Supreme
Court of Victoria Considers and Applies ICCPR in the Context of the
Right to a
Fair
Trial and the Obligations of a Court to Self-Represented
Litigants
Tomasevic
v Travaglini & Anor [2007] VSC 337 (13 September 2007)
In a
very significant decision, the Supreme Court of Victoria has considered the relevance and
application of
the
human rights to equality before the law, access to justice and the right to a
fair hearing under the ICCPR
to the
right to a fair trial under Victorian law and the obligations of the court to self-represented
litigants.
Facts
Mr
Tomasevic, a teacher with no legal background, was convicted by a magistrate on
a range of criminal
offences
on 23 May 2003. Unrepresented, he sought leave to proceed with an appeal
out of time before a judge
of the County Court.
The judge did not direct Mr Tomasevic’s ‘attention – as a self-represented
litigant
- to
the salient points of law and procedure and refused the application’.
Mr
Tomasevic sought judicial review of the County Court decision before Bell J in the Supreme Court. In
judgment,
Bell J stated that:
This
case both requires and deserves an analysis of the law with respect to the duty
of a judge to
ensure
a fair trial by giving due assistance to a self-represented litigant, taking
into account the
fundamental
human rights of equality before the law and access to justice specified in the
International
Covenant on Civil and Political Rights.
Decision
The Court considered the ‘significance
of the human rights of equality before the law and access to justice’
and
stated:
56 The
right of every person to a fair criminal or civil trial, and the duty of every
judge to ensure it, is
deeply
ingrained in the law. Expressed in traditional terms, the right is inherent in
the rule of law –
indeed,
‘in every system of law that makes any pretension to civilisation’ – and in the
judicial
process.
Expressed in modern human rights terms, the right to a fair trial is important
for promoting
and respecting
equality before the law and access to justice.
57 The
numerous human rights specified in the ICCPR, including equality before the law and
access
to justice, form the basis of the human rights set out in Part 2 of the Charter
of Human
Rights
and Responsibilities Act 2006, which may be referred to, with a direct
simplicity that only
serves
to emphasise its historic significance, as the Charter.
58 The
Charter does not affect any proceedings commenced or concluded before the
commencement
of Part 2, which occurred on 1 January 2007. Like the proceeding brought against
the
accused in the case before King J in R v Williams, Mr Tomasevic’s proceeding in
the case
before
me was commenced before that date. Just as the Charter did not affect King J’s
consideration
of Mr Williams’ application, it does not affect my consideration of Mr
Tomasevic’s.
59
King J left open the important question of the extent to which, in cases to which the Charter
applies,
the courts are bound to apply the provisions of Part 2. That question does not
arise in the
present
case, for the Charter does not affect it. The question that does arise in the
present case is
whether,
apart from the Charter, the ICCPR
is relevant in any event.
60
Apart from the Charter, the ICCPR
does not ‘operate as a direct source of individual rights and
obligations’
because it has not otherwise been incorporated into Australian law. But like other
international
instruments to which Australia is a party, the ICCPR has an independent and
ongoing
legal
significance in Australian
and therefore Victorian domestic law, a significance which is not
diminished,
but can only be enhanced, by the enactment of the Charter.
61
What is that significance? Subject to certain limitations and to an evolving
extent, the ICCPR,
and
those other instruments, may at least inform the interpretation of statutes (so
as to be
consistent
with and not to abrogate international obligations), the exercise of relevant
statutory and
judicial
powers and discretions, the application and operation of the rules of natural
justice, the
