Supreme Court of Victoria Considers Right to Legal Counsel under Charter of Human Rights

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.

Background This case related to an application by the accused, Carl Williams, to adjourn his trial until July 2007, when the barrister of his choice, Peter Faris QC, would have been available to represent him. The accused was charged on 14 December 2004 and committed to stand trial in the Supreme Court on 10 March 2005. Presentments were filed in December 2005 and the trial was originally listed for February 2006. Subsequent to a number of adjournments, the trial was listed to commence on 29 January 2007. Counsel for Williams relied on Part 2 of the Charter, particularly s 24, which enshrines the right to a fair hearing, and s 25, which contains a range of procedural guarantees for persons charged with a criminal offence, including a right to choose their legal representation at s 25(2)(d). The Crown submitted, that under the Charter’s transitional provisions, the Charter was not relevant to the proceeding. They relied on s 49(2) which provides that the Charter does not effect any proceedings commenced or concluded before the commencement of Part 2 (which contains the rights that are protected under the Charter). Pursuant to s 2, the Charter (except for Divisions 3 and 4 of Part 3) comes into operation on 1 January 2007. Divisions 3 and 4 of Part 3, which pertain to the ‘Interpretation of Laws’ and the ‘Obligations of Public Authorities’, commence on 1 January 2008. The defence contended that s 49(2) did not apply as the hearing of the trial (and therefore the ‘proceeding’ within the meaning of s 49(2)) had not yet commenced. The central issues for the Court, therefore, were whether the proceeding had commenced prior to the commencement of the Charter and, by extension, the Charter’s applicability to Mr Williams’ application for adjournment. The other (peripheral) issues in dispute were, in summary: 1. Whether a judge is acting in ‘an administrative capacity’ when listing trials such as to be a ‘Public Authority’ within the meaning of under s 4. Pursuant to s 38 of the Charter, public authorities must give proper consideration to, and act compatibly with, human rights; 2. The date at which parliament intended for the courts to become ‘actively involved in the interpretation of the Charter and human rights’; and 3. Whether the rights contained at ss 24 and 25 are ‘absolute’ or may be subject to limitation. The common law position on providing counsel of choice to a defendant in order to ensure a fair trial was also considered. Summary of Judgment As discussed above, s 49(2) provides that the Charter does not affect any proceeding commenced or concluded before the commencement of Part 2 on 1 January 2007. Justice King held that a criminal proceeding is commenced either by way of arrest and information or by summons served upon the person. As Mr Williams was charged on 14 December 2004, her Honour concluded that the Charter had no effect on, and could not be relied on in relation to, Mr Williams’ application for an adjournment. In so holding, she dismissed the application. In relation to some of the other issues in dispute, King J considered, in summary that: 1. A judge is acing in a judicial capacity rather than ‘an administrative capacity’ when he or she is hearing an application for adjournment of a trial which has already been listed by the listings section of the court and does not fall within the definition of ‘Public Authority’ in the Charter; and 2. The ‘intention of the parliament was for the courts to become actively involved in the interpretation of the Charter and human rights after 1 January 2008’. However, King J acknowledged that it is also arguable that, in so far as the Courts exercise functions or perform duties that are relevant to human rights contained in Part 2 (such as the right to a fair hearing and rights in criminal proceedings), they are bound to take account of such rights and that such rights are justiciable from 1 January 2007. Justice King did not consider it necessary to determine this issue in the current case. Commentary on Limitations on Human Rights Justice King also considered whether human rights are ‘absolute’, holding that the rights enshrined in Part 2 of the Charter are not absolute, but are rights which may be limited pursuant to s 7. Section 7 of the Charter provides that rights may be subject to such reasonable limitations as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom. Justice King appears to endorse the assertion in the Explanatory Memorandum that ‘no right is absolute’ and that ‘there may be various limitations imposed on any right’. With respect, this view is flawed. While it is arguable that the rights enshrined by ss 24 and 25 may be limited, rhere are some rights, such as the prohibition on torture, that are absolute in that their limitation can never be considered reasonable or justifiable. Although, unlike many other human rights instruments, the Charter does not, in terms, provide that certain rights are absolute or non-derogable, the preferable view is that, consistently with art 4(2) of the ICCPR, certain human rights are absolute and must not be subject to limitation or derogation. Pursuant to art 4(2) of the ICCPR, these rights include: • the right to life (art 6); • the right to freedom from torture and other cruel, inhuman or degrading treatment or punishment (art 7); • the right to freedom from slavery or forced labour (art 8); • the right not to be imprisoned for a contractual debt (art 11); • freedom from retrospective criminal punishment (art 15); • the right to recognition as a person before the law (art 16); and • freedom of thought, conscience and religion (art 18). In General Comment 29, the UN Human Rights Committee (which is an independent body of experts with the authority to interpret and expound the meaning of the ICCPR) posited that, in addition to those rights identified in art 4(2) the following further rights may not be lawfully derogated because to do so would be inherently inconsistent with the ICCPR or because they have attained the status of peremptory norms of customary international law: • the right of persons deprived of liberty to be treated with humanity and with respect for the inherent dignity of the human person (art 10); • the prohibition against taking of hostages, abductions or unacknowledged detention; • the prohibition against incitement to discrimination, hostility or violence (art 20); and • the obligation to provide ‘effective remedies’ for breaches of human rights (art 2(3)). Consistently with s 7 of the Charter, international human rights law provides that, in respect of rights that are not absolute, limitations are only permissible in certain circumstances and subject to particular conditions. In General Comment 31, the Committee stated that, where limitations or restrictions are made, States must demonstrate their necessity and only take such measures as are proportionate to the pursuance of legitimate aims in order to ensure continuous and effective protection of Covenant rights. In no case may the restrictions be applied or invoked in a manner that would impair the essence of a Covenant right. The general principles relating to the justification and extent of limitations have been further developed by the UN Economic and Social Council in the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights. Those principles include that: • no limitations or grounds for applying them may be inconsistent with the essence of the ICCPR or the particular right concerned; • all limitation clauses should be interpreted strictly and in favour of the rights at issue; • any limitation must be provided for by law and be compatible with the objects and purposes of the ICCPR; • limitations must not be arbitrary or unreasonable; • limitations must be subject to challenge and review; • limitations must not discriminate on a prohibited ground; • any limitation must be ‘necessary’, which requires that it: o is based on one of the grounds which permit limitations (namely, public order, public health, public morals, national security, public safety or the rights and freedoms of others); o responds to a pressing need; o pursues a legitimate aim; and o is proportionate to that aim. In our view, it is important that s 7 of the Charter is interpreted and applied consistently with both the jurisprudence of the Human Rights Committee and the Siracusa Principles (s 32(2) of the Charter providing that such jurisprudence should be considered in interpreting the Charter). Some human rights are absolute. The Right to Counsel of Choice under the Common Law As a final matter, King J noted that even if the Charter had been operative at the time of the application this would not have changed her decision. Her Honour stated that at common law an accused in a criminal matter has no right to counsel at the public expense, but the accused does have the right to a fair trial. A trial with out representation would most likely be stayed until representation was obtained, but ultimately this is at the discretion of the court. Justice King considered that if there is no right to counsel then there is certainly no right to counsel of choice, especially in the present case, as to allow the accused counsel of choice would significantly delay the trial. Her Honour referred to the Canadian decision of R v McCallen in the Ontario Supreme Court as support for this proposition, namely that ‘if the counsel of choice is not available within a reasonable time, then the rights of the accused must give way to other considerations’. Her Honour also noted that she had given Mr Williams the opportunity to obtain other counsel or legal aid and that none of these opportunities had been taken. Katherine Hayes is a volunteer with the Public Interest Law Clearing House. Phil Lynch is the Director of the Human Rights Law Resource Centre

Detailed case note.

The full text decision is available at