Plaintiff v Defendant

Supreme Court of Victoria|2017-02-28|Before: Bell J

CRIMINAL LAW - judicial review - practice and procedure - applications before judge in County Court OF Victoria for orders reinstating struck out appeals from sentences of Magistrates' Court of Victoria - applicants self-represented - whether judge ensured fair trial by giving them due advice and assistance - relationship between that duty and human rights to equality and fair hearing - equal access to justice - Criminal Procedure Act 2009 (Vic) s 267(3), Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 6(2)(b), 8(3) and (1), (Vic) O 56.

HUMAN RIGHTS - equality - fair hearing - equal access to justice - daughter and mother sentenced in Magistrates' Court for offences - appeals to County Court struck out - applications made for orders reinstating appeals - applicants self-represented - daughter an invalid pensioner with disability and mother her carer - applications dismissed - human rights applying to hearings in court and tribunals - application and scope of procedural dimension of right to equality - application and scope of right to fair hearing - whether judge made adjustments and accommodations to hearing procedure to ensure daughter did not suffer discrimination by reason of disability - whether judge ensured that daughter and mother effectively participated in and thereby obtained fair hearing - 'equality of arms' - Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 6(2)(b), 8(3) and 24(1).

Ms M Richards SC with Ms S Fitzgerald (21 October 2015)

1 Yarra Ranges Council charged Maria Matsoukatidou and her mother Betty with committing certain offences against the Building Act 1993 (Vic) arising out of their failure to secure and demolish their home after an arsonist burnt it down. At the hearing of the charges in the Magistrates' Court of Victoria, they appeared self-represented. Maria was fined without and Betty was fined with conviction.

2 Maria and Betty appealed to the County Court of Victoria under the Criminal Procedure Act 2009 (Vic) but the appeals were struck out for non-attendance. Believing that they had good explanations, they applied to the County Court for orders reinstating the appeals. While the matters were not urgent, the registry of the court notified them that their applications would be heard the next day.

3 At this hearing also Maria and Betty appeared self-represented. The judge dismissed the applications without explaining to them the procedure that would be followed or the legal test that would be applied. Maria, a disability pensioner with a learning disability, and Betty, her daughter's carer and whose first language is not English, struggled to give their explanations and the judge gave them only limited assistance. The hearing was conducted quickly, confused in relation to important background facts and not fully understood by Maria and Betty.

4 Under O 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), Maria and Betty now seek judicial review in this court of the orders of the judge. They contend that, in the way that the hearing was conducted, his Honour failed to ensure their human rights to equality under s 8(3) and a fair hearing under s 24(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). The case raises important questions about the obligation of courts and tribunals to ensure equal access to justice for self-represented parties in matters of practice and procedure and the conduct of hearings.

5 Pursuant to s 35(1)(a) of the Charter, notice was given that the following questions of law arose in in the proceeding:

(1) Whether the County Court of Victoria was obliged to comply with ss 8 and 24(1) of the Charter in relation to the conduct of the hearing ...

(2) If so, whether that court was obliged ... to conduct the hearing in a manner, and if so what manner, that took into due account that the [plaintiffs were] self-represented.

Submissions were made on behalf of Maria and Betty and the Attorney-General in relation to those questions.

6 The fire occurred on 26 August 2012. The house that was destroyed was Maria and Betty's home and located at 132 Belgrave-Ferny Creek Road, Tecoma.

7 The orders under the Building Act were issued by the Council shortly afterwards on 13 September 2012. An 'emergency' order was issued under s 102 and required Maria and Betty to secure the building. A 'minor' works building order was issued under s 113 and required them to carry out demolition and other work.

8 After Maria and Betty failed to carry out the required works, an officer of Yarra Ranges Council issued a charge and summons dated 13 March 2013 against them specifying two offences under s 118(1) being the offences of failing to comply with the emergency order (charge 1)[1] and failing to comply with the minor works order (charge 2).[2]

9 The damage done to Maria and Betty's home in the fire rendered them homeless and they had to obtain alternative accommodation. When the charges were issued in March 2013, they were living in rented premises at 20 Dean Avenue, Mount Waverly. Because they were no longer living at the Belgrave-Ferny Creek Road address, they could not be served there. Copies of the charges were sent to them by mail to the Dean Avenue address, which they received and acted upon.

10 The charges were issued in the Magistrates' Court at Ringwood. There were mention hearings on 4 July and 24 October 2013. Maria and Betty attended but were not represented at these hearings. At a hearing on 15 November 2013 and as recorded in a certified court extract dated 19 December 2013, each of them pleaded guilty to charge 2. Charge 1 was withdrawn. Again, they attended but were not represented at this hearing.

11 The two proceedings were adjourned for a month on the undertaking of Betty to comply with the order. When that was not done, just before Christmas on 19 December 2013 and in the absence of Maria and the presence of Betty (who was not represented), the magistrate imposed penalties upon them both, without conviction in relation to Maria[3] and with conviction in the case of Betty.[4]

12 From the certified extracts of the court, the orders convicting Betty and imposing fines on Maria and Betty were for committing 'a breach of Act 93/126.118.1' (the Building Act) which makes it an offence to fail to comply with an emergency order or a building order. From the orders, the magistrate, separately and additionally to imposing penalties for non-compliance with the building order, made orders under s 253(2) of the Act requiring them to demolish the fire damaged building and carry out the other required minor building works and, in default, authorising Yarra Ranges Council to do so.

13 By notice of appeal dated 2 January 2014 (County Court reference AP-14-0002), Betty appealed under s 254(1) of the Criminal Procedure Act to the County Court against the conviction and sentence imposed by the magistrate. The notice, which Betty signed, specified an appeal hearing date of 15 April 2014. The notice of appeal specified both offences as 'FAIL TO COMPLY WITH BUILDING ORDER', stating the first so described to be 'Struck out - Withdrawn' and the second (identically so described) as attracting the conviction and penalties set out above. The notice gave Betty's address for personal service as '20 DEAN AVENUE, MOUNT WAVERLEY 3149 VIC' (which was the correct address at time). It specified the reasons for the appeal as 'the appellant is not guilty'.

14 By application also dated 2 January 2014, Maria made application to the magistrate for a rehearing. The application was signed by her and described the offences and penalties in the same terms as the certified extracts already referred to. Maria specified the grounds of the application to be:

The order was made in the absence of the accused. The reason for the accused's non-attendance was:

I WASN'T THERE BECAUSE I WAS SICK AND HAVE A MEDICAL CERTIFICATE. AND I WISH TO PLEAD NOT GUILTY AND I CAN'T AFFORD THE COSTS IMPOSED IN THIS MATTER AS I AM A STUDENT.

15 Maria's application for a rehearing was heard in the Magistrate's Court at Ringwood on 20 February 2014. The magistrate refused the application and Maria was ordered to pay $450.00 costs.

16 On the same day, Maria issued two appeals under s 254(1) of the Criminal Procedure Act to the County Court. The first (reference AP-14-0332) was an appeal against the orders by way of fine without conviction and costs made by the Magistrate's Court on 19 December. The second (reference AP14-0367) was an appeal against orders by way of refusing her application for rehearing and costs made by that court on 20 February 2014. The notices, which Maria signed, both specified an appeal hearing date of 13 May 2014. The notices also gave 20 Dean Avenue, Mount Waverley as Maria's address for personal service (which was the correct address at the time).

17 As can be seen, because Betty had appeared at the hearing before the magistrate on 19 December 2013, she appealed directly to the County Court. Because Maria had not so appeared, she first made an application for rehearing to the Magistrates' Court. When that was refused, she too appealed to the County Court. Because Maria and Betty's appeals were issued at separate times, different appeal hearing dates were specified, resulting in the unfortunate and confusing procedural separation of two related appeal proceedings.

18 Betty's evidence to this court was that she was with Maria at the Magistrate's Court at Ringwood on 20 February 2014 when Maria's application for a rehearing was refused and she appealed to the County Court. Because she wanted her own appeal and Maria's appeal to be heard together, she asked the registry officer of the Magistrate's Court to have the appeals listed for hearing in the County Court on the same day, that is, 13 May 2014. She said that the registry officer for the Magistrates' Court telephoned the County Court and arranged for the two appeals to be listed together as 'it's a mother and daughter'. She left the court believing that this would occur.

19 In fact, Betty's appeal was heard and determined in her absence on 15 April 2014, the date specified in the notice of appeal. A judge ordered: 'Appeal struck out - No appearance'. This order was made under s 267(1) of the Criminal Procedure Act. The prosecutor at the Council later told her of that order (see below).

20 Under a tenancy agreement dated 29 April 2014 and from 6 May 2014, Maria and Betty moved from the Deans Avenue address to new rented premises at 120 Berwick Springs Promenade, Narre Warren South. According to the evidence given by Betty in this court, they instructed Australia Post to redirect all their mail to their new address.

21 As revealed by a letter dated 9 May 2014 from the solicitors for the Council, Maria and Betty spoke with the Council prosecutor the previous day. They were informed that, in the County Court, Betty's appeal had been struck out in her absence on 15 April 2014 and that Maria's appeals were listed for hearing on 13 May 2014. They requested 'an adjournment to have [the] matters heard together', apparently thinking that that was still possible. The solicitors for the Council advised them to make that application to the presiding judge.

22 Maria could not attend the hearing on 13 May 2014 due to ill health. Betty so notified the County Court on 12 May 2014. The hearing was therefore adjourned, as it transpired until 3 September 2014. Maria and Betty maintain that they were not notified of the adjourned date. The evidence reveals that Maria and Betty did not notify the County Court of their new address but that Betty had their mail redirected to that address (see above). Her evidence to this court is that she thought that this would be sufficient to ensure that she would receive any court notifications at her new address. In any event, Maria was also ill on 3 September 2014 and could not have attended that hearing.

23 So Maria and Betty did not attend the County Court on 3 September 2014. On that day, Maria's first appeal (reference AP-14-0332) against the orders by way of fine without conviction and costs made by the Magistrate's Court on 19 December was struck out by a judge (with $9,750 costs), also under s 267(1) of the Criminal Procedure Act. The sentencing and costs orders made by the Magistrate's Court were confirmed. The evidence does not reveal what if any orders were made in relation to the second appeal. It may still be on foot.

24 As can be seen, Betty's appeal was struck out in her absence on 15 April 2014 and Maria's appeal was struck out in her absence on 3 September 2014. They were informed of the outcome of their appeals but it is not known how and when. It is known that about a week after Maria's appeal was struck out and on 11 September 2014, they both made application under s 267(3) of the Criminal Procedure Act to the County Court to set aside the strike-out orders. I infer that Betty completed both of the application forms and without legal assistance. The forms required the applicant to specify 'the grounds that the failure to appear was not due to fault or neglect on the part of the appellant'. Betty wrote: 'We moved house from 20 Dean Av. Mount Waverly- to 120 Berwick Spring Promenade Narre Warren South 3805: from 6 May 2014'. She wrote to the same effect in Maria's application. As regards Betty's application, this was obviously confused, as her appeal had been dismissed in her absence on 15 April 2014 before that move. Her application was clearly made upon the misconceived basis that the relevant appearance date for both her and Maria was 3 September 2014.

Maria and Betty (except as noted below) attended:
- the mention hearings in the Magistrates' Court at Ringwood on 4 July 2013 and 24 October 2013
- the initial sentencing hearing at the Magistrates' Court at Ringwood on 15 November 2013
- the final sentencing hearing in the Magistrates' Court at Ringwood on 19 December 2013 (Betty only)
- Maria's rehearing application in the Magistrates' Court at Ringwood on 20 February 2014
Maria and Betty did not attend:
- the hearing of Betty's appeal in the County Court of Victoria on 15 April 2014 (relevant only to Betty), which Betty thought, at her request, would be heard at the same time as Maria's appeal
- the hearing of Maria's appeal on 13 May 2014, which was adjourned by the court until 3 September 2014 at Maria's request
- the adjourned hearing of Maria's appeal on 3 September 2014, of which Maria and Betty received no notice because their mail was not forwarded to their new address as directed

26 On 11 September 2014 Maria and Betty attended at the County Court to issue an application to set aside the strike-out orders made by the judges. Later on that same day, they and the solicitors for the Shire were notified that the applications for setting aside the strike-out orders would be heard and determined the next day by a judge of the court, that is, on less than one day's notice. On 12 September, the judge dismissed the applications. The procedure followed by the judge will be discussed in detail below.

27 It is now necessary to identify the principles under the Charter that govern the hearing and determination of legal proceedings involving self-represented parties, beginning with the general application of the Charter to courts and tribunals.

GENERAL APPLICATION OF CHARTER TO COURTS AND TRIBUNALS

Human rights relating to court and tribunal proceedings

28 The Charter generally applies to 'public authorities' as defined in s 4(1).[5] Section 38(1) obligates a public authority to act compatibly with human rights and give human rights proper consideration when making decisions, subject to contrary legislation (see s 38(2)). Under s 4(1)(j), courts and tribunals are public authorities only when acting in an administrative capacity In that capacity, courts sometimes do but usually do not so act and it is the opposite with tribunals.[6] Under the definition in s 4(1), courts and tribunals are not public authorities and therefore do not have obligations under s 38(1) when acting in a judicial capacity. Accordingly, when the judge in the County Court, acting in a judicial capacity, dismissed Maria and Betty's applications, his Honour did not have an obligation to apply the Charter under s 38(1).

29 However, courts and tribunals have an obligation to apply human rights in the circumstances covered by s 6(2)(b) of the Charter, which provides:

(b) courts and tribunals, to the extent that they have functions under Part 2 and Division 3 of Part 3; ...

30 As can be seen, s 6(2)(b) makes the human rights in the Charter generally apply to courts and tribunals 'to the extent that they have functions under Part 2 and Division 3 of Part 3' of the Charter, which obligation applies even when they act in a judicial capacity. Part 2 contains the human rights that are protected by the Charter (ss 8-27) and also stipulates a demonstrable justification test for determining when (under law) they may be limited (s 7(2)). Division 3 of pt 3 contains provisions in relation to the interpretation of legislation, including s 32(1). Whether courts and tribunals have human rights obligations under the Charter when acting in a judicial capacity therefore depends on whether, and to what extent, they have 'functions' under pt 2 and div 3 of pt 3, as specified in s 6(2)(b).

31 The scope of the application of s 6(2)(b) to the functions of courts and tribunals under div 3 of pt 3 of the Charter can readily be ascertained because the provisions of that division clearly impose functions upon them. For example, when exercising their judicial and administrative functions, courts and tribunals are regularly required to interpret legislation and the provisions of s 32(1) therefore apply to the performance of those functions.

32 The scope of the application of s 6(2)(b) to the functions of courts and tribunals under pt 2 of the Charter must be ascertained by properly interpreting this provision.[7] As discussed in Kracke v Mental Health Review Board[8] by reference to a leading text,[9] there are three possible interpretations of s 6(2)(b): the narrow, the intermediate and the broad. As more fully explained by Tate JA in Victoria Police Toll Enforcement v Taha,[10] the narrow interpretation is that the Charter would apply only where the function of the court or tribunal is directly to enforce a specified right; the intermediate interpretation is that the Charter requires a court or tribunal directly to enforce those rights that relate to legal proceedings; the broad interpretation is that the Charter requires a court or tribunal directly to enforce any and all of those rights. After analysing those three possible interpretations, it was concluded in Kracke that the intermediate interpretation is to be preferred. Therefore:

the functions under Pt 2 referred to in s 6(2)(b) are the functions of applying or enforcing those human rights that relate to court and tribunal proceedings.[11]

As submitted on behalf of Maria and Betty and the Attorney-General, this approach appears to be well accepted.[12]

33 In the present case, Maria and Betty rely upon the right to equality in s 8(3) and the right to a fair hearing in s 24(1) of the Charter. It is necessary to determine whether, under s 6(2)(b) as so interpreted, a judge in the County Court is required to apply those rights according to their terms when hearing and determining legal proceedings. As the right in s 24(1) applies to a person charged with a criminal offence, a separate question arises as to whether the obligation in s 24(1) applied to the judge in respect of Maria and Betty's applications to set aside the strike-out orders (see below).

Fair hearing: s 24(1)

34 Taking the relevant rights in reverse order, consistently with the intermediate approach to the interpretation of s 6(2)(b) of the Charter, courts and tribunals in Victoria must apply the right to a fair hearing in s 24 (and s 25) according to its terms in proceedings to which the right applies. So held De Simone v Bevnol Constructions & Developments Pty Ltd,[13] where Neave JA and Williams AJA stated that the fair hearing rights in ss 24 and 25 'apply directly to courts and tribunals, when they exercise their functions'.[14] In DPP v A Mokbel (Orbital & Quills - Ruling No 1),[15] Whelan J followed Kracke to hold that the Charter applies to this court in a criminal proceeding because its functions include providing a fair hearing under ss 24 and 25.[16] In Secretary, Department of Human Services v Sanding[17] I held that the Children's Court of Victoria was obligated by s 6(2)(b) to apply s 24(1):[18]

the functions of courts and tribunals under Pt 2 referred to in s 6(2)(b) are the functions of applying and giving effect to those human rights which relate to court and tribunal proceedings. By excluding courts and tribunals from the definition of a public authority (except when acting administratively), while at the same time making the Charter apply directly to them in respect of the specified functions, the legislation has preserved the substantive legal foundation of the jurisdiction of courts and tribunals, while making it obligatory for them to act compatibly with the Charter in respect of those matters which are within their own direct control, including the conduct of proceedings in accordance with the right to a fair hearing under s 24(1) of the Charter.[19]

In Taha, Tate JA held that 'the right to a fair hearing relates to the core functions courts perform and falls within the intermediate construction'.[20] In one sentencing case and two bail cases in this court concerning children,[21] an element of the right to a fair hearing (the right of children in s 25(3) to age-appropriate and rehabilitation-focused criminal procedures) has been applied under s 6(2)(b.)

35 Therefore, under s 6(2)(b) of the Charter, a judge in the County Court is required to apply the right to a fair hearing in s 24(1) according to its terms when deciding a charge brought against a person charged with a criminal offence. As already noted, a separate question arises as to whether the obligation in s 24(1) applied to the judge in respect of Maria and Betty's applications to set aside the strike-out orders (see below).

Equality: s 8(3)

36 I now turn to the right to equality in s 8(3) as to which two issues arise in the present case. The first concerns the general question of how the 'functions' referred to in s 6(2)(b) are to be identified. The second concerns the application of s 6(2)(b) to the right in s 8(3).

Identifying 'functions' under s 6(2)(b)

37 We have seen that the 'functions' of courts and tribunals under pt 2 of the Charter specified in s 6(2)(b) are 'the functions of applying or enforcing those human rights that relate to court and tribunal proceedings'.[22] As submitted on behalf of the Attorney-General, it may conveniently be said that those functions may be identified by reference to a list of rights approach or a functional approach. The list of rights approach focusses on the functions that may be derived from the nature of the rights that are specified in pt 2 of the Charter while the functional approach focusses upon the functions that are performed by a court or tribunal in legal proceedings in a given case.

38 In Kracke, I adopted the list of rights approach and identified a number of human rights in pt 2 of the Charter as being human rights which, by their nature, related to legal proceedings conducted by courts and tribunals.[23] I there concluded that, under s 6(2)(b), courts and tribunals were obligated to apply those human rights. However, the list was not intended to be and has not been immutable. For example, the right in s 15 of the Charter to freedom of expression was not included in the list yet, correctly with respect, it has been applied in two cases in this court concerning suppression orders.[24] Further, the right in s 8(3) to equality was not included in the list yet it has recently been applied in the procedural respect in two of the three cases I mentioned concerning children.[25]

39 That being said, I accept the submission of the Attorney-General that a limitation of the list of rights approach is the risk of under and over-inclusion. Moreover, the relevance of a human right to a particular court and tribunal proceeding may only become apparent when the issues in the proceeding have been properly examined. Therefore, when applying s 6(2)(b), it is always necessary to examine whether, in the given case, the court or tribunal is exercising functions involving the application of human rights that 'relate to court or tribunal proceedings'.[26]

Procedural implications of right to equality in s 8(3) for courts and tribunals

40 The second issue is whether the right to equality in s 8(3) of the Charter comes within s 6(2)(b) such that it must be applied in procedural respects in court and tribunal proceedings. It was submitted on behalf of Maria and Betty and the Attorney-General that it must so be applied. I accept these submissions. While s 8(3) actually specifies a number of closely related equality rights between which it will later be necessary to distinguish, for present purposes it is sufficient to examine the provision in cognate terms.

41 In the present case, the issue arises in relation to the way in which the judge of the County Court conducted the hearing of Maria and Betty's applications. As an alternative to s 24(1), Maria and Betty contend that they did not have equality under s 8(3) because the judge did not conduct the hearing in a way that adequately took into account that that they were self-represented. Maria made separate submissions in relation to s 8(3) based on her disability. This raises the issue of whether the right in s 8(3) applies in relation to the procedures adopted by courts and tribunals, especially in hearings. I have discussed this and related issues previously.

42 In the early case of Kortel v Mirik and Mirik,[27] I raised the question whether the equality right in s 8, 'in so far as it may have procedural implications', had application to courts and tribunals acting judicially by reason of s 6(2)(b) of the Charter. That was a case, like the present, in which parties were (initially) self-represented. It was not necessary to resolve the issue as those parties became represented under the pro bono scheme operated by the Victorian Bar, as have Maria and Betty in this court in the present case, with the court's great appreciation.

43 Then in Kracke I examined the operation of s 6(2)(b) generally and identified a list of rights to which it applied. I expressly excluded the right specified in s 8(3) from the scope of s 6(2)(b) because it related 'to the rights possessed by individuals rather than to court and tribunal proceedings'.[28] I was there concerned with the substantive and not the procedural operation of s 8(3), for that is what was in issue in Kracke.

44 Finally, in Lifestyle Communities Ltd (No 3)[29] I clarified what I stated in Kracke in this regard. I held that that the equality right (see especially s 8(3)) applied to the procedures of courts and tribunals. Referring to both Kortel and Kracke, I wrote:

In Kortel...,[30] I raised the question whether the equality rights in s 8, 'in so far as [they] may have procedural implications', applied to courts acting judicially by reason of s 6(2)(b) of the [Charter]. In Kracke, I held that human rights relating to court and tribunal proceedings in judicial cases were applicable under that provision.[31] I excluded the right to equality before the law in s 8 from that category. I had there in mind the substantive application of the whole of s 8 to courts and tribunals and the law they administer. On the analysis in the present case, the equality rights in s 8 do have 'procedural implications', for they impact on the way people can be treated in court and tribunal proceedings. To that extent, following the principles in Kracke on this point, under s 6(2)(b) those rights are applicable to courts and tribunals in judicial cases, thus supplementing the right to a fair hearing in ss 24 and 25. Of course, the [Charter] applies generally to the administration of courts and tribunals and when they are acting in an administrative capacity in the public law sense.[32]

I maintain those views,[33] which I applied in the sentencing case and one of the two bail cases concerning children that I mentioned above.[34]

45 Thus, on the proper interpretation of s 6(2)(b) of the Charter, courts and tribunals are bound to apply the human right specified in s 8(3) because, in procedural respects, the elements of the equality right that it enshrines relate to court and tribunals proceedings, including the conduct of hearings. Therefore, in relation to proceedings and hearings, courts and tribunals are obliged by s 8(3) to ensure that every person is equal before the law and given the equal protection of the law without discrimination and equal and effective protection of the law against discrimination. Under s 8(4), measures taken by courts and tribunals to accommodate the procedural needs of persons disadvantaged because of discrimination do not themselves constitute discrimination. This general obligation under s 6(2)(b) to apply s 8(3) in procedural respects is in addition to any obligation of a court or tribunal under s 24 and the common law to ensure a fair trial[35] and applies in relation to the conduct of proceedings and hearings by court and tribunals where (persons who are) parties are self-represented.[36]

46 Given that s 6(2)(b) of the Charter makes s 8(3) (in procedural respects) and s 24(1) generally applicable according to their terms in court and tribunal proceedings, including hearings, an issue arises as to whether, in Maria and Betty's specific cases, ss 8(3) and 24(1) required the judge of the County Court to ensure those human rights. Determination of this issue involves consideration of whether, according to their terms, ss 8(3) and 24(1) specifically applied in those proceedings.

Different elements of the right to equality in s 8(3)

(3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.

(4) Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.

Section 4(1) of the Charter defines 'discrimination' as follows:

discrimination, in relation to a person, means discrimination (within the meaning of the Equal Opportunity Act 2010) on the basis of an attribute set out in section 6 of that Act;

Section 6 of the Equal Opportunity Act 2010 lists a number of attributes in respect of which discrimination is prohibited, including age; disability; political belief or activity; race; religious belief or activity; sex; and sexual orientation.

It can be seen that these and indeed other[37] provisions of the Charter do not adopt an unlimited concept of discrimination but rather a definition of discrimination that means discrimination within the meaning of the Equal Opportunity Act 2010 (Vic) on the basis of an attribute set out in s 6 of that Act. 'Discrimination' is relevantly defined in s 7(1)(a) to mean 'direct or indirect discrimination on the basis of an attribute', while s 8(1) defines 'direct discrimination' and s 9(1) defines 'indirect discrimination'. As the note to s 4(1) of the Charter indicates, s 6 of the Equal Opportunity Act sets out a number of attributes, including '(e) disability'. The definition in s 4(1) incorporates by reference into the Charter the specified (and not other) provisions of the Equal Opportunity Act. So incorporated, they operate according to their own terms to give protection against discrimination on the basis of an attribute within the free-standing legislative framework of the Charter (including under s 8(3)) whether or not the discrimination is unlawful within the separate legislative framework of the Equal Opportunity Act.

48 In the present case, it is important to note that, when applying s 8(3), a distinction must be drawn between Maria and Betty. In regard to Maria, the conduct of the hearing engaged the attribute of 'disability' set out in s 6(e) of the Equal Opportunity Act, for she suffered from a learning disability. [38] Her disadvantage in the hearing was not due only to her being self-represented but was also substantially due to her having a disability. In regard to Betty, the conduct of the hearing by the judge of the County Court did not engage such an attribute. Her disadvantage in the hearing was due entirely to her being self-represented. Therefore the judge was obliged to ensure that the hearing was conducted so that both Maria and Betty were equal before the law (the first element of s 8(3)) and also that Maria was protected by the law without and against discrimination (the second and third elements of s 8(3)).

49 The Attorney-General submitted that the judge of the County Court was obliged by s 8(3) to give positive assistance to Maria and Betty to adjust and accommodate for the disadvantage of their position as self-represented parties. In scope, this obligation equated to the obligation of the judge under the common law as explained in Tomasevic v Travaglini.[39] This submission was connected with the submission of the Attorney-General that s 24(1) did not apply to Maria and Betty's applications to set aside the strike-out orders as they did not involve the hearing and determination of criminal charges. Maria and Betty supported the submissions of the Attorney-General in relation to s 8(3) but not in relation to s 24(1), which they submitted was applicable.

50 It is here that it is necessary to pay regard to the different elements of the equality right in s 8(3). As regards the first element (equality before the law), I do not accept the submission made on behalf of Maria and Betty and the Attorney-General, highly attractive as the submissions were, that this element of the right has a substantive operation. As regards the second and third elements (equal protection of the law without discrimination and to equal and effective protection against discrimination), I accept the submissions made on their behalf that these elements of the right, in procedural respects, have a substantive operation and apply to courts and tribunals, but only in respect of discrimination as defined.

51 Drawing upon art 26 of the International Covenant on Civil and Political Rights[40] ('ICCPR') on which s 8(3) of the Charter was modelled and directly relevant international sources, in Lifestyle Communities (No 3)[41] I analysed the scope and purpose of the human right to equality generally and, importantly for present purposes, as specifically enacted in s 8(3) of the Charter. It is not necessary to repeat that analysis, which I here adopt. I particularly drew attention to certain distinctions between the three elements[42] of the human right to equality as so enacted which are relevant in the present case.

52 In relation to the first element of s 8(3), which requires every person to be equal before the law, I stated:

Equality before the law is the principle of the general application of the law and the equal treatment of all persons who come before the law, whether that is before a court or tribunal applying the law or before someone administering the law. It is directed to the application and administration of the law, not to the content of the law. Equality before the law is procedural, not substantive, in character. It gives no entitlement to laws of a particular content. It is a principle of universal application. Unlike the other components of s 8(3), it is not limited to unequal treatment that constitutes discrimination. Equality before the law proscribes arbitrary treatment, that is, treatment devoid of objective justification, in the application and administration of the law.

The human right to equality before the law requires the tribunal to apply and administer the laws within its responsibility equally towards every person. In doing so it must not treat people arbitrarily (without objective justification).[43]

53 In relation to the second and third elements of s 8(3), which require every person to have the equal protection of the law without discrimination and equal and effective protection against discrimination, I stated:

The human right to equal protection of the law without and against discrimination expresses the fundamental value of substantive equality in the content and operation of the law. It protects the interests that all people have, as of right, in being equally protected by the law from discrimination, including protection from laws that are discriminatory in nature.

The principle negatively prohibits making discriminatory laws, for they subject people to, rather than protect people from, discrimination; it also positively requires people to be equally protected from discrimination in law or fact, for the principle goes further than mere formal equality to encompass substantive equality in the content, application and operation of the law in all respects.

By discrimination is meant making distinctions in the content and administration of the law within the meaning of 'discrimination' in the Equal Opportunity Act. The right to equal protection of the law without and against discrimination is not breached by legal or administrative distinctions which, under the test in s 7(2), are regarded as reasonable, objective, for legitimate purposes and proportionate to those purposes.

Treating people equally in substance can require the equal treatment of people who are alike and the unequal treatment of people who are unalike. Therefore, when necessary, it is not discriminatory to take affirmative action to redress the historical or entrenched disadvantage suffered by some people and groups.[44]

54 In so interpreting s 8(3) of the Charter, I took into account the difference in scope of art 26 of the ICCPR[45] on which s 8(3) was broadly based as compared with the narrower scope of s 8(3) as enacted:

In s 8(3) of the [Charter], the rights to equality before the law and to equal protection of the law without and against discrimination reflect the same rights in art 26 of the ICCPR ... I interpret s 8(3) in that light and give those rights a corresponding scope and operation, with three qualifications.

The first qualification concerns equal protection of the law without and against discrimination. As I have already noted, s 8(3) is expressed in terms of discrimination within the meaning of the Equal Opportunity Act. The protection in art 26 of the ICCPR is expressed in terms of discrimination as such (in respect of equal protection of the law) and discrimination on the enumerated and other grounds (in respect of equal protection against discrimination). The inclusion in the [Charter] of a closed definition of 'discrimination' has the effect of limiting somewhat the relative scope and operation of s 8(3) in this respect, such that the focus must be on discrimination as defined, not on discrimination as it is more widely expressed in art 26.[46]

55 I have considered in the present case whether the first element of the right to equality in s 8(3) of the Charter has a substantive operation applying in relation to the procedures followed and hearings conducted by courts and tribunals even if it does not generally have that kind of operation. In s 24(1), the legislature did not enact the right in the first sentence of art 14(1) of the ICCPR that '[a]ll persons shall be equal before the courts and tribunals', which encompasses substantive equality.[47] It might be suggested that the legislature did not do so because the first element of the right to equality in s 8(3) was intended to have that substantive operation in its specific application to courts and tribunals even if it did not generally do so. In this connection, the submissions of the Attorney-General relied upon General Comment 18 - Non-discrimination of the Human Rights Committee, which explains the right to equality before the courts and tribunals in the first sentence of art 14(1) as a specific application of the broader right to equality and non-discrimination in art 26.[48]

56 This approach to interpreting the first element of the right in s 8(3) of the Charter has high purposive attractions. However, it requires a shifting interpretation of the right, namely that it has a substantive operation in relation to court and tribunal proceedings and an operation based on non-arbitrariness in relation to other cases. This is not supported by the extrinsic materials. It would be inconsistent with both the express exclusion of the first sentence of art 14(1) of the ICCPR from s 24(1) and the express confining of the substantive operation of the right in the second and third elements in s 8(3) to cases involving discrimination as defined under the Equal Opportunity Act.[49] The better view is that the legislature intended that the right to equality before courts and tribunals in the first sentence of art 14(1) of the ICCPR was to be subsumed in the cognate right in s 24(1) to have civil and criminal proceedings decided by them competently, independently and impartially after fair and public hearings.

57 As so understood, the different elements of the equality right specified in s 8(3) have application under s 6(2)(b) in relation to the position of self-represented persons in courts and tribunals. But the content of the obligation of the court or tribunal must take account of the specific terms in which the elements of the right have been enacted.

58 In its application under s 6(2)(b) of the Charter, the first element of the equality right in s 8(3) - equality before the law - specifies a fundamental obligation to avoid arbitrary treatment (treatment that is devoid of objective justification) in the application and administration of the law in relation to court and tribunal proceedings. Procedures and hearing practices that are based on distinctions between parties or other participants which are arbitrary in the sense of lacking objective justification run up against the proper application of this right (subject to s 7(2)). This element of the right applied to the judge of the County Court in relation to the hearing of both Maria and Betty's applications. But equality before the law under s 8(3) does not impose an obligation to ensure substantive equality, which is what they really needed and a more enlightened concept of equality really demanded.

59 The limitations in the formal nature of the first element of the right to equality in s 8(3) of the Charter are illustrated by Mara and Betty's cases. As it happens, Maria has a disability protected by the limited definition of discrimination that is incorporated by reference. Fortunately, her equality rights are fully protected in the circumstances by the other elements of the right (the third is pertinent). The circumstances of Maria's mother, Betty, are otherwise identical and, it might be thought, demand a like response under the human right to equality. Unfortunately, she is not protected by the other elements of the right in s 8(3) because of the limited definition of discrimination. The inconsistent manner in which the substantive aspect of the equality right in s 8(3) applies in the facts of this case thus gives rise to cause for reflection.

60 Contrary to the submissions made for Maria and Betty and the Attorney-General, I cannot accept that, in its application to the position of self-represented persons, the obligation of courts and tribunals conducting hearings under the first element of the right to equality in s 8(3) equates to their obligation under the common law as explained in Tomasevic. The common law obligation as so stated sets a significantly higher standard than not treating self-represented persons arbitrarily. The obligation stated in Tomasevic is generally encompassed in the right to a fair hearing in s 24(1) of the Charter, which is applied through the principle of equality of arms, not the first element in s 8(3). Neither does the first element of the right in s 8(3) equate to the obligation in s 24(1) to ensure a fair hearing, which likewise is a much stronger obligation than not treating self-represented persons arbitrarily. As the judge of the County Court did not act arbitrarily towards Maria or Betty when conducting the hearing, their human right to equality was not breached in this respect (see below).[50]

61 The second and third elements of the right in s 8(3) of the Charter guarantee to every person the equal protection of the law without discrimination and equal and effective protection against discrimination and require substantive equality in the content and operation of the law. These elements of s 8(3) applied to the judge of the County Court in relation to Maria's but not Betty's hearing as Maria had a relevant disability and Betty did not. It is the third element - ensuring equal and effective protection against discrimination - that is pertinent. Where a relevant disability of a self-represented person substantially contributes to their participatory disadvantage, as occurred with Maria in the present case, the court or tribunal conducting the hearing is positively obliged to make reasonable adjustments and accommodations. Failing to do so would constitute 'discrimination' and specifically 'indirect discrimination' under ss 7(1) and 9(1) of the Equal Opportunity Act[51] and therefore would represent a failure to ensure equal and effective protection against discrimination as required by s 8(3) of the Charter. In almost all circumstances, the steps referred to in Tomasevic would be sufficient. In the present case, the judge of the County Court conducting the hearing failed to make reasonable adjustments and accommodations in respect of Maria's disability. As there was no justification for so failing (see s 7(2)), her human right to equality in this respect was breached.

A 'person charged with a criminal offence' under right to fair hearing in 24(1)

62 This is s 24(1) of the Charter:

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 matter in issue is whether the right in s 24(1) applied to Maria and Betty in respect of the hearing and determination of their applications under 267(3) of the Criminal Procedure Act to set aside the orders made by the judge of the County Court to strike out their appeals against the sentencing orders of the Magistrates' Court.

63 In Victoria, the Civil Procedure Act 2010 (Vic) governs civil procedure and the Criminal Procedure Act governs criminal procedure. The summary charges brought against Maria and Betty in the Magistrates' Court were brought pursuant to the procedure specified in the latter Act (s 6(1)), as were the appeals, which I will consider in more detail.

64 Part 6.1 of the Criminal Procedure Act makes provision for appeals from the Magistrates' Court of Victoria to the County Court of Victoria in criminal cases. Under s 254(1), an appeal may be brought by 'a person convicted of an offence by the Magistrates' Court in a [relevant] criminal proceeding', including persons found guilty but not convicted of an offence.[52] Such an appeal may be brought against both conviction and sentence or against sentence alone (s 254(1)(a) and (b)). If the appellant is not in custody because of the sentence appealed from, the appeal operates as a stay of sentence, but not of any conviction imposed in respect of the sentence (s 264(1)). If the appellant is in custody because of the sentence appealed from, the appeal operates as a stay of sentence (not conviction) if bail is granted (s 264(2)(b)). An appellant in custody because of the sentence appealed from may apply for bail from the Magistrates' Court (s 265(1)). An appeal is conducted by way of rehearing and the appellant is not bound by the plea entered in the Magistrates' Court (s 256(1)). As now to be seen, whatever was the position of the Magistrates' Court at first instance, a judge of the County Court must therefore determine the appeal upon the evidence admitted in the appeal proceeding and has jurisdiction to determine whether, on that evidence, the appellant is guilty or not guilty of the charge and, if guilty, what the sentence should be.

65 It has been observed that '[t]here are different meanings to be attached to the word "rehearing".'[53] In X v Secretary, Department of Human Services,[54] Gillard J discussed different forms of appeal to which the word 'rehearing' could be applied:

There are at least three types of appeal which could be described as a re-hearing. The first is where an appeal court makes its own decision on the evidence before the court below. Secondly, an appeal by way of re-hearing based upon the evidence given in the court of first instance supplemented by further evidence and finally, an appeal by way of hearing de novo (sometimes described as a re-hearing de novo).[55]

The third form of rehearing to which his Honour refers - the 'hearing de novo' - describes an appeal in which 'the court on the appeal is not bound by anything that occurred at the prior hearing and considers the matter afresh.'[56] An appeal will be heard de novo if it is explicitly defined as such in the relevant legislation, or if the legislation describes it as a 'rehearing' but a correct construction requires that it be heard de novo.[57]

66 Historically, appeals by way of rehearing from the courts of petty sessions to the courts of general sessions were treated as appeals in the form of a hearing de novo.[58] These courts are the equivalent of the modern day Magistrates' Court and County Court, respectively.[59]

67 Prior to the Criminal Procedure Act, appeals from the Magistrates' Court to the County Court were governed by ss 83-6 of the Magistrates' Court Act 1989 (Vic). Section 85 of that Act required such appeals to be conducted as a 'rehearing'. It is well-established that the word 'rehearing' in this provision meant that such appeals were to be heard 'de novo'.[60] Thus, in DPP v His Honour Judge Fricke,[61] Fullagar, Tadgell and JD Phillips JJ held:

By virtue of s 85 of the Magistrates' Court Act, an appeal under s 83(1) to the County Court 'must be conducted as a rehearing'. The word 'rehearing' is here used in the sense of a hearing de novo.[62]

The meaning of this proposition was explained by Hargrave J who stated in Candolim Pty Ltd v Garrett[63] that the effect of s 85 of the Magistrates' Court Act was 'that everything which happened in the Magistrates' Court [was] to be disregarded on the hearing of the County Court appeal,'[64] which was approved in Quick v Creanor; Taylor v Wilkins[65] by the Court of Appeal (Maxwell P, Beach and Kaye JJA).

68 An issue in Quick was the extent of the powers of the County Court on appeal when compared with the powers of the Magistrates Court at first instance. As we have seen, criminal appeals from the Magistrates' Court to the County Court are now governed by ss 254 and 256 of the Criminal Procedure Act. Quick made clear that these provisions are 'relatively the same' as ss 85 and 86 of the Magistrates' Court:[66]

Plainly enough, that is a provision [s 254] of very broad scope, intended to place the County Court in the same position as the Magistrates' Court and with complete control over the criminal proceedings before it.[67] It follows that, on an appeal from the Magistrates' Court, the County Court can exercise the power of reinstatement just as the Magistrates' Court could have done.

This conclusion is reinforced by the nature of an appeal to the County Court. Section 256(1) of the [Criminal Procedure Act] provides that an appeal under s 254 must be conducted 'as a re-hearing'. That provision, and its predecessors in the Magistrates' Court Act and the Justices Act, have long been understood as requiring the County Court to conduct a hearing de novo. In other words, the Court starts afresh. Thus, for example, amendments made to a charge by the Magistrates' Court are of no effect before the County Court. As Hargrave J correctly stated in Candolim Pty Ltd v Garrett,[68] the effect of ss 85 and 86 of the Magistrates' Court Act 1971 (which are relevantly the same as s 256(1) and s 256(2)(a) of the [Criminal Procedure Act]), is '... that everything which happened in the Magistrates' Court is to be disregarded on the hearing of the County Court appeal'.[69]

That aspect of the process of appeal, from the Magistrates' Court to the County Court, was made abundantly plain by Beach J in Helfenbaum v Sattler & Anor,[70] in which his Honour said:

I think that the correct view of the matter is that when the hearing of the appeal commences, and it must be borne in mind that it is a hearing 'de novo', the order of the Magistrates' Court should be either formally set aside or at the least be deemed to be set aside. I say that for the reason that as the hearing is a hearing de novo and regardless of the outcome the order the Magistrates' Court must be set aside there should no longer be any order on foot in respect of the matter at the time the hearing of the appeal commences before the County Court.[71]

Accordingly, appeals from the Magistrates' Court to the County Court under the Criminal Procedure Act have been found to be in the form of a hearing de novo.[72]

69 As an appeal from the Magistrates' Court to the County Court under pt 6.1 of the Criminal Procedure Act is an appeal de novo, it is appropriate to describe the appellant as a person charged with a criminal offence for the purposes of s 24(1) of the Charter. As I conclude below, it is but a short step to describe an applicant to set aside an order striking out an appeal under the same appellant process in the same way.

70 Under s 267(1) of the Criminal Procedure Act, a judge of the County Court has discretion in cases where the appellant fails to appear at the time listed for the hearing of an appeal. The appeal may be struck out or the proceeding may be adjourned on appropriate terms (s 267(1)(a) and (b)). In Maria and Betty's cases, the appeals were stuck out. The effect of striking out an appeal for failing to appear is to reinstate the sentence of the Magistrates' Court from which the appeal is brought (s 267(2)(a)). Therefore, when the strike-out orders were made, the finding of guilt and sentence of Maria and the conviction and sentence of Betty were reinstated.

71 Under s 267(3), the court may set aside an order striking out an appeal because the appellant failed to appear if 'the appellant satisfies the court that the failure to appear was not due to fault or neglect on the part of the appellant'. If the court grants such an application, it must order the reinstatement of the appeal. A reinstated appeal operates as a stay of sentence but not of conviction (s 267(7)). An application for bail pending the reinstated appeal may be made the County Court (s 267(6A)).

72 The Attorney-General submitted that the right in s 24(1) of the Charter did not apply to the hearing and determination of Maria and Betty's applications under s 267(3) of the _Civil Procedure Ac_t to set aside the strike out-orders because, in that proceeding, they were not persons 'charged with a criminal offence' and, in hearing and determining their applications, the judge of the County Court was not deciding those charges. In the submission of the Attorney-General, it was also doubtful whether, in respect of the appeals, Maria and Betty were persons charged with an offence. Maria and Betty dispute those submissions.

73 As stated in PJB v Melbourne Health (Patrick's Case),[73] the scope and application of the human rights in pt 2 of the Charter are to be ascertained by a process of interpretation that takes account of the beneficial purposes of the Charter:[74]

[human] rights are interpreted purposively and, in the words of Warren CJ in Re Application under the Major Crime (Investigative Powers) Act 2004,[75] 'in the broadest possible way'. Following that decision, Hargrave J said in Director of Public Prosecutions v Ali (No 2) that the general approach was to interpret the rights in the Charter 'broadly and in a non-technical sense.'[76] Speaking of the New Zealand Bill of Rights Act 1990, Elias CJ said in R v Hansen[77] that the 'meaning of the right is to be ascertained from the "cardinal values" it embodies.' In reference to the Canadian Charter of Rights and Freedoms, Dickson J said in R v Big M Drug Mart Ltd[78] that the 'meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect.' Reasonable and demonstrable limitation of the right is not taken into account when identifying its scope.[79]

Kracke decided that s 24(1) of the Charter was to be so interpreted.[80]

74 Applying this approach, the interpretation for which the Attorney-General contends is far from the broadest one that is reasonably open. In the context of human rights legislation, I think it is overly technical to doubt that an appellant in a criminal appeal that operates as a rehearing, and that might thereby result in an acquittal or lower sentence, is not a person charged with a criminal offence. It is equally overly technical not to treat an applicant under the appellant criminal process for orders reinstating a struck-out appeal, which might result in the reinstatement of the appeal, as a person charged with a criminal offence.

75 The underlying purpose of the right in s 24(1) of the Charter is the fair determination of criminal charges by a competent, independent and impartial criminal process, which is fundamental to respect for the dignity of the individual and the rule of law in democratic society. That process encompasses an appeal proceeding and includes such associated processes as applications for bail[81] and, in the present case, orders setting aside orders striking out an appeal. In respect of such proceedings and processes, appellants and applicants, such as Maria and Betty, are to be regarded as persons charged with a criminal offence and therefore enjoy the fundamental protections of s 24(1) of the Charter.

76 While s 32(2) of the Charter permits resort to decisions of foreign and international jurisdictions when interpreting of the Charter, I accept the submission of the Attorney-General that this should be done cautiously, as pointed out by Warren CJ in Bare v Independent Broad-based Anti-corruption Commission[82] by reference to Momcilovic v The Queen.[83] The starting point is not that s 24(1) was modelled upon art 14(1) of the ICCPR so that the court can go straight to the international jurisprudence. It is necessary to start and end with the language of s 24(1), which may be examined in the broader context of the Charter and other relevant Victorian statutes and then, if relevant, the court could resort to international jurisprudence. (Adopting this approach to interpreting s 8(3) of the Charter, I have concluded that it was deliberately enacted in somewhat narrower terms than art 26 of the ICCPR (see above)).

77 Therefore I also accept the attention given in the submissions of the Attorney-General to the language of s 24(1), which relevantly applies to a 'person charged with a criminal offence', rather than in 'the determination of any criminal charge', as does art 14(1) of the ICCPR and (similarly) art 6(1) of the European Convention on Human Rights[84] ('ECHR') (see below). Further I accept that the legislature has made deliberate modifications to the rights that are specifically applicable in criminal proceedings in a related provision, s 25(2). For example, under that provision, a person charged with a criminal offence has a right to legal aid only if entitled under the Legal Aid Act 1978 (Vic), which limits the right in a way that art 14(3)(d) of the ICCPR is not.[85]

78 Giving these and related submissions the best consideration I can, I cannot find in the language of s 24(1) the restricted meaning for which the Attorney-General contends. In particular, the words of application - a 'person charged with a criminal offence' - do not suggest that the right to a fair hearing by a competent, independent and impartial court was intended to be confined in criminal cases to the actual determination of the charge at first instance. The context of s 24(1) in the Charter as a whole does not support such a restrictive interpretation. The language of s 25(2) (which lists minimum guarantees for persons 'charged with a criminal offence') and s 25(4) (which specifies a right of review of convictions and sentences for persons 'convicted of a criminal offence') does not support a restrictive interpretation of a person 'charged with a criminal offence' in s 24(1). The distinction between persons 'charged with' and 'convicted' of a criminal offence in s 25(2) and (4) is not hard and fast for all purposes, including s 24(1). It is a practical way of describing the application of the different kinds of rights in s 25. I note that s 25 is headed 'Rights in criminal proceedings'. This general expression is apt to cover a number of different processes, as in that provision, and s 24(1), it does. As was pointed out by Hollingworth J in Sabet v Medical Practitioners Board, in reference to s 25,[86] '[h]eadings form part of the Charter, and are to be used in its interpretation'.[87]

79 Nothing to which I was taken in Victorian statute law supports such a restrictive interpretation of s 24(1). The provisions of the Criminal Procedure Act (which regulates criminal procedure comprehensively) do not support it. Indeed, as the analysis above shows, appeals from the Magistrates' Court to the County Court under the provisions of pt 6.1 of that Act involve hearings de novo; the strike-out and set-aside procedures form part of that process. The broader interpretation of s 24(1) for which Maria and Betty contend fits well into the operation of those provisions.

80 The word 'decided' in s 24(1) does not take the matter further. It would frustrate the beneficial purposes of the Charter to exclude from the right conferred by s 24(1) decisions in relation to appeals by way of rehearing under pt 6.1 of the Criminal Procedure Act. It would equally frustrate the beneficial purposes of the Charter to exclude associated decisions, such as decisions to refuse applications to set aside strike-out orders. In appeals, both decisions by way of rehearing and associated decisions form part of the criminal process under the Criminal Procedure Act for the final determination of charges that have been commenced in the Magistrates' Court. Under s 24(1) of the Charter, an accused person engaged in that process remains 'a person charged with a criminal offence' until it has been finalised.

81 This is a case in which international sources are relevant because s 24(1) was based on art 14(1) of the ICCPR, and that in turn was influenced by art 6(1) of the ECHR. The Victoria legislature did not state that s 24(1) was intended to create a right to a fair hearing in criminal cases that was more restrictive than those rights. My conclusion as to how s 24(1) should be interpreted is supported by decisions of the United Nations Human Rights Committee under art 14(1) and (3) of the ICCPR and of the European Court of Human Rights under art 6(1) of the ECHR.

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

Article 14(3) specifies a number of particular rights applying in the determination of criminal charges against persons, as follows:

In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) To be tried without undue delay;

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g) Not to be compelled to testify against himself or to confess guilt.

Article 14(4) specifies a particular right in relation to juvenile persons, as follows:

In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.

83 In relation to the rights conferred by art 14, the Human Rights Committee has published General Comment No 32: Right to equality before courts and tribunals and to a fair trial.[88] If the rights in art 14 were to be confined to the actual hearing and determination of the criminal charge but not to related aspects of the criminal procedure such as appeals, it is to be expected that this would be made clear in the General Comment. It is not discussed. Determinations of individual complaints by the Committee do not reflect such a narrow conception of the rights conferred by art 14.

84 For example, the Committee has decided that the rights in art 14(1) apply to post-trial review proceedings. In Currie v Jamaica,[89] the author of the communication complained that he was not provided with legal aid for the purposes of filing a matter before the Constitutional Court of Jamaica in relation to his conviction for an offence. The Committee noted that:

The role of the Constitutional Court is not to determine the criminal charge itself, but to ensure that applicants receive a fair trial in all cases, whether criminal or civil. The State party has an obligation, under article 2, paragraph 3, of the Covenant, to make the remedies in the Constitutional Court addressing violations of fundamental rights available and effective.[90]

Nevertheless, it stated that art 14(1) and (3) applied:

The determination of rights in proceedings in the Constitutional Court must conform with the requirements of a fair hearing in accordance with article 14, paragraph 1. In this particular case, the Constitutional Court would be called on to determine whether the author's conviction in a criminal trial has violated the guarantees of a fair trial. In such cases, the application of the requirement of a fair hearing in the Constitutional Court should be consistent with the principles in paragraph 3(d) of article 14. It follows that where a convicted person seeking constitutional review of irregularities in a criminal trial has not sufficient means to meet the costs of legal assistance in order to pursue his constitutional remedy and where the interests of justice so require, legal assistance should be provided by the State.[91]

85 The basis of the ruling by the Committee against the State party in Thomas v Jamaica[92] was that, contrary to art 14(3)(d), legal aid was not provided to investigate possible legal remedies in relation to a criminal conviction.[93]

86 The same reasoning has been applied to pre-trial hearings in relation to criminal charges. In Wright v Jamaica,[94] the complaint was that legal aid had not been provided in relation to such a hearing, admitting that it was not the hearing and determination of the charge. The Committee decided that the requirement to provide legal aid 'applies not only to the trial and relevant appeals, but also to any preliminary hearings relating to the case'.[95]

87 The Committee has upheld complaints where the victim was denied legal aid in relation to his interrogation by police well prior to the determination of any criminal charge against them. That occurred in Gunan v Kyrgyzstan[96] where the author was interrogated on several occasions in the absence of a lawyer. The Committee found that this constituted a violation of art 14(3)(b) and (d),[97] quite apart from the violation of art 14(1) that occurred at a subsequent trial.[98] Likewise, in Krasnova v Kyrgystan[99] an abusive pre-charge seizure of evidence and interrogation of the author's son was found to constitute a violation of art 14(3)(b).

88 It was confirmed in LaVende v Trinidad and Tobago[100] that the guarantees in art 14(3)(d) apply not only to the hearing and determination of criminal charges but to 'all stages of the legal proceeding' and 'all stages of appellate remedies'.[101]

89 Even where the Committee has felt constrained to find that a particular proceeding did not relate to the determination of a criminal charge, it has decided that the guarantees in civil proceedings in art 14(1) apply. At issue in Everett v Spain[102] was whether the criminal guarantees in art 14(2) and (3) were applicable to extradition proceedings. The Committee decided that they were not because:

the Committee considers that even when decided by a court the consideration of an extradition request does not amount to the determination of a criminal charge in the meaning of article 14.[103]

However, it decided that the civil guarantees in art 14(1) were applicable in such proceedings:

Particularly, in cases where, as in the current one, the judiciary is involved in deciding about extradition, it must respect the principles of impartiality, fairness and equality, as enshrined in article 14, paragraph 1, ...[104]

90 On the basis of the wording of art 14(1) of the ICCPR and these decisions of the Human Rights Committee, I think it is clear that the hearing and determination of Maria and Betty's application to the County Court for setting aside the strike-out orders would be regarded as part of the criminal process for determining the criminal charges against them within that article. In my view, the scope of the right conferred by s 24(1) of the Charter in relation to persons charged with a criminal offence is not narrower in that regard.

91 Turning to the ECHR, art 6(1) specifies a right to a fair trial, as follows:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...

In relation to persons charged with a criminal offence, art 6(3) specifies these minimum guarantees:

Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

92 The European Court of Human Rights at Strasbourg has not confined the scope and application of the rights in art 6(1) and (3) to the actual determination of the criminal charge at first instance. Rather it has applied the right to various stages of the criminal process, including the pre-trial and post-trial (appeal) stages.

93 As to the pre-trial stage, the issue in Imbrioscia v Switzerland[105] was whether art 6(1) and (3)(c) had been breached when the applicant had been interrogated (after arrest) on six occasions without a lawyer being present. The court did not accept Switzerland's submission that the interrogation did not involve the determination of a criminal charge against the applicant. It held that it did not follow from the focus of the right in art 6(1) and (3) upon the fair determination of criminal charges that it 'has no application to pre-trial proceedings'.[106] But it found that no breach had occurred because the applicant had raised no complaint at the time of being interrogated and voluntarily participated.[107]

94 The court considered the same issue in detail in Salduz v Turkey.[108] The applicant alleged that his defence rights under art 6(3)(c) had been violated because he had been denied access to a lawyer during his police custody. Approving Imbrioscia and other cases, the court confirmed that the fair trial guarantees in art 6(1) and (3) applied to the investigative stage of criminal proceedings, especially given the vulnerability of accused persons in custody, for which access to a lawyer was a necessary compensation.[109] It stated the following general principle:

Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently 'practical and effective'[110] art 6(1) requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction - whatever its justification - must not unduly prejudice the rights of the accused under art 6.[111] The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.[112]

The court found that the applicant's fair trial rights had been breached,[113] especially taking into account that he was a minor, stressing 'the fundamental importance of providing access to a lawyer where the person in custody is a minor'.[114]

95 The similar complaint of the applicants in Ibrahim v United Kingdom[115] was rejected but not because they were inadmissible. Applying Salduz and other cases, the court stressed the general importance to a fair trial of criminal charges under art 6(1) and (3) of access to a lawyer during the initial stages of police interrogation.[116] However, it held that the terrorism charges against the applicants and other special circumstances provided compelling reasons why temporary limitations upon their access to a lawyer at this stage were justified.[117] In doing so, the court took into account the safeguards in the criminal process, considered as a whole.

96 As to the post-trial (appeal) stages of the criminal process, the issue in Artico v Italy[118] was whether it was a breach of art 6(3)(c) for the applicant to appear self-represented in an appeal against his fraud conviction when he could not obtain a legal aid lawyer to represent him. Of the rights in art 6(1) and (3)(c), the court said:[119]

Paragraph 3 of Article 6 (art 6(3)) contains an enumeration of specific applications of the general principle stated in paragraph 1 of the Article (art 6(1)). The various rights of which a non-exhaustive list appears in paragraph 3 reflect certain of the aspects of the notion of a fair trial in criminal proceedings. When compliance with paragraph 3 is being reviewed, its basic purpose must not be forgotten nor must it be severed from its roots.

The Court recalls that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective; this is particularly so of the rights of the defence in view of the prominent place held in a democratic society by the right to a fair trial, from which they derive.[121]

The court concluded that art 6(3)(c) had been breached.[122] Other examples of the court upholding complaints of breach of art 6(1) and (3) in relation to appeal proceedings include Nideröst-Huber v Switzerland,[123] Bulut v Austria[124] and Batsanina v Russia.[125]

97 The complaint in Eckle v Federal Republic of Germany[126] was that, contrary to art 6(1), the criminal charges had not been completed within a 'reasonable time'. Two of the relevant proceedings lasted 20 years and 15 years respectively from date of initial complaint to disposal of final appeal. The complaint raised the issue of whether the appeal proceedings were to be included in the period in which the charges had been determined. The court adopted a generous interpretation of art 6(1) to hold that they were. Applying König v Federal Republic of Germany (No. 1),[127] it held:

As regards the end of the 'time', in criminal matters the period governed by Article 6(1) covers the whole of the criminal proceeding in issue, including appeal proceedings.[128]

In relation to the concept of determination of criminal charges, applying Ringeisen v Austria (No 1),[129] it said:

In the event of conviction, there is no 'determination ... of any criminal charge', within the meaning of Article 6(1), as long as the sentence is not definitively fixed.[130]

98 It can be seen that, as with the interpretation by the Human Rights Committee of art 14(1) and (3) of the ICCPR, the European Court of Human Rights interprets art 6(1) and (3) of the ECHR generously so as not to confine the specified protections to the actual determination of the criminal charge. Thus supports the interpretation of s 24(1) of the Charter that I have adopted.

99 In conclusion, as applicants under s 267(3) of the Criminal Procedure Act for orders setting aside the orders striking out their appeals, Maria and Betty were persons 'charged with a criminal offence' for the purposes of s 24(1) of the Charter and the judge of the County Court hearing their applications was, under s 6(2)(b), obliged to ensure their human right to a fair hearing.

OBLIGATION OF COURTS AND TRIBUNALS TO ENSURE HUMAN RIGHTS OF SELF-REPRESENTED PARTIES

100 It is now necessary to identify the scope of the obligation on the judge of the County Court under s 6(2)(b) of the Charter to apply the human rights in ss 8(3) and 24(1) having regard to the fact that Maria had a disability and Maria and Betty were self-represented.

101 As noted above, a relevant difference exists between Maria and Betty because Maria has a disability that is a protected attribute under the Equal Opportunity Act but Betty does not. The first element of the right to equality in s 8(3) does not advance Betty's case, which falls to be considered entirely under the right to a fair hearing in s 24(1). All of the elements of the right to equality in s 8(3) apply to Maria, as well as the right to a fair hearing in s 24(1). I will therefore consider s 8(3) as it relates to Maria and s 24(1) as it relates to Maria and Betty.

Equality under s 8(3) and self-represented parties with a disability

102 The main purpose of the Charter is 'to protect and promote human rights'.[131] Towards that end, it implements the fundamental principle, expressed in the Preamble, that 'all people are born free and equal in dignity and rights' and 'human rights are essential in a democratic and inclusive society that respects the rule of law, human dignity, equality and freedom'. That is the proper context for application of the right to equality in s 8(3).

103 In summary, the right to equality in s 8(3) of the Charter has three elements that, under s 6(2)(b), may be relevant to the conduct of hearings and procedures followed by courts and tribunals.

104 The first element is the right to equality before the law, which is based on the concept of formal equality in law. This requires that, in the operation and administration of the law in relation to court and tribunal proceedings, courts and tribunals must treat people equally and not arbitrarily (in a manner that is devoid of objective justification). As discussed, procedures and hearing practices that are based on distinctions between parties or other participants which are arbitrary in the sense of lacking objective justification run up against the proper application of this right (subject to s 7(2)). This element of the right does not require a court to make procedural adjustments and accommodations in relation to particular parties because it does not call for substantive equality.[132] Although the right to (formal) equality before the law remains fundamentally important, the limited nature of this right led to the evolution of the right to (substantive) equality in terms of the second and third elements.

105 The second element is the right to equal protection of the law without discrimination as defined in the Equal Opportunity Act, which is based on the concept of substantive equality in law and in fact. This requires that (in content) the law ensures that people are protected against discrimination in substance. This element of the right may require that the substantive law include positive adjustments and accommodations so that some parties are treated differently to other parties in order to ensure that they have equal protection of the law.[133] As this right is concerned with the content of the law in terms of (substantive) equality rather than the operation and administration of the law, it will be the third element that is more relevant in relation to the conduct of hearings and procedures followed by courts and tribunals.

106 The third element is the right to equal and effective protection against discrimination as defined in the Equal Opportunity Act, which is also based on the concept of substantive equality in law and in fact. This goes beyond requiring that the law (in content) be equal in substance to requiring that, in the operation and administration of the law, people have equal and effective protection against discrimination. This element of the right may require that, in the conduct of hearings and procedures followed by courts and tribunals, positive adjustments and accommodations are made so that some parties are treated differently to other parties in order to ensure that they have equal and effective protection of the law.[134] It is this element of the right that is most relevant in the present case.

107 The present case concerns the application of the right to equality in relation to an individual, Maria, who was vulnerable to discrimination by reason of disability. The ultimate purpose of the right to equality - protection of everyone's human dignity - deserves emphasis in this connection. As was said in Patrick's Case, a case concerning the human rights of a person with a disability:[135]

The bedrock value of human rights is that every individual without exception has a unique human dignity which is their birthright. The dignity of the individual and their entitlement to human rights protection 'cannot be separated from universal human nature'[136] and is to be respected whether the person is able or disabled. [137]

In that case,[138] reference was made to the judgment of Brennan J in Marion's Case [139] which also concerned the human rights of a person with a disability:

Human dignity is a value common to our municipal law and to international instruments relating to human rights. The law will protect equally the dignity of the hale and hearty and the dignity of the weak and lame; of the frail baby and of the frail aged; of the intellectually able and of the intellectually disabled...Our law admits of no discrimination against the weak and disadvantaged in their human dignity. Intellectual disability justifies no impairment of human dignity, no invasion of the right to personal integrity. [140]

Reference was also made[141] to the inimical impact of discrimination upon human dignity, as relevantly explained by Iacobucci J in Law v Canada:[142]

Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within ... society. [143]

These remarks apply to the treatment of persons with a disability in legal proceedings by courts and tribunals.

108 In its application in this context, the right to equal and effective protection against discrimination in s 8(3) has operation in respect of persons who, without that protection, could not effectively participate in a court or tribunal proceeding (including in any hearing) by reason of age, race, disability or other protected attribute under the Equal Opportunity Act. The ability of such a person effectively to participate in the proceeding might be due to a number of attribute-related physical, communicative or cognitive capability deficits. Those experiencing the effect of discrimination on a number of intersecting grounds are likely to be in a position of aggravation in this regard.[144] In order to ensure equal protection against such discrimination, the court is required to make such adjustments and accommodations as may be reasonably necessary and available to ensure the effective participation of the individual despite their disability, subject to the fundamental requirements of judicial independence, impartiality and fairness and respect for the human rights of other participants.

109 The importance of such adjustments and accommodations is underlined by the Convention on the Rights of Persons with Disabilities,[145] to which Australia is a party. Article 13(1) and (2), under the heading 'Access to justice', provides:

(1) States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.

(2) In order to help to ensure effective access to justice for persons with disabilities, State Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff.

These provisions help to inform the more general content of art 8(3) (and 24(1)) of the Charter that courts and tribunals are obliged by s 6(2)(b) to apply in relation to legal proceedings and are also relevant as permissive discretionary considerations.[146] The Disability Access Bench Book that has been recently published by the Judicial College of Victoria[147] is an important contribution to compliance in Victoria with art 13(2) (see further below).

110 A recent sentencing and a recent bail case in this court concerning children that I have mentioned illustrate the procedural application of the right to equal and effective protection against discrimination in s 8(3) in a legal proceeding.[148] The court made reasonable and available adjustments and accommodations in the procedures that were followed in the pre-hearing or hearing stages of the two proceedings, in part because this was required to avoid discriminatory exclusion in the participation of the child-applicants.[149] Age is an attribute of discrimination under s 6(a) of the Equal Opportunity Act; following procedures and conducting hearings without taking account of the age of the applicants might have led to that exclusion.

111 The obligation of a court or tribunal under s 6(2)(b) of the Charter to ensure equal protection against discrimination under s 8(3) is additional to the obligation of a court or tribunal under the common law to ensure a fair trial. However, the two obligations run in the same river of principle - equal access to justice - and their combined operation magnifies the force of the flow.

112 Many authorities could be chosen as sources for the fundamental principle that courts and tribunals must ensure a fair trial. The following statement in Dietrich v The Queen[150] by Gaudron J is one:

The requirement of fairness is not only independent, it is intrinsic and inherent. According to our legal theory and subject to statutory provisions or other considerations bearing on the powers of an inferior court or a court of limited jurisdiction, the power to prevent injustice in legal proceedings is necessary and, for that reason, there inheres in the courts such powers as are necessary to ensure that justice is done in every case. Thus, every judge in every criminal trial has all powers necessary or expedient to prevent unfairness in the trial. Of course, particular powers serving the same end may be conferred by statute or confirmed by rules of court. [Footnotes omitted.][151]

In Tomasevic is to be found a discussion of the principle explained in Dietrich as it may fall to be applied in different circumstances:

What is required to produce a fair trial depends on the circumstances. In some cases it may be necessary to have interpreters, acceptable custodial facilities or a special court venue.[152] In other cases, evidence may have to be excluded because of its unfair prejudicial effect[153] or an adjournment granted to allow pre-trial publicity to abate. This list is far from exhaustive and the categories are not closed. Indeed 'the practical content of the requirement that a criminal trial be fair may vary with changing social standards and circumstances'.[154] The general principle is that the courts possess all the necessary powers to ensure a fair trial,[155] one aspect of which is the power to give assistance to a litigant in person.[156]

The steps that may be required to ensure a fair trial at common law, as so explained, might equally be required to ensure equal and effective protection against discrimination under art 8(3) of the Charter.

113 The close connection between the obligations to ensure equal protection against discrimination and the obligation and to ensure a fair trial is specifically illustrated by the case of the deaf mute, Gradidge v Grace Bros Pty Ltd,[157] which is considered in Tomasevic[158] in the context of a general discussion about the relationship between human rights and the common law duty of a judge to assist self-represented parties. The party having these intersecting disabilities was denied access to an interpreter in respect of counsel's submission. The Court of Appeal of New South Wales held that the judge's procedural discretion had miscarried under the common law. In doing so, Kirby P and Samuel and Clarke JJA took into account the human rights specified in the ICCPR, especially equality before the law in arts 14(1) and 26.[159]

114 In the present case, Maria had a disability and was a self-represented party. As discussed below, self-represented parties usually suffer from two important disadvantages - they lack legal training and are too emotionally involved in their cases to be objective. These disadvantages aggravated Maria's capability for effective participation in the proceeding when it was already substantially diminished by her disability.

115 In a manner that deserves careful consideration, the Disability Access Bench Book discusses the issues that may need to be considered by courts and tribunals when art 8(3) of the Charter is engaged:[160]

Courts and tribunals may need to treat people differently in order to achieve an equal outcome. Different treatment will often involve making adjustments for people with a disability to participate in court proceedings on an equal basis with others.

Issues to consider include:

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