Human Rights Case Summaries

Z v Dental Complaints Assessment Committee [2008] NZSC 55 (25 July 2008)

This case involved a dentist who was criminally charged with the indecent assault of three patients. He was acquitted of these charges but was then subjected to professional disciplinary action.

R v Davis [2008] UKHL 36 (18 June 2008)

In this case, the House of Lords held that the use of anonymous witnesses prevented the accused from adequately examining his accusers, and thereby denied him a fair trial in accordance with both the common law and art 6(3)(d) of the European Convention on Human Rights.  Further, the House of Lords held that a conviction should not be based solely, nor to a decisive extent, upon the evidence of anonymous witnesses.

Bobrowski v Poland [2008] ECHR 64916/01 (17 June 2008)

The European Court of Human Rights has held that Poland violated its obligation to ensure a fair trial under art 6 of the European Convention on Human Rights by failing to grant legal aid to an individual in respect of civil proceedings.  However, the Court held that a denial of legal aid was justified where the applicant had hired his or her own private lawyer, notwithstanding that the lawyer proved to not be competent.

Carwoode Pty Ltd v Cardinia SC (Red Dot) [2008] VCAT 1334 (23 June 2008)

This was a case regarding an application for permits to subdivide land and construct various buildings ancillary to a freeway which would involve the removal of native vegetation to the detriment of the Growling Grass Frog.  During the hearing of the merits, a challenge was made to VCAT’s jurisdiction to hear the matter and submissions were made that VCAT had failed to abide by the principles of natural justice and the Charter.

Capital Property Projects (ACT) Pty Ltd v ACTPLA [2008] ACTCA 9 (21 May 2008)

The ACT Court of Appeal has held that the obligation under s 30 of the Human Rights Act 2004 (ACT) to interpret laws compatibly with human rights may be engaged even where the words of a statute are clear and there is no ambiguity.  In particular, the Court held that a requirement that leave to appeal certain decisions only be granted where ‘substantial injustice’ would otherwise occur was potentially incompatible with the positive right to a fair trial under s 21 of the HRA.  The Court considered that it may be necessary to ‘modify’ the reference to ‘substantial injustice’ as ‘something less than a substantial injustice may well result in an unfair trial’.

Swain v Department of Infrastructure (General) [2008] VCAT 848 (9 May 2008)

The Victorian Civil and Administrative Tribunal has held that a government authority’s refusal to issue a commercial driver’s licence on the basis of the applicant’s history of insurance fraud did not engage the applicant’s right to freedom from double punishment under s 26 of the Victorian Charter.  However, on the facts, the applicant was nevertheless found to be entitled to such a licence.

Abrahamian v Austria [2008] ECHR 35354/04 (10 April 2008)

The European Court of Human Rights has held that the right to a fair hearing requires an oral hearing which may only be dispensed of in exceptional circumstances.

Gentle, R (on the application of) & Anor v The Prime Minister & Anor [2008] UKHL 20 (9 April 2008)

In a judgment handed down on 9 April 2008, the UK House of Lords held that the right to life protections under art 2 of the European Convention on Human Rights did not impose a duty on the UK Government to hold an independent inquiry into the legality and decision-making process behind the 2003 invasion of Iraq.

Kortel v Mirik and Mirik [2008] VSC 103 (4 April 2008)

In this case, the Supreme Court was asked to consider the proper construction of s 6(2)(b) of the Charter, which provides that the ‘Charter applies to courts and tribunals to the extent that they have functions under Part 2’.  Part 2 of the Charter enshrines a body of civil and political rights largely derived from the ICCPR.  The issue arose in the context of the obligations of the Court to ensure a fair hearing to unrepresented litigants.  The Court also considered the scope of the power of the Victorian Equal Opportunity and Human Rights Commission to intervene in a proceeding pursuant to s 40(1) of the Charter.

R v DA [2008] ACTSC 26 (31 Mar 2008)

In an ex tempore judgment delivered by Higgins CJ, the ACT Supreme Court has stated that s 21 of the Human Rights Act 2004 (ACT) confers a positive right to a fair trial and thereby modifies the common law which merely provides for the right to be free from an unfair trial.

Guneser v Magistrates' Court of Victoria & Anor [2008] VSC 57 (5 March 2008)

In a recent decision of the Supreme Court of Victoria, Habersberger J considered the extent to which the rights protected under the Victorian Charter apply to the acts and decisions of public authorities that are connected with a judicial proceeding.

Kafkaris v Cyprus [2008] ECHR 21906/04 (12 February 2008)

The Grand Chamber of the European Court of Human Rights has recently considered the scope and application of art 7 of the European Convention on Human Rights, which provides that no person shall be subject to a ‘heavier penalty than the one that was applicable at the time the criminal offence was committed’.

Commonwealth v Davis Samuel Pty Ltd [No 3] [2008] ACTSC 76

The ACT Supreme Court has missed an opportunity to consider the meaning of the right to a fair hearing in s 21(1) of the Human Rights Act 2004 (ACT) in the context of an application for adjournment of a civil matter based on reasons including lack of legal representation.

Brooke & Ors, R (on the application of) v The Parole Board & Anor [2008] EWCA Civ 29 (1 February 2008)

The UK Court of Appeal has held that the Parole Board does not possess the necessary independence required by art 5(4) of the European Convention on Human Rights.  This decision may be relevant to a determination under s 24 of the Victorian Charter as to whether a court or tribunal is ‘competent, independent and impartial’.

Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building) [2008] VCAT 1479

The Victorian Civil and Administrative Tribunal has allowed an application to reconstitute the Tribunal, on the basis that a respondent to the proceedings would not receive a fair hearing before a particular Tribunal Member.  The Tribunal’s decision stated that the Charter has reinforced the positive duty of courts and tribunals to provide assistance to litigants in person.

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.

Gray v DPP [2008] VSC 4 (16 January 2008)

In the first decision to substantively consider the Victorian Charter of Human Rights since it became justiciable on 1 January 2008, Bongiorno J has held that the Charter guarantees the right to a timely trial and that the appropriate remedies for failure of the Crown to provide such a trial are release of the accused on bail or, alternatively, a permanent stay of proceedings.