Thursday, 30 April 2009

Mandatory imprisonment to go?

Edit: Since writing this last year the predictions have largely been fulfilled (see a more recent post Speed interlocks for more).

Mandatory imprisonment is on the way out. The Road Safety Amendment (Hoon Driving) Bill 2010 was passed in the last session of parliament. The same bill introduces the ability for the police to apply for forfeiture of vehicles on the commission of a second licensing offence.

According to the Sentencing Advisory Council, driving whilst suspended or disqualified was the most common principal proven offence in the Magistrates' Court in 2007-2008. That is an astounding statistic considering it is one of very few offences to carry with it a mandatory term of imprisonment on second conviction or finding of guilt.
There has been talk of abolishing the mandatory minimum penalty for some time. It came as no surprise that it was the number one recommendation in the Council's Driving Whilst Disqualified or Suspended: Report. Other recommendations included:
  • increased resources for Automated Number Plate Recognition (ANPR) technology to increase the likelihood of detection

  • the expansion of impoundment and immobilisation powers

  • establishing a specialist list in the Magistrates' Court to deal with repeat offenders

  • reform of the demerit points system

Derryn Hinch spoke with a Research Fellow from the Monash University Accident Research Centre (MUARC) about the issue this afternoon. The Sentencing Advisory Council is suggesting that future enforcement efforts concentrate on taking away offenders' vehicles, rather than their licences.

More online resources

The Australian Professional Liability Blog mentioned a couple of useful online resources yesterday. (I'm chuffed to mention this blog also got a mention!)

I recommend you check them out and either subscribe to or bookmark the ones you find useful:

  1. The Criminal Law Survival Kit, by NSW Public Defender John Stratton. I like his broad division of topics into substantive and evidence law: very logical and neat. (You should also have a look at the material the Public Defenders Office has online. Though focussed on NSW law, it has a wealth of criminal law and advocacy material. One worthwhile article I read a few years ago and recommend is The Ten Commandments of Evidence in Chief.)
  2. Charterblog, an excellent and extremely detailed look at the Charter of Human Rights and Responsibilities and cases that consider it. Aside from the Human Rights Law Resource Centre, this is the only other online commentary resource I know of that for the Victorian Charter. It's understandable but a shame Jeremy Gans didn't keep blogging. (I was interested to see his link to Melbourne University's knowledge transfer. I'm not sure if it's a department, or project, or just an idea — but it sounds useful.)
  3. Don Just, of the Victorian Bar, authors Australian Criminal Law & Process.
  4. Julie Clarke. I subscribed to her blog on competition law and bookmarked her other sites, but I can understand they might not be directly relevant to everyday summary procedure. But...unless you never buy anything at the shops, I think you'll find her Contract and Consumer Law blog useful for your own information about consumer rights and remedies.

Wednesday, 29 April 2009

Wikipedia ain't evidence!

This might be something of a, "Duh, Fred!" statement. But, there is now judicial authority (in America at least) to say that Wikipedia entries may not be used as evidence.

The decision (also available here, in case the first link dies) is an unpublished appellate opinion of the New Jersey Superior Court Appellate Division. That Court explicitly says those opinions don't bind any court and can't be cited in court. It's probably an understatement to say it's use in the USA is limited, and even more so here! (I mentioned a basic introduction to USA jurisprudence in researching united states law.)

I read about this in the MILO forums run by US attorney Ben Stevens. It's mentioned elsewhere in the blogosphere, and I think most picked it up from the New Jersey Law Journal.

Slaw blog explained the reasoning simply: it's potentially easy for a party to edit entries for its own advantage, and hard to verify or challenge the accuracy of the article.

Vexatious litigants

Blogger and barrister Stephen Warne (see failure to call witnesses) writes The Australian Professional Liability Blog. It's a wealth of posts both entertaining and informative.

His blog brought to our attention the remarkable man Brian William Shaw. I don't dare say anything further about Mr Shaw for fear I'll be added to the long and distinguished list of people he's unsuccessfully sued. The history and merits of Mr Shaw's litigation are dealt with thoroughly in the 42-page judgment of Hansen J in Attorney General for the State of Victoria v Shaw [2007] VSC 148.

Victoria first brought in specific powers to deal with vexatious litigants back in 1928. Current provisions allow the Supreme Court to discontinue proceedings or refuse leave to commence proceedings to a person declared a vexatious litigant. Mr Shaw is one of only 15 people subject to such a declaration in the last 80 years.

On 4 December 2008, the Law Reform Committee of the Victorian Parliament tabled its Inquiry into Vexatious Litigants. The Committee recommended statutory authority for registrars to refuse to issue process they consider vexatious, and a right of appeal by the litigant to a judicial officer of that jurisdiction. It also recommended codifying courts' inherent right to permanently stay proceedings for abuse of process (articulated by the High Court in Jago v The District Court of NSW (1989) 168 CLR 23). The Committee said that further clarification of the DPP's ability to take over (and potentially discontinue) a private prosecution under the Public Prosecutions Act 1994 s 22(1)(b)(ii) is also necessary.

The report recommended amending the existing vexatious-litigant legislation to grant new powers called limited litigation orders to all courts and VCAT. It also recommended the Supreme Court, Chief Judge of the County Court, Chief Magistrate, and President of VCAT should have the power to make a wider extended litigation limitation order, but on the application of only the Attorney-General or Solicitor-General.

Good fences make good neighbours

Edit: For a recent example of an incident blown out of all of its original proportion (there have been many, but they rarely make the authorised reports) see the injunctive proceedings of Nadanic v Fotopoulos [2009] VSC 554.

This familiar phrase, which is often misunderstood, was first coined by Robert Frost in his poem Mending Wall. (Coincidentally, it was also Frost who wrote, "A jury consists of twelve persons chosen to decide who has a better lawyer.")

Though Frost intended the statement ironically, it's a truism of modern life that good fences do make for good neighbours, and that bad fences frequently lead to court appearances. Statistics from the Attorney-General suggest that around 25% of anti-stalking applications to the Magistrates' Court involve or began as disputes between neighbours.

These disputes are so common that Victoria has its own Fences Act 1968 about who pays for a fence, and how much they pay. The Act obliges owners of adjoining properties to properly build and maintain fences, and authorises the Magistrates' Court to appoint an arbitrator or adjudicate the dispute if the parties can't agree.

By the time the parties engage barristers and attend court, the opportunity to resolve the dispute between themselves might be long lost. Before that point is reached, the Victoria Law Foundation's advice in Neighbours, the law & you might help avoid litigation.

The Court itself encourages parties to try mediation before asking a magistrate to decide their case.

The Dispute Settlement Centre mediates more than just fencing disputes though, and in some limited cases might offer a better solution to complaints that also fall in the Stalking Intervention Orders Act. This article from The Age has more information.

Tuesday, 28 April 2009

Kettling human rights

A couple of weeks ago I wrote about public nuisance. I guess your experience is similar to mine: we're seeing more common law offences in summary proceedings in the wake of the amendments to permit their summary determination.

The recent G20 summit in London highlights some of the powers provided by the common law — and also the potential for controversy if they're used.

The crowd-control tactic the Metropolitan Police colloquially calls kettling attracted a bit of criticism. (If you haven't seen or heard it, this article in The Guardian is scoring highly on digg and Technorati, along with this one.)

I haven't seen a definitive explanation of kettling, but it seems essentially to be a huge cordon that contains a crowd in one location for up to several hours. Its legal foundation rests on common-law preventative powers for police to prevent breaches of the peace. (Kerry Stephens wrote a very comprehensive article on that topic a few years ago in The Bulletin.)

Despite the criticism of the technique, the English Court of Appeal said it is lawful, in Austin v Commissioner of Police of the Metropolis [2008] QB 660; [2008] 2 WLR 415.

On 1 May 2001 around 3000 demonstrators tried to enter Oxford Circus.

Around 2.15 pm the police threw a cordon around Oxford Circus. No one was allowed to leave without police permission. By 6 pm only around 400 people had been so released. The Court of Appeal described the scene.

[7.] The disruption to shops, shoppers and traffic by the events on that day was enormous. It was a wet and chilly afternoon. Oxford Circus has a diameter of about 50 metres, all of which is taken up by roads, pavements, and the four entrances to the Underground. There is no free space for people to congregate. The physical conditions in Oxford Circus were for a short period quite acceptable but as time passed the conditions became increasingly unacceptable. In particular, in the absence of toilets, people had to relieve themselves in the street in public. This and other problems bore particularly hard on some of the women. Fortunately no-one was seriously hurt but some of those attending came very close to sustaining injury and some policemen were injured.
The two appellant-plaintiffs, Ms Austin and Mr Saxby, asked to be released, but were refused. Ms Austin made speeches as part of the demonstration till around 3.30 pm. She then asked to leave so she could collect her 11-month-old baby from a child-minder.

Mr Saxby was simply caught up in the demonstration, doing something unspecified for his employer.

Their actions alleged the tort of false imprisonment, and deprivation of liberty contrary to Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. (That provision is similar to s 21 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).)

There was no doubt the appellants' restraint amounted to imprisonment. The question was if it was lawful or unlawful.

The police argued it was lawful under:

  1. breach of the peace powers
  2. the Public Order Act 1986
  3. necessity

The Court of Appeal didn't consider the Public Order Act in much detail, because it wasn't relied on at the original trial. They did discuss breach of the peace and necessity in great detail. In this case, they considered the two were intertwined. The Court adopted these five principles:

[35.] ...
(i) where a breach of the peace is taking place, or is reasonably thought to be imminent, before the police can take any steps which interfere with or curtail in any way the lawful exercise of rights by innocent third parties they must ensure that they have taken all other possible steps to ensure that the breach, or imminent breach, is obviated and that the rights of innocent third parties are protected;
(ii) the taking of all other possible steps includes (where practicable), but is not limited to, ensuring that proper and advance preparations have been made to deal with such a breach, since failure to take such steps will render interference with the rights of innocent third parties unjustified or unjustifiable; but
(iii) where (and only where) there is a reasonable belief that there are no other means whatsoever whereby a breach or imminent breach of the peace can be obviated, the lawful exercise by third parties of their rights may be curtailed by the police;
(iv) this is a test of necessity which it is to be expected can only be justified in truly extreme and exceptional circumstances; and
(v) the action taken must be both reasonably necessary and proportionate.
At [51] the Court outlined the facts the police relied on to satisfy those requirements.

The Court considered that the appellants were not about to commit a breach of the peace: [57] & [68].

But despite that, their 'containment' was lawful, under the doctrine of necessity, to prevent the risk of violence, injury to police and the public, and crime, they referred to in [51].

It was left to the discretion of individual officers to decide if people in the cordon obviously had nothing to do with the demonstration and to decide to release them. In the circumstances, there was no other alternative release policy open. (If the plaintiffs could show an individual officer was unreasonable in refusing to release them, that would have defeated the claim of necessity.)

Under Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Court held the 'kettling' was interference with liberty of movement, not deprivation of liberty.

That meant the appellants were unsuccessful.

On my reading of Austin, the Court was operating right at the edge of its comfort zone, and not particularly happy about condoning the effective imprisonment of people in a small part of the city for up to 7 hours. But it was prepared to accept that extreme and exceptional circumstances might justify infringement of individuals' rights.

It may be Austin's decision is revisited following the London G20 demonstrations...

Criminal Procedure Act commentary available online

The Judicial College of Victoria continues to set a gold standard in producing resources for judicial officers, and graciously making them available to the public.

It has just released, in the last week or so, the Victorian Criminal Proceedings Manual.

So far, there are only several chapters available, but the College intends to have complete commentary for the Criminal Procedure Act 2009 by the time it commences operation.

Monday, 27 April 2009

Honest and reasonable mistake

An accused person should be acquitted if when they allegedly offended they honestly and reasonably believed in a state of facts that — if true — would have made their acts innocent: Proudman v Dayman (1941) 67 CLR 536.

The requirement that the mistake be both honest and reasonable can make life hard for the accused. What is a reasonable mistake depends on the circumstances of the case. McConville v Watson [2008] VSC 532 is a useful example.

Mark McConville was convicted in the Magistrates' Court of three counts of making false statements to obtain payments under the Accident Compensation Act 1993. After a work-related injury, he would visit his doctor and obtain certificates to the effect that he was unfit to perform certain kinds of work for his employer, an air conditioning company. He never told his doctor he had started working for his wife's company, a rival air conditioning business. The presiding magistrate considered Mr McConvile had acted honestly but not reasonably by omitting to tell his doctor about his other job.

Mr McConville appealed to the Supreme Court. One ground of his appeal was about Proudman v Dayman. He claimed he honestly and reasonably believed he didn't have to disclose his new work role to his treating doctor.

In dismissing that ground of appeal, Coghlan J said [at 53],

53 His Honour found that the appellant acted honestly, that is, he did not set out to deceive Dr Thompson, and may well have confused her role as a treater with her additional role of being a 'certifier', but he was the person obtaining the certificate for the purpose of continuing his payments and he was passing them on to his employer and on to the insurer. It was not reasonable for him to have not appreciated the importance of full disclosure to his doctor of what he was doing since it was patent that she was required to certify his work capacity, which she said was 'nil'. The appellant said in his record of interview that he did not regard that as being his capacity. It follows as an additional consideration that he was put on notice by what Dr Thompson had certified in the form. I do not accept that disclosure to others associated with the worker could alter that position. It follows that I do not accept that the so-called Proudman v Dayman [1941] HCA 28;(1941) 67 CLR 536 ground has not been made out.

54 I also generally reject the notion that a person cannot mislead by material which is provided honestly, although that matter was not separately argued or relied upon before me. It seems that the Magistrate below accepted that the misleading here was by inadvertence. That was consistent with his dismissal of the fraud charges and the small penalty (with conviction) which he imposed on those charges.

Saunderson v Watson [2007] VSC 497 is another recent example of a belief that may have been honestly held, but was found not to be reasonably held.

Teabagging begs questions of constitutional validity for courts

Skepticlawyer mentioned this interesting case where the High Court is considering the constitutional validity of the Australian Military Court. (The transcripts for 22 Apr and 23 Apr 2009 are available on Austlii.)

Why do we care?

Well, constitutional validity of courts occasionally crops up even in our jurisdiction!

In Kable v DPP (NSW) [1996] HCA 24; (1996) 189 CLR 51 the High Court considered the validity of State courts. Though State courts are subject to State Constitutions, because they can exercise federal power under s 39 of the Judiciary Act 1903, they must conform with prescribed requirements for judicial institutions in Chapter III of the Constitution of Australia.

Kable considered the Community Protection Act 1994 (NSW). That Act obliged the Supreme Court to imprison Gregory Wayne Kable to protect the community. The High Court held that valid courts could only impose jail as punishment for past acts, following a finding of guilt beyond reasonable doubt. They couldn't impose jail for possible future acts proved on the balance of probabilities. For that reason, the Act was invalid. (Those of you with long memories might remember similar legislation in Victoria: the Community Protection Act 1990 (Vic) was aimed solely at Garry David Webb, and used for his preventative detention. That legislation wasn't challenged in the High Court.)

(The Kable-doctrine was applied in Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575, dealing with the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (similar to the Serious Sex Offenders Monitoring Act 2005 (Vic)). In that case, the legislation was considered valid because it was protective rather than punitive, and required adjudication after considering evidence.)

All of that can be mere background when seccessionists come before the courts and argue the courts aren't valid. Notable examples we sometimes see are the Principality of Camside, the Principality of Caledonia and UPMART. There was also a bloke a few years ago who ran similar arguments as a solo effort until he was jailed. After that he tried copyrighting his name to prohibit its use in enforcement actions (can't be done), and then turned to registering himself as a ship under international maritime law!

Sunday, 26 April 2009

Technology in the courtroom

One of my enduring interests is how we might use technology in the court room to help us do our job better.

Technology is a bit like fire: a good servant, but poor master. If we use it, we must use it because it helps achieve a better result. It's a means to an end, not an end in itself. If we spend time fiddling with connections and software, or our head down in a notebook rather than engaging the Bench, we won't be effective advocates. If we can help visualise and simplify complex information, we might be better advocates.

American lawyers seem to be leading the way in the use of technology in court.

Scene Systems uses animation technology to recreate crime scenes, accidents and other incidents. Have you seen it's impressive US Airways Flight 1549 Reconstruction, the airliner that made an emergency landing on the Hudson River, New York? If not, here it is.

And blogs such as PDF Lawyers, Home Office Lawyer, and The Mac Lawyer are choc-full of good legal applications of technology.

Australian lawyers are seeing the benefits too. A few examples:

We can make good use of technology in our jurisdiction too.

One simple example is a timeline.

Let's say a person accused of driving when disqualified relies on the Proudman v Dayman defence, claiming, "I didn't know I'd lost my licence." (Mind you, a licence is a legal authority to drive on public roads. If I believe I am legally authorised to drive when in fact I am not, is that a factual or legal mistake? May be a topic for a future post...)

Here's an example based on several cases I've seen or heard, of multiple allegations of disqualified driving stretching over an extended period. The initial disqualification occurs at a s 37 hearing. At first glance, the claimed defence seems hard to rebut. But, a timeline easily shows only the first charge might be defeated by that charge.

(View a PDF of the timeline, or larger format of the movie.)

You can create time lines using software such as Timeline3D or SmartDraw.

Another easy-to-use bit of technology is Google Maps.

You can use it to provide a traditional map view of a relevant area, such as Parliament House.

And in most metropolitan areas, you can also use Street View.

(If you haven't used Street View before, try clicking-and-dragging on the image. That lets you virtually look around!)

Of course, all of these are subject to the rules of evidence. So we require a witness to attest to their accuracy, or a concession under s 149AB of the Evidence Act 1958 (or s 191 of the Evidence Act 2008).

But used well and with proper foundation, these can be powerful tools.

What do you think? Have you used any technology in the courtroom? Did it help or hinder?

Friday, 24 April 2009

Beyond reasonable doubt

We all know what the criminal standard of proof is, but what is it? What does it really mean?

Try putting a percentage figure on it. We know that beyond reasonable doubt will be much higher than being just 50% sure, but how much higher? 70 or 80%? 90%, maybe? Why don’t we just dive in at the deep end and say 99.9%? Or should it be 99.9% recurring? Does reasonable refer to the size of the doubt, or is there some test that ought to be applied that would make a doubt reasonable, or unreasonable?

When the questions are put this way, it's obvious we're speaking poetry as much as science. Whether someone is convinced of something, and just how convinced they are, is an inexplicable process that goes on inside the privacy of each individual person’s head. It is unlikely that anyone will develop a way of expressing where an idea fits on a spectrum of certainty with mathematical precision any time soon.

Up until the 1970s, judicial authorities ran back and forth on the proper direction to juries on the meaning of the phrase beyond reasonable doubt. They contradicted one another; they tried to say the same thing using different words; they created dense and lengthy directions that did nothing to clarify the concept. Finally, in Green v The Queen (1971) 126 CLR 28) the High Court discussed some of these earlier failed attempts and concluded [at 15]: “Jurymen themselves set the standard of what is reasonable in the circumstances.”

Further explanation or direction to juries on the meaning of the phrase, except to correct any misapprehensions which may have been created in jurors' minds by advocates, has been discouraged by the superior courts ever since: see, for example, R v Cavkic, Athanasi & Clarke (No 2) [2009] VSCA 43 at [62] – [64].

A study of NSW jurors conducted by the Bureau of Crime Statistics & Research (BOCSAR) has just been published. In it, a total of 1225 people drawn from 112 different juries were surveyed to gather their responses around three main issues: first, how much of the proceedings did they feel that they comprehended; second, what was it about the proceedings that helped them to do so; and third, after deciding a person’s guilt or innocence, what did they consider beyond reasonable doubt to mean?

Some may be appalled by the number of respondents who thought the phrase meant, "sure [the] person is guilty". Others may be horrified to see how many people thought it means, "Pretty likely [the] person is guilty".

What was clear was that different jurors, even those sitting on the same jury, applied different standards of proof to their deliberations.

But for— sentences aren't grounds for appeal

Edit: Another good discussion of Markarian's case can be found in the Newcastle Law Review. It was written by Ross Abbs a couple of years and approaches the case from a variety of angles.

The irrelevance (or, perhaps more properly, the lack of utility) of but for sentences was affirmed in Dutton v The Queen [2011] VSCA 287 [Whelan AJA at 38].

The detailed and sometimes contradictory line of authority on this issue is navigated in Saab v The Queen [2012] VSCA 165. Buchanan, Weinberg and Mandie JJA simultaneously supported and overruled Burke when they stated together [at 58]:

We think that the line of authority holding that a s 6AAA statement is generally not to be taken to exhibit error should be followed.

The principal obstacle to a determination that the notional sentence stated pursuant to s 6AAA can reveal specific error lies in the fact that sentences are the product of a process of instinctive synthesis. Judges do not fix sentences by adding to and subtracting from a starting point periods of time they attribute to particular sentencing factors: Wong v R (2001) 207 CLR 584. In order to comply with s 6AAA, a sentencing judge is required to guess the part played by one of a number of conflicting and contradictory elements in a synthesis of all the elements and ascribe a number to that element. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen:

So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to
some features, distorts the already difficult balancing exercise which the judge must perform.

It may be thought that there is more chance of an error in this artificial, contrived exercise than in the original synthesis.

The notion that error may lie in placing too great or too little weight on a particular sentencing factor invites an analysis which we consider is irrelevant. A particular sentencing judge may have given what another judge may think is too little weight to a plea of guilty but perhaps may have given too much weight to a different mitigating factor. We think it profitless to criticise a sentencing judge’s guess as to the precise part played by one element if the result of the synthesis is a sentence which is within a range of appropriate sentences.

That is not to say that a s 6AAA statement can never reveal error. In a particular case, where an offender’s conduct in pleading guilty, the contrition the plea exhibits, and the utilitarian value of the plea all call for a substantial discount, the s 6AAA statement may reveal that the plea was effectively ignored, so that it may be concluded that the sentencing judge failed to have any regard to a relevant factor in exercising his discretion. The statement may amount to an expression in numerical terms of a view that, if put into words, would betoken specific error. Such a case will be rare.

The judgment is a careful study of the conflicting authority, and deserves careful reading. But, trying to boil this equivocacy into a definite statement - a but for statement doesn't provide grounds for appeal, even if it's wrong. But it will, if it provides an insight into the sentencing judge's thinking, that demonstrates appellable error. How does one tell the difference? Who knows.

Section 6AAA of the Sentencing Act 1991 has been around for a while now. It applies when a sentencing court imprisons an offender or fines them 10 or more penalty units. If the Court imposes a less severe penalty than it otherwise would have because the defendant pleaded guilty, it must state what that penalty would have been but for the guilty plea.

The provision was inserted into the Sentencing Act 1991 in 2007 after recommendations from the Sentencing Advisory Council in its Sentence Indication and Specified Sentence Discounts — Final Report. The Council said one of the aims of the legislative change was to encourage more offenders to plead guilty, and at an earlier stage in proceedings. It is also fair to say that some in the judiciary aren't comfortable with isolating and placing a figure on one particular consideration when arriving at an appropriate sentence. It has been suggested that doing so goes against the traditional sentencing concept of instinctive synthesis. (The High Court recently affirmed instinctive synthesis as the proper approach to sentencing, in Markarian v The Queen [2005] HCA 25; (2005) 215 ALR 213.)

In The Queen v Burke [2009] VSCA 60, the Court of Appeal dealt swiftly with a ground of appeal that tried to rely on the 'but for' indication given by the sentencing judge.

Vickery AJA (Redlich JA and Maxwell ACJ agreeing) said [at 29]:

29 As noted earlier, his Honour said:
but for your plea, I would have considered that an appropriate term of imprisonment would be four years with a non-parole period of two and a half years.
Ground 2 contended that the ‘notional’ sentence of four years was manifestly excessive. This in turn was said to have ‘infected’ the sentence which was actually imposed.

30 The submission is misconceived. The ‘notional’ sentence announced in accordance with s 6AAA is not part of the sentence imposed. No appeal lies in respect of the notional sentence. As s 567(d) of the Crimes Act makes perfectly clear, the appeal court hears an appeal against ‘the sentence passed’. Accordingly, the contention in Ground 2 – that the ‘notional sentence’ would have been manifestly excessive – is unintelligible in this sphere of discourse. It cannot constitute a ground for appeal.

31 The ground of manifest excess falls to be considered in relation to – and only to – the sentence actually imposed. A complaint about the sentence discount or the notional sentence identified in the s 6AAA statement is a complaint about the weight attributed to one particular sentencing consideration. As with any argument about weight, the question for the appeal court is whether, taking into account all the relevant sentencing considerations, the sentence imposed was within range.

The Court found that the sentence which had been imposed disclosed no error. Consequently, the appeal was dismissed.

On a related note, the other day I came across a speech that Royce Miller QC gave at an Australian Institute of Criminology conference back in 1996 when he was the Queensland Director of Public Prosecutions. Over a 40 year career he served the interests of justice first as a barrister, then as Crown Prosecutor, Public Defender, District Court judge and finally, DPP. The paper is called Pleading Guilty: Why, How and When, and offers a refreshingly candid perspective on sentencing.

Thursday, 23 April 2009

In connection with the driving of a motor vehicle

Section 28(1)(b) of the Road Safety Act 1986 provides a discretionary power for a court to suspend or cancel a licence on conviction or finding of guilt for an offence against that Act or for "any other offence in connection with the driving of a motor vehicle." The meaning and scope of this phrase has frequently been the subject of legal argument.

There has been a long-standing tension between the decision of Nathan J in Rochow v Pupavac [1989] VR 73, which suggests the provision is one of wide application, and other cases such as Murdoch v Simmons [1971] VR 887 and Crammer v McDougall (1995) 21 MVR 363, which define a stricter test. On a number of occasions the Supreme Court has declined to resolve the question, though recognising the eventual need to either reject or reconcile the two interpretations: R v Lefebure [2000] VSCA 79, and also more recently in the context of the confiscation of assets: DPP v Selcuk [2008] VSC 37.

In R v Novakovic (2007) 17 VR 21, JA Nettle (Ashley and Redlich JJA agreeing) revisited the issue and expanded on his earlier comments in Buckley v DPP (Unreported, Supreme Court of Victoria, 4 August 1994). His Honour clarified the scope of the phrase in connection with a motor vehicle in a number of important respects. The following points emerge from the judgment [57 – 67]:

  • there must be a substantial connection between the offence and the driving of the motor vehicle
  • a connection that is merely 'not remote and fanciful' as discussed in Rochow v Pupavic is insufficient to meet that test
  • each case must turn on its particular facts
  • there need not be a connection between the offence and the manner in which the vehicle is driven (ie. there is no requirement to demonstrate bad, dangerous or irresponsible use of the motor vehicle for s 28(1)(b) Road Safety Act to be invoked)
  • licence disqualification contains a punitive element. The need to punish the offender appropriately and manifest the dissatisfaction of the community with the offence must be weighed against not unduly hampering the person’s prospects for rehabilitation, including finding employment: per Tadgell JA in R v Lefebure [2000] VSCA 79 at [8]

Rochow v Pupavac has been approved interstate, where a broader interpretation is favoured (the NSW and Queensland jurisdictions were referred to by Hollingworth J in Selcuk at 27; see also Macrossan CJ's comments in The Queen v Nhu Ly [1995] QCA 139 for another example). But the Victorian Court of Appeal's narrower interpretation in Novakovic probably represents the current position in this state.

Wednesday, 22 April 2009

Failure to call witnesses

A case that still doesn't get a guernsey in every practitioner's headspace is Jones v Dunkel (1959) 101 CLR 298.

It's one of those chestnut cases we all should be familiar with, perhaps second only to Browne v Dunn (1893) 6 R 67 (HL).

There's been a lot of commentary written about Jones v Dunkel over many years, and I don't think I can really add much to it. The gist of it is that the unexplained failure by a party to give evidence or to call a witness that the tribunal of fact could expect to hear from may (but not must) lead to an inference the uncalled evidence would not have helped the party's case.

(Jones v Dunkel does not go as far as saying the tribunal of fact can infer the un-called witness would have harmed the party's case.)

Ordinarily, the inference may not be drawn against the accused in a criminal case: Dyers v The Queen (2002) 210 CLR 285. Why? Because the High Court said in R v Apostilides (1984) 154 CLR 563 that the prosecution bears the onus of calling all relevant witnesses: the accused doesn't (usually) have any obligation or expectation to call witnesses.

One of the bloggers I subscribe to just highlighted a recent Western Australian Supreme Court judgment discussing Jones v Dunkel in Inferences arising from failure to call a witness for fear of what they would say. It's a slightly humorous but also pragmatic view at how the rule should and can operate, and well worth a read.

Tuesday, 21 April 2009

Advocacy by ambush is against the rules

The Ethics Committee of the Victorian Bar publishes Ethics Bulletins on an as-required basis. Similar in format to the Practice Directions issued by the Magistrates' Court of Victoria, these bulletins act as gentle reminders to barristers of the Bar Rules of Conduct, and clarification on ethical issues of legal practice.

One bulletin to be particularly mindful of is No 1 of 2005 - Unreported Judgments. It reminds practitioners of the need to comply with Rule 85 of the Rules of Conduct:

85. If a barrister intends to rely on an unreported decision then, before doing so, it should be brought to the attention of opposing counsel, and if necessary a copy supplied in sufficient time for proper consideration of it.

Dropping a copy of the case on the bar table in the middle of submissions doesn't satisfy the letter or the spirit of Rule 85. Not only is a surprise attack likely to cause opposing counsel intense personal discomfort, it deprives the Court of the ability to hear properly prepared and reasoned submissions from the advocates on behalf of each of the parties.

Whilst most barristers are aware of this requirement in theory, it is less frequently observed in practice. Practitioners who fail to comply with this simple courtesy should be aware that they risk being held accountable for otherwise avoidable delays in court proceedings. Repeated breaches by the same practitioner might attract the ire of the Legal Services Commissioner.

Readers prepare to turn 30

In 1980, a number of legal luminaries — amongst them Sir Hartog Berkeley QC, Federal Court Chief Justice Michael Black and The Honourable Professor George Hampel QC — assisted in the Bar Council’s establishment of the first mandatory preparatory course for the Victorian Bar.

The Bar Readers' Course was the first of its kind in Australia, and has been widely recognised for the dedication which its many instructors, assessors and students have shown over the years to the refinement of their craft.

As the course prepared to turn thirty, Professor Hampel, Ian Freckleton SC, and current Chairman of the Readers’ Course Committee Ian Hill QC sat down to discuss what they see as the future direction of the Readers’ Course. Their conversation is recorded in the most recent edition of the Victorian Bar News in Readers' Course revisited, and their observations about the changing nature of advocacy in the modern court are of relevance to all legal practitioners.

Monday, 20 April 2009

Judicial registrars may consider diversion

From today, Judicial Registrars may adjourn charges to allow an accused to participate in a diversion program under s 128A of the Magistrates' Court Act.

The Magistrates' Court (Judicial Registrars) Amendment Rules 2009 amend the Magistates' Court (Judicial Registrars) Rules 2005 to extend the powers of Judicial Registrars.

As an aside, did you know each Court regularly creates its own Rules under their principal Act? Although they are a type of delegated legislation, they are not statutory rules and not subject to many of the provisions of the Subordinate Legislation Act 1994.

Local laws under s 111 of the Local Government Act 1989 are another example.

Some subordinate legislation is exempt from the definition of statutory rule, only needs to be published in the Government Gazette, and isn't subject to the ten-year sunset rule. The Shrine of Rememberance Regulations are one example.

Sunday, 19 April 2009

Mistake of fact, or mistake of law?

An accused who, at the time of the alleged offence possessed an honest and reasonable positive belief in a state of facts which, if true, would have rendered their acts innocent, is entitled to an acquittal: Proudman v Dayman (1941) 67 CLR 536.

After the majority decision in CTM v The Queen [2008] HCA 25, it is also clear that there must be an evidential basis for the claim. This does not necessarily have to take the form of calling the accused as a witness, though this may be the most readily available (and persuasive) source.

The mistake must be one of fact. If mistakes of law also exonerated an accused the criminal law would quickly become unworkable. Professor Glanville Williams famously said that the fact that ignorance of the law offers no excuse, "is often almost all of the knowledge that some people have of the law." In Bergin v Stack (1953) 88 CLR 248, Webb J said that if mistakes of law were accepted as offering a defence, "astounding results could follow."

Determining what is a mistake of fact and what is a mistake of law is not always easy. The task is made even more difficult when the error is a combination of both factual and legal elements. In Thomas v R (1937) 59 CLR 279, Dixon J (Latham CJ and Rich J agreeing) drew on English authorities to conclude that such mixed mistakes should be considered mistakes of fact. However, more recently Gleeson CJ (Clarke JA and Lee AJ agreeing) decided that mixed mistakes of fact and law will not ordinarily constitute mistakes of fact: Strathfield Municipal Council v Elvy (1992) NSWLR 745 at 751.

A thorough examination of this complex topic can be found in the judgment in Mei Wong Su v Australian Fisheries Management [2008] FCA 1485 at [72] – [87]. In determining charges of illegal fishing, Reeves J embarked on a useful summary of the previous cases.

Guest bloggers

If you read bylines closely, you might have seen the article on tracker dogs was by a different author: I invited Dr Manhattan to be a guest blogger.

I have no delusions of grandeur about holding a monopoly on ideas or material worth sharing. If you would like to contribute or share something on the blog, you're most welcome to contact me.

There are feedback widgets on the lower-left of the blog page; hyperlinks at the bottom of each post to email me; and a contact page too.

Perhaps you might like to write a piece as a guest blogger? Or leave a comment under a post? Or if you're the modest type, you can suggest something using any of the various contact options. Please feel free to contribute if you want to.

Saturday, 18 April 2009

Can a tracker dog give evidence?

Edit: Perhaps the answer to this question lies in disclosure - how would the sniffer dog make their statement? This article from the Daily Mail might shed some light on that.

My opinion was sought on this question several years ago. “Of course not,” I replied without hesitation. “Even if it could remember the oath, how is it going to hold the Bible?"

After the decision of the New South Wales Court of Criminal Appeal in Muldoon v R; Carter v R [2008] NSWCCA 315, the question might be worthy of more serious consideration. In Muldoon, three accused were apprehended by a tracker dog being exercised by its off-duty handler. The animal followed the men from a burglary to some adjoining bushland.

As the dog couldn't give evidence of its own observations, the Crown sought to lead evidence from the handler about the dog's training, abilities and actions. The handler testified about what he saw the animal do (which was clearly admissible) and also gave expert evidence about why the animal behaved and reacted as it did.

Counsel for the accused argued that evidence was inadmissible under s 137 of the Evidence Act 1995 (NSW) because the prejudicial effect of the evidence outweighed its probative value. The defence also relied on underwhelming scores the animal achieved in previous training exercises to argue the 'evidence of the dog' was inherently unreliable.

(Just in case you forgot, the uniform Evidence Act commences operation in Victoria later this year. Section 137 of the Evidence Act 2008 (Vic) is the equivalent provision in the new Victorian Act.)

The NSW Court of Appeal rejected the arguments and ruled the trial judge was right to admit the evidence. The Court differed from the less accepting approach in the Victorian case of R v Joe Saccu (unreported, Victorian Court of Criminal Appeal, 13 February 1980). Further discussion of that case, as well as a thorough discussion of the topic internationally, is in Lawbook Online's Expert Evidence at [13.10.01] - [13.10.260].

Friday, 17 April 2009

Finding judicial consideration of legislation — Part 1

I think the most frequent research query we all have is, "Are there any cases on this statutory provision?"

In this series of posts, I cover several different ways of searching for cases that consider statutory provisions.

This week, I explain how to use Lexis Nexis AU.

This is electronically similar to looking through Bourke's Criminal Law Victoria, but for all legislative instruments covered by the LNAU database. (But we don't have every subscription LNAU holds, so some results you click on might return an error message saying something like "You don't subscribe to this.")

First, on the home page, select the legislation tab.

For these examples, I'm using the Confiscation Act 1997 ss 32 & 33. They deal with forfeiture of tainted property. I figure this is good an example as any other, because I have a case coming up soon involving these provisions, and I'm not familiar with any judgments that consider them.

Next, fill in as many or few of the search fields as you can or want. Generally, start as broad as you can, and narrow your search options until you get a manageable number of results. If your search terms are too narrow, you might miss relevant cases.

Then review your results. (In this example, the commentary and annotations we get are in fact in Bourke's Criminal Law Victoria.) Your mileage may vary. You might even get no results for some provisions!

For this search I found commentary about factors courts ought to consider when deciding a forfeiture application, including hardship. Pay-dirt! The commentary cites judgments that considered these provisions. Now I need to see if those judgments are relevant and still good law.

Some cases are hyperlinked, and you can jump straight to the full-text version of that judgment. (If you follow the hyperlink shown in this result, you'll get an error: we don't subscribe to the New South Wales Reports.)

Other cases are not hyperlinked. Usually, these are report-series Lexis Nexis doesn't publish — such as the Australian Criminal Reports or Commonwealth Law Reports.

If you want to check a non-hyperlinked case, you can highlight the citation and copy it (CTRL + C) and then paste it (CTRL + V) into the citation-field of the Quick Search template on the home page (or the search template under the cases tab).

In this screenshot, I copied-and-pasted the citation for Winand. That's this bit: (1994) 73 A Crim R 497.

That takes me to the CaseBase entry for Winand.

CaseBase is the Lexis Nexis case citator. A citator has two main functions:

  1. List citations for the case (the report series and page numbers where we find the judgment)
  2. Tell us if the case is still good law by recording its subsequent judicial consideration

If there are hyperlinks immediately under the case name, we can follow them to the full text of the judgment.

Further down the page is a list of cases that refer to Winand. Hyperlinks in those entries take us to the full text of those judgments, and the icon at the end of the row is a hyperlink that takes us to the CaseBase entry for that judgment.

In this example you can see Savvinos v DPP [1996] 2 VR 43 did not follow Winand. If I want to rely on Winand in court, I should look at Savvinos to find out why it didn't follow Winand and if that will affect my case.

It might be necessary to repeat this for several cases.

(Yes, that can be time consuming. But, I can assure you it is a lot quicker and easier than when the only way of doing it was to go through hardcopy services!)

Next week, I'll show you how to use FirstPoint to check for any other cases.

Wednesday, 15 April 2009

Cannabis-induced psychosis isn't mental impairment

Edit: See also DPP v Kao [2009] VSCA 273, where the Court of Appeal express their doubts [at 42] as to whether the mitigating principles in Verdins' case have any application to a psychosis resulting from the self-administration of drugs by an experienced user.

In Acar v The Queen [2012] VSCA 8 the Court of Appeal quoted itself in Zander [2009] VSCA 10, where it said,

The principles of Verdins do not dictate the automatic mitigation of sentence in an offender simply because he or she had suffered or is suffering from an mental illness, however severe. Rather, Verdins requires scrutiny and assessment, based on cogent evidence, of the relationship between the mental disorder and the offending and other relevant matters.

In Edwards v The Queen [2011] VSCA 87 the Court didn't spend very long on the issue before approving Cannon J's decision to treat use of amphetamine as an aggravating factor [at 23]. This appeal probably demonstrates a discrepancy between the lower courts and appellate authority on the use of intoxication as mitigation.

Section 20 of the Crimes (Mental Impariment and Unfitness to be Tried) Act 1997 provides for the statutory defence of mental impairment.

In R v Martin (No 1) (2005) 159 A Crim R 314, the accused adduced evidence that he suffered from cannabis-induced psychosis. A psychiatrist testified that the affliction caused aural or visual hallucinations, delusional beliefs and possibly impulsive reactions. The psychiatrist thought the accused suffered from this psychosis.

Bongiorno J held that mental impairment was synonymous with the previous common law concept of disease of the mind first articulated in McNaghten’s Case (1843) 10 Cl & Fin 200; 8 ER 718.

He referred to R v Radford (1985) 42 SASR 266; (1985) 20 A Crim R 388, approved in R v Falconer (1990) 171 CLR 30 at 53:

...I do not think that a temporary disorder or disturbance of an otherwise healthy mind caused by external factors can properly be regarded as disease of the mind as that expression is used in the M'Naghten Rules.

What that means is that transient or temporary altered states of consciousness — like drunkenness and drug-intoxication — are not 'diseases of the mind' or 'mental impairment'.

In Martin (No 1), the psychiatrist conceded in cross-examination if the accused stopped taking cannabis, the psychosis stopped. For example, when the psychiatrist assessed Mr Martin, he was not psychotic.

On the evidence before him, Bongiorno J ruled the accused was not entitled to raise the defence of mental impairment as the cannabis-psychosis was temporary or caused by external factors.

As always, it's important to consider the evidence in each case, but this decision might be useful for assessing some claims of mental impairment.

Johnson v Poppeliers: fishing expedition or reasonable possibility?

Though a few months old now, Johnson v Poppeliers [2008] VSC 461 has some good law for us and is worthy of discussion — though I'm sure the folks at Frankston are already well across it, and many others of you too. (Plus, it's next in my pile of reading.)

The headlines from it are:

  • an accused can still be convicted of drink-driving contrary to s 49(1)(f) even if they don't receive a Certificate of Analysis
  • on the return of a subpoena, the proper test for determining legitimate forensic purpose is is there a reasonable possibility the evidence would materially assist the defence?
  • police aren't obliged to tell a person of their right to a blood test under Road Safety Act s 55(10). So the discretion to exclude unfairly obtained evidence doesn't occur if the police in fact don't mention the right to a blood test

The facts

On Thursday 25 May 2006 Leigh Johnson stopped at a booze-bus in Park Road, Cheltenham. He took a preliminary breath test. The test indicated alcohol in his blood. He went to Moorabin Police Station for an evidentiary breath test, and returned a reading of 0.155%.

Mr Johnson said, "I can't believe it's that high."

Apparently, the police didn't give Mr Johnson a copy of the Certificate of Analysis. (At least, the magistrate's factual finding wasn't challenged on appeal.) At [26] the Supreme Court described it as an "inadvertent failure to give a certificate".

And the police didn't tell Mr Johnson he could ask for a blood test under s 55(10) and, quite properly, admitted they deliberately didn't tell him.

Certificate of Analysis

The magistrate acquitted Mr Johnson of the charge under s 49(1)(b), because he wasn't satisfied beyond reasonable doubt Mr Johnson received a certificate as required by s 55(4).

He convicted Mr Johnson of the s 49(1)(f) charge. In Johnson v Poppeliers at [20] the Supreme Court simply referred to Furze v Nixon (2000) 2 VR 503, which essentially held a Certificate of Analysis wasn't necessary to prove the offence. The conviction was sound even if Mr Johnson didn't get a Certificate. (In any event, at [23], the Supreme Court noted Mr Johnson was told orally of the reading, and in writing in the notice of suspension.

Nor did it matter that the police didn't tell Mr Johnson he could have a blood test.

While s 49(10) of the RSA gave Mr Johnson a right to request a blood test, the RSA does not impose an obligation on the police to inform him of that right. The failure to inform Mr Johnson of his right under s 55(10), without more, cannot enliven the unfairness discretion to exclude the breath analysis certificate. In light of Furze, the giving of a certificate to Mr Johnson was not a precondition to establishing the offence under s 49(1)(f) and it is therefore difficult to see how an inadvertent failure to give a certificate, without more, can enliven the unfairness discretion to exclude the certificate. Do the two failures, in combination, enliven the discretion? In my opinion, they do not because they are not causally linked. The certificate does not refer to the right under s 55(10) and therefore Mr Johnson’s lack of awareness of that right was not affected by his not having been given a certificate: Johnson v Poppeliers [2008] VSC 461 at [26].

The subpoena

Mr Johnson issued a subpoena1 asking for production of various items, including:
7. The memory print-out records surrounding the test on the Defendant or applicable to the Defendant, from the Breath Analysis Instrument as was used on the Defendant

8. All service and maintenance records for both:
(a) the Preliminary Breath Testing device used on the Defendant by the Informant, and
(b) the Breath Analysis Instrument used on the Defendant by the authorized Breath Analysis Instrument Operator

First, a quick refresher on the steps involved on the return of subpoenas:

  1. Obeying the subpoena. Material produced to the Court, unless the witness successfully claims abuse of process or privilege
  2. Court releases the subpoenaed material. If a party objects to the relevance or forensic purpose of the material, the judicial officer should inspect the material, hear from the parties on purpose and then rule on its release
  3. Wholly or partly receiving the things into evidence

At the Magistrates' Court, the prosecutor opposed release of the subpoenaed material because it was irrelevant, or the accused had not demonstrated it had a legitimate forensic purpose. The magistrate agreed.

The Supreme Court discussed a number of authorities dealing with legitimate forensic purpose, including the recent NSW cases of RTA v Connolly (2003) 57 NSWLR 310 and Attorney-General (NSW) v Chidgey [2008] NSWCCA 65, and Victorian cases of DPP v Selway (No 2) (2007) 16 VR 508 and Ragg v Magistrates' Court (2008) 18 VR 300.

The most significant part of this judgment is this:

In my view, the authorities discussed above establish that in Victoria, the test for determining whether evidence sought on summons by a defendant has a legitimate forensic purpose, is whether there is a reasonable possibility that the evidence would materially assist the defence. The test of “within the range of probability” set out in Fitzgerald does not correctly state the law. The authorities also establish that while a fishing expedition is insufficient, the test of “reasonable possibility” must be applied flexibly (and, I would add, with common sense) in order to give the accused a fair opportunity to test the Crown’s case and take advantage of any defences available to the accused. Where the accused wishes to rely on a statutory defence, the absence of evidence from which an inference can be drawn that the documents sought will satisfy the requirements of the defence does not necessarily mean that the reasonable possibility test is not met. This is particularly so where there is only one statutory defence available to the accused and that defence involves technical information exclusively in the possession of the Crown; insistence by the court that the accused present evidence which provides a basis for a positive inference that the documents sought will satisfy the requirements of the defence may effectively “eviscerate” the defence: Johnson v Poppeliers [2008] VSC 461 at [42].

He later said at [50] and [51]:

This was not a case where the summons sought documents which may or may not exist on the speculative basis that they might contain something which might be of some assistance to the defence in some unspecified way...The police did not make any admission that the breath analysing instrument was malfunctioning. In these circumstances, having access to schedule items 7 and 8(b) afforded the only means by which Mr Johnson could have any prospect of establishing the defence in s 49(4) of the RSA.

This is a big shift in how we understood the law about subpoenaed material. For charges proved by technical material solely in the police's possession, it does make sense. Otherwise, how will the accused know if the material will assist their defence?

On my reading of all the previous authorities, I reckon the argument in the Magistrates' Court was absolutely right — and very well argued by the prosecutor. But, we now know the test is different.

And, at [53] Kyrou J also made a point about the utility of opposing a subpoena application:

Had access been given to items 7 and 8(b), much delay and cost might have been avoided. If schedule items 7 and 8(b) had disclosed no basis for challenging the working order or operation of the breath analysing instrument, the proceeding would have focused on the substantive issues. If schedule items 7 and 8(b) had disclosed a basis for challenging the working order or operation of the breath analysing instrument, the focus would have been on whether the defence in s 49(4) was satisfied.

I must admit, I've been guilty of not seeing the wood for the trees. It's only recently I've appreciated the subtly of the approach of wiser heads. If the material isn't harmful, why oppose it's release?


I forgot to mention the outcome of the appeal! (This is the beauty of an electronic format: it's easy to edit!)

The defendant's appeal against his conviction was upheld. The argument about the Certificate of Analysis was rejected, but the Supreme Court considered that the outcome might have been different if Mr Johnson were granted access to the subpoenaed material.

The charge was remitted to the Magistrates' Court for determination by a different magistrate.

1 Pedantically, the Magistrates' Court issues summonses, not subpoenas, but they have the same legal affect and are governed by the same principles.

Monday, 13 April 2009

If you gargle and drive, are you an idiot?

Dr Manhattan Edit: At the start of this year the story of the Bubble-O-Bill nose came to light and highlighted the risks of eating - and gargling and spraying and drinking - and driving.

A magistrate, not satisfied with an applicant's explanation of having consumed an icecream, conducted his own in-court experiment. And the applicant's claim was verified - the liquor surrounding the chewing gum nose does contain enough alcohol to register!

This case highlights the importance of the re-test, required approximately ten minutesafter a failed test. If the reading is the product of some form of contamination, it will have cleared in the intervening time and the re-test will be .00%.

An all-too common application most of us deal with is alcohol interlock removal application under s 50AAB of the Road Safety Act.

Part of that process requires the applicant to provide a minimum-six-month history for the interlock.

I'm surprised at how frequently applicants' histories have a few positive results, indicating someone with alcohol on their breath blew into the device. I'm also surprised at how many times applicants claim those readings were from mouthwash.

Maybe I'm unduly cynical, but I was frequently very sceptical of these claims.

But it turns out there might be some legitimate basis for them.

Mouthwashes do contain some alcohol. For example, Listerine contains about 27% alcohol! (If you follow that link, click on the label & directions button to see Listerine's alcohol content.)

'Breath Alcohol Values Following Mouthwash Use', (1993) 270 Journal of American Medical Association 2955 reported that gargling mouthwash can produce elevated breath-alcohol readings for up to 6 minutes. (You can also download the abstract.)

For example, Listerine garglers returned these average results:

  • after 2 minutes — 0.240% (0.240 grams per 100 ml)
  • after 6 minutes — 0.068% (0.068 grams per 100 ml)
  • after 15 minutes — 0.008% (0.008 grams per 100 mil)

(The results were in mg/dL: a milligram is one-thousandth of a gram, so 240 mg = 0.240 grams; a decilitre is one-tenth of a litre, or 100 ml.)

So, in some cases those excuses might be true!

Saturday, 11 April 2009

Prosecutors' duties on sentencing

Last year in R v MacNeil-Brown [2008] VSCA 190 the Court of Appeal decided that prosecutors can make submissions to a court about the appropriate sentencing range.

This was one of many in a long line of similar cases, such as R v Tait & Bartley (1979) 24 ALR 473, R v Casey & Wells (1986) 20 A Crim R 191, and Economedes (1990) 58 A Crim R 466.

There are two broad camps amongst judicial officers when it comes to hearing from prosecutors on appropriate sentence range.

The first camp thinks that, if asked, prosecutors ought to be able to provide meaningful submissions to a sentencing Court. That is part of their duty to assist the Court avoid appealable error — itself a corollary of prosecutors' right of appeal against sentences that are wrong at law. It's also part of their role as the party that brings the charges before the Court.

The second camp thinks that it doesn't help a sentencer to hear from either party. It's the judicial officer's role to consider all the relevant matters: deciding the relevant sentencing facts and how much weight to give them; aggravating and mitigating facts; personal factors of the defendant and victims. (In Markarian v The Queen (2005) 228 CLR 357 the High Court said that intuitive synthesis is the preferred sentencing method.) Hearing the prosecutor say one thing while the defendant says another doesn't help that process.

In MacNeil-Brown, a bare majority of 3:2 said:

It is only reasonable, in our view, for the sentencing court to expect the prosecutor to make a submission on sentencing range if
(a) the court requests such assistance; or

(b) even though no such request has been made, the prosecutor perceives a significant risk that the court will fall into error regarding the applicable range unless such a submission is made: R v MacNeil-Brown [2008] VSCA 190 at [3] per Maxwell P, Vincent and Redlich JJA.
But, they didn't say if that prevents a prosecutor from making sentencing submissions in other circumstances.

Did the majority mean "It is only reasonable...", or, "It is only reasonable to hear from a prosecutor in these two circumstances"?

I think they meant the second option, because of the discussion about the help advocates can provide to sentencers by providing relevant sentencing statistics and similar cases. Consider these comments:

41. A submission on sentencing range is no different from any other submission which counsel makes, whether in criminal or civil proceedings. A submission conveys the considered judgment of counsel, based on analysis and evaluation of the relevant facts and the applicable law. The drawing of comparisons with, and distinctions between, other cases is a routine part of the making of submissions, as is argument seeking to extrapolate from one case to another. A submission on sentencing range has all of these characteristics.

42. To suggest, as counsel for the appellants did in these appeals, that a submission on sentencing range is merely ‘an expression of opinion’ is to mischaracterise counsel’s function. A submission on sentencing range is a submission of law. It identifies the ambit within which – according to the submitting party – the sentencing discretion may lawfully be exercised in the circumstances of the particular case. It is a submission explicitly formulated to assist the sentencing judge to avoid appealable error, that is, error of law.


44. ...Our entire adversarial system is based on the premise that the judge will be assisted by competing submissions from both sides and will be able impartially to decide which of the submissions is to be preferred.

45. So too with a submission on sentencing range. It will self-evidently be of assistance to a sentencing judge to be informed by the prosecutor that, in the Crown’s submission, a sentence in the nominated range would be correct in law. No judge is bound to accept counsel’s submission on any point, and a sentencing judge is entirely free to come to a different conclusion...

Then later, the majority praised defence counsel for providing sentencing statistics and cases:

74. On the plea, counsel for the defendant accepted that a term of imprisonment would be imposed on his client and provided to the judge what was described as ‘material in relation to sentencing of like offenders.’ Two documents were provided, both having been downloaded from the website maintained by the Judicial College of Victoria. The first was a table containing summaries of more than 20 Court of Appeal decisions, in the period 2004-07, dealing with sentencing for comparable offences (obtaining financial advantage by deception, obtaining property by deception and conspiracy to defraud). The second document was headed ‘High Value Offending’. It listed nine cases (eight from the Court of Appeal), identifying in each case the amount misappropriated and the sentence imposed. For reasons we have already given, this was exemplary conduct on the part of defence counsel. In aid of the submissions which he proposed to make, he furnished the judge with a body of comparable sentencing information. Counsel then identified for the judge which of the cases in the first table could, in his submission, be regarded as comparable to the case before the Court.
I'd be surprised if a sentencing Court would refuse similar help from a prosecutor.

Of course, this doesn't mean prosecutors can or should jump up at every opportunity to say something about sentence. But in those cases that require additional work, I think they not only can, but must be able to assist the Court as much as possible.

What's more, I think the law obliges practitioners appearing on behalf of the prosecution to do this — even in front of judicial officers who might fall in the second camp.

Of course, with that obligation comes the responsibility to say something meaningful and legally accurate — which means prosecutors may often need to go away and do some serious preparation for a sentencing hearing, much as they might for a contested hearing.

Criminal Process & Investigation in Victoria

Thomson is about to release a new text book, Criminal Process and Investigation in Victoria, by Chris Corns and Steven Tudor.

"Why do I care?" I hear you ask?

Well, this text discusses the new Criminal Procedure Act 2009 and Evidence Act 2008. (A quick reminder: I posted about the Criminal Procedure Act a few weeks ago, and it's now proclaimed but not yet commenced operation.)

Given we have no one updating The Manual or our training resources, this might be the only commentary available to us for some time on the Criminal Procedure Act.

Although the book aims at investigators, I'm sure it will be useful for us too.

(You also might be interested to read Police summary prosecutions, a paper that Chris Corns presented at an AIC conference in 1999, History of crime, policing and punishment .)

Thursday, 9 April 2009

Weapons, lawful purpose and reasonable excuse

Every so often, the Courts produce a judgment that neatly explains or clarifies a legal point.

Taikato v The Queen (1996) 186 CLR 454 is one such case. I don't know why we haven't made much use of it previously. (Perhaps it's just me who missed it? In a way, it would be nice if that is so...)

Taikato neatly sets out lawful purpose and reasonable excuse for possessing weapons in public places.

On 26 March 1992, police officers searched Jo-Anne Taikato as she walked in Railway Street, Liverpool, Sydney. They found mace in her handbag. A few years earlier, Ms Taikato and her husband found a criminal trying to break into their home. The nefarious criminal tried to strike her. That frightened her so much she took to carrying mace in her handbag, to spray anyone who might attack her.

The police charged her with possessing a prescribed weapon contrary to s 545E of the Crimes Act 1900 (NSW).

The provision is now replaced by s 93FB. The offence is similar — though not identical to — the Control of Weapons Act 1990 (Vic) s 7.

At the time that provision provided:

545E Possession of dangerous articles other than firearms

(1) A person who, in a public place, possesses:
(a) anything (not being a firearm within the meaning of the Firearms Act 1996) capable of discharging by any means:
(i) any irritant matter in liquid, powder, gas or chemical form or any dense smoke, or

(ii) any substance capable of causing bodily harm, or
(b) a fuse capable of use with an explosive or a detonator, or

(c) a detonator,
is liable, on conviction before a Magistrate, to imprisonment for 2 years, or a fine of 50 penalty units, or both.

(2) A person is not guilty of an offence under this section for possessing anything referred to in subsection (1) if the person satisfies the court that he or she had a reasonable excuse for possessing it or possessed it for a lawful purpose.

(3) A person is not guilty of an offence under this section for possessing anything referred to in subsection (1) (a) if the person satisfies the court that he or she possessed it for the purpose of self-defence and that it was reasonable in the circumstances to possess it for that purpose.

(4) In considering a defence under subsection (3), the court must have regard to its reasonableness in all the circumstances of the case, including:

(a) the immediacy of the perceived threat to the person charged, and

(b) the circumstances, such as the time and location, in which the thing was possessed, and

(c) the type of thing possessed, and

(d) the age, characteristics and experiences of the person charged.

Lawful purpose

At CLR 460 – 3, the majority1 said lawful purpose can mean a purpose that:
  • is not forbidden or unlawful, or
  • is positively authorised
Usually, lawful purpose means 'not forbidden'.

But in this case lawful purpose meant 'positively authorised' because:
  1. It was an exception to a statutory provision making it unlawful to possess prescribed items
  2. Otherwise, the section would only create an offence of possessing a prescribed item in a public place. That wouldn't be consistent with the purpose of the provision
  3. Otherwise, the defence of reasonable excuse wouldn't be needed
  4. It was consistent with the principle of statutory interpretation that words are assumed to be used consistently in legislation. 'Positive authorisation' supported the proper operation of other weapon offences in the Act
At CLR 463, the majority said self-defence could not be a lawful purpose because self-defence isn't an issue until a person is attacked or reasonably anticipates attack. Self-defence could only be relevant to lawful purpose if there was an actual attack.2

Reasonable excuse

At CLR 464 – 467, the majority essentially said that reasonable excuse is determined by considering a person's reason or purpose for possessing the prescribed weapon.

Carrying hairspray to style your 'do is a reasonable excuse; carrying it to spray in someone's eyes is not.

Carrying a weapon to hand in at a police station is a reasonable excuse.

But self-defence as a reasonable excuse for possessing a weapon required at least actual attack or fear of imminent attack.


This was 4:3 split in the High Court. The dissenters pretty much agreed that lawful purpose meant 'positively authorised', and that reasonable excuse was a jury question — did the person have an excuse, and was it a reasonable one?

What they disagreed on was how it was applied.

Dawson J said self-defence could be a reasonable excuse, relying on the continuity-of-lawful-purpose type argument found in Bell v Attwell (1988) 32 A Crim R 181. In this case, if Ms Taikato could lawfully use mace to defend herself at the time of an actual attack, she could lawfully possess it both before and after the attack. Practically, it would be silly if the law said, "You can only lawfully possess it for that precise moment you're attacked." How would she have it available to defend herself if she couldn't carry it before hand? What would she do with it after the attack? I think they're pretty good points, but, the majority held differently!

Gaudron J said self-defence could be a lawful purpose, even for a future possible attack, but would require a genuine reason to fear attack, and it was reasonable to possess the type of weapon at the relevant time and place.

Kirby J said lawful purpose related to the possession of the weapon, not its possible future use, and so self-defence could not be a lawful purpose. He too agreed that lawful purpose meant 'positively authorised'.

Kirby J considered that self-defence could be reasonable excuse, and that it didn't need to be as narrow as the legal concept of self-defence with the requirement for imminent attack.

1 Brennan CJ, Toohey, McHugh and Gummow J.
2 Dawson J agreeing at CLR 470.