The Charter, Unreasonable Delay and the Bail Act 1997 (Vic)

Re Dickson [2008] VSC 516 (26 November 2008)

In refusing an application for bail, Justice Lasry of the Victorian Supreme Court considered the impact of s 21(5) of the Charter – which provides the right to be brought to trial without unreasonable delay – on the Bail Act 1997 (Vic).

Facts

The applicant, George Dickson, was charged with 25 counts of armed robbery and 4 counts of attempted armed robbery, all committed on 24 hour convenience stores in 2006.  The disguised offender held-up the stores using a knife.  Mr Dickson, who suffers from chronic paranoid schizophrenia, has prior convictions for armed robbery in both Victoria and Queensland.

Mr Dickson was first arrested in relation to the armed robberies on 27 February 2007 and has been remanded in custody since.  While a trial date was first set for 6 October 2008, it was postponed to 29 June 2009 because the original four weeks allocated to the trial was considered insufficient given the substantial body of evidence the Crown wanted to lead.

In an unrelated matter in April 2008 Mr Dickson was sentenced to 180 days imprisonment for obtaining property by deception and the parole on which he had been released in relation to earlier offences was cancelled.  Thus, at the time of hearing, the applicant was serving pre-existing sentences and time for breached parole.

Application of the Victorian Charter

In dismissing the application for bail, Lasry J had cause to consider the impact of s 21(5) of the Charter on the Bail Act, in particular s 4(4)(c) of that Act which provides that where an accused person is charged with an offence in the course of which they are alleged to have used or threatened to use a firearm, the Court must refuse bail unless the accused can demonstrate that detention is not justified.

The applicant argued that, by the time of his trial in 2009, he would have been in custody for a period of nearly two years and three months and that this constituted ‘unreasonable delay’ contrary to s 21(5) of the Charter which provides that:

A person who is arrested or detained on a criminal charge –

(a) must be promptly brought before a court

(b) has the right to be brought to trial without unreasonable delay; and

(c) must be released if paragraph (a) or (b) is not complied with.

It was submitted by Counsel for the applicant that s 21(5) of the Charter ‘created a legal right to be brought to trial without delay’ and that the Bail Act ‘must be interpreted in such a way as to give full effect to this right’.  It was argued that the only remedy available where a court finds that a person has been in custody for an unreasonable period of time is release on bail.  This proposition was rejected by Lasry J:

I cannot conclude that the Charter requires that the Bail Act be interpreted to allow for an accused to be released on bail, regardless of an established unacceptable risk, whether it be a risk of flight, re-offending, interference with witnesses or otherwise […]

Section 1(2)(b) of the Charter requires that other statutory provisions be interpreted ‘so far as is possible’ compatibly with human rights.  The provisions of the Bail Act contain no reference to delay or to a right to a speedy trial.  In this particular case, the Bail Act requires me to refuse bail unless the applicant shows cause why his detention in custody is not justified.

Ultimately, Lasry J found the Charter did not assist Mr Dickson:

There are, in my opinion, a number of matters that point to a refusal of bail and where that is the case, whilst it is appropriate to take the terms of the Charter into account and give full effect to the right referred to, that must be done against the scheme of the Bail Act and its relevant provisions.  For the reasons I have already referred to, whilst the delay in the trial until June 2009 is most regrettable, in the particular circumstances of this case, the delay is significantly less prejudicial to the applicant than might normally be expected.  I do not consider the provisions of the Charter materially affect the role of delay in this particular application.

With respect, Lasry J’s application of the Charter is raises a number of issues.

First, while Lasry J implicitly finds that the delay was ‘unreasonable’ on the facts – a finding which prima facie creates the right to be released on bail under s 21(5)(c) – his Honour does not then analyse whether the Bail Act can be interpreted so as to give effect to this right.  It is submitted that the proper application of s 21 of the Charter would require the court to weigh up the individual’s right to be released in cases of unreasonable delay – as granted by s 21(5)(c) – and the safety of the community, as reflected in s 4(4)(c) of the Bail Act which requires a person accused of an armed robbery to show cause why they should not be remanded in custody.  In failing to grapple with the right granted by the Charter, the Supreme Court fails to give full effect to the Charter.  If Lasry J did come to the conclusion that the Bail Act cannot be interpreted compatibly with the Charter it is submitted that he ought to have made a declaration of inconsistent interpretation under s 36 of the Charter.  Alternatively, he could have used s 7 of the Charter to analyse when the right engaged may reasonably be limited.

Second, Lasry J appears to treat the Charter as giving way to existing statutes.  There is no indication that s 21(5) of the Charter has been given ‘full effect’ and Lasry J allows a finding of ‘unreasonable delay’ in bringing the applicant to trial to pass without censure or consequence.

The decision is available at www.austlii.edu.au/au/cases/vic/VSC/2008/516.html.

Timothy Kern is an intern from the Australian National University