Does the Right to a Fair Hearing Extend to Persons being Investigated for a Criminal Offence where Charges are Imminent?

Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building) [2008] VCAT 2629 (25 November 2008)

In this case, VCAT found that the Charter rights to a fair hearing (s 24) and the rights in criminal proceedings (s 25) do not extend to persons who are being investigated by police for possible commission of a criminal offence.


This case arose from a dispute about the development of a retirement village, in which the managing director of the applicant land owner (Director) was joined as a party by counterclaim of the respondent builder.  The Director applied for a partial stay of the counterclaim as it related to him, arguing that if he was required to defend the civil proceeding this would necessarily prejudice his defence of an anticipated criminal proceeding relating to the same factual circumstances.

In deciding whether to grant the stay, the Tribunal considered the following key questions relating to the Charter:

  • Whether, in determining a stay application, VCAT was acting in an administrative capacity and therefore subject to s 38 of the Charter.
  • Whether s 32 influenced the interpretation of the VCAT Act 1998 and the Supreme Court Act 1986 such that the test for whether to grant a stay of civil proceedings required reformulation in light of the rights engaged.


In relation to its obligations under s 38, the Tribunal found that both the determination of the broader dispute, and the stay application that was an integral part of the dispute, involved the exercise of judicial rather than administrative power and therefore VCAT was not subject to the duties imposed on public authorities by s 38.  This is because s 4(1)(j) of the Charter provides that a court or tribunal is not a public authority except when it is acting in an administrative capacity.

In determining the effect of the s 32 interpretive mandate on the test for whether to grant a stay, the Tribunal found that the relevant rights were:

  • Section 24(1), which protects the right to a fair hearing for persons ‘charged with a criminal offence’ and for persons ‘party to a civil proceeding’; and
  • Section 25, which protects rights in criminal proceedings for ‘a person charged with a criminal offence’.

In relation to the Director’s right to a fair hearing in the civil proceeding before VCAT, the Tribunal held that these rights were already enshrined by the VCAT Act which requires the Tribunal to act fairly and with natural justice.

In relation to the Director’s rights under ss 24(1) and 25 in respect of the criminal proceedings, VCAT found that these rights only applied to persons ‘charged with a criminal offence’ and that although charges were imminent, the Director had not yet been charged with a criminal offence and the right was not engaged.

Therefore, the Tribunal held that the test for whether to grant a stay was not altered by the interpretative mandate set out in s 32 of the Charter.


VCAT’s finding suggests that the Charter rights in ss 24(1) and 25 are limited to protecting persons charged with a criminal offence, and do not extend to protect persons being investigated for possible commission of a criminal offence.

This finding is contrary to a number of European judgments in which a ‘charge’ has been found to include pre-charge investigations.  For instance, in Salduz v Turkey [2008] ECHR 36391/02, the Grand Chamber of the European Court of Human Rights found that the right to a fair trial (particularly legal assistance) enunciated in art 6 of the European Convention on Human Rights was protected not only once the suspect had been charged, but during the period when the suspect was under investigation by police.  The Court highlighted the importance of protecting certain aspects of the right to a fair trial (in this instance, the right to legal assistance) during the investigation stage of criminal proceedings, because evidence and preparation during this stage determines ‘the framework in which the offence charged will be considered at the trial’.  This is consistent with international and comparative human rights jurisprudence which establishes that rights must be interpreted and applied ‘liberally and beneficially’ (see, eg, Hunter v Southam Inc [1984] 2 SCR 145) so as to make them ‘practical and effective, not theoretical and illusory’ (see, eg, Goodwin v United Kingdom [2002] ECHR 28957/95).

VCAT’s decision in this case is an unwelcome limitation on the right to a fair trial and rights in criminal proceedings that are enshrined in the Charter, and is contrary to established international jurisprudence.

The decision is available at

Jessica Zikman is on secondment to the Human Rights Law Resource Centre from Lander & Rogers