Friday, 31 July 2009

Lap dance causes confusion

Further Edit: You may be interested to learn that this post is one of the most frequently viewed pages on this site. Whether that's a reflection on the readership of this blog, or just to the internet as a whole, is impossible to determine.

Edit: The case referred to has now been posted at AustLII, as Hayes v Surfers Paradise Rock and Roll Cafe [2009] QDC 214.

Another good re-post from Lawyers Weekly this week, suggesting a local authority for what we said here back in April: Wikipedia ain't evidence!

I can't find the case itself, but the article in a Queensland online paper contains enough detail that it might be genuine.

According to the story, a magistrate searching for the definition of lap dance in a licensing matter sought assistance from secondary sources. When the Oxford dictionary proved no help, he obtained a definition on-line. On appeal, the District Court is said to have ruled that the magistrate was wrong to rely upon the definition without allowing the parties to make submissions on the point

It wasn't that the source was considered inherently unreliable, though. "The failure to permit the parties any opportunity ... with respect to the Wiktionary entry as to the meaning of 'lap dance' must be seen as a denial of natural justice," Newton J reportedly said.

"Off the record" admissions

It's not uncommon for a suspect to disclose their involvement in an offence to investigators "off the record", but protest their innocence or make no comment when formally interviewed.

Why someone would do this is difficult to understand. It would appear far more logical for a person to approach their dealings with police with a particular strategy in mind - either to answer all questions truthfully, or to make no comment, or to present a particular version of events - and stick to that strategy throughout. But there are a sufficient number of recorded cases to confirm that these conversations do happen.

Woon v R (1964) 109 CLR 529 is an example of a case where the accused remained undecided which strategy to adopt during the formal interview itself, changing his mind repeatedly and ending up looking guilty and evasive as a result. In R v Dupas [2001] VSCA 109 the accused declined to repeat in the interview what he had said while being driven to a police station.

In Em v The Queen (2007) 232 CLR 67, the accused had indicated that he would make no comment to any questioning that was tape recorded. Several weeks after the formal recorded interview where he made no comment, police were granted warrants to secretly tape-record conversations with the accused. He knew he was talking to police and was advised that what he said could be used in evidence, but wasn't told he was being recorded. The Supreme Court allowed part of this recording to be admitted, a decision the High Court later upheld.

The High Court had earlier decided in R v Swaffield; Pavic v The Queen (1998)192 CLR 159 that courts have a broad discretion to reject evidence on the ground that unfair prejudice would result from its admission into evidence. Likewise, the effect of the impugned conduct of police is one of a number of factors to be considered in deciding whether judicial discretion to refuse to admit evidence will be exercised (though the undesirability of the conduct itself is the subject of separate consideration under the public policy discretion). In Pavic's case, the trial judge admitted the evidence. The High Court upheld that decision.

The case of Carr v Western Australia (2007) 232 CLR 107 is a recent variation on this theme.

The accused denied involvment in an armed robbery when interviewed. However, when later discussing the robbery with police in a holding area of the police station, he said things that clearly implicated himself. The accused was unaware that the area was video- and audio-recorded when he volunteered these statements. He was convicted, and while not disputing the truth of the admissions he made, it was argued on appeal that he made the statements implicating himself to, "frustrate", "tease" and "piss off" the investigators, not expecting the evidence would be used against him.

The High Court rejected the notion that an accused must consent to being videotaped before admissions could be considered voluntary.

Although the Court's reasoning centred around the interpretatation of Western Australian legislation (WA hasn't yet adopted a Uniform Evidence Act), parellels can be drawn between WA laws and those in Victoria. As Keith Chapple SC noted in his summary of the case in the NSW Bar News:

The whole circumstances of the case are a cautionary tale for any counsel offering advice to a suspect who is ‘assisting with enquiries.’ If a client is exercising a right to silence it should be constant when in the company of the police.

Thursday, 30 July 2009

Jury directions report released

The VLRC report into jury directions I posted about a couple of weeks ago was tabled in Parliament yesterday. (There was no mention of video replays in cases of erroneous jury charges. Maybe next time.)

As predicted, the VLRC recommends legislative change that will require the leave of the Court of Appeal before consideration of an appeal founded on jury directions, if the point wasn't raised at the trial.

There are a number of other recommendations for the conduct of jury trials. They include:

  • The development of a document (referred to as an Outline of Charges) produced by the prosecution, approved by the court and to be provided to juries to assist in them in identifying the key areas of dispute in the case;
  • The simplification of evidentiary directions, particularly those in sex offence cases;
  • A general (rather than specific) warning about consciousness of guilt evidence - here referred to as post-offence conduct;
  • Consideration of possible changes to the directions given in relation to propensity (what the new Evidence Act calls tendency evidence);
  • The suggested use of a Jury Guide, a written document prepared by the judge which asks the jury a series of questions, tailored to the specific case and designed to assist them in making the intermediate findings of fact leading to their eventual verdict;
  • The creation of a specialist Public Defenders office similar to the one in NSW.
The VLRC proposes abolishing all the existing common law regarding jury directions, and codifying these rules into one Act.

The Government also intends to release a discussion paper outlining potential reform to the way that jurors are selected before the end of the year.

Wednesday, 29 July 2009

Walker v Walker

Edit: Our statistics show that this post continues to be accessed in far higher numbers than I would have thought when I wrote it. There's obviously interest in how this rule will be applied in the future.

Below I wrote, "Whether the statement then becomes evidence of the truth of its contents or merely clarification of the evidence given then becomes the issue." Since then, having read Papakosmas v R and associated cases, I incline to the view that once admitted the evidence can be used for all sorts of purposes, not just to assess credit, subject to directions the trial judge gives.

I've heard it said that, "under the new Evidence Act 2008 the rule in Walker v Walker is dead."

As a way of summarising a fairly obscure piece of evidentiary trial procedure, that's fine. But if practitioners don't recognise that there are situations when the tender of a document can be forced other than when its production is called for in cross-examination, there might be some red faces in the new year.

Maybe it would be more accurate to say, "The rule in Walker v Walker is dead, but the rule in Hatziparadissis continues to apply".

Walker v Walker

In 1937, the High Court decided an appeal originating in the Magistrates' Court of an application for maintenance by a deserted wife. The ruling of the Court was that a document called for and inspected by opposing counsel during the running of the case became admissible evidence that the magistrate was entitled to rely on for the truth of its contents.

Though it's been accepted as the entrenched position at law, some have railed against the rule in Walker v Walker as being an unfair inhibition on disclosure. If a party were aware of the existence of a document prior to hearing and sought its production from a party through normal pre-hearing disclosure, they would be under no obligation to tender it at trial no matter how relevant or probative it might be. Why then, if a party only becomes aware of the existence of a document whilst cross-examining a witness, should the cross-examiner be prevented from looking at the document for fear of their opponent forcing its tender?

(The other traditional argument, that the forced tender represents a departure from the rigid rules surrounding the proving of documents, wouldn't have much force now. The Evidence Act 2008 abolishes the archaic system of rules contained in the Evidence Act 1958 and allows courts to use common sense when considering issues of accuracy and provenance of documents, particularly in civil proceedings).

The rule in Walker v Walker is rarely invoked, and has never seriously been challenged at criminal appellate level in Victoria. Even so, the Evidence Act 2008 (perhaps as much for consistency across UEA jurisdictions as anything else) contains s 35, which reads:

35. Effect of calling for production of documents

(1) A party is not to be required to tender a document only because the party, whether under this Act or otherwise-

(a) called for the document to be produced to the party; or

(b) inspected it when it was so produced.

(2) The party who produces a document so called for is not entitled to tender it only because the party to whom it was produced, or who inspected it, fails to tender it.

The explanatory memorandum in relation to this section reads:

Section 35 provides that a party who calls for another party's document is not automatically required to tender it. Similarly, the party who produces the document is not automatically entitled to tender it if the calling party does not tender it.

This clause abolishes the rule in Walker v Walker. Under that rule, the party called on to produce a document may require the party who called for and inspected the document to then tender the document. This means that a document that may otherwise be inadmissible could be admitted under this rule. This clause removes the automatic right of either party to tender a document or require the other party to tender a document.

The clause does not, however, preclude the tendering and admission of such a document if it is otherwise relevant and admissible.

R v Harrison

In R v Harrison (1967) VR 72, at the conclusion of an incest trial an accused argued that he had already entered a plea of guilty to the offence the jury had found him guilty of, and had been acquitted of the charge he believed he was contesting. To sort out the confusion, the trial judge recalled the police informant to give evidence and admitted into evidence the original police brief which was marked by him with the charges that guilty pleas had been entered to.

The Court of Appeal ruled that this should not have occurred: "the defence did not call for the documents, did not inspect them or make any use of them, or cross-examine the witness in respect of their contents."

Hatziparridissis v GFC

In the civil case of Hatziparadissis v G F C (Manufacturing) Pty Ltd [1978] VR 181, a psychiatrist was cross-examined at length. He was questioned about notes he had referred to in order to assist his memory in evidence-in-chief, but was also asked questions by the cross-examiner about portions of the documents which he had not referred to.

After the psychiatrist had left the witness box, the party calling him made application that the notes must then be tendered. Although Harris J refused the application, it was on the basis that the witness had already left the witness box (citing the English decision of Senat v Senat (1965) All ER 505 and other sources). Had the application been made during - or at the conclusion - of the witness's evidence, all indications are the Court's ruling would have gone the other way.

The precedent that a party could force the tender of a statement cross-examined on - not called for and inspected, as in Walker's case - was established.

R v Vella

In R v Vella, at a criminal trial a security guard named Yeoman was cross-examined at length about events he claimed to have seen. Segments of the statement he had made the day after the incident were read to him by counsel. On the appeal, Bongiorno JA summarised the cross-examination [at 26]:

26 Prior to commencing cross-examination of Yeoman on his statement defence counsel at the applicant’s trial elicited from him that he had read the statement prior to giving evidence and obtained his assent to the proposition that that reading had served to refresh his memory of the events described in it. Counsel did not explore the extent to which he had done so or any other matters going to his use of the document. However, later in the cross-examination Yeoman qualified his evidence that he had read the whole statement by saying that he had skipped at least one section of it and later still said that in looking at the statement that day ". . . the main things I looked at were times, refreshing my memory on the times, the dates and that sort of stuff." The cross-examiner did not challenge these qualifications, being apparently content to rely upon the general assent he had elicited from the witness at the beginning of his cross-examination.

27 Counsel’s cross-examination of Yeoman covered almost the whole of his statement. It was a cross-examination which put at risk the compulsory tender of that statement once Yeoman qualified his earlier evidence as to his reading of it. To protect the statement from the risk of compulsory tender, cross-examining counsel had to confine his questions to those parts of the document which Yeoman had used to refresh his memory. By not ascertaining, with appropriate precision, the extent of Yeoman’s use of the statement the cross-examiner ventured into dangerous territory. If he did cross examine beyond the areas of the document which Yeoman had used to refresh his memory it became relevant and admissible at the option of the prosecutor, subject to the trial judge’s discretion, within the principles expounded in Senat and Harrison and other authorities dealing with this topic.

The common law referred to overlaps with the provisions at s 36 of the Evidence Act 1958. That provision is being repealed with the introduction of the new Evidence Act. The Court of Appeal found s 36 was not the basis of the admissibility of the parts of a statement not used to refresh memory; the common law rule was.

29 Section 36 of the Evidence Act 1958 is a provision relating to the use that can be made of a witness’s prior out-of-court statement by a cross-examiner particularly for the purpose of contradicting the witness by that statement and, by virtue of the proviso to the section, by the Court itself. Its purpose was to remove a number of inconvenient consequences of the former common law rule derived from The Queen’s Case. The exercise undertaken by the prosecutor in this case was not, in truth, concerned with s. 36 at all. He was invoking the common law rule derived from Gregory v Tavernor[17] referred to by the Full Court in R v Harrison and by Sir Jocelyn Simon in Senat v Senat.

The Court of Appeal concluded:

39 The effect of these cases and, in particular, the High Court cases of Walker and Barnes, is that, at least where a document is compulsorily tendered because it has been called for and inspected, the probative value of the material in that document must be dealt with by the Court as a matter of fact and such weight must be given to it as the circumstances warrant. It is "evidence in the case." It is difficult to distinguish this situation from the situation in which a document is compulsorily tendered not because it has been called for but because a cross-examiner has cross examined on it outside those matters in it which have been used to refresh the witness’s memory. Doubtless, in many cases, such a document will do no more than confirm the evidence of the witness being cross-examined with respect to some or all of that evidence. If that is what it does the proper use of it would be to bolster the witness’s credit in a permissible way.

Being a recent decision of the Court of Appeal, it's likely that R v Vella is the most accurate statement of the existing common law in Victoria on this issue.

Section 45

Section 45 of the Evidence Act 2008 refers to the admissibility of documents used in cross-examination:

45. Production of documents

(1) This section applies if a party is cross-examining or has cross-examined a witness about-

(a) a prior inconsistent statement alleged to have been made by the witness that is recorded in a document; or

(b) a previous representation alleged to have been made by another person that is recorded in a document.

(2) If the court so orders or if another party so requires, the party must produce-

(a) the document; or

(b) such evidence of the contents of the document as is available to the party-

to the court or to that other party.

(3) The court may-

(a) examine a document or evidence that has been so produced; and

(b) give directions as to its use; and

(c) admit it even if it has not been tendered by a party.

(4) Subsection (3) does not permit the court to admit a document or evidence that is not admissible because of Chapter 3.

(5) The mere production of a document to a witness who is being cross-examined does not give rise to a requirement that the cross-examiner tender the document.

Sub-s (5) states that mere production does not give rise to the obligation to tender. In this sense it's not different to the existing law on cross-examination on an inadmissible document. Arguably, the ability to force tender would still arise where cross-examination on the document occurs, and it has not been used to refresh memory.

In my view, this interpretation is consistent with the underlying rationale of the rule in Hatziparadissis, which was to allow a trier of fact the opportunity to review the material on which cross-examination was based. It's not hard to structure questions in a cross-examination (either deliberately or inadvertently) that create a misleading impression of the contents of a document. While such matters can be dealt with by re-examination, it seems a practical and fair approach to allow the Court to inspect the document and use it to place the questions and answers given in their correct context. Whether the statement then becomes evidence of the truth of its contents or merely clarification of the evidence given then becomes the issue.

In states where the UEA has been in operation for some time, the removal of Walker v Walker has not affected the consideration given to Hatziparadissis: Assof v Skalkos [1999] NSWSC 1334.

Tuesday, 28 July 2009

Overpaid judges

The Age today reported that Victorian judicial officers have been overpaid as the result of, funnily enough, bad legal advice.

Magistrates, judges and justices have reportedly been approached and asked to repay the money mistakenly paid to them.

The total over-payment is estimated to be just under half a million dollars.

The sexual context of child pornography

DPP v Annetts considers an important issue in child pornography cases. A case stated was recently placed before the NSW Court of Criminal Appeal that required interpretation of the phrase in a sexual context.

Similar wording is also used in Victorian statute, at s 67A Crimes Act 1958:

child pornography means a film, photograph, publication or computer game that describes or depicts a person who is, or appears to be, a minor engaging in sexual activity or depicted in an indecent sexual manner or context;

The accused in Annetts' case had been in possession of a video of boys dressing and undressing in a changing room, and was alleged to have made the recording. (If these events had occurred in Victoria, charges under s 41B of the Summary Offence Act 1966 would presumably also have been before the Court).

There were no sex acts on the video. The District Court judge excluded from his consideration a number of factors the prosecution submitted he ought to consider in determining whether the video depicted children in a sexual context [at 5]:
  • the way the photos were taken - they were not taken openly.
  • the concentration, in some of the images, on the genitalia of the young persons filmed.
  • all of the images were of young boys.
  • the camera was disguised and the filming activity was planned and took place over a period of approximately 4 hours.
The prosecution also submitted it was appropriate for the Court to have regard to the reason the recording was made (suggesting it was made for the accused's sexual gratification) as relevant to whether or not the material came within the definition. The District Court rejected these submissions, and dismissed the charge.

The NSW Court of Appeal decided that the appropriate test had not been applied, and the matter was remitted back to the District Court for proper determination.

McClellan CJ [at 10]:
10 In my opinion his Honour was correct to determine that the question which the definition in s 91H raises is objective and is to be answered by considering the content of the material about which complaint has been made. The fact that the images were secretly recorded is not relevant to whether or not the material is child pornography. Furthermore, the reasons which motivated the photographer are not relevant. These matters may inform an understanding of the context in which the film was made but are not relevant to an understanding of whether or not the video depicts boys in a “sexual context.” That question must be answered after considering the content of the film itself.

11 For that reason the content of the images contained in the video is relevant to the issue raised by the statute. The fact that all the images were of young boys and the camera has concentrated on their genitalia are both relevant to the question of whether or not the images depicted are of a person or persons in a “sexual context.” Of course it may be that after consideration of the content of a video, including a video containing a sequence of images of the genitalia of young boys, it could not be concluded that the video depicts boys in a sexual context. The images may have been made for a medical or artistic purpose and are depicted in that context. However, a conclusion that the images depict persons under 16 in “sexual context” may be informed by the number of images, the gestures of those photographed and the portion or portions of the body, including the genitalia, depicted.

12 It follows that the primary judge’s approach was only partly correct. Although the motivation of the photographer and the method he used to film the boys was not relevant all of the content of the images, including that all the images were of young boys, concentrated on their genitalia and were taken over a period of time, and, if this is apparent from the video, were taken in a men’s change room were relevant to the question of whether or not the material depicted a person “in a sexual context”. Whether, when these matters are considered, an offence is proved in the present case is not a matter for this Court.

The test is an objective one and the intent of the maker is irrelevant. Sexual context clearly extends beyond actual depictions of sex, though how far is unclear.

Sunday, 26 July 2009

Street brawling

Further Edit: General deterrence also sometimes takes priority over rehabilitation, even for youthful offenders, in cases of large-scale drug manufacture and cultivation. A recent example is the Court of Appeal's decision in Doan v The Queen [2010] VSCA 258.

Nettle JA [at 17, the other members of the Court agreeing]:

I agree and I wish only to add a brief observation concerning the submission advanced on behalf of the appellant that the judge had erred in the emphasis which his Honour placed on the importance of general deterrence. In my view lest there be any doubt about it, there should be no doubt that in cases involving cultivation of a narcotic plant in not less than a commercial quantity, general deterrence is at the forefront of sentencing considerations. Consequently, as the judge rightly observed, in cases of this kind there is less room to give weight to considerations of such as youth and antecedents that would otherwise be the case. In the result the judge also correctly found in a case of this kind an immediate term of imprisonment should ordinarily be regarded as virtually unavoidable.

In Braslin and Cowen v Tasmania [2010] TASCCA 1, the Court of Appeal identified a number of authorities across jurisdictions making similar observations about the role of youth as mitigation:

Mr Braslin's age

28 Mr Braslin was nearly 20 years old at the time of these offences. As such, in strict terms, he qualifies as a "young offender" so that the principles applicable to such offenders applied to him; see for example Maney v White [2007] TASSC 7 and Spaulding v Lowe 4/1985. However, whilst youthfulness of itself is generally taken to be a mitigating factor, and the rehabilitation of the offender assumes predominant importance, that is not exclusively so, and does not remain true for all cases irrespective of their nature. In R v Tran [2002] VSCA 52; (2002) 4 VR 457 at [14] Callaway JA said:

The rehabilitation of youthful offenders, where practicable, is one of the great objectives of the criminal law, but it is not its only objective. It is not difficult to cite cases where other objectives have had to prevail. It is true that, in the case of a youthful offender, rehabilitation is usually far more important than general deterrence, but the word I have italicised is there to remind us that there are cases where just punishment, general deterrence or other sentencing objectives are at least equally important.

29 Deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence...; R v Phan (1991) 55 A Crim R 128 at 135.

The moderation of the emphasis given to rehabilitation rather than general deterrence and retribution has been acknowledged where the young person "has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence of considerable gravity"; R v AEM [2002] NSWCCA 58 at [97] – [98]; KT v R (2008) 182 A Crim R 571 per McClellan CJ at CL at [25]. In the latter case, McClellan CJ at CL continued:

25 ... In determining whether a young offender has engaged in 'adult behaviour', the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence. Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society.

26 The weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity. [References omitted]

30 Whilst still qualifying as a youthful offender, Mr Braslin was approaching the end of the time for which such a claim can be made. Regard must be had to the nature and circumstances of these offences, particularly the premeditation and the detailed planning involved. The commission of such crimes, which include a crime of strong violence and considerable gravity, indicates the behaviour of an adult. It is true that Mr Braslin has no convictions for any matters of real significance, but it must be said that the frequency and extent of his offending in a short period of time, at the least shows a disregard for the law. For those reasons, factors of deterrence and retribution/denunciation were not overshadowed by issues of youth and rehabilitation, but were entitled to be given considerable weight.

Edit: Another recent example of the courts' willingness to sentence young first-time offenders to immediate imprisonment is found in the South Australian case of Crispin v Police [2009] SASC 210 (see below)

The hot-button issue of the moment is assaults in public, usually by young men, and usually fuelled by alcohol. On the one hand, community concern about this particular type of crime is intense, and the need for general deterrence is obvious. On the other, the youth and (frequently) absence of criminal history of the accused are significant mitigating factors. How does the Court effectively balance these competing interests in arriving at an appropriate sentence? R v Mills (1998) 4 VR 235 is quoted from both ends of the bar table. For the prosecution, the case provides support for the proposition that imprisonment is an appropriate disposition for a serious assault, even where the accused is young and has no previous criminal history (the question then becoming how that imprisonment should be served.) Mills also endorses a number of mitigatory principles:

i. Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.

ii. In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focussing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)

iii. A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s.5(4) of the Sentencing Act.)

(These three points were made by counsel in oral argument in Mills and incorporated into the judgment of Batt JA, and later repeated with approval by Maxwell P in R v Wyley [2009] VSCA 17.) The Court of Appeal said in DPP v Ross that, "[consistency] in sentencing is absolutely fundamental to public confidence in the criminal justice system. It is also a basic requirement of the rule of law.” Despite this, it's impossible to state a general rule of when Mills will influence the penalty for a youthful offender, and when it won't. DPP v Bridle [2007] VSCA 173 and R v Lay [2008] VSCA 120 are assault cases where sentence has been mitigated by the application of Mills. Of course, there have been other cases where youthfulness has been accepted as a factor in mitigation of penalty without the case of Mills being specifically referred to. On the other side of the ledger, in R v Jones [2000] VSCA 204, R v Teichelman [2000] VSCA 224,  R v Johns [2003] VSC 415 , DPP v Lawrence [2004] VSCA 154 and DPP v Simpas & HR [2009] VSCA 40 reference to Mills has not resulted in a lesser sentence on appeal. Why some sentences and not others were reduced by Mills turns on the individual circumstances of each case. In Wyley, Maxwell P rejected the suggestion that there are some categories of cases which attract the Mills considerations and others that do not. He said,

19 In the course of argument, it was contended for the appellant that there were now recognised classes of case to which the principles in Mills were inapplicable. Conversely, it was said, there are certain kinds of case where those principles should be given ‘full application’. With respect, however, I consider that these submissions reflect a misunderstanding of what was said in Mills. There is not some special set of rules applicable to young offenders of which it can be said either that they do not apply at all or, alternatively, that they apply fully. Rather, what Mills did, in my respectful opinion, was to draw attention to the great significance for sentencing of looking to the offender’s future, as well as to the past conduct for which the offender is being sentenced. 20 Mills constantly reminds sentencing courts, and this Court on appeal, that there is great public benefit in the rehabilitation of an offender and in maximising the prospect that the offender will carry on a law-abiding life in the future. But that consideration is not unique to young offenders. Nor is there any one correct answer as to how the balance is to be struck between that consideration and others which may point towards a period, or a longer period, of imprisonment, rather than a non-custodial sentence. Thus understood, the later cases of DPP v Lawrence and R v Nguyen are not to be viewed as ‘excluding the principles in Mills’, but simply as instances of how those principles are to be applied. 21 As counsel properly conceded towards the end of his submissions, there is a role for general deterrence to play in relation to every class of case. In relation to certain classes of case, however, general deterrence may have a particularly important role to play. The present case is of that kind. Violence of this kind, in circumstances of this kind, is so prevalent, that general deterrence is seen to have particular importance. But, again, the role of general deterrence will vary with the circumstances of the case.

Edit: Back in 1975, Bray CJ of the South Australian Supreme Court famously said of youthful offenders in Birch v Fitzgerald (1975) 11 SASR 114 at 116-117,

Nevertheless, there are offences in which, as it seems to me, the deterrent purpose of punishment must take priority. When people act under the influence of liquor, passion, anger or the like so as to constitute themselves a physical danger or potential physical danger to other citizens it may well be that a sentence of imprisonment will be appropriate, even in the case of a first offender of good character, in order to impress on the community at large that such behaviour will not be tolerated ... it may be that the incidence of such violence will be reduced if it is brought hme to those likely to resort to it that if they do they may very well be punching, striking, butting or kicking themselves into gaol.

This passage was reproduced recently in the decision of Anderson J in Crispin v Police [2009] SASC 210.

Many of the cases referred to emphasise a Youth Justice Centre as the appropriate place of incarceration for a youthful offender, if imprisonment is found to be necessary. In some cases the Court will determine a less severe penalty becomes appropriate if the option of YJC is not available (if, for example, the accused is outside the designated age bracket, though still considered youthful). However, where the maximum period for incarceration in YJC is exceeded by the term of imprisonment thought necessary by the Court, adult prison may then become the appropriate sentencing option: R v PP [2002] VSC 578.

Friday, 24 July 2009

English Reports available online

The amount of free legal information available online continues to grow, with UK legal-publisher Justis providing Bailii with the English Reports from 1220 to 1873.

This is a literal treasure-trove of information. The English Reports Reprints take up about 25 - 30 metres of shelf space, and must weigh at least a tonne — literally.

The copies here are already scanned to PDF, in pretty good quality, and most seem to have been subject to optical character recognition (OCR) so the scan is converted to searchable and copyable text.

For example, if you're looking for one of the cannons of English law — an Englishman's home is his castle — sooner (or later) your research will take you to Semayne's Case 5 Coke's Rep. 91a, 77 Eng. Rep. 194 and Entick v Carrington (1765) 2 Wils KB 275; 95 ER 807. Though neither contain the best known version by the British Prime Minister William Pitt, also known as Pitt the Elder:

The poorest man may in his cottage bid defiance to all the force of the crown. It may be frail - its roof may shake - the wind may blow through it - the storm may enter, the rain may enter - but the King of England cannot enter - all his force dares not cross the threshold of the ruined tenement.

Sadly, if you want to read what Brown v Dunne (1893) 6 ER 67 actually says, this database stops 20 years too early. D'oh!

Nevertheless, this is a great resource to add to your bookmarks.

Thursday, 23 July 2009

Advocacy by Selby

Many advocates will be familiar with Advocacy, by the late David Ross QC. It's an insightful collection of principles and ideas for practitioners of all levels of experience.

Another valuable read shares the same name. Advocacy, by Hugh Selby, is also slim and accessible in its approach. Selby's approach is more methodical, as he takes the reader through the basics of defence advocacy.

Selby is perhaps best known as co-author of Expert Evidence with Ian Freckelton SC. I hope he won't mind if I cherry-pick a couple of his best quotes from the book (rest assured, there are plenty more in there):

A persuasive communicator in a competition, such as a trial, better meets the audience's needs than does their opponent;

What we see from [the] example is that the competent advocate is a master of the whole case, not only their own side, and because of that mastery can anticipate their opponent's likely moves;

Whether just starting out in practice or returning to the criminal field after some time away, or looking for a suitable gift for someone who is, Advocacy by Selby is a worthwhile addition to this important topic.

LW talks nonsense

Lexis Nexis publishes the free weekly e-journal Lawyers Weekly.

Though it has a focus on commercial law, occasionally it has something of general interest.

This week's LW ran a piece titled War of the Words. It's a light-hearted take on the passion that some - and loathing that others - have for modern business terms.

The article reveals the UK Local Government Authority have collected a list of 200 pieces of "impenetrable jargon" that they recommend, "all public sector bodies should avoid when talking to people about the work they do and the services they provide."

Wednesday, 22 July 2009

Canadian human-rights commentary

When I was writing my post on the recent Canadian human rights judgment of R v Grant, I came across The Canadian Charter of Rights Decisions Digest.

Given the similarities between our Charter and Canada's, this is probably a good resource to add to your bookmarks.

New Evidence Act text released

I posted about resources available for the new Evidence Act a while back, and as the commencement date draws closer (even if it's still not officially announced yet), I'm trying to absorb as much information about the changes as I can.

Thomson just released the 3rd edition of Uniform Evidence Law: Commentary & Materials by Miiko Kumar, Stephen Odgers and Elisabeth Peden.

Why another text book? Well, this one is a little less annotated-legislative-commentary and a bit more expansive and discursive commentary. And if — like me — you're still trying to get across all the changes, another informed perspective can only be a good thing.

LexisNexis also publishes The New Law of Evidence, and Thomson publishes Stephen Odgers' Uniform Evidence Law.

And an edit: I just came across yet another text, Uniform Evidence Law from Federation Press. At 720 pages, it's bound to contain some useful material too.

A reminder too that the Australian, New South Wales and Victorian Law Reform Commissions produced joint publications discussing the new Act:

And the Judicial College of Victoria provides online resources including:

Tuesday, 21 July 2009

UK Supreme Court to start on time

Jack Shaw, the UK's Justice Secretary, announced the new Supreme Court that will replace the House of Lords, is on schedule to commence work on 1 October 2009.

The builders encountered problems during the restoration of the Middlesex Guildhall where the new Court will sit. Water had seeped in to the structural steelwork, which then rusted. (The repairs cost an additional £2 million.)

The builders have an interesting website showing the restoration process and artist sketches of the new court rooms. The Privy Council will sit in Court 3 of the new complex.

I was going to discuss the new complex a little, but in addition to the builder's website, Irish blog already has a good post linking to news articles on it. Interestingly, in a similar theme to Dr Manhattan's post about using video technology, Eoin O'Dell comments that the new Court will permit filming — a first for UK courts!

Sunday, 19 July 2009

Judicial oversight

Last Thursday, the Victorian Attorney-General Rob Hulls announced a working party to consider ways to deal with complaints against judicial officers.

According to The Australian, he said "minor" complaints might cover inappropriate remarks in court, unacceptable delay, extended absences from the bench or "other conduct not directly related to judicial function which might be perceived to bring the office into disrepute".

Mr Hulls said "possible outcomes could include counselling, education, administrative actions to avoid a repeat or different work allocation practices".

While the case of former magistrate Carmen Randazzo was not specifically referred to, the announcement follows recent comments by the Chief Magistrate Ian Gray about the need for improved oversight of the judiciary.

The A-G announced that an on-line handbook spelling out the conditions of service for judicial officers would be released soon.

In the UK, the Office for Judicial Complaints handles complaints about the personal conduct of judicial officers. In New Zealand, the Office of the Judicial Conduct Commissioner performs this function. In NSW, complaints about judicial officers are the purview of an independent statutory corporation called the Judicial Commission of New South Wales.

Complaint-handling processes vary widely across other states and jurisdictions.

Saturday, 18 July 2009

Incidental detention from police encounters blog today published a post, SCC decision in R. v. Grant: Do the ends justify the means?, commenting on a new judgment from the Supreme Court of Canada dealing with human rights, police questioning, search and seizure, and exclusion or reception of evidence.

R v Grant, 2009 SCC 32 dealt with a common occurrence in policing: a chance observation or encounter by patrolling police results in them speaking with someone; though they don't have any power to arrest, detain or search the person, the police compel the person to remain for the duration of a conversation — whether deliberately or unintentionally — and then obtain a piece of information, usually volunteered, that justifies the arrest and search of the accused.

(It might also be an arrest, if a police officer merely says something that makes it clear a person is not free to go. So long as they feel compelled to remain, they are under arrest: Symes v Mahon [1922] SASR 447; Bird v Jones (1845) 7 QB 742.)

That sort of scenario unfolded in Grant, followed by the Toronto police officers searching Mr Grant and seizing cannabis and a loaded revolver. On appeal the accused argued the encounter and search was:

  • an arbitrary detention contrary to the Charter of Rights and Freedoms s 9, similar to our Charter of Human Rights and Responsibilities s 21(2)

  • a failure to advise him of his right to counsel contrary to s 10(b), which has no direct equivalent in our Charters 21(3) is probably closest

  • an unreasonable search contrary to s 8, again with no direct equivalent in our Charter, but possibly similar to s 20

Under the Canadian Charter of Rights and Freedoms, s 24(2) provides for exclusion of evidence obtained contrary to the charter if its reception in evidence 'would bring the administration of justice into disrepute'.

The UK Charter of Human Rights has a similar provision in s 8, providing for judicial remedies for breaches of human rights.

In contrast, Victoria has a melange of remedies, but no express provision like other jurisdictions. However, s 39 would enable a Court to rely on judicial discretion to exclude Grant-style evidence.

In Grant, the majority considered excluding the evidence would bring the administration of justice into disrepute, the Charter breach was not at the most serious end of the scale, and the firearm was cogent and reliable evidence. They considered those things justified admitting the evidence.

To me, this sounds thematically very similar to the sort of reasoning we're familiar with under the public-policy discretion articulated in Bunning v Cross. On one hand, it shows a new-found flexibility in interpreting and applying human rights. The downside is that human rights are supposed to provide an absolute protection against state-power, rather than a discretionary response.

Evidence Act 2008 s 138 requires exclusion of illegally or improperly obtained evidence subject to a similar balancing exercise, and would apply in Grant-style scenarios, so I expect we might see this case used in Victorian courts in the future.


I should add that Grant was one of four cases dealing with this point, all delivered at the same time.

The others were:

Further Edit:

An analysis of Suberu can be found at Don Mathias' site in his post, Detention: will R v Grant work?

Friday, 17 July 2009

Threat of force ≠ fear of force

Lexis Nexis and Thomson-Reuters are the two big legal publishers in the legal market, here and in the USA, UK and NZ. They publish under different brands, with the best known probably Butterworths, Sweet & Maxwell, and Law Book Co.

They're not the only players though. Several smaller publishers exist, amongst them OUP Australia and Federation Press.

Federation Press prints an interesting range, and also generously provides updates to its texts that we can download from its website.

The field of torts often has many parallels to criminal law, dealing with similar topic matter — protection of people and property. Federation Press's Cases on Torts has an update commenting on ACN 087 528 774 Pty Ltd (formerly Connex Trains Melbourne Pty Ltd) v Chetcuti [2008] VSCA 274.

You can read about the case at those links, but the general outline is it dealt with a tortious action for assault alleged against Connex ticket inspectors.

Connex v Chetcuti cited several old, but useful, criminal cases on assault.

One was Barton v Armstrong [1969] 2 NSWR 451. That was also a tort case alleging assault by a defendant who rang the victim politician and threatened him with serious violence. The Court there held that threats over the telephone in some circumstances were not 'mere words' and could amount to an assault when the victim feared later physical violence, even if he didn't know when that might be.

The other useful case is Brady v Schatzel [1911] St R Qd 206. It's well known in the Criminal Code states (Western Australia, Queensland & Tasmania), but not so well known in Victoria. That's probably not so surprising, given it's a case concerning assault provisions in the Queensland Criminal Code. The defendant threatened the victim police officer by pointing a rifle at him. The appeal considered if it was necessary to establish fear or fright to prove an assault.
Here the presenting of the rifle was accompanied by a threat to fire it, which was certainly inferential, if not positive, evidence that it was loaded. In my opinion, it is not material that the person assaulted should be put in fear, as observed by Parke B in R v St George. If that were so, it would make an assault not dependent upon the intention of the assailant, but upon the question whether the party assaulted was a courageous or a timid person. Possibly, the learned Baron, by the term 'bodily fear', only meant to imply apprehension or expectation, and not a physical fear, of assault. I am of the opinion, therefore that there was evidence on which the justices, disbelieving the appellant's evidence, could reasonably find that the rifle was loaded, in which case, of course, the appellant having the actual 'present ability' to effect her purpose, was guilty of assault. And I think — if, in fact, the rifle was not loaded — the justices, on the evidence, could find that she pretended that it was, and so had 'apparently' a present ability to effect her purpose, and in that case was also guilty of assault: Brady v Schatzel [1911] St R Qd 206 at 208. (Emphasis added.)

This usefully clarifies that assault — threatening unlawful force, rather than a battery, applying unlawful force — doesn't contain a point of proof that the victim was frightened, merely that they feared or perceived or apprehended the application of force.

Connex v Chetcuti neatly summarised this at [16]:
It is not necessary for the plaintiff to fear the threat, in the sense of being frightened by it. It is enough if the plaintiff apprehends that the threat will be carried out without his or her consent.

Thursday, 16 July 2009

CPS gets its first advocacy report-card

The United Kingdom has a fairly complex criminal justice system, with many agencies and review agencies.

I don't really know enough about the system to say if it's a good or a bad thing, but there's no doubt there's a lot of activity, and there have been a lot of major changes over the last decade. It makes for interesting comparative research, if nothing else.

For example, the various police services are supervised or subject to policy guidance by:
Her Majesty's Court Services receive administrative input and suggestions (but no interference in their judicial functions) from:
And the newly formed Attorney-General's Office supervises the Crown Prosecuting Service, also supervised by Her Majesty's Crown Prosecuting Service Inspectorate!

This last body, the HMCPSI, today released its report and audit into prosecution advocacy standards and case presentation:

Though the executive summary is available, if you have the time I think the full report is worthwhile reading.

Good advocacy is frequently defined ostensively. ("I know it when I see it, but I can't tell you what it would be.")

The HMCPSI review team of 19 members — made up of judges, retired judges, barristers and solicitors (including CPS advocates) — reviewed and scored 376 advocacy assessments in the Crown Court, Magistrates' Court and youth court, including 113 trials. Anyone involved in moot courts or advocacy training, or even providing critical and detailed advice or guidance to another advocate, will immediately appreciate what a huge task that is.

About 33% of advocates were lacklustre or worse; 67% were fully-competent or better. I reckon the report can be paraphrased as "Pretty good; can do better".

The real value in the report, in my opinion, is the detail of what good and poor advocates did that demonstrated they were good or bad; things to be improved; and things that helped good advocates perform well.

Unsurprisingly, adequate time for thorough preparation featured, as did quality of instructions, provision of relevant practitioner texts; good quality training, teaching and guidance; and systems to match complexity of cases with competence and experience of advocates, and to monitor and record their work.

In that sense, there's nothing new or earth-shattering in this report, but it's good to see detailed information to support our own anecdotal experience.

Marron M flies south

Moving south for a better quality of life is a tactic more familiar to the US than Australia.

Reg Marron has resigned his appointment after 5 years as a Victorian magistrate, following a decade at the Victorian Bar. He leaves his role as the coordinating magistrate for the north-east region of the Magistrates' Court of Victoria to take up an appointment to the Tasmanian magistracy.

Mr Marron was originally from Launceston and practiced law there after obtaining his degree from the University of Tasmania, so a return to his hometown can hardly be characterised a defection.

He will take up his new appointment on 17 August 2009.

Video replay?

Further Edit: I accept that fully-recorded trials and "instant replays" are still a long way off. But perhaps they have moved a step closer with the Court of Appeal refusing to state a definitive rule about appellate courts reviewing recorded evidence in R v El Moustafa [2010] VSCA 40.

There, the Court of Appeal chose to watch some of the recorded evidence of the trial to consider whether the (now repealed) s 568 Crimes Act "proviso". Consideration was given to whether watching some portions of the trial and not others might improperly influence the Court of Appeal in reaching its decision. Perhaps the time will come when, if watching part of the evidence, they will be obliged to watch it all?

Edit: After writing this post, I came across R v Demarco [1999] VSCA 69 where the Court of Appeal (Phillips, Phillips and Buchanan) also express their concern about what was referred to as trawling for error [at 4]:

As soon as these applications were called on for hearing, counsel for the applicant announced that he was not pursuing the first ground and so the only grounds pursued were those added by amendment on 4 March. This gave rise to the criticism by counsel for the Crown that the grounds being pursued were but the product of "trawling", by which we understood him to mean subjecting every component of a fairly long and comprehensive charge to the closest scrutiny simply in the hope of finding error. That is not to say that error may not be so discovered and, if genuinely impinging upon the fair trial of the accused, it behoves this Court to correct it. But it must be said that when grounds emerge in this fashion, we should at least consider very carefully what is now said, at a relatively late stage, to be perceived as error for the first time. That it was not so seen at the time of the trial, by those in the best position to perceive error if such it was, should not be lightly put aside.

Moreover, the task of charging the jury nowadays has been made very difficult by successive determinations of appellate courts about what should and should not be said. In this jurisdiction, it is easy to become increasingly troubled by the possibility that we are demanding too much of trial judges. Sometimes it seems that we are being invited by counsel to assess the impact of the charge on the jury as though those listening were reading and applying a statute, with the training of lawyers. That of course is far from the case: the jury consists of laymen and they are listening to an exposition of the law perhaps for the first time. That is not to say that the trial judge is absolved from the duty of conveying to the jury, as precisely as he can, what their duty is; far from it. But the impact of the charge will commonly depend more upon its thrust and its general tenor than upon a word here or word there (of which R . v. Saragozza [1984] V. R . 187 especially at 196 provides an example). Yet in this instance, we were invited to say that the trial miscarried because of a word which, it was said, was error in line 13 on p.16 of a charge that ran for nearly 250 pages.

Some of the innovations of government are greeted less than warmly by the Supreme Court. Might video replays be the exception to the rule?

Whatever the facts of the matter are, R v Fitchett [2009] VSCA 150 is a sad case. The accused is alleged to have killed both of her sons whilst suffering from depression. The Court of Appeal have found that the jury were misdirected and quashed the conviction, and a retrial is pending.

This case, along with the efforts the Brits are making to do court by teleconference, got me thinking about the directions in jury trials.

The length and complexity of the instructions that judges are obliged to give to juries grows every year. The Criminal Charge Book can be found on the JCV website. Even though it only includes the standard directions for a criminal trial - further directions relevant to the specific case are always necessary - if printed the basic requirements would easily run to the size of a phone book. The decision of what to leave in and what to leave out gets more difficult with each further nuanced decision.

A recent study casts doubt on how much of the jury charge most jurors actually understand anyway. If experienced practitioners and jurists are at odds on the fine distinctions between Edwards and Zoneff directions, it's highly unlikely that they're of much significance to jurors when deciding the case in front of them.

The Victorian Law Reform Commission investigated the simplification of jury directions in a report to have been tabled last month. The key change proposed is a move from a judge's directions being mandatory to a situation where they are only required where a party requests they be given (making an appeal premised on the absence of a direction not requested at trial less likely to succeed). For some time, the Court of Appeal hasn't been obliged to quash a verdict just because correct procedure wasn't followed, if satisfied that it didn't cause possible injustice. This was a result of the High Court's interpretation of s 568 of the Crimes Act 1958 (commonly referred to as the proviso) in Weiss.

If juries are applying incorrect principles of law in their deliberations and this potentially affects the outcome of the trial, a conviction can't stand. But given the enormous expense involved in staging a trial, isn't there some solution short of doing the whole thing over again?

Up until now, no. But with advances in technology, it's relatively easy to record proceedings in a courtroom. One camera fixed on the judge, one on the accused, one on each of the advocates, and a big one of the witness in the witness box. You wouldn't need camera operators for each one; just one technician to hit the On/Off button and make sure that the audio pick-ups are working (as they do now for the remote witness technology).

In cases where an appellate court rules that a charge to a jury was defective, how about empanelling a new jury and showing them the video of the trial from start to finish? They can examine the exhibits in the case under the same conditions as jurors in a regular trial. At the point of the directions to the jury, the tape is stopped and the presiding judge charges the jury in accordance with the directions of the appellate court.

I'm sure someone will be able to point me towards the flaw in adopting this procedure, but I can't see what it is. Is there unfairness in only allowing the accused to put his case once? I don't think so. You could more easily argue there's fairness in restricting the prosecution to only getting one opportunity to present their case, rather than the changes to the way evidence often comes out in subsequent re-trials. 

Before dismissing the idea, consider ss 41G and 41H of the Evidence Act 1958, which are already a few steps down this path. Under Division 3AA, the evidence of a child witness is recorded shortly after the committal, and presented as their evidence at trial. In future re-trials, s 41H(1)(i) provides that the tape will be used as their evidence in all future proceedings, unless the court is satisfied that justice requires otherwise.

There's expense in equipping the courtrooms, of course, but most of it would overlap with the technology already in most Victorian courts for videolinks. In a couple of years, the savings in staging re-trials would have recouped the original expenditure. Importantly, witnesses and victims of crime would know that their role in criminal proceedings is likely to have been completed once they step from the witness box.

In cases where it's not solely the jury direction that is defective - say, where evidence also wasn't excluded when it should have been - a recording of the previous trial wouldn't cure the defect. Due to the flow-on effect of that ruling, a new trial would be required anyway.

So perhaps recording trials isn't a panacea. It's probably still worth some serious thought.

Wednesday, 15 July 2009

Summary justice

Further Edit: The case of Clinton v R [2009] NSWCAA 276 succinctly states a line of authority I was previously unaware of (Howie J at 31):

31 This Court has held that extra-curial punishment is a matter that can be taken into account in determining the appropriate sentence to be imposed upon an offender. It can be in the form of retribution meted out by members of the public or injuries suffered by the offender as a result of the commission of the offence: see Silvano v R [2008] NSWCCA 118; 184 A Crim R 593. The issue was most recently considered by this Court in Whybrow v R [2008] NSWCCA 270 where it was held that “multiple serious injuries” suffered by the applicant were relevant to an assessment of the sentence to be imposed upon him for three offences of dangerous driving causing death or grievous bodily harm arising from the motor vehicle accident in which he suffered the injuries.

32 However, when the injuries are inflicted by the victim against whom the offence is being committed, the court is entitled to take into account whether the act that caused the injuries was an unreasonable reaction by the victim to the acts of the offender and the degree of the injury inflicted: Sharpe v R [2006] NSWCCA 255 at [61] to [67], see also Alameddine v R [2006] NSWCCA 317. Another relevant factor may be the seriousness of the offending when compared with the punishment inflicted: see the discussion in R v Davidson ex parte A-G (Qld) [2009] QCA 283.

I also neglected to mention that harm to reputation, negative publicity and emotional stress are forms of extra-curial punishment a court is entitled to take into account: see R v Wilhelm [2010] NSWSC 378 for a contemporary example. The principles described in Clinton v R (referred to above) are probably relevant when assessing harm to reputation; an offender who has legitimately lost their standing in the community legitimately through their offending is less deserving of moderation of penalty than an offender whose reputation has been tarnished by inaccruate speculation, innuendo and rumour. The regard in which they were originally held is also probably a relevant consideration, analogising Chappell v Mirror Newspapers [1984] Aust Torts Rep 68942 at 68948.

The harm need not be a direct result of the offending but can also be indirect. In Chaplin v the Queen [2010] VSCA 145, the father of the victim killed in an instance of culpable driving murdered the offender's mother in revenge. It was held that this was a matter the Court could legitimately take into account on sentencing.

Edit: Some time after this post I was pointed in the direction of R v Hannigan [2009] QCA 40. The case cites many relevant authorities north of the border that I'd overlooked.

And another recent case from the Pineapple State, where the father of a child who had been indecently assaulted took his own revenge on the perpetrator, a fact taken into the Court of Appeal when re-sentencing: R v Davidson [2009] QCA 283.

In some cases it's very hard to work out what's relevant to mitigation, and what isn't.

For example, what about when a person before the Court has been seriously injured in the course of their arrest. Should the fact they have already suffered as a result of their crime lead to a reduction in their penalty?

On one view, the accused is the architect of their own misfortune. If the force used to subdue them was reasonable, it might be argued that they have nobody to blame but themselves. The additional suffering should be irrelevant to the sentence handed down.

Fortunately for the accused, courts have often adopted a different view.

In R v Fletcher (Unreported, Court of Criminal Appeal, 14 February 1980, p4), an appeal on sentence for an armed robbery, Starke J said,

A matter which may be said to operate in favour of [the co-defendant] is that during the actual commission of the crime , while the action was still on, he accidently blew his foot off which will of course be a great disadvantage to him in gaol and for the rest of his life. The question is whether this is a matter proper to be taken into account. I think it is.

The Court of Criminal Appeal reached similar conclusions in The Queen v Barci (1994) 76 A Crim R 103, where the appellant had been shot by police.

There, the Court found,

It is, we think and as the Crown concedes, not a complete answer to say that Barci brought his injuries upon himself. The fact is that these very serious injuries resulted from the commission of the crime itself. For the rest of his life, those injuries will serve as a savage reminder to Barci of his criminality, and as such, they must fairly be regarded as constituting some punishment for that criminality.

Such reasoning does not invariably lead to a reduction in penalty: R v Mavropoulos [2009] SASC 190. It is a matter to be weighed in the development of appropriate sentencing synthesis alongside other relevant considerations: R v Teh (2003) 40 MVR 195.

Monday, 13 July 2009

Served by mail

Edit: Elucubrator's post on DPP v Angell [2010] VSC 76 from March 2010 is useful for distinguishing the operation of s 160 from the Road Safety Act's s 25.

A couple of people I've spoken with recently have told me they think that s 160 of the new Evidence Act 2008 might affect some claims of honest and reasonable mistake, particularly licence-related charges. It's just my opinion, of course, but I'm not so sure that it will. The new provision provides:

160. Postal articles

(1) It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted.

It goes on to exclude the postal rule of contract and spell out what a working day is, but that's pretty much all there is to it.

Charges under s 30 of the Road Safety Act 1986 are often contentious because of the mandatory imprisonment that results from a second finding of guilt. If the alleged period of suspension stems from demerit points and the notification was by mail, it's often difficult for the prosecution to disprove a Proudman v Dayman "defence". If an accused can prove (or at least leave a court in doubt) as to whether at the time of the alleged offence they had an honest and reasonable belief in a state of facts which, had they been true, would have meant they were guilty of no crime, an offence of strict liability won't have been proven: Proudman v Dayman(1941) 67 CLR 536.

In my view, s 160 won't get the prosecution any closer to eliminating that reasonable doubt than the current legal position. If the Court is entertaining some doubt about whether an accused had a mistaken belief about their disqualification or suspension, this new provision might allow a court to infer that the letter arrived, but doesn't establish that the accused actually saw it. It's the accused's belief — not the service of the notice — that's at the heart of a Proudman v Dayman claim. Section 160 isn't that much different to a provision already included in the Road Safety Act, at s 25(4A):

(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.

The principle appears the same. If anything, the phrase must be taken to have been served on that person is more strongly worded than s 160. But this existing deeming provision doesn't seem to have the effect of cancelling out the Proudman v Dayman defence. Even if that's not the case, the new provision creates a fairly weak presumption. If there's evidence before a Court that raises honest and reasonable mistake, the chances are good that evidence sufficient to raise doubt about the presumption will also be present.

Thursday, 9 July 2009

Statutory right of privacy?

Barrister Peter A Clarke blogs at Illegitimi non carborundum (which roughly translates as 'don't let the bastards wear you down').

His latest post raises the prospect of Australian law creating an enforceable right of privacy.

I mentioned a few weeks ago that Australian law has so far been reluctant to embrace a tort of privacy.

The Victoria Law Reform Commission was asked to look at photographs taken without consent as part of its inquiry into surveillance in public places (see my earlier post) but that issue was later removed from its terms of reference.

Peter's post referred to the Australia Law Reform Commission report into privacy law and practice and its proposal for a statutory right to privacy.

He also mentioned a Victorian Court of Appeal decision that suggests a remedy for conduct such as images of consensual sex placed on the internet by one partner, without the other's consent. It's not always clear if the criminal law covers such acts, but Giller v Procopets (2008) 40 Fam LR 378; [2008] VSCA 236 suggests there is an equitable remedy for breach of confidence.

Though it's not a remedy available in a summary court, it does at least raise the possibility of a legal remedy for people who have their privacy breached in this way.

Wednesday, 8 July 2009

Defining a successful defendant

Section 131 of the Magistrates' Court Act 1989 gives magistrates the power to award costs in summary criminal proceedings.

The section confers a general discretion. Though there's nothing written there about an accused having to be acquitted before a discretion to award costs exists, an accused will usually need to be considered a successful defendant before there will be a reasonable expectation of costs: Latoudis v Casey (1990) CLR 534.

What a successful defendant is will depend on the case. In Do v Bowers (Unreported, Supreme Court of Victoria, O’Bryan J, 10 October 1996), the Court observed,

It is not unusual in the Magistrates' Court for a defendant to contest some charges and at the end of the day be found not guilty of some and guilty of others. A defendant may be found not guilty of the most serious charge and guilty of the lesser charge arising out of the same transaction. In such circumstances a defendant would not be awarded costs as a "successful defendant" under the general rule.

Last year, Costa v Parks [2008] VSC 47 applied a similar principle.

The accused men, Costa and Shepherd, were charged with illegal fishing on the Murray River. They were both represented by the same counsel at a contested hearing. The defence was first based on a preliminary jurisdictional argument (about whether the alleged offence occurred in NSW or Victoria). When that failed, a factual defence was put to the Court. Mr Costa entered a plea of guilty to two charges, eight were dismissed at the end of the contested hearing, and he was found guilty of one. None of the charges against Mr Shepherd were found proven.

An application for costs was made on behalf of each of the accused. The application of Mr Costa was refused, and Mr Shepherd was granted a single day's appearance fee for counsel, and his solicitor's preparation costs.

The Supreme Court found that, in basing a substantial portion of the defence around a jurisdictional argument that failed, neither of the accused might be considered a wholly successful defendant. Habersberger J noted that such a finding by the magistrate could invoke s 131(2A), which states,

(2A) In exercising its discretion under subsection (1) in a proceeding, the Court may take into account any unreasonable act or omission by, or on behalf of, a party to the proceeding that the Court is satisfied resulted in prolonging the proceeding.

How far this principle can stretch is unknown. If an idle preliminary argument fails it could lead to the forfeit of some proportion of costs, even if all charges against an accused are eventually dismissed. With the current emphasis on speedy case resolution, it may be that the conduct of the parties at contest mention is also a factor to be taken into account.