Equality of Arms and the Right to a Fair Hearing

Ragg v Magistrates’ Court of Victoria and Corcoris [2008] VSC 1 (24 January 2008) In a significant decision, the Supreme Court of Victoria has outlined the nature and scope of the principle of ‘equality of arms’ as an aspect of the right to a fair hearing.  While the Court held that the Victorian Charter did not apply to the proceeding (as it was commenced prior to the entry into force of the operative provisions of the Charter), Bell J’s discussion of the right to a fair hearing under art 14 of the ICCPR is likely to be highly relevant to any subsequent judicial consideration of s 24 of the Charter, which is closely modelled on art 14.

Facts

This case involved an application for judicial review against a decision of a magistrate to refuse to set aside a summons to produce evidence issued by the defence.

Nicholas Corcoris was charged with tax evasion by an officer of the Australian Federal Police, Jarrod Ragg.  Prior to his committal hearing, Mr Corcoris issued two witness summonses to Mr Ragg to produce certain prosecution documents which Mr Corcoris argued may be relevant to and assist his defence.  Mr Ragg applied to the magistrate to set aside the summonses on the grounds that they were too wide and would require the production of a large number of irrelevant documents.  The magistrate refused the application and Mr Ragg sought judicial review.

Decision

The Court dismissed the application and ordered that the documents sought in the summonses be produced having regard to the defendant’s right to a fair trial under international human rights law – particularly the right to equality of arms – and the prosecution’s duty to disclose material documents.

The Court reiterated that international human rights may be relevant to the exercise of a judicial power or discretion – such as the scope and application of a magistrate’s power to strike out summonses – where the human rights instrument in question is relevant to the subject matter of the case and where the consideration of the instrument is not inconsistent with applicable legislation or the common law (see also Tomasevic v Travaglini [2007] VSC 337, [73]-[74] and In re TLB [2007] VSC 439, [16]-[20]).

The subject matter in the present case involved the disclosure of documents which were potentially relevant to the defendant’s fundamental right to a fair trial.  Accordingly, Bell J held that the human rights specified in art 14(1) (right to a fair and public hearing before a competent, independent and impartial tribunal) and art 14(3) (right to minimum guarantees in a criminal proceeding) of the ICCPR were directly relevant to the question in the proceeding.  Having regard to international and comparative human rights jurisprudence. Bell J stated that ‘equality of arms’ requires that both parties ‘be treated in a manner ensuring that they have a procedurally equal position to make their case during the whole course of the trial’.  Justice Bell also considered that the defendant’s right to adequate facilities to prepare a defence – which includes access to any investigation and prosecution material that may be exculpatory or otherwise materially assist the defence – required that the summonses be allowed.  While the right to disclosure of relevant material is not an absolute right, and may be balanced against competing interests such as national security or the need to protect witnesses, the rights of the accused in the present case favoured disclosure.

Implications for the Victorian Charter

Sections 24 and 25 of the Charter, which respectively enshrine the right to a fair hearing and certain minimum guarantees in criminal proceedings, are closely modelled on art 14 of the ICCPR.  Accordingly, although the Court held that the Charter did not directly apply to the present proceeding (as it was commenced prior to the entry into force of the relevant Charter provisions), Bell J’s discussion of the nature and scope of the right to a fair hearing under art 14 of the ICCPR is likely to be highly relevant to any subsequent judicial consideration of ss 24 and 25 of the Charter.

Justice Bell’s discussion of the interests which may be legitimately counterbalanced against aspects of the right to a fair hearing may also be relevant to a Court’s consideration of permissible limitations on the right to a fair hearing under s 7 of the Charter.

Finally, the decision is instructive as to how s 32(2) of the Charter, which enables the Court to consider relevant international and comparative human rights jurisprudence in interpreting a statutory provision, may be applied.  In considering the nature and scope of the principles of equality of arms and the prosecutorial duty to disclose, Bell J has extensive regard to jurisprudence from the UN Human Rights Committee, the European Court of Human Rights, the Supreme Court of Canada, the UK House of Lords and the High Court of Australia, among others.  This suggests that advocates should consider all relevant sources of human rights jurisprudence in interpreting a statutory provision and not constrain themselves to case law from the UK and New Zealand.

The full text decision is available at http://www.austlii.edu.au/au/cases/vic/VSC/2008/1.html.

Philip Lynch is Director of the Human Rights Law Resource Centre