Monday, 30 March 2009

Identity theft to become a crime

The Crimes Amendment (Identity Crime) Bill 2008 will insert new offences in the Crimes Act 1958 to deal with the increasing problem of identity theft.

The Bill will commence on 1 October 2009 at the latest (assuming it is passed and receives Royal Assent).

It creates offences of:
  • Making, using or supplying identification information
  • Possessing identification information
  • Possessing equipment used to make identification information
Each offence has two mens rea elements:
  1. The accused must be aware, or aware there is a substantial risk, the information is identification information
  2. The accused intended to use it in an indictable offence
The Bill also provides for the Court to issue an Identity Theft Certificate to victims of identity theft.

Surprisingly, the explanatory memorandum doesn't detail the purpose of this provision.

One significant problem faced by victims of identity theft is convincing authorities and financial institutions that it was someone else who defrauded the system. (You can imagine going to the bank: "It wasn't you who applied for $65 000 credit on a platinum card, maxxed it out and then defaulted on the repayments? It was a criminal? Sure it was...")

I guess the certificate will allow victims to prove their identity was stolen, so they can begin to clear their name and restore their credit rating. The Commonwealth Identity Theft Kit (it's supposed to be an anti-Identity Theft Kit) has some more information, as does Choice.

Common police services

When I wrote my earlier post on the Standing Committee of Attorneys-General, I checked out the link to the Ministerial Council for Police and Emergency Management - Police.

The webpage mentions the National Common Police Services. (But, it's not entirely up-to-date, and even links to one Service that no longer exists!) These Services are yet another useful source of information. Some are no longer National Common Police Services, but still have a national focus.

The various Services are:

Add 'em to your bookmarks!

Spent convictions bill

The current edition of Victoria Legal Aid's Briefcase discusses a Spent Convictions Bill.

I know the Commonwealth already has a spent-convictions scheme, as do a few other states. Victoria looked at the issue a few years ago, but I didn't realise there was such a coordinated push to introduce spent-convictions schemes Australia-wide.

(Though the Standing Committee of Attorneys-General does have an online presence, it contains very little detail of the Committee's program.)

I guess this means we should expect our own spent-convictions scheme in the next year or so!

Sunday, 22 March 2009

Spread the word

Do you find the information on the blog helpful? Turns out, the blog doesn't render properly in Internet Explorer 5: there's a suggestions icon on the right-hand side of the page that should always float in view, but you might find it waaaay down the bottom of the page. Feel free to offer ideas or suggest topics.

If you think colleagues might find this blog useful, spread the word.

There won't be very many posts for the next few days: I've a few things to attend to. But rest assured, I've got a stack of stuff to speechify upon shortly.

Friday, 20 March 2009

Defendant ordered to pay prosecution costs

Section 18(1) of the Prosecution of Offences Act 1985 (UK) provides:


(a) any person is convicted of an offence before a magistrates’ court;
(b) ...
(c) any person is convicted of an offence before the Crown Court;

the court may make such as order as to the costs to be paid by the accused to the prosecutor as it considers just and reasonable.

In Balshaw v CPS [2009] EWCA Crim 470 the Court of Appeal (Criminal Division) held that section meant Andrew Balshaw could be ordered to pay £13 600 for an accountancy report commissioned by the Economic Crime Unit of the Thames Valley Police.

As long as the order didn't create a windfall for the prosecution, or amount to a tax or fine in disguise, it was just and reasonable to reimburse the police for the cost of preparing material for use at court.

But it seems that the Courts still distinguish between the costs of an investigation and a prosecution, and it is only the latter that might be compensable.

Despite the different statutory scheme, this might be useful for the prosecution under Magistrates' Court Act 1989 s 131 or Criminal Procedure Act 2009 s 349.

Problems downloading cases?

I discovered today that computers in my building can't download cases from Austlii!

(Dr Manhattan's Edit: it's not an isolated phenomenon. Company or site servers readily identify the kinds of benign or helpful scripts that are there to help you as the kind of internet nasties which are there to steal your credit card information and delete your e-mail Address Book).

Apparently the firewall is now deliberately configured to prevent downloading Word documents from the internet! It's not just restricted to Austlii: I found I couldn't download Word documents from other web-locations.

The 'solution' is to individually apply for Austlii's removal from restricted access!

I can't imagine any justification for prohibiting access to a publicly-available site. Particularly one that is amongst the most popular and widely used in Australian legal circles. And especially when it stops us from accessing the lifeblood of our profession, that relatively minor piece of information so coyly and obscurely termed The Law. And even though we have all used it for many years now.

We can only hope that sanity prevails.

Thursday, 19 March 2009

Changing plea

I remember many moons ago when I first encountered this then-strange phenomenon, when an accused person asked to withdraw their plea of guilty. I had never heard of it, and my instinctive reaction was to insist it wasn't possible. Fortunately, rather than expose my ignorance, I kept quiet and went away to investigate.

Now that I think about it, there is a certain logic to it. If a person pleads not guilty and then wants to plead guilty, there is never any quibble. If that can happen, then logically so can the reverse. Of course, for various reasons, courts are loath to let people say "I'm guilty" and then change their mind: witnesses fade away; the search for evidence stops; complainants relax and begin the sometimes-necessary process of forgetting or suppressing memories of the incident. But, in appropriate cases it can occur. Generally, it should only happen when the plea didn't truly reflect that the defendant realised their guilt. That might happen because:

  • they were poorly advised

  • they were misled or deceived

  • there was no admissible evidence they committed the crime alleged

  • they didn't mean to plead guilty (It's hard to imagine how someone might accidentally say, "Yeah, I did it", but apparently it happens.)

In the event you encounter such an application, this template might help your response.

Wednesday, 18 March 2009

Propensity evidence and uncharged acts

I just finished reading through R v Sadler [2008] VSCA 198.

It's an interesting case from the Court of Appeal on two main issues.

The first issue was about the permissible extent of cross-examination going to credit under s 37 of the Evidence Act 1958. (The equivalent in the new Evidence Act 2008 is found in ss 103 and 104.)

The second issue was about the use of uncharged acts. Sandler was accused of raping his defacto, who was previously a prostitute and heroin addict. The defendant (through his counsel) applied to cross-examine the complainant and accuse her of still using heroin when she complained she was raped.

The Court of Appeal considered the questions could be relevant not only to her credit, as permitted under s 37, but also about her capacity to observe or recollect the incident. (But just how much heroin does the Court of Appeal thinks a woman need consume before she is no longer capable of observing a penis in her vagina when she doesn't want it there?) For those reasons, the Court considered the trial judge made a mistake by not letting the defendant ask those questions in cross-examination.

The discussion is interesting. It deals with the extent of cross-examination, and just how much latitude should be given the cross-examiner (harking back to Wakeley v The Queen (1990) 93 ALR 79, without citing it). It also covers the corresponding obligations on the cross-examiner under Browne v Dunn. And it covers just how much the cross-examiner is obliged to disclose instructions or the basis for cross-examination.

On uncharged acts, the Court reviewed Pfennig, and s 398A of the Crimes Act, and a later High Court case: R v HML (2008) 245 ALR 204; [2008] HCA 16.

I haven't read HML — but I'm putting it on my increasingly lengthening list of to-read cases. As for Sadler, I need to re-read it again. But I reckon there's a little bit of judicial tension evident. The Court of Appeal is careful to say "High Court, we acknowledge you are right. But...we don't think HML applies in Victoria."

The upshot of that discussion is our Court of Appeal thinks relationship evidence comprising uncharged acts is admissible to provide 'context' to charges before a court, whereas the High Court doesn't like that idea! I must admit, propensity arguments do not feature in the vast bulk of cases I see at my office.

Is that your experience? Have you tried using propensity evidence in a case, or tried to prevent it being admitted?

Friday, 13 March 2009

Public nuisance

Public nuisance is an offence contrary to common law. It is an indictable offence: McKell v Rider (1908) 5 CLR 480 at 485 per Griffith CJ. It may now be heard summarily: Magistrates’ Court Act 1989 s 53(1A).

The public element requires the nuisance affect the community or public to the extent that it should be the responsibility of the community to fix it: Attorney-General v PYA Quarries [1957] 2 QB 169 at 189 and 191; R v Madden (1975) 61 Cr App R 254 at 256.

Many of the cases are old, so take care before considering them today. Statutory equivalents might exist. Or, social standards might be so different that the offence no longer occurs.

There are four categories of public nuisance.

1. Interfering with comfort, enjoyment or health of the public

Examples of this category of the offence are:
  • Trespassing on school grounds after-hours and sniffing glue: Sykes v Holmes [1985] Crim LR 791
  • Making a bomb-hoax by telephone: R v Madden (1975) 61 Cr App R 254
  • A rock-concert or rave party that disturbs neighbours: R v Shorrock [1994] QB 279
A person might be liable for acts done on their land creating a nuisance — even if the acts were done by a trespasser or resulted from natural causes — if they fail to take steps to eliminate or prevent them: R v Shorrock [1994] QB 279.

A lessor may remain legally responsible for tortious acts done on the land by a tenant if at the time the lessor agreed to part with possession and control of the land, it was reasonably foreseeable the tenant was likely to commit acts constituting a public nuisance: Aussie Traveller Pty Ltd v Marklea Pty Ltd [1998] 1 Qd R 1 at 12 per McPherson JA.

2. Endangering public safety

  • Keeping a ferocious dog unmuzzled
  • Keeping gunpowder or explosive in dangerous proximity to streets or houses: R v Taylor (1742) 2 Str 1167
  • Having an unfenced excevation near a highway: Hardcastle v South Yorks Ry & River Dun Co (1859) 4 H & N 67
  • Negligently blasting stone in a quarry that throws large stones and endangers people in nearby houses and streets: R v Mutters(1864) L & C 491
  • Going abroad in a public street armed without lawful occasion: R v Meade (1903) 19 TLR 540

3. Outraging public decency

Also categorised as offending public morals, decency or order.

Outrage is more than 'merely' offending or shocking reasonable people; it is concerned with minimum standards of decency: Shaw v DPP [1962] AC 220.

The public-element of this offence requires:
  1. The act is done in a place open to the public or in public view; and
  2. The act was or could have been seen by two or more people who were actually present (the two-person rule): see R v Hamilton [2008] 2 WLR 107 at [31]; Rose v DPP [2006] 1 WLR 2626; Shaw v DPP [1962] AC 220; [1961] 2 WLR 897.
Examples are:
  • Filming up women's skirts: R v Hamilton [2008] 2 WLR 107
  • Performing oral sex in a bank foyer at 1 am: Rose v DPP [2006] 1 WLR 2626
  • Publishing advertisements inviting meetings for homosexual sex could constitute a conspiracy to outrage public decency: Knuller (Publishing, Printing and Promotions) Ltd v DPP [1973] AC 435
  • A gallery-showing of Human Earrings made out of a freeze-dried foetus of three to four months’ gestation: R v Gibson; R v Sylveire [1990] 2 QB 619; [1991] 1 All ER 439

4. Unlawful treatment of dead bodies

  • Leaving a person unburied: R v Vann (1851) 2 Den 325; R v Stewart (1840) 12 A & E 773 at 778; Jenkins v Tucker (1788) 1 H Bl 90
  • Preventing the burial of a corpse, such as concealing a body and so preventing burial: R v Lynn (1788) 2 TR 733; R v Hunter [1974] QB 95

Criminal Procedure Act proclaimed

As predicted, the Criminal Procedure Act 2009 is now proclaimed.

Details are available on the OCPC website from the 2009 commencement book.

The Act received assent on 10 March 2009; Chapter 1 commenced operation on 11 March 2009.

The remainder is to commence on either a date to be proclaimed, or else, 1 January 2011.

Proclamation dates are recorded in the:

Thursday, 12 March 2009

Point-to-point speeding offences

Broadmeadows Magistrates' Court started dealing with point-to-point or average-speed speeding offences late last year, and will continue to do most of them (along with Seymour), because the point-to-point cameras are on the Hume Highway.

The offence is committed against Rule 20 of the Road Rules. (That means the prosecution must prove how the speed limit was established as prescribed in Rules 21 – 25: DPP v Juchnowski [2008] VSC 181; Ciorra v Cole (2004) 150 A Crim R 189.)

You can download the Road Rules from VicRoads (individual chapters) or from the Government Gazette (full version).

Average-speed offences are proved by certificate under the Road Safety Act 1986 s 78. They're actually quite straightforward. All they require is tender of:

  1. Proof of speed: s 78
  2. Proof of road distance — certificate — prescribed form: s 78A(1)
  3. Proof of these matters without calling oral evidence:
    1. (a) Speed: s 83A certificate
        i. Printed image: s 83A(1)(b)
        ii. Message by prescribed process: s 83A(1)(b). Proves time at first point, and then at second point. Total time established by subtracting one from the other
        iii. Calculation prescribed: Road Safety (General) Regulations 1999 reg 313A
      (b) Vehicle registration — printed image: s 83A(1)(b)
  4. Driver identity: Road Safety Act 1986 s 66 & 84BC (operator onus). Effective user statement and other provisions in Part 6AA apply as for any operator-onus offence.

All these certificates are proof in the absence of evidence to the contrary.

The phrase “to the contrary” means “to the opposite effect”. In my view, to be evidence to the contrary the evidence must at least be accepted by the tribunal of fact as having some weight: DPP v Cummings (2006) 46 MVR 84; [2006] VSC 327 at [35] per Kellam J.

Note though the certificates are not conclusive proof — merely proof.

Tuesday, 10 March 2009

Evidence in family violence applications

From what I've seen so far, there is an increase in applications under the Family Violence Protection Act 2008, and an increase in the work required of s 45 applicants.

Applications can be brought by police, by unrepresented affected family members, by guardians (in the case of children) and by affected family members with the assistance of legal counsel. Not surprisingly, the statistics show that applications which are made by the police and by represented applicants have better prospects than those made by unrepresented litigants.

Also unsurprisingly, whatever brings the matter before the Court, evidence to decide interim and final order applications.

One boon in the new legislation is the provision for affidavit evidence:
  • s 55 for interim orders
  • s 66 for final orders
Magistrates' Court (Family Violence Protection) Rules 2008 Order 8 prescribes the form, content and filing of affidavits under those two sections. It also permits (but doesn't oblige) the Court to rely on an affidavit if there are problems with it.

The affidavit must be served on:
  • the applicant or respondent
  • adult affected family member or protected person
  • a parent or guardian, if they consented to the application
The affidavit must be served:
  • by post
  • by fax
  • by email, if provided under s 85(1) of the Act
I think it could also be served by mail or fax if the recipient consents: Electronic Transactions (Victoria) Act 2000 s 8.

There is no official form for an affidavit yet. This might be acceptable. It uses the general layout from civil proceedings. If you do suggest applicants use it, please stress it is not a fill-in-the-blanks form: it requires a little bit of forethought and some free narrative work.

But if used correctly, it can avoid the requirement for personal attendance and oral evidence.

Confiscation applications

I had to re-visit the Confiscation Act s 32 today.

It provides that the Director of Public Prosecutions or an appropriate officer may apply for forfeiture of tainted property when a person is convicted of a Schedule 1 offence.

An appropriate officer is either the Director of Public Prosecutions or the Chief Commissioner of Police.

That authority is delegated under Police Regulation Act 1958 s 6A.

The Instrument of Delegation is available from the homepage at VPM > Policies, Procedures and Guidance > Delegations > Miscellaneous.

This can be handy for those "Can they really do that?" moments.

Saturday, 7 March 2009

Improving advocacy teaching?

Dr Manhattan's Edit: We can always do advocacy better. And I do love a well-placed semi-colon. I'm going to reflect on what's written below, and try to fashion a post (or possibly something bigger) on this subject for 2010.

The thing which I have found striking here is that the quotes that Elucubrator relies on to demonstrate effective structure are so very striking and persuasive not just becuase of the stylistic tricks but also because of the strength of conviction that we remember (or imagine) that the words were spoken with.

Is it possible to develop an oratory style which is both detached and sincere? Or is it only possible to convey one or the other as the occasion requires most?

Something to think about in the new year.

What do you think of our material on advocacy? I was never really happy with the chapters on Advocacy. To me, they focus on mechanical things that are really about protocol and procedure. So their only real relationship with 'advocacy' is to provide ways of not alienating the Bench by breaching accepted protocol.

But that is hardly a recipe for doing a good job of persuading.

I reckon there are three things we can focus on.

1. Effective voice use

I remember some stuff I read in the past about report writing referred to Style, Tone and Level. I think we can use something like that. The idea of 'level' is about appropriately addressing the intended audience. For example, I might direct a subordinate to do certain things, but request a superior to allow others.

2. Language and effective speaking

One of the successful techniques used by good advocates is subjunctive mood in their speech. (As opposed to imperative and indicative.) It's the failure to understand and use it which, in my observations, alienates the Bench to many junior prosecutors and new lawyers alike. I know most folks' eyes glaze over at discussions of grammar, but I still believe that in the Court room we must both know what we are doing and what is required, rather than hope to stumble across successful techniques. So much easier to learn it if we know the words to describe what we are doing! Subjunctive mood is closely related to the Level I mentioned above at point 1: it is an appropriate way to address the Bench, which is superior to the mere advocate.

Also, as I stumble across rhetorical terms, I think many techniques of formal rhetoric can be used to good effect. For example, asyndeton, meaning ommitting conjunctions between parts of a sentence. Churchill is one good example:

we shall fight on the beaches,
we shall fight on the landing grounds,
we shall fight in the fields and in the streets,
we shall fight in the hills;
we shall never surrender.

Caesar is another:

I came; I saw; I conquered.

Chiasmus is another: grammatical constructions or concepts repeated in reverse order.

A classic example of chiasmus is John F Kennedy:

ask not what your country can do for you;
ask what you can do for your country.

Another aspect of voice control is RSVP: rhythm, speed, volume, pitch.

It seems lower pitch conveys authority and credibility. High pitch — and the querulous Australian rising-inflection — can sound shrill and bombastic.

3. Psychology

The last thing we can do better is to formalise the importance of dissociation or emotional detachment.

Some advocates can't divide their sense of self from the role they take on. To criticise their argument, or their submission, is to criticise them.

The advocate's mantra, "Those are my instructions," captures that idea of what we strive to achieve: advocating for those we represent, without necessarily emotionally committing to the argument.

Can we do better? Would these things help? Or are we doing alright?

Keeping up-to-date

The constant battle for most of us is keeping up-to-date with new legislation and new cases.

I know of no simple way to monitor state legislation other than to regularly visit the various legislative websites. (Dr Manhattan Edit: "What about subscribing to us, Elucubrator? What could be easier than that?")

You can subscribe to Commonwealth legislative changes.

For cases, there are so many ways that it's easy to be overwhelmed.

  1. Lexis Nexis Daily judgments notifier — chose the jurisdiction and area of law, and receive regular emails notifying you of new matching judgments
  2. Use the recent decisions function on Austlii
  3. Australian Institute of Criminology alert services
  4. WLR daily — new judgments from UK courts. Use the watch that page subscription button at the bottom of the page for a daily email advising of new judgments
  5. National Policing Improvement Agency Digest — monthly round-up of policy, legislation and cases affecting policing in the UK

There are others, but most remain subscription-based or members-only.

Researching United States law

Some judgments — most notably Michael Kirby's decisions in the High Court — refer to United States judgments in their reasons.

I confess I have no familiarity with the US legal system other than a vague understanding they have a Federal system similar to ours. (Here's an interesting aside: did you know that aside from Australia, only the USA and a handful of other countries have States? Every other country in the world subdivides itself into provinces or something similar! This is often a source of confusion for Australians when we deal with international law — such as human rights law — where states are synonymous with nation-states.)

My former university has a very straightforward yet informative site describing the US legal system and how to conduct basic US research. Although we don't have any access to these resources, it means we can at least understand the application of US law when we encounter it.

To make sense of the citations, the New York University School of Law has a Guide to Foreign & International Legal Citation available for free download.

Friday, 6 March 2009

Do you ever need English judgments?

I have a contested hearing in a bit over a week, where one issue is the return of a subpoena seeking all complaints or findings made against one of my key witnesses.

Happily for me, I wrote some commentary on precisely this topic in Chapter 12 on subpoenas.

A number of the cases I want are English ones. Perhaps you've experienced the difficulty of getting them?

We used to subscribe to the Authorised Reports (the ACs and QBs amongst them) on CD-ROM, and the All England Reports (All ER) in hardcopy, but both were cancelled. We still receive the Weekly Law Reports (WLR) in hardcopy.

For around the same price as the hardcopy of the WLR, we could subscribe to the Authorised Reports and WLR electronically. That would provide statewide access to them for all of us.

Would you use them? Should we try — again — to push for this?

House of Lords to become a retirement home?

The Poms do things a little differently to us. (No offence JS.)

Their upper house of Parliament also doubles as the ultimate appeals court in the land.

But only the twelve Law Lords perform the judicial business of the Lords.

All that is about to change.

The date for this change is now set. Come October 2009, the Supreme Court will be the, erm, supreme court of the United Kingdom...

This is quite a change. The House of Lords has heard appeals since 1621.

It won't make a great deal of practical difference to us. But we will start seeing references to a different Court name in English reports.

Wednesday, 4 March 2009

Magistrates' Court launches new website

I'm not certain when it happened, but sometime either yesterday or today, the Magistrates' Court launched a new version of its website.

The menu structure seems much the same, but now there are Quick Links on most pages, leading to additional information or downloads.

I found a new handy Quick Link on the Practice and Procedure page: Court Coordinators provides email links for Court Coordinators at each metropolitan and country court.

I guess most of us already have the email address of our local Coordinator. But not everyone does. And I reckon few of us have the email address of all Court Coordinators across the state. This could be useful.

Tuesday, 3 March 2009

Free citator

A colleague sent me this gem of a tip last week. Austlii has a free citator: LawCite.

It's not perfect. For example, searching for Pitt v Baxter (2007) 34 WAR 102 in LawCite took me to Amaca Pty Ltd v Hannell! Yet, when I searched for R v Bassett [2008] EWCA Crim 1174, LawCite returned it while Lexis Nexis AU did not.

It has the advantage of being free. That's a pretty big advantage. It's also fast. Much faster than the commercial databases, because it's largely text-based.

I won't rely solely on LawCite. But then, I try not to rely solely on Lexis Nexis or FirstPoint, because they both have slightly different coverage. On 11 March 2009 Austlii will run a seminar on using JustCite at Owen Dixon chambers in the Neil McPhee room (where the Bar Readers moots are run). Obviously aimed at barristers, but I reckon if asked nicely they might let other practitioners come along. Apparently, bringing a wireless-enabled laptop is a boon.

[Edit] Since first writing this post, it seems Austlii has further refined it's search engine. If you now search for 34 WAR 102, you will return the correct result: Pitt v Baxter [2007) 34 WAR 102. (I have now changed they hyperlinks above to the correct entry for Amaca Pty Ltd v Hannell just to prevent confusing someone clicking on it.)

That's a good thing. It means Austlii is constantly refining and tweaking its search engine and improving its accuracy. That makes it even better in my opinion.

Let me google that for you

Something I came across today:

Let me google that for you.

Type in a search phrase, and then send it to the recipient who will see a google search window, with the very search they could have done entering it, and then returning the results.

Yes, sarcasm is the lowest form of wit.

But, sometimes, it is also the most appropriate.

Much to talk about?

Well, this seems to have kicked off with gusto.

Reading the posts, I realised what I was thinking of setting up was a traditional sort of blog where folks comment on posts. I started removing author-access for folks...and then I thought, "Why not give everyone author access?"

What do you think? Should we all be able to create new posts, and comment on them? It seems a good idea. The only downside I can see is that we can quickly create so much material, it's hard to keep up with it.

But I'm a firm believer it is better to give people too much information, rather than not enough. It's not as if we can't search a blog.


Filling a void...

After much wailing, wringing of hands, and gnashing of teeth, I decided the best way to tackle the dearth of information we're getting is to do something about it myself.

I set this blog aside about 2 years ago, thinking I could use it for something useful.

It seems the time is ripe to use it.

What do you think: is it a good idea? Can we make use of this?