Tomasevic v Travaglini & Anor  VSC 337 (13 September 2007)
In a very significant decision, the Supreme Court of Victoria has considered the relevance and application of the human rights to equality before the law, access to justice and the right to a fair hearing under the ICCPR to the right to a fair trial under Victorian law and the obligations of the court to self-represented litigants.
Mr Tomasevic, a teacher with no legal background, was convicted by a magistrate on a range of criminal offences on 23 May 2003. Unrepresented, he sought leave to proceed with an appeal out of time before a judge of the County Court. The judge did not direct Mr Tomasevic’s ‘attention – as a self-represented litigant - to the salient points of law and procedure and refused the application’.
Mr Tomasevic sought judicial review of the County Court decision before Bell J in the Supreme Court. In judgment, Bell J stated that:
This case both requires and deserves an analysis of the law with respect to the duty of a judge to ensure a fair trial by giving due assistance to a self-represented litigant, taking into account the fundamental human rights of equality before the law and access to justice specified in the International Covenant on Civil and Political Rights.
The Court considered the ‘significance of the human rights of equality before the law and access to justice’ and stated:
56 The right of every person to a fair criminal or civil trial, and the duty of every judge to ensure it, is deeply ingrained in the law. Expressed in traditional terms, the right is inherent in the rule of law – indeed, ‘in every system of law that makes any pretension to civilisation’ – and in the judicial process. Expressed in modern human rights terms, the right to a fair trial is important for promoting and respecting equality before the law and access to justice.
57 The numerous human rights specified in the ICCPR, including equality before the law and access to justice, form the basis of the human rights set out in Part 2 of the Charter of Human Rights and Responsibilities Act 2006, which may be referred to, with a direct simplicity that only serves to emphasise its historic significance, as the Charter.
58 The Charter does not affect any proceedings commenced or concluded before the commencement of Part 2, which occurred on 1 January 2007. Like the proceeding brought against the accused in the case before King J in R v Williams, Mr Tomasevic’s proceeding in the case before me was commenced before that date. Just as the Charter did not affect King J’s consideration of Mr Williams’ application, it does not affect my consideration of Mr Tomasevic’s.
59 King J left open the important question of the extent to which, in cases to which the Charter applies, the courts are bound to apply the provisions of Part 2. That question does not arise in the present case, for the Charter does not affect it. The question that does arise in the present case is whether, apart from the Charter, the ICCPR is relevant in any event.
60 Apart from the Charter, the ICCPR does not ‘operate as a direct source of individual rights and obligations’ because it has not otherwise been incorporated into Australian law. But like other international instruments to which Australia is a party, the ICCPR has an independent and ongoing legal significance in Australian and therefore Victorian domestic law, a significance which is not diminished, but can only be enhanced, by the enactment of the Charter.
61 What is that significance? Subject to certain limitations and to an evolving extent, the ICCPR, and those other instruments, may at least inform the interpretation of statutes (so as to be consistent with and not to abrogate international obligations), the exercise of relevant statutory and judicial powers and discretions, the application and operation of the rules of natural justice, the development of the common law and judicial understanding of the value placed by contemporary society on fundamental human rights. In this regard, I would endorse, with respect, the remarks of Maxwell P in Royal Women’s Hospital v Medical Practitioners Board of Victoria about the need to consider arguments based onAustralia’s international legal obligations in appropriate cases.
62 Therefore, even though the Charter does not affect my consideration of Mr Tomasevic’s application for judicial review, I think the ICCPR does. To determine the application, it will necessary for me to identify what was required for the proper performance of the duty of the trial judge to ensure a fair trial by giving due assistance to Mr Tomasevic as a self-represented litigant. I think this should be done in terms that take into account the importance of that duty in promoting and respecting the fundamental human rights of equality before the law and access to justice which are specified in the ICCPR.
63 I could decide this case by reference only to the judge’s duty to ensure a fair trial. If that is so, you might ask, why should I also refer to the human rights issues that the case raises?
64 I would answer that Australiamay be an island geographically, but in international law terms, we are not. Australiahas chosen to become a party to the ICCPR, and so has undertaken to promote and respect the human rights of equality before the law and access to justice, which are universal and fundamental. This case concerns the inherent duty of a judge to ensure a fair trial by giving due assistance to a self-represented litigant. It therefore raises issues of direct practical importance to the promotion and respect of those rights. The inherent duty to ensure a fair trial and the human rights of equality before the law and access to justice may be said to breathe the same air. Without impairing, indeed by asserting, the independence of our own law, judges can, and in my view should, act consistently with the international obligations specified in the ICCPR by accepting that, when appropriate, the exercise of relevant judicial powers and discretions, such as the duty to ensure a fair trial, can take into account the human rights specified in the ICCPR. That, I think, is the state and rationale of the current law. Of course the inherent duty to ensure a fair trial always remains the source of the binding law, but its nature is better understood, its function in the law is strengthened, its application is more penetrating and its capacity to evolve is enhanced once it is appreciated that its performance has an international dimension.
Justice Bell then went on to consider relevant domestic jurisprudence on the right to a fair trial and the duty of the court to self-represented litigants and concluded:
126 On the basis of this analysis, I think I can summarise the law as it currently stands.
127 Every judge in every trial, both criminal and civil, has an overriding duty to ensure the trial is fair. A fair trial is the only trial a judge can judicially conduct. The duty is inherent in the rule of law and the judicial process. Equality before the law and equal access to justice are fundamental human rights specified in the ICCPR. The proper performance of the duty to ensure a fair trial would also ensure those rights are promoted and respected.
128 Most self-represented persons lack two qualities that competent lawyers possess - legal skill and ability, and objectivity. Self-represented litigants therefore usually stand in a position of grave disadvantage in legal proceedings of all kinds. Consequently, a judge has a duty to ensure a fair trial by giving self-represented litigants due assistance. Doing so helps to ensure the litigant is treated equally before the law and has equal access to justice.
129 The matters regarding which the judge must assist a self-represented litigant are not limited, for the judge must give such assistance as is necessary to ensure a fair trial. The proper scope of the assistance depends on the particular litigant and the nature of the case. The touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed.
Justice Bell concluded that, by reference to these principles, the County Court had failed to accord Mr Tomasevic a fair trial such as to constitute a breach of natural justice and failure to properly exercise jurisdiction. His Honour ordered that Mr Tomasevic’s application for leave to appeal be remitted to the County Court for reconsideration according to law.
The decision is available at http://www.austlii.edu.au/au/cases/vic/VSC/2007/337.html.