When is legal representation necessary to ensure respect for the right to a fair hearing?

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.


Following a contested hearing in the Magistrates Court, Mr Slaveski was convicted of making a threat to kill and sentenced to an Intensive Corrections Order. He appealed the conviction in the County Court.

He was initially granted legal aid for the appeal but, after the withdrawal of two sets of counsel, Victoria Legal Aid (VLA) revoked his grant of aid because of failure to follow reasonable advice and breaches of his grant of assistance.

After a number of adjournments the matter came on before Judge Gullaci in the County Court, and Mr Slaveski appeared unrepresented. The judge took the view that Mr Slaveski would be “seriously disadvantaged” by lack of legal representation, and invited a representative of VLA to come to court. VLA indicated that because of Mr Slaveski’s previous repeated conduct in discharging counsel, they would not provide further aid.

The Legal Aid Act 1978 provides some criteria for the eligibility for legal aid but leaves VLA with a guided discretion about whether to grant aid with some exceptions. One such exception is that, under section 197 of the Criminal Procedure Act 2009, the Court may order VLA to provide assistance in a criminal trial if it will be unable to ensure that the accused will receive a fair trial unless they are legally represented.

However, as this matter was an appeal from the Magistrates’ Court and not, on an ordinary reading of the statute, a trial, the court had no power to order VLA to provide representation.

Mr Slaveski questioned whether he had a right to legal representation under the Charter. Relevantly, sections 25(2)(d) and (f) of the Charter provide that:

A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees:

(d) to be tried in person, and to defend himself or herself personally or through legal assistance chosen by him or her or, if eligible, through legal aid provided by Victoria Legal Aid under the Legal Aid Act 1978;

(f) to have legal aid provided if the interests of justice require it, without any costs payable by him or her if he or she meets the eligibility criteria set out in the Legal Aid Act 1978.

More generally, s 24(1) of the Charter provides that:

A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

The question for the court was whether using the Charter created any greater right of access to legal aid than the Legal Aid Act and Criminal Procedure Act would ordinarily provide.

Accordingly, Judge Gullaci referred three questions of law to the Court of Appeal under s 33(1)(b) of the Charter.


The court first addressed the question of how the interpretive provision in section 32 of the Charter should be dealt with following the High Court decision in Momcilovic, before turning to the questions.

Section 32 after the Momcilovic High Court decision:

The Court of Appeal noted that, in Momcilovic, six High Court judges found that section 32 “does not require or authorise a court to depart from the ordinary meaning of a statutory provision, or the intention of Parliament in enacting the provision, but in effect requires the court to discern the purpose of the provision in question in accordance with the ordinary techniques of statutory construction…” (at [20]).

Quoting from French CJ’s judgment, the Court noted similarities between section 32 and the common law principle of legality, although section 32 applies to a wider set of rights. The court also stated that if the words of a statute are capable of more than one meaning, then the court should give them the meaning that best accords with human rights.

The Court noted that the High Court had not achieved consensus on the role of the reasonable limitations provision in section 7(2) in the interpretive process. It left for another day the question of whether the Court of Appeal was bound to follow its decision in Momcilovic unless it was satisfied that it was clearly wrong.

Question 1: Does the Charter operate to afford an enforceable right to legal representation if a person is eligible?

The Court held that section 25(2)(f) of the Charter did not extend the obligation of VLA to grant legal aid beyond the discretionary power in the Legal Aid Act. The court held that the right in section 25(2)(f) is conditioned upon the existence of an entitlement to legal aid, an entitlement that is discretionary.

A construction that required the provision of legal aid would be contrary to Parliament’s apparent intention to empower Victoria Legal Aid to determine its priorities for the application of a limited fund between competing demands for legal aid, and to the apparent intention when enacting the Charter, as indicated by the Explanatory Memorandum.

Question 2: Does the Charter require that the word ‘trial’ in section 197 of the Criminal Procedure Act 2009 be interpreted to include the trial of an indictable matter heard on appeal from the Magistrates’ Court?

The grammatical meaning of section 197 of the Criminal Procedure Act is clear, in that it applies only to trials on indictment before a jury. The context in which the section appears also gives weight to this interpretation. Accordingly, the Charter could not be used to change the meaning of the section.

Question 3: Does the right to a fair trial pursuant to section 24(1) of the Charter operate to include the right to be legally represented?

Section 24 creates a right to legal representation in limited circumstances where a lack of representation would mean that an accused would not receive a fair hearing. However, a breach of the trial right would not be remedied by ordering a grant of legal aid; rather it would be done by an adjournment or stay of proceedings. This reflects the common law position from cases like Dietrich and the UK jurisprudence based on the equivalent right in the European Convention on Human Rights (article 6).

This is, however, an extraordinary remedy to be used rarely and not merely to fix imperfect trials.


This decision demonstrates the approach that the Court of Appeal will take to section 32 of the Charter following the High Court in Momcilovic. This approach includes four elements:

  • Section 32 does not change the fundamental role of courts in interpreting legislation, in that courts cannot depart from the clear words of a statute. As such, it is similar to the common law principle of legality.
  • If more than one meaning is open, the court should adopt the one that best accords with the relevant human right.
  • Exceptionally, a court may depart from grammatical rules if the grammatical construction would contradict the apparent purpose of enactment.
  • Section 32 applies to a wider range of rights than the principle of legality.

Although in this case section 32 did not change the interpretation of the statute in question, it is clear that in many cases it would make a difference. The recent Supreme Court case of Taha is an example.

The case is important as the Government considers the future of the role of courts and tribunals under the Charter. The decision demonstrates the error of critics of the Charter, including the SARC majority, that assert either that section 32 is redundant or that it changes the role of courts in our democratic system.

Finally, the court did not need to decide the difficult issue of the relationship between sections 32(1) and 7(2), and it seems clear that legislative intervention would be helpful to clarify this question one way or another.

The decision is available online at: http://www.austlii.edu.au/au/cases/vic/VSCA/2012/25.html

Hugh Mannreitz is a Melbourne-based lawyer.