Kortel v Mirik & Mirik - [2008] VSC 103

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE
CRIMINAL LAW DIVISION

No. 1579 of 2005

KORTEL	Applicant
v
MIRIK and MIRIK
Respondents

JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 April 2008
DATE OF JUDGMENT:	4 April 2008
CASE MAY BE CITED AS:	Kortel v Mirik and Mirik
MEDIUM NEUTRAL CITATION:	[2008] VSC 103	First revision: 9 April 2008

HUMAN RIGHTS – application for crimes compensation – respondents were not but then became legally aided and represented – whether ss 8 and 24(1) of the Charter apply to the proceeding – whether the court is exercising a function under Part 2 – proper construction of s 6(2)(b) – whether the Victorian Equal Opportunity and Human Rights Commission has a right to intervene under s 40(1) – whether an issue arises concerning the interpretation and application of the Charter – whether later grant of legal aid makes the issue purely theoretical – Sentencing Act 1991, s 85B – Charter of Human Rights and Responsibilities Act 2006, ss 6(2)(b), 8, 24(1), 34(1), 35(1)(a) and 40(1).

APPEARANCES:	Counsel	Solicitors
For the applicant	Dr I Freckelton SC with Mr M Schulze	Kenyons Lawyers
For the respondents	Mr W Alstergren with Mr D Turner and Mr D Pollak	Victoria Legal Aid
For the Attorney-General	Ms P Tate SC, Solicitor-General for the State of Victoria with Ms J Davidson	Victorian Government Solicitor
For the Victorian Equal Opportunity and Human Rights Commission and for Human Rights Law Resource Centre	Mr R Merkel QC with Ms K Walker	Mallesons Stephen Jaques

HIS HONOUR:

Refik Kortel is the victim of crimes committed against him by Cetin Mirik and Metin Mirik, for which they were sentenced to significant terms of imprisonment. Mr Kortel now applies for compensation under s 85B of the Sentencing Act 1991.

The crimes against Mr Kortel were extremely serious and committed on 13 April 2005. The respondents were sentenced by me on 21 February 2007.[1] The term of imprisonment imposed on Cetin Mirik was increased by the Court of Appeal on 6 August 2007.[2] The nature of the crimes and the full extent of Mr Kortel’s injuries are explained in those sentences.
[1]DPP v Mirik and Mirik [2007] VSC 20
[2]DPP v Mirik and Mirik [2007] VSCA 150

Mr Kortel’s application for compensation was issued on 18 February 2008. When the matter came on before me in a directions hearing on 27 February 2008, I was informed he would be represented by senior and junior counsel, instructed by solicitors. The respondents, who were in custody, did not have legal aid and were not represented.

Under s 35(1)(a) of the Charter of Human Rights and Responsibilities Act 2006, a party to a proceeding must give notice in the prescribed form to the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission if “a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kortel v Mirik & Mirik

Details

AGLC: Kortel v Mirik & Mirik [2008] VSC 103
Case: [2008] VSC 103
Decision Date: 4 April 2008

CaseChat Overview and Summary

The matter before the court was an application for compensation under the Sentencing Act 1991, brought by the plaintiff, Kortel, against the defendants, Mirik & Mirik. The defendants were initially unrepresented but subsequently became legally aided and were represented. The court was required to determine whether sections 8 and 24(1) of the Charter of Human Rights and Responsibilities Act 2006 applied to the proceeding, and if the court was exercising a function under Part 2. Additionally, the court had to consider the proper construction of section 6(2)(b) of the Charter and whether the Victorian Equal Opportunity and Human Rights Commission had a right to intervene under section 40(1). The court also needed to decide whether an issue arose concerning the interpretation and application of the Charter and whether the later grant of legal aid made the issue purely theoretical.

The court examined the construction of sections 6(2)(b) and 40(1) of the Charter and found that the Commission did not have a right to intervene in the proceeding. The court held that the later grant of legal aid to the defendants made the issue concerning the interpretation and application of the Charter purely theoretical. The court determined that sections 8 and 24(1) of the Charter did not apply to the proceeding, and the court was not exercising a function under Part 2. The court held that the proper construction of section 6(2)(b) was that the Charter applied to all proceedings, including those in which a party was not legally aided at the time of the commencement of the proceeding.

The court dismissed the application for compensation and made no order as to costs.

Orders