Friday, 18 December 2009

VGSO human rights portal

We said we'd finish blogging on 18 December, so I figure I can sneak this post in before our recess! (Though Feedburner will email it to many of you tomorrow on 19 December.)

Catching up on my RSS feeds today I came across a Victorian Government feed-link to the Victorian Government Solicitor's Office Human Rights Portal.

I understand from colleagues this has previously been available to folks within the Victorian Government — seems it's now available to the world at large. I don't know when it happened, but I knew you'd want me to tell you so you'd have some summer reading to tide you over till our return next year!

I also want to add my voice to Dr Manhattan's comments and say thanks for your support to all of you who read or subscribe to our blog, and a big thanks to our commentators too! I hope you all have a great Christmas and New Year. Cheers!

Blogging off

Thanks to all the contributors, commentators and well-wishers who have chimed in to make QCIC everything it has been this year.

As we prepare to close out the year, a reminder that there's a number of ways to search for previous posts that you've seen here and want to read again.

On the right side of the page you'll find the CONTENTS and BLOG ARCHIVE boxes. Some company servers don't like these scripts and refuse to open them. Try the LABEL CLOUD or the Google SEARCH facilities just above them on the right if that's the case.

If you remember the name of a post you're looking for, click on the Sitemap on the left side of the screen in the box marked PAGES. All the titles of all the posts so far can be found there, arranged alphabetically.

If all that fails, you're always welcome to drop us a line (details under Contact Me in the PAGES box) and I'll try to help you find what you're looking for.

See you in February!

Thursday, 17 December 2009

Tipping the scales of justice

Anyone who’s practiced in the summary jurisdiction for more than five minutes will have had the pleasure of appearing before one or other of our more interventionist magistrates.

Sometimes it’s just annoying, as for instance, your cross-examination is going along quite nicely thank you, gates are being closed one after the other, and the magistrate, unable to contain him or herself, asks the $64,000 question for you. Other times it’s extremely helpful, as, when often happens, the train of thought being pursued by either end of the bar table (or, indeed the witness box) slips from the tracks, and the magistrate nudges it back on line.

However, it becomes another matter altogether when interjections from the bench move into the realm of outright interference, and make a fair (to both sides) trial impossible.

The WA Supreme Court in the person of McKechnie J, delivered a stinging finding upon the behaviour of a magistrate during a contested hearing in Wragg v Bond [2009} WASC 383. Large chunks of the transcript are reproduced in the case, and one can imagine the frustration felt by defence counsel. (Despite the obvious enjoyment he felt in watching a defence barrister suffer, the prosecuting sergeant was, in my opinion, derelict in his duty in not intervening on his opponent’s behalf) It’s important to note that Wragg brought the appeal, not because “the magistrate was biased, but that the magistrate’s conduct led to a miscarriage of justice because there was an unfair trial.”

McKechnie J,

7. In R v Hircock [1970] 1 QB 67 Lord Justice Widgery said:

There is in our judgment a very important distinction between conduct on the part of the presiding judge which may be regarded as discourtesy and may show signs of impatience - and the conduct which cannot be commended in any way but which does not in itself invite the jury to disbelieve the defence witnesses and conduct which positively and actively obstructs counsel in the doing of his work.

8. The magistrate's conduct actively obstructed counsel. Lawyers who appear in court should not be shrinking violets and should be robust enough to pursue their case with vigour, if necessary, against a degree of antagonism from the bench. Judicial officers after all are human and occasionally slip. Sometimes there is little counsel can do to deflect a judicial officer: Hobbs v C T Tinling and Co Ltd [1929] 2 KB 1. This was such a case.

We’ve all put up with this kind of thing plenty of times, or watched as it happens to our learned opponents. Despite the defence counsel being the victim in Wragg, the principle of a fair trial, and an advocate being able to present a case and test that of their opponent, applies both ways.

Wednesday, 16 December 2009

You'd have to be Einstein ...

If you have already found the time to crack open (or download) the new Evidence Act 2008 you may have come to the conclusion that you'd need to be Einstein to figure out all of its contradictory and laborious provisions.

You might be right.

Justice Clifford Einstein has been a QC since 1987 and was appointed a justice of the Supreme Court of NSW in 1997. His Honour has, for obvious reasons, followed the development of the Evidence Act 1995 (NSW) with keen interest and presented various speeches and presentations in the course of its evolution. A useful summary of some key observations can be found in an address on Civil Issues in Evidence which he gave to a NSW Judicial Commission seminar back in 2000.

It caught my eye because of its title - Understanding the Evidence Act 1995 - A Daunting Task!

Care needs to be taken when analysing some of the detail provided (and it is, of course, concentrating on civil law). But there's a lot of good contrasts provided between the existing common law positions and the new quasi-codified statutory approach, useful for helping to get your head around the changes conceptually.

Historical gazettes online

I came across this little gem the other day, discovering that the State Library of Victoria now has historical copies of the Government Gazette online at

It contains Victorian gazettes from 1836 to 1997. (The current Victorian gazettes cover 1998 to now.)

Historical gazettes are still occasionally useful. I still remember the trouble I had many years ago finding a copy of the Shrine of Rememberance Regulations 1979 for a colleague. (I never did find them at the time). It turned out they were published in the Government Gazette, not as a statutory rule (and hence, not subject to the ten-year sunset clause that statutory rules are).

Tuesday, 15 December 2009

You don't need a blood test: Terry v Johnson & anor [2009] VSCA 286

Last week the Court of Appeal delivered its decision in Terry v Johnson & anor [2009] VSCA 286, another case dealing with discretionary exclusion from evidence of a Certificate of Analysis.

On 27 November 2003 the police pulled Mr Terry over as he was driving in Heidelberg. They took him to Heidelberg Police Station. He was breath-tested. The breath analysing instrument showed he had a blood-alcohol content of 0.127%

Mr Terry gave evidence that straight after he blew into the instrument, it seemed to have some sort of malfunction — described at [11] as "loud rasping noises like metal grinding on metal, and then I could hear what appeared to be the sound of something being crushed or crunched".

He said he was concerned the instrument might not properly analyse his breath sample, so he asked for a blood test.
I then gave evidence that I asked Senior Constable Warr how long it would take to arrange for a blood test? He said: “It could take all night”. Senior Constable Warr then said words to the effect also that there is commonly a difference between breath and blood results anyway. I then gave evidence that I asked Senior Constable Warr: “So if I have a blood test, what difference is there between the breath and the blood readings, higher or lower?” I then gave evidence that Senior Constable Warr said in reply that: “In my experience blood is always higher”.

I then gave evidence that after Senior Constable Warr informed me that the blood test might take all night to arrange, and furthermore that the result of analysis of a blood test would be higher than the breath analysis, I felt that having a blood test would be futile and not in my best interests to undergo. I gave evidence that I felt very disappointed after being informed of the opinion of Senior Constable Warr.

Mr Terry's evidence was accepted on these points.

Mr Terry argued that the evidence of the breath analysis ought to be excluded from evidence, relying on DPP v Moore (2003) 6 VR 430.

In Moore's case the driver also claimed he was talked out of a breath test by the police. (In the Magistrates' Court, the police denied discouraging Moore from asking for a blood test, but the appeal proceeded on the basis that they did.) Moore was decided on 29 July 2003 — several months before Mr Terry was interecepted.

In Moore, the Court of Appeal decided if a breath-analysis operator dissuaded or discouraged an accused from exercising their right to a blood test after a breath-test, the Certificate of Analysis could be excluded from evidence — even if a s 58(2) notice was not served.

Up till then, public-policy discretion to exclude applied to cases when the police did something illegal or inappropriate and obtained evidence as a result of that impropriety. In Moore's case, the impropriety occurred after they obtained the the breath sample and analysis. The majority held that the Bunning v Cross public-policy discretion to exclude existed in such cases, as the misconduct was part and parcel of the obtaining of the evidence from the breathalyser.

The effect of Moore was the extend public-policy discretion to transactions after inculpatory evidence is obtained, albeit close in time and place to the transaction that obtained that evidence.

Moore only considered a charge contrary to Road Safety Act 1986 s 49(1)(b) only. Consequently, there was some (but not much, in my opinion) uncertainty it might not apply to offences contrary to s 49(1)(f). That was because the offence doesn't necessarily require a Certificate of Analysis to prove the driver's concentration of alcohol: Furze v Nixon (2000) 2 VR 503.

Terry v Johnson seems to resolve that possibility, holding that the Certificate of Analysis should have been excluded for an offence against s 49(1)(f).

But, because the Certificate of Analysis is not, strictly, required for that offence, is this correct? Perhaps not strictly, but I suspect in any event, a court would legitimately be entitled to exclude the sample of breath from evidence, not just the certificate.

The real concern of the Courts in cases such as these (once the factual dispute is resolved) is that many people place a lot of store in what police officers, cloaked in the mantle of authority, tell them about their legal rights and the likely results. A bit like, Obi Wan Kenobi saying, "These aren't the droids you're looking for..."

Just substitute that with, "You don't need a blood test..."

When the Evidence Act 2008 commences on 1 January 2010, exclusion of this sort of evidence will probably be argued under s 138 and maybe s 135 (perhaps arguing that the procedure is unfair rather than the evidence itself).

Monday, 14 December 2009

The CPA is almost here ... if only we knew what it says

Elucubrator's inspired prediction has been proved correct - but by the slimmest of margins. Reprints of the amended Criminal Procedure Act 2009 will not be released before it comes into effect on New Year's Day, but they have been printed and will be available from Jan 4.

In an ideal world it would have come out much earlier. The amending Act, the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009, contains so many changes to the original that it would be dangerous to rely on the current print. I've got no objection to doing my own statutory interpretation but I draw the line at having to assemble the legislation myself like a mecchano set.

Last week's InBrief advised that updated reprints will be released on 4 January 2010. Other acts which are affected will be reprinted with their amendments as the year goes on.

Both AustLII and Victorian Legislation and Parliamentary Documents only consolidate their legislation when it comes into force. (I don't know how long this takes, I assume it's an automated function). So updated versions of the Criminal Procedure Act 2009 will also not be available on their services until the new year.

The CPA comes into force having had a lot less scrutiny than the Evidence Act it arrives with. Nobody has been game to attempt to produce an annotated textbook because of uncertainty about what the act would eventually contain. The Judicial College have produced a Victorian Criminal Proceedings Manual which does not follow the CPA section by section, but instead provides an overview of the legislation and broad statements of legal principle. The JCV added six new chapters to their Manual last week.

SIM City

Today Leslie Ross will take up his role as Special Investigations Monitor (SIM).

One of the roles for the SIM is the investigation of complaints made about the Office of Police Integrity. The OPI is responsible for investigations into allegations of misconduct by Victoria Police, including their internal investigations wing, the Ethical Standards Department.

Adopting a broad definition of policing, it might be said that the Special Investigations Monitor polices the police who police the police who police the police who police (read it again; it's gramatically correct).

Judge Ross takes over from David Jones, who has held the position since its creation in 2004.

Sunday, 13 December 2009

Legislation Watch: Mental Health List

Last Tuesday the Magistrates' Court Amendment (Mental Health List) Bill 2009 was introduced into the Victorian Parliament.

The Bill proposes to amend the Magistrates' Court Act 1989 and set up a Mental Health List within the Magistrates' Court of Victoria as a three-year pilot project. Approximately three hundred candidates will undergo rehabilitation and treatment under the supervision of the Court instead of entering a plea.

Section 4T would read,

4T Eligibility criteria

(1) To be eligible for a criminal proceeding to enter the Mental Health List, an accused must meet—

(a) the diagnostic criteria; and

(b) the functional criteria; and

(c) the needs criteria.

(2) The diagnostic criteria are that the accused has one or more of the following—

(a) a mental illness;

(b) an intellectual disability;

(c) an acquired brain injury;

(d) autism spectrum disorder;

(e) a neurological impairment, including, but not limited to dementia.

(3) The functional criteria are that the accused has one or more of the diagnostic criteria which causes a substantially reduced capacity in at least one of the following areas—

(a) self-care;

(b) self-management;

(c) social interaction;

(d) communication.

(4) The needs criteria are that the accused would derive benefit from receiving coordinated services in accordance with an individual support plan that may include one or more of the following—

(a) psychological assessment;

(b) welfare services;

(c) health services;

(d) mental health services;

(e) disability services;

(f) drug treatment services or alcohol treatment services;

(g) housing and support services;

(h) other services that aim to reduce the risk of offending or re-offending.

If it is satisfied that they have successfully completed the treatment it has directed the court has the discretion to discharge the accused without making a finding of guilt against them. The process can be described as a kind of hybrid between the existing court processes of deferral and diversion.

There's a catch, of course. Whilst participation in the program is not considered an admission of guilt, s 4X(2) would provide that,

(2) Despite subsection (1), a proceeding in the Mental Health List must be transferred out of the List to a contested hearing in the Court if at any stage the accused—

(a) pleads not guilty; or

(b) indicates an intention to plead not guilty.

So an accused who wishes to assert their innocence, including putting forward a claim of mental impairment, would not be eligible to participate.

An accused person who is charged with an offence classified as a sexual or serious violent offence by the Sentencing Act 1991 would also not be considered. Other than this, and the restrictions at 4T, the legislation seems designed to make admission as flexible as possible.

Friday, 11 December 2009


Last week a colleague pointed out that LexisNexis now has a platform offering unreported judgement notifiers on mobile devices such as BlackBerrys — or is that 'BlackBerries'? — and iPhones.

You can see the service here.

It provides for searches on mobile devices, but doesn't replicate the very-handy daily unreported judgments notifier available for free.

Are computer hard-drive contents a 'document'?

On 8 December 2009 the Supreme Court decided DPP v Chao [2009] VSC 562.

Mr Chao was accused of possessing child pornography found on a computer hard-disk-drive (HDD) he left with a computer repairer. (Possession wasn't argued in this appeal, but it's settled law that the offence requires knowing possession: Police v Kennedy (1998) 71 SASR 175; R v Land [1999] QB 65 at 69 – 71.)

The police relied on evidence from a police officer (who since left the police force) who had examined the HDD and its contents.

Mr Chao's barrister objected to evidence of the contents of the HDD.

[7] At this stage of the proceedings senior counsel for the respondent indicated that he objected to any further evidence being given in that context “...because any information that Mr Knott has derived has been derived from the computer and, unless certain prerequisites are satisfied, what he reads from the computer and information he derives from the computer is inadmissible.” He then referred the Magistrate to s 55B of the Evidence Act (1958) identifying the requirements and submitting that what is read from a computer is not admissible unless the pre-conditions are satisfied or by the prosecution being able to “satisfy various common law requirements”.

Section 55B of the Evidence Act 1958 relevantly provides:

55B. Admissibility of statements produced by computers

(1) In any legal proceeding where direct oral evidence of a fact would be admissible, any statement contained in a document produced by a computer and tending to establish that fact shall be admissible as evidence of that fact, if it is shown that the conditions mentioned in subsection (2) are satisfied in relation to the statement and computer in question.

(2) The said conditions are—
(a) that the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by any person;

(b) that over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived;

(c) that throughout the material part of that period the computer was operating properly or, if not, that any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and

(d) that the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.

Ultimately, Lasry J accepted that s 55B applied to the evidence the prosecution wanted to adduce, and decided the magistrate was correct to exclude it.

Section 55B is in Part III, Division 3 of the Evidence Act 1958. Part III, Div 3 will be repealed with effect from 1 January 2010 by s 15 of the Statute Law Amendment (Evidence Consequential Provisions) Act 2009.

When it goes, the 'equivalent' provisions in the Evidence Act 2008 will be ss 48, 146 and 147. (In appropriate cases, s 161 — discussed in my post here — will also apply.)

Because those provisions are different in their purpose, I suspect the effect of DPP v Chao will be fairly short-lived.

In any event, on my reading of the case, I think the argument in Chao incorrectly categorised the evidence and the Court made the wrong decision.

Section 55B applies to documents — which can encompass HDD-contents, by virtue of the definition in s 3 — when they are to be tendered in evidence in place of oral evidence. Note the opening words of sub-section (1): "In any legal proceeding where direct oral evidence of a fact would be admissible..."

The effect of s 55B is to exclude documents from evidence, in place of oral evidence on the point to be proved, unless the prescribed criteria are met.

It says nothing about evidence of the content of a document, or about the direct oral evidence of the facts that might also be produced by computer and contained in that document. To argue that the oral evidence was inadmissible because the the document was, was to put the cart before the horse.

But, because these provisions are about to be repealed, it won't matter much in about 21 days.

addendum A few weeks ago lawyer Peter Black wrote an interesting article on his blog, E-courts only work with e-judges and e-lawyers. I think some of his points there might have applied in this case.

Thursday, 10 December 2009

Summary Case Conferencing

Yesterday the Chief Magistrate issued another — presumably the last for this year — Chief Magistrate's Direction, Number 6 of 2009.

It concerns summary case conferences under s 54 of the Criminal Procedure Act 2009, due to come into force in three weeks.

Direction No 6 is light on detail. Really it just repeats the information already contained in the legislation. It describes something called a Summary Case Conference Service run by Victoria Police, but doesn't go into detail about what this is or how it works. Presumably it is similar to the pilot projects already running at Heidelberg, Ballarat, Dandenong and Ringwood Magistrates' Courts, and will vary in form from one place to the next.

It says that a summary case conference must occur before a matter is sent to contest mention or a request for a full brief is made, but only where a Notice to Appear has been served. According to the overview document circulated by the Steering Group a couple of weeks ago, police from different areas will start using Notices to Appear at different times through 2010.

Where a Notice to Appear hasn't been served, a magistrate or registrar may still direct the parties to conference. Where an accused is unrepresented, the Magistrates' Court may direct a conference only when satisfied this is appropriate.

The December draft of the Magistrates’ Court Criminal Procedure Rules 2009 has also been posted on the Victorian Bar's website.

Old convictions soon to be spent?

Waay back in March I mentioned that Victoria doesn't have a spent conviction scheme (aside from the ten-year limit on alleging Children's Court criminal histories, currently in Crimes Act s 376(4), and from 1 January 2010, in Criminal Procedure Act 2008 s 3 under the definition of previous conviction).

I think most, if not all, States and Territories (aside from Victoria) and the Commonwealth have a spent-convictions scheme. They're gaining favour because of the effect convictions can have on travel and employment. Stephen Warne also has a useful post on criminal records on the Australian Professional Liability Blog.

The UK Supreme Court blog has two interesting articles that raise some of the issues associated with spent-convictions schemes.

The first deals with police records of spent convictions and their disclosure to prospective employers. The second concerns a recently decided appeal about Enhanced Criminal Record Certificates, which seem to be similar to Victoria's Working With Children Checks.

In November 2007, the Standing Committee of Attorneys-General announced the release of a Model Spent Convictions Bill.

I can't find anything concrete on the Victorian Government's plans for this, but it's hard to believe our reformist Attorney-General will miss such an opportunity. So we might well see a Bill to implement some or all of model scheme, either next year or after the next election (subject to electoral vicissitudes).

Coincidentally, the UK's Home Office just recently published a report, Publicising Criminal Convictions, which argues for greater disclosure not less. I suspect that's part of the political law-and-order tussle occurring over there right now.

For my own part, I'm not sure where to draw the line between keeping and disclosing past convictions or considering them spent. I can see arguments for and against. After all, sentencing occurs in courts open to the public. (See for example Magistrates' Court Act s 125, which gives meaning to the great aphorism, "Justice should not only be done but should manifestly and undoubtedly be seen to be done," from R v Sussex JJ; Ex parte McCarthy [1924] 1 KB 256 at 259.) But that doesn't necessarily mean that court records resulting from that are necessarily public documents: Herald & Weekly Times Ltd v Magistrates' Court of Victoria (2000) 2 VR 346.)

But I do think that spent conviction schemes should not apply inside the court room, because they can deny sentencers the full range of information they ought to have when determining an appropriate penalty.

For example, it's settled law that a mature first-offender of previously good character is entitled to rely on that in mitigation of their punishment.

If a person has, in fact, previously been convicted but that conviction is 'spent' and not put before the sentencer, then the offender receives the same benefit as a genuine first-time offender despite their previous offending.

However, the model Bill drafted by SCAG accounts for that, providing in cl 3 of Schedule 2 (Exclusions) that the provisions about disregarding spent convictions and not disclosing them does not apply to proceedings before a judicial authority. That's appropriate, IMHO.

Wonder if we'll see this in Victoria in the near future?

Wednesday, 9 December 2009

DNA evidence and the prosecutor's fallacy

Edit: Although not limited to the US, some of the most glaring applications of the prosecutor's fallacy have occurred there. It's a problem that continues, with the US Supreme Court having just had to decide another case (McDaniel v Brown [2010] USSC No 08-559) where an expert on behalf of the State used the traditional flawed reasoning [at 9]:

And when the prosecutor asked Romero, in a classic example of erroneously equat-ing source probability with random match probability, whether “it [would] be fair to say . . . that the chances that the DNA found in the panties—the semen in the panties—and the blood sample, the likelihood that it is not TroyBrown would be .000033,” id., at 460, Romero ultimately agreed that it was “not inaccurate” to state it that way, id., at 461–462.

The Supreme Court held that other, more persuasive evidence supported the juries' finding, despite the misleading evidence that had been given.

Today Chief Commissioner Simon Overland announced that his police won't be using DNA evidence in any cases run between now and the end of the year.

Overland denied that it was a result of concerns of over the reliability of the evidence, but there's no doubt that the case of Farah Jama gives cause for concern about the validity of forensic processes. Mr Jama served fifteen months of a six year sentence after he was convicted by a County Court jury substantially relying on contaminated DNA evidence, before his release was ordered by the Court of Appeal this week.

Contamination of forensic evidence is not new. During the investigation into the disappearance of Jaidyn Leskie, a DNA sample from an unrelated investigation was transferred to the boy's clothing. At that time, various promises were made about taking measures to restore integrity to the system.

Leaving aside issues of provenance, even where the science has been carried out flawlessly evidence can be difficult to follow. It almost always relies on estimates of probability which are outside the experience of the general population, requiring jurors to depend on the accuracy of information provided to them by experts.

Cross on Evidence [at 9090-9095] has a useful discussion on the difference between probability when it's used in a legal context as opposed to a statistical one. The author points out that while statistical probabilities are endorsed as a way of predicting outcomes in things like economics and insurance, the courts often find discussion of mathematical probabilities to be of little assistance (in fact, a distraction) to deciding the case before them. Forensic sciences such as blood analysis and DNA, where expert evidence is commonly received and accepted, are an exception to this general rule.

The science involved in locating and testing DNA is the (relatively) easy part to understand. The hard part is putting the information to any practical use. Say, for example, a sample is located at a crime scene and matched to a test sample provided by a suspect. The result comes back a perfect match. The boffins say that the likelihood that a member of the general population would match the sample is 1 in 2,000,000. But what does that mean?

It might be tempting to say that there is only a 1 in 2 million (or 0.00005%) chance that the suspect is innocent. This is an example of what is known as the prosecutor's fallacy. It was a term developed (though not coined) by Jonathon Koehler in his article One in millions, billions and trillions. The fallacy incorrectly assumes that because the odds of an innocent person being matched to the sample are tiny, the possibility of their innocence is therefore equally remote.

A variation on the theme is where the improbability of a given event is used to prove an unrelated fact. Say you are involved in a plane crash and you of the 500 passengers are the only person to survive. Despite being innocent, you are accused of causing the plane to crash using unknown means. The only piece of evidence against you is the tremendous odds against one person living where all others perished. The odds against your good fortune are not identical to the odds against your innocence.

In R v Doheny and Adams, Phillips LJ of the English Court of Appeal said [at

The Prosecutor's Fallacy

It is easy, if one eschews rigorous analysis, to draw the following

1. Only one person in a million will have a DNA profile which matches that of the crime stain.

2. The defendant has a DNA profile which matches the crime stain.

3. Ergo there is a million to one probability that the defendant left the crime stain and is guilty of the crime.

Such reasoning has been commended to juries in a number of cases by prosecuting counsel, by judges and sometimes by expert witnesses. It is fallacious and it has earned the title of ‘The Prosecutor's Fallacy’ ...

Taking our example, the prosecutor's fallacy can be simply demon­strated. If one person in a million has a DNA profile which matches that obtained from the crime stain, then the suspect will be 1 of perhaps 26 men in the United Kingdom who share that characteristic. If no fact is known about the Defendant, other than that he was in the United Kingdom at the time of the crime the DNA evidence tells us no more than that there is a statistical probability that he was the criminal of 1 in 26.

The significance of the DNA evidence will depend critically upon what else is known about the suspect. If he has a convincing alibi at the other end of England at the time of the crime, it will appear highly improbable that he can have been responsible for the crime, despite his matching DNA profile. If, however, he was near the scene of the crime when it was committed, or has been identified as a suspect because of other evidence which suggests that he may have been responsible for the crime, the DNA evidence becomes very significant. The possibility that two of the only 26 men in the United Kingdom with the matching DNA should have been in
the vicinity of the crime will seem almost incredible and a comparatively slight nexus between the defendant and the crime, independent of the DNA, is likely to suffice to present an overall picture to the jury that satisfies them of the defendant's guilt.

The reality is that, provided there is no reason to doubt either the matching data or the statistical conclusion based upon it, the random occurrence ratio reduced from the DNA evidence, when combined with sufficient additional evidence to give it significance, is highly probative. As the art of analysis progresses, it is likely to become more so, and the stage may be reached when a match will be so comprehensive that it will be possible to construct a DNA profile that is unique and which proves the guilt of the defendant without any other evidence. So far as we are aware that stage has not yet been reached.

It's stating the obvious to say that we're still not there yet.

What does "de facto binding" mean?

What will be the strength of NSW decisions on their Evidence Act 1995 (which is not identical with our new Act) in Victorian courts? Will those cases be binding or merely persuasive?

It's impossible to argue that they won't, at the least, be highly persuasive. There's no point re-inventing the wheel. The decisions of other jurisdictions (and, to a lesser extent, the various reports that preceded the creation of the UEA) will be referred to frequently in legal argument. But will judges and magistrates be obliged to follow interstate precedents, or just be assisted by them?

The Laws of Australia

There's judicial authority that suggests, in most cases, that they must follow. In Australian Securities Commission v Marlborough Gold Mines (1993) 177 CLR 485 the High Court spoke with one voice in saying [at 4],

...[U]niformity of decision in the interpretation of uniform national legislation such as the Law is a sufficiently important consideration to require that an intermediate appellate court - and all the more so a single judge - should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong.

This extends national uniformity beyond mere judicial comity to a binding legal principle. It's been applied in a variety of contexts: corporations law (Powell & Duncan v Fryer & Anor [2001] SASC 59) disclosure (Workcover NSW v Law Society NSW [2006] NSWCA 84), property (Anderson v Wilson [2000] FCA 394) and motor traffic law (DPP v Moore (2003) 6 VR 430), just to name a few. There is only one common law in Australia: Lipohar v R (1999) 200 CLR 485.

This point about both statutory interpretation and the common law was made even more expressly in the High Court's decision in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 [at 135],

Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law.

(French CJ had not yet taken up his appointment in the High Court when Farah was handed down. He recently approved this view in extra-judicial remarks in his 2009 State of the Judicature address.)

Apples and Oranges?

This doesn't mean that NSW and Victoria will become the legal equivalent of conjoined twins, though. I've said elsewhere that there are traps involved in blindly relying on Commonwealth or NSW authorities to resolve questions of evidentiary law in this state.

First, because nationally uniform legislation always starts off with the intent of unifying legislation, but it rarely stays that way. The Road Rules are a classic example of this. Often the differences in the various Evidence Acts can be subtle, but important.

The second reason interstate decisions can only be of limited application to our law can be illustrated with a simple example. Say a submission is being made that a court ought to exercise its discretion under s 138 to refuse to admit evidence in the exercise of judicial discretion, cases like R v Fleming [2009] NSWCCA 233, R v Naa [2009] NSWCA 851 or R v Helmhoudt [2001] NSWCCA 372 may assist with understanding how the court might exercise its discretion. But it would be a mistake to rely on the bare facts of any of these cases and attempt to draw non-existent parallels between the NSW cases and the matter under consideration, for the obvious reason that what might be considered unlawful in NSW may be lawful in Victoria, and vice versa.

It's arguable that what constitutes improper conduct for the purposes of s 138 can be established to a national uniform standard. But it won't be possible to determine what is lawful or unlawful without reference to the particular laws of the jurisdiction. There will often be these kinds of threshold issues that need to be resolved before the proper application of the Evidence Act even falls to be considered.

No principle of law or comity requires that the distinct statutes of each state be drawn together so that they can be treated as identical, when they are not. It follows that care needs to be taken when comparing factual scenarios from north of the border.

Monday, 7 December 2009

JCV online test

Last week the Judicial College of Victoria unveiled a self-test that practitioners can use to test their knowledge of the new Evidence Act 2008.

Unless you have a photographic memory access to the Act will be required to complete it.

It's not comprehensive. Consisting of 12 questions covering relevance, hearsay and tendency evidence, I'd say its main purpose is to underline just how unprepared many practitioners are going to be for the changes commencing Jan 1st.

Sunday, 6 December 2009

Double-booked appointments

There hasn't been much reaction (at least that I'm aware of) in response to the recent news that Justice Dodds-Streeton of the Federal Court is about to be re-appointed to the bench of the Supreme Court of Victoria.

I haven't heard anyone sounding alarm bells to this unique arrangement that will see her Honour appointed to both State and Commonwealth benches simultaneously, which suggests the legal consequences of this have been thought out very carefully - or, alternatively, haven't been thought out at all.

A few years ago the shared Commonwealth/State cross-vesting arrangements that had been in place since 1988 were struck down by the High Court as unconstitutional in Re Wakim; ex parte McNally (1999) 198 CLR 511. In the Boilermakers' case it was held that Ch III of the Constitution is exhaustive of federal judicial power. The invalidation of that legislation required parliaments to scramble around to prevent a tidal wave of litigation.

Commonwealth courts cannot be vested with any power other than judicial power. This has caused some drama over the years as, following the lead of the US, federal judges have been increasingly vested with extra-curial powers such as the power to authorise search warrants, listening devices and other functions which are considered administrative in nature, rather than judicial. To this end, the award of additional powers has been permitted by use of persona designata, a legal fiction that makes a distinction between awarding powers or duties to a holder of a particular office, rather than the office itself.

This practice was found to have strayed too far in Wilson v Minister for Aboriginal Affairs ("the Hindmarsh Island bridge case"), where the appointment of a Federal judge as a Reporter under the Aboriginal and Torres Straight Islander Protection Act 1984 was held to be invalid. (the High Court's decision is summarised in the Aboriginal Law Bulletin). There doesn't necessarily need to be a conflict of interest between the two roles in order to offend Ch III. (For a detailed discussion of the public policy considerations, see the joint judgement of Brennan CJ and Deane, Dawson and Toohey JJ in Grollo v Palmer (1995) 184 CLR 348).

Forge v ASIC was a corporations case where the High Court considered the division of State and Commonwealth power in light of the Kable doctrine. Having previously decided that the Commonwealth Constitution requires state courts to be fitting repositories for Commonwealth power, the question of how far that enabled the Constitution to regulate the composition or operation of state courts was again raised. (Every self-represented litigant contesting a speeding fine seems to be able to quote the name of this case, but appears not to have read it.)

The appellant in Forge v ASIC, unhappy with the court's judgment, chose to challenge the appointment of the judge who presided over the case. Judge Foster of the Supreme Court of New South Wales had been appointed as an acting judge after reaching the compulsory retirement age as a federal judge. The High Court, with some caution, affirmed the validity of the temporary appointment. In so doing, the High Court affirmed the principle in Kable but found the temporary judicial appointments in NSW did not offend it.

Is there supposed to be a distinction drawn between state and federal courts, or do the cross-vesting provisions of the Commonwealth Constitution make such a distinction superfluous? I'm not going so far as to say the dual appointment will be constitutionally invalid. Given that state courts exercise Commonwealth jurisdiction the two roles seem complementary.

But I'd say it will be a potential appeal point that every party going before Justice Dodds-Streeton (in either jurisdiction) will have tucked up their sleeve.

Tuesday, 1 December 2009

Family violence victims

It's no news flash to mention the increased State (and national) emphasis on family violence.

But it seems this focus is resulting in changes that the legal system was traditionally reluctant to embark on.

Victims as offenders

You might remember a few years ago the notorious case of R v Osland (1998) 197 CLR 316. Heather Osland and her son David Albion planned to kill Frank Osland, Heather's husband and David's step-father. On 30 July 1991 they dug a grave for him, and that evening Heather Osland put sedatives in his food. When he went to bed, David fatally hit him over the head with an iron pipe, and mother and son later buried Frank.

Heather Osland was convicted of murder; David Albion was acquitted of murder by a separate jury. Both Heather and David gave evidence of many years of violent behaviour by Frank Osland, and relied on that to support their case of self-defence and provocation.

Osland's case was the one that brought 'battered woman syndrome' to the public consciousness, though it wasn't accepted in her particular case.

Following a Queensland Law Reform Commission review of accident and provocation, the Queensland Parliament decided to take a different tack from that recommended by the Commission, and has just introduced the Criminal Code (Abusive Domestic Relationship Defence and Another Matter) Amendment Bill 2009.

The Bill provides for a new s 304B in the Queensland Criminal Code, which will provide that a person in an abusive relationship who unlawfully kills another person in circumstances that would constitute murder will instead be guilty only of manslaughter.

Although not a complete defence, it goes some way to recognising the effect of continuing violence, especially in those cases where accident or provocation might not be available to a charge of murder. (The provision will not apply to lesser assault charges.)

I'm not aware of any suggestions this change is planned for Victoria, but given Rob Hulls' reformist zeal, I won't be surprised if something similar is considered.

Victims as unwilling witnesses

Sometimes, for various reasons, family violence witnesses decide they no longer wish to be a prosecution witness.

This happened in DPP v Nair [2009] ACTCA 17. (You might remember Dr Manhattan commented on it briefly in cross-examination of own witnesses.)

Edwin Nair was charged with assaulting his then girlfriend, Janelle Smith, and her friend Shannon Cooke. Shannon Cooke made a four-page statement to the police with a fair bit of detail about the alleged assaults.

At the trial, her evidence was much more vague and unhelpful to the prosecution.

The prosecutor applied to cross-examine her, relying on Evidence Act s 38 — which is the same as our Evidence Act 2008 s 38.

The judge rejected that application, and the DPP appealed.

[28] The Director submits that the trial judge erred in law in considering whether to grant leave under s 38(1) of the Evidence Act in that he required the prosecution to show that the witness was unwilling to tell the truth. In other words, he imposed a requirement relevant to the common law principles dealing with hostile witnesses, but not relevant to an application under s 38 of the Evidence Act.

[29] The trial judge was satisfied that Ms Cooke’s evidence fell within the terms of s 38(1)(a). In other words, he was satisfied that Ms Cooke’s evidence was unfavourable to the prosecution. The trial judge was also satisfied that Ms Cooke’s statement made on 8 October 2006 was a prior inconsistent statement within s 38(1)(c). The trial judge did not address the factors in s 38(6). He said, in the course of the second exchange, that the factors in s 192 were not relevant. Precisely what he meant by this is not entirely clear. At all events, he did not address the factors in s 192(2). The trial judge appears to have proceeded on the basis that he was not at the stage of considering the discretionary factors relevant to whether to grant leave because a necessary element to a successful application under s 38 of the Evidence Act was not present. The prosecution submitted that the necessary element imported into the exercise by the trial judge was the common law requirement of an unwillingness to tell the truth or at least the whole truth. That may be so, or it may be that the trial judge had in mind a variation of the common law requirement such as a motive in the witness or a reason for the witness to give untruthful evidence. It does not matter which of these alternatives is correct. Either way, the trial judge has imported into s 38 a requirement (as distinct from a relevant factor in a particular case) that is not justified by the terms of the section.

Besanko J considered the purpose of s 38:

[34] There is no doubt that s 38 was intended to, and does, relax the common law principles as to the circumstances in which a party may cross-examine his or her own witness.

His Honour then considered cases interpreting 'unfavourable', and noted a court considering an application under s 38 to cross-examine needed to consider sections:

  • 38(6)
  • possibly 135 and 137 (general discretion to exclude, and excluding prejudicial evidence), and
  • 192 (leave given on terms)

Here, because the trial judge was satisfied the witness gave evidence unfavourable to the prosecution and made a prior inconsistent statement, leave to cross-examine should have been granted.

[43] In this case, the trial judge was satisfied that the requirements of paras (a) and (c) of s 38(1) were satisfied. In my respectful opinion, the trial judge erred in law in not then proceeding to consider the factors relevant to whether he should grant leave under the section including those set out in s 38(6) and s 192(2) of the Evidence Act. In my respectful opinion, the trial judge erred in law in imposing, as a necessary element of a grant of leave, a requirement that there be evidence of a motive or reason for the witness to give untruthful evidence.

We can probably expect to see s 38 applications feature in quite a few summary family violence cases come 1 January 2010.

Summer holiday

(No, don't worry. I don't intend to link this post to any of Cliff Richard's work.)

It's inevitable that we're going to take a break from posting here over the seasonal holiday. There's three good reasons:

1) We're both taking time off (actually, by the time we suspend posting, I'll already have gone);

2) Time spent re-charging the batteries is always a good investment in the future; and

3) There's nothing to be gained by clogging your inbox full of stuff that simply gets deleted on your return.

In keeping with this site's focus on the summary jurisdiction, it would be appropriate if we took a break when the court rose, and came back when it resumes again next year. But looking at the Magistrates' Court calendar, they're pretty much running straight through, perhaps with a quiet period between Christmas and New Year. Not enough.

So we cast a wider net, and noted the Supreme Court's regular listings in Melbourne, which are grouped around 4 terms - just like the academic year, in fact.

After some discussion, we've decided this year to adopt the Supreme Court's calendar for this website and rise when that Court does (on the 18th December) and resume next year when the Supreme Court sits (the 1st February 2010).

Obviously this means that the Evidence Act and Criminal Procedure Act will have come into force in our absence. But it's unlikely that anything ground-breaking will occur in the first four weeks of its application. And we'll leave the door open to an earlier resumption if anything momentous occurs.

Season's greetings!

Monday, 30 November 2009

Detailing efforts at rehabilitation

Edit: Another cautionary example of the burden that rests upon the accused on sentence is discussed in the judgment of Maxwell P and Buchanan JA in R v Ververis & Ververis [2010] VSCA 7 where one of the grounds advanced was delay. The Court of Appeal restated the principle in R v Merrett, Piggott and Ferrari (2007) 14 VR 392 that delay does focus attention on issues of fairness and rehabilitation. But the Court concluded that in the absence of specific evidence of either it should not be assumed to have taken place.

There are often very good reasons for counsel not to go into too much detail about mitigatory circumstances on a plea. In the busy Magistrates' Court, where dozens of guilty pleas are heard and finalised in the one sitting, there simply isn't the time (and some would say, need) to engage in the sort of extended analysis more common in the higher courts.

But there are also risks in providing insufficient detail to the court, in any jurisdiction. In R v Harris [2009] VCSA 189, the County Court sentencing judge expressed dissatisfaction with a report that was produced indicating that while remanded in custody the appellant had completed the Salvation Army's Positive Lifestyle Program. The report indicated only that the accused had, "been attentive, punctual, [and] willing to put strategies in place to help him deal with problematic behaviour".

That's the problem I have with Port Phillip and people like the Salvation Army. What's involved? Who carries out the course? How detailed are they? What was the accused's response?

The judge's questions went unanswered, and he subsequently referred to the lack of detail in his sentencing remarks. It was advanced on the appeal that the judge had not given appropriate weight to the appellant's completion of the Salvation Army course. The Court of Appeal rejected the argument.

It's fair to say that the work of the Salvation Army is better known in the summary jurisdiction than at the County Court. Many magistrates would probably find further information about the Positive Lifestyle Program unnecessary.

Even so, there's a plethora of non-government agencies, running courses and providing assistance of various kinds. Courts are entitled to disregard assertions of mitigation if not satisfied about what has been done and what it has achieved.

Saturday, 28 November 2009

Childrens' Court too adversarial?

On Thursday the State Ombudsman tabled his Own motion investigation into the Department of Human Services Child Protection Program.

In the report, Mr Brouwer said,

In my view the appropriateness of a legal system that generates such a degree of conflict ought to be reconsidered by government and an assessment made as to whether better outcomes for children and families could be achieved through an improved model.

According to Thursday's Age, while the Ombudsman had plenty of criticism for the Department of Human Services, he concluded that the low retention rate of child protection staff (leading to a lack of experience and accountability) was in large part due to their experience with the court.

In an account which will surprise nobody who appears in the summary jurisdiction, George Brouwer related the experience of a DHS worker who said all parties have to attend the Children's Court at 10 a.m. But sometimes they are told later in the day that there is no time to hear their matter, and need to come back the following day. This affects the time workers have with families. He cited one case where, over 10 months, there were 16 court hearings and nine court reports completed by DHS about just one family.

The report identifies DHS resourcing as an issue, but also says,

However it may be difficult for any government to adequately resource the child protection program whilst it expends so much of its resources responding to the forensic examination of this activity. Additional resources, without substantial systemic reform, is likely to merely lead to more families becoming caught up in a resource intensive and often counter-productive adversarial process. In my view the government ought to carefully consider whether it is getting the best value for its investment in the child protection system.

There's no doubt that the protection of vulnerable children is an emotive issue. George Brouwer doesn't want a system where children are removed from their parents without some right of review.

The existing system, with all its shortcomings, is probably in for some change.

Friday, 27 November 2009

Charge Book not binding

After the strong support given to the work of the Judicial College by the Supreme Court, it was only a matter of time before an appeal was brought which relied on a departure from the wording of the Victorian Criminal Charge Book as its ground.

In R v Carter [2009] VSCA 272, the trial judge instructed the jury that,

Moreover, the standard to which you must be satisfied is a high one. It is expressed in words which reflect our understanding of the serious nature of the work of the criminal court. Those words are 'beyond reasonable doubt'. They are words which have been applied by juries in criminal courts for many years. They mean what they say, and any further definition of them would be neither useful nor proper.

This direction complies with the observations made by the High Court in Green v The Queen (1971) 126 CLR 28 about unnecessary explanation of what reasonable doubt is (discussed here in April in Beyond Reasonable Doubt).

The Charge Book has a quite different sample jury direction, that reads [in part],

This is the highest standard of proof that our law demands. It can be compared with the lower standard of proof that is required in a civil case, such as where one person sues another for breach of contract. In that situation, matters only need to be proved on what is called the “balance of probabilities”. That is, they need to be shown to be more likely than not.

The Court of Appeal had little patience for the argument, perhaps seeing a tsunami of appeals based on a departure from the Charge Book looming on the horizon. Weinberg JA (Buchanan JA and Coghlan AJA agreeing) said this,

7 Put simply, the applicant contends that the failure of the trial judge to instruct the jury in accordance with the standard direction set out in the Charge Book gave rise to a miscarriage of justice. The submission comes down to this. The jury may have concluded from his Honour's use of the term 'high' that the standard of proof required in a criminal trial is something less than the highest standard of proof known to the law. In addition, the failure to contrast the ‘high’ standard required in a criminal matter with the lesser standard required in a civil case adds to the risk that they might have done so.

8 The argument faces several hurdles. In the first place, no authority was cited in support of the contention that, when speaking of the standard of proof, the term 'highest' had to be used, immediately followed after the words 'standard of proof', by the expression 'known to the law', failing which the trial will have miscarried. Next, no exception was taken to his Honour's charge. Finally, his Honour had, earlier in the proceeding, instructed the jury that there was a presumption of innocence, and that the applicant was entitled to the benefit of that presumption unless and until the prosecution satisfied them, beyond reasonable doubt, of the guilt of the accused.

9 That is not to say that it is good practice or desirable to depart from the time-honoured formula used repeatedly by judges in this State, and elsewhere, and recorded in the Charge Book. It is only to say that a departure from that practice does not of itself signify a miscarriage of justice.

Or in other words, the use of the Charge Book is to be encouraged, but failure to quote from it will not necessarily be condemned. Though the case wasn't cited, Winneke P's comments in DPP v Foster; DPP v Bajram [1999] VSCA 73 [at 29] about the use of meaningless 'ritual incantations' seems appropriate in this context.

Thursday, 26 November 2009

Conflicts of interest

Victoria Legal Aid is the largest 'firm' of solicitors in the state. Though this must carry a number of advantages, one of the downsides is the almost inevitable occurrence of client conflict.

So endemic has the problem become, it's become standard practice to have an alternative practitioner present or on call at sittings of the Magistrates' Court to act on behalf of clients that VLA would typically act for, but a client conflict precludes them from doing so.

From time to time the suggestion is made that VLA policy should be modified to allow VLA to act for both parties to a dispute. Particularly where counsel is briefed, there's some attraction to going down this path.

An article that barrister Mark Bender wrote for the Murdoch University Electronic Journal of Law a few years ago effectively puts the negative case.

(Incidentally, Bender is also a fellow blogger who does excellent work at his site MarkBender.Info keeping his posts 'tweet-sized' for maximum impact).

In Taking up the Cudgels, some recent (sometimes embarassing) examples of failures to recognise glaring conflicts of professional interest are discusssed. The article highlights that it's not just the potential disclosure of confidential information that exists; simply knowing which train a client catches every morning can be useful for the service of process.

Wednesday, 25 November 2009

Selective answering

Section 89 of the Evidence Act 2008 is sure to generate some fresh discussion about whether selective answering can be a valid source of inferences about an accused's consciousness of guilt.

The prohibition on the selective answering of an accused in response to police questioning being used to infer a consciousness of guilt - or at least the impermissibility of jury directions to that effect - is a settled issue: R v Smith, Alford and Schevella 50 A Crim R 434 and R v Russo [2004] VSCA 206. However, s 89(2) of the new Evidence Act will still allow evidence of selective answering for purposes other than to demonstrate consciousness of guilt (such as to provide proper context, as in R v Barrett [2007] VSCA 95).

89. Evidence of silence

(1) In a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused-
(a) to answer one or more questions; or

(b) to respond to a representation-
put or made to the party or other person by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence.
(2) Evidence of that kind is not admissible if it can only be used to draw such an inference.
(3) Subsection (1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding.

(4) In this section, inference includes-

(a) an inference of consciousness of guilt; or
(b) an inference relevant to a party's credibility.
Evidence can be given that an accused exercised their right to silence, but if this happens the trier of fact needs to be given a direction that the accused's silence cannot be used to infer guilt.

In Woon v R (1964) 109 CLR 529, the selective answering of the accused during police interview was the subject of comment by the trial judge. The High Court decided that the transcript of the interview was admissible and probative. Though it contained some evidentiary value as to facts in issue, its principal value was as evidence of the accused's responses indicative of alleged consciousness of guilt.

Some have difficulty reconciling Woon with the later Victorian authorities. The Court of Appeal have declined the attempt: R v Boros [2002] VSCA 181. The solution probably lies in recognising that it is the answers given, not the silences, which the High Court deemed admissible and probative.

In Woon, Kitto J (Owen J also adopting this reasoning),

The point here is that, whether or not an accused person's reactions to statements or questions put to him in the course of an interview indicate either that he admits any particular fact suggested to him or only in his own mind recognizes that it is a fact, those reactions may have evidential value upon the ultimate question of fact in the case because they show, when considered in the light of the circumstances, that he has a consciousness of guilt of the crime charged. It cannot be that while the jury may be allowed to take account of conduct of the accused person as showing his state of mind upon a subsidiary or primary question of fact they may not take account of it as showing his state of mind upon the ultimate question of fact. In the present case, in my opinion, it was in accordance with law that the jury was invited to consider the significance of the applicant's answers to such questions as he chose to answer and to treat as material upon which to found a verdict any revelation they might think those answers afforded of what they would have discovered upon the question of guilt or innocence if (to repeat the trial Judge's vivid expression) they could have looked inside the applicant's mind.

Taylor J,

Accordingly as I see the present case the primary question is whether it was open to the jury to infer from the words and conduct of the applicant upon his interrogation, viewed in the light of the associated facts proved against him, that he had revealed his guilt, or as the learned trial judge put it, that he had showed or indicated that he was conscious that he was guilty of the crime alleged. The case is somewhat unusual but it does not, in my view, involve the consideration of any important question of law.

Menzies J,

2. Furthermore, although the decisive question for the consideration of the jury in the case against the applicant was whether his answers to the questions which he chose to answer showed his participation in the crime proved by other evidence, I consider that the learned trial judge's direction that the jury should consider whether the applicant's answers indicated a consciousness of guilt was correct for, if those answers did so, then, in the circumstances here, what the applicant said could be regarded as a confession of his guilt notwithstanding that it was not so intended. As his Honour said to the jury, "A man may not intend to show his hand, gentlemen, but on the other hand he may just do that very thing".

Windeyer J,

4. In the present case there was no evidence against Woon other than his answers to the police and his possession of some money, notes, which may or may not have been some of those stolen from the bank. The Supreme Court said that his answers to questions were "selective". They were. But he had been told he need not answer any questions unless he wished to do so. He had replied "you can ask me any questions you like and then I will decide whether or not I will answer them". The interrogation then proceeded. He answered some questions. He refused to answer others. In the result some of his answers appear evasive. Some questions he answered by asking in effect for an assurance that what the other men were said to have told the police had been said in such a way as to implicate him. That is to say, he appeared to be trying to find the strength of the case against him. He carefully refrained from admitting any fact that he thought the police could not prove. In all this he seems to have been cautious and astute. I entirely agree that his answers to questions asked should be considered as a whole, and in the context of his refusals to answer other questions. But could the fact that he carefully chose the questions he would answer justify an inference of his participation in the crime with which he stood charged? He expressed surprise that in their statements to the police the other men should have implicated him. "Do you mean to say that they have put me in." . . . "It just surprises me that they would put me in." Something might turn on the tone of voice in which these things were said. But of that we know nothing. Taken literally the utterances are equivocal. They could be expressions of surprise that his participation in the crime had been disclosed by his confederates, or they could be expressions of surprise at the suggestion that they should have falsely implicated him. In one important matter he told lies. He said at first that he did not know his alleged accomplice Radcliffe. In fact, as later he admitted, he knew him well. Moreover he had sent telegrams to him, using code names and false addresses. These telegrams were apparently expressed in some sort of code. They were certainly capable of leading to an inference that he and Radcliffe were engaged in some secret enterprise. But it seems to me that showing that there was an association - and, let it be assumed, a guilty association - between Woon and Radcliffe does not really show that Woon was a participant, either as principal or accessory, in the breaking, entering and stealing from the bank. The evidence admissible against Woon may support an inference that Radcliffe and he were partners in a criminal enterprise. But does it support a conclusion that, beyond reasonable doubt, Woon was a participant in this crime? I doubt this. However, as I have said, I would refuse leave to appeal.

The combined effect of the decisions in Woon shouldn't be seen as abandoning any long-held legal precept, or even being out of step with later decisions. As Taylor J put it, "[T]he case does not involve the consideration of any important question of law".

Reviewing them, it is clear that the court considered the answers and not the silences to be the probative aspect of the accused's conduct; pressing his interrogators for information about how much they knew, evasiveness, delaying tactics and outright proven lies. This is where the consciousness of guilt is found; in the statements, not the silences.

Someremarks of Windeyer J are the source of the confusion,

3. A question asked of a person accused or suspected of a crime, or a statement made in his presence, is admissible if he is invited to, or might reasonably be expected to, respond in some way indicative of denial or of acceptance. It is not that what is said to the accused can of itself be evidence against him. But his response or reaction may be; and that is why what is said to him is admitted. His words, silence or conduct may amount to an admission of the truth of what was said. This is subject to the qualification that no inference adverse to a man can be drawn from his refusal to answer questions which he has been expressly told he is not bound to answer or from his silence after he has been told he need not speak at all.

The references to, "might be expected to, respond in some way indicative of denial or of acceptance" and, "his ... silence .... may amount to an admission of the truth" are liable to be misinterpreted, drawing attention to what wasn't said rather than to focus on what was. It borrows from the permissible adverse inference that attaches to silence in the face of an accusation made by parties of equal standing, Parkes (1976) 64 Cr App R 25, adopted in Victorian law in R v Alexander (1994) 2 VR 249

If there was confusion about the decision in Woon created by the remarks of Windeyer J (and to a lesser extent, Kitto J), the issue was clarified by Dawson J in Petty v R; Maiden v The Queen (1991) 173 CLR 95:

Of course, in speaking of drawing adverse inferences in Woon, both Kitto and Windeyer JJ. had in mind an admission of guilt, or the disclosure of a consciousness of guilt, to be inferred from the behaviour of the accused. They were not referring to the evaluation of an accused's evidence in the light of his previous silence, if that may be said to involve the drawing of an adverse inference. But I should add that, in my view, if a person remains silent intending to exercise his right to do so, his silence cannot amount to an admission of any kind or display a consciousness of guilt, whether or not a caution has previously been given.

While the principle may be settled, the application of it isn't always consistent. In R v Merlino [2004] NSWCCA 104 evidence of the accused not making an immediate complaint was held to be relevant for the purposes of evaluating a story that was held to be inconsistent, and cross-examination on the issue was held to be appropriate [67 - 77].

Theatrical performances

"All the world's a stage,
And all the men and women merely players;
They have their exits and their entrances;
And one man in his time plays many parts ..."

Jaques (As You Like It Act II, Scene VII, William Shakespeare)

Everyone agrees that good advocacy is a performance. It logically follows that some of the skills and training of actors can be useful to advocates.

In his article Advocacy: Performance of the Law, James E. Smith pulls together and compares these two disciplines. His conclusions may prove useful to advocates still developing their styles, and provide food for thought for more experienced practitioners.

Monday, 23 November 2009

Drinking & driving - no honest and reasonable mistake

Offences under s 49(1)(f) of the Road Safety Act 1986 are absolute liability offences. The assertion of a claim of honest and reasonable mistake has no effect against such a charge: Skase v Holmes (Unreported, Supreme Court of Victoria, 11 October 1995, Vincent J).

In that case, Vincent J aligned drink-driving with the offences of speeding (Kearon v Grant (1990) 11 MVR 377), overloading a vehicle (Welsh v Donnelly [1983] 2 VR 173) and driving without valid car registration (Pilkington v Elliot (Unreported, Supreme Court of Victoria, 26 September 1991, Coldrey J) . The absence of a requirement on the prosecution to prove any intent to a charge of exceeding the prescribed concentration of alcohol has become the accepted law in Victoria. That's been the case for so long, it's difficult to imagine any other legal position being adopted.

You might think a system which allows Proudman v Dayman as a defence would make the enforcement of .05 legislation unworkable. Many drink-drivers would not intend to place themselves over the limit, particularly since alcohol influences judgment. However, many jurisdictions allow a claim of honest and reasonable mistake, and their road tolls, etc. aren't very different to ours.

In NSW, drink-driving is an offence of strict liability. Defences of honest and reasonable mistake are available, and sometimes successful. In DPP v Bone [2005] NSWSC 1239, the accused was found not guilty of drink-driving charges after convincing a magistrate that his beer had been spiked with vodka without his knowledge. The DPP appealed but the magistrate was found to have been justified in his decision.

In Mendolicchiu [2008] NSWDC 182, the District Court considered an accused's claim that he had inadvertently consumed a cough mixture containing alcohol, and that this combined with other alcohol had led to a reading in excess of the prescribed limit. The District Court applied the precedent in Bone, as well as a line of Tasmanian authority, and quashed the conviction.

I emphasise that such defences would not succeed if argued in Victoria. But our law could easily have gone the other way.

Sunday, 22 November 2009

Google is coming ...

Google announced on its homeblog last week that it's getting into the law business in a big way.

Is this good news? We don't know. In the short-term, Google moving into the neighbourhood will probably free up access to US law for lawyers and non-lawyers alike, as happened in other countries thanks to free access movement members like AustLII and BAIlII.

Taking the longer view, more than a few people are saying this is the last nail in the coffin for commercial subscription services. Eventually, they might even put pressure on the free access services that rely upon donations and sponsorship for their continued existence.

Another player in the law information field is always welcome. An information monopoly isn't.

Wednesday, 18 November 2009

Improper questions

At the Chancellor's Lecture last week, former Court of Appeal judge Charles Stephen QC made reference to improper questioning in cross-examination. He made specific mention of Heydon J's comments in Libke v R (2007) 230 CLR 559. I read the case for the first time this week.

The Evidence Act 1958 has allowed a broad discretion in the way that questions are asked in cross-examination. Questions may be objected to if indecent or scandalous (s 49), or if considered intended to insult or annoy (s 40). In my experience, these provisions are rarely called upon.

The new Evidence Act 2008 is similar, though s 41 does provide that improper questions must be disallowed if asked of vulnerable witnesses, defined as children and the cognitively impaired. (A summary of the changes to statutory improper questioning can be found on page 4 of the Spring edition of the Bar Quarterly, where Stephen Odgers SC provides a rapid-fire description of some of the changes).

Other than these provisions there aren't many general rules placed on the way questions are asked. There are lots of evidentiary restrictions - hearsay, privilege, opinion, etc - and common law discretions which allow courts to restrict the evidence they receive, but in practice a wide latitude is given to practitioners in the way they conduct their cross. As the High Court recognised in Wakeley and Bartling v The Queen (1990) 93 ALR 79, “the limits of cross-examination are not susceptible of precise definition”: Mason CJ, Brennan, Deane, Toohey and McHugh JJ at 86.

Unfortunately, there's an altogether too common misconception which is often found at both ends of the bar table that, while examination-in-chief is governed by rules and expectations of propriety, cross-examination is open slather. But cross-examination that merely abuses and confuses a witness is not effective advocacy, no matter how dramatic it might be to watch.

In Libke, the accused stood trial for rape of an intellectually impaired woman. He called himself as a witness and was cross-examined by the Crown prosecutor. The questioning serves as a template of what not to do in cross-examination, whether acting as counsel for the defence or the prosecution. While all four justices criticised the cross-examination in strong terms, Heydon J grouped each form of inappropriate questioning under its own heading. What follows is a long quote, but I think it effectively summarises some of the most common traps cross-examiners fall into [beginning at 121]:

Offensive questioning

The most striking characteristic of the cross-examination in this case was its wild, uncontrolled and offensive character.

A prosecutor must "conduct himself with restraint and with due regard to the rights and dignity of accused persons. A cross-examination must naturally be as full and effective as possible, but it is unbecoming in a legal representative - especially in a prosecutor - to subject a witness, and particularly an accused person who is a witness, to a harassing and badgering cross-examination." One reason why there is a rule prohibiting this type of questioning was put thus by Wigmore:

"An intimidating manner in putting questions may so coerce or disconcert the witness that his answers do not represent his actual knowledge on the subject. So also questions which in form or subject cause embarrassment, shame or anger in the witness may unfairly lead him to such demeanor and utterance that the impression produced by his statements does not do justice to his real testimonial value." (emphasis in original)

Another was advanced by Lord Langdale MR when he deprecated "the confusion occasioned by cross-examination, as it is too often conducted", for it tended to "give rise to important errors and omissions". Yet another was suggested by an American judge: "a mind rudely assailed, naturally shuts itself against its assailant, and reluctantly communicates the truths that it possesses."

In this case the questioning was conducted "without restraint and without the courtesy and consideration which a witness is entitled to expect in a Court of law", and, as a result, it was "indefensible". The cross-examination was improper because it was "calculated to humiliate, belittle and break the witness". Its tone "was often sarcastic, personally abusive and derisive". It resorted to remarks "in the nature of a taunt". It amounted to "bullying, intimidation, personal vilification or insult", none of which is permissible.

The cross-examination not only offended these common law rules. Many of the questions were annoying, harassing, intimidating, offensive or oppressive, contrary to s 21 of the Evidence Act 1977.


The cross-examination also contravened the rules of evidence in that many things said by the cross-examiner were not questions at all. To adopt the language of the Ontario Court of Appeal, counsel for the prosecution infringed the rules of evidence when he "regularly injected his personal views and editorial comments into the questions he was asking". One vice of comments made in the course of questioning is that although they may be potentially damaging in the jury's eyes, they are not questions, and thus the witness has no opportunity of dealing with the sting in the comments. Another vice is that the jury may regard counsel as a person of special knowledge and status and therefore pay particular regard to the comments - particularly where it is counsel for the prosecution who chooses "to throw the weight of his office" into the case. The time for comments, at least legitimate ones - for disparaging comments based on evidence or the lack of it can be legitimate - is the time of final address. "Statements of counsel's personal opinion have no place in a cross-examination." The role of prosecution counsel in the administration of justice should not be "personalized". Their own beliefs should not be "injected" into the case. Thus in R v Hardy junior counsel (the future Gibbs J) for one of the accused asked a witness who had attended certain allegedly seditious meetings: "Then you were never at any of those meetings but in the character of a spy?" The future Lord Ellenborough CJ, appearing for the prosecution, objected to this line of questioning. Eyre LCJ said to defence counsel:

"[Y]our questions ought not to be accompanied with those sort of comments: they are the proper subjects of observation when the defence is made. The business of a cross-examination is to ask to all sorts of acts, to probe a witness as closely as you can; but it is not the object of a cross-examination, to introduce that kind of periphrasis as you have just done."

After junior counsel for the accused sent for leading counsel (the future Lord Erskine LC), and the point was debated further, Eyre LCJ upheld the objection:

"I think it is so clear that the questions that are put are not to be loaded with all of the observations that arise upon all the previous parts of the case, they tend so to distract the attention of every body, they load us in point of time so much, and that that is not the time for observation upon the character and situation of a witness is so apparent, that as a rule of evidence it ought never to be departed from ...".

Comments are particularly objectionable when they are sarcastic or insulting. They are even more objectionable when they are statements indicating the personal belief of prosecution counsel in the credibility or guilt of the accused: that is not something to be said in address, and a fortiori is not something to be said during questioning.

Compound questions

Partly by reason of the interspersing of both comments and questions between the accused's answers, and partly by reason of other defects in the form of the questions, some "questions" asked during this cross-examination were not single questions, but were compound questions. "A compound question simultaneously poses more than one inquiry and calls for more than one answer. Such a question presents two problems. First, the question may be ambiguous because of its multiple facets and complexity. Second, any answer may be confusing because of uncertainty as to which part of the compound question the witness intended to address." But compound questions have additional vices. It is unfair to force a witness into the position of having to choose which questions in a compound question to answer and in which order. Cross-examiners are entitled, if they can, to frame questions so as to seek a particular answer - either "Yes" or "No". Even though the answers desired by the cross-examiner to a compound question may be all affirmative or all negative, the witness may wish to answer to some affirmatively and some negatively. To place witnesses in the position of having to reformulate a compound question and answer its component parts bit by bit is unfair to them in the sense that it prevents them from doing justice to themselves. Some "questions" asked in this case contained at least four questions within them.

Cutting off answers before they were completed

On occasion during his cross-examination the accused's answers were cut off either by a comment or by some further question even though it was clear that there was more which the accused wished to say. "Evidence should ordinarily be given without interruption by counsel." The cutting off of an answer by a further question, though always to be avoided as far as possible, can happen innocently when a questioner is pursuing a witness vigorously and the witness pauses in such a fashion as to suggest that the answer is complete; it can happen legitimately if a witness's answer is non-responsive. But very few of the interruptions here can be explained away on these bases. They were usually interruptions of responsive answers, often by offensive observations. The rule against the cutting off of a witness's answer follows from the encouragement which the law gives to short, precise and single questions. It is not fair to ask a question which is disparaging of or otherwise damaging to a witness and to cut off an answer which the cross-examiner does not like. The right of a cross-examiner to control a witness does not entail a power to prevent the witness from giving any evidence other than that which favours the cross-examiner's client.

Questions resting on controversial assumptions

The cross-examiner on occasion alleged that the accused was inventing evidence when in fact the proposition supposedly invented corresponded with evidence given by the complainant in the prosecution case. The cross-examiner also put implicitly unfounded assertions that the accused was being evasive. And the cross-examiner, in putting a question about the accused's dishonesty, wrapped up in it an assumption that there had been an earlier and different piece of dishonesty.

A question put in chief which assumes a fact in controversy is leading and objectionable, "because it affords the willing witness a suggestion of a fact which he might otherwise not have stated to the same effect." While leading questions in the cross-examination of non-favourable witnesses are not intrinsically objectionable, "[w]itnesses should not be cross-examined on the assumption that they have testified to facts regarding which they have given no testimony. Such questions have a tendency to irritate, confuse and mislead the witness, the parties and their counsel, the jury and the presiding judge, and they embarrass the administration of justice." This is because a leading question put in cross-examination which assumes a fact in controversy, or assumes that the witness has in chief or earlier in cross-examination given particular evidence which has not been given, "may by implication put into the mouth of an unwilling witness, a statement which he never intended to make, and thus incorrectly attribute to him testimony which is not his." A further vice in this type of questioning is: "An affirmative and a negative answer may be almost equally damaging, and a perfectly honest witness may give a bad impression because he cannot answer directly, but has to enter on an explanation." Questions of this character are misleading and confusing, within the meaning of such the statutory and common law rules.

Argumentative questions

Another vice in the questioning in this case stemmed from the fact that some of the questions and observations of counsel for the prosecution did not seek to elicit factual information, but rather provided merely an invitation to argument. Examples include: "That doesn't tell us much, does it?", "Look, I'm giving you every opportunity?", "I'll shift to another topic whenever you're prepared to finish it", and "We want honesty at all times, of course". In form these remarks seemed apt to trigger a debate about how much the accused's hearers had been told, whether he was being given every opportunity, whether he had finished a topic, and whether he was being honest. The vice in a particular type of argumentative cross-examination was described thus by the English Court of Appeal:

"One so often hears questions put to witnesses by counsel which are really of the nature of an invitation to an argument. You have, for instance, such questions as this: 'I suggest to you that ...' or 'Is your evidence to be taken as suggesting that ...?' If the witness were a prudent person he would say, with the highest degree of politeness: 'What you suggest is no business of mine. I am not here to make any suggestions at all. I am here only to answer relevant questions. What the conclusions to be drawn from my answers are is not for me, and as for suggestions, I venture to leave those to others.' An answer of that kind, no doubt, requires a good deal of sense and self-restraint and experience, and the mischief of it is, if made, it might very well prejudice the witness with the jury, because the jury, not being aware of the consequences to which such questions might lead, might easily come to the conclusion (and it might be true) that the witness had something to conceal. It is right to remember in all such cases that the witness in the box is an amateur and the counsel who is asking questions is, as a rule, a professional conductor of argument, and it is not right that the wits of the one should be pitted against the wits of the other in the field of suggestion and controversy. What is wanted from the witness is answers to questions of fact."

Like several other of the rules discussed above, the rule against argumentative questioning rests on the need not to mislead or confuse witnesses.

The effect of the rules on the value of testimony

It is not unique in the law of evidence to find that the more closely the rules for admissibility are complied with, the greater the utility of the testimony from the point of view of the party eliciting it. It is certainly the case in this field. The rules permit a steady, methodical destruction of the case advanced by the party calling the witness, and compliance with them prevents undue sympathy for the witness developing. It is perfectly possible to conduct a rigorous, testing, thorough, aggressive and determined cross-examination while preserving the most scrupulous courtesy and calmness. From the point of view of cross-examiners, it is much more efficient to comply with the rules than not to do so.

Specific criticism was reserved for the trial judge who rarely interjected during the cross, and when he did so didn't act to curtail the unfair questioning. The High Court found that the failure of counsel to object to the questioning did not remove the obligation of the presiding judge to ensure a fair trial.

Stephen Charles made the point that improper questioning (of a serious degree) may lead to an unfair trial, an outcome that the trial judge is bound to prevent. It may lead to a conviction being set aside on appeal, and may also have human rights implications.

In R v TA (2003) 57 NSWLR 444, Chief Justice Spigelman made clear that similar duties attach to trial judges to prevent inappropriate and harassing questions being asked of prosecution witnesses [at 446]:

Judges play an important role in protecting complainants from unnecessary, inappropriate and irrelevant questioning by or on behalf of an accused. That role is perfectly consistent with the requirements of a fair trial, which requirements do not involve treating the criminal justice system as if it were a forensic game in which every accused is entitled to some kind of sporting chance.