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Burnnard, Amanda --- "The Right to a Fair Trial: Young Offenders and the Victorian Charter of Human Rights and Responsibilities" [2008] CICrimJust 24; (2008) 20(2) Current Issues in Criminal Justice 173

The Right to a Fair Trial: Young Offenders and the Victorian Charter of Human Rights and Responsibilities

Amanda Burnnard[∗]

Abstract

Since 1 January 2008, all Victorian courts have been required to comply with the rights contained within the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘The Charter’), including the right to a fair trial, and, in proceedings involving young people, the right to be treated in an age-appropriate manner. It is essential that courts ensure that their trial procedures uphold and protect the rights contained within the Charter, or they risk being challenged on the grounds that they are acting unlawfully.
This article seeks to inform the relevant rights contained within the Charter by reference to international law. It examines decisions of the European Court of Human Rights, which suggest that current procedures employed in the Victorian Supreme Court in trials of young people would violate the provisions of the Charter. It then assesses the current procedures against these materials and recommends the adoption of new procedures to facilitate compliance with the new legislation.

Introduction

On 12 May 2007, a Melbourne newspaper printed an article about a child in the United States who had been shackled in accordance with local law to attend the hearing which convicted him of the aggravated battery of a homeless man (Herald Sun, 12 May 2007, 11). An accompanying photograph showed the 10-year-old standing between his mother and his lawyer, the legs of his too-long prison jumpsuit rolled up to display two ankle bracelets connected by a short chain.

The article was a timely reminder of an issue that has received little local attention of late: the appropriateness of courtroom procedures employed in the trials of children or young people for serious crimes. A child in the Victorian criminal justice system is generally any person between the ages of 10 and 18 (Children, Youth and Families Act 2005 (Vic) s3).[1] In Victoria, the Children’s Court hears all summary and most indictable proceedings concerning children or young people, provided that they are not older than 19 by the time proceedings commence (Children, Youth and Families Act 2005 (Vic) s504(1), 516(1)(a)). Specialist procedures are employed in the Children’s Court to ensure that children are able to participate in and fully comprehend the contents of their trials (Children, Youth and Families Act 2005 (Vic) part 7.3).

However, the Children’s Court does not have the jurisdiction to hear trials for murder, attempted murder, manslaughter, culpable driving or arson causing death (Children, Youth and Families Act 2005 (Vic) s516(a)). Regardless of the age of the accused, these proceedings are heard in the Supreme Court, where the procedural safeguards of the Children’s Court do not apply. This is despite consistent domestic and international recognition that children have particular needs which cannot be met by the application of adult standards (e.g. Australian Law Reform Commission 1997; Bartholomew 1999; Charter of Human Rights and Responsibilities Act 2006 (Vic) ss23-24; United Nations 1989; United Nations 1985; Committee on the Rights of the Child 2007).

Many young people have difficulty comprehending legal proceedings (Australian Law Reform Commission 1997:[4.20], [18.810]) which have not been designed to facilitate their participation. They may lack the capacity to instruct their legal practitioners (Akenson 1999:14), are frequently intimidated by the courtroom environment (Australian Law Reform Commission 1997:[18.185]) and are at particular risk of being stigmatised if their identities are revealed during the proceedings (United Nations 1985:[8.1]; Children, Youth and Families Act 2005 (Vic) s522(1)(f)). Despite this, young people on trial in the Supreme Court of Victoria face, for the most part, the same courtroom procedures as their adult counterparts. There are no policies or guidelines in place which aim to protect the rights of young people in the courtroom.

The ramifications of this practice have been largely ignored in legal circles, with the exception of one study carried out nearly a decade ago (Bartholomew 1999). However, recent developments in both the domestic and international context suggest that this will no longer be possible.

Since 1 January 2008, Victoria has required all courts to comply with the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Charter’) (at s6(2)(b)) which includes the right to a fair trial and particular provisions pertaining to children within the criminal justice process (ss23, 24).[2] The Charter further requires the compliance of all public authorities with the legislation (Charter of Human Rights and Responsibilities Act 2006 (Vic) s38). It states that while a court acting judicially is not a public authority, an exception is made for a court exercising an administrative function, such as the adoption of procedures (Charter of Human Rights and Responsibilities Act 2006 (Vic) s4(1)(j)). The Victorian Supreme Court is therefore required to comply with the Charter in all procedural aspects.

Similar provisions were enacted in the Australian Capital Territory’s Human Rights Act 2004 (ACT) (at ss20, 21, although the ACT legislation does not define the parties upon whom it is binding) and have been included in the draft bill for a human rights charter in Western Australia (Human Rights Bill 2007 (WA) ss22(5), 24, 25, 39, 40). The Tasmanian Law Reform Institute has also recommended that a prospective charter of human rights include these rights and bind public authorities (Tasmania Law Reform Institute 2007:10-11, 65, 78-81). Australia is gradually joining other common law countries such as the United Kingdom, New Zealand and Canada in developing of a ‘human rights culture’ (Stanhope 2004) to protect those who are particularly vulnerable, including children.

On the international front, the European Court of Human Rights (‘the ECHR’) has held that three young people, tried for serious crimes in England’s Crown Court, were denied fair trials due to the procedures employed there ( T v United Kingdom; V v United Kingdom; SC v United Kingdom). This is significant because the Victorian Charter states that international law and decisions of foreign courts may be used to interpret the content of its provisions (Charter of Human Rights and Responsibilities Act 2006 (Vic) s32(2)). When assessed against the ECHR judgments, it is likely that the procedures used in cases involving young people in the Supreme Court would not comply with the requirements of the Charter.

Methodology

In this article, I examine the right to a fair trial and the specific rights pertaining to children within the criminal process under the Charter, and attempt to inform their content using international law and ECHR cases.

Subsequently, I examine the current Supreme Court procedures using a case study of a young person who was tried for manslaughter in 2005 and 2006 (DPP v TY (No 3)). This section of the article is largely informed by an interview with Justice Kevin Bell, who presided over this case as well as several others involving children and young adults in recent years (Director of Public Prosecutions v TT ; Director of Public Prosecutions v Prasoeur). While there is an abundance of literature describing the experiences of young people in a court room generally (see e.g. Australian Law Reform Commission 1997; Akenson 1999), information about actual procedures employed in the Supreme Court is impossible to find. I contacted Justice Bell’s associate as part of my research and His Honour kindly offered to share his experiences.

In the final part of this article, I suggest ways in which the Supreme Court may facilitate compliance with the Charter and explore the consequences this is likely to have for both Victoria and the national human rights debate.

The Victorian Charter

The Victorian Charter of Rights and Responsibilities was introduced by the Bracks Labor Government in 2006, following a period of extensive community consultation (Hulls 2006). It contains various rights relevant to the criminal justice process, and several that are particularly significant for young people on trial in the state’s highest court: the right to a fair trial (Charter of Human Rights and Responsibilities Act 2006 (Vic) s24), the right to age-appropriate treatment (s23), the right to be brought to court as quickly as possible (s23(2)), and the right to be segregated from adult offenders (s23(1)). With the exception of the latter, which already occurs, these rights are likely to become the subject of some debate when a young person is next committed to stand trial in the Supreme Court. It is worth noting that the right to fair trial has been raised in criminal trials in the past, both before the Charter and after it came into effect, in relation to adult accused whose trials have attracted extensive publicity (Burnside 2008).

It is difficult to state with accuracy the content of these rights as their interpretation has not yet been tested by a court. However, contained within the Charter is a direction that international law and decisions of domestic, foreign and international courts may be used to interpret its provisions (Charter of Human Rights and Responsibilities Act 2006 (Vic) s32(2)). Victorian Attorney-General Rob Hulls has also stated that the Victorian Charter draws on the International Convention for Civil and Political Rights (‘the ICCPR’) (Hulls 2006). International law, therefore, while not binding, is a highly persuasive source from which it is possible to draw some conclusions about the meaning of rights under the Victorian legislation.

The Right to a Fair Trial

The Victorian Charter provides that a person charged with a criminal offence has the right to have their case heard by a competent and impartial court following a fair and public hearing (Charter of Human Rights and Responsibilities Act 2006 (Vic) s24). The right is qualified by the condition that a court may exclude people from the hearing if permitted to do so by another law (see e.g. Supreme Court Act 1986 (Vic) s19), and that decisions may not be made public if required to by another law or if it is in the best interests of a child (Charter of Human Rights and Responsibilities Act 2006 (Vic) s24(3)).

International law and commentary appears to support the view that the privacy of young people in the courtroom should be respected. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘The Beijing Rules’), while not binding, are highly persuasive. They state that ‘the juvenile’s right to privacy shall be respected at all stages’ (United Nations 1985). The United Nations Committee on the Rights of the Child has also recommended that hearings with children should be conducted in private (Committee on the Rights of the Child 2007). The level of privacy that will be required to satisfy the Charter is unknown; it may range from a suppression of the identity of the young person involved, to a closed courtroom, as is the norm in the Children’s Court. The right to a fair trial will, however, encompass restrictions on the publication of proceedings, if this is deemed to be in the child’s best interests, as this is explicitly stated in the Charter (Charter of Human Rights and Responsibilities Act 2006 (Vic) s24(3)).

The Beijing Rules also indicate that a fair trial requires an environment conducive to the participation of the young person concerned, and state that proceedings should be ‘conducted in an atmosphere of understanding’ (United Nations 1985). This seems to suggest that the trial should be conducted in language which the young person can comprehend, or alternatively that their understanding should be facilitated by others in the courtroom.

The Right to be Treated in an Age-Appropriate Manner

The Charter further provides that

A child charged with a criminal offence has the right to a procedure that takes account of his or her age and the desirability of promoting the child’s rehabilitation (Charter of Human Rights and Responsibilities Act 2006 (Vic) s25(3)).

This is certainly the case in the Victorian Children’s Court, where legislation requires that the court take practicable steps to ensure the proceedings and their implications are comprehensible to the child (Children, Youth and Families Act 2005 (Vic) s522(1)(a), 522(1)(b)). The court must explain any orders and their effects plainly and simply to facilitate understanding by the child and his or her parents (Children, Youth and Families Act 2005 (Vic) s527). Children must be allowed to fully participate in the proceedings (Children, Youth and Families Act 2005 (Vic) s522(1)(c)), their cultural identities and needs must be respected (Children, Youth and Families Act 2005 (Vic) s522(1)(e)), and the court must minimise the stigma to the child and his or her family (Children, Youth and Families Act 2005 (Vic) s522(1)(f)). The Court can close the proceedings or restrict attendance to specified persons (Children, Youth and Families Act 2005 (Vic) s523(2)(a), 523(2)(b)), and an order on the courtroom door to this effect cannot contain particulars likely to lead to the identification of the child (Children, Youth and Families Act 2005 (Vic) s523(5)). Publication of the proceedings is restricted, and any person who does not observe these requirements may be convicted of an offence and face two years in prison (Children, Youth and Families Act 2005 (Vic) s534).

As the Charter has now come into effect, it is expected that the Supreme Court will be required to follow suit the next time a young person is committed to stand trial there. Again, it is difficult to predict the precise measures that will need to be implemented, particularly as the cases concerning the ICCPR, from which the Victorian section directly takes its wording, offer little assistance (Joseph et al 2000; Committee on the Rights of the Child 2007). However, it is likely that the same procedural protections which are afforded to young people in the Children’s Court will be required to apply in the Supreme Court, in an attempt to reduce the level of formality and further facilitate the participation of the young person. The United Nations Committee on the Rights of the Child suggests that the physical layout of the courtroom, which has been criticised by law reform bodies for its formality (e.g. Australian Law Reform Commission 1997: Chapter 18), may also require consideration (Committee on the Rights of the Child 2007).

Other Rights Pertaining to Children

The Charter further requires that accused children in detention should be segregated from detained adults (Charter of Human Rights and Responsibilities Act 2006 (Vic) s23(1)) and that they should be brought to trial as quickly as possible (s23(2)). While the former is already standard practice for young people in the Supreme Court (Bell 2007), the meaning of the latter is less certain. The Beijing Rules provide for the expeditious handling of cases, as the passing of time may inhibit the ability of the young person to connect the offence with the related legal proceedings (United Nations 1985). The Convention on the Rights of the Child also directs that penal proceedings should be determined without delay (United Nations 1989). However, the maximum length of time permitted to lapse before proceedings are commenced is unknown.

It is also unclear whether future interpretations of ‘as quickly as possible’ could be used to delay proceedings if this is found to be in the interests of the young person. For example, in the Children’s Court, proceedings must be adjourned to allow the accused to be treated if he or she makes a successful application for a therapeutic order (Children, Youth and Families Act 2005 (Vic) s352).[3] It is arguable that given the serious nature of crimes heard in the Supreme Court, young people involved in its proceedings should be given the same opportunity to treat any psychological or health problems before facing a trial. Questions such as these can be answered not by looking to international statutes or treaties, but to case law where these very matters have been dealt with.

The European Court of Human Rights Cases

The above discussion provides an overview of the academic content of each of the rights in question, but an analysis of case law is required to fill in the practical details. How should a court facilitate the understanding of a young person in relation to their trial? What is ‘appropriate’ treatment for a child of a particular age? As outlined above, how soon after the offence should a young person be held to account for their actions? Answers to some of these questions come in the form of several recent judgments handed down by the European Court of Human Rights: T v United Kingdom, V v United Kingdom and SC v United Kingdom.

T v United Kingdom; V v United Kingdom

In 1999, the European Commission of Human Rights and the United Kingdom Government referred to the ECHR the joint cases of T v United Kingdom and V v United Kingdom. The appellants were the young men who had six years earlier been convicted of the murder of British toddler James Bulger. They were both 10 years old at the time of the offence, and 11 at the time of the joint trial (T v United Kingdom at [7], [61]; V v United Kingdom at [7]) which took place in public over three weeks at the Preston Crown Court in England (at [9]).

During the trial, efforts had been made to accommodate the young age of the applicants, including the seating of the applicants in a raised dock next to social workers and near their parents and legal practitioners, shortened hearing times with hourly breaks, the availability of extra breaks if required, and permitting the applicants to spend time with their parents and social workers during breaks (T v United Kingdom at [9]). Prior to the trial, T and V had visited the court with social workers and had been introduced to its procedures with the assistance of books and games contained within a child witness pack (T v United Kingdom at [9]). However, T and V argued that their trial breached Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’), which prevents the subjection of persons to ‘torture or inhumane or degrading treatment or punishment’ (T v United Kingdom at [51]; Council of Europe 1950:Art 3) and Article 6, which provides for the right to a fair trial (T v United Kingdom at [51]; Council of Europe 1950:Art 6).[4]

The court disagreed that Article 3 had been breached, ruling that the modifications had been made to the trial to protect the applicants (T v United Kingdom at [65]), whose suffering was largely due to their commission of a ‘horrific crime’ and its consequences (T v United Kingdom at [66]). However, T and V successfully claimed that they had been denied a fair hearing in breach of Article 6(1) of the Convention (T v United Kingdom at [89]; V v United Kingdom at [91]). They submitted, and the ECHR accepted, that Article 6 guaranteed the right of an accused to participate effectively in one’s trial (T v United Kingdom at [79]; V v United Kingdom at [82], [85]). The court held that T and V could not adequately participate in the trial due to their immaturity, emotional disturbance, and the post-traumatic stress disorder that V suffered (V v United Kingdom at [88]-[90]; T v United Kingdom [88]). The raised seating arrangement was held to have a stigmatising effect as it subjected the applicants to the full scrutiny of the courtroom (V v United Kingdom at [88]).[5] It also prevented them from being sufficiently comfortable to consult with their legal practitioners during the trial (V v United Kingdom at [90]). The applicants had not sought damages (V v United Kingdom at [124]), but were awarded costs based on the varying success of their claims (V v United Kingdom at [127]).

SC v United Kingdom

Five years later, the ECHR heard a similar case, this time involving an applicant who was convicted of attempted robbery. Together with another boy, SC had attempted to take the bag of an elderly woman, who fell and fractured her arm (at [9]). SC was 11 at the time of the offence and trial in 1999 (at [9]), and was committed for trial in the Crown Court due to an extensive prior criminal history (at [11]). He also claimed that his trial breached Article 6 of the Convention, arguing that his age and limited intellectual capacity prevented his effective participation in the trial (at [3]). Like T and V, he was permitted to take frequent breaks during the hearing, which he attended with a social worker (at [15]). Unlike them, his trial necessitated only a single day (at [15]) and did not attract publicity (at [25]). SC did not sit in a dock (at [15]), and his social worker frequently explained the proceedings to him (at [25]). Neither the judge nor practitioners wore wigs or gowns (at [25], [30]).

The ECHR accepted the government’s argument that the right to participation in one’s trial does not compel the accused to understand every point that is raised (at [25], [29]). However, SC appeared to have difficulty understanding even the most basic elements of the trial, including the role of the jury (at [17]), and his inability to return home with his foster father once he had been convicted (at [17], [33]). The ECHR held that his trial had violated Article 6 of the Convention (at [37]), and stated that SC should have been tried in a special tribunal capable of adapting procedures to meet his needs (at [35]).

The Victorian Supreme Court: The Experience of TY

I’ve thought of this on the bench, I’ve thought, ‘This kid’s only 15, is he understanding me … what’s really going through his head?’ (Bell 2007)

The ECHR cases confirm that the ability of a young person to participate in his or her hearing is an inherent requirement of the right to a fair trial. They suggest that the right to age-appropriate treatment could require measures designed to minimise the intimidation experienced by young people in a courtroom, such as the elimination of wigs and gowns worn by practitioners (SC v United Kingdom). Young people could also be required to visit the courtroom with a social worker prior to the case, as occurred in T v United Kingdom and V v United Kingdom (at [9]). The right may further require that the court take frequent breaks to allow for the shortened concentration span of young people and permit them to spend time with their parents during breaks instead of sitting in the cells (T v United Kingdom at [9]). The cases also suggest that bringing a child to trial expeditiously must be balanced with the child’s health and other needs, such as the avoidance of a media circus and detrimental publicity.

Current practices in the Victorian Supreme Court, however, paint a very different picture. Despite the awareness of some judges, as illustrated by the above quote, that young people may experience difficulty comprehending courtroom proceedings, few adjustments are made to procedure to address this. This can be illustrated by an analysis of the procedure employed in the recent case, Director of Public Prosecutions v TY.

At age 14 and nine months, TY struck an 18-year-old boy with a golf umbrella while at a tram stop (R v TY (2005) at [2]). The victim died of a brain injury several days later, and TY, then aged 16, was convicted of murder by the Victorian Supreme Court (R v TY (2005) at [1], [7]). Following an appeal (R v TY (2006)), he was retried in front of Justice Bell in late 2006. After being found guilty, he was sentenced to a prison term of 12 years (DPP v TY [No.3]).

Like many young people who come before the Supreme Court, TY had endured an unstable family life and disrupted schooling (DPP v TY [No.3] at [22]-[25]). He had poor social skills, and was described by Justice Bell as ‘the product of a highly disadvantaged background’ (DPP v TY [No.3] at [27]). Prior to the manslaughter charge, TY had committed theft and burglary on two separate occasions ((DPP v TY [No.3] at [26]. Each charge was proven and dismissed without conviction on an undertaking (DPP v TY [No.3] at [26]).

Such a troubled background suggests that TY may have benefited from some of the measures suggested by international law and implemented in the ECHR cases. Yet he was afforded no protection at all, save the efforts of Justice Bell to ensure he understood the proceedings. In fact, some of his experiences were in direct contrast to the right to a fair trial and age-appropriate procedures.

Each morning, TY was woken at his youth training centre at 6:00am and was brought to Court at approximately 7:30am. He was made to wait until the court adjourned for lunch before he could eat his first meal of the day, and arrived back at prison quite late to eat dinner at approximately 8:00pm (Bell 2007). Justice Bell believed that being tired and hungry for the duration of the proceedings infringed TY’s right to a fair trial and was ‘quite firm with the authorities’ about this, with the result that TY was permitted to have breakfast before facing court each morning (Bell 2007). Like all prisoners, TY spent time in a Supreme Court cell during breaks and before and after his hearing each day: a small room with a concrete floor containing only a padded bench on which to sit, a toilet and a sink. In accordance with normal procedure, TY was strip-searched each time he left and arrived at the Court, and was separated from any adult accused (Bell 2007).

TY was tried in Court 2 (Bell 2007). It is an imposing room with deep red carpet and gleaming polished wooden furniture. Spectators can observe the proceedings from the gallery above. The slightly elevated wooden dock at the back of the room directly faces the judge’s raised seat. It is flanked on either side by chairs for court orderlies responsible for security. TY chose to give evidence in this environment, in front of members of his own family, the victim’s family and various journalists (Bell 2007). However, as a copy of the Koran could not immediately be procured for him to swear upon, he was forced to wait for 20 minutes before speaking. An adult would have found the experience intimidating, and a teenager, much more so; it was, as Justice Bell described it, a ‘totally unsatisfactory’ situation for everyone involved (Bell 2007).

In the courtroom, Justice Bell allowed for TY’s comparatively young age by attempting to explain matters more thoroughly to him than he would have done to an adult accused (Bell 2007). He did not assume that TY’s counsel would explain everything to his client, an assumption generally made in cases involving adult accused (Bell 2007). In accordance with his usual manner in cases involving young people, Justice Bell did not wig,[6] and made an effort to include TY’s family, who were often present, in his addresses, and to communicate that he understood their situation and concerns (Bell 2007). He did the same with regard to members of the victim’s family present in the courtroom (Bell 2007). TY’s identity was protected during the case and in reports and judgments, and his initials were used in lieu of his name at all times.

The Victorian Supreme Court: In Breach of the Charter

The case of TY, when contrasted with the standards expected by international law and the experiences of the accused in the ECHR cases, indicates the extent to which current Supreme Court practices fail to meet the needs of young people on trial. Substantial adjustments were made to procedure for T, V and SC in the United Kingdom, yet in those cases, the ECHR nevertheless held that a right to fair trial had been breached. International law, such as the Beijing Rules, also requires high standards of courts where young people are on trial, particularly with regard to privacy and the ability of the accused to comprehend proceedings. Together, these factors suggest the likelihood that the Victorian Supreme Court, with its notable absence of both formal and substantive recognition of the need to protect young people on trial, will breach the relevant provisions of the Charter when it comes into effect.

Substantively, the experience of TY is a far cry from the protection afforded by the ECHR and international law. While several judges in the Supreme Court currently refrain from wigging and attempt to explain the proceedings to the young person, and the court day is generally no longer than the school day (a modification that was made in the trials of T and V (T v United Kingdom at [9])), the absence of consistent, age-appropriate procedures for young accused is significant. Social workers are not used to introduce the courtroom to the accused prior to the hearing, or during the case to explain the proceedings to the young person. Proceedings are conducted in a formal, intimidating environment, in language often incomprehensible by a young person whose education has in many cases been disrupted. Any procedural adjustments are introduced not as a matter of policy based on what would be necessary to ensure an effective fair trial, but on an ad-hoc basis and at the sole discretion of the presiding judge. Furthermore, the judge is often hampered by a system which not only gives little consideration to the unique position of young people, but frequently operates to their detriment.[7]

This inadequate level of substantive procedural adjustments to allow for the age and maturity of the young accused is probably due to the lack of formal recognition afforded to his or her needs. Apart from the Charter itself, no legislation exists in Victoria to safeguard the needs and rights of young people in a courtroom, with the result that there is very little awareness of this issue among judges, counsel and other court staff.

In TY’s case, despite Justice Bell’s awareness of his immaturity, little else was done to meet his needs because little else could be done. The Crimes (Criminal Trials) Act 1999 gives the court power to determine questions of law or procedure at directions hearings (Crimes (Criminal Trials) Act 1999 (Vic) s5(5)(b)), but no reference is made anywhere to procedures that should be followed when children or young persons are to be tried. The Supreme Court Act 1986 allows the court to wholly or partially close proceedings or to restrict attendance if this would distress or embarrass the complainant or a witness (Supreme Court Act 1986 (Vic) s18, 19(e), 19(f)). However, no mention is made of the accused. There are no policy guidelines or directions that advise judges how to modify procedures should they find themselves presiding over the trial of a teenager, and these types of cases are not specifically allocated to judges experienced in children’s matters (Bell 2007). It was pure chance that Justice Bell presided over the cases of another young person and a young adult in Director of Public Prosecutions v TT and Director of Public Prosecutions v Prasoeur within a similar period.

This absence of protection and recognition of the needs of a young person not only breaches the relevant provisions of the Charter, but is inconsistent with the strict procedures required to be observed during the investigative process. For example, an independent person must be present when the police are interviewing a young person (Director of Public Prosecutions v Toomalatai), and several restrictions apply to the fingerprinting of children (Crimes Act 1958 (Vic) s464K, 464L). The situation is also in direct contrast to the substantive criminal law, which continually recognises the difference in capacity between children and adults. For example, the doctrine of doli incapax requires the prosecution to prove that the accused knew the action was wrong, as opposed to merely ‘naughty or mischievous,’ if he or she is between ten and 14 years old (C (A minor) v DPP). The ‘reasonable person’ in negligent manslaughter has been held to be a reasonable child of a similar age, if the accused is a young person (Director of Public Prosecutions v TY (No 2)). If convicted, the age of a young person is also considered during their sentencing (Bartholomew 1999).

Yet it is inconceivable that this broad recognition of the unique needs of young people does not extend to the environment where it is perhaps most necessary: the courtroom in which they are brought to account for the most serious of crimes, which more often than not involve the death of another human being. While the experience of TY in foregoing breakfast and waiting to give evidence may be uncommon, it does illustrate that young people can find it difficult to participate in their own trials for a range of reasons, from physical hunger and discomfort to intimidation and nervousness.

The issue becomes even more pressing when one considers that the experience of TY is not entirely unique: young people are tried in the Supreme Court more frequently than most of us imagine. In 1999, Terry Bartholomew of Deakin University closely examined the cases of 18 young people whose cases were heard in the Supreme Court between 1990 and 1999 (at 5). Most were tried for murder or manslaughter (at 9). Only one was female, and all were between the ages of 13 and 16, although the court had in the past heard cases where the offenders were as young as 11 (at 4, 6). Many had only completed schooling, which was often disrupted, up to Year Nine and most possessed a low to average IQ (Bartholomew 1999:6). Fifty per cent of the young people had been victims of physical, sexual or psychological abuse, and many came from backgrounds of family conflict (Bartholomew 1999:5). Seventy per cent had prior convictions, half of which were for violent crimes (Bartholomew 1999:5). Bartholomew noted that the Supreme Court heard an average of two such cases each year (1999:4). Whether this figure is still accurate could not be determined, although it is worth noting that in the years 2004-2005 and 2005-2006, Victoria Police processed 18 alleged juvenile offenders for homicide (Victoria Police 2007). These figures demonstrate that the presence and therefore treatment of young people in the Supreme Court is not an academic concern but an unfortunate reality, which must be addressed as soon as possible.

Facilitating Compliance with the Charter

In light of this, and the fact that the absence of appropriate procedures is both inconsistent with substantive law and the procedural fairness afforded at other stages of the investigation process, it would be advisable for the Supreme Court to introduce procedures in these cases to facilitate compliance. The question then becomes how best to achieve it as soon as possible in accordance with limited resources and the competing interests of other actors within the criminal justice system.

The issue is made complicated by the wide interpretation given to the rights by the ECHR cases and international law, the fact that the Charter represents unfamiliar territory for all Victorian public authorities, and the ambiguous wording of the Charter itself. To borrow a sporting analogy, the goalposts are likely to move several times before both players and umpires can be sure of where they are. For example, a right to be brought to trial as quickly as possible is likely to be qualified by the need to treat any health problems of the accused, and the trial may be therefore delayed to allow for treatment. However, the right to a fair trial could mean that children or young people who are emotionally immature, of less than average intelligence, or who are suffering from post-traumatic stress disorder as a result of the crimes they have committed, could be excluded from facing trial, as this would prevent them from effectively instructing counsel (T v United Kingdom; V v United Kingdom, SC v United Kingdom).

The content of each right and the modification of procedures to ensure compliance will further depend on the age and maturity of the particular young person on trial. The ECHR held that T and V could not actively participate in their trials because they were not seated within ‘whispering distance’ of their legal representatives (T v United Kingdom at [88]). However, it may well be considered reasonable, and of benefit to public safety given the provision that the Charter rights can be subject to ‘reasonable limits’ (Charter of Human Rights and Responsibilities Act 2006 (Vic) s7), for a 16 or 17-year-old who has been charged with murder or manslaughter to remain in the dock, provided that he or she has the opportunity to speak with a legal representative at other times during the hearing, as required by the right to fair trial (Charter of Human Rights and Responsibilities Act 2006 (Vic) s25(2)(b)). The right to be treated in an age-appropriate manner is more specific than the right to fair trial, and will likely require a number of positive amendments to procedure, such as the examples provided above, if the court is to avoid infringing the Charter in this regard.

Several potential methods exist for the facilitation of compliance with the Charter rights. One is the release of practice directions or the drafting of new legislation to allow for procedures to be modified in cases involving young people. Following the outcome of T v United Kingdom and V v United Kingdom, unique practice directions were developed in England to protect young people and those who suffer from mental disorders by extending the procedures employed in youth courts to the Magistrate’s Court and Crown Court (United Kingdom Department of Constitutional Affairs 2007). The practice directions state that ‘[a]ll possible steps should be taken to assist a vulnerable defendant to understand and participate in [the] proceedings’. They suggest modifications based on the cases of T and V, such as having defendants visit the courtroom before the trial, sit with family members, be able to communicate easily with legal representatives and the elimination of wigs, gowns and uniforms worn by police and security staff (at Chapter III). The practice directions, which had not come into force at the time of SC v United Kingdom, were nevertheless approved in that case, where the court noted that SC’s trial had complied with them (at [25]).

In the circumstances, it is advisable that the similar provisions are enacted to apply to the Victorian Supreme Court, whether in the form of practice directions, or legislative amendments to the Crimes (Criminal Trials) Act 1999 or the Supreme Court Act 1986. However, it should be noted that even compliance with the United Kingdom directions did not prevent SC’s trial being deemed unfair, and it is for this reason that the Victorian provisions should be extended to include matters not dealt with by the United Kingdom directions. For example, the new provisions should consider the physical elements of the courtroom, and whether such an environment is appropriate. It may be advisable for the Supreme Court to sit in the less-intimidating County Court in cases involving young people, or at least those below a certain age. The Supreme Court has sat in the County Court several times in recent years due to superior security facilities (e.g. R v Williams; R v Goussis). Consequently, it should not be very difficult to do the same for cases involving young people.

Another key factor in ensuring compliance with the Charter is the raising of awareness about it among the judiciary and other actors within the criminal justice system, such as counsel and court staff. The United Nations General Committee on the Rights of the Child suggests that ‘the key’ to implementing a fair trial is the quality of the people involved, and states that ongoing training is crucial to this (Committee on the Rights of the Child 2007:10). The current lack of procedures in the Victorian system suggests a considerable lack of awareness about the needs of young people. It would therefore be advisable for the Victorian rules to implement training for the professionals involved, or at least for several judges to be selected to preside over cases involving young people. At the very least, policy guidelines, perhaps in the style of those drafted for lawyers acting in the Children’s Court by Louise Akenson (1999) should be made available to inform Supreme Court judges and practitioners about their obligations under the Charter.

Most importantly, young people should be part of this process. An exercise in protecting the rights of young people and ensuring their comprehension of the criminal justice system is likely to be futile if they are not consulted. Before decisions are made with regard to new procedures, young people who have been through the process should have the opportunity to comment about their experiences, perhaps using a similar method to that employed by the Australian Law Reform Commission in its 1997 report, Seen and Heard: Priority for Children in the Legal Process (at [1.9]). Input should also be sought from judges who have presided over cases involving young people, lawyers who have represented them, and other members of the community, including youth workers and psychologists. This is likely to be a time-consuming process, but that should not prevent it being one of the primary aims of the Supreme Court in implementing the Charter.

Of course, modifying the Supreme Court procedures – and years of tradition – will not be without challenges. It would not be difficult to implement measures such as the accompaniment of the accused by a support person, a tour of the court prior to the proceedings (Bell 2007) or a handbook explaining how best to conduct trials concerning young people. However, others, particularly if the physical layout of the courtroom is to be altered, will be more time-consuming and resource intensive. The process is made even more challenging by the vague provisions in the Charter that state that the rights may be overruled, and the fact that its future interpretation, despite the predictions made in this article, is not certain. It will also be necessary to change attitudes, countering any negative responses from those who believe that young people who end up in the Supreme Court do not deserve what they see as special consideration with the reminder that everyone has the right to a fair trial.

It should also be acknowledged that the rights under the Victorian Charter are not absolute and nor should they be. They must be subject to other rights, and balanced against reasonable public interests (Hulls 2007:1290; Charter of Human Rights and Responsibilities Act 2006 (Vic) s7). Procedures that take into account the maturity, capacity and special needs of young people will need to be balanced against the gravity of the offence and the offender’s circumstances, as well as the needs of the victim and society (United Nations 1985:[5], [17]). The procedures should be balanced against the rights and needs of other interested parties, such as the victim who deserves to see the offender being appropriately dealt with, and the public whose values have dictated that the actions for which the offender is being tried merit extreme castigation. The ECHR cases however, illustrate that this can be done, with the result that the young person’s rights can still be protected. The fact that it will be a challenge to develop procedures which impart an appropriate degree of gravity and formality but nevertheless permit the offender to understand the full ramifications of the offence they are alleged to have committed should not in any way diminish the importance of such a process.

Conclusion

There is little point in having a Charter if its rights are not protected and upheld in a practical sense. The challenge Victoria faces now is to implement the Charter and ensure compliance with it on a daily basis. Now that it has come into effect, it is imperative that the Supreme Court, and indeed, all other public authorities in Victoria (Charter of Human Rights and Responsibilities Act 2006 (Vic) s4) ensure that their procedures comply with the rights therein.

Although the rights to a fair trial and age-appropriate procedures have not yet been tested and therefore remain somewhat indefinite, international law sources have given some indication as to the likelihood of their contents. The right to a fair trial is likely to encompass both the ability of the young person to participate in the trial, and the protection of their privacy. The right to age-appropriate procedures is likely to require the Supreme Court to introduce a range of procedural modifications, some of which may take some time to implement.

To continue to ignore the Charter would also likely subject Victoria to some embarrassment, both domestically and internationally. The Charter has cast Victoria as a major actor on the human rights stage in Australia and overseas, and it is likely that other jurisdictions will look to Victoria in the future, as some of them have in the past, for guidance in this area (Tasmanian Law Reform Institute 2007; Consultation Committee for the Proposed WA Human Rights Act 2007). Should Australia align itself with other common law jurisdictions and develop a bill of rights in the future, it is almost certain that Victoria’s experiences will be considered as part of any consultation process.

Ensuring compliance with the Charter by modifying Supreme Court procedures as suggested above will promote consistency in the way young people are treated by the wider criminal justice system. It will promote awareness within the community of the specific needs of young people facing serious criminal proceedings, and it is hoped, lead to a much fairer system.

Such a task will not be without its challenges, however, of which there are many, including the necessity of ensuring that any new procedures, while protecting the interests of young people on trial, do not diminish the gravity of Supreme Court proceedings and their potential consequences. However, to continue to ignore the Charter would leave the Court open to legal challenge, and risk having courtroom procedures, and therefore trials, declared unlawful.

Efforts must therefore be made as soon as possible to ensuring compliance with the Charter and protecting those its implementation was designed to protect. Victoria has had a charter of human rights on paper for 10 months. It’s time to see it in action.

Cases

Director of Public Prosecutions v Prasoeur [2006] VSC 40 (Unreported, Bell J, 16 February 2006)

Director of Public Prosecutions v Toomalatai [2006] VSC 256; (2006) 13 VR 319

Director of Public Prosecutions v TT [2007] VSC 23 (Unreported, Bell J, 27 February 2007)

Director of Public Prosecutions v TY (No 2) [2006] VSC 494; (2006) 14 VR 430 (manslaughter ruling)

Director of Public Prosecutions v TY (No 3) [2007] VSC 489 (Unreported, Bell J, 28 November 2007)

R v Goussis (2008)

R v Kaukasi (High Court, Auckland, T014047, 3 July 2002, Fisher J)

R v TY [2005] VSC 109 (Unreported, Teague J, 20 April 2005) (first trial)

R v TY [2006] VSCA 113; (2006) 12 VR 557 (Court of Appeal)

R v Williams [2007] VSC 2 (Unreported, King J, 15 January 2007)

SC v United Kingdom (2004) 17 BHRC 607

T v United Kingdom [1999] 7 BHRC 659

V v United Kingdom [1999] ECHR 24888/94

Legislation

Charter of Human Rights and Responsibilities Act 2006 (Vic)

Children, Youth and Families Act 2005 (Vic)

Crimes Act 1958 (Vic)

Crimes (Criminal Trials) Act 1999 (Vic)

Human Rights Act 2004 (ACT)

Human Rights Bill 2007 (WA)

New Zealand Bill of Rights Act 1990 (NZ)

Supreme Court Act 1986 (Vic)

References

Akenson L 1999 Guidelines for Lawyers Acting for Children and Young People in the Children’s Court

Australian Capital Territory Hansard Legislative Assembly 2 March 2004 p 529 (Jon Stanhope, Chief Minister and Attorney-General)

Australian Institute of Criminology 2007 Australian Crime: Facts and Figures 2006

Australian Law Reform Commission 1997 Seen and Heard: Priority for Children in the Legal Process Report No 84

Herald Sun (Melbourne) 2007 ‘Just 10, and he’s shackled’ 12 May p 11

Bartholomew T ‘(De)constructing Legal Personhood with Serious Young Offenders’ (Paper presented at the Children and Crime: Victims and Offenders Conference Brisbane 17-18 June 1999) (used with permission)

Burnside J 2008 ‘Justice Will Prevail’ Sunday Age (Melbourne) 18 May p 21

Butler A & Butler P 2005 The New Zealand Bill of Rights Act: A Commentary

Committee on the Rights of the Child 2007 Children’s Rights in Juvenile Justice General Comments No 10 44th sess. Geneva 15 January-2 February 2007

Consultation Committee for the Proposed WA Human Rights Act 2007 Final Report November 2007

Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms opened for signature 4 November 1950 ETS 5 Art 6 (entered into force 3 September 1953)

Interview between the author and Justice Kevin Bell, Supreme Court of Victoria (Melbourne, 24 April 2007)

Joseph S Schultz J & Castan M 2000 The International Covenant on Civil and Political Rights: Cases, Materials and Commentary

Tasmanian Law Reform Institute 2007 A Charter of Rights for Tasmania Report No 10 October 2007

United Kingdom Department of Constitutional Affairs 2007 The Consolidated Criminal Practice Direction www.dca.gov.uk/criminal/procrules_fin/contents/practice_direction/pd_ consolidated.htm at 18 April 2007

United Nations Convention on the Rights of the Child, opened for signature 20 November 1989, Art 40 (entered into force 2 September 1990)

United Nations United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘The Beijing Rules’) GA Res 40/33 29 November 1985

Victoria Parliamentary Debates Legislative Assembly 4 May 2006 p 1290 (Rob Hulls, Attorney-General)

Victoria Police 2007 2005/2006 Provisional Crime Statistics ‘Alleged Offenders Processed’ www.police.vic.gov.au/content.asp?a=internetBridgingPage&Media_ID=617 at 5 May 2007


[∗] BA/LLB(Hons). The author wishes to thank John Tobin of the University of Melbourne for his assistance and Justice Kevin Bell of the Supreme Court of Victoria for his contributions to the research conducted in the form of an interview. The views discussed in the article are the opinions of the author only and do not represent the views of any other person, office or agency.

[1] Unless otherwise indicated, the terms ‘child’ and ‘young person’ are used interchangeably in this article to refer to any person aged 10 to 18.

[2] These provisions are either specific to children or are likely to have particular repercussions for trials involving children. It should be acknowledged that children are also entitled to the generic rights in relation to criminal law listed in the Charter, such as the presumption of innocence, the right to be informed of the charge, the right to prepare a defence, the right to examine witnesses and the right to Legal Aid if applicable. However, these rights are not discussed here due to the limited scope of this article. For more information on the likely content of these general rights, see Joseph et al 2000; Butler & Butler 2005.

[3] A child is in need of therapeutic treatment if he or she is between ten and 15 years old, and has exhibited sexually abusive behaviours (Children, Youth and Families Act 2005(Vic) s244).

[4] The appellants also argued that their trial breached Article 14, which prohibits discrimination, in relation to the age of criminal responsibility, and Article 5, which relates to lawful detention, as the appellants were sentenced to a period of detention at ‘Her Majesty’s Pleasure’. However, the limited scope of this article prevents the discussion of these arguments.

[5] It should be noted that the reasoning of the ECHR in this regard appears to be quite contradictory, as the raised dock was held to be a favourable measure provided to assist the appellants in the ECHR’s determination that Article 3 had not been breached (T v United Kingdom at [65]).

[6] In the Trial Division of the Supreme Court, judges may choose whether or not to wig, and counsel will usually take their cue from the presiding judge.

[7] This is not to say that individual judges do not believe that offenders should be treated differently because of their age and immaturity.


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