Dudko v Australia, HRC, UN Doc CCPR/C/90/D/1347/2005 (29 August 2007)
In an important decision regarding the nature and scope of the right to equality before the courts, the UN Human Rights Committee has found Australian violation of art 14(1) of the International Covenant on Civil and Political Rights.
The author of the communication, Lucy Dudko, was convicted by the NSW District Court in 2001 of a range of offences associated with assisting an inmate to escape prison. Her appeal to the NSW Court of Criminal Appeal was rejected in August 2002. An application for special leave to appeal to the High Court was refused on 16 March 2004.
The author was unable to obtain legal aid or representation for the Special Leave application and, despite her wish to be present at the hearing, was not able to appear either in person or by telecommunications link from the prison. The Director of Public Prosecutions was present and made oral submissions but maintained that he was unable to comment on the reasons for denial of the author’s right to appear. It was subsequently submitted that the practice in NSW is that people in custody do not appear in the High Court, although this practice varies in other jurisdictions which do permit and facilitate appearances.
Article 14(1) of the ICCPR provides, inter alia, that ‘All persons should be equal before courts and tribunals’.
The Human Rights Committee held that while the disposition of an appeal does not necessarily require an oral hearing, where an oral hearing is held and ‘the defendant is not given an opportunity equal to that of the State party in the adjudication of a hearing bearing on the determination of a criminal charge, the principles of fairness and equality are engaged’. Where this is the case, the State party bears the onus of demonstrating that any procedural inequality was ‘based on reasonable and objective grounds, not entailing actual disadvantage or other unfairness to the author’.
The Committee unanimously held that, in the present case, Australia had not provided ‘any plausible reason why it would be permissible to have counsel for the State take part in the hearing in the absence of the unrepresented defendant, or why an unrepresented defendant in detention should be treated more unfavourably than an unrepresented defendant not in detention who can participate in the proceedings.’ Having regard to this, the Committee concluded that the conduct of the Special Leave application had violated the guarantee of equality before the courts in art 14(1).
The author also submitted that the rejection of her legal aid application amounted to a violation of art 14(1). The Committee rejected this submission on the basis that she had not appealed the rejection and had therefore not exhausted domestic remedies as required by art 5(2)(b) of the Optional Protocol. The Committee did say in obiter, however, that while a state has a discretion to direct finite legal aid resources to meritorious matters, this discretion should be exercised having regard to factors including ‘the nature of the proceedings, the powers of the appellate court, the capacity of an unrepresented party to present a legal argument, and the importance of the issue at stake in view of the severity of the sentence’.
Implications for the Victorian Charter
This decision may be relevant to the interpretation and application of s 24 of the Charter, which provides that ‘a person charged with a criminal offence or a party to a civil proceeding has the right…to a fair hearing’. The case affirms that the right to a fair hearing is inherently linked with notions of equality before the courts, which may raise issues of court fees, complexity of procedure, a right to legal aid, awarding of costs and discrimination. It also affirms that the right to a fair hearing is a fundamental human right which must not be limited in the mere interests of ‘practicality and convenience’: see also, R v McBride  ACTSC 8 (13 February 2007). The decision is consistent with well established jurisprudence both from the Committee itself and the European Court of Human Rights that the same procedural rights – including the opportunity to make oral and written submissions, access material, challenge evidence and cross-examine witnesses – must be given to each party involved unless distinctions can be justified on objective and reasonable grounds: see, eg, Gertruda Hubertina Jansen-Gielen v The Netherlands, UN Doc CCPR/C/71/D/846/1999; Van Orshoven v Belgium  ECHR 20122/92 (25 June 1997).
Finally, the Committee’s comments on the considerations relevant to the allocation of legal aid may be relevant to the interpretation and application of the Legal Aid Act 1978 (Cth) and Victoria Legal Aid’s Guidelines and Conditions.
The decision is available at http://www.ohchr.org/tbru/ccpr/Dudko_v_Australia.pdf.
Philip Lynch is Director of the Human Rights Law Resource Centre