Thursday, 28 May 2009

County Court appeals

An accused has an automatic right of appeal to the County Court under s 83 of the Magistrates' Court Act 1989 on sentence, or on both conviction and sentence. This second sort of appeal, where the whole case is heard again, is called a hearing de novo, Latin for as new.

These appeals are heard by a judge sitting without a jury. The justification for having a pathway of appeal from the summary jurisdiction to both the County Court and the Supreme Court is historical. Back when former registrars and JPs without any formal legal training sat on the bench in the Magistrates' Court it was considered necessary for an appellate court to review those lay decisions.

Today, with the minimum qualifications for magistrates and judges the same (and an increasing number of magistrates being appointed as judges) the reasons for retaining the de novo are less apparent. A couple of years ago the Victorian government considered abolishing them to reduce the workload of the County Court, but the idea was strongly resisted by some and was eventually rejected.

The Criminal Procedure Act 2009 retains the automatic right of appeal to the County Court, at s 254.

The online information about hearings in the County Court is not as good as the Magistrates' Court Lists. The Court Connect search function on the County Court's website requires the full name of the accused, otherwise it's unlikely to locate a match. But if you know a matter is under appeal and you simply want to check the date, this function can be handy.

Tuesday, 26 May 2009

Human rights, fair hearing and vexatious litigants

Edit: Kay had a further (unsuccessful) attempt to overturn his status as a vexatious litigant in Kay v Attorney-General for the State of Victoria (No 2) [2010] VSCA 27.

Last month Dr Manhattan discussed vexatious litigants and Stephen Warne's post on the topic.

Today, the Human Rights Law Resource Centre also posted about Kay v Attorney-General & anor. (Right now, the case isn't available online, though it shows in the daily list for 19 May. I'll edit this post to link to the case when it's available.)

I won't re-invent the wheel to tell you all about this case: the HRLRC explains it in detail. The nub of it is that Mr Kay argued the vexatious litigant order breached the right to a fair hearing in s 24 of the Charter of Human Rights and Responsibilities Act 2006. That relevantly provides:

24. Fair hearing

(1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

The Court of Appeal rejected that claim, noting the appearance before the Court was itself consistent with access to a fair hearing before the Court!

Monday, 25 May 2009

Summary courts getting busy!

Dr Manhattan's post on wilful and obscene exposure sent me looking at the stats for Victorian summary court charge rates.

It's a while since I looked at them in any great detail.

Intriguingly, the most up-to-date statistics tend to be in those produced by the Productivity Commission in it's annual reports on Report on Government Services!

Based on those, criminal lodgments in Victorian summary courts have increased significantly in the last few years.

Financial year Criminal lodgements
2004 - 05 (Table 6.2) 142 300
2005 - 06 (Table 6.2) 145 700
2006 - 07 (Table 7.2) 157 500
2007 - 08 (Table 7.2) 170 700

What are 'criminal lodgments'? This is what the Productivity Commission says:

Box 7.4 Explanation of lodgment data used in this chapter
Lodgments reflect community demand for court services, such as dispute resolution and criminal justice. The different ways of counting a court’s workload reflect the variety of work undertaken within the court system. The units of measurement of workload (or counting units) used within this chapter are:
• criminal courts — lodgment counts are based on the number of defendants
• civil and family courts — lodgment counts are based on the number of cases (except in children’s courts where, if more than one child can be involved in an application, the counting unit is the number of children involved in the originating application)
• electronic infringement and enforcement systems — lodgment counts are based on the number of unpaid infringement notices
• coroners’ courts — lodgment counts are based on the number of reported deaths (and, if relevant, reported fires)
Unless otherwise noted, the following types of lodgment are excluded from the criminal
and/or civil lodgment data reported in this chapter:
• any lodgment that does not have a defendant element (such as applications for telephone taps etc.)
• extraordinary driver’s licence applications
• bail procedures (including applications and review)
• directions
• warrants
• admissions matters (original applications to practise and mutual recognition matters)
• cross-claims
• secondary processes — for example, interlocutory matters, breaches of penalties (that is, bail, suspended sentences, probation)
• applications for default judgments (because the application is a secondary process).

Based on the Commission's statistics, it seems since 2006 (when courts of summary jurisdiction were conferred jurisdiction to deal with specified common law offences) summary criminal lodgments increased by 25 000, or around 17%

That bare number will be the result of factors like population growth, net widening, and increased use of diversion programs — and greater charge rates caused by increases to jurisdiction (such as the ability to prosecute common law offences in summary courts) and new criminal offences.

No matter the cause, the end result is more work in summary courts. So, if you've thought the summary courts seemed busier, you had good reason.

It will be interesting to see what affect the Criminal Procedure Act 2009 might have on these criminal lodgment rates.

One barrister I spoke with recently was concerned about the potential increase in adjournments and appearances at court from the new Act, because of the need to attend a summary case conference (and perhaps also a contest mention) before the accused could obtain a full brief of evidence. His view was that it could potentially be negligent for a practitioner to advise an accused without knowing the strength or weaknesses in a prosecution case and hence unable to accurately gauge the likelihood of conviction or acquittal. (The potential for negligence actions against lawyers was brought into sharp focus in the High Court's decision in Hill v Van Erp (1997) 188 CLR 159; [1997] HCA 9. Ethical obligations about the nature of advice in criminal proceedings are also imposed on legal practitioners by provisions such as Rule 12 of the Professional Conduct and Practice Rules 2005 for solicitors and Part V of the Rules of Conduct 2005 for barristers.)

The dilemma that barrister foresaw is the possibility of additional cost from extra procedural steps and attendances at court before an accused could fully assess the case against them. The result might be some accused simply couldn't afford to wait that long and might plead guilty out of economic necessity rather than a genuine acknowledgment of guilt.

I know a few members of the Bar are preparing material on the new legislation, and I expect some of it will start appearing online as the commencement date draws nearer. It will be interesting to see what their views will be.

Wilful and obscene exposure

What’s the difference between the common law offence of wilful exposure and the statutory offence of obscene exposure?

The location where the offence might occur is the main difference.

Statutory obscene exposure must occur in or within view of a public place.

Common law wilful exposure can occur anywhere, provided that the exposure was seen by one person and could have been seen by another. (Wilful exposure is in fact a specific species of public nuisance comprising offences outraging public decency. The two-person rule is the ‘public’ element of the offence.)

Amendments to s 53 of the Magistrates' Court Act1989 back in 2006 allow the Magistrates' Court to hear and determine certain common law indictable charges. Common law offences that attract Level 5 and 6 punishment became triable summarily. Those punishment levels for common law offences are prescribed by s 320 of the Crimes Act 1958:

  • Affray

  • Breach of prison

  • Bribery of public official

  • Common assault

  • Criminal defamation

  • False imprisonment

  • Misconduct in public office

  • Public nuisance

  • Riot

  • Rout

  • Unlawful assembly

  • Wilful exposure
Edit: Now, Criminal Procedure Act 2009 s 28 provides that common law offences punishable by Level 5 or 6 imprisonment may be determined summarily.

These changes have led to more statutory and common law charges being dealt with together in the Magistrates' Court. Where once the police informant chose between process in the County Court for common law offences or the Magistrates' Court for similar summary offences, the summary jurisdiction may now hear both. (Provided the Court deems it appropriate and the accused consents to the jurisdiction for the common law charges.)

There's no impediment to alleging multiple offences that refer to one alleged act or transaction by the accused: s 51 Interpretation of Legislation Act 1984 . Failure to do so might lead to duplicity: see, for example, R v His Honour Judge Hassett (1994) 76 A Crim R 19.

Some common law offences are so similar to their statutory cousins that there's little or no forensic advantage if the prosecution proceeds with both types of charge. (Except common law offences have no limitation period for commencing criminal process, because they're all indictable.) Common assault is an example of offences that are almost the same in common law and statutory form. (See R v Patton, Caldwell and Robinson [1998] 1 VR 7, discussing common assault as it applies to an offence of burglary.)

Other times the elements of the offences are quite different. An example of this is wilful exposure contrary to common law. It was added to the list in Crimes Act s 320 recently by s 13 of the Criminal Procedure Legislation Amendment Act 2008.

In contrast, obscene exposure is a statutory offence found at s 19 of the Summary Offences Act 1966. It hasn't always been there, but was inserted when the Vagrancy Act was repealed in 2005. The re-enacted offence reads:

A person must not wilfully and obscenely expose the genital area of his or her body in, or within the view of, a public place.

Penalty: 2 years imprisonment.
Common law exposure doesn't require the prosecution to prove the act took place in or within the view of a public place: R v Fonyodi [1963] VR 86. It is sufficient that one person did, in fact, see the act, and that another person of any age was in a position to see it, without the requirement for the observer or potential observers to be in a public place: R v Towe [1953] VLR 381; [1953] ALR 502.

Sunday, 24 May 2009

UK police told: delete protesters' photographs

The Times reports that last Thursday the English Court of Appeal ordered the Metropolitan Police to delete photographs of peaceful protesters demonstrating against the arms trade.

(The case is Wood v Commissioner of Police for the Metropolis [2009] EWCA Civ 414.)

The Times reports the Court's order was stayed for a month to allow the police the chance to appeal to the House of Lords. (Though if that happens, by the time the appeal is heard, it will probably be before the new UK Supreme Court.) As far as I know, that would be the first ultimate-court-of-appeal judgment dealing with police taking and retaining photographs of people in public order situations. (Though in R v Ireland (1970) 126 CLR 321 Barwick CJ said police could photograph a suspect for identification purposes.)

This case relied heavily on the operation of the European Convention on Human Rights Articles 8, 10, 11 and 14 (roughly equivalent to Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 13, 15, 16, and 8.

Australian privacy law is still at the embryonic stage, with a tort of privacy yet to gain widespread judicial acceptance. So far, following on from the suggestion in ABC v Lenah Game Meats (2001) 208 CLR 199 that people (but not corporations) might be protected by a tort of invasion to privacy, two Australian decisions have recognised such a tort: Grosse v Purvis [2003] QDC 151 and Jane Doe v ABC [2007] VCC 281. (Both are discussed in the Victorian Law Reform Commission Discussion Paper for its Surveillance in Public Places inquiry I mentioned a few weeks ago.)

To date, there haven't been any similar cases under Victoria's Charter. But, given the incremental developments on a tort of privacy, it might be we see further action along the lines of Woods taken under the provisions of the Victorian Charter.

Saturday, 23 May 2009

Mistakes of fact, mistakes of law (revisited)

If errors of law don't attract the honest and reasonable claim, what's going on with offences of driving when suspended or disqualified contrary to Road Safety Act s 30? If the status of a liquor licence is a matter of law, as the High Court found in Bergin v Stack, why should the status of a driver licence be treated differently?

The simple answer, of course, is Kidd v Reeves [1972] VR 563. In that case, Menhennit J held that if a driver honestly and reasonably believed they were licensed, that provided a defence to a charge of driving when their licence was suspended.

Reading Kidd v Reeves, it's pretty clear that Menhennitt J didn't specifically consider if belief about one's licence status is a matter of fact or law, and instead focussed on the honesty and reasonableness of the driver's belief. Nevertheless, the case is widely quoted as authority that an honest and reasonable mistake of fact claim is open for the offence of driving when disqualified.

In Western Australia the position is totally reversed. In Minear v Rudrum (2001) 33 MVR 119; [2001] WASCA 10, the Court of Appeal ruled that knowledge of an administrative cancellation of licence was purely a matter of law, not fact. In that case, the Court accepted that Dylan Minear was actually advised his licence was valid. The honest and reasonable limbs of his claim were (presumably) made out, but the appeal was dismissed because his mistake was legal, not factual.

So, is mistake of fact a defence to disqualified driving?

Well, it depends.

Part of the problem is the different ways a person might be disqualified or have their licence suspended.

But, if we remember Gleeson CJ and Kirby J's statement in Ostrowski v Palmer to consider the elements of the offence and identify if the accused must know of those elements, perhaps the defence is not available to charges contrary to Road Safety Act s 30.

The first thing to remember is that a licence is, in Victoria at least, legal authorisation to drive on public roads. Driver licence is defined in Road Safety Act s 3.

driver licence means a licence granted under Part 3

Section 19(3) provides:

(3) A licence authorises a person to drive on a highway any categories of motor vehicle indicated in the licence for the term, and subject to any conditions, specified in the licence.

Now, consider when a person pleads ignorance of suspension by a demerit-points notice.

Section 25(4A) provides:

(4A) A demerit point option notice or a notice under subsection (3B)(c) sent by post addressed to the holder of the licence or permit at his or her current address as shown in any record maintained under this Act must be taken to have been served on that person 14 days after the date of issue of the notice unless at any time after that period of 14 days the Corporation is satisfied that the notice has not been served on that person.

Section 93 provides:

If under this Act or the regulations a notice is required or permitted to be served on any person, the notice may, unless the contrary intention appears, be served in or out of Victoria-
(a) by delivering it personally to the person; or
(b) by leaving it at the usual or last known place of residence or business of the person with a person apparently over the age of sixteen years and apparently residing at that place or (in the case of a place of business) apparently in charge of or employed at that place; or
(c) by sending it by post addressed to the person at the usual or last known place of residence or business of that person; or
(d) if the person has given to the Corporation as his or her address an address that is not his or her place of residence or business, by sending it addressed to the person at that address.

That suggests that actual knowledge of the suspension is not an element of the offence.

Or consider the person who is unaware of a pending charge against them, and the charge is heard in their absence. If served by post, they have an absolute right to a re-hearing under Magistrates' Court Act 1989 s 95, and a discretionary right under s 93. (Similar provisions will are found in the Part 3.4 of the Criminal Procedure Act 2009.)

Those provisions provide a remedy for the person who genuinely didn't know about pending charges that resulted in licence suspension or cancellation.

But...what about Road Safety Act s 30A? That allows a court to impose a substitution period of suspension or disqualification if a person is acquitted of an offence because they didn't know they were disqualified.

Does that imply the defence is available? Or maybe the drafters simply had Kidd v Reeves in mind when they wrote the section?

Friday, 22 May 2009

Seatbelt amendments

The government brought in some changes to seatbelt laws last December, partly in reaction to some horror smashes on the roads. Extra provisions were inserted into Schedule 4 of the Road Safety (Road Rules) Regulations via the (imaginatively titled) Road Safety (Road Rules)(Seatbelt) Amendment Regulations 2008.

The intent of the changes was to increase fines for seatbelt offences and create offences for sharing a seating position with another passenger, and for not occupying a position with a seatbelt fitted to it.

Changes to the Road Rules — Victoria aren't made to the Road Rules themselves, but in the Road Safety (Road Rules) Regulations that apply the Road Rules in force in Victoria. In theory, this keeps the Road Rules uniform across Australia, but the reality is it makes the rules look uniform despite some variations from state to state.

For example, if we look at the Road Rules by themselves, the default speed limit in a built up area is still 60 km/h, almost a decade after it was lowered to 50 km/h. That change to Victorian speed limits is in fact found at clause 5, Schedule 4 of the Road Safety (Road Rules) Regulations 1999:
5. In rule 25(2) of the Road Rules, the reference to 60 kilometres per hour is to be read as a reference to 50 kilometres per hour.
It's similar for signs, mobile phones, vehicle safety standards and an assortment of other modified rules.

The problem with this approach is that it makes it difficult for the general public to access the relevant law (as well as for for folk who have to enforce and apply those laws). The Australian Road Rules provide the model for each state and territory. They're maintained by the National Transport Council and sponsored by the Australian Transport Council. The ATC is a ministerial council (kind of a road safety equivalent to COAG), and the NTC is a statutory body that makes the ATC's decisions happen. Confusing? Well, it's probably not immediately obvious to the average road user. VicRoads does mention the effect of Schedule 4, but you're not likely to note it if you're not already aware of it.

One of the few case laws on seatbelts concerns the meaning of properly fastened and adjusted, which is a requirement of wearing a seatbelt. In Moroney v Wodcicka (2003) 39 MVR 358, the ACT Court of Appeal considered if the phrase created a subjective test (the driver wearing the belt in a way he claimed was right for them, such as with the shoulder sash worn under their arm) or an objective test (worn as the designer intended).

Unsurprisingly, the Court went with the objective test.

Losing evidence might mean losing the case: R v Edwards

Edit: Reference was made to R v Edwards when the Court of Appeal refused to grant a permanent stay in Wells v The Queen [2010] VSCA 100. It was argued that the accused suffered an irreparable forensic disadvantage in defending a charge of culpable driving the vehicle he'd been driving having been scrapped.

Ashley JA [beginning at 22]:

22 In the present case, I am not at all persuaded, as matters presently stand, that the destruction of the vehicles, most particularly the utility, constituted circumstances which would justify grant of a stay. Whilst the applicant was deprived of the opportunity of having his expert examine the vehicles, the examiner’s conclusions, based upon his inspection of them, are not challenged. Further, it appears to me to be quite improbable, as matters stood at the end of the evidence of the examiner and Mr Marshall on the voire dire, that examination by the latter could have provided evidence of a defect which could explain the collision. I consider also that the applicant is by no means deprived of a forensic answer to the examiner’s evidence. Again, the trial judge could no doubt seek to redress any disadvantage faced by the applicant by an appropriate observation.

23 I should add this: The police did no more than release the utility to its owner. It was not the police who destroyed it, or gave instructions for its destruction. Indeed, it was common ground that the police followed ordinary practice in returning the vehicle, after inspection, to its owner.

24 Counsel for the Crown nonetheless accepted that, in the particular case, it would have been better had the police retained the vehicle. I agree. It was pertinent that - (1) the owner of the utility was someone other than the applicant; (2) the police were apparently on notice, before the vehicle’s release, that the applicant was asserting that he had no recollection of the incident; and (3) the circumstances of the incident were, on their face, unusual. But to say that a different course would have been the preferable course is not to say that the course which was followed requires grant of a permanent stay. I do not accept the submission that the conduct of the police was such as to bring justice into disrepute.

Application had been brought by the accused under s 296 of the Criminal Procedure Act. His application was refused and the matter returned to the County Court for the trial to continue.

Both cases were then applied in El Bayeh v The Queen [2011] VSCA 44, a case where drugs were destroyed prior to trial. The Court of Appeal ruled the prejudice was only potential, and not actual, and dismissed the appeal.

The High Court yesterday delivered its judgment in R v Edwards [2009] HCA 20, deciding that a prosecution of two airline pilots should not be permanently stayed though evidence was lost and the prosecution was unjustifiably delayed.

The respondents were the captain and first officer of a Qantas jet operating in and out of Launceston airport at night on 23 October 2001.

The air traffic control tower wasn't staffed late at night, so the pilots had to turn on the runway lights using the Pilot Activated Lighting System, a nifty remote control in their plane.

A couple of workers at the airport complained to the Civil Aviation Safety Authority (CASA) and Air Transport Safety Bureau that the aircraft took off when the runway lights were off — an offence contrary to the Civil Aviation Act 1988.

CASA investigated and referred its investigation to the Commonwealth DPP, but the prosecution didn't commence until 30 March 2004.

By the time that prosecution commenced, two pieces of important electronic evidence were gone.

The first was a monitoring record of activations at the airport of the Pilot Activated Landing System.

The second was the aircraft's Flight Data Record. (That's the black box we often hear about in aircraft crashes — thought it's actually bright orange!) The FDR recorded radio transmissions from the aircraft — such as would have been used by the Pilot Activated Landing System to turn the runway lights on. The FDR data wasn't recovered in the 15 or so days it was retrievable after the incident, and was then overwritten and lost forever.

The pilots contested the charges, and the judge at first instance stayed the charges because of the delay, and loss of the evidence.

In a joint judgment, the High Court found:

[28] An essential element that the Crown must prove in support of the principal and alternative counts is that the runway lighting was not on at the time the aircraft moved along the runway and took-off. The lost evidence goes to this issue as does the testimony of witnesses whose accuracy and reliability may be affected by delay...

[29] His Honour had earlier concluded that the delay alone would not warrant a stay of proceedings. He distinguished between the delay to the date the complaints were laid and the subsequent delays associated with the court proceedings. However, his ultimate conclusion was based upon the loss of the primary evidence and "overall" delay. It was not explained how the overall delay operated in combination with the lost evidence to create irremediable prejudice to the respondents, nor did his Honour address the circumstance that at least some of the delay was attributable to the conduct of the defence. On the appeal the respondents do not rely on the overall delay but maintain that the unexplained delay of two years and three months before the complaints were laid occasioned prejudice in that they had lost the opportunity to obtain the early recollection of witnesses. It is to be noted that the respondents were on notice of the allegation not later than 2 January 2002.

[30] The respondents do not contend that the loss of objective evidence, such as electronically recorded data or the like, would ordinarily justify a stay of proceedings on indictment. In the course of argument the respondents conceded that the loss of film recorded by a closed-circuit television camera at the scene of an alleged offence would not afford a basis for a stay. They seek to distinguish their case on the basis that the loss here is of the independent record of the event giving rise to the charge. This is said to be productive of unfairness of the kind that informs the power to stay since the trial will necessarily involve an incomplete reconstruction of the event.

[31] The distinction between an independent record forming a constituent part of an event and an independent record of an event is without substance. Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair.

[32] The respondents submit that in the event error is established their application should be remitted to the Supreme Court of Tasmania given what is described as "the complexity of the factual matters". This submission should be rejected. The exercise of the primary judge's discretion has been shown to have miscarried. It is open to this Court to reach its own decision in substitution for that of the primary judge in circumstances where, as here, the materials are before it.

[33] It is well established that the circumstances in which proceedings may be found to be an abuse of process are not susceptible of exhaustive definition. It is not necessary to consider whether there may be circumstances in which the loss of admissible evidence occasions injustice of a character that would make the continuation of proceedings on indictment an abuse of the process of the court. This is not such a case. The content of the Monitor List and the recording made by the FDR is unknown. In these circumstances it is not correct to characterise their loss as occasioning prejudice to the respondents. The lost evidence serves neither to undermine nor to support the Crown case. It is to be observed that if the Crown is unable to exclude the hypothesis, that the runway lighting was illuminated as the aircraft moved along it and that it ceased operating coincidentally at the time of take-off, it would fail to establish an element of the principal and the alternative offence.

[34] There is no feature of the delay that justifies taking the extreme step of permanently staying proceedings on the indictment. It has not been established that any prejudice arising by reason of the delay cannot be addressed by direction.

This is interesting, because the High Court didn't think the loss of potentially exculpatory evidence warranted a stay. (And, it did note the evidence might have been incuplatory.)

I know of two authorities that might have suggested a different result.

In Boyce v Nunn (1997) 138 FLR 475; [1997] NTSC 66, the Supreme Court of the Northern Territory allowed an appeal against an unsafe conviction. The accused was remanded in custody, so couldn't interview a particular witness. The investigating police didn't interview the witness, who might have provided exculpatory evidence.

In Rukavina v Police [2004] SASC 247, the Supreme Court of South Australia allowed an appeal against conviction because exhibits weren't retained for production at the original prosecution. That meant it was impossible to determine ownership of allegedly stolen property, and so the conviction was unsafe.

(Despite these two cases, there's no general rule in Australia that a complete investigation is a necessary element of a trial or fair hearing: Penny v The Queen (1998) 155 ALR 605; [1998] HCA 51.)

Neither case was cited in Edwards. But, though the two cases deal with a similar theme to Edwards, the precise point of law was subtly different. Edwards considered a permanent stay based on the absence of relevant evidence. Boyce v Nunn and Rukavina dealt with quashing unsafe convictions based on the absence of relevant evidence.

The High Court noted it wasn't possible to tell if the missing evidence helped or hurt either party. And that meant its unavailability didn't equate to prejudice. So it didn't warrant such a drastic step as stopping the prosecution.

But the High Court did note the trouble the prosecution would have negating reasonable hypotheses consistent with innocence, because it didn't have the missing evidence. That sounds like a pretty clear hint about what the High Court thought would happen when the charges were determined.

And presumably, if the charges did succeed, the airline pilots would then have a good chance of them being quashed on appeal, relying on the principles in Boyce v Nunn and Rukavina.

Moral of the story? Prosecuting agencies need to gather all evidence early, and keep it until charges are finalised. Hardly a novel idea, but still a valid observation.

Thursday, 21 May 2009

Emailing judges

Further Edit: The County Court Practice Direction on communication with associates is here.

Edit: Many thanks to Stephen Warne for this post drawing my attention to the Federal Court's decision in John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34 where the Court succinctly stated the relevant principles of ex parte communication [at 12]:

12 The rule is that a judge should not receive any communication from anyone concerning a case that the judge is to decide, made with a view to influencing the conduct or outcome of the case. See, for example, Re JRL; Ex parte CJL (1986) 161 CLR 342 (“Re JRL”) at 346 (Gibbs CJ) and 350 (Mason J), both citing Kanda v Government of Malaya [1962] AC 322 at 337 and Reg. v Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] VR 122 at 127. In this context, communications made by one party without the knowledge of the other are governed by the principle that a judge should disqualify himself from hearing a matter where a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the issues in the case: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344; British American Tobacco Australia Services Ltd v Laurie (2011) 273 ALR 429; [2011] HCA 2 at 464-5, [139]-[140]; Re JRL at 351. This is the apprehension of bias principle.

Stephen very sensibly makes the point that CCing an e-mail to an adversary takes no time at all. If you don't want your opponent to read your communication with the court, should you be sending it anyway?

The latest case has just been handed down in the never-ending litigation I like to think of as Our Legal System v Modern Technology. There's rarely been a cosy relationship between these titans, and every now and again there's a little grinding noise that suggests that they can't peacefully coexist.

On this occasion, laid out in R v Fisher [2009] VSC 100, a series of emails were exchanged between a Judge's Associate and a solicitor from the OPP. The accused appealed on the ground that, as his counsel had not been included in the email distribution, he was prevented from being aware of their contents and able to make submissions on them. It was argued that the material enclosed in the emails prejudiced the plea of mitigation made on his behalf. They contained the results of further investigation undertaken by the Crown, and led the sentencing judge to conclude she was misled by earlier statements made by the accused through his counsel.

Although ex parte communications between a party and an associate are nothing new (arguably, they're an important function of an associate), the emails were different from a verbal conversation because they thoroughly documented the details of the exchange.

The Court of Appeal found that the sentencing judge was misled by the accused, and was entitled to take this into account in discounting his claim of remorse. While finding that their discretion to re-sentence was activated, the Court declined to do so and re-imposed the original sentence.

Sentencing range

A few weeks ago I wrote about prosecutors duties on sentencing in light of the Court of Appeal's decision last year in R v MacNeil-Brown [2008] VSCA 190.

I wondered if the Court was saying prosecutors should provide submissions on sentencing off their own bat, or only when invited by the Court.

Yesterday, the Court of Appeal delivered its judgment in DPP v Monteiro [2009] VSCA 105. Monteiro was a Director's appeal against inadequate sentence.

To me, the interesting thing was that the Court of Appeal asked the Director to identify what he argued the appropriate sentencing range was. The Director did — and was quite specific. Here's the chart the Director provided:


Count 1 — intentionally causing serious injury
Sentencing range: 4 — 5 years' imprisonment

Count 2 — common assault
Sentencing range: 9 — 12 months' imprisonment

Sentencing range: 3 — 6 months' imprisonment

Total effective sentence
Sentencing range: 4 years 3 months — 5 years 6 months imprisonment

Non-parole period

2 — 3 years' imprisonment

(The Court agreed the original sentence was inadequate, but decided not to use its discretion to alter the sentence.)

Traditionally, Courts didn't want to hear such detailed submissions on sentencing ranges. They were concerned that the sentencing process might turn into some perverse form of bartering or bidding, with opposing counsel jockeying for an acceptable tariff. Courts accepted that counsel could discuss the appropriate sentencing level — jail, community based order, fine, etc. But the tension I mentioned in my earlier post between judicial officers who thought it submissions on range hindered or helped made it difficult to know when courts wanted to hear such submissions, and with what level of precision.

It seems reasonably clear appellate courts want fairly precise submissions. But...they want them backed up with relevant sentencing statistics, and reference to precedent. That means the advocate who wants to say something about sentencing range better come prepared.

And I still think it isn't entirely certain if they want them in all cases, or only when requested, as happened in this appeal. But again, it seems courts are asking for that level of detail. At [31] in this judgment, Buchanan JA noted the prosecutor in the County Court "did not say that a sentence of three years’ imprisonment or less was not available to the sentencing judge." That suggests specific range was discussed at the County Court, and that the Court of Appeal was implicitly endorsing and relying on that discussion.

Wednesday, 20 May 2009

Council member Murphy

Our (overdue, but still sincere) congratulations to the newest member of the Bar Council of the Victorian Bar.

According to a recent In Brief, Brendan Anthony Murphy QC was declared the winner of a Bar Council by-election on 6 May 2009.

Fishing for a fact? Ostrowski v Palmer

Dr Manhattan's post Mistake of fact, or mistake of law? a couple of weeks ago didn't get around to discussing Ostrowski v Palmer (2004) 218 CLR 493; [2004] HCA 30, the High Court decision about the West Australian fisherman who was fishing where he shouldn't have been. There's a limit to how much we can write in a single post before your eyes glaze over looking at the mass of text, so we figured we'd cover it in a separate post.

It's a story that so easily demonstrates the difference between a mistake of fact and a mistake of law that you might think it was a hypothetical, made up just for that purpose.

In case the facts in Ostrowski v Palmer don't immediately spring to mind, here's a short version of them...

Jeffrey Palmer was a professional rock-lobster fisherman. On 13 November 1998 he went to the Fisheries WA office in Fremantle. He asked for the current regulations to cover the 1998/99 season. They weren't available, but the person he spoke with at the reception counter provided him documents and pamphlets. Unfortunately for Mr Palmer, none of the material mentioned a particular regulation. The effect of that particular regulation was to prohibit commercial rock-lobster fishing at a place called Quobba Point, which (if Google maps is accurate) is a little north of Canarvon, about 900 km north of Perth.

On 7 and 9 February 1999, Mr Palmer placed rock-lobster pots near Quobba Point. On 10 February, Fisheries officers spoke with him, and George Ostrowski later charged him.

The charge was heard on 1 March 2000. The magistrate rejected the defence of honest and reasonable mistake of fact (in WA, found in Criminal Code s 24). He imposed an obligatory fine of $27 600, as well as a further $500 fine, and awarded $2000 costs against him. The magistrate specifically found that Mr Palmer acted honestly and reasonably, but his mistake was one of law, not fact.

Mr Palmer appealed to the Full Court of the Supreme Court of Western Australia.

In a 2:1 decision, the Full Court found that Mr Palmer's mistake was one of fact.

Fisheries WA appealed to the High Court.

The High Court found, 5:0, Jeffrey Palmer's mistake was one of law, not fact.

Gleeson CJ and Kirby J emphasised the importance of identifying the elements of the offence to be proved.

[1] [I]f a person is alleged to have committed an offence, it is both necessary and sufficient for the prosecution to prove the elements of the offence, and it is irrelevant to the question of guilt that the accused person was not aware that those elements constituted an offence.

They held that the only mistake Mr Palmer made was a mistake resulting from his ignorance of the law, at [12].

McHugh J came to the same conclusion.

[39] In response, Mr Palmer contends that the earlier dealings with Fisheries WA are relevant — indeed fundamental — to characterising his mistake. He submits that at all material times he possessed an honest and reasonable, but mistaken, belief that:
(a) he had been provided with all relevant regulations concerning the area where he proposed to fish;
(b) there was no regulation bearing on the closure by Fisheries WA of the waters in which he proposed to fish or, in short, that reg 34 of the regulations did not exist; and
(c) he was lawfully entitled to fish where he did.

[41] At common law, and in my opinion under the Criminal Code, once the prosecution proves in relation to a strict liability offence that the defendant knew the facts that constitute the actus reus of the offence, that is, all the facts constituting the ingredients necessary to make the act criminal, the defendant cannot escape criminal responsibility by contending that he or she did not understand the legal consequences of those facts. In R v Turnbull, Jordan CJ, when discussing the common law concept of mens rea, said:
[I]t is also necessary at common law for the prosecution to prove that he knew that he was doing the criminal act which is charged against him, that is, that he knew that all the facts constituting the ingredients necessary to make the act criminal were involved in what he was doing. If this be established, it is no defence that he did not know that the act which he was consciously doing was forbidden by law. Ignorance of the law is no excuse. But it is a good defence if he displaces the evidence relied upon as establishing his knowledge of the presence of some essential factual ingredient of the crime charged. [Emphasis added]

This passage was cited with approval by Brennan J in He Kaw Teh v R.

Callinan and Heydon J came to the same conclusion.

[90] The difficulty for the respondent is that there were here a series of mistakes, the one to which Olsson AUJ referred, the actual decision to rely on the information with which he had been provided, and the actual reliance, by fishing in the embargoed waters. The last is a different mistake from, for example, a mistake as to the location of his vessel or his lobster pots. The last, it can be seen, is discrete in time, place and physical activity from the other two, although but for them it is unlikely that it would have been made. The offence of which the respondent was convicted was not of failing to obtain, or hold and rely on complete and accurate materials, but of fishing where professional fishing was impermissible. The elements of the offence consisted of fishing in the embargoed waters, an activity which the respondent knew to be proscribed. Unfortunately, in the circumstances he could be no less guilty than a motorist who has done everything reasonably possible to ascertain the speed limits on a stretch of roadway along which he is to travel but having failed to do so, in one or more instances, exceeds those limits because he was unaware of them.

(They were also pretty scathing of the exercise of prosecutorial discretion to commence the proceedings.)

The case shows how important it is to figure out if a mistake is one of law or fact. And, how hard it can be. In this case, when the dust settled 5½ years after Jeffrey Palmer fished for rock-lobster, 9 judicial officers had considered the case and it was only at the High Court — the final court of appeal in Australia — that all agreed his mistake was one of law, not fact.

The renewed emphasis on identifying the nature of the mistake could alter accepted wisdom about summary prosecutions for driving when suspended or disqualified. But more about that soon...

Tuesday, 19 May 2009

Culpable driving and complicity

Sad times at the County Court yesterday, as a young man was sentenced for culpable driving for the death of a friend in a crash in September of 2007. As if events weren't tragic enough, both of the young men and their families were from Kinglake, a town that's had more than its share recently.

These sorts of cases pose a difficult problem for sentencing courts. Balancing the interests of the offender against the need for general deterrence is not easy. This must be particularly true where the family of the victim are pressing the court to show leniency toward the offender.

One of the most difficult questions for a court to resolve is whether the complicity of the deceased person (their willing involvement in the commission of the offence which they become the victim of) can be considered a mitigatory fact. The High Court wrestled with similar questions - in a negligence context - in the case of Joslyn v Berryman (2003) 214 CLR 552. In R v Tran, it was decided that the complicity of a victim can't be considered mitigatory, but might be considered the absence of an aggravating feature.

Whether it has any effect on the penalty imposed, Callaway JA emphasised [at 34], will turn on the particular facts of a case.

Monday, 18 May 2009

Tweaks to the site

I read up on how to implement something called fluid-width instead of fixed-width on the blog, and I think I've got it right.

You might notice the blog fills more of the page. If you're using a 600 x 800 resolution, you probably won't see much change, but I tried to ensure the blog will still render properly at that resolution. (It'll look better at higher resolutions though.)

But, if you see any strangeness, let me know and I'll see if I can figure out how to fix it.

Gambling addiction isn't mitigatory

Edit: One of the reasons given why a gambling adddiction doesn't fit within the application of Verdins is because, to quote Redlich JA in Grossi, "it will frequently be the case that crimes associated with gambling addiction will have been repeated and extended over a protracted period." In R v Cusack, it was argued that the more spontaneous character of the offending (a robbery to pay gambling debts) could attract the principles of Verdins.

The Court of Appeal (Nettle, Redlich and Lasry) unsurprisingly rejected the argument. Not only was the quote above held not to be an essential precondition of the rejection of Verdins principles, it was also found that the offences of Cusack lacked the spontaneous quality argued, but in fact required significant preparation.

In R v Grossi, the Victorian Court of Appeal decided between two distinct lines of judical authority, dealing with the sentencing of addicts and the mentally ill. Though at first they appear to conflict, the Court decided they don’t.

There are lots of cases where gambling addiction was held to offer little or no mitigation for offending. In R v Atalla, R v Telford, R v Molesworth and R v Luong, Ngyuen & Cao the courts said in one way or another that the reduction in moral culpability from pathological addiction to gambling was outweighed by the need for general deterrence. Put in plain-speak: if offenders get lighter penalties for feeding an addiction, other addicts are more likely to yield to temptation and commit similar crimes.

Whether this is actually the case or not, Grossi's counsel knew that they were hard against it arguing gambling addiction in mitigation for their client. The sentencing judge rejected the plea for leniency. On appeal they argued though gambling addiction couldn't be mitigatory, underlying depression that caused the gambling addiction and in turn motivated the crime, could be.

A mental disorder, abnormality or impairment of mental function can be mitigatory even if it falls short of being a serious mental illness: R v Tsiaris [1996] 1 VR 398; R v Verdins (2007) 16 VR 269.

If a person was mentally unbalanced at the time they offended, that might affect their moral culpability and hence the appropriate sentence. This type of offender is not considered “an appropriate vehicle for general deterrence”: Tsiaris, citing R v Mooney, unreported, Court of Criminal Appeal, 21 June 1978 per Young CJ. The penalty should also be reduced if the offender will find imprisonment more onerous because of their mental condition.

The two lines of authority are difficult to reconcile for those who consider gambling addiction is a mental illness. If gambling addiction is a mental illness, so the thinking goes, why would it be excluded from the application of the principle in Tsiaris and Verdins?

Redlich J answered this question in Grossi.

[56] Properly analysed, there is in my view no tension between the principle explained in Verdins and those authorities which have dealt with gambling addiction. Evidence may establish that an offender suffers from an impulse control disorder in the form of pathological gambling listed in DSM-IV-TR, the essential feature of which is 'persistent and recurrent maladaptive gambling behaviour that disrupts personal family or vocational pursuits'. The relevance of the disorder to the sentence to be imposed, is then to be assessed in accordance with the principles restated in Verdins. That assessment will generally lead to the conclusion that the presence of a gambling addiction should not, on that ground alone, result in any appreciable moderation of the sentence. There are a number of reasons why that will be so.

Firstly in most cases, the nature and severity of the symptoms of the disorder, considered in conjunction with the type and circumstances of the offending, will not warrant a reduction in moral culpability or any moderation of general deterrence.

Secondly, it will frequently be the case that crimes associated with gambling addiction will have been repeated and extended over a protracted period. The long term chase to recoup losses is characteristic of those with such a disorder.

Thirdly, in cases involving dishonesty, the crimes will commonly be sophisticated, devious, and the result of careful planning.

Fourthly, the gravity of such offences, if there is a breach of trust or confidence, will commonly attract an increased penalty making such offences more appropriate vehicles for general deterrence.

Fifthly, when offences of this nature are committed over extended periods, the prominent hypothesis will be that the offender has had a degree of choice which they have continued to exercise as to how they finance their addiction. This has often provided a reason for a general reluctance to temper the weight given to general deterrence or to reduce moral culpability because an offender has found it difficult to control their gambling obsession.

Finally, and perhaps most importantly, the nexus of the addiction to the crime will often be unsubstantiated. The disorder will not generally be directly connected to the commission of the crime, the addiction providing only a motive and explanation for its commission. Hence, by contrast to a mental condition that impairs an offender’s judgment at the time of the offence, such addiction will generally be viewed as only indirectly responsible for the offending conduct.

The Court of Appeal decided Grossi's gambling addiction didn't justify reducing his penalty. Grossi's sentence was adjusted downward slightly, but for reasons that had nothing to do with that ground of his appeal.

So even though a person’s mental condition could mitigate their offending, it usually won’t. The seriousness of the offending and tenuous connection between addiction and offence means only rare cases fall in the Tsiaris and Verdins category.

Verdins actually dealt with three appeals: Verdins, Buckley and Vo. The reasons why the Court of Appeal dismissed Buckley's appeal are interesting, and are more like the matters routinely heard in the Magistrates' Court, while the facts in Verdins and Vo are a little bizarre.

Friday, 15 May 2009

No general duty to rescue

We're not usually interested in discussions of negligence torts law, but this case might have implications in the Magistrates' Court. In Stuart v Kirkland-Veenstra [2009] HCA 15, the High Court considered if police officers owe a duty of care to prevent a person from committing suicide.

The Victorian Court of Appeal previously held that a duty of care existed.

The High Court disagreed.

Gummow, Hayne and Heydon JJ decided the Mental Health Act 1986 s 10 provides a statutory power to police to detain people who appear mentally ill if they reasonably believe the person is likely to harm themselves, at [81]. (That's a paraphrase of the legislation: see the judgment for the detailed exploration of the power.)

They emphasised that the section bestowed power that may be used, at [82]. They considered that the duty purportedly imposed on the police was properly categorised as a duty to exercise that statutory power, rather than a common-law duty to prevent self-harm.

They then discussed statutory duties, at [112]. They said it takes more than the existence of a statutory power and a reasonable foreseeability that harm will occur if the power isn't exercised, to establish a duty to exercise that statutory power.

Instead, a court will look at who can control and prevent harm occurring. In this case, it was Mr Veenstra who controlled the risk of harm to Mr Veenstra, at [114]. That was important in deciding there was no common-law duty to exercise the power under s 10.

In their joint decision, Gummow, Hayne and Heydon JJ said:

[88] Personal autonomy is a value that informs much of the common law. It is a value that is reflected in the law of negligence. The co-existence of a knowledge of a risk of harm and power to avert or minimise that harm does not, without more, give rise to a duty of care at common law. As Dixon J said in Smith v Leurs, '[t]he general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third.' It is, therefore, 'exceptional to find in the law a duty to control another's actions to prevent harm to strangers.' And there is no general duty to rescue.

French CJ considered there was no power under s 10 available to the police, because the police had no reason to believe Mr Veenstra was mentally ill, as defined in the Act. He reasoned that a stated intention to commit suicide didn't automatically equate to mental illness. There was no reason to believe Mr Veenstra was mentally ill. So the police had no power to detain him. And, they couldn't be under a duty to use a power not lawfully available to them.

Crennan and Keiffel JJ said the common law didn't oblige anyone to protect someone else from self-harm, at [127], though legislation might. But at [147], they too observed that s 10 required the police reasonably believe a person was mentally ill before they had any power to act. They too said recent attempts or an intention to commit suicide didn't mean a person was mentally ill. That meant the police didn't have any power to detain Mr Veenstra. And because that power wasn't available, there was no question about whether or not the police should've exercised it.

The Victorian Government Solicitor's Office (VGSO) describes the history of the case, and analyses the High Court's decision, on its website.

Another perspective is available from ABC Radio National's Law Report.

It's interesting to consider this judgment in light of a Coroner's decision delivered two days ago. The Age reported the Coroner criticised two police officers who left a man on the Sturt Highway, about 12 km out of Mildura. Paul Carter was intoxicated, and the police were taking him to his father's house when he asked them to let him out and walk. Soon after he was killed by a truck, after deliberately twice running in front of trucks with the intention of getting hit.

It's difficult to know precisely what the Coroner said. I can't find Coronial findings online (let me know if they are available somewhere), and it might be The Age hasn't covered all the nuances of the finding.

And of course, Coronial findings focus on different legal issues to determining liability in negligence law.

But it seems there might be some difference between the Coroner's findings and the reasoning of the High Court.

And no doubt we'll see more litigation on the scope and content of police officers' duties to protect members of the public.

Thursday, 14 May 2009

Sentencing sex offenders

Ian Freckelton SC is an authority on several fields of law in Victoria.

I greatly admire his skills at a sentencing hearing. Having watched him do pleas in court and read some of his writing on the subject, the thing I've always been most impressed by is that he isn't afraid to refer to his opponent's best arguments.

Bad advocates don't address counter-arguments; they just ignore them entirely. Better ones talk about the flaws of their opponent's case. Dr Freckelton goes all the way. Given half a chance, he'll take the opposing case and talk about how good it is.

There's an inevitable moment of confusion that results when this happens.

"Hang on. How can emphasising the seriousness of the offence be good for his client?"

But as he speaks, Dr Freckelton's initially glowing description of his opponent's argument fades. There are weaknesses to any point of view and Dr Freckelton gives the appearance of wanting to be scrupulously accurate, so goes on to describe in minute detail what he finds to be the shortcomings of his opponent's case.

Methodically and seamlessly the submissions continue, until he arrives home at his chosen destination: his client's position. By comparison, his opponent's arguments appear superficially attractive, and inherently flawed. So yesterday. It's a persuasive technique which would be difficult to counter once it's got rolling.

There's no better example of Dr Freckelton's approach than in his paper Pleas in Sex Cases: Risk, Recidivism and Recalcitrance. As he is the first to say, making a plea of mitigation for serious sex offenders is no easy task. This paper draws together some of the best arguments from both ends of the bar table, making it a useful sentencing resource for both prosecution and defence.

Wednesday, 13 May 2009

Finding judicial consideration of legislation — Part 2

This is the second post in an occasional series about legal research.

It's a very brief introduction to using Thomson's FirstPoint. FirstPoint is an electronic version of the Australian Digest, linking directly with Thomson's full-text judgment databases.

FirstPoint is a really, really, useful service. If you haven't made much use of it so far, I urge you to spend some time playing with it.

I wrote Finding judicial consideration of legislation — Part 1 a few weeks ago, about using LexisNexis AU to find cases about a legislative provision.

In case you don't remember, in my earlier post I looked for cases dealing with Confiscation Act 1997 ss 32 & 33, on forfeiture of tainted property. One case I found using LexisNexis AU was Winand (1994) 73 A Crim R 497.

Equipped with this information, here are two ways of searching FirstPoint.

Method 1

Login, and click on cases to take us to the case-search screen.

Log in to FirstPoint and select 'cases'

Next, we enter the case name or citation in the search fields. In this screen shot, I used the citation from Winand73 A Crim R 497 — in the citation field.

Enter case name or citation details in the FirstPoint search fields

Click search.

The search results show us the Hitlist for the search.

(At the top-right of the hit list we can see four icons that allow you tag, email, print and PDF the hitlist. They're all pretty self-explanatory, apart from tagging: it lets us store search results for future reference.)

Hitlist from searching for 73 A Crim R 497

The Hitlist shows us a breadcrumb trail for the digest classification for this case. We can click any link to show other cases in the same classification, or navigate to that classification using the navigation tree on the left.

I reckon this is the real benefit of FirstPoint. It's a great way of finding cases that deal with a subject or topic, across jurisdictions, rather than just a specific piece of legislation.

Another useful feature from the Hitlist is the ability to jump to the FirstPoint entry for the case. Click on R v Winand, and we get this:

Firstpoint result

This is another fantastic feature of FirstPoint. It's similar to the CaseBase function in LexisNexis AU, providing previous and subsequent judicial consideration history, and journal articles that mention the case. It also contains a digest or summary of the case.

The quality of these summaries varies. Some are really, really good, with a succinct factual outline of the case and pithy summary of the court's reason for its decision. Some just note the court's decision. And some don't have anything at all. (I think it's mainly the very recent cases that don't have any detail in them. I guess it's because the team of people who digest these cases need a little time to read them and summarise them.)

Now, to come back to finding other cases...we know look under the classification that covers cases relevant for our topic. Remember, we can do that either by clicking on the link that appeared under the case name, or expanding the navigation tree on the left-hand side of the screen.

FirstPoint classification search result

All we need to do now is to work through our results. In this search, looking under Discretion to make order > generally, we only have 15 cases. I just click on the case name and read the FirstPoint entry. I can quickly eliminate irrelevant cases, and select those I think will be relevant.

Method 2

The second method is to search for cases dealing with the specific statutory provision we're interested in.

Starting again at the cases search window, we enter our search term — Confiscation Act s 33 — and select the jurisdiction — Victoria.

FirstPoint statutory provision search

Click search.

The Hitlist from this search returns three cases.

FirstPoint statutory provision search Hitlist

From here, we can use all of the options I discussed above: viewing the FirstPoint entry; downloading the case; clicking on the classification links.

And of course, we could also search by just entering search terms into the classification search field, on the left-hand side above the navigation tree. I don't often use that way of searching, unless I know the classification terms used by FirstPoint. But, if we don't have either a case or legislative provision to start our search with, searching the classification list might be the best way of researching.

Tuesday, 12 May 2009

Criminal Procedure Act — new hearings

Following on from Dr Manhattan's post on subpoena of documents, I thought I should mention briefly one of the changes the Criminal Procedure Act 2009 will introduce: the summary case conference.

Chapter 3 deals with Summary Procedure. Section 3 of the Act says that a summary hearing means a hearing conducted in accordance with Part 3.3. (A summary hearing is a summary contested hearing.)

Before a summary hearing happens, the Act provides for three types of preliminary hearing:
  1. mention
  2. summary case conference
  3. contest-mention
The summary case conference is similar to a contest-mention: it tries to identify disputed issues, but is probably closer to the special mention in the Magistrates' Court Act 1989 Schedule 5, clause 3. (Pedantically, that provision only applies to committal hearings. It allows the Court to control its proceedings, and make sure the parties are on track, completing tasks and undertakings, and keeping to the timetable. The summary case conference will give summary courts a similar explicit statutory power for summary criminal proceedings.)

The summary case conference is required if a summary prosecution is commenced by a new process: the notice to appear. The way that works is:
  1. Notice to appear issued. This is similar in effect to a summons, but doesn't have a charge.
  2. Charge sheet must be filed within 14 days (or the notice to appear lapses)
  3. a preliminary brief must be served within 7 days after the day the charge-sheet is filed
  4. a summary case conference must be held before:
    • the charge is adjourned for a contest-mention
    • the charge is adjourned for a summary-hearing
    • an accused can ask for a full brief
The other process is to issue a charge (similar to the current procedure in the Magistrates' Court Act 1989):
  • file or sign a charge-sheet
  • accused may request a full brief, which must be served at least 14 days before contest-mention or, if there's no contest-mention, the summary hearing
  • mention hearing
  • if appropriate, contest-mention
  • Part 3.3 summary hearing
It seems the legislation intends full briefs to be provided later in a criminal proceeding — typically, after commencement but before contest-mention.

Monday, 11 May 2009

Protected witnesses protected from self-represented litigants

The respondent to a family violence intervention order is not allowed to personally cross-examine a protected person in an application for an intervention order: Family Violence Protection Act 2008 s 70.

If the respondent isn't represented by a lawyer, the Act requires a magistrate to direct Legal Aid to represent the respondent for cross-examination of the protected witness — even if the respondent is ineligible for a grant of legal aid.

Victoria Legal Aid's policy on qualifying for legal assistance says at Appendix 2B, clause 6.3, it might limit court-ordered representation under the Act to only cross-examination of the protected witness.

But, we know how difficult it is for an advocate to try to appear only part-way through an application. I'm told that when possible, VLA will brief counsel to appear for the whole application.

There's a similar provision in the Evidence Act 1958 s 37CA as well. It too prohibits an accused person personally asking questions of a protected person in a criminal hearing alleging a sexual offence or family violence.

Subpoena of documents

The Chief Magistrate's Practice Direction No 5 of 2005 requires that summonses (or subpoenas) for documents must be raised on the contest-mention date. (This doesn't apply to disclosure required by Schedule 2 Clause 1A of the Magistrates Court Act 1989.)

Sometimes, the material sought is handed over voluntarily. In other cases, after discussion between the parties it's clear the documents sought won't help the accused, and the subpoena isn't pursued.

If a subpoena is issued after contest-mention, the Practice Notice requires that it's returnable at a special-mention before the contested hearing date, unless the Court orders otherwise. This is to avoid time wasting time at the hearing, from preliminary arguments about the release of documents, and then waiting as Counsel inspects the documents while everyone else twiddles their thumbs.

The Criminal Procedure Act 2009 commences operation on 1 October 2009. Sections 41 and 42 will require the prosecution to disclose a slightly greater range of material than at present, and explicitly impose a continuing obligation of disclosure.

Section 363 will permit the prosecution to withhold material when required or permitted by law, but otherwise doesn't derogate from the general disclosure obligations.

These provisions might reduce the use of subpoenas issued by accused people, by encouraging the prosecution to engage in automatic and ongoing disclosure, though s 336 will provide for their use under the new Act.

Wednesday, 6 May 2009


Edit: The 5th edition of Freckelton's Indictable Offences in Victoria is now out. A splash about it cam be found here.

A charge is bad for duplicity if there is more than one offence alleged in the one charge.

The law doesn't allow duplicity because an accused person has the right to know what is alleged against them. A duplicitous charge is not a nullity (though some would like to think so!). The remedy to duplicity is to require the prosecution to elect the charge it wants to proceed with. If the prosecutor refuses to elect then the court has discretion to dismiss the charge: Walsh v Tattersall (1996) 188 CLR 177.

In Rixon v Thompson [2009] VSCA 84, the accused was convicted in the Magistrates' Court of one charge of indecent assault. The prosecution case alleged several incidents. Each incident could have been the subject of its own charge. The accused unsuccessfully appealed to the Supreme Court, and then to the Court of Appeal.

Several points came out of the combined judgment of Maxwell P, Weinberg JA and Kyrou AJA:
  • deciding upon duplicity is not a discretionary decision. Once a court considers a charge duplicitous, the law obliges the court to require the prosecution to elect the charge to proceed
  • the prohibition on duplicity is as strict in the Magistrates' Court as in any other court
  • duplicity isn't decided by considering only if there's unfairness to the accused. Even if the accused is provided a detailed statement specifying the acts alleged, if the charge is 'patently duplicitous', the prosecution must be required to elect
  • but, there are exceptions to the rule against duplicity, among them the single (or composite) transaction analysis outlined by Ashley JA in R v Heaney [2009] VSCA 74

In Heaney's case, a conviction for stabbing was challenged as duplicitous. Heaney was also charged with one count of attempted murder. The evidence alleged two thrusts with the knife. The (differently composed) Court of Appeal rejected counsel's submission that the jury's verdict was bad for duplicity, at [28] - [93].

If you have access to Ian Freckelton's Indictable Offences Victoria, I also recommend his helpful commentary about duplicity and the presentment rules. He covers scenarios (from memory) such as: five punches in quick succession — one assault, or five? A man steals 4 bags of wheat, one at a time, over half an hour — one theft or four? (Sadly, the Fourth Edition is out of print, and the Fifth Edition is still pending.)

To come back to Rixon v Thompson, in the end the Court of Appeal decided the single charge was not duplicitous. On one view, there were multiple discrete offences. Alternatively, there was one continuous criminal episode over several hours. Viewed that way, with the particulars provided to the accused, the Court considered the Heaney exception of 'single transaction analysis' applied. That meant the charge was valid, and Rixon's appeal was dismissed.

Tuesday, 5 May 2009

Federal Magistrates Court to close

The Federal Magistrates Court of Australia is to be abolished under a restructure plan announced by the Commonwealth Attorney-General Rob McClelland today.

The Court was established in 1999 to ease the workloads of the Federal Court and Family Court of Australia. It currently hears the less serious cases in civil litigation, and deals with almost all divorce applications. Due to state courts being vested with Commonwealth jurisdiction, the Federal Magistrates Court rarely hears criminal cases.

The abolition of the Court had been expected for a while, after ongoing criticism about expense, inefficiency and duplication.

Circumstantial evidence

From time to time I come across a quote that expresses a point perfectly, but I know it will never see the light of day again. Even though it is a High Court decision, it's a throwaway remark from a dissenting judge which does nothing but re-state the existing law.

This is the case with the following statement from AK v The State of Western Australia [2008] HCA 8 in the joint judgment of Gleeson CJ and Keiffel J:

Circumstantial evidence is sometimes spoken of as though it were inherently less compelling than direct testimony. Often, especially in identification cases, the truth is the opposite. Undisputed objective circumstances may be more reliable than direct testimony.

In the criminal jurisdiction in particular, we always hunger for an eyewitness. We love to hear a vivid description of events from someone who was there - or watch that same account being cut to ribbons in skilled cross-examination. It makes for a more exciting spectacle than, say, the methodical presentation of phone records.

But it is not always more probative.

The case of Hathaway v The State of NSW is a perfect example. The case, which was a civil suit, essentially boiled down to the conflicting stories of two men. One must have been lying; the other telling the truth. Each had every reason to lie. Both men had been charged with assaulting the other and given evidence against the other at trial. Both had been acquitted as the matter against them had been not proven beyond reasonable doubt. As one of the men was a police officer, both had also given evidence at a Police Integrity Commission inquiry.

On a civil action, a judge sitting alone doesn't have the luxury of retreating into reasonable doubt. She or he has to make a finding on the balance of probabilities, and unlike a jury is required to state the lawful, logical process used to arrive at their conclusion. Some presumptions will run the plaintiff's way, others in the defendant's. The judge is required to make findings that they know will greatly displease one of the parties, and potentially have far-reaching consequences.

Faced with the only relevant witnesses having given and re-given their evidence a number of times, Simpson J was obliged to discard virtually any inference that could be drawn from the presentation of their evidence. Instead, she turned her attention to the objective, undeniable facts of the case and systematically drew from them what inferences she could.

If you have the time, I highly recommend the case. The way it is told makes it a page-turner. While the conclusions Simpson J reaches are uncomfortable, it would be hard to argue that she did not make the correct decision.

Monday, 4 May 2009

Facilities at Melbourne Magistrates' Court

The current Magistrates' Court building in Melbourne opened its doors back in 1995. While it initially looked streamlined and modern in comparison with the other buildings on the corner of William and Lonsdale, like any public building it has now begun to show its age.

Some court users aren't happy about the inside of the building. Summary legal practice has evolved considerably in the last two decades. Laws and procedures can change overnight, but the layout of a building is more difficult to change on-the-fly.

The Law Institute of Victoria recently wrote to the Chief Magistrate about the lack of facilities at Melbourne Magistrates' Court. President Danny Barlow described pre-court conferences regularly occurring in corridors because of the lack of conference rooms.

The Criminal Procedure Act 2009 emphasises pre-court conferences, and in some instances, mandates them. The demand for appropriate space in court buildings will only increase.

Innocent act?

In DPP v Kailahi (2008) 50 MVR 410; [2008] NSWSC 752, the accused was charged with disqualified driving. When the police pulled her over she told them (and the court accepted) she believed she was unlicensed (rather than disqualified).

The magistrate dismissed the charge.

The prosecution appealed.

The Supreme Court ruled the claim of honest and reasonable mistake wasn't available to her.

I've posted about honest and reasonable mistake a number of times in the last couple of weeks. I suppose the point I'm trying to make is the claim is not the get-out-of-jail-free card it's sometimes claimed to be for strict-liability offences.

Proudman v Dayman (1941) 67 CLR 536 tells us that a person accused of a criminal charge should be found not guilty if they honestly and reasonably believed in a state of facts that — had those facts actually existed — would have made their acts innocent when they did the alleged act.

There are hurdles the accused must jump if their claim is to succeed. The evidentiary burden isn't hard to meet (CTM v The Queen). But if the accused fails the threshold legal test, the claim of honest and reasonable mistake inevitably fails.

A claim of honest and reasonable mistake must be:
  • honest
  • reasonable
  • a positive belief
  • in a state of facts
  • which, if true, would make their acts innocent

A claim of honest and reasonable mistake is not truly a defence, though it's often described as one: He Kaw Teh v The Queen (1985) 157 CLR 523. It's really an assertion that at the time of the offence the accused didn't have the required intent. In the case of an offence of strict liability, it's no excuse to prove that an accused lacked the intent to commit the offence charged but instead intended to committing some other offence.

In DPP v Kailahi (2008) 50 MVR 410; [2008] NSWSC 752 Rothman J said:

[8] The only other matter that requires attention is the question of whether there exists an honest and reasonable mistake of fact. That, too, is the subject of discussion in Vlahos and He Kaw Teh. In He Kaw Teh, the High Court clarified that, in statutory offences containing no mental element as an ingredient of the offence, except in the case of absolute liability, honest and reasonable mistake survives as a basis of exculpation. It is, notwithstanding common usage, strictly not a defence. Once raised by the accused upon evidence adduced, it is for the prosecuting authority to dispel any doubt that may have been raised by the evidence that the acts performed were the result of an honest and reasonable mistake.

[9] However, that does not mean that the mere fact that, in this case, the driver was unaware of the disqualification, is sufficient to raise reasonable and honest mistake. Mens rea, if it were to exist, for the offence of driving whilst disqualified, would be satisfied by an intention to do an act prohibited by the legislature. In this case, the prohibition is upon driving if, as a matter of fact, the driver be disqualified.

[10] However, the defence of honest and reasonable mistake applies only in circumstances where, were the facts believed by the accused to be true, the accused would have been guilty of no offence: Bergin v Stack [1953] HCA 53; (1953) 88 CLR 248 (per Fullagar J).

[11] In the instant proceedings, even if the Crown were required to negative honest and reasonable mistake as to the existence of a disqualification, such a requirement would only apply in circumstances where, but for the mistake of fact, Ms Kailahi would be entitled to drive. As Ms Kailahi concedes, and as is clear from the conversation with the police officer, Ms Kailahi was aware that she was unlicensed and not permitted to drive. As a consequence, the “mistake of fact”, if it be one, is a mistake as to which offence was being committed.

[12] In those circumstances, it is unnecessary for the prosecuting authority to negative or preclude the existence of such a mistake, however reasonable or honest it be.

How far does this principle extend? For example, does it stop an accused asserting an honest and reasonable mistake if they were notified of a licence suspension by mail, but had failed to notify VicRoads of a change of residential address? (Itself a minor offence under the Road Rules.)

Time will tell...