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’ – such as intellectual disability or mental illness – before imprisoning that person in lieu of payment of unpaid fines. This duty arises under section 160 of the Infringements Act when read in conjunction with the right to liberty, the right to a fair hearing and the right to equality before the law under the Victorian Charter.

Facts

On 16 December 2011, Justice Emerton overturned an order that a person with an intellectual disability who had failed to pay fines should be jailed. Mr Taha had been unable to meet repayments under an imprisonment in lieu order pursuant to section 160 of the Infringements Act 2006 (Vic). On 12 January, the OPP filed Applications for Leave to Appeal.

Mr Taha appeared at Broadmeadows Magistrates Court in relation to $11,250.20 of unpaid fines – mostly public transport matters – in 2009. Unbeknownst to the duty lawyer or Court at the time, he had an intellectual disability and was on a Justice Plan – an order under the Sentencing Act, which is available only to persons with intellectual disability. The Magistrate made an order under section 160(1) of the Infringements Act that he pay the fines in instalments of $80 per month or face automatic imprisonment. Mr Taha, a disability support pensioner, did not pay the outstanding amount beyond $1280. The Sheriff contacted him indicating he would be imprisoned for 81 days and Mr Taha consequently sought the assistance of Victoria Legal Aid.

Victoria Legal Aid sought judicial review of the section 160 order on behalf of Mr Taha in the Supreme Court. The Victorian Equal Opportunity and Human Rights Commission (VEOHRC) intervened in support of Mr Taha’s arguments that his Charter rights under sections 8, 21 and 24 of the Charter – recognition and equality before the law, liberty and fair hearing – were infringed. The Broadmeadows Magistrates’ Court took an unusually active role in proceedings, opposing the application for judicial review.

Decision

Her Honour found there to be first, a denial of procedural fairness and second, a jurisdictional error, in that the Magistrate did not consider whether sub-section 160(2) applied. Sub-section 160(2) enables Magistrates to dismiss fines if people have ‘special circumstances’. ‘Special Circumstances’ are defined in the Act as: any mental or intellectual disability, disorder, disease or illness or a serious addiction to substances, which render a person unable to understand that they are offending or control their conduct. Alternatively, it may be homelessness, which leads to inability to control conduct. Sub-section 160(3) allows dismissal if imprisonment would be excessive, disproportionate and unduly harsh. Mr Taha had in fact had subsequent fines revoked on the grounds of his special circumstances.

Mr Taha’s counsel argued for a ‘unified’ approach to section 160, meaning that the possibility of dismissal under sub-sections 160(2) and (3) must be considered before an imprisonment in lieu order is made under sub-section 160(1). Her Honour held that such a unified approach was supported by the Charter rights to liberty, a fair hearing and to equal protection of the law. Invoking principles of indirect discrimination, Her Honour held that the right to equality under section 8 of the Charter meant that the Court may be required to make inquiries of the infringement offender aimed at ascertaining whether subsections 160(2) or (3) applied. She stated:

It is in the nature of an intellectual disability or a mental illness that it may prevent the offender from  . . . raising the condition with the Court. It would defeat the purpose  . . . if it could only be enlivened by the actions of a person burdened by a condition that may disable them from forming and exercising the necessary judgement to do so.

In finding a duty to inquire (a duty, which is rarely applied in our adversarial system), Her Honour recognised:

• the requirement of special treatment for people with intellectual disabilities, which is ‘reinforced’ by section 8(3) of the Charter;
• that the relevant inquiries, such as of the type of Centrelink benefit Mr Taha received or whether he was on a Justice Plan, could easily be made; and
• that representation by duty lawyers with significant workloads does not necessarily constitute ‘adversarial’ justice;  whereby it can be assumed that all relevant facts are before the Court.

Relevance of the Victorian Charter

In focusing on a substantially just outcome, which recognises the difficulties faced by people with disabilities in their interaction with the legal system, Her Honour’s decision is most welcome and a successful appeal against it will be a retrograde step for human rights as recognised in the Charter.

Aside from the rights pertaining more specifically to persons with disabilities, the consolidated cases of Taha and Brookes highlight a more general and grave systemic problem in Victoria’s legal system – the absence of an accessible avenue of merits-based appeal against orders to imprison people for non-payment of fines. Victoria Legal Aid, whose duty lawyers see an increasing number of imprisonment in lieu orders being made, is lobbying for introduction of such an appeal right.

The decision can be found online at: http://www.austlii.edu.au/au/cases/vic/VSC/2011/642.html

Sophie Delaney is a Senior Lawyer with Victoria Legal Aid’s Civil Justice Program

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

WK v The Queen [2011] VSCA 345 (30 November 2011)

Summary

In a recent appeal from an interlocutory decision of the County Court, the Victorian Court of Appeal held, by a majority of 2:1, that s 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) is applicable to the interpretation of the Surveillance Devices Act 1999 (Vic). Only His Honour Nettle JA considered the implications of the recent High Court decision in Momcilovic v The Queen [2011] HCA 34. However, all three judges agreed that the trial judge in this case:

• erred in holding that a recording of a private conversation between the defendant (WK) and his alleged victim (DTY) was prohibited under the Surveillance Devices Act, but
• was correct in admitting a transcript of the recording into evidence, regardless of the privacy issues involved.

Facts

WK is alleged to have attempted to procure sex from DTY by threat or intimidation. Crucial to the prosecution case was a recording of a conversation between WK and DTY, made on a tape recorder provided to DTY by the police. WK appealed the trial judge’s decision to admit a transcript of the tape recording into evidence, arguing that it was not authorised by the Surveillance Devices Act and should have been excluded under the Evidence Act 2008 (Vic). Section 6 of the Surveillance Devices Act prohibits the use of a listening device to record a private conversation between two other people without their consent. The trial judge actually issued an interlocutory ruling that the recording was made unlawfully, but, after weighing this fact against its probative value, refused to exclude it.

Given the implications of this provision for human rights, the Court of Appeal (by majority) considered its interpretation must be subject to s32(1) of the Charter, which requires that statutory provisions be interpreted consistently with human rights “so far as it is possible to do so consistently with their purpose.”

Decision

The Court of Appeal comprised Maxwell P, Nettle and Harper JJA. Maxwell P began by noting that Victoria Police have to date considered that s 6 of the Surveillance Devices Act does not prevent them from supplying equipment to others to record their own private conversations (as opposed to police recording them directly). This approach, His Honour noted, was vindicated in the case of R v Bandulla [2001] VSCA 202 (a pre-Charter case).

WK contended that a broader interpretation of the “use” of a listening device should include indirect use (through an agent) of such a device to obtain evidence, since the practice had implications for the right to privacy under s 13 of the Charter. If police were free to make recordings of private conversations without “judicial or regulatory supervision,” WK argued, arbitrary interferences with privacy in contravention of s 13 would be the result.

Maxwell P responded that such an interpretation would effectively criminalise accepted police practices, which would amount to an amendment of the legislation rather than a mere reinterpretation. This, he noted, would exceed the Court’s powers as discussed in Momcilovic v The Queen [2010] VSCA 50 (subsequently [2011] HCA 34). His Honour pointed out that s 6(2)(c) of the Surveillance Devices Act specifically exempts law enforcement officers who record a private conversation with the consent of only one party – reinforcing the view that the legislation was not intended to criminalise this aspect of police procedure. In any event, His Honour found no breach of WK’s right to privacy, and concluded that the trial judge was correct to admit this evidence, which is of “very significant probative value.”

Nettle JA agree with Maxwell P that the evidence should have been admitted, but on a slightly different basis. His Honour observed that:

the judgments in Momcilovic v The Queen do not yield a single or majority view as to what is meant by interpreting a statutory provision in a way that is compatible with human rights within the meaning of s 32 of the Charter. As it appears to me, French CJ and Crennan and Kiefel JJ took a view of s 32 which is similar to that adopted by this court in Momcilovic; Gummow, Hayne and Bell JJ took a broader view of s 32, which attributes greater significance and utility to s 7; and Heydon J concluded that s 32 is invalid. Assuming that s 32 is not invalid, one is left with a choice between the other two approaches.

Nettle JA said the trial judge had adopted the approach advocated by French CJ and Crennan and Kiefel JJ – effectively he considered s 6 as though there were a conflicting (unqualified) right to privacy in the common law. If he had instead followed the Gummow/Hayne/Bell JJ approach, he would have treated the right to privacy as subject to s 7 of the Charter (the general limitation provision). Choice of this latter approach, according to Nettle JA, might have resulted in a different conclusion because the right to privacy would be subject to “such reasonable limits as can be demonstrable justified in a free and democratic society….”

Nevertheless, Nettle JA ultimately concluded that neither approach would render the police conduct unlawful in this particular case, because the purpose of the Surveillance Devices Act, as reflected in s 11, clearly allow for limitations on the right to privacy for law enforcement purposes. Even if the recording had contravened the Act, His Honour held, the trial judge should still have admitted it under the Evidence Act rules concerning unfair admissions and improperly/unlawfully obtained evidence (ss 90 and 138).

Harper JA found that the applicant had, in the circumstances, “no possible right to privacy” because “an offender who is caught in the act cannot require that the direct evidence of those who saw or heard the commission of the crime be excluded on the basis that otherwise some right he or she has to his or her privacy will be infringed.” His Honour therefore found s 32 of the Charter to be irrelevant and agreed that the appeal should be dismissed.

As Nettle JA noted, the Charter’s first major test in the High Court (Momcilovic v The Queen) did not result in clear authority on how lower courts should approach their interpretive duties under ss 7 and 32. As such, the question of whether human rights-consistent interpretations of legislation under s 32 are to be considered in light of the general limitations in s 7 remains open.

The Court of Appeal’s decision can be found online at: http://www.austlii.edu.au/au/cases/vic/VSCA/2011/345.html

Adam Fletcher is Manager of the Accountability Project at the Castan Centre for Human Rights Law and a volunteer with the Human Rights Law Centre

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

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 adequate factual and legal reasons for arrest in a timely manner and in a language they understand, in line with article 5(2) of the European Convention on Human Rights. Justice Nicol of the High Court emphasised that “[r]ights under the common law and the Convention are intended to be real rights and confer real benefits. The Claimant was entitled to know, at least in the broadest terms, why he was being arrested.”

Facts

The UK Secretary of State made a decision excluding Mr Mahajna, a pro-Palestine political activist, from entering the UK on public interest grounds. Mr Mahajna was not notified of this decision before being granted leave to enter the UK on 25 June 2011.

On 28 June 2011, Mr Mahajna was arrested by five Immigration Officers at his hotel in London. One of the officers stated in English that Mr Mahajna was being arrested for detention under the Immigration Act 1971 (UK). Mr Mahajna does not speak or understand English. Mr Mahajna’s interpreter was prevented from communicating with Mr Mahajna at the time of arrest and from accompanying Mr Mahajna to the police station. In the car to the police station, one of the officers incorrectly informed Mr Mahajna that he was being arrested for immigration offences (using an iPhone translation application). The form on which the grounds for arrest were listed contained errors as to the reasons for Mr Mahajna’s arrest, but Mr Mahajna was not able to understand these errors as they were written in English. Mr Mahajna was not provided with the correct reasons for his arrest – namely that the Secretary of State considered his deportation to be imminent and in the public interest – in Arabic until 30 June 2011.

Mr Mahajna remained in detention until he was released subject to stringent bail conditions on 18 July 2011. Mr Mahajna is currently appealing the Secretary of State’s decision that his presence in the UK is inimical to the public good in a separate case.

Decision

Justice Nicol held that the Secretary of State’s statutory power to detain a person pending deportation under the Immigration Act 1971 (UK) is qualified by the right to adequate reasons for arrest. Article 5(2) of the European Convention on Human Rights provides that “[e]veryone who is arrested shall be informed promptly in a language which he understands, of the reasons for his arrest and any charge against him”.

Justice Nicol applied the objective test of “whether, having regard to all the circumstances of the particular case, the person arrested was told in simple, non-technical language that he could understand, the essential legal and factual grounds for his arrest”, originally formulated in Lord Justice Clarke’s leading judgment in the European Court of Human Rights decision of Fox, Campbell and Hartley v UK (1990).

Mr Mahajna’s arrest was held to be unlawful following two separate principles.

First, a person under arrest must be told the factual and legal reasons for their arrest at the time the arrest is made. While Mr Mahajna did not have to be informed of all the details, he had a right to be informed that he was being arrested because he was about to be deported. The officers’ failure to state this reason was of itself sufficient to establish that Mr Mahajna’s right to adequate reasons for arrest had been violated, rendering the arrest unlawful.

Secondly, the reasons given to a person under arrest must be in a language which the person can understand. Whether the officers knew Mr Mahajna could not speak or understand English was considered immaterial to determining the objective test that the arresting officers do “all that was reasonable in the circumstances” to provide adequate reasons. On the facts, there was a lack of evidence explaining why the officers had failed to ensure the reasons were available in Arabic, such as allowing Mr Mahajna’s interpreter to communicate with him or ensuring an Arabic speaking officer was present at the time of arrest. Thus, the failure to provide Mr Mahajna with reasons for his arrest in a language he could understand constituted a separate ground on which his arrest was unlawful.

Although the form on which the reasons for arrest and detention were listed contained errors, Nicol J found that these did not prejudice Mr Mahajna as he was unable to understand them at the relevant time. By the time the errors on the form were translated to Mr Mahajna, the accurate reasons for arrest and detention had been provided.

Further, the fact that Mr Mahajna did not ask for further information about his detention does not prejudice his case. Justice Nicol clarified that the onus is on the arresting officers to provide reasons irrespective of whether the person under arrest or detention asks for them.

Relevance to the Victorian Charter

Section 21(4) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) recognises a right to adequate reasons for arrest or detention similar to article 5(2) of the Convention. It explicitly states that “[a] person who is arrested or detained must be informed at the time of arrest or detention of the reason for the arrest or detention and must be promptly informed about any proceedings to be brought against him or her.”

Although it is unclear whether Australian courts will adopt the approach taken by the English and Wales High Court, this case indicates that the right to adequate reasons for arrest or detention under the Victorian Charter should be qualified by two key principles. First, the reasons provided should contain both the factual and legal grounds for arrest or detention. Secondly, the reasons should be in a language which the person under arrest is able to understand.

The decision can be found online at: www.bailii.org/ew/cases/EWHC/Admin/2011/2481.html

Lee Carnie is a volunteer with the Human Rights Law Centre.

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.