R v Fearnside  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.
It is alleged that Fearnside, an appointee of the Australian Federal Police, intentionally and unlawfully administered to a prisoner, Fiona Corrigan, an injurious substance, namely capsicum spray, with intent to cause her pain or discomfort, contrary to s 28 of the Crimes Act 1900 (ACT).
There was evidence that Ms Corrigan, who was naked as a result of being sprayed by another officer at an earlier point in time, splashed herself with water from the toilet bowl in her cell in an attempt to alleviate the pain and discomfort. Fearnside considered that this evidence, if presented to a jury, would be prejudicial to his case. As such, Fearnside decided that he would seek a trial by judge alone, rather than a trial by jury.
Section 68B(1)(c) of the Supreme Court Act 1933 (ACT) provides that '[a]n accused person in criminal proceedings shall be tried by a judge alone if ... the election is made before the Court first allocates a date for the person's trial'. It was at the directions hearing on 9 October 2007, that a trial date was fixed. Despite Fearnside making a decision to elect to be tried by judge alone before 9 October 2007, no election was made. Further, Fearnside, or his legal advisors, stated in the questionnaire that parties to criminal proceedings are required to complete before trial, that no election had been made for trial by judge alone.
As Fearnside did not wish to be tried by jury, he made an application to the court seeking to vacate the trial date so that the right to elect to be tried by judge alone would be revived. On Fearnside's application, Higgins CJ made such orders, namely vacating the trial date and giving leave to Fearnside to elect to be tried by Judge alone. In accordance with these orders, Fearnside made his election.
The Crown immediately sought orders that, amongst others, Fearnside's election for trial by Judge alone be declared ineffective.
The Court upheld the appeal on the basis that the decision to accept Fearnside's election for trial by judge alone was wrong in law because, since it was made after the Court first allocated the trial date, it did not comply with s 68B(1)(c) of the SCA. This decision turned on the interpretation of s 68B(1)(c). While Fearnside argued that the section allowed for the reviving of the right to elect to be tried by a judge alone where the trial date was vacated, the Court held that the right was lost as soon as the Court first allocated a date for trial. This decision was reached on the basis that the word 'first' as used by the section in the phrase, 'before the Court first allocates a date for the person's trial', must be given work to do.
In reaching this conclusion, the Court decided that the s 30 interpretive principle, that requires laws to be interpreted compatibly with human rights, did not need to be applied. This decision was reached after consideration was given to the relationship between the s 30 interpretive principle and the s 28 limitation provision under the HRA, which provides that human rights may be subject to reasonable limits. The question that the Court considered was whether the interpretive principle required laws to be interpreted consistently with human rights as reasonably limited or with human rights in their entirety. The Court held that since both the human rights enshrined in the HRA and the limitation provision are set out in the same part of the HRA, the relevant human right for the purposes of applying the s 30 interpretive principle is the human right as reasonably limited. Accordingly, the court held that the methodology to be adopted in interpreting legislation is: 1. Does the section to be interpreted enliven a human right; 2. If so, does the section constitute a reasonable limit on the human right; 3. If not, apply the interpretive principle. This approach favours the methodology adopted in the New Zealand case of R v Hansen  3 NZLR 1, over the approach adopted in the New Zealand case of Moonen v Film and Literature Board of Review (No 1)  2 NZLR 9.
The court adopted this methodology in the present case and found that the s 30 interpretive principle did not need to be applied as s 68B(1)(c) of the SCA did not, as claimed by Fearnside, enliven the right to a fair trial enshrined in s 21(1) of the HRA. The court explained that there are two aspects of the right to a fair trial: that the body deciding the criminal charges is competent, independent and impartial and that the hearing itself is fair. The court held that, as a jury is a competent, independent and impartial body, it cannot be said that the section impinges on the first aspect of the right and that, as having a matter tried before a jury does not affect the fairness of the hearing itself, it cannot be said to impinge on the second aspect of the right.
Relevance to the Victorian Charter
As the limitation provision and interpretive obligation under the HRA are substantively similar to those in the Victorian Charter, there is now Australian authority that the principle of legislative interpretation articulated by the majority in R v Hansen  3 NZLR 1 should apply in Victoria.
The decision is available at http://www.courts.act.gov.au/supreme/judgmentsca/fearnside.htm.
Leana Papaelia, Human Rights Law Group, Mallesons Stephen Jaques