Devine v Victorian Civil and Administrative Tribunal
[2008] VSC 410
•10 October 2008
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| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 4776 of 2008
| DYSON DEVINE and VIVIENNE LEGG | Plaintiffs |
| v | |
| VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL & ORS | Defendants |
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 October 2008 | |
DATE OF JUDGMENT: | 10 October 2008 | |
CASE MAY BE CITED AS: | Devine & Anor v VCAT & Ors | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 410 | |
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JUDICIAL REVIEW – Right to a fair trial – Plaintiffs voluntarily not appearing at hearing – No unfairness in hearing in the absence of the plaintiffs – No error in sentencing plaintiffs to imprisonment in their absence – No requirement to remand in custody or to grant bail before hearing charges under s 137 of the Victorian Civil and Administrative Tribunal Act – Section 137 Victorian Civil and Administrative Tribunal Act.
HUMAN RIGHTS – Right to a fair trial – Inapplicability of Charter of Human Rights.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr S. Moglia | Victoria Legal Aid |
| For the First Defendant | No appearance | |
| For the Second, Third and Fourth Defendants | No appearance | |
| For the Attorney General for Victoria (intervening) | Ms R. Doyle | Victorian Government Solicitor |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 2
The position of the Attorney General............................................................................................ 3
The plaintiffs’ application for an extension of time.................................................................... 5
The failure to remand in custody or apply the Bail Act............................................................. 7
Proceeding with the hearing in the absence of the plaintiffs.................................................. 10
Imposing a custodial sentence in the absence of the plaintiffs............................................... 18
Conclusion......................................................................................................................................... 20
HIS HONOUR:
Introduction
On 28 November 2007, a vice president of the Victorian Civil and Administrative Tribunal (“VCAT”) convicted Mr Dyson Devine and Ms Vivienne Legg of contempt pursuant to s 137 of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”) and sentenced each of them to a period of imprisonment of nine months.[1] Mr Devine and Ms Legg seek relief pursuant to order 56 to quash that decision. In summary, Mr Devine and Ms Legg contend that they are entitled to judicial review on three bases:[2]
[1]Whilst they were each sentenced to terms of imprisonment of nine months, the plaintiffs in fact served terms from 7 January 2008 until 28 February 2008 when (upon the plaintiffs giving personal undertakings and providing written apologies to the tribunal) orders were made pursuant to s 137(7) of the VCAT Act remitting the balance of the plaintiffs’ punishment.
[2]Whilst the amended indorsement of the originating motion herein contained a number of other grounds (see for example the grounds identified in paragraphs 21(a), 21(b) and 26) not referred to in sub‑paragraphs (a) – (c) above, these grounds were not pursued in the plaintiffs’ written submissions or, more importantly, at the hearing of this proceeding.
(a) First, VCAT had no jurisdiction in this case to make a finding of contempt because, upon Mr Devine and Ms Legg being brought before the Tribunal on the day before the conviction was made, the Tribunal was required either to remand them in custody or to grant them bail pursuant to the provisions of the Bail Act 1977. This, the Tribunal did not do. It merely released them, telling them that the matter of the alleged contempt would take place the following day (28 November 2007).
(b) Secondly, Mr Devine and Ms Legg did not attend the Tribunal on 28 November 2007. Notwithstanding this fact, the contempt charges proceeded and were found proved. Mr Devine and Ms Legg contend that proceeding with the contempt charges in their absence “resulted in a fundamental breach of natural justice and the right to a fair hearing”.[3]
(c) Thirdly, Mr Devine and Ms Legg contend that VCAT was not permitted to impose a custodial sentence where a charge is heard and determined in the absence of a person.[4] Whilst it was not stated in terms, I took this to be an argument that in imposing a custodial sentence on the plaintiffs in their absence, VCAT committed jurisdictional error and/or an error of law on the face of the record in addition to the committing of a “fundamental breach of natural justice and the right to a fair hearing” of the kind referred to in relation to the complaint identified in (b) above.
[3]See paragraph 14 of the plaintiffs’ written submissions dated 25 July 2008.
[4]This was described as the “high point of the plaintiffs’ case” by their counsel at T9.16
For the reasons given below, the plaintiffs’ applications fail. However, before coming to my reasons, two preliminary matters need to be dealt with, namely:
(a) the position of the Attorney General; and
(b) the plaintiffs’ application for an extension of time pursuant to rule 56.02(3).
The position of the Attorney General
In the originating motion,[5] the plaintiffs contended that the VCAT decision “breached the plaintiffs’ right to a fair hearing under the Charter of Human Rights and Responsibilities Act 2006 (“the Charter”)”. As a result of this allegation, the Attorney General intervened, as of right,[6] in this proceeding.
[5]Issued 21 February 2008, the indorsement of which was amended by a document headed “Amended Indorsement of the Originating Motion” dated 16 April 2008
[6]Pursuant to s 34 of the Charter
The Charter has no direct application in this case. The VCAT proceeding was commenced and concluded prior to the operative commencement date of Division 3 of Part 3 of the Charter.[7] This proposition is not contested by the plaintiffs. The plaintiffs now rely on the decisions of Tomasevic v Travaglini[8] and DPP v TY (No.3)[9] as authority for the propositions that the rights in the Charter “apply in substance” prior to the Charter’s commencement date by “operation of international law on Victorian law directly”.[10] Whilst the Attorney General contends that this is an over-simplification of the principles expressed by Bell J in Tomasevic,[11] the Attorney General accepts that the body of international covenants from which the relevant rights in the Charter are drawn may be used as an interpretive aid and, in appropriate cases, as a relevant consideration in the exercise of judicial powers and discretions. Further, there is no issue between the parties that the common law has long recognised a right to a fair trial.
[7]See ss 6 and 49(2) of the Charter. See also R v Williams (2007) 16 VR 168 at paragraph [48] and R v Benbrika & Ors (Ruling No. 20) [2008] VSC 80 at paragraph [16]
[8][2007] VSC 337
[9][2007] VSC 489
[10]See paragraph 15 of the plaintiffs’ written submissions dated 25 July 2008
[11]See Tomasevic at paragraphs [71] to [76] (see in particular paragraph [73] and the cases referred to in footnote 53, particularly Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273) and TY at paragraph [48]
The Charter no longer having any direct application in this case, the question arises as to the Attorney General’s continued right to intervene. A similar problem arose before Bell J in Kortel v Mirik.[12] In that case, his Honour determined that because of a change of circumstances which resulted in the potential application of the Charter in that case having no practical implications for the conduct and determination of the proceeding, such right as there might have been in the Attorney General to intervene ceased. I see no reason to doubt the correctness of Bell J’s decision. However, it is not necessary for me to finally determine this matter. Recognising the difficulty, counsel for the Attorney General sought leave to intervene in any event on the basis that the Attorney General is now the only contradictor.[13] In support of the Attorney General’s application, she submitted:
[12][2008] VSC 103
[13]VCAT is no longer taking an active role in the proceeding consistent with the principles in R v Australian Broadcasting Tribunal;ex parte Hardiman (1980) 144 CLR 13 and the second to fourth defendants have previously indicated that they no longer wish to play any active role in this proceeding and (consistent with that indication) they did not appear at trial.
(a) The Attorney General could have intervened as of right at any time in the VCAT proceeding.[14]
(b) The matter before the Court is a matter of public importance (both in respect of upholding orders made under the Racial and Religious Tolerance Act 2001 and “the important issue of contempt of an order of VCAT and the power of that Tribunal to have its orders enforced”).[15]
Additionally counsel for the Attorney General relied upon Re BWV; ex parte Gardner (2003) 7 VR 487 at paragraph [13]. Counsel for the plaintiffs did not oppose the proposition that the Attorney General had a right to intervene under the Charter. Further, there was no opposition to the Attorney General’s application to intervene “post the Charter issue”.[16]
[14]See s 73 of the VCAT Act
[15]T4.27
[16]T6.30
The principles upon which a Court will permit a person to intervene are well known[17] and, in view of the absence of any opposition from the plaintiffs to the Attorney General intervening, do not need to be discussed further. This is an appropriate case for leave to intervene to be granted and, accordingly, I grant such leave to the Attorney General.[18]
[17]See generally Corporate Affairs Commission v Bradley (1974) 1 NSWLR 391; Levy v Victoria (1997) 189 CLR 579 at 603-4 and Re BWV; ex parte Gardner (2003) 7 VR 487 at paragraph [13]
[18]At trial, and without ruling upon the Attorney General’s application, I permitted counsel for the Attorney General to advance the Attorney General’s arguments pending the determination of the application to intervene
The plaintiffs’ application for an extension of time
The plaintiffs were convicted of contempt and sentenced to nine months’ imprisonment on 28 November 2007. On 14 December 2007, they first learnt of the VCAT orders.[19] Copies of VCAT’s orders were served on them on 19 December 2007. On 20 December 2007, VCAT received correspondence from the plaintiffs seeking that their sentences be remitted under s 137(7) of the VCAT Act and that the orders be re-opened and reviewed under s 120(1) of the VCAT Act. On 7 January 2008, the plaintiffs were arrested in New South Wales and extradited to Victoria and placed in Victorian prisons. This proceeding was issued on 21 February 2008 (85 days after the VCAT hearing, 69 days after they first received notice that they had been convicted and sentenced to imprisonment and 64 days after the VCAT orders were served on them). Of these periods (85 days, 69 days and 64 days) it is to be remembered that 46 of them were spent in custody, with all the difficulty that would be associated with that circumstance so far as commencing legal proceedings is concerned.
[19]See paragraph 19 of Mr Devine’s affidavit sworn 22 February 2008 and paragraphs 19 and 20 of Ms Legg’s affidavit sworn the same day
Rule 56.02 provides that order 56 proceedings must be commenced within 60 days of the date of judgment or conviction[20] and that this period cannot be extended “except in special circumstances”. Different views have been expressed in the decided cases from time to time as to what constitutes special circumstances. It is not necessary to resolve those matters for the purpose of this application. It is sufficient to record my agreement with what was said by Osborn J in Mann v Medical Practitioners Board of Victoria.[21] His Honour said:[22]
“It is not, in my view, appropriate to seek to judicially define the meaning of the phrase 'special circumstances' in the relevant Rule. The phrase is deliberately flexible and designed to encompass cases which might not easily be anticipated by more prescriptive words. See the authorities cited by Balmford J in the case of Prencipe v Masel as set out by Balmford J in Carra v Hamilton. See also Jess v Scott (1986) 12 FCR 187. I would add that I find argument as to the meaning of the phrase by reference to dictionaries and synonyms to be of little assistance. In that regard I refer to the preface to Dr Johnson's dictionary: ‘To explain requires the use of terms less abstruse than that which is to be explained and such terms cannot always be found ...The easiest word, whatever it may be, can never be translated into one more easy’.”
[20]As to the proper construction and operation of rule 56.02, see generally the decision of Osborn J in Treacy v Newlands & Ors [2007] VSC 224
[21][2002] VSC 256
[22]At paragraph [18]
At an earlier point in this proceeding, the first defendant indicated that it did not oppose leave to the plaintiffs to bring this proceeding out of time. The Attorney General does not oppose a grant of leave. I find there are special circumstances. These include the seriousness of the matter (both in respect of the seriousness of the underlying facts and the seriousness of the convictions for contempt and subsequent sentences), the circumstances of the delay being relatively short (whether viewed from the date of conviction or the date upon which the plaintiffs received notice of the orders), the promptness with which the applications under ss 120(1) and 137(7) of the VCAT Act were made and the obvious difficulties imposed upon the plaintiffs by reason of their incarceration during a substantial part of the period when time was running. Whilst individually each circumstance I have identified might not constitute “special circumstances”, viewed collectively they constitute special circumstances. Accordingly, I propose to order that the time within which this proceeding could be commenced be extended to 21 February 2008. I turn now to the substantive issues raised in this proceeding.
The failure to remand in custody or apply the Bail Act
The plaintiffs contend that the procedures in s 137 of the VCAT Act having been invoked, it was incumbent upon VCAT to apply the Bail Act on 27 November 2007. The argument was based upon s 137 of the VCAT Act. Section 137 provides:
“137. Contempt
(1) A person is guilty of contempt of the Tribunal if they-
(a) insult a member of the Tribunal while that member is performing functions as member; or
(b) insult, obstruct or hinder a person attending a hearing before the Tribunal; or
(c) misbehave at a hearing before the Tribunal; or
(d) interrupt a hearing before the Tribunal; or
(e) obstruct or hinder a person from complying with an order of the Tribunal or a summons to attend the Tribunal; or
(f) do any other act that would, if the Tribunal were the Supreme Court, constitute contempt of that Court.
(2) If it is alleged or appears to the Tribunal that a person is guilty of contempt of the Tribunal, the Tribunal may-
(a) direct that the person be arrested and brought before the Tribunal; or
(b) issue a warrant for his or her arrest in the form prescribed by the rules.
(3) On the person being brought before the Tribunal, the Tribunal must cause them to be informed of the contempt with which they are charged and thereafter adopt any procedure that the Tribunal thinks fit.
(4) The Bail Act 1977 applies, with any necessary modifications, to and in respect of a person brought before the Tribunal under this section as if-
(a) the person were accused of an offence and were being held in custody in relation to that offence; and
(b) the Tribunal were a court within the meaning of that Act.
(5) If the Tribunal finds that the person is guilty of contempt of the Tribunal, it may-
(a) in the case of a natural person, commit the person to prison for a term of not more than 5 years or impose a fine of not more than an amount that is 1000 times the value of a penalty unit fixed by the Treasurer under section 5(3) of the Monetary Units Act 2004 or do both;
(b) in the case of a corporation, impose a fine of not more than an amount that is 5000 times the value of a penalty unit fixed by the Treasurer under section 5(3) of the Monetary Units Act 2004.
(5A) In considering whether, and the term for which, to commit a person to prison for a contempt, the Tribunal may have regard to the provisions of Part 2 of the Sentencing Act 1991 as if it were a court considering imposing a sentence of imprisonment in respect of an offence.
(6) If a person is committed to prison for a term, the Tribunal may order his or her discharge before the end of the term.
(7) The Tribunal may accept an apology for a contempt and may remit any punishment for it either wholly or in part.
(8) A warrant for the committal of a person found guilty of contempt of the Tribunal must be in the form prescribed by the rules.
(9) A fine imposed on a person under this section may be enforced as if it were a fine imposed on that person by the Supreme Court on finding them guilty of an offence.
(10) A power conferred on the Tribunal by this section is exercisable only by a judicial member.”
The plaintiffs’ argument ran as follows:
(a) Section 137(4) of the VCAT Act requires the Tribunal to apply the Bail Act 1977 with necessary modifications. The wording of this sub-section is “unqualified and unambiguous”.
(b) The power to adopt “any procedure that the Tribunal thinks fit” in s 137(3) does not extend to create powers not contained in the Bail Act – and certainly not any power to act contrary to the Bail Act.
(c) Section 4 of the Bail Act covers the field with respect to “any person accused of an offence and being held in custody in relation to that offence”. There are no exceptions.
(d) The Bail Act does not provide for the simple discharge of an arrest warrant without a grant of bail according to certain conditions.
(e) The conditions of a person’s release on bail are made clear by the following sections, namely that a person must enter an undertaking (s 5) and such undertaking imposes a duty to appear at the Tribunal and surrender themselves into the custody of the Tribunal on the resumed hearing of the case (ss 6 and 15). Section 30 makes it an offence to fail to appear in accordance with a bail undertaking.
(f) The plain intention of Parliament disclosed by the Bail Act is that a person charged with an offence serious enough to warrant their arrest should be present at the hearing of that charge.[23]
(g) The failure to act in accordance with the Bail Act circumvents “this important public purpose” and results in jurisdictional error. The decisions resulting from a proceeding that followed such an error should be quashed.
[23]This ties in with the two other bases upon which the plaintiffs seek judicial review
I reject this argument. It falls at the first proposition. Section 137(4) does not mandate the use of the Bail Act, it merely provides that the Bail Act can be applied with any necessary modifications to people like the plaintiffs as if they were persons accused of an offence and were being held in custody and as if the Tribunal were a Court within the meaning of that Act. A similar argument to the plaintiffs’ argument was rejected by the Court of Appeal in R v Perkins.[24] The notion that a person brought before VCAT must be remanded in custody or given bail pursuant to the provisions of the Bail Act before the Tribunal has power to find a contempt proven is one which, in the absence of clear statutory direction to that effect, should be rejected.[25] There is no statutory direction (clear or otherwise) to that effect. The argument must be rejected. The plaintiffs were brought before the Tribunal and were informed of the contempts with which they were charged as required by s 137(3) of the VCAT Act. Thereafter, the Tribunal was at liberty to adopt any procedure that it thought fit.[26] This included releasing the plaintiffs to attend the next day for the hearing of the contempt charges. It follows that the plaintiffs’ first ground of complaint is not made out.
[24][2002] VSCA 132
[25]See to like effect the judgment of Vincent JA (with whom Phillips CJ and Chernov JA agreed) in Perkins supra at paragraph [16] et seq
[26]Section 137(3) of the VCAT Act
Proceeding with the hearing in the absence of the plaintiffs
The plaintiffs contend that proceeding with the contempt charges on 28 November 2007 in their absence “resulted in a fundamental breach of natural justice and the right to a fair hearing”. In order to consider this ground, it is necessary to set out something of what was said at VCAT on 27 November 2007 when the plaintiffs were brought before the Tribunal. First, the Vice President explained why the plaintiffs had been arrested. She then provided them with copies of relevant documents and explained the history of the contempt proceedings. She then said:
“It’s a very serious thing to be dealt with for contempt of court, it’s one of the most serious things that a court can face or a tribunal can face because as you can understand, there’s no point in having a tribunal unless its orders are complied with, there’s no point in having a court unless its orders are complied with and under the Act of Parliament, which sets up this tribunal, this tribunal is given the power to deal with a person who breaches the tribunal order for contempt of court in the same way as could be done if that contempt of court or contempt of the tribunal was done in relation to the Supreme Court of Victoria.”[27]
[27]T3.8
It was explained to the plaintiffs that the contempt alleged against them was in respect of a failure to take documents off their website, having been ordered to do so by VCAT. The applicants at VCAT wished the contempt proceeding to be dealt with on the following day (28 November) and her Honour said:
“Now, what Ms Ellyard [for the applicants at VCAT] has suggested is that the hearing of this charge of contempt be dealt with tomorrow, what do you say about that?”
To which Ms Legg replied:
“We have no difficulty with that, Your Honour”.
Her Honour then went on:
“Now, what I need to do, if the matter is to be dealt with tomorrow, is to outline to you the seriousness of the charge that you’re facing in relation to contempt of the tribunal and to say to you that one of the options which I have which is a very serious option to be considered in this case is the question of whether or not you should be gaoled for refusing to comply with that order. Now do you understand if I deal with that tomorrow then I’d expect to hear from you reasons why I shouldn’t send you to gaol for failing to comply with the order”.
To which Ms Legg replied:
“Yes, we understand that”.
There then follows a lengthy exchange[28] between the Vice President and the plaintiffs. During this exchange:
[28]At T12 to T23
(a) The plaintiffs were offered an opportunity to seek an adjournment for the purposes of obtaining legal advice. Indeed, the plaintiffs were told that they did not have to make a final decision about an adjournment and that an adjournment application could be made by them on the next day.
(b) Ms Legg said that the plaintiffs did not think they could achieve anything by seeking extra advice now.
(c) Her Honour referred to the prospect of the plaintiffs being gaoled, using the word “gaoled” three times and referring to the prospect of a “sentence of imprisonment” on one further occasion.
(d) Mr Devine stated that the plaintiffs were unable to comply with the VCAT order and that they were prepared to accept their punishment.
(e) Ms Legg stated that they were not disputing that they were in contempt. Indeed, she said “We are in contempt as far as that is defined by this court, as far as we understand it so we are not disputing that”.
(f) Her Honour said to Ms Ellyard:
“I will deal with the contempt whether they’re here or not and if they don’t come tomorrow then the orders will be made and if it’s a sentence of imprisonment then the sentence of imprisonment will be imposed and it will be served”.[29]
[29]T17.27
(g) The following was said:
“Her Honour: I have indicated that I will be hearing the matter tomorrow. There’s nothing that you’ve said to me which gives reason for the matter to be adjourned over to a later date. If there’s any other reason that you give for the matter to be adjourned I’ll hear that but I understand your wishes for the matter to be dealt with tomorrow and that it be proceeded with without legal representation, is that your wish?
Ms Legg: Yes.
Mr Devine: If I understand correctly Your Honour if we, at this stage, tell you that we are in contempt in the legal definition of the word meaning that we have disobeyed the order, then I don’t really see that we can offer any argument about that because we quite openly, publicly admit that we have disobeyed this order and we’ve explained it to our readership this is done because we are attempting to unmask this serious, grave criminal corruption …
Her Honour: So what you’re saying is that you don’t expect you’ll be presenting any evidence at all as to the issue of contempt or as to the sentence I should impose?
Mr Devine: Insofar as contempt is concerned, Your Honour, I don’t think we have an argument. I don’t see any way that we could logically argue that we are not in contempt given that the material remains on the website and we have knowingly, wilfully but respectfully declined to follow that order on a matter of principle”.
(h) A little further on, Mr Devine said that it would probably not be a good idea to bail the plaintiffs because they did not see any reason why they would be attending tomorrow. In fact, it was their plan not to attend.[30]
[30]T21.19
(i) The following exchange occurred (the Attorney General relies upon the first part as critical and the plaintiffs rely upon what Ms Legg says and her Honour’s response as crucial to their case):
“Her Honour: Now you understand that if I don’t remand you in custody, I can still proceed with the matter whether you’re here or not?
Mr Devine: Yes Your Honour, we probably think that would be the best thing under the circumstances since we don’t intend to defend ourselves. We wouldn’t be here now had we not been arrested.
Ms Legg: May I add something to that, Your Honour?
Her Honour: Yes.
Ms Legg: The only thing I wanted to add was in regard to determining a prison sentence or whether this should be sentenced on us – I’m sorry, I don’t know the terminology, we would have arguments about naturally the merits of what we’ve done and thus whether we really deserve this but I see that falls under the same category as the other matter of whether we should have been charged in the first place but I would argue the merits of what we’ve done under those circumstances as to why we shouldn’t be treated as criminals.
Her Honour: Yes, thank you. Look, I’m not going to take up the invitation of the applicants [the applicants at VCAT, rather than the plaintiffs] to imprison them overnight. I don’t think it’s appropriate. I don’t think that there’s anything to be gained. What I propose to do is simply to discharge the warrants.
I have explained to the respondents, Mr Devine and Ms Legg, that I will deal with this matter of contempt. I will deal with it at ten o’clock tomorrow morning whether they are here or not.
I will explain to them as well again that what I’m dealing with is the contempt of the tribunal for failing to comply with the order of the tribunal made 27 July 2007, that is to remove the offending material from the website and I understand from what they’ve said that they do not propose to remove that material from the website. I will simply deal with the matter on its merits tomorrow morning at ten o’clock.
I’ll discharge the warrants. I’ll indicate to the police sergeant who’s brought them down that I don’t require any further action under the warrants. I certainly won’t be remanding these respondents in custody but I will be dealing with the question of the appropriate penalty as I have said tomorrow.
Yes, thank you, you are free to leave but Mr Devine and Ms Legg, if you do not appear tomorrow then you must understand that I will deal with the matter on its merits depending upon the evidence that’s presented to me by the applicant tomorrow.”
A reading of the transcript of 27 November 2007 discloses:
(a) A judge who was at pains to explain the process to the plaintiffs and to give them an opportunity to seek an adjournment (either on 27 November or 28 November) if they required it.
(b) The plaintiffs were told on a number of occasions that in the absence of an application for an adjournment, the matter would proceed on 28 November and that on that day they could be convicted of contempt and imprisoned.
(c) The plaintiffs admitted that they had knowingly and wilfully disobeyed the VCAT order that was the subject of the contempt application, stating that they could not contest a finding of contempt.
(d) Notwithstanding the matters referred to in (a) to (c) hereof, the plaintiffs planned not to attend on 28 November.
I have little doubt that the plaintiffs understood on 27 November that the contempt application would proceed on the following day. Counsel for the plaintiffs dealt with this issue as follows:[31]
“[A]s my learned friend rightly points out that much was said by the Tribunal in terms of the intention to proceed the following day with the hearing. On a calm and considered reading of the transcript that can't be gainsaid. The question is this, two people, not lawyers, unrepresented, having been arrested and extradited and transferred between states that day, I understand, in custody, with, on any reading of the material, fervent views about matters of high importance, and their submission would be they relate to the safety and welfare of children, who perceive themselves to be addressing a tribunal about matters central to those fervent views, are not to be taken, in my submission, to necessarily understand and appreciate the import of every word that proceeds from the bench.
The significance of that is, that if this is a case, and I submit it is, where there is the capacity to perceive ambiguity or indeed contradiction between statements made by the tribunal, then this court should not find on review, at least not readily and without great care, that what was said by the tribunal was actually appreciated.”
[31]T26.5 – 26.27
Counsel for the plaintiffs then directed me to the passage I have identified in paragraph 15(i) above (T22.10 and following) and passages on pp. 14 and 18-19 of the 27 November transcript in an attempt to show that the plaintiffs may have been misled into thinking that they would not be imprisoned until her Honour actually received further information. Statements like “I would need to know your personal circumstances to decide whether you should be gaoled and if so for how long” were relied upon by him as perhaps misleading the plaintiffs into thinking that they would not be sentenced to imprisonment in their absence. I reject these submissions. Taking individual sentences of a 23 page transcript out of their context and subjecting them to a detailed textual analysis does not alter the import of what was plainly conveyed by her Honour on 27 November – namely, that in the absence of an adjournment application the matter would proceed on 28 November, at which time the plaintiffs were at significant risk of being convicted of contempt and at risk of being imprisoned. The only fair interpretation of the transcript of 27 November is that, despite the plaintiffs being warned of the risks they faced, they decided (as they had planned) not to attend on 28 November 2007. It follows that I reject the affidavit evidence of the plaintiffs insofar as they have sworn that following the conclusion of the hearing on 27 November they did not believe there would be a hearing in the matter on 28 November.[32]
[32]See paragraph 16 of Mr Devine’s affidavit sworn 22 February 2008 and paragraph 15 of Ms Legg’s affidavit sworn 22 February 2008 but cf paragraphs 10 and 15 of Mr Devine’s affidavit sworn 19 May 2008 and paragraph 18 of Ms Legg’s affidavit sworn 19 May 2008
In advancing his submissions about the unfairness of proceeding with the hearing in the absence of the plaintiffs, counsel for the plaintiffs recounted what he described as a “noteworthy hypothetical”[33] as follows:
“… had the plaintiffs not been present on the 28th not because of choice but because of illness or impossibility, accident, would this case have played out any differently? The answer is, no. Had they fallen in front of a bus, to speak colloquially, on the night of the 27th on their way from court in a city not their own, the tribunal the next day would have made the same enquiries, namely having their names called outside of court - that's all I take it to have occurred - the matter would have proceeded and they would have been sentenced. They would not have been made aware of the decision, they would not have been able to exercise their appeal rights within time. They would have been arrested on 7 January and imprisoned in Victoria and they would have faced exactly the same difficulty they did face, not that I raise this as a matter of evidence, in obtaining legal assistance and that as it did, contribute to the delay.
That hypothetical is telling on the question which is the question for this court: as a matter of principle is what the tribunal did here defensible? In principle, it is not because the procedure the tribunal adopted here would have resulted in ill people who had an absolute - defence I was about to say, it's not the right word - a reason that could not be criticised for not attending on the 28th, would have been imprisoned.”
[33]T65.11
This hypothetical case is, of course, too simplistic. If one is meant to infer that in the hypothetical case the plaintiffs were people who wished to attend and be heard on 28 November, then it is difficult to believe that this fact would not somehow have been conveyed to VCAT before the matter was proceeded with. In any event, there is no suggestion that this is what occurred in this case. Further, in the hypothetical case, there would have been real grounds for re-opening any order that might have been made on 28 November pursuant to s 120 of the VCAT Act.[34] The hypothetical case is of no assistance to the plaintiffs. This case falls to be determined upon the basis of what actually occurred, not what might have occurred in a different case.
[34]Section 120(1) of the VCAT Act provides:
“A person in respect of whom an order is made may apply to the Tribunal for a review of the order if the person did not appear and was not represented at the hearing at which the order was made.”
A number of cases have dealt with the issue of the absence of an accused from trial.[35] In R v Serrano (No.5),[36] Kaye J said:[37]
“In R v Mokbel, Gillard J referred to R v Jones and R v McHardie & Danielson and followed the principles established by those cases. In that case the accused man, who was charged with being knowingly concerned in the importation of drugs, absconded shortly after the commencement of the final address by the Crown prosecutor. Gillard J, after reviewing the authorities, held that in the interests of justice it was appropriate that the trial of the accused should proceed in his absence. The accused was convicted by the jury and was sentenced to 12 years' imprisonment.
It is understandable that the right of an accused person to attend and be present at the trial of an indictable offence is of singular importance in our system of justice. Ordinarily, it would be repugnant to basic notions of fairness should a trial proceed in the absence of an accused person. Each person is entitled to hear the evidence against him and to confront his accuser or accusers. An accused is entitled to be present to instruct counsel and to make response by electing to give evidence if he so chooses.
Nonetheless, as the authorities to which I have just referred have made clear, the fact that an accused has a paramount right to be present at his trial does not necessarily mean that a trial of that accused may not proceed in the accused's absence. This is particularly so where the accused by his or her own conduct has made it impossible for the trial to proceed in the presence of the accused. It was for that reason that the courts have recognised the power of a trial judge to continue a trial if an accused has so misbehaved in court as to render the continued hearing of the trial in his presence impossible.
Likewise, more recent authorities to which I have referred have recognised the discretionary power of the trial judge to continue a trial where the accused, by his own conscious and deliberate election, has chosen to abscond and not attend the trial and, thus, avail himself of the rights to which I have just referred.
[35]See for example R v Cornwell [1972] 2 NSWLR 1; R v McHardie & Danielson [1983] 2 NSWLR 773; R v Jones (1998) 72 SASR 281; R v Jones [2003] 1 AC 1; Flavel v Reesema [2005] SASC 418; R v Mokbel [2006] VSC 119; and R v Serrano (No.5) (2007) 16 VR 360
[36](2007) 16 VR 360
[37]At paragraphs [32] – [35]
In R v Jones,[38] the House of Lords referred to a checklist of matters relevant to the exercise of the discretion to commence a trial in the absence of a defendant. The checklist was contained in Rose LJ’s judgment in the Court of Appeal below.[39] The checklist sets out six matters, the fifth of which is divided into 11 sub-matters. It is not necessary to set out those matters in detail, nor to set out the qualifications to the checklist referred to in paragraphs [14] and [15] of Lord Bingham of Cornhill’s judgment in the House of Lords. It suffices to say that a relevant matter is the question of whether an accused person, knowing that the trial is to take place, voluntarily absents himself from it. In the present case, the plaintiffs plainly voluntarily absented themselves from the hearing of the contempt application which they knew would proceed on 28 November 2007. There was no breach of natural justice, nor any denial of the right to a fair hearing when VCAT proceeded to hear the contempt application on 28 November. Whilst the plaintiffs contend that there was unfairness which was “tenfold in nature[40] but singular in … [that] the Tribunal deprived itself of the capacity to hear relevant matters”,[41] it must be said that on any occasion when a court or tribunal proceeds in the absence of a party (and anyone acting on behalf of that party) the court or tribunal may not hear such relevant matters as would have been submitted if the party attended or was represented. The mere fact that one can list ten or more matters that could have been said if the plaintiffs attended or were represented does not tell against a conclusion that there was no error (breach of natural justice or denial of the right of a fair hearing) in proceeding in the circumstances of this case in the absence of the plaintiffs. There is no material from which one could conclude that the vice president’s discretion to proceed and determine in their entirety the applications brought pursuant to s 137 of the VCAT Act miscarried. It follows that the plaintiffs’ second ground of complaint is not made out.
[38][2003] 1 AC 1
[39]R v Jones & Ors [2001] EWCA Crim 168 at paragraph [22]
[40]This was a reference to the ten matters set out in paragraph 11 of the plaintiffs’ written submissions in reply dated 15 August 2008 – which matters were expanded upon during the course of the hearing
[41]T11.11 – T11.14
Imposing a custodial sentence in the absence of the plaintiffs
I have taken the plaintiffs’ complaint here concerning the imposition of custodial sentences upon them in their absence to be a twofold complaint, namely:
(a) a breach of natural justice and the right to a fair hearing; and
(b) an error of law on the face of the record or jurisdictional error.
For the reasons given in respect of the plaintiffs’ second complaint, proceeding to impose custodial sentences upon the plaintiffs was neither a breach of natural justice nor any denial of the right to a fair hearing. I turn now to consider whether it was contrary to law to impose a custodial sentence in the absence of the plaintiffs.
The plaintiffs’ argument on this point commenced with a statement made by the Attorney General in the Second Reading Speech for the Courts Legislation (Jurisdiction) Bill. The Attorney General said:[42]
[42]Hansard 7 June 2006 at p.1776
“The Bill also makes a number of amendments aimed at promoting fairness and greater efficiency in the criminal justice system, including –
ensuring that the Magistrates’ Court cannot impose a custodial sentence where a charge is heard and determined in the absence of the defendant; while the imposition of a custodial sentence in these circumstances under the current system is rare, the government wishes to ensure that it is no longer a possibility given its inherent unfairness to the defendant;”
That objective was given legislative force by s 41(4) of the Magistrates’ Court Act, which was inserted by s 21(2) of the Courts Legislation (Jurisdiction) Act 2006. Section 41(4) provides:
“If the Court[43] proceeds to hear and determine a charge in the defendant’s absence and finds the defendant guilty, the Court must not make a custodial order under Division 2 of Part 3 of the Sentencing Act 1991.”
Section 41(4) is one of four sub-sections contained within s 41 of the Magistrates’ Court Act which sets out the regime for dealing with defendants in Magistrates’ Court proceedings who do not attend in answer to a summons to answer to a charge for an indictable offence.
[43]Defined in s 3 of the Magistrates’ Court Act to mean “the Magistrates’ Court of Victoria”
On its face, s 41(4) has no application in the present proceeding. The statement in the Second Reading Speech in respect of s 41(4) that the government wishes to ensure that it is no longer possible to impose a custodial sentence where a charge is heard and determined in the absence of a defendant relates solely to proceedings in the Magistrates’ Court. The statement cannot be read as prescribing some principle that all courts and tribunals are now prohibited from imposing custodial sentences in the absence of defendants.
In further support of his argument, counsel for the plaintiffs referred to the Second Reading Speech for the Justice Legislation (Further Amendment) Bill.[44] This was the Bill that became the Justice Legislation (Further Amendment) Act 2006 and which inserted sub-s (5A) in s 137 of the VCAT Act. Sub-section (5A) provides:
“In considering whether, and the term for which, to commit a person to prison for a contempt, the Tribunal may have regard to the provisions of Part 2 of the Sentencing Act 1991 as if it were a court considering imposing a sentence of imprisonment in respect of an offence.”
[44]Legislative Assembly Hansard 24 August 2006 p.3107
The relevant part of the Second Reading Speech provides:
“The Bill makes further amendments to provide that a judicial member of the tribunal may have regard to the principles set out in Part 2 of the Sentencing Act 1991 when considering whether to impose a sentence of imprisonment for contempt of the tribunal. This will promote consistency between the courts and the tribunal when considering sentences of imprisonment.”
The plaintiffs’ argument is that consistency between the courts and the Tribunal dictates that the Tribunal, like the Magistrates’ Court, must not impose a custodial sentence in the absence of a defendant. The short answer to this point is that there is no legislative provision that prevents VCAT from imposing a custodial sentence in the absence of a person found guilty of contempt in appropriate circumstances. Had Parliament wished to prohibit VCAT from so acting, it could have by enacting a section like s 41(4) of the Magistrates’ Court Act directed to the Tribunal. It has not done so. It was not contrary to law to impose custodial sentences on the plaintiffs in their absence. It follows that the plaintiffs’ third ground of complaint is not made out.
Conclusion
For the reasons given above, this proceeding is dismissed. I will hear the parties on the question of costs.
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