Human Rights Case Summaries

ZZ v Secretary, Department of Justice [2013] VSC 267 (22 May 2013)

The Victorian Supreme Court has upheld the appeals of a man who was refused an assessment notice and an accreditation that he needed to work as a bus driver. The court found that in assessing whether the man was “a risk” to children, rather than an “unjustifiable risk”, the VCAT had misapplied the statutory test. Justice Bell also found that VCAT failed to consider, among other things, the relevance of the applicant’s right to work in weighing up whether it was in the public interest for him to be given the required clearances.

Mokbel v The Queen [2013] VSCA 118 (17 May 2013)

The Victorian Court of Appeal has refused Antonios Sajih (Tony) Mokbel leave to appeal against a conviction and sentence relating to three serious drug offences. The Court upheld the decision at first instance that complaints about the conduct of Australian authorities (who accepted Mr Mokbel’s extradition whilst he had an application to the European Court of Human Rights on foot) fell far short of justifying a permanent stay of his criminal charges.

Director of Public Prosecutions (Cth) v Keating [2013] HCA 20 (8 May 2013)

The High Court of Australia has provided much needed clarity on the question of when an omission to do an act can constitute an element of the Commonwealth offence of obtaining a financial advantage.

R v Chaouk [2013] VSCA 99 (2 May 2013)

The Victorian Court of Appeal has unanimously confirmed that a court can stay a criminal trial where the absence of an instructing solicitor on a day to day basis throughout the trial is likely to result in an unfair trial. The decision upholds the first instance finding by Justice Lasry in R v Chaouk [2013] VSC 48 (15 February 2013).

Esther Kiobel, Individually and on behalf of her late husband Dr. Barinem Kiobel, et al, Petitioners. v. Royal Dutch Petroleum Co. et al., 569 US (2013) (17 April 2013) 

The United States Supreme Court has found that the Alien Tort Statute, used for decades by survivors of human rights abuses to seek redress, has no application to violations committed in other countries unless there is a strong connection with the US. The Court expanded the presumption against extraterritorial application to limit the scope of the Statute. The Justices of the Court agreed that mere presence of a corporation in the US would not of itself demonstrate a strong enough link to bring alleged extraterritorial human rights violations within the Statute’s ambit. However, the Court declined to address the broader question of corporate liability under the Alien Tort Statute.

Victoria Police Toll Enforcement v Taha; State of Victoria v Brookes [2013] VSCA 37

The Court of Appeal held that there is a duty on Magistrates to inquire into whether infringement offenders have disabilities such as mental illness or intellectual disability, or other special circumstances, before making an imprisonment order in respect of unpaid fines. This duty is a consequence of a proper construction of the relevant statutory provision, section 160 of the Infringements Act 2006 Vic. This construction is supported by section 32 of the Charter, as it is more compatible with the rights to equality, liberty and a fair hearing.

Monis v The Queen;  Droudis v The Queen [2013] HCA 4 (27 February 2013)

The High Court of Australia has split 3:3 on whether a provision of the Criminal Code (Cth) making it an offence for a person to use a postal or similar service in an offensive way is invalid as an impermissible burden on the freedom of communication about government or political matters implied in the Australian Constitution (“implied freedom”). French CJ, Hayne and Heydon JJ separately answered the question in the affirmative, while Crennan, Kiefel and Bell JJ jointly answered in the negative. Pursuant to section 23(2)(a) of the Judiciary Act 1903 (Cth), which deals with equally divided opinions of the Court, the decision appealed from — that of the NSW Court of Criminal Appeal that the provision is valid — was affirmed.

Van Colle v United Kingdom [2012] ECHR, Application No 7678/09 (13 November 2012)

This decision of the European Court of Human Rights considered the scope of a state's obligation to protect life, which is contained in the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The Court re-stated that authorities have a positive obligation to take action where they know, or ought to know, that there is a “real and immediate risk” to the life of an identified individual from the criminal acts of another. However, in this case, the Court found that the circumstances did not establish such an obligation.

Irene Wilson v The United Kingdom [2012] ECHR, Application no. 10601/09 (23 October 2012) 

The European Court of Human Rights found that the Northern Ireland authorities had not failed in their duty to respond to domestic violence perpetrated against the applicant, Ms Irene Wilson, and her complaint was deemed inadmissible.

Nada v Switzerland [2012] ECHR 1691 (12 September 2012) 

This is a decision of the Grand Chamber of the European Court of Human Rights regarding how states should approach divergent international law obligations.

Russell v Pangallo [2012] ACTMC 4 (24 August 2012) 

In the ACT Magistrates Court, a Magistrate held that a six year delay between the filing of a summons for a drink driving offence and the first court date for that offence did not constitute unreasonable delay giving rise to a breach of the ACT Human Rights Act 2004.

R v Bellusci, 2012 SCC 44 (3 August 2012) Summary

The full bench of Canada's Supreme Court has upheld a trial judge's decision to permanently stay proceedings against a prisoner who was found guilty of threatening to rape a prison guard's wife and children. Because the prisoner was assaulted during the incident, his rights were found to be infringed under the constitutional Canadian Charter of Rights and Freedoms, and a discretionary remedy available under section 24(1) was awarded on this basis.

RT (Zimbabwe) & Ors (Respondents) v Secretary of State for the Home Department
(Appellant); KM (Zimbabwe) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2012] UKSC 38 (25 July 2012)

The Supreme Court of the United Kingdom considered whether an individual who has no political views, and therefore does not support the persecutory regime in his or her home country, is entitled to a claim for asylum where the alternative is to lie and feign loyalty to that regime in order to avoid persecution.

R v Wayne Michael Connors [2012] ACTSC 80 (28 May 2012) 

Chief Justice Higgins of the ACT Supreme Court has rejected claims made by Mr Connors that a bail condition requiring he undergo urinalysis (urine testing) to enforce abstinence from illicit drugs was beyond the powers conferred by section 25 of the Bail Act 1992 (ACT). The court confirmed that the bail conditions did not breach Mr Connors’ right to privacy under section 12 of the Human Rights Act 2004 (ACT).

Mattu v University Hospitals of Coventry and Warwickshire NHS Trust [2012] EWCA Civ 641 (18 May 2012) 

The England and Wales Court of Appeal has found that a disciplinary process which resulted in the dismissal of an employee did not engage that employee’s civil rights under the European Convention of Human Rights. Thus, the employer was not bound by the obligations to provide a fair hearing under the Convention.

Dawas v Denmark, UN Doc CERD/C/80/D/46/2009 (2 April 2012) 

The UN Committee on the Elimination of Racial Discrimination was asked to consider whether the Applicants’ rights under articles 2 (prevention of racial discrimination) and 6 (effective preventions and remedies) of the Convention on the Elimination of All Forms of Racial Discrimination had been breached by Denmark’s failure to investigate the racist character of an attack on the Applicants and to prosecute the attackers on the basis that their alleged crimes had a racist character. The Committee held that various deficiencies in Denmark’s investigation of the attack and its prosecution of the attackers gave rise to contraventions of articles 2 and 6.

R v Dennis Michael Nona [2012] ACTSC 41 (23 March 2012)

In R v Nona the ACT Supreme Court considered the right to a fair trial without unreasonable delay in the context of whether or not to stay criminal proceedings. The key issues related to a breach of a statutory human right and the appropriate remedy for that breach. While the court found that the right to a trial without unreasonable delay had been breached, it considered that a declaration would be an appropriate remedy rather than a permanent stay. This decision is important because it discusses the relevance of section 30 (interpretation of laws and human rights) of the Human Rights Act 2004 (ACT) (HRA) when interpreting ACT legislation, and the common law and statutory principles of undue delay.

Doré v Barreau du Québec, 2012 SCC 12 (22 March 2012)

The Supreme Court of Canada has delivered a key decision clarifying the standard of review to be applied in considering whether administrative decision-makers have exercised their discretion compatibly with the Canadian Charter. The Court held that, rather than using the test in R v Oakes [1986] 1 SCR 103, which is used to determine whether legislation is Charter compatible, a more flexible reasonableness test should be used, drawing on administrative law concepts and providing greater deference to administrative decision-makers.

Slaveski v The Queen (on the application of the Prothonotary of the Supreme Court of Victoria) [2012] VSCA 48 (20 March 2012)

The applicant, Mr Slaveski, appealed against conviction and sentence for contempt of court.The Victorian Equal Opportunity & Human Rights Commission intervened in the proceeding regarding the application of the Charter of Human Rights and Responsibilities Act 2006 (Vic) to the Supreme Court. The Commission’s submissions concerned, among other things, whether the trial judge erred in not granting an adjournment to Mr Slaveski in circumstances where his lawyers had withdrawn and he alleged that evidence relevant to his trial had been tampered with.

Slaveski v Smith & Anor [2012] VSCA 25 (29 February 2012)

This decision of the Victorian Court of Appeal clarifies the content of aspects of the right to a fair hearing (section 24) and rights in criminal proceedings (section 25) in the Charter of Human Rights and Responsibilities Act 2006 (Vic). The decision also indicates the approach the Court is taking to the interpretation provision (section 32) after the High Court decision in Momcilovic.

R v Fleischman, 2012 ONCJ 120 (24 February 2012) 

This was a Canadian case in the provincial division of the Ontario court system. The applicant was charged with impaired driving and driving with greater than 80mg of alcohol in 100ml of blood (“over 80”). He brought an application pursuant to sections 7, 11(d) and 24(1) of the Canadian Charter of Rights and Freedoms for the proceedings against him to be conditionally stayed until state-funded counsel was provided for his trial. The judge found that counsel was essential to the applicant’s right to a fair trial and that the applicant was unable to afford to obtain counsel, and on that basis stayed the proceedings until state funding could be provided.

Al-Khawaja and Tahery v United Kingdom – 26766/05 [2011] ECHR 2127 (15 December 2011)

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 European Court of Human Rights has clarified the scope of a State party’s obligation to investigate a death in circumstances involving a potential breach of the right to life.

In Pearson v United Kingdom [2011] ECHR 2319, the Court clarified that, where government employees or agents are implicated in a death, the State is bound to adequately investigate the death to establish the relevant facts and to hold persons accountable, as appropriate. Those obligations may be met by, or shared between, several different processes and authorities. There is no requirement for a single body, such as a coroner’s court, to deal with all aspects of an investigation.

McGowan (Procurator Fiscal, Edinburgh) v B (Scotland) [2011] UKSC 154 (23 November 2011)

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.

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

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.

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

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.

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

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.

R v Kara Lesley Mills [2011] ACTSC 109 (1 July 2011)

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.

R v Ahmad, 2011 SCC 6 (10 February 2011)

The Supreme Court of Canada has held that a two court scheme regulating the disclosure of information relating to international relations, national defence or national security in criminal proceedings does not violate the right to a fair trial. Properly interpreted, the statutory scheme was sufficiently flexible to preserve the full authority of the judge presiding over the criminal trial to do justice between the parties and preserve the rights of the defendant to a fair trial.

Legal Services Commission v Humberstone, R (On the application of) [2010] EWCA Civ 1479 (21 December 2010)

The England and Wales Court of Appeal has held that the state’s obligation to conduct an effective and proactive investigation into a death arises where the circumstances gave rise to the possibility of a breach of the state’s positive duty to protect life.  This duty extends to involving the next of kin in the proceedings to the extent necessary to safeguard their legitimate interests.

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.

DPP v Piscopo [2010] VSC 498 and DPP v Rukandin [2010] VSC 499 (12 November 2010)

The recent decisions in DPP v Piscopo [2010] VSC 498 and DPP v Rukandin [2010] VSC 499 provide further guidance concerning alcohol testing enforcement.  The two separate judgements, delivered simultaneously by Kyrou J, contain identical legal reasoning dealing with ss 49(1)(e), 55(1) and 55(9A) of the Road Safety Act 1986 (Vic).  The Court concluded that where police request a motorist to accompany them for the purpose of furnishing a sample of breath or blood, the motorist must be informed that they have to remain until that sample has been taken or until three hours after driving, whichever is sooner.

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.

Wells v The Queen (No 2) [2010] VSCA 294 (4 November 2010)

The Court of Appeal dismissed this interlocutory criminal appeal.  The applicant in part sought a permanent stay of a criminal trial on the basis that the Charter rights relating to criminal proceedings (ss 24 and 25) were breached.  In dismissing the appeal, the Court of Appeal commented that it would rarely entertain Charter arguments in interlocutory appeals, due to their complexity and the prospect of causing delays in criminal trials.

Road Accident Fund and Another v Mdeyide [2010] ZACC 18 (30 September 2010)

The Constitutional Court of South Africa has held that an inflexible 3-year time limit for lodging a claim for personal injuries sustained in a transport accident is a justified limitation on the right to access courts, which is protected by s 34 of the South African Bill of Rights.

Bedford v Canada, 2010 ONSC 4264 (28 September 2010)

In September 2010, the Superior Court of Justice of Ontario (Canada) struck down ss 210, 212(1)(j) and 213(1)(c) of the Criminal Code, which criminalised certain aspects of sex work, on the basis that they violated the right to security of the person and, in the case of s 213(1)(c), the freedom of expression.  According to the Court, the impugned provisions endangered the lives of sex workers and forced them to choose between their right to liberty and their right to security of the person, in violation of the Canadian Charter of Rights and Freedoms.

McFarlane v Ireland [2010] ECHR 1272 (10 September 2010)

In a decision of the Grand Chamber of the European Court of Human Rights, Ireland was held by twelve votes to five to be in breach of the right to have a hearing within a reasonable time under art 6 § 1 and the right to an effective remedy under art 13 of the European Convention of Human Rights.  The Grand Chamber awarded the applicant €5,500 in non-pecuniary damages and €10,000 in costs and expenses.

De Simone v Bevnol Constructions and Developments Pty Ltd & Ors [2010] VSCA 231 (10 September 2010)

The Victorian Court of Appeal has declined to answer a question of law referred to it by the Victorian Civil and Administrative Tribunal under s 33(1) of the Charter on the basis that VCAT had not determined the merits of the application before it, and accordingly, the question was purely hypothetical.

  Director of Public Transport v XFJ [2010] VSC 319 (29 July 2010)

The Victorian Supreme Court has affirmed the importance of a broad approach to the construction of human rights in the Charter, including appropriate reliance on international human rights law and comparative jurisprudence.

Quinn v Overland [2010] FCA 799 (28 July 2010)

The Federal Court of Australia has found that there is a serious issue to be tried that s 20(3)(c) of the Public Administration Act 2004 (Vic) (‘the PA Act’) places a statutory duty on public sector employers to conform with ‘public sector employment principles’.  Although not directly relevant to this case, s 8(ca) of the PA Act defines public sector employment principles to include ‘employment processes that will ensure that… human rights as set out in the Charter of Human Rights and Responsibilities are upheld’.  This decision also supports the view that employment policies established for the purpose of s 8(ca) constitute statutory duties that must be upheld by public sector employers.

Coronial Investigation of 29 Level Crossing Deaths – Ruling on the Interpretation of Clause 7(1) of Schedule 1 of the Coroners Act 2008 (Vic) (25 June 2010)

The Coroners Court has held that right to life under s 9 of the Charter of Human Rights and Responsibilities Act requires that questions as to jurisdiction and interpretation in the Coroners Court be resolved to enable inquiries to ‘address systemic and prevention issues’.

R v Conway, 2010 SCC 22 (11 June 2010)

The Supreme Court of Canada has held that administrative tribunals with the authority to apply the law, have the jurisdiction to apply the Charter to the issues that arise in the proper exercise of their statutory functions.  It has further confirmed that tribunals should play a primary role in determining Charter issues that fall within their specialized jurisdiction and that, in exercising their statutory functions, administrative tribunals must act consistently with the Charter and its values.

Gafgen v Germany [2010] ECHR 759 (1 June 2010)

The Grand Chamber of the European Court of Human Rights has found, by majority, that a threat of torture amounted to inhuman treatment, but was not sufficiently cruel to amount to torture within the meaning of the European Convention on Human Rights.  The Court also considered that the applicant remained a victim of the violation, despite limited remedial actions taken by the State party.  Further, it held that the applicant had been afforded a fair trial, because his confessions obtained by way of the breach had been excluded from evidence, even though real evidence obtained as a result of the confession evidence was not excluded.

Gonzalez v Guyana, UN Doc CCPR/C/98/D/1246/2004 (21 May 2010)

The UN Human Rights Committee has held that an undue delay in judicial proceedings to naturalize Mr Gonzalez as a citizen of Guyana constituted unreasonable and arbitrary interference with the right to family in violation of art 17(1) of the International Covenant on Civil and Political Rights.  The Committee also opined the right to a fair hearing was compromised by procedural delays in violation of art 14(1) of the ICCPR.  The delays were found to adversely affect Mr Gonzalez’s application for citizenship.

Kononov v Latvia [2010] ECHR 667 (17 May 2010)

The Grand Chamber of the European Court of Human Rights considered whether criminal law was retrospectively applied to convict Mr Kononov, in violation of art 7 of the European Convention of Human Rights.

The Grand Chamber had to assess whether, at the time of the offence, international law provided a legal basis to convict Mr Kononov for war crimes and, furthermore, whether he could he have foreseen that his actions would make him guilty of those offences.  Unless both tests were satisfied, the conviction would contravene art 7. The Grand Chamber also considered how the extension of statutory limitations should be treated under Article 7.

Michelle Dawson v Transport Accident Commission [2010] VCAT 796 (13 May 2010)

Ms Dawson was seriously injured in a car accident on 13 October 2005.  As a result of her injuries Ms Dawson received a number of therapies in accordance with her entitlements under s 60 of the Transport Accident Act 1986 (Vic), funded by the Transport Accident Commission (TAC).  After having children, Ms Dawson requested that the TAC pay for child care services to enable her to continue rehabilitation.  The TAC denied her request and Ms Dawson filed an application for review with VCAT.

Smith v Hobsons Bay City Council [2010] VCAT 668 (12 May 2010)

A recent VCAT decision establishes that a planning scheme provision limiting views into existing secluded private open space and habitable room windows is not incompatible with the Charter.  VCAT also held that a local council does not act in a way that is incompatible with the Charter when exercising its discretion to maintain, modify or delete a planning permit condition requiring the overlooking of premises to be mitigated.

Krumpholz v Austria [2010] ECHR 341 (18 March 2010)

In Krumpholz v Austria, the European Court of Human Rights held that deeming the owner of a vehicle to have committed a traffic offence (by virtue of their ownership of the vehicle) breaches the European Convention right to a fair hearing and presumption of innocence.

R v Momcilovic [2010] VSCA 50 (17 March 2010)

In a landmark decision, the Victorian Court of Appeal has unanimously held that:

• s 32(1) of the Charter is not a ‘special’ rule of statutory interpretation, but rather a statutory directive that requires all persons engaged in the task of statutory interpretation to ‘explore all possible interpretations of the provision(s) in question, and adopt that interpretation which least infringes Charter rights’;
• the issue of ‘justification’ pursuant to s 7(2) arises only if it is not ‘possible’ to interpret legislation compatibly with human rights;
• any infringement of human rights should be ‘demonstrably justified’ by clear, cogent and persuasive evidence;
• where an infringement can not be demonstrably justified, the Court should grant a Declaration of Inconsistent Interpretation, such declarations being ‘central’ to and ‘exemplifying the dialogue model of human rights legislation’.

Mohamed v Secretary of State for Foreign & Commonwealth Affairs [2010] EWCA Civ 65 (10 Feb 2010)

On 10 February 2010, the Court of Appeal (the Lord Chief Justice, the Master of the Rolls and the President of the Queen’s Bench presiding) published its decision in the protracted and highly publicised litigation involving Binyam Mohamed.  The decision addresses a number of important legal issues that derive from the working relationship between the intelligence services of the UK and the USA, including the appropriate balance between non-disclosure and public-interest immunity, and principles of open justice.  As the Chief Justice astutely concluded (at [57]), the decision also engages ‘concepts of democratic accountability and, ultimately, the rule of law itself’.

G, R (on the application of) v X School & Ors [2010] EWCA Civ 1 (20 January 2010)

The English Court of Appeal has held that proceedings that are not by themselves determinative of civil rights or obligations may still be subject to the requirements of art 6(1) of the European Convention on Human Rights where the outcome of the proceedings will have a substantial influence or effect on the determination of those rights or obligations.

Orobator v HMP Holloway & Anor [2010] EWHC 58 (Admin) (20 January 2010)

In this case, the England and Wales High Court rejected a British citizen’s challenge to her detention in the UK after being convicted of drug offences in Laos.  While the Court accepted that the claimant had been treated unfairly, it was not satisfied her trial and conviction in Laos amounted to a ‘flagrant denial of justice’ such as to justify her release from prison.

A W Khan v United Kingdom [2009] ECHR 27(12 January 2010)

The European Court of Human Rights has held that the deportation of a convicted heroin trafficker, who had not re-offended since release from prison and had developed strong ties with a country based on long-term residency, family and children, constituted a violation of the applicant’s right to private and family life.

R v Horncastle & Ors [2009] UKSC 14 (9 December 2009)

The new UK Supreme Court (replacing the House of Lords) has delivered an important judgment concerning the role of hearsay evidence; in particular, evidence adduced from witnesses who were unable to attend court either because they were dead or out of fear for their safety.  The Court held that where the evidence before a court is that of an identified but absent witness, there is no reason for imposing an absolute rule that such evidence should be excluded where it is the 'sole or decisive evidence' against a defendant, provided appropriate counter-balancing measures had been adhered to.

Omojudi v United Kingdom [2009] ECHR 1820/08 (24 November 2009)

The European Court of Human Rights has held that the deportation of Steven Omojudi from the United Kingdom to Nigeria was an unjustifiable interference with Omojudi’s right to respect for private and family life under art 8 of the European Convention on Human Rights.  Omojudi had lived in the UK for 26 years.  During this time, he had been convicted of two serious criminal offences.  In reaching its decision, the Court emphasised the long period during which Omojudi had not committed any offences and the significant disruption to his family life in the UK.

Russell v Yarra Ranges Shire Council [2009] VSC 486 (29 October 2009)

On 29 October 2009, Kaye J of the Supreme Court of Victoria considered the duty that a court or Tribunal might owe to an unrepresented litigant to ensure that the person understands his or her legal rights.  His Honour considered the principles of natural justice under common law and also the right to a fair hearing under s 24 of the Charter of Human Rights and Responsibilities Act 2006.  Justice Kaye found that the Victorian Civil and Administrative Tribunal had not breached the principles of natural justice and therefore had not denied rights under s 24 of the Charter. 

Secretary to the Department of Justice v Fletcher (Ruling No 3) [2009] VSC 503 (22 October 2009)

Section 49(2) of the Charter states that the Charter ‘does not affect any proceedings commenced or concluded before the commencement of Part 2’.

In this case, the question arose as to whether a particular application in relation to an Extended Supervision Order (‘ESO’) under the Serious Sexual Offenders Monitoring Act 2005 (Vic) (‘SOM Act’) was a ‘proceeding’ and, if so, the relevant date of its commencement.

Materials Fabrication Pty Ltd v Baulderstone Pty Ltd [2009] VSC 405 (8 September 2009)

On 8 September 2009, Vickery J of the Victorian Supreme Court handed down a decision which considered the right to commence a civil proceeding.  In the decision, Vickery J noted that the common law enshrines a right to commence legal proceedings and that this right is re-inforced by of s 24(1) of the Victorian Charter.  A dispute resolution clause in a commercial contract which aimed to limit parties’ access to the court was held inconsistent with this right and therefore invalid. 

Re an application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381 (7 September 2009)

In a landmark decision for the operation of the Charter of Human Rights and Responsibilities, Warren CJ of the Supreme Court of Victoria, has found that a provision of the Major Crime (Investigative Powers) Act 2004 (Vic), which provides for the abrogation of the privilege against self-incrimination, must be interpreted as extending derivative use immunity to a person, so as to be compatible with human rights.

Swancom Pty Ltd v Yarra CC [2009] VCAT 923 (10 June 2009)

On 10 June 2009, Deputy President Dwyer and Member Bensz of the Victorian Civil and Administrative Tribunal handed down a decision which discussed the application of the Charter of Human Rights and Responsibilities Act 2006 to local government planning decisions.

R v Godin, 2009 SCC 26 (CanLII) (4 June 2009)

The Supreme Court of Canada upheld an appeal for a stay of proceedings where there was a delay of 30 months between the accused being charged and brought to trial.  The Court held that the accused’s right to be tried within a reasonable time under the Canadian Charter of Rights and Freedoms had been violated.

Trustees for the time being of the Biowatch Trust v Registrar Genetic Resources and Others (CCT 80/08) [2009] ZACC 14 (3 June 2009)

The Constitutional Court of South Africa has confirmed that the general rule for an award of costs in constitutional litigation between a private party and the state is that if the private party is successful, it should have its costs paid by the state, and if unsuccessful, each party should pay its own costs.

The litigation must raise a genuine constitutional issue and any perceived ‘misconduct’ on the part of the applicant would need to be of such a compelling kind to justify a departure from the general rule.  The Court held that the over-arching principle is not to discourage the pursuit of constitutional claims.

Kay v Victorian Attorney-General & Anor (Victorian Court of Appeal, Unreported, 19 May 2009)

In this case, the Victorian Court of Appeal considered whether the making of a vexatious litigant order was compatible with the right to a fair hearing under s 24 of the Victorian Charter.  The Court held that while the right to a fair hearing subsumes a right to access the courts and, in certain cases, a right to legal aid, these rights are not absolute and may be subject to reasonable limitations.  In the circumstances, the Court considered the vexatious litigant order to be a reasonable limitation.

Secretary of State for Defence v Smith, R (on the application of) [2009] EWCA Civ 441 (18 May 2009)

The Court of Appeal of England and Wales held that a soldier in the British Army serving in Iraq was within the jurisdiction of the United Kingdom for the purposes of the Human Rights Act 1998 (UK).  The United Kingdom is therefore obliged to extend protection under the Act to its soldiers serving overseas even when they are not on military bases.

Hakimi v Legal Aid Commission (ACT) [2009] ACTSC 48 (12 May 2009)

The ACT Supreme Court has ruled that there is no absolute right for a legally aided person to choose their own lawyer.  This case was the first application made under amendments to the Human Rights Act 2004 (ACT) creating a new cause of action for breach of human rights, which came into force on 1 January 2009.

R v Briggs-Price [2009] UKHL 19 (29 April 2009)

The House of Lords has unanimously held that a confiscation order can be validly made on the basis of matters established by evidence at trial, but in relation to which a defendant has not been charged.  This practice does not infringe the defendant's right to the presumption of innocence or right to a fair trial under the European Convention on Human Rights.

De Simone v Bevnol Constructions and Developments Pty Ltd (Unreported, Supreme Court of Victoria, Court of Appeal, Neave JA and William AJA, 3 April 2009)

The Court of Appeal held that courts and tribunals are bound by ss 24 (right to a fair hearing) and 25 (rights in criminal proceedings) of the Victorian Charter when they exercise functions engaging those rights.

In this case, there was a possibility that VCAT had erred by not taking ss 24 and 25 into account when refusing to stay civil proceedings.  However, no substantial injustice was caused by the refusal and the Court of Appeal therefore declined to overturn VCAT's decision.

R v Fearnside [2009] ACTCA 3 (24 February 2009)

This case establishes the principle that the requirement, set out at s 30 the Human Rights Act 2004 (ACT), to interpret laws compatibly with human rights, requires that laws be interpreted compatibly with human rights as reasonably limited under the HRA, rather than with human rights in their entirety.

Davies v Commonwealth Bank of Australia Ltd (Credit) [2009] VCAT 90 (28 January 2009)

This case considered the correct approach to be followed in dealing with unrepresented litigants and balancing their rights to a fair trial and access to justice with defendants' rights.

Andrew Casey v Richard Luke Alcock [2009] ACTCA 1 (23 January 2009)

The ACT Court of Appeal has indicated that the UK's Ghaidan approach to legislative construction - which allows a court to depart from the unambiguous meaning of the legislation where necessary to give effect to a designated purpose - does not necessarily apply under the Legislation Act 2001 (ACT) or Human Rights Act 2004 (ACT) ('HR Act (ACT)').

Wright & Ors v Secretary of State for Health & Anor [2009] UKHL 3 (21 January 2009)

The House of Lords has recently issued a declaration of incompatibly under the Human Rights Act 1998 (UK) ('HR Act') in relation to the Care Standards Act 2000 (UK) ('Act').  The House of Lords held that the Act may irreparably damage the employment or employment prospects of persons suspected of posing a risk of harm to vulnerable adults.  It is therefore incompatible with the right to a fair hearing and the right to respect for private and family life.

Al-Khawaja and Tahery v United Kingdom [2009] ECHR 26766/05 (20 January 2009)

The European Court of Human Rights has held that allowing a witness statement to be admitted as evidence where the witness is not available for cross examination and that evidence is the sole or decisive basis for convicting the accused violates the right to a fair trial provided in arts 6 § 1 and 6 § 3(d) of the European Convention on Human Rights.

Re AWB Limited [2008] VSC 473 (12 November 2008)

The Supreme Court of Victoria (Robson J) has held that civil penalty proceedings against five former directors of AWB Limited should be stayed in the exercise of the Court’s inherent jurisdiction.  This was on the basis that criminal proceedings are threatened against them for conduct that is substantially the same as the conduct that is the subject of the civil penalty proceedings.  Whilst the stay applications were not decided on the basis of the defendants’ Charter right to a fair hearing, the principles discussed by the Court provide guidance as to how Victorian courts may give content to the right in other proceedings.

PHS Community Services Society v Canada (Attorney General), 2008 BCSC 1453 (31 October 2008)

This case concerned an application for special costs.  The Supreme Court of British Columbia held that the proceeding was public interest litigation, and that special costs could therefore be awarded to the plaintiffs.

Sabet v Medical Practitioners Board [2008] VSC 346 (12 September 2008)

The Supreme Court of Victoria considered that the Medical Practitioners Board of Victoria was a public authority as well as a tribunal under s 4 of the Charter.  The Court held that the Board did not breach a medical practitioner’s right to be presumed innocent in disciplinary proceedings determining his capacity to practice medicine.

Z v Dental Complaints Assessment Committee [2008] NZSC 55 (25 July 2008)

This case involved a dentist who was criminally charged with the indecent assault of three patients. He was acquitted of these charges but was then subjected to professional disciplinary action.

R v Davis [2008] UKHL 36 (18 June 2008)

In this case, the House of Lords held that the use of anonymous witnesses prevented the accused from adequately examining his accusers, and thereby denied him a fair trial in accordance with both the common law and art 6(3)(d) of the European Convention on Human Rights.  Further, the House of Lords held that a conviction should not be based solely, nor to a decisive extent, upon the evidence of anonymous witnesses.

Bobrowski v Poland [2008] ECHR 64916/01 (17 June 2008)

The European Court of Human Rights has held that Poland violated its obligation to ensure a fair trial under art 6 of the European Convention on Human Rights by failing to grant legal aid to an individual in respect of civil proceedings.  However, the Court held that a denial of legal aid was justified where the applicant had hired his or her own private lawyer, notwithstanding that the lawyer proved to not be competent.

Carwoode Pty Ltd v Cardinia SC (Red Dot) [2008] VCAT 1334 (23 June 2008)

This was a case regarding an application for permits to subdivide land and construct various buildings ancillary to a freeway which would involve the removal of native vegetation to the detriment of the Growling Grass Frog.  During the hearing of the merits, a challenge was made to VCAT’s jurisdiction to hear the matter and submissions were made that VCAT had failed to abide by the principles of natural justice and the Charter.

Capital Property Projects (ACT) Pty Ltd v ACTPLA [2008] ACTCA 9 (21 May 2008)

The ACT Court of Appeal has held that the obligation under s 30 of the Human Rights Act 2004 (ACT) to interpret laws compatibly with human rights may be engaged even where the words of a statute are clear and there is no ambiguity.  In particular, the Court held that a requirement that leave to appeal certain decisions only be granted where ‘substantial injustice’ would otherwise occur was potentially incompatible with the positive right to a fair trial under s 21 of the HRA.  The Court considered that it may be necessary to ‘modify’ the reference to ‘substantial injustice’ as ‘something less than a substantial injustice may well result in an unfair trial’.

Swain v Department of Infrastructure (General) [2008] VCAT 848 (9 May 2008)

The Victorian Civil and Administrative Tribunal has held that a government authority’s refusal to issue a commercial driver’s licence on the basis of the applicant’s history of insurance fraud did not engage the applicant’s right to freedom from double punishment under s 26 of the Victorian Charter.  However, on the facts, the applicant was nevertheless found to be entitled to such a licence.

Abrahamian v Austria [2008] ECHR 35354/04 (10 April 2008)

The European Court of Human Rights has held that the right to a fair hearing requires an oral hearing which may only be dispensed of in exceptional circumstances.

Gentle, R (on the application of) & Anor v The Prime Minister & Anor [2008] UKHL 20 (9 April 2008)

In a judgment handed down on 9 April 2008, the UK House of Lords held that the right to life protections under art 2 of the European Convention on Human Rights did not impose a duty on the UK Government to hold an independent inquiry into the legality and decision-making process behind the 2003 invasion of Iraq.

Kortel v Mirik and Mirik [2008] VSC 103 (4 April 2008)

In this case, the Supreme Court was asked to consider the proper construction of s 6(2)(b) of the Charter, which provides that the ‘Charter applies to courts and tribunals to the extent that they have functions under Part 2’.  Part 2 of the Charter enshrines a body of civil and political rights largely derived from the ICCPR.  The issue arose in the context of the obligations of the Court to ensure a fair hearing to unrepresented litigants.  The Court also considered the scope of the power of the Victorian Equal Opportunity and Human Rights Commission to intervene in a proceeding pursuant to s 40(1) of the Charter.

R v DA [2008] ACTSC 26 (31 Mar 2008)

In an ex tempore judgment delivered by Higgins CJ, the ACT Supreme Court has stated that s 21 of the Human Rights Act 2004 (ACT) confers a positive right to a fair trial and thereby modifies the common law which merely provides for the right to be free from an unfair trial.

Guneser v Magistrates' Court of Victoria & Anor [2008] VSC 57 (5 March 2008)

In a recent decision of the Supreme Court of Victoria, Habersberger J considered the extent to which the rights protected under the Victorian Charter apply to the acts and decisions of public authorities that are connected with a judicial proceeding.

Kafkaris v Cyprus [2008] ECHR 21906/04 (12 February 2008)

The Grand Chamber of the European Court of Human Rights has recently considered the scope and application of art 7 of the European Convention on Human Rights, which provides that no person shall be subject to a ‘heavier penalty than the one that was applicable at the time the criminal offence was committed’.

Commonwealth v Davis Samuel Pty Ltd [No 3] [2008] ACTSC 76

The ACT Supreme Court has missed an opportunity to consider the meaning of the right to a fair hearing in s 21(1) of the Human Rights Act 2004 (ACT) in the context of an application for adjournment of a civil matter based on reasons including lack of legal representation.

Brooke & Ors, R (on the application of) v The Parole Board & Anor [2008] EWCA Civ 29 (1 February 2008)

The UK Court of Appeal has held that the Parole Board does not possess the necessary independence required by art 5(4) of the European Convention on Human Rights.  This decision may be relevant to a determination under s 24 of the Victorian Charter as to whether a court or tribunal is ‘competent, independent and impartial’.

Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building) [2008] VCAT 1479

The Victorian Civil and Administrative Tribunal has allowed an application to reconstitute the Tribunal, on the basis that a respondent to the proceedings would not receive a fair hearing before a particular Tribunal Member.  The Tribunal’s decision stated that the Charter has reinforced the positive duty of courts and tribunals to provide assistance to litigants in person.

Ragg v Magistrates’ Court of Victoria and Corcoris [2008] VSC 1 (24 January 2008)

In a significant decision, the Supreme Court of Victoria has outlined the nature and scope of the principle of ‘equality of arms’ as an aspect of the right to a fair hearing.  While the Court held that the Victorian Charter did not apply to the proceeding (as it was commenced prior to the entry into force of the operative provisions of the Charter), Bell J’s discussion of the right to a fair hearing under art 14 of the ICCPR is likely to be highly relevant to any subsequent judicial consideration of s 24 of the Charter, which is closely modelled on art 14.

Gray v DPP [2008] VSC 4 (16 January 2008)

In the first decision to substantively consider the Victorian Charter of Human Rights since it became justiciable on 1 January 2008, Bongiorno J has held that the Charter guarantees the right to a timely trial and that the appropriate remedies for failure of the Crown to provide such a trial are release of the accused on bail or, alternatively, a permanent stay of proceedings.

Main(R) v Minister for Legal Aid [2007] EWHC 742 (2 April 2007)

The UK High Court of Justice has quashed a decision by the Minister for Legal Aid to refuse the family of two people killed in a train crash funding to be legally represented at the coroner's inquest.  Central to the decision was the finding that funding was necessary to carry out an effective investigation into the accident pursuant to art 2 of the European Convention on Human Rights.

Keogh v R [2007] EWCA Crim 528

The UK Court of Appeal has held that the requirement under the Human Rights Act 1998 (UK) that, so far as it is possible to do so, legislation be interpreted and applied compatibly with human rights required that legislation which, on its natural meaning imposed a burden on defendants to establish their innocence, be read in such a way as to impose this substantive obligation on the prosecution.

R v Williams [2007] VSC 2 (15 January 2007)

The Supreme Court of Victoria has substantively considered the Victorian Charter of Human Rights and Responsibilities 2006 (Vic) for the first time.

Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority [2006] ACTSC 122 (15 December 2006) The ACT Supreme Court has recently considered the application of s 30(1) of the Human Rights Act 2004 (ACT), which provides that, ‘In working out the meaning of a Territory law, an interpretation that is consistent with human rights is as far as possible to be preferred.’