Uren v Neal: refusing a breath test

Last Friday the Supreme Court delivered yet another judgment on drink-driving charges in Uren v Neale [2009] VSC 267.

The facts

The police evidence was they saw Mr Uren pull in at a petrol station early in 3 May 2007, get out of his car, and stagger. Acting Sergeant Neal thought he might be drunk, conducted a preliminary breath test on Mr Uren, asked him to accompany her back to Frankston Police Station, and took him there.

Sergeant Neal said Mr Uren refused an evidentiary breath test, once by putting his thumb over the mouthpiece of a breath analysing instrument, and a second time by stopping blowing into the instrument halfway through the test.

(That evidence wasn't contradicted, at [25].)

The appeal dealt with three charges Sergeant Neal laid against Mr Uren, contrary to s 49(1)(e) of the Road Safety Act, of refusing:

• a breath test
• to allow a blood sample to be taken
• to remain at the Frankston Police Station for the purpose of a blood test

Grounds of appeal

Mr Uren argued four grounds of appeal.

1. Magistrates' Court Act s 30

On 23 May 2007, Sergeant Neal issued an instant summons under the Magistrates' Court Act s 30. At the time, that section relevantly provided:

30. Prescribed person may issue summons

(1) Without limiting the power of a registrar in any way, in the case of a charge for a prescribed summary offence if the informant is a prescribed person he or she may, at the time of signing the charge-sheet, issue a summons to answer to the charge.

(2) If a prescribed person issues a summons under sub-section (1) –

(a) he or she must file the charge and original summons with the appropriate registrar within 7 days after signing the charge-sheet; and

(b) the proceeding for the offence is commenced at the time the charge-sheet is signed, despite anything to the contrary in section 26(1).

(3) Subject to subsection (4), if it appears to the Court that subsection (2)(a) has not been complied with in relation to a proceeding, the Court must may strike out the charge and may, in addition, award costs against the informant.

The charge sheets were in fact filed at Frankston Magistrates' Court on 5 June 2007 — 13 days after the charges were issued, and so contrary to s 30(2)(a).

After a fairly detailed journey through the cases, His Honour concluded that s 30 was a procedural provision, not a substantive right Mr Uren could insist on. For that reason, the magistrate was right in rejecting Mr Uren's claim the charges had to be struck out.

(Initially, I thought Forrest J might have been dealing with a similar line of reasoning to that in Project Blue Sky v ABA (1998) 194 CLR 355, dealing with the effect of not complying with obligatory and discretionary procedural provisions. But, no, he wasn't.)

I think there's a bit of a gap in his reasoning here. Because the provision was correctly categorised as procedural...the magistrate didn't make a mistake when he didn't strike out the charge, though the legislation said he must. I can't really see quite why this makes much difference. Forrest J concluded that s 30(3) wasn't a substantive right that accrued to Mr Uren personally and that he could insist on. But why does that mean the Court didn't err in not following its procedural obligation?

edit As pointed out below in the comments, this section 30(3) was amended to provide that the court may not must strike out a charge, hence the decision was for the Court rather than the accused.

Section 30 will be replaced by the Criminal Procedure Act 2009 s 14, which provides a Court may — not must — strike out a charge not filed as prescribed, so this sort of argument will soon be moot.

2. Magistrates' Court Act Schedule 2 Clause 1A

Mr Uren also claimed the Magistrate should have granted an adjournment until the prosecution provided copies of statements s or written summaries of the substance of evidence likely to be givenby two other police officers. Those officers were Sergeant Neal's corroborator, Senior Constable Kaschke, and a Sergeant Straughan, who corroborated that Mr Uren was asked to provide a blood sample.

Forrest J gave this argument fairly short shrift, noting no complaint of non-disclosure was made during the preceeding 18 months and 3 contest-mention hearings. Nor could counsel for Mr Uren identify any prejudice suffered by Mr Uren, particularly as the corroborator merely confirmed Sergeant Neal's evidence, and the other two police witnesses weren't pivotal.

(The pre-hearing disclosure provisions in the Criminal Procedure Act 2009 Part 3.2 will supplant Schedule 2.)

3. Proof the breathlyser was a breath analysing instrument

Mr Uren's barrister argued the prosecution had to prove that the breathalyser was a breath analysing instrument as defined in the Road Safety Act s 3.

Forrest J then observed:

[77] Nineteen years ago counsel for Mr Uren, in Lisiecki v Grigg (1990) 10 MVR 336 propounded an identical argument in relation to the application of s 49(1)(e) and the need for the prosecution to establish that the relevant breathalyser was an approved instrument. A little surprisingly, counsel did not refer to this decision in either his written or oral submissions...

His Honour then discussed Lisiecki v Grigg and MacDonald v The County Court of Victoria (2004) 41 MVR 183 , which both disapproved Scott v Dunstone [1963] VR 579, and held that it is not an element of the offence under s 49(1)(e) that the breathalyser is an approved instrument.

[81] ...Rather, the constituent elements of the offence are a request in accordance with the terms of the Act and a refusal to comply.

In any event, His Honour was satisfied there was evidence that the breathalyser used was a breath analysing instrument, and rejected this ground of appeal.

4. Non-compliance with Road Safety Act s 55(9A)

Mr Uren succeeded on this last ground of appeal, and the charge of failing to remain for a blood test was quashed. After reviewing several cases including Rankin v O'Brien [1986] VR 67 and Sanzaro v County Court of Victoria (2004) 42 MVR 279; [2004] VSC 48, His Honour concluded that because Sergeant Neal didn't tell Mr Uren he had to remain only until 3 hours elapsed or the medical practitioner arrived and took his blood, an essential element of the charge wasn't made out.

Evidence eliminator

The new Evidence Act 2008 introduces new statutory tests for the admissibility of evidence in Victoria.

Section 138 is similar — though not the same as — the test for unlawfully or improperly obtained evidence in Bunning v Cross (1987) 141 CLR 54. Like the High Court's decision in that case, the new provision requires the trial judge or magistrate to engage in a balancing process when deciding whether to admit the evidence in the exercise of judicial discretion.

138. Exclusion of improperly or illegally obtained evidence

(1) Evidence that was obtained-

(a) improperly or in contravention of an Australian law; or

(b) in consequence of an impropriety or of a contravention of an Australian law-

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

The section also provides considerations for excluding or admitting evidence, and provides a couple of circumstances when evidence is automatically considered improperly obtained.

Courts in NSW, the ACT and the Commonwealth have already turned their minds to provisions similar to s 138. In R v Helmhout [2001] NSWCCA 372, the NSW Court of Criminal Appeal considered the effect of non-compliance with regulations mandating the specific entitlements of suspects in custody, and the effect that this should have on the admissibility of the interview subsequently obtained. In that case, investigators failed to notifty the Aboriginal Legal Service that an aboriginal suspect was in their custody, as the regulations required them to.

The trial judge used her discretion to admit the evidence: R v Helmhout [2000] NSWSC 185. The Court of Criminal Appeal ruled unanimously that the decision to receive the evidence was justifiable. (One judge said "plainly correct".) Key considerations cited were the seriousness of the charge, the inadvertent nature of the oversight, the lack of resulting unfairness to the accused, and the cogency of that evidence.

The onus of demonstrating impropriety or contravention of an Australian law is on the accused, on the balance of probabilities: Robinson v Woolworths [2005] 64 NSWLR 612; also DPP v Farr [2001] NSWSC 3. Though those cases rely on the earlier position in NSW law, it was affirmed by the ACT Supreme Court when it considered the current version of s 138: Re Crisp ACTSC 39.

Once this burden has been discharged the prosecution must then satisfy the court it should use its discretion to admit the evidence.

Indictable offences in Victoria

The long-awaited 5^th edition of Indictable Offences in Victoria is about to be published, authored once again by Ian Freckelton.

Ian is, to put it mildly, prolific and prodigious with the amount of written work he produces, but the new edition of this book has been a bit longer than was originally anticipated. (It was originally intended to be published around 2005.)

The earlier editions of this work were written by Ian Heath (it's sometimes referred to as Heath's for this reason).

This is one of the mainstay resources for anyone working in the criminal jurisdiction: lawyers, police, or judicial officers. I think it's an essential reference, and highly recommend it.

The beauty of it is that it lists offences alphabetically, and succinctly discusses each charge-element, highlighting the leading authorities and distilling the essence of those judgments. It also provides helpful cross-references, and suggests alternative offences. This last feature is especially helpful for investigators.

If the published edition contains as much as the draft I saw some time ago, it will be significantly larger than the previous editions, with commentary on many indictable offences outside of the traditional Crimes Act focus of those earlier editions.

Sentencing Advisory Council release intervention order reports

The Sentencing Advisory Council (SAC) has released the results of its review of sentencing practices for intervention order breaches.

Its findings are in two reports: the Sentencing Practices Final Report and the Breaching Intervention Orders Report.

The SAC identified the following issues:

• The lack of obvious connection in some cases between the penalties imposed and any identifiable sentencing objective;
• The prevalence of fines and adjourned undertakings, particularly in cases of subsequent breaches
• The possible impact of penalties (particularly fines) on victims of the offending
• Difficulties with the operation of behavioural change programs.

The SAC has developed a series of guiding principles (found at Appendix 1 of their Final Report) they believe may help address some of these problems. The Executive Summary to the report states:

The Council intends that these guiding principles will promote some level of consistency of approach among sentencing courts. The guidance provided is not in any way designed to displace judicial discretion. The principles were developed in consultation with stakeholders, including magistrates, and are for the purpose of ensuring that magistrates have as much information as possible at their disposal to assist them in exercising their discretion.

The Council also sees a wider role for the guiding principles to be used by all involved in the sentencing process. Police prosecutors and defence lawyers may use the guiding principles in formulating their submissions to the court at sentencing hearings for breaches of family violence intervention orders. The principles can promote consistency by providing a framework for submissions across different courts around Victoria.

Further information and the full reports can be found on the SAC website.

Road regulations

The subordinate legislation that deals with driving in Victoria is about to have its 10^th birthday.

All statutory rules these days have sunset clauses to ensure they're regularly reviewed. It's time for the current road regulations to be replaced with a new set that will address changes since the last ones were put together.

VicRoads intends making six new regulations before 1 December 2009:

• Road Safety (Vehicles) Regulations 2009
• Road Safety (Drivers) Regulations 2009
• Road Safety (General) Regulations 2009
• Road Safety Road Rules 2009
• Road Safety (Traffic Management) Regulations 2009
• Road Safety (Vehicles) Amendment (Electronic Stability Control and Head Protection Technology) Regulations 2009

They're expected to come into force some time in the next six months or so. At the moment they're still at 'Exposure Draft' stage, being drafted and circulated for public comment. Only three of them have been released so far.

A summary of all the proposed changes is available at pages 80 - 101 of the Public Consultation Paper. By the sound of it no major changes to the enforcement scheme are intended, just some tweaks here and there.

Law Handbook online

The Fitzroy Legal Service publishes the Law Handbook each year. The Handbook covers areas of law that people are most likely to routinely encounter.

The Law Handbook is now available online at www.lawhandbook.org.au.

It is a fantastic resource, in particular as a starting point for research on areas either outside of our usual areas of expertise or familiarity.

The online version is free, and fully searchable.

Continuing criminal enterprise

When I was reading up on gambling addictions as a form of mitigation last month (see my post on R v Grossi), I came across a series of provisions that I hadn't noticed in the Sentencing Act 1991 before. Under s 6I, a finding of continuing criminal enterprise may double the maximum sentence available for a relevant offence.

Section 6H relevantly defines a continuing criminal enterprise offender:

continuing criminal enterprise offender means an offender who is found guilty of—

(a) a continuing criminal enterprise offence and who in another trial or hearing or more than one other trial or hearing had been found guilty of 2 or more relevant offences;

(b) 2 continuing criminal enterprise offences and who in another trial or hearing had been found guilty of a relevant offence;

(c) 3 or more continuing criminal enterprise offences;

relevant offence, in relation to a continuing criminal enterprise offence, means a continuing criminal enterprise offence of which an offender has been found guilty within the period of 10 years before the date on which the later offence was committed.

It's surprising these provisions aren't referred to more. While the dollar values involved - in the case of every relevant offence currently included at Schedule 1A, a minimum $50,000 - are high for the summary jurisdiction, they're not unheard of. The offences involved, such as theft, handling stolen goods, and deceptions, are staples of the Magistrates' Court.

Importantly, unlike Clause 16 of Schedule 4 of the Magistrates' Court Act 1989, (and cl 3.4 of Schedule 2 of the Criminal Procedure Act 2009 that replaces it in October) these provisions don't draw a distinction between motor vehicles and other thefts. It's likely that a car thief dealt with in the Magistrates' Court on a number of occasions will be considered a continuing criminal enterprise offender.

If a court is satisfied the offences meet the relevant criteria for a continuing criminal enterprise, the maximum term of imprisonment for the offence is doubled: Sentencing Act 1991 s 6I. This might influence a magistrate considering if summary jurisdiction is appropriate.

The Court of Appeal decided in R v Arundell [2003] VSCA 69 and affirmed in R v Rousetty [2008] VSCA 259 that offences occurring before these provisions commenced operation (that is, 1 July 1998) might still be considered relevant offences for the purposes of continuing criminal enterprise. "Rolled up" counts that total $50,000 or more are not properly considered continuing criminal enterprise offences: R v Ralphs [2004] VSCA 33.

Thumbs-up given the thumbs down

Since posting Emailing judges last month, my attention was drawn to another appeal which claimed unfair prejudice as a result of the actions of a Judge's Associate. While the Victorian case was open to interpretation, the facts in R v Phillips [2009] QCA 57 are slightly more clear-cut.

The trial concerned four counts of rape. According to the facts of the hearing as summarised by Holmes JA on the appeal:

[15] The appeal record shows that the prosecutor’s address concluded at 3.56 pm and the trial judge immediately adjourned the court. The appellant, his sister and his de facto wife all swore affidavits to the effect that, immediately after the prosecutor concluded her address, the judge’s associate gave her a ‘thumbs up’ signal and mouthed the words, “That was great”. That evidence is largely confirmed by the trial prosecutor who has also provided an affidavit; she says that she recalls the judge’s associate raising her hands at waist level with clenched fists and both thumbs raised in a ‘thumbs up’ gesture, and mouthing words to the effect, “That was awesome”. At the time that occurred, she deposes, the jurors had filed past the bar table towards the courtroom door behind her and behind the dock.

The Queensland Court of Appeal, while describing the associate's behaviour as "grossly improper", rejected the appeal on that ground. They found there was no evidence that the jury had not approached their deliberations with the requisite degree of care and seriousness.

Road Legislation Amendment Act commences

Back in April I posted about legislation that would overcome the effect of Dolheguy v Becker [2009] VSC 106. (That was the case where the Supreme Court decided a Court was not required to suspend the licence of an owner of a speeding car if it wasn't satisfied he was the actual driver.)

The Bill received Royal Assent on 17 June (see Gazette S185, 17 Jun 2009), and some of the Road Legislation Amendment Act 2009 commenced operation on the same day.

Some of the provisions now in operation are:

• Section 9, inserting s 50AAK in the Road Safety Act to create an offence of by-passing or disengaging an alcohol interlock
• Sections 11 and 12, amending Road Safety Act s 55D(6) to vary the prescribed method of providing an oral fluid sample for drug-driving testing
• Section 13, providing for approved health professionals to take blood samples in certain cases, as well as doctors
• Section 14, increasing the maximum penalty to 20 penalty units for owners of cars who don't reasonably enquire into who was driving their car when asked to by the police, or don't pass on that information in cases other than when someone is killed or suffers a serious injury
• Section 16, inserting s 61A in the Road Safety Act prescribing drivers' duties following accidents involving vehicles that are not motor vehicles (such as bicycles, trams and motorised wheelchairs)
• Section 17, amending Road Safety Act s 63B concerning the use of tyre deflation devices by police in pursuits
• Section 18, creating an offence of dangerous driving in a vehicle other than a motor vehicle (section 19 will create a similar offence of careless driving, but has not commenced operation)
• Section 20, allowing the Minister to exempt specified events from liability for burnouts and donuts (for example, a Forumla 1 racer doing burnouts in a street parade)
• Section 21, inserting s 65B in the Road Safety Act to prohibit drivers of heavy vehicles from exceeding the speed limit by 35 km/h or more
• Section 22, changing s 66 of the Road Safety Act (the owner-onus provisions) to apply for prescribed road safety cameras
• Section 23, inserting s 73A in the Road Safety Act to create an offence of obstructing, hindering, threatening, abusing or intimidating speed camera operators

There are more that started on the 17^th, but you can check the commencement book for them all.

The remaining sections will commence on 1 October 2010, if they don't commence before then.

Accused introduces own bad character

The law generally forbidding the prosecution from leading bad character evidence against an accused is fairly clear. The "shield" that an accused has against allegations of bad character - unless they adduce evidence of their own good character or attack the character of prosecution witnesses - is found at s 399(5) Crimes Act 1958. When the Evidence Act 2008 commences operation later this year, Part 3.8 will contain equivalent provisions, notably ss 110 and 112). (Criminal Procedure Act 2009 s 369 will repeal much of the evidence-style provisions in the Crimes Act, but specifically leaves s 399. Has anyone seen any provisions to repeal s 399 as suggested by the VLRC?)

It's trite, but worth highlighting, that s 399(5) — and successors — has no role to play if the accused doesn't give evidence.

But character can become an issue in other ways.

I'd never thought of the potential consequences of an accused leading evidence of his or her own bad character until I happened across an article by David Ross QC some years ago. The situation isn't one covered by legislation, but there's a surprising amount of case law on the subject. It's a short article and well worth a read.

It's natural to assume that in leading the evidence of their own bad character the accused opens the door to further questioning about character. Ross outlines his view that the leave of the court is still required before the prosecutor can cross-examine on anything more than the disclosure the accused made. He cites a number of cases when that permission wasn't sought and the conviction was thrown out on appeal.

It's also the case if an accused person doesn't put their own character in issue and does attack the credibility of a prosecution witness, the prosecution may not reveal the accused's criminal history to the Court.

What is permissible is this. If a prisoner takes advantage of the Criminal Evidence Act, 1898, which made prisoners competent witnesses on their trial in all cases, and goes into the witness box, he may then, if he has attacked the witnesses for the prosecution, be cross-examined with regard to convictions and matters of character, and I have no doubt that, if he is cross-examined, a conviction is put to him and he denies it, the provisions of the Criminal Procedure Act, 1865, s 6, would apply and the conviction could be proved against him. But by attacking the witnesses for the prosecution and suggesting they are unreliable, he is not putting his character in issue. He is putting their character in issue. R v Butterwasser [1948] 1 KB 4; (1947) 32 Cr App R 81 at 416

Butterwasser was approved in R v Soma (2003) 212 CLR 299; [2003] HCA 13.

I'm not sure if the modern English position is still the same. Earlier this year the Court of Appeal decided R v Hearne [2009] EWCA Crim 103. 61-year-old Mr Hearne was caught burgling an aviary nesting valuable domestic birds. He claimed he was rescuing illegally held wild birds. The Court of Appeal accepted that amounted to an attack on the character of Mrs Geale, the birds' owner. Mr Hearne's previous burglary convictions were properly admitted, under the Criminal Justice Act 2003 (UK) s 101. The case doesn't make it clear if Hearne's criminal convictions were admitted as part of the prosecution case, or during cross-examination of the accused.

But it does seem reasonably certain that the first thing to do before embarking on any steps down the road labelled "Character" is to ask the presiding judicial officer to declare that character has been raised. After it commences, Evidence Act 2008 s 104 will require that in most, if not all, cases.

Freedom of expression triumphs over anonymity

The House of Lords yesterday delivered its decision in Attorney-General's Reference No 3 of 1999 [2009] UKHL 34.

The case dealt with an application by the BBC to broadcast a programme identifying an accused person acquitted of criminal charges that might be subject to re-trial. (The UK introduced provisions a few years ago in Part 10 of the Criminal Justice Act 2003 overturning the common-law prohibition on re-trial, based on the double-jeopardy rule.)

The Lords previously ordered that D's identity should be kept anonymous.

On the Attorney-General's reference, the Lords considered Article 8 (right to privacy) and Article 10 (freedom of expression and communication) under the European Convention for the Protection of Human Rights and Fundamental Freedoms. (Those provisions are similar, to s 13 and s 15, respectively, of the Charter of Human Rights and Responsibilities Act 2006.)

The Lords considered the balance between these competing rights favoured the BBC, and held that the earlier anonymity order should be discharged.

I'm not sure if this case is directly relevant to Victoria's charter, because our charter applies only to natural people, not to corporations.

Nevertheless, it's an interesting example of the balancing act courts perform when considering competing rights.

Parole revocation project

Edit: The Final Report has been released. It concludes that the Court of Appeal has not spent a lot of time on these kinds of issues yet, but also agrees that if not acted upon, it has the potential to become more of a burden in future.

---

The government is looking at a number of proposals to prevent the Court of Appeal being swamped with appeals on sentence.



Under s 5(2AA)(1) of the Sentencing Act 1991, when imposing a sentence a court must ignore,

any possibility or likelihood that the length of time actually spent in custody by the offender will be affected by executive action of any kind.

Executive action includes a decision of the Adult Parole Board (APB) to reimpose a gaol sentence that an offender hasn't served, because they breached their parole conditions.



The most common breach of parole is fresh offending. When an offender is sentenced for offences breaching their parole, they're not entitled to a discount on the sentence for the new offences, even though they might later be made to serve their previous sentence as well.



The APB isn't obliged to wait until after the offender has been sentenced before breaching their parole. It sometimes breaches parole and reimposes the outstanding period of imprisonment after the new offending is found proven but before the new sentence is awarded. R v Piacentino (2007) 15 VR 501 determined that where the APB breaches parole before the new sentence is imposed, a sentencing court can consider the reimposition of the earlier imprisonment when deciding the length of the new sentence.



Under Sentencing Act s 16(3B) , the penalty for the new offending must be made cumulative on the existing parole sentence which has or may be imposed. This is an exception to the general presumption at s 16(1) that multiple sentences of imprisonment will be served concurrently unless otherwise directed.



Section 16(3B) provides:

Every term of imprisonment imposed on a person for an offence committed while released under a parole order made in respect of another sentence of imprisonment (the parole sentence) must, unless otherwise directed by the court because of the existence of exceptional circumstances, be served cumulatively on any period of imprisonment which he or she may be required to serve in custody in a prison on cancellation of the parole order.

If the APB decides to breach an offender's parole before they receive their sentence for the new offending, an offender is likely to receive a lesser penalty than if the parole is breached afterwards (an event the sentencing judge isn't allowed to anticipate).



In R v Alashkar; R v Tayar (2007) 17 VR 65, the Court of Appeal ruled the fact that the APB has reimposed the original sentence, after the offender was sentenced for the new matters, could be considered a ground of appeal on sentence.



Given the number of offenders who breach their parole by reoffending, further appeals using the principle in Alashkar's case are inevitable. There's currently no provision for a matter to be put back before the original judge or magistrate who sentenced them. The government is concerned the Court of Appeal will have to routinely decide many similar appeals, which probably isn't the most efficient use of its time.



The Sentencing Advisory Council (SAC) has suggested three remedies. Any of them would probably require some legislative change. One is allowing an offender to apply for re-sentencing to the original sentencing court if the APB reimposes their earlier imprisonment. Alternatively, the APB might be mandated to impose the principle of totality in deciding if to impose the earlier imprisonment. Last, the reimposition might only be permitted prior to sentence and/or it could be made automatic so that a court would know for sure if parole was to be breached.



A full discussion of this issue (along with the separate yet similar topic of the relationship between pecuniary penalty orders under the Sentencing Act 1997 and sentencing practices) is on the SAC website: Sentencing, Parole Revocation and Confiscation Orders: Discussion and Options Paper.

Doc becomes Doctor with Honorary Doctorate

On 4 June 2009 western suburbs magistrate John Doherty was awarded an Honorary Doctorate from Victoria University. The VU media release highlighted his work for disadvantaged youth over many years.

Victorian Magistrate John Doherty awarded Honorary Degree by VU

Victorian Magistrate John Doherty was awarded an Honorary Degree by Victoria University on Thursday 4 June 2009. He was admitted to the degree of Doctor of the University honoris causa, in recognition of his efforts to engender a spirit of connectedness through sport, the arts and education, and for providing means and incentive for disadvantaged youth to put order back into their lives.

At the ceremony VU's Vice Chancellor Professor Elizabeth Harman said that the University was proud to recognise Mr John Doherty for his service to Melbourne's west principally through his work in the justice system and his work with young offenders.

John Doherty has been a Victorian Magistrate for almost 20 years. For six years he was the Magistrate in charge of the western suburbs based at Sunshine. During this time he was responsible for many new initiatives designed to assist young offenders to start afresh and avoid a potentially life-long involvement with the judicial system.

Acknowledging the transformative potential of education, John has been particularly keen to encourage young offenders to return to education. Through this work John has been acknowledged as a leading advocate of diversionary justice in Australia. He believes that courts, working in partnership with community organisations, can help promote a sense of support and empowerment within the community.

As a living demonstration of this philosophy, John Doherty established the Visy Cares Hub in Sunshine, which offers various support services for young people in Melbourne's west, such as housing, employment, legal and health services.

He has also used his expertise and positive influence beyond the purview of the law. Active in a wide range of community activities, he has demonstrated a solid commitment to the development of football, particularly among junior clubs.

John Doherty believes that helping young people engage with the community can help them to feel part of it. That community is a place where people can feel connected and supported, and that sport is an important conduit through which young people can find that engagement.

He is involved in a number of programs which promote community engagement through sport. John Doherty is co-founder of Kick Start, an initiative between the Collingwood football club, the court, and Victoria Police, which has enabled some 5000 disadvantaged children to attend a football game and exercise an interest in the sport.

He is also involved with RecWest and RecLink, organisations that provide sport and recreation opportunities for children and youth in Melbourne's west and beyond. John is a member of the AFL Advisory Board, and incoming Chair of the Western Region Football League Appeals Tribunal.

Reflecting the breadth of his commitment to the community, he is also a member of the Horn of Africa Advisory Committee, which supports the education, training and employment needs of newly-arrived refugees and migrants from the Horn of Africa who are settling in the city's west.

Dr Doherty's Honorary Degree recognises his efforts to engender a spirit of connectedness through sport, the arts and education; for demonstrating what can be achieved when people band together in struggling communities; and for providing means and incentive for disadvantaged youth to put order back into their lives.

Congratulations Doc!

Legal citations available at La Trobe

A useful shortcut for your desktop is the On-line Case Law page of the La Trobe University Law Library. It's quick, up-to-date and free.

The page is available to anyone. It lists most common abbreviations used in reported and unreported legal citations. (The link above will take you to a table of the main ones; a much longer list, as well as links to other similar sites, is available at the Legal Abbreviations Search page).

An advantage of the La Trobe system is that it provides information about which subscription service carries a particular report series. Where this is a free service, such as AustLII or the Supreme Court Law Library, the links will take you straight there. Of course, if it's a commercial service you are referred to, you must be a subscriber to access that service.

Virtual justice

As the Magistrates' Court of Victoria unveils its new virtual tour (following in the footsteps of Tasmania and South Australia), the United Kingdom is experimenting with another kind of virtual court experience.

The UK government is expanding its pilot virtual court to a number of police stations around London. The scheme has attracted lots of criticism. It allows summary matters to be dealt with by a magistrate and Crown prosecutor in a court building while accused and their counsel are in a linked room at a police station, often miles away. It's estimated the scheme - if fully implemented - could save the new UK Ministry of Justice around £15 million a year in prisoner transportation costs and early case-resolution.

The technology involved is similar to video links already in use in Victoria under Part IIA of the Evidence Act 1958. But under s 42K(2) there's a presumption against the use of video links here for sentencing hearings. The intent of the UK's Virtual Court is specifically to encourage an accused to enter a guilty plea and be sentenced soon after their offence - often within hours of arrest.

While the traditional common law position in Australia favoured the right of an accused to face their accuser, there are now two distinct lines of authority on the issue. One favours use of remote witness technology unless there are reasons not to; the other presumes against its use unless there are good reasons why it should be. The conflicting presumptive approaches are discussed in R v Goldman [2004] VSC 165.

Predictably, the longer the technology is around and the more familiar the courts become with its use, the less apprehension it generates. Coghlan J expressed a simple test  in R v McMahon [2008] VSC 615 when finding,

There is more likelihood in the circumstances of this case of the truth emerging by the use of remote facilities than otherwise.

Disputed confessions to police

When the Evidence Act 2008 commences operation, s 33 will permit police officers to simply read their statements, rather than having to embark upon a psittacine memory test as sometimes happens now under the common law.

This will be something of a boon to the police in prosecution of summary charges. Typically, the police write in their notebook any admissions made by an accused person, but don't record them as required for indictable offences.

After I attended a seminar today on the new Act, I don't think s 33 will be a complete panacea for summary prosecutions. In those cases when purported admissions are disputed, it might not simply be a case of the police reading their statement. (Mind you, I'm still getting my head around all these new provisions, so my thoughts might be completely wrong.)

Under the common law, disputed confessions are treated cautiously when made by a suspect to police when the suspect is in custody.

[T]he jury should be informed that it is comparatively more difficult for an accused person held in police custody without access to legal advice or other means of corroboration to have evidence available to support a challenge to police evidence of confessional statements than it is for such police evidence to be fabricated, and, accordingly, it is necessary that they be instructed, as indicated by Deane J in Carr, at p 335, that they should give careful consideration as to the dangers involved in convicting an accused person in circumstances where the only (or substantially the only) basis for finding that guilt has been established beyond reasonable doubt is a confessional statement allegedly made whilst in police custody, the making of which is not reliably corroborated. Within the context of this warning it will ordinarily be necessary to emphasize the need for careful scrutiny of the evidence and to direct attention to the fact that police witnesses are often practised witnesses and it is not an easy matter to determine whether a practised witness is telling the truth. And, of course, the trial judge's duty to ensure that the defence case is fairly and accurately put will require that, within the same context, attention be drawn to those matters which bring the reliability of the confessional evidence into question. Equally, in the context of and as part of the warning, it will be proper for the trial judge to remind the jury, with appropriate comment, that persons who make confessions sometimes repudiate them: McKinney v The Queen (1991) 171 CLR 468; [1991] HCA 6.

Concerns about 'verballing' suspects lead to the Coldrey Report and the '464' provisions in the Crimes Act 1958. The Queensland Court of Appeal endorsed that curial scepticism nearly a decade ago, and noted it might apply in street-interview situations when a suspect might not be in formal McKinney-type custody. These street or field-interviews are common in most prosecutions for purely summary charges.

[9] It is astonishing that twenty-two years after the Lucas Commission of Inquiry, ten years after the Fitzgerald Report, and eight years after McKinney, police still fail from time to time to take advantage of relatively inexpensive recorders when interviewing suspects in the field.

[10] As the appellant eventually declined to take part in an electronically recorded interview, there are disputed oral admissions to the effect that the shirt was his. This was not a case where the oral statement could be relied on as a sole basis of conviction. Indeed it was one item in a substantial circumstantial case. Further, the circumstances surrounding the field interview were not as stark as those at a police station where the special position of vulnerability and disadvantage of an accused is recognised. Even so, the undesirability of relying upon notes in a notebook in a day and age where mechanical recording is readily available is a matter of some concern. Whether this was the fault of a system which failed to supply proper equipment to its members or of individual failure does not matter. If such practices continue, courts may find it necessary to exclude such alleged oral statements or alternatively to give McKinney-style directions in relation to such statements, highlighting the failure of the police to act reasonably in a well-known problem area. Judges might well tell juries that where no sensible reason is given for failing to record such a conversation, the jury should regard it with suspicion: R v Williams [2001] 1 Qd R 212; [1999] QCA 324.

In the Evidence Act 2008, s 86 excludes evidence of purely oral admissions unless they're acknowledged as true by the accused. This is pretty much like the old Record of Interview process in Victoria before the introduction of Part III, Div 1, sub-div 30A of the Crimes Act 1958 (the '464' provisions).

86. Exclusion of records of oral questioning

(1) This section applies only in a criminal proceeding and only if an oral admission was made by a defendant to an investigating official in response to a question put or a representation made by the official.

(2) A document prepared by or on behalf of the official is not admissible to prove the contents of the question, representation or response unless the defendant has acknowledged that the document is a true record of the question, representation or response.

(3) The acknowledgement must be made by signing, initialling or otherwise marking the document.

(4) In this section, document does not include—

(a) a sound recording, or a transcript of a sound recording; or

(b) a recording of visual images and sounds, or a transcript of the sounds so recorded.

The effect of s 86 is to make the document itself inadmissible, but not oral evidence of the contents.

However, it does not in any way limit the admissibility of oral evidence regarding any such admission, where this evidence comes within an exception to the hearsay rule: Explanatory Memorandum, clause 86.

That means if the accused acknowledges the document is true, it can be tendered as part of the prosecution case. If not acknowledged as true, the police officer can still read the statement by virtue of s 33. The evidentiary basis for reception of the admission remains as an exception to the hearsay exclusionary rule, contained in s 81 of the Act.

Section 86 also doesn't affect tendering under other acts an unacknowledged document purporting to record an admission. For example, under the Magistrates' Court Act 1989 s 41 and Sch 2, Clause 5, the police can tender and rely on a summary hand-up brief when an accused doesn't appear at court. Similar provisions will apply under ss 83 and 84 of the Criminal Procedure Act 2009.

Where I think the McKinney-style concerns might affect s 33 is under s 165(1)(f):

165. Unreliable evidence

(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence-

...

(f) oral evidence of questioning by an investigating official of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant;

...

Section 165(2) requires judges to warn juries about the potential unreliability of evidence specified in sub-section (1) when a party requests them to.

Magistrates should direct themselves in the same way a judge would direct a jury: Beames v Police (SA) (2002) 135 A Crim R 447 at [19] - [20]. (This is so its obvious to everyone they're aware of the relevant law, and have considered and applied it. It's essentially a way of minimising the potential for appeal because their reasoning process was opaque.) So I think we can expect summary courts to use s 165 when an accused person disputes admissions attributed to them and the police want to read out their statement containing those admissions, using s 33.

All of this segues neatly into another point I want to raise. Picking up on what the Queensland Court of Appeal said in Williams, it would be ideal if 21^st-century police routinely used portable digital recorders. Some do, but it's not yet universal. One of the great benefits when they do is the reduction in argument over the facts in a case — which is really the first question to be resolved in any hearing.

The basic questions in a criminal trial must be: what did the accused do and is he criminally responsible for doing it? Those questions must be resolved...before there is any issue of the specific intent with which the act is done: Hawkins v The Queen (1994) 179 CLR 500 at 517.

Olympus makes a good range of digital voice recorders. Some have slide switches (easy to feel if they're on or off without looking at them, if they're in a shirt pocket) and can be fitted with external tie-clip style microphones. (One Australian reseller has a blog, iDictate, discussing the various models and digital voice products generally.)

Another very interesting looking device is the LiveScribe SmartPen. This pen records audio using built-in stereo microphones. Used with proprietary micro-dot paper, it can also track the pen's movements. The upshot of this is when playing back the recording, touching your notes will play back the corresponding audio from the time of writing. It will also then transfer that writing to a PDF document. In the Windows version, it can even perform basic handwriting recognition, allowing you to search the PDF version of your handwritten notes!

Not only could that be an absolute boon for police officers, it could be pretty handy for advocates too. The Australian distributor runs a blog, and you can read about some lawyers' thoughts on it here. There are restrictions about recording court proceedings without permission from the presiding judicial official, but I'll deal with that in another post.

I think the final word must be about the head-camera trial run by the Devon & Cornwall Constabulary in the UK. The advantages are instantly obvious, and completely sidestep concerns about notes and statements by just presenting real evidence of the transactions subject to litigation.

Conditional appearances

The Criminal Procedure Act 2009 will maintain the 12-month-limitation period for commencing summary criminal proceedings. The current limitation period is at s 26(4) of the Magistrates' Court Act 1989. (Criminal Procedure Act 2009 s 7 will replace that later this year.)



(Colloquially, this is often called the statute of limitations. But pedantically, the statute of limitations is in fact the Limitation of Actions Act 1958, which prescribes limitation periods for various civil actions.)

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edit A friend at the Bar pointed out I missed the effect of s 376 of the Criminal Procedure Act 2009. That will insert a new s 344A into the Children, Youth and Families Act 2005, providing for a six-month limitation period for summary charges against children unless the Court extends that time, or the child accused and police agree.

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Individual exceptions exist, such as the Drugs, Poisons and Controlled Substances Act 1981 s 45 and Local Government Act 1989 s 232. Both provide for a three-year limitation period to commence summary prosecutions.



One consequence of this limitation period is the legitimate tactic for an accused person to wait for the limitation period to expire before seizing on a deficiency in a charge for a summary offence. This is because in some cases amending a charge is akin to laying a fresh charge — and that can't be done outside the limitation period.



A similar consequence can occur when the summons compelling an accused person to attend court is defective.



Currently, Sch 5 of the Magistrates' Court General Regulations 2000 prescribes the use of Form 7 — Charge and Summons when summoning an accused person to court. There is no form for a summons alone. (It seems there will be a stand-alone summons under Criminal Procedure Act 2009 s 13.)



There's no authority to definitely say a new summons can be issued, but after reading DPP v Hogg (2006) 162 A Crim R 564; [2006] VSC 257 and Murdoch v Smith (2006) 15 VR 186, I think it probably can.



In any event, if the accused person wants to claim they are not properly or legitimately summoned to court they should enter a conditional appearance or an appearance under protest. That means though the accused turns up to argue if the summons is valid, they aren't impliedly accepting its validity or waiving any defect, and can later ask the court to set aside the summons or declare it invalid: Flaherty v Girgis (1987) 162 CLR 574 at 586; [1987] HCA 17 at [13].



If the accused doesn't appear under protest until an advanced stage of proceedings, then the court might consider they did submit to the court's jurisdiction: Guss v Magistrates’ Court [2003] VSC 365 at [11].



Duncan v Demir [2009] VSC 37 is an illustration of this last principle.



Mr Duncan was a Department of Infrastructure (now the Department of Transport) employee entitled to prosecute certain offences by s 77 of the Road Safety Act 1986. Mr Demir claimed there was no evidence Mr Duncan was duly authorised. The magistrate accepted that argument.



On appeal, at [43] - [46], the Supreme Court affirmed the importance of the accused person properly announcing they appear under protest and specifying their objection, applying DPP v Sher [2000] VSC 268 at [160]:

In my opinion if a party contests the issue of a summons, it must appear under protest and state the objection at the time so that if it has any substance, it can be debated and resolved as a preliminary issue. If there was any substance in the point, defence counsel should have raised it at the outset. It is not appropriate to appear under protest without stating the basis of the objection.

Compellability under the new Evidence Act

From 1 November 2009, witnesses in a broader range of relationships may be excused from giving evidence in criminal proceedings.

Right now s 400 of the Crimes Act 1958 provides that only the wife, husband, mother, father or child of an accused person can ask a court to excuse them from giving evidence for the prosecution.

Some courts consider that provision extends to de facto and same-sex relationships. Others consider that only legally married spouses can apply for that exemption. (I can't find any conclusive judicial authority on the point, but in R v RGP (2006) 167 A Crim R 468; [2006] VSCA 259 at [15] - [16] the Court of Appeal commented that s 400 shouldn't be interpreted broadly. In that case, the Court considered s 400 did not apply to step-children.)

The Full Bench of the Federal Court considered s 400 did not apply to former spouses or to de facto partners: S v Boulton (Examiner, Australian Crime Commission) (2006) 162 A Crim R 489; [2006] FCAFC 99 per Black CJ at [49].

Under s 18 of the new Evidence Act 2008, spouses, de facto partners, parents or children of an accused person may ask to be excused from giving evidence.

De facto partner, parent and child are defined in the dictionary to the Act. For parents and children, they include adoptive and step-relationships.

In the NSW and Commonwealth versions of the Evidence Act, certain offences are excluded from the operation of s 18. (Mostly sexual and family violence offences, when an accused person might improperly influence a complainant to withdraw their complaint.)

Section 19 is not enacted in the Victorian Evidence Act, so witnesses can ask to not give evidence in any criminal proceeding. But, the court must consider factors specified in sub-ss 18(6) and (7), which would justify refusing to excuse a witness from giving evidence if the court was satisfied they were being improperly influenced to recant.

QCIC scores a triple century

It's fashionable in politics and the media to note 100-day anniversaries — typically for important things like new governments and so on.

In a small moment of hubris, we're following popular culture.

Today marks 100 days since QCIC's first post.

We've also managed to achieve slightly more than 100 posts. (I'm not quite sure how we achieved that, given we haven't posted every single day.)

And I'm pleased to say we have precisely 100 subscribers.

We've barely begun to scratch the surface of discussion topics for summary prosecutions. Not only do major legislative changes commence later this year, there are more in the pipeline, due possibly later this year or early next year.

This is a good time to consider what we should cover over the next 100 days on this site. (And the 100 after that, and the 100 after that...) One problem, familiar to many bloggers, is just finding the time to write all that we want to.

We aim for the site to be relevant to all kinds of practitioners in the summary jurisdiction. But mainly, we hope the information is useful and interesting.

There are lots of ways you can provide feedback if you want (the 'ratings' button on the left, emailing me through the links on each post, or posting comments to posts), so please do if you want to say something.

Thanks to those of you who have contacted us over the last 100 days. We really appreciate your comments and suggestions. And thanks to all our subscribers for reading what we write.

No nodding-off on the Bench

Edit: The issue of a sleeping judge was raised again in the appeal of Kearns v R [2011] NSWCCA 103. Here the trial judge strongly refuted the allegations against him, and the appeal was dismissed.

---

I remember hearing a Law Report podcast about a NSW Court of Appeal decision that no miscarriage of justice occurred when a trial judge fell asleep during parts of the trial.



It turned out the judge suffered from sleep apnoea. (If you know someone with it, or are unlucky to suffer from it yourself, you'll know just how debilitating it can be.)



The Court of Appeal's decision seemed a little counter-intuitive, and evidently the High Court thought so too.



In Cesan v The Queen (2008) 250 ALR 192; [2008] HCA 52 the High Court held the judge's sleep caused a miscarriage of justice. That was because the judge wasn't able to properly supervise the jury and ensure it paid attention to all of the evidence, and wasn't distracted.



Surprisingly, French CJ cited at [90] and [91] numerous authorities dealing with sleeping judicial officers. It seems other appellate courts have also been confronted with this issue.



The typical summary-court workload leaves little time or opportunity for judicial officers to nod off, though I imagine it must be difficult to maintain their attention for all of the time in longer hearings.



Interestingly, the High Court didn't make any mention of the failure of the advocates in the trial to mention anything to the judge. No doubt they would have felt very uneasy at the prospect of bringing it up — in effect, rebuking the judge. Maybe the judge didn't realise the effect his medical condition was having on the trial. And maybe, the outcome might have been different if the advocates had mentioned something.



The Law Report transcript has some valid observations on that exact point, and is worth a read.

Evidence Act will allow judicial notice of regulations

When I wrote about Ostrowski v Palmer (2004) 218 CLR 493 a few weeks back, I was interested by Gleeson CJ and Kirby J's discussion of why the common law doesn't permit Courts to take judicial notice of regulations and rules.

[3.] One of the reasons that has been given for the common law rule that courts do not take judicial notice of regulations, as they do of statutes, and that a party relying on regulations must prove them in evidence, is that, in the past, in England, there was no official publication that would give ready access to the content of regulations of the kind that existed in relation to statutes. For purposes of pleading and evidence, unless the statute pursuant to which regulations were made provided that they were to be taken to be part of the statute, and subject to considerations that might arise out of the way particular litigation was conducted, in civil litigation the making and content of regulations were treated by the common law as facts to be alleged and proved. Proof of the making and the terms of regulations established that they formed part of the law to be applied to the resolution of the case. The same applied in criminal proceedings. Regulations duly made form part of the law but, subject to any statutory provision to the contrary, in legal proceedings their existence and content must be alleged and proved by the party relying on them. (Footnotes omitted.)

I must admit that I was ignorant about the rationale for a rule that is (it turns out) intended to prevent ignorance. And yes, I do see the irony in that!

The consequence of the rule is that tendering regulations and rules is a regular occurrence in summary prosecutions. But in 21^st century Australia, regulations are published and available to the public. (Even if there are still practical problems finding them.)

When the Evidence Act 2008 commences operation, section 143 will provide for courts to take judicial notice of subordinate legislation. It will also apply to orders made by the Governor-in-Council (the formal legal mechanism for proclaiming government decisions, typically recorded in the Government Gazette) and other proclamations made under legislation and published in the Government Gazette).

143. Matters of law

(1) Proof is not required about the provisions and coming into operation (in
whole or in part) of—

(a) an Act, an Imperial Act in force in Australia, a Commonwealth Act, an Act of another State or an Act or Ordinance of a Territory; or

(b) a regulation, rule or by-law made, or purporting to be made, under such an Act or Ordinance; or

(c) a proclamation or order of the Governor-General, the Governor of a State or the Administrator or Executive of a Territory made, or purporting to be made, under such an Act or Ordinance; or

(d) an instrument of a legislative character (for example, a rule of court) made, or purporting to be made, under such an Act or Ordinance, being an instrument that is required by or under a law to be published, or the making of which is required by or under a law to be notified, in any government or official gazette (by whatever name called).

(2) A judge may inform himself or herself about those matters in any way that the judge thinks fit.

(3) A reference in this section to an Act, being an Act of an Australian Parliament, includes a reference to a private Act passed by that Parliament.

Note: Section 5 of the Commonwealth Act extends the operation of the equivalent Commonwealth section to proceedings in all Australian courts.

The only practical difficulty I see with this section is the temptation for advocates to leave it to judicial officers to inform themselves of the content of regulations. Given the volume of legislation and subordinate legislation, that's probably a bit of a gamble: it's unlikely any individual will be familiar with every Act of Parliament, let alone all rules and regulations.

That problem is greater for proclamations found in the Government Gazette.

So, as useful as this provision will be in updating our legal processes, there will probably still be a practical need for subordinate legislation in our courts.

Quote/unquote

Further Edit: I have been pointed to the decision of Connex Group Australia v Butt [2004] NSW 379 on this point. White J delivers a comprehensive judgment explaining his decision to allow lay opinion about the substance of conversation, where the words themselves could no longer be recalled.

I'll write a full post on it when time permits.

Jeremy Gans expressed the view (in his comment on When is lay opinion necessary) that the NSW Court of Appeal suggested in Jackson v Lithgow City Council that the Evidence Act 1995 (NSW) should not be interpreted so narrowly that a witness would be prevented from giving the 'gist' of a conversation unless they could demonstrate they were unable to recount the exact words used.

Basten JA [at 63]:

63 The submissions did not seek to make good that last proposition. It gives rise to a question, not addressed in argument, as to whether the exclusion of opinion evidence found in s 76 of the Evidence Act was intended to exclude the kinds of inference and impression which would have been admissible under the general law, so that their continued admissibility depends upon the operation of the exceptions. If the exclusionary rule were intended to have such a comprehensive effect, it would be necessary to give a broad construction to, for example, s 78, so as to avoid the exclusion of evidence of impression and inference without which much testimony would become an unhelpful artefact. Even giving s 78 a broad operation might not properly resolve the matter. The recounting of a conversation commencing, “she then said words to the following effect ...” would only be admissible once the proponent of the evidence demonstrated the impossibility (or perhaps the impracticability) of repeating word for word what had been said. It seems unlikely that the structure of the Evidence Act (stating a rule of general exclusion, followed by exceptions) was intended to have such an impractical effect.

Basten JA's remarks were not essential to the deciding of the case, and so should not be conclusive on the subject. For further discussion, see also the later post and discussion Indirect speech in evidence.

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Edit: R v Noble [2000] QCA 523 was referred to in LMI v Baulderstone [2001] NSWSC 688.

8 There is no rule of law, whether under the Evidence Act or otherwise, which makes inadmissible evidence of a conversation given in indirect speech, but there are obviously very good reasons why courts have, over the years, been astute to regard the direct speech form as the best form. The statements in the two Queensland cases to which Mr Campbell took me share a common thread of the witness's inability to remember the precise words used. In each of the passages I have quoted there is a statement that the witness was unable to remember the precise words. Obviously if a witness can remember them, evidence should be given of the ipsissima verba.

9 The possibility that s.135 may be invoked where evidence of a conversation is given in indirect speech is, of course, real. However, the question under that section will be not merely be whether there is prejudice, but whether that prejudice is unfair prejudice operating against the opposing party because of a curtailment of the ability to cross-examine. I accept that not all the cross-examination opportunities available in a case of direct speech report will arise in case of an indirect speech report, but the ability to engage in meaningful cross-examination will exist nevertheless. There is also the point that the probative value of the evidence may be diminished by its form.

The trial judge, Barret J, confirmed that the position under the Evidence Act 1995 (NSW) is the same as under the common law, largely agreeing with the Queensland Court of Appeal in Noble.

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Spend any time at all in the Magistrates' Court and you will soon hear a witness being told off (often publicly, in the witness box), "No, say the words that he actually used!"

There's no doubt the precise words would be the best evidence. Whether the witness will be able to recall them or not is a separate question.

McMurdo P said in R v Noble [2000] QCA 523:

[20] There is, in my respectful opinion, no rule that a witness who does not claim to remember the words spoken in a conversation must attempt to give it in direct speech, manufacturing a conversation from a recollection of its effect. Of course, the ideal is that the exact words be given, but it is so unlikely that [the witness] could have remembered anything other than the substance of the conversations that the judge plainly erred in attempting to have him give evidence using direct speech. The erroneous idea that people can accurately recall conversations in direct speech, long after their occurrence, appears to have been encouraged by practices observed by some magistrates and police, in days gone by. That it is erroneous can be easily demonstrated, if one tries to perform this feat oneself.

The Queensland Court of Appeal relied on Wigmore on Evidence in coming to this unanimous conclusion that the absence of direct speech doesn't offend any rule of evidence. This case has now found its way into Cross on Evidence, and nothing that I've seen in our new Evidence Act 2008 says differently.

Human rights might alter burdens for deemed possession

The Criminal Bar Association sent an email about two weeks ago to its members from barrister Michael Croucher. He discussed an application for leave to appeal to the Court of Appeal by Vera Momcilovic against her conviction and sentence. The application is listed for 22 and 23 July.



The outcome could have a significant effect in all criminal jurisdictions in Victoria, not just the summary jurisdiction.



It concerns the interpretation of the Drugs, Poisons and Controlled Substances Act 1981 s 5 (deemed possession of drugs) and the Charter of Human Rights and Responsibilities Act 2006 ss 25 (rights in criminal proceedings) and 32 (interpretation).



Vera Momcilovic was convicted by a County Court jury of trafficking methylamphetamine, found at her apartment. She gave sworn evidence she didn't know about the drugs. Her boyfriend Velimir Markovski (convicted in a separate trial of trafficking the drugs) gave evidence at her trial that Ms Momcilovic wasn't aware of the drugs or his trafficking.



The Crown case alleged possession for sale, relying on the Drugs, Poisons and Controlled Substances Act 1981 s 5 (which deems a person possesses drugs found on their land or premises unless they satisfy the court otherwise) and s 73(2).



Those provisions provide:

5. Meaning of possession



Without restricting the meaning of the word possession, any substance shall be deemed for the purposes of this Act to be in the possession of a person so long as it is upon any land or premises occupied by him or is used, enjoyed or controlled by him in any place whatsoever, unless the person satisfies the court to the contrary.

73. Possession of a drug of dependence



...



(2) Where a person has in his possession, without being authorized by or licensed under this Act or the regulations to do so, a drug of dependence in a quantity that is not less than the traffickable quantity applicable to that drug of dependence, the possession of that drug of dependence in that quantity is prima facie evidence of trafficking by that person in that drug of dependence.

Ms Momcilovic was sentenced to 27 months' jail, with a non-parole period of 18 months.



Her application for leave to appeal is against her conviction and sentence.



One issue in the application is if the reverse-onus provision in s 5 of the DPCS Act places only an evidentiary onus on the accused rather than a legal onus (on the balance of probabilities), because of the presumption of innocence in s 25(1) of the Charter and the requirement to interpret legislation consistently with human rights in s 32 of the Charter.



Since the Court of Criminal Appeal decided R v Clarke & Johnson [1986] VR 643; (1986) 21 A Crim R 135, it seemed settled that s 5 imposed a legal burden on an accused person:

There is a distinct difference in operation between s 5 and s 73(2). The former section operates so that facts establishing less than the possession of a drug by an accused are deemed to establish possession unless the accused satisfies the jury on the balance of probabilities that he was not in possession of it. The latter sub-section operates so that if the accused has in his possession a traffickable quantity of drugs that is prima facie evidence of trafficking by the accused: R v Clarke & Johnson [1986] VR 643 at 659; (1986) 21 A Crim R 135 at 152.

The upshot of all this is that if the prosecution can prove beyond reasonable doubt an accused occupies or controls premises where drugs are found, the accused is deemed to possess those drugs unless they prove on the balance of probabilities they weren't in possession. Typically, that's attempted by trying to prove they didn't know the drugs were there. (But negating any element of s 5 will achieve that result.)



If the quantity of drug exceeds the relevant traffickable quantity, s 73(2) can be used with s 5 to prove the accused intended to traffick the drugs, as defined in s 70(1).



The Attorney-General for Victoria and the Victorian Equal Opportunity and Human Rights Commission are intervening on the Charter point, under ss 34 and 40 of the Charter. The Human Rights Resource Law Centre is also seeking leave to appear as amicus curiae (Latin for friend of the court) on the Charter issue.

Costs in the Federal Magistrates Court

It seems that news of the closure of the Federal Magistrates Court might be premature.

From recent media reports, some federal magistrates are unhappy about plans to integrate their court into the Family and Federal Courts. Given their tenured positions, it would appear that if they refuse to join another court it would be constitutionally impossible for the government to make them.

Some judgments of the Federal Magistrates Court make for interesting reading. Although much of the Court's work concerns sensitive matters involving family and children, orders are routinely made for parties' names to be disguised by pseudonym to allow the Court's decisions to be published.

In Robson v Johns [2008] FMCA 721 Croakes FM deemed much of the material contained in affidavits tendered in an interim parenting application to be irrelevent and unhelpful. He disregarded those parts pursuant to r 15.29 of the Federal Magistrates Court Rules 2001, but added [at 15],

It is unfortunate it was necessary for me to remind both solicitors of necessary and appropriate evidence to put before the Court in interim parenting applications and to provide relevant evidence to enable the Court to determine arrangements for their young child until the final hearing can take place. It is unfortunate that I was obliged to invoke rule 15.29 of the Federal Magistrates Court Rules 2001 and to strike out substantial portions of both the father’s affidavits and the mother’s affidavit for the reason that the material was either inadmissible or unnecessary or irrelevant and make Orders that the solicitors not charge professional fees for those parts of the affidavits.

I can't say if the order of Croakes FM to prevent the solicitors from charging their clients for part of their services is a common practice in that jurisdiction. But as more practitioners are drawn in to representing clients in the Family Violence Division of the Magistrates' Court of Victoria, it's interesting to think what might happen if state magistrates were to adopt the same approach.

With s 154 of the Family Violence Protection Act 2008 severely restricting the awarding of costs against the opposing party, affidavits in support of intervention order applications drawn up by privately briefed practitioners might become very brief indeed.

Diversion, disclosure and discretion

The Magistrates' Court Act 1989 s 128A provides a statutory power for summary courts to adjourn criminal charges for a diversion hearing.

128A. Adjournment to undertake diversion program

(1) This section does not apply to-

(a) an offence punishable by a minimum or fixed sentence or penalty, including cancellation or suspension of a licence or permit to drive a motor vehicle but not including the incurring of demerit points under the Road Safety Act 1986 or regulations made under that Act; or

(b) an offence under section 49(1) of the Road Safety Act 1986 not referred to in paragraph (a).

(2) If, at any time before taking a formal plea from a defendant in a criminal proceeding for a summary offence or an indictable offence triable summarily-

(a) the defendant acknowledges to the Court responsibility for the offence; and

(b) it appears appropriate to the Court, which may inform itself in any way it thinks fit, that the defendant should participate in a diversion program; and

(c) both the prosecution and the defendant consent to the Court adjourning the proceeding for this purpose-

the Court may adjourn the proceeding for a period not exceeding 12 months to enable the defendant to participate in and complete the diversion program.

(3) A defendant's acknowledgment to the Court of responsibility for an offence is inadmissible as evidence in a proceeding for that offence and does not constitute a plea.
...

(The equivalent provision in the Criminal Procedure Act 2009 is s 59.)

When the diversion program was introduced, it was something of a mind-shift for those of us more familiar with the adversarial approach and its emphasis on formal sanctions in an escalating hierarchy.

The tensions between restorative and adversarial approaches aren't completely resolved yet.

Disclosure

In one recent contest-mention hearing, the prosecution was unaware the accused person was convicted of other criminal offences after he was charged with the contest-mention offences.

His solicitors were aware of that, but didn't disclose it when the Court was asked to consider diversion.

Ordinarily, an accused person's lawyer is under no obligation to disclose their client's bad character or criminal history. (This is part of the presumption of innocence and the obligation on the prosecution to prove its case — and on sentencing all, things adverse to the accused — beyond a reasonable doubt.) The most well-known statement of this principle is by Lord Diplock:

A barrister must not wilfully mislead the court as to the law nor may he actively mislead the court as to facts, although, consistently with the rule that the prosecution must prove its case, he may passively stand by and watch the court being misled by reason of its failure to ascertain facts that are within the barrister's knowledge: Saif Ali v Sydney Mitchell & Co [1980] AC 198 at 220.

That's reflected in Rule 14.10 of the Professional Conduct and Practice Rules 2005 for solicitors:

14.10 A practitioner will not have made a misleading statement to a court simply by failing to disclose facts known to the practitioner concerning the client's character or past,
when the practitioner makes other statements concerning those matters to the court, and those statements are not themselves misleading.

and Rule 159 of the Victorian Bar's Practice Rules for barristers:

159. Where on sentence a barrister is aware of a client’s previous convictions which have not been made known to the court by the prosecution, a barrister is under no duty to
correct the omission of the prosecution. However, the barrister remains under a duty not to mislead the court and therefore should not make any submission capable of being regarded as an assertion that the client has no previous convictions.

(There's also some common sense to these rules. If I were paying some of my hard-earned to a lawyer to represent me in court, I would not be very happy if that lawyer were to pipe up and dob me in if the prosecution failed to mention something bad about me!)

There was no doubt the solicitor wasn't legally or ethically obliged to remedy the prosecution's ignorance of his client's subsequent convictions.

Discretion

But, that wasn't the end of the matter. The magistrate had an inkling the accused had some sort of criminal history...and it turned out, that criminal history was from charges heard by that same magistrate! Diversion Coordinators are pretty diligent about unearthing everything they think might be relevant under s 128A. And magistrates rely on that information before they grant diversion.

So in this case, the magistrate considered the accused wasn't suitable for diversion. The issue wasn't so much one of legal and ethical obligations in the traditional adversarial framework, but rather, case-management concerns in a therapeutic framework.

The only appellate case so far to consider s 128A is Rumbiak v Hough [2004] VSC 95. In that case, the Supreme Court held that the consent of the parties was only one necessary step to a grant of diversion. The section also requires a formal acknowledgement of responsibility by the accused, and a finding by the Court that diversion is appropriate in the case.

[25] ...However, the making of such an order is at the discretion of the Magistrate, as indicated by the words "the Court may adjourn the proceeding" in section 128A(2), and the several prerequisites for the making of the order are set out in that provision. The agreement of the parties cannot determine the matter.

[26] Mr Lurie deposes to his instructions that the plaintiff was willing to acknowledge responsibility for offending for the purpose of enabling participation in a diversion program, and that he had discussions with the informant and the police prosecutor as a result of which it was agreed that the plaintiff and the prosecution would consent to the plaintiff participating in a diversion program. He notified the Magistrate that the plaintiff sought referral to diversion and that the informant and the prosecutor agreed. The prosecutor informed the Magistrate that she consented to that course.

[27] However, there is no evidence before me that the plaintiff's readiness to acknowledge responsibility for the offence was notified to the Magistrate as required by section 128A(2)(a). Mr Batten submitted that that acknowledgment to the Court was implied by his counsel's request for diversion. I do not accept that submission. The acknowledgment to the court of responsibility for the offence is a formal step of a serious nature, analogous to a plea of guilty, which should be carried out formally by the accused in open court. That acknowledgment is not a matter for implication.

[28] Nor is there any evidence of a finding by the Magistrate that it seemed appropriate to him that the plaintiff should participate in a diversion program, as required by section 128A(2)(b). Mr Dennis submitted, and I accept, that before making that finding it would be necessary for the Magistrate to consider such matters as whether the plaintiff had prior convictions and the gravity and circumstances of the offence. There was no evidence to suggest that His Worship had any evidence of such matters before him.

It's pretty clear the Court is entitled to collect a full history of the accused. But it's not entirely clear if that means defence lawyers must volunteer it in all circumstances under the current provisions. From what I see, most lawyers do volunteer such information, and many magistrates are canny enough to directly ask if they know of any subsequent matters, which brings into play the ethical obligation to not knowingly mislead the court.

Section 59 in the Criminal Procedure Act 2009 contains the same (or substantially the same) provisions, so I expect the exact same considerations will apply when it commences operation, probably in October 2009.