of the evidence of the sole witness who was willing or able to say what he had seen. At best, the other evidence only provided indirect support for T’s evidence. Examining the fairness of the proceedings as a whole, the Grand Chamber concluded that there were not sufficient counterbalancing factors to prevent a breach of article 6.

The Court ordered that the United Kingdom pay Mr Tahery EUR 6000 as compensation for distress and anxiety, and EUR 12000 for his legal costs.

Relevance to the Victorian Charter

Section 25(2)(g) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) expressly provides that the ‘minimum guarantee’ to examine or have examined witnesses against an accused is subject to contrary provision by law. On that basis, the exception to the hearsay rule in criminal proceedings where the maker of a statement is not available (provided by section 65 of the Evidence Act 2008 (Vic) and referred to by the Grand Chamber in its comparative analysis), would appear to be clearly inconsistent with any ‘automatic’ application of the sole or decisive test. However, the analytical approach of the majority may provide some guidance in approaching the application of the exclusionary provisions in Pt 3.11 of the Evidence Act in the context of section 25 of the Charter.

The decision can be found online at: http://www.bailii.org/eu/cases/ECHR/2011/2127.html

Ben Mee is a lawyer at Allens Arthur Robinson

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 did not deny him a fair trial contrary to article 6(1) of the European Convention on Human Rights.

Facts

The judgment concerned appeals by three accused against their convictions. However, the only appeal to raise issues of an accused’s right to a fair trial under the Convention was that of Birnie. Birnie was arrested in relation to an alleged sexual assault and detained for questioning by the police. After being interviewed for about two hours, Birnie told the police that he wanted to make a statement. He was emotionally distressed at the time. The police offered Birnie the right to access a lawyer before making his statement, which he declined. Birnie then admitted to sexually assaulting the complainant. The Crown relied on Birnie’s statement at his subsequent trial. He was convicted and sentenced to imprisonment.

Decision

The question in Birnie’s appeal to the Court was whether admitting evidence of his unsolicited statement denied him a fair trial contrary to article 6(1) of the Convention. By a majority of 4:1, the Supreme Court held that Birnie had not been denied a fair trial.

The leading judgment was delivered by Lord Hope, with whom Lords Brown, Dyson and Hamilton agreed. Lord Kerr dissented in relation to Birnie’s appeal. Lord Hope held that Birnie’s statement was admissible on two grounds.

Birnie had waived his right to legal advice

Lord Hope held that Birnie had effectively waived his right to access a lawyer, even though he had not been given legal advice on whether he should have waived the right. Birnie’s waiver was held effective for several reasons.

First, Birnie had been told prior to making his statement that he had the right to access a lawyer. This overruled a finding made in the High Court that Birnie did not know that he had a right to access legal advice.

Second, Lord Hope held that there was no absolute rule according to the jurisprudence of the European Court of Human Rights that an accused must be given legal advice on the question of whether to access further legal advice, in order for the accused’s waiver to be effective.

Third, His Lordship held that it was not necessary for Birnie’s reasons for declining legal advice to be understood in order for his waiver to be effective. The fact that he had not received legal advice was merely a circumstance which could be taken into account to determine whether he understood the right being waived  In this case, it appeared that Birnie understood what he was doing.

Birnie’s statement was voluntary

Lord Hope also held that Birnie’s statement was voluntary and not elicited by police questioning.

His Lordship considered authorities on the common law test of voluntariness and international decisions which referred to the jurisprudence of the Strasbourg Court. The authorities indicated (perhaps unhelpfully) that rigid rules should not be adopted in order to determine whether an accused’s statement was voluntarily made. Rather, they indicated that each case should be examined on its own facts.

In this case, there were indications that Birnie may have been particularly vulnerable at the time he made his statement. These were his young age (18 years) and the fact that he was emotionally distressed after the police interview. However, those circumstances did not conclusively indicate that Birnie’s statement was not voluntarily made.

Ultimately, Lord Hope chose not to decide the point for jurisdictional reasons concerning Scottish criminal law and procedure. His Lordship ordered that the matter be remitted to the High Court for final determination.

Lord Kerr’s dissent

Lord Kerr dissented in relation to Birnie’s appeal. His Lordship held that it was necessary for some inquiry to be made as to why an accused declined to access legal advice, unless the reasons were obvious. In this case, there were several indications that Birnie was not fully informed and that his waiver was therefore ineffective. These were his young age, his emotional state after the police interview and the fact that when he was asked if he wanted a lawyer present, the procedure was carried out in a “routine” way and did not guarantee that his decision was fully informed.

His Lordship also held that although it was not an absolute rule that an accused be provided with legal advice in order to make a subsequent waiver effective, providing legal advice will typically be the most effective way of ensuring that it is effective.

Relevance to the Victorian Charter

The Victorian Charter guarantees the right to a fair hearing (s 24).  It also guarantees persons accused of a criminal offence the right to communicate with a lawyer or adviser of their choice under s 25(2)(d). These rights are analogous to those guaranteed by articles 6(1) and 6(3)(c) of the Convention, both of which were relevant in this case. It is therefore possible that the rights under ss 24 and 25(2)(d) of the Charter could be interpreted as not preventing evidence of unsolicited statements being admitted where an accused has waived the right to legal advice.

On the other hand, the Supreme Court in Jude (in relation to Birnie’s appeal) relied predominantly on the jurisprudence of the Strasbourg Court for its authority. The Court did not decide whether an accused’s waiver of the right to legal advice would be effective in the same circumstances at common law. Therefore, the case may be confined to the context of decisions which relate to the Convention and have little to say about how the Victorian Charter should be interpreted. It does, however, provide an example of a factual situation where the accused’s acts overruled their rights guaranteed under human rights legislation.

This decision is available online at: http://www.bailii.org/uk/cases/UKSC/2011/55.html

William Thomas is a Summer Clerk with the Mallesons Stephen Jaques Human Rights Law Group

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 receive advice from a lawyer in order to effectively waive their right of access to a lawyer under article 6 of the European Convention of Human Rights. The Court did observe, however, that where people are vulnerable or the questioning is long and complex, they may need to be given additional protections to ensure they understand the rights in question.

Facts

The Respondent, ‘B’, was questioned about alleged housebreaking with intent to steal and having in his possession a controlled drug contrary to s 5(2) of the Misuse of Drugs Act 1971. He was offered a consultation with a solicitor prior to the interview but declined the offer. He was ultimately charged with both of these offences.

In advance of the trial, B’s solicitor lodged a Devolution Minute claiming B’s right to legal assistance under article 6(3)(c) of the Convention would be breached if the Crown were to lead evidence of the police interview. It was argued that access to a solicitor should be automatic when someone has been detained in custody.

The propositions in the Minute were based on observations of the High Court of Justiciary in Jude v HM Advocate [2011] HCJAC 46, 2011 SLT 722 (‘Jude’). In that case Lord Justice Clerk said that he could not see how a person could waive his or her right to legal advice when he had not had access to legal advice on the point. In light of the importance raised by this observation, the Lord Advocate invited the sheriff to refer the issue to the Supreme Court. The amended questions for the Court, agreed between the parties, were:

• Whether it would necessarily be incompatible with articles 6(1) and 6(3)(c) for the Lord Advocate to lead and rely upon evidence of answers given during a police interview of a suspect in police custody who, before being interviewed: had been informed of his or her Salduz/Article 6 rights to legal advice; and without having received advice from a lawyer, had stated that he did not wish to exercise such rights.
• Whether it would be compatible with B’s rights under articles 6(1) and 6(3)(c) for the Lord Advocate to lead and rely upon evidence of answers given in his police interview.

Decision

By a 4-1 majority, the Supreme Court answered the first question in the negative, and remitted the second question to the sheriff.

Lord Hope, in the majority, noted that article 6(1) read with article 6(3)(c) does not expressly require that a person has legal advice before he or she can be taken to have waived the right to legal advice. But the article is to be interpreted broadly by reading into it a variety of other rights to give practical effect to the right to a fair trial.

His Lordship found there was no basis in the jurisprudence of the Strasbourg Court for holding that, as a rule, an accused must have had access to legal advice on the question whether or not he should waive his or her right to consult a solicitor before being interviewed by police. Statements to the contrary in the lower court in Jude should be disapproved. It will ordinarily be sufficient for an accused, having been informed of his or her rights, to state that he does not want to exercise them.

However the Strasbourg cases do show that, in order to be effective as a waiver of a Convention right, the acts from which the waiver is to be inferred must be voluntary, informed and unequivocal. The court must be alive to the possibility that the words of caution, and notice that the detainee has the right to legal advice, may not be fully understood by everyone. This may depend on all the circumstances, including the age, health, apparent intelligence and state of mind of the person and the likely length and complexity of the interview. Lord Hope (Lords Brown, Dyson and Hamilton agreeing) made two suggestions for improving current practice:

• In order to minimise the risk of misunderstanding, police should point out that the right to speak to a solicitor includes the right to speak to a solicitor on the telephone. If the detainee continues to waive the right the officer should ask the detainee for his or her reasons for waiving his or her right to legal assistance, and record the reasons given; and
• In order fully to apprise a person interrogated of the extent of his or her right, police should inform the detainee not only of the right to legal assistance, but also of the arrangements that may be made if he or she is unable to name a solicitor or is concerned about the cost of employing one.

The majority decided it would not be appropriate to reach a decision on the second question as the issue came before the Court as a reference, not an appeal. As it raised questions of fact it was more appropriately dealt with by the sheriff, after hearing all evidence on the issue.

Lord Kerr would answer both questions in the negative. He would require the suggestions made by Lord Hope to be implemented in every case in order to ensure the waiver is voluntary, informed and unequivocal. No attempt had been made to discover why B had refused to exercise his right to legal assistance in this case. Accordingly it was impossible to say on the available evidence that there had been an unequivocal and informed decision to waive his right.

Relevance to the Victorian Charter

Section 25(2)(d) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) recognises a right of access to a lawyer similar to that recognised by the Convention. Like article 6(3)(c) of the Convention, s 25(2)(d) explicitly provides that a person charged with a criminal offence is entitled to legal assistance chosen by him or her.

This case clarifies the uncertainty introduced by Jude. If the interpretation in McGowan is adopted and applied in Australia to s 25(2)(d), legal advice as to whether a person should exercise the right to legal advice will not be necessary in every case. However where the person is vulnerable or the questioning is long and complex, the court may find that legal advice is necessary in order to ensure the waiver was voluntary, informed and unequivocal.

Further, police should consider in each case whether additional protections are appropriate. This may include informing the person they can telephone a solicitor, asking why they have declined legal advice, noting down their reasons, and informing them that arrangements can be made if they do not know a solicitor or cannot afford one. Section 25(2)(e) of the Victorian Charter explicitly provides that if a person is eligible for legal aid and does not have legal assistance they are to be told of the right to legal aid.

The decision is available online at: http://www.bailii.org/uk/cases/UKSC/2011/54.html

Emma Newnham is a Summer Clerk with the Mallesons Stephen Jaques Human Rights Law Group

Gale & Anor v Serious Organised Crime Agency [2011] UKSC 49 (26 October 2011)

Summary

Approximately £2 million worth of property was confiscated from the appellants, on the basis that it was the fruit of drug trafficking, money laundering and tax evasion.

Under Article 6(2) of the European Convention on Human Rights, the United Kingdom Supreme Court held that the appellants’ criminal conduct was to be proved on the balance of probabilities, and not beyond reasonable doubt. It was held that the proceedings were civil in nature and did not share a procedural link with previous criminal proceedings brought against one of the appellants in Portugal and Spain.

Facts

The Proceeds of Crime Act 2002 (UK) provides for confiscation of assets if the court is satisfied on the balance of probabilities (the civil standard of proof) that the assets were obtained by unlawful conduct.

At first instance, the British Serious Organised Crime Agency (“SOCA”) obtained an order against the appellants for confiscation of property to the value of £2 million. SOCA satisfied the primary judge that the property was the proceeds of drug trafficking, money laundering and tax evasion in various countries.

On appeal to the Supreme Court of the United Kingdom, the appellants relied on the fact that David Gale had been acquitted of drug trafficking in Portugal, and criminal proceedings against him had been discontinued in Spain. They argued that unlawful conduct had to be proved beyond reasonable doubt (the criminal standard of proof), otherwise the proceedings violated article 6(2) of the European Convention on Human Rights. Article 6(2) provides: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

Decision

The Supreme Court unanimously dismissed the appeal.

Lord Phillips examined previous decisions of the European Court of Human Rights on article 6(2). Although his Lordship found it difficult to identify a unifying principle underlying the cases, he concluded firstly that the existence of a “procedural connection” between the previous criminal trial and the subsequent civil proceedings was relevant. If such a connection existed, the criminal conduct would have to be proved beyond reasonable doubt for the civil claim to succeed. His Lordship held that there was no procedural link between the Portuguese trial and the current proceedings. Further, the British court was permitted to consider evidence that formed the basis of the Portuguese charges.

An alternative route to violation of article 6(2) was if public authorities (for instance, the court) suggested that an acquitted defendant might nonetheless have been guilty. His Lordship could identify no such suggestion on the facts.

The other justices broadly agreed with Lord Phillips. In concluding that no procedural link existed, Lord Dyson remarked that the Act provides for free-standing proceedings that can be brought whether or not there has been a criminal trial.

Relevance to the Victorian Charter

Section 25(1) of the Victorian Charter contains similar wording to article 6(2): “A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.”

In Momcilovic v The Queen (2011) 280 ALR 221; [2011] HCA 34, at paragraph 52 French CJ tentatively indicated that s 25(1) may extend to “prejudicial pre-trial statements and proceedings for the award of costs or compensation for detention on remand following discontinuance of criminal proceedings or acquittal”. However, this comment was in passing, as Momcilovic concerned the principle that the prosecution bears the burden of proof in criminal proceedings.

The principles discussed in Gale appear relevant to various types of civil claims, such as a compensation claim by the defendant for being remanded in custody; disciplinary proceedings against the defendant by a professional body or employer; and damages claims by victims.

However, the utility of the case itself may be limited. The justices found the prior ECHR cases confusing and difficult to interpret. Much ambiguity surrounds the requirement of “procedural connection”, and the efforts of Lord Phillips in particular to flesh out a unifying principle were limited by the facts in issue. If there ever was a case where two proceedings lacked a procedural connection, this was it – the previous criminal trial and subsequent civil proceedings took place in different jurisdictions. Accordingly, the justices rightly suggested that it would be desirable for the Grand Chamber of the ECHR to clarify and rationalise “this whole confusing area”.

The decision can be found online at: www.bailii.org/uk/cases/UKSC/2011/49.html

Sylvester Urban is a lawyer with the Mallesons Stephen Jaques Human Rights Law Group

R v Nakamura, 2011 BCSC 1443 (26 October 2011)

Summary

This case concerns a voir dire ruling made by the Supreme Court of British Columbia to exclude from the proceedings an incriminating statement made by one of the two accused on the basis that the accused was not advised upon being detained of the right to counsel. Pursuant to s 10(b) of the Canadian Charter of Rights and Freedoms, everyone has a guaranteed right upon on arrest or detention ‘to retain and instruct counsel without delay and to be informed of that right’. Section 24(2) of the Charter provides for the exclusion of impugned evidence if admission of the evidence would bring the administration of justice into disrepute.

Facts

The two accused were charged with aggravated assault and assault with intent to steal. Both gave statements to police which were the subject of the application. The accused Vincent was initially taken to the police station simply for questioning and was informed that he could leave at any time. However, following an aggressive interrogation during which the interviewing officer threatened to go to Vincent’s home with a warrant for arrest, Vincent confessed, implicating the other accused, Nakamura. Vincent was read his Charter rights just prior to having his statement taken.

The accused Nakamura was an Asian male whose second language was English. Upon his arrest, and then again just prior to having his statement taken, Nakamura was advised of his right to counsel and was asked whether he understood this right. He was further advised that he had the right to a reasonable opportunity to contact counsel.

Decision

The Court confirmed that the onus is on the accused to establish a Charter breach on a balance of probabilities. The burden of proving certain contested issues, however, shifts to the Crown. For example, once the accused shows that his or her right to counsel was infringed, it is for the Crown to establish that the accused would not have conducted him or herself differently.

The test for valid waiver of the right to counsel is whether the person waiving the right actually knows what he or she is giving up. Where special circumstances exist that would reasonably alert the officer informing the accused of this right that there may be a language comprehension difficulty, the police office must take further steps to ensure a detainee understands their Charter rights.

In respect of the Nakamura statement, it was found that, despite Nakamura’s language difficulties, the circumstances showed that he was “sufficiently proficient” in English to be able to grant a valid waiver of his right to counsel.

In respect of the Vincent statement, it was held that Vincent’s right to counsel accrued upon him being psychologically detained. According to Romilly J, the power imbalance between the police officer who took the statement and the “unsophisticated, short, slightly built 19 year old…was huge”. Moreover, even when the police officer did advise Vincent of his rights, it was done with an “almost indecent hast” and without Vincent being given any time to consider whether he wished to contact counsel. There had been no valid waiver, and therefore Vincent’s statement was obtained in breach of the Charter. Consequently, it was necessary for the Court to consider whether the evidence should be excluded under s 24(2).

On this issue, the Court reaffirmed the approach taken in Grant v Harrison 2009 SCC 34, which involves three lines of inquiry into: (i) the seriousness of the Charter-infringing state conduct; (ii) the impact of the Charter violation on the Charter-protected interests of the accused; and (iii) society’s interest in an adjudication on the merits. In balancing these three lines of inquiry, the Court determined that admitting the illegally obtained evidence would bring the administration of justice into disrepute. Vincent’s statement was thus excluded.

Relevance to Victorian Charter

This case raises important questions concerning the need to preserve the rights of the detained individual while maintaining the integrity of the administration of justice. The public must have confidence that vulnerable citizens are being advised of their rights by state authorities. To admit evidence where proper cautions have not been given would be to undermine the public’s confidence in state authorities and the legal system in the long term.

Application for exclusion of impugned evidence can be made under current law, and unlawfulness arising from breach of the Victorian Charter may be used as a ground in the cause of action.

The Victorian Charter guarantees some protections for accused persons. The minimum rights guaranteed in circumstances of detention and arrest are dealt with separately in ss 21 and 25 respectively. Relevantly, a person charged with a criminal offence is entitled to have adequate time to prepare his or her defence and to communicate with a lawyer or adviser chosen by him or her. If the accused is unrepresented, he or she has the right to be told of the right, if eligible, to legal aid under the Legal Aid Act 1978 (Vic). A detained person does not have the right to retain counsel immediately. The Victorian Charter would arguably be strengthened by the inclusion of the right upon detention to retain and instruct counsel with delay and, importantly, the right to be clearly informed of this right.

This decision can be found online at: http://canlii.ca/en/bc/bcsc/doc/2011/2011bcsc1443/2011bcsc1443.html

Isabel Waters is a lawyer with the Mallesons Stephen Jaques Human Rights Law Group

Momcilovic v The Queen [2011] HCA 34 (8 September 2011)

Summary

The High Court’s decision in Momcilovic v The Queen upholds the constitutional validity of the Charter of Human Rights and Responsibilities Act 2006 (Vic). However, the six separate judgments provide varied guidance as to how the Charter should be applied in practice.

The ratio of the High Court’s decision in Momcilovic turns on the interaction between sections 5, 71AC and 73(2) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). With the exception of Heydon J, all members of the Court held that the phrase “possession for sale” (which forms part of the definition of “trafficking” in section 71AC of the Drugs Act) is a compound expression which does not attract the operation of the deeming provision in section 5 of the Drugs Act which has the effect of reversing the onus of proof. Because section 5 does not apply, the Court held that the trial judge had misdirected the jury as to the matters that the prosecution was required to prove and ordered a retrial.

French CJ was the only member of the Court who expressly relied on the Charter in reaching this conclusion, and even he noted that the common law principle of legality would give the same result in the absence of the Charter. As such, the Court’s more substantive discussion of the Charter in Momcilovic is strictly obiter, and could be altered or clarified in future High Court decisions involving the Charter.

Practical consequences for Charter interpretation

Because of the varied positions adopted by the different members of the Court in Momcilovic in relation to the operation of the Charter, the judgments do not provide a clear approach for Victorian courts to apply when interpreting legislation in accordance with the Charter. However, it appears from the various judgments that the following principles relevant to the interpretation of legislation in accordance with the Charter have the support of a majority of the Court:

Decisions from comparative jurisdictions (the United Kingdom, Canada, South Africa, Hong Kong and, to a lesser extent, New Zealand) are of limited relevance when interpreting the mechanical provisions of the Charter and the relationships between those provisions (supported by French CJ, Gummow, Hayne, Crennan and Kiefel JJ).

• Section 7(2) of the Charter forms part of the definition of the rights set out in Part 2 of the Charter. That is, all Charter rights are subject to section 7(2) (supported by Gummow, Hayne, Heydon and Bell JJ).
• The word ‘compatibly’ has a consistent meaning across sections 28, 32 and 38 of the Charter (supported by Heydon and Bell JJ and, by implication from their reasoning more generally, Gummow and Hayne JJ).
• Section 32(1) of the Charter requires that statutory provisions be interpreted in a way which is compatible with human rights as identified and described in Part 2 of the Charter, including, where it has been engaged, section 7(2) (supported by Gummow, Hayne, Heydon and Bell JJ).
• Section 32(1) of the Charter does not require courts to depart from established understandings of the limits of statutory interpretation (supported by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

With the exception of Heydon J, all members of the Court held that sections 7(1) and 32(1) of the Charter are constitutionally valid. In doing so, the Court rejected any Ghaidan-based interpretation of the scope of section 32(1) and upheld the Court of Appeal’s decision that interpretation under section 32(1) reflects “what courts have traditionally done”.

Relying on the text and structure of the Charter, a majority of the Court held that interpretation of legislation in accordance with section 32(1) must operate with reference to rights as limited in accordance with section 7(2). Some members of the Court noted that this mirrors the approach adopted under sections 5 and 6 of the Bill of Rights Act 1990 (NZ).

Bell J was the only member of the Court to expressly consider the steps that should be followed when interpreting legislation in accordance with the Charter. Under Bell J’s approach, the first step is to identify the “literal or grammatical meaning” of the relevant provision without the aid of section 32(1). However, it is not clear whether the other members of the Court consider this step to be necessary. Gummow, Hayne and Heydon JJ’s judgments arguably envisage that statutory provisions will be interpreted with the aid of section 32(1) — albeit applied by reference to rights as limited in accordance with section 7(2) — without first identifying a separate “literal or grammatical meaning”.

Bell J was also the only member of the Court expressly to consider the role of evidence in relation to section 7(2). According to her Honour, “[c]onsideration of the purpose of the limitation, its nature and extent, and the question of less restrictive means reasonably available to achieve the purpose are matters that commonly will be evident from the legislation.” Given that a majority of the High Court disagreed with the Court of Appeal’s understanding of section 7(2), it is not clear if the Court of Appeal’s reasoning on the role of evidence in relation to section 7(2) remains authoritative.

Practical consequences for declarations of inconsistent interpretation

There was also substantial disagreement between the members of the Court in Momcilovic about the circumstances in which declarations of inconsistent interpretation under section 36 of the Charter could be made or reviewed. Gummow, Hayne and Heydon JJ each held that sections 33, 36 and 37 of the Charter were constitutionally invalid, on the basis that section 36 impermissibly impairs the institutional integrity of the Supreme Court of Victoria, and that the three sections are not severable from each other.

The majority of French CJ, Crennan, Kiefel and Bell JJ upheld the validity of section 36. It appears from the judgments that the following principles relevant to declarations of inconsistent interpretation have the support of a majority of the Court:

• The making of a declaration under section 36 involves the exercise of non-judicial power (supported by French CJ, Gummow, Hayne, Heydon and Bell JJ).
• The making of a declaration under section 36 does not impermissibly impair the institutional integrity of the Supreme Court of Victoria (supported by French CJ, Crennan, Kiefel and Bell JJ).
• The “consistency” analysis conducted by the Supreme Court of Victoria under section 36 is separate from the “compatibility” analysis conducted under section 7(2) (and, by extension, section 32(1)). Section 7(2) is not relevant when determining whether a statutory provision can be interpreted “consistently” with a human right (although it may inform the circumstances in which the Supreme Court exercises its discretion to make a declaration) (supported by French CJ, Crennan, Kiefel and Bell JJ).
• The Supreme Court of Victoria should exercise its discretion to make a declaration under section 36 with caution. It should not make a declaration where:
  • the inconsistency is reasonably justifiable under section 7(2) (supported by French CJ and Bell J); or
  • making the declaration would risk impairing the institutional integrity of the Court (for example, in a criminal matter where the Court would effectively be required to declare that a person’s Charter rights had been violated, but at the same time uphold a conviction) (supported by Crennan and Kiefel JJ).

It is not clear whether the French/Crennan/Kiefel/Bell majority’s approach to the interaction between 7(2) and section 36 is entirely consistent with the Gummow/Hayne/Heydon/Bell majority’s approach to the interaction between section 7(2) and section 32(1). If, as Gummow, Hayne and Heydon JJ held, section 7(2) informs the definition of the various Charter rights, then it is difficult to see how it can be separated from the Charter rights when applying the “consistency” analysis required by section 36. It is not clear whether this apparent inconsistency will have any practical effect on the application of the Charter.

Another inconsistency arises in relation to the question of the reviewability of declarations of inconsistent interpretation made under section 36. As a majority of the Court held either that the declaration made by the Court of Appeal was invalid, or was valid but should not have been made, the declaration was set aside. However, if we accept the conclusion of the French/Crennan/Kiefel/Bell majority that section 36 is valid, and we accept the conclusion of the French/Gummow/Hayne/Heydon/Bell majority that section 36 involves the exercise of non-judicial power, then it follows that declarations made under section 36 should not be reviewable by the High Court, as they are not judgments, decrees, orders or sentences of the Supreme Court of Victoria falling within the High Court’s appellate jurisdiction under section 73 of the Constitution.

Section 109 inconsistency

With the exception of Hayne J, all members of the Court rejected the argument that sections 5 and 71AC of the Drugs Act are inconsistent with sections 13.1, 13.2 and 302.4 of the Commonwealth Criminal Code and therefore inoperative under section 109 of the Constitution.

The decision is at http://www.austlii.edu.au/au/cases/cth/HCA/2011/34.html.

Mark Hosking is a lawyer with Allens Arthur Robinson. Allens acted for the Human Rights Law Centre which appeared as amicus curiae in both the Court of Appeal and the High Court.

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 of patients in his care while working at various group homes for people with disabilities.

JWC was convicted of 14 sexual offences and on appeal argued, amongst other things, that his statement had been obtained in a manner which violated his right to counsel and as such the statement should never have been admitted as evidence. The Ontario Court of Appeal dismissed the appeal.

Facts

In 2000, JWC was diagnosed with mental health problems arising from a bipolar disorder. Initially his condition responded to medication, but by September 2003, his condition had deteriorated to the extent that he was voluntarily admitted to a psychiatric unit.

On 1 October 2003, whilst still in psychiatric care, JWC rang the police and advised that he wanted to confess to sexual offences he had committed in the past. Later that day, he was taken to the local police station for interviewing following advice from his treating psychiatrist that although he suffered from bipolar disorder he “was of sound mind” and there was no reason he should not be allowed to be interviewed when he had called the police himself.

JWC was informed of his right to counsel both on the way to the police station and at the commencement of the interview. He did not exercise this right. He then provided a statement to police in which he stated he had sexually assaulted a number of patients who were in his care when he worked at various group homes for persons with disabilities. The alleged victims were subsequently identified and he was charged with a number of sexual offences.

Essentially, the Crown’s case depended upon on the statement made by JWC, as there were never any complaints of wrongdoing against JWC in the various group homes he had worked in and the victims were developmentally handicapped and largely unable to communicate so they did not testify at trial.

At the trial, JWC denied the content of the statement was true and argued against its admissibility. He testified that prior to 1 October 2003, he had begun to hear voices which told him that he was a ‘bad guy’ who had committed sexual offences and should be punished. He claimed that while he understood he could call a free lawyer at the time of the interview, he did not know how to do so and could not stop the interview to work this out because the voices in his head told him not to.

Ultimately, the statement was admitted and JWC was convicted of 14 sexual offences. He appealed to the Court of Appeal and argued, amongst other things, that his right to legal counsel under section 10(b) of the Canadian Charter had been breached and as such his statement should have been excluded.

Decision

The Court applied the framework for analysis of section 10(b) claims set out in the recently decided Sinclair trilogy. In particular, it noted there are two components of the right to counsel:

• the informational component (that is, what the police must tell a detainee about the right to consult counsel); and
• the implementation component (that is, the duty to hold off questioning until the detainee has had a reasonably opportunity to consult with counsel).

As there was no argument the informational component had not been complied with, the Court considered whether the police were required to ensure JWC had actually waived his right to counsel before proceeding with the interview, rather than simply assuming he had when he did not request time to consult counsel.

The Court held there would be circumstances in which the police may be required to provide a detainee with a further opportunity to consider whether to exercise their right to counsel before they can be satisfied the right to counsel has been waived. The Court gave examples such as where the detainee did not realise the jeopardy he or she was in or where there is reason to question the detainee’s understanding of the right to counsel as the interview continues.

However, even taking into account JWC’s psychiatric condition, the Court held there was no evidence to indicate JWC did not understand he had the right to immediately consult counsel if he wished to do so. This was particularly so given JWC’s treating physician had advised it was appropriate for him to participate in the police interview he sought. Further, this was not a situation in which JWC, the detainee, was uncertain about the nature of the allegations against him and then expressed uncertainty about whether to contact counsel. Instead, this was a case in which it was the detainee, and not the police, who had the exclusive knowledge and control over the information about the abuse he alleged he had committed.

Relevance to the Victorian Charter

Unlike the Canadian Charter, the Victorian Charter does not contain an express right to legal counsel when being detained for questioning before charges have been laid. Instead, section 25 of the Victorian Charter provides that a person charged with a criminal offence is entitled to communicate with legal counsel.

In Victoria, the protection set out in the Canadian Charter is afforded under section 464C of the Crimes Act 1958 (Vic) which provides that an investigating official must inform a person they have a right to communicate with legal counsel prior to questioning. This decision may provide a useful, albeit non-binding, framework for judicial consideration of the content of that right.

The decision can be found online at: http://www.canlii.org/en/on/onca/doc/2011/2011onca550/2011onca550.html

Susanna Kirpichnikov and Zara Durnan are lawyers at Lander & Rogers and former secondees to the Human Rights Law Centre.

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 that may constitute ‘unreasonable delay’. While the decision largely turned on the facts of the case, it serves as an important guide to what may amount to ‘unreasonable delay’ and the options available to the Court to provide a suitable remedy.

Facts

In October 2006, Kara Lesley Mills was charged with four offences including trafficking in a controlled drug, or alternatively, with possessing that drug, and receiving stolen property.

On 6 September 2007, following a committal hearing, Mills was committed to stand trial.

On 28 July 2008, the trial commenced but was later aborted after the informant revealed in evidence that DNA analysis of bags containing the drugs had been tested, contrary to the defence being told that they had not. That was highly relevant to Mills’s defence that the bags were left by someone else.

On 30 June 2009, a pre-arraignment conference was scheduled, but it was twice adjourned (because of counsel and witness unavailability) and when the matter returned on 11 August 2009, counsel for Mills indicated that representations were being made to the DPP regarding a permanent stay of proceedings because of delays. Consideration of that issue led to further adjournments.

On 29 October 2009, the next case conference was held and the matter was set down for trial on 7 March 2011. The stay application was foreshadowed and a timetable set. On 14 April 2010, the prosecution informed Mill’s solicitors that no DNA analysis of the seized drug packaging would be conducted. On 15 April 2010, the pre-trial application was part-heard but then not re-listed until 18 February 2011, apparently because of a death in the family of counsel for the prosecution.

On 7 March 2011, some 4 years after Mills was charged, the rest of the application was heard.

Argument

The sole argument from Mills was unreasonable delay, relying on section 22(1)(c) of the Human Rights Act 2004 (ACT) (Act) which states, “Anyone charged with a criminal offence is entitled to the following minimum guarantees, equally with everyone else: (c) to be tried without unreasonable delay“. In response, the prosecution seemingly acknowledged the delay, but argued that it would not be unfair to try Mills. The prosecution relied on House of Lords authority to argue that the appropriate response is not necessarily a permanent stay.

Decision

Higgins CJ granted a permanent stay in relation to charges 1, 2 and 3. Charge 4 had been earlier withdrawn by the prosecution.

Higgins CJ found that for a matter to take four years to come to trial after the decision to prosecute was unreasonable. He said, “The delay of two and a half years from the first trial, in a relatively simple case is…egregiously unreasonable, for whatever reason it might happen“. He then turned to what was the appropriate response.

His Honour relied on the decision in R v Upton [2005] ACTSC 52 in stating that the relevant test is one of proportionality. The relevant factors to be considered in His Honour’s view were – length of delay, reasons for delay, Mills’s timely assertion of the right in question, we well as prejudice. His Honour then addressed the particular circumstances of the case – the accused had raised the unfair delay point early, she had been put to the anxiety and expense of two trials, the prosecution had advanced no positive reasons for the delay and most importantly, had failed to explain why the drug bags had not been tested sooner. Interestingly, His Honour went on to critique the lack of resources available to the Courts, which he said may also have contributed to the delay – “the failure to provide adequate resources will, if unreasonable delay results, be a breach of human rights entitlements“.

All of those reasons combined were sufficient in His Honour’s view for the application to succeed and the permanent stay to be granted. The Court was of the view that that was the only appropriate response – an award of costs, relaxed bail conditions or credit for time served, were not.

Relevance to the Charter of Human Rights and Responsibilities Act 2006 (Vic)

The decision in Mills appears to be consistent with the trend in international and comparative jurisprudence to closely monitor delays in bringing matters to trial in criminal proceedings, particularly in circumstances where the prosecution is unable to sufficiently explain those delays.   In Victoria, delays in various trials have been recently questioned by judges and defence teams alike, particularly those with multiple defendants such as in alleged terrorist trials. Finally, the Court’s approach in R v Mills to section 22(1)(c) will certainly inform the interpretation of s 24 (right to fair hearing), s 25 (rights in criminal proceedings), in particular, s 25(2)(c) (right to be tried without unreasonable delay), of the Victorian Charter. Given national and international trends, it seems likely that Victorian courts would take a similar approach to that in Mills and look closely at delays on a case by case basis. Where an unreasonable delay is established, the Court could well apply any number of possible responses, including permanent stays in exceptional cases.

The decision can be found at: http://www.courts.act.gov.au/supreme/judgment/view/3981/title/r-v-mills

Daniel Creasey is Senior Associate & Pro Bono Coordinator (Melbourne) with DLA Piper

Webster v R [2010] EWCA Crim 2819 (01 December 2010)

The recent decision of the England and Wales Court of Appeal in Webster v R provides guidance concerning:

• the interpretation of the right to a ‘Fair Hearing’ under s 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic);
• the interpretation of the right to be presumed innocent until proven guilty under s 25(1) of the Charter;
• the operation of the requirement that all statutory provisions be interpreted in a manner compatible with human rights under s 32(1) of the Charter; and
• when a right can be justifiably limited under s 7 of the Charter.

Facts

The applicant, Matthew Webster, was charged with corrupting a public official.  Webster sold educational equipment to local schools.  Webster offered Cambridge Country Council’s educational procurement officer ‘Christmas gifts’ for helping him throughout the year.  Gifts included a DVD player and £100.

Pursuant to s 2 of the Prevention of Corruption Act 1916 (‘PC Act’) gifts are deemed to be given corruptly, within the meaning of the Public Bodies Corrupt Practices Act 1989, unless the contrary is proven.

Webster appealed against the conviction.  It was held that the jury would not have found him guilty had the presumption of guilt not arisen on the facts.  The appeal proceeded on the ground that s 2 of the PC Act was contrary to the applicant’s right to a fair trial and that the presumption of innocence had not been applied as required by art 6 of the European Convention of Human Rights.

Decision

The Court adopted the following methodology in determining whether the statutory provision was incompatible with the Convention:

1.       Does the statute interfere with rights enunciated in the Convention?

2.       If so, does the statute pursue a legitimate objective?

3.       If so, are the means by which this purpose is pursued necessary, reasonable and proportionate?

4.       Where interference with the right is unnecessary, unreasonable or disproportionate, can the provision be read down so that the right is not infringed?

Inconsistency with the European Convention

The Court held that the presumption of innocence is not an absolute right; rather, it is something that is integral to the right to a fair trial.  The right is infringed where the defendant is found guilty unless he or she can disprove the prosecution’s accusation of guilt.

By presuming guilt in all situations where a gift is made to a public official, the Court held that s 2 of the PC Act clearly interfered with the applicant’s right to a fair trial and to the presumption of innocence.

Was infringement of the right to a fair trial justified?

The Court held that the Convention does not prohibit factual presumptions, but requires States to place reasonable limitations on them.  In determining whether a presumption was reasonable, the Court considered whether the defendant had an opportunity to rebut the presumption, whether the Court retained the power to assess the evidence, the importance of the issues at stake and whether it was ‘extremely difficult, if not impossible’ for the prosecution to prove its case in the absence of the presumption.

In ascertaining the importance of the issue at stake, the Court considered the legislative history of the provision.  The reversal of the presumption of innocence was introduced in order to combat the problem of the corruption of public officials during World War II and the limited State resources available to detect it.  The Court found that this justification was no longer necessary and therefore could not justify infringement of the right to a fair trial.

Citing the US Supreme Court decision in Leary v United States [1969] 23 L Ed 2d 57 at 82, the Court noted that a presumption of fact will only be justified where it can be said with ‘substantial assurance’ that it reasonably flows from the fact upon which it depends.  That any gift given to a person in their role as a public official was necessarily corrupt did not have this certainty.

Reading down the infringing provision

While the statutory language unambiguously intended to reverse the presumption of innocence, the Court nonetheless held that the provision could be read down so as not to infringe Webster’s rights.  The Court emphasised that interpretation in line with the Convention was the primary remedial element of the Human Rights Act 1998 (UK).

Relevance to the Victorian Charter

This decision provides important guidance when interpreting the Victorian Charter.

The decision is useful in outlining the situations in which the right to the presumption of innocence can be justifiably infringed under s 7.  The Court emphasised that a presumption of facts can only be relied upon where there is ‘substantial assurance’ that the fact exists on the evidence provided.  The decision also indicates which factors can be weighed in order to determine justification.  The inference from these categories is that the State requires strong justification to infringe the right to the presumption of innocence.

In R v Momcilovic [2010] VCSA 50, the Victorian Court of Appeal unanimously held that clear, cogent and persuasive evidence must be used to demonstrate any justification to infringe human rights.  The Court’s decision in Webster indicates that evidence such as legislative history can be used.

Webster differs from the Victorian position in that emphasis is placed upon the primacy of interpreting statutes in line with the Convention, even where interpretation contradicts the express language of the provision.  By contrast, as held in Momcilovic, the Victorian Charter does not create a ‘special’ overarching rule of statutory interpretation.

The decision is at www.bailii.org/ew/cases/EWCA/Crim/2010/2819.html.

Jessica Simson, Seasonal Clerk, Mallesons Stephen Jaques

DPP v Ali & Anor (No 2) [2010] VSC 503 (10 November 2010)

The Supreme Court of Victoria (Hargrave J) recently considered the operation of the Charter of Human Rights and Responsibilities Act 2006 (Vic) in relation to an application to forfeit a family home that had been used in connection with a criminal offence.

The Attorney-General and the Victorian Equal Opportunity and Human Rights Commission both intervened to make submissions on the Charter issues.

Facts

Khodi Ali was the sole proprietor of a property in rural Victoria.  Mr Ali, his wife Dounia Ali, their three children and a child from Mr Ali’s prior marriage lived in a house on the property.  It was their family home.

In 2004, the family moved to Melbourne and lived with Mr Ali’s family.  Following this move, Mr Ali allowed three men to use the rural house and an adjacent garage for the purpose of manufacturing illegal drugs.  The Court found that Mr Ali had assisted in setting-up the drug manufacturing equipment and in making some physical alterations to the house and garage for that purpose.

Mr Ali and three other men were charged with various counts of conspiracy to traffick a drug of dependence.  Mr Ali was acquitted.  The three co-accused were convicted.  Shortly after Mr Ali’s acquittal, he and his family moved back to the property.

The Confiscation Act 1977 (Vic) permits forfeiture of property used in connection with the commission of serious offences, including drug trafficking.  The Director of Public Prosecutions (DPP) made an application for a forfeiture order for Mr Ali’s house.  This would deprive Mr Ali and his family of their home.

Submissions

The State argued that it could confiscate the property, sell it and forfeit the proceeds of sale under the Confiscation Act.  Mrs Ali resisted the forfeiture of the property on a number of grounds, arguing that:

• The relevant provision of the Act breached or limited certain human rights protected under the Charter and that the limit could not be justified.  Mrs Ali argued that the Court must therefore exercise its discretion to exclude the property from forfeiture on hardship grounds.
• In the alternative, Mrs Ali argued that the Court should exercise its discretion to either exclude the property from forfeiture on hardship grounds, or order payment to her of such portion of the sale proceeds of the property as is necessary to prevent hardship to her.
• Mrs Ali also argued that she is the beneficial owner of half of the property and sought to have that part of the property excluded from forfeiture.

The Victorian Equal Opportunity and Human Rights Commission intervened to make submissions to the Court about how it should exercise its discretion in s 38(2) of the Confiscation Act in accordance with the Charter, and in particular, Mrs Ali’s right to protection from arbitrary interference with one’s home (s 13), the right to protection of families and children (s 17), and the right to equality and freedom from discrimination (s 8).

It was submitted by Mrs Ali and the Commission that the hardship discretion under s 38(2) of the Confiscation Act is circumscribed by the relevant human rights and that, unless the making of a civil forfeiture order can be demonstrably justified under s 7(2) of the Charter, the Court must exclude the property from the operation of the civil forfeiture order which is mandated under s 38(1) of the Act.

Alternatively, Mrs Ali and the Commission contended that the Charter required the relevant human rights engaged in the case to be given significant weight in the exercise of the hardship discretion.  The State, through the Attorney-General, accepted that the relevant Charter rights must be afforded considerable weight in the exercise of the Court’s discretion.  However, it contested the submission that the Court must exercise its discretion to exclude the property from the operation of a civil forfeiture order unless the Court is satisfied that a civil forfeiture order is demonstrably justified under s 7(2) of the Charter.

Decision

The Court considered the principles in R v Momcilovic [2010] VSCA 50 and the rights not to have family or home arbitrarily interfered with, the entitlement of families to be protected by society and the State, and the right of a child to such protection as is necessary in his or her best interests by reason of being a child.

The Court found that the Confiscation Act is, by itself, incapable of breaching or limiting any human rights.  His Honour found that [at 41]:

If the Court was required to…exclude the property under s 38(2) unless forfeiture could be justified under s 7(2) of the Charter, that would be inconsistent with the express terms of s 38(1) and would, moreover, defeat its purpose…Section 38(2) remains a purely ameliorative provision according to its terms.  It does not limit any human right protected by the Charter.  In these circumstances, s 7(2) of the Charter has no relevance.

His Honour also noted [at 42]:

Further, the principal submission would have the effect of imposing an obligation on the Court to act in a way that is compatible with human rights.  The Charter does not impose this obligation on courts, only on public authorities.

The Court also found that:

• Mrs Ali had no beneficial interest in the property.  She did not establish a common intention through an express agreement, or conduct from which the necessary common intention could be inferred, as a matter of fact.  The Court also rejected the notion that the principles of a constructive trust applied in this case.  Accordingly, her application to exclude one-half of the property from the operation of the restraining order was dismissed.
• The Court ordered that the property be forfeited to the Minister.
• The Court found that there would be real hardship to the Ali family if the forfeiture order was effectuated and decided to exercise its discretion to provide partial relief against hardship.  The Court ordered that Mrs Ali be paid $125,000 out of the proceeds of the sale of the property.

The decision is at www.austlii.edu.au/au/cases/vic/VSC/2010/503.html.

Kerin Leonard is Manager of the Legal Unit at the Victorian Equal Opportunity and Human Rights Commission