Monday, 31 August 2009

Summary time limits in the Children's Court

With the arrival of the Criminal Procedure Act 2009, the time limit for the filing of a charge against a child for a summary offence will fall from twelve months to six.

The relevant provision can be found at s 376 of the Criminal Procedure Act. This section inserts a new Part 5.1A into the Children, Youth and Families Act 2005. Charges can be laid after the six month time limit only if the accused consents (after having received legal advice) or the Court exercises its discretion under s 344C.

Although this change might appear to have the potential to influence many cases, in reality the impact will be small. The change applies only to summary offences. Most summary offences that bring children under the law's watchful eye can be expiated by way of infringement notice these days.

If a notice has been issued but not paid, the Victoria Police and many other enforcement agencies register their unpaid fines under the Children and Young Persons Infringement Notice System (CAYPINS). The CAYPINS procedure is set out at Schedule 3 of the Children, Youth and Families Act 2005 . It's distinct from the traditional charge and summons procedure, and is modelled on the enforcement processes of the Infringements Court (formerly called the PERIN Court).

Where the offence is not able to be expiated by payment of a penalty notice or instructions are given to contest the charge, care must be taken if drawing the prosecution's attention to the expiry of the time limit for the initiation of process. Many summary offences have an indictable equivalent, either in statute or common law.

For example, charges of marking graffiti under s 5 of the Graffiti Prevention Act 2007 are commonplace. In most cases, where the elements of this offence can be made out, an indictable charge of damaging or destroying property under s 197 of the Crimes Act 1958 could also be proven. Similarly, if an offence of common assault under s 23 of the Summary Offences Act 1966 is statute-barred, all of the ingredients for an indictable common law assault would typically be present.

Though a court might refuse an application to lay additional charges during the running of a contested hearing (say, at the no case submission stage of proceedings), this is by no means certain. Leaving abuse of process arguments to one side, it's possible that taking exception to the timeframe could leave an accused facing more serious charges than they started out with.

Friday, 28 August 2009

Evidence Act & Criminal Procedure Act start announced

The long-awaited commencement dates for the Evidence Act 2008 and Criminal Procedure Act 2009 are out.

The latest edition of the Bar's In Brief says the new acts will start on 1 January 2010.

The Criminal Procedure Amendment (Consequential and Transitional Provisions) Bill 2009 and the Statute Law Amendment (Evidence Consequential Provisions) Bill 2009 will be introduced in the Spring session of Parliament (sitting dates are here), and are planned to also commence operation on 1 Jan 2010. Still no detail, but obviously these will contain the various transitional and implementation provisions.

I also expect we'll see a new act similar to the Evidence (Audio and Video Visual Links) Act 1998 (NSW) to replace the Evidence Act 1958 Part 2A provisions — unless, of course, that portion of the existing Evidence Act is not repealed by the new Bills.

Magistrates are human, too

While this statement of fact shouldn't qualify as newsworthy, some appellate court decisions make it appear as though sentencing is a task better suited to a computer than a person. So it's worth taking note of a case which finds that not every expression of emotion from the bench results in prejudice to the accused.

In Pitt v Police [2009] SASC 244, the accused pled guilty to a charge of dangerous driving causing injury. The driver had flipped her car whilst travelling too quickly on a dirt road. The impact caused her passenger to miscarry her pregnancy.

A photograph of the stillborn baby was tendered to the sentencing court.

9. The Magistrate, having looked at the photograph, according to the material contained in the affidavits I have read, then became somewhat emotional and left the bench. When he returned, he commented that his sister had recently given birth to a stillborn child, but that the photograph that he just viewed would have no bearing on the sentence he imposed.

The accused was sentenced, and subsequently appealled. It was submitted that the magistrate ought to have recused themselves on the ground of apprehended bias. The Supreme Court rejected the argument.

Strictly speaking, the tender of the photograph of the stillborn child was unnecessary; however, it is perfectly understandable why the Magistrate, in a small country court, with the families of both sides present, determined to accept it in the context of those proceedings.

After explaining in open court that the photograph would have no bearing on any penalty he imposed, the Magistrate did not again refer to that photograph in the course of his sentencing remarks. The Magistrate was entitled, indeed, it seems to me he was obliged, to allow the prosecutor to furnish the court with the victim impact statement setting out the impact of the appellant’s offending on the victim and her family.

Viewed in that way, the receipt of the photograph was doing no more than acknowledging that the victim’s loss of her unborn child had caused untold devastation and grief and was a part of the consequences of the appellant’s conduct. In my view, there is nothing else to indicate that the Magistrate gave undue weight to this aspect of the victim impact statement.

The basis upon which the appellant now argues that the Magistrate ought to have disqualified himself arises out of the events which occurred after he received the photograph. After leaving the bench for ten minutes or so, the Magistrate returned and announced to the court, unfortunately in the absence of the appellant still, that he had had a life experience of a similar nature. I agree with the submission of counsel for the respondent, by itself, that is not sufficient to give rise to any apprehension of bias.

The test of apprehended bias is well established. A judicial officer is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.

In R v Goodall [2007] VSCA 63; (2006) 169 A Crim R 440, in a different context, Neaves JA commented that just because a person has had a particular life experience does not mean that that person cannot serve on a jury in a trial which concerned that matter to which the life experience the juror had was directly relevant.

In my view, an equally robust approach ought to be applied to the case of judicial officers called upon to impose a sentence related to circumstances in which he or she may have personally had experienced. It is unreasonable to expect that at times judicial officers may not become affected in some way as a result of the presentation of facts on which they are required to pass sentence.

In my view, that is simply to recognise that judicial officers, like any other human being, are ordinary human beings who at times may have reactions of distress or revulsion at some of the material before them.

The penalty was adjusted downwards, but for other reasons.

Thursday, 27 August 2009

Free Evidence Act resources

Barrister and lecturer Andrew Palmer was commissioned to prepare a number of summaries of the Evidence Act 2008 for the Department of Justice and Judicial College.

While the one page summaries will be useful to refer to once the new rules are up and running, an overview of all the changes is provided in the Ready Reckoner. It provides a section-by-section rundown of new provisions, and a potted summary of how they differ from the existing law. In its online form, it has numerous links to source material at AustLII and elsewhere.

Of course, a 37-page spreadsheet is never going to do justice to all of the nuances of the new legislation. But if you're just turning your mind to the changes, it's a sensible place to start.

Wednesday, 26 August 2009

High Court bags court trying teabagging

In April I posted Teabagging begs questions of constitutional validity for courts, based on an article on Skepticlawyer that caught my eye.

The High Court today delivered that decision, in Lane v Morrison [2009] HCA 29.

Mr Lane was a member of the Royal Australian Navy. He was accused of teabagging a superior officer, and charged with assault. His case was to be tried by the Australian Military Court.

In a 7-0 judgment, the High Court decided the Australia Military Court is invalid because it does not comply with the legislative limits Chapter III of the Constitution imposes on the Commonwealth Parliament when creating Courts.

I discussed the relevance of constitutional validity in my earlier post, so I won't re-hash it here.

The other useful information in this case is its discussion of the features (and functions) of a Court, and the various different legal meanings of a court — ranging from a place to play tennis, to a body dispensing justice.

The judgment also discusses what a court of record is, and what that means. (The two main features of a court of record are: power to punish for contempt of the court; and an archive, record or register of its proceedings.) I know it's often believed that the Magistrates' Court is not a court of record because some folks believe that to be synonymous with 'a court that records and publishes its judgments'.

On that reasoning neither the County nor Magistrates' or Children's Courts would be courts of record.

In fact they are courts of record. County Court Act 1958 s 35 states that the County Court is a court of record and has a contempt power in s 54, and s 21 provides for a register. Magistrates' Court Act 1989 s 18 provides for a register, and ss 133 and 134 provide for contempt powers. And the Children, Youth and Families Act 2005 has a register and the same powers to deal with contempt as the Magistrates' Court by virtue of s 528.

Tuesday, 25 August 2009

Hinneberg v Brannaghan: unlawful entry to dwellings for a breath test

The case of Hinneberg v Brannaghan [2009] VSC 356 discusses the admissibility of evidence in drink-driving cases.

The live issue was if the informant Senior Constable James Brannaghan had permission to enter a house, where he asked Mervyn Hinneberg to provide a preliminary breath sample. Senior Constable Brannaghan claimed an occupier of the house, Ms Lahogue, gave him permission to enter. She denied that at the Court hearing.

Section 48(4) of the Road Safety Act 1986 provides:

(4) For the avoidance of doubt it is declared that nothing in this Part requires a person who is in a dwelling to allow a member of the police force or an officer of the Corporation to enter that dwelling without a warrant.

The Chief Magistrate heard the case in the first instance. He wasn't satisfied that Ms Lahogue gave Senior Constable Brannaghan permission to enter her house. But he decided he would admit the evidence of the breath anaylsis certificate in the exercise of discretion under Bunning v Cross.

The Supreme Court ruled that the Chief Magistrate resolved both issues incorrectly.

[12] In my opinion the Chief Magistrate applied an erroneous test in assessing the conflict between the evidence of Brannaghan and that of Ms Lahogue. The Chief Magistrate took the view, accepting submissions made to him on behalf of the defence that were not contradicted by the police prosecutor, that the onus was on the prosecution to prove that an invitation was issued to Brannaghan by Ms Lahogue to enter the house, and to prove it beyond reasonable doubt. However it is now common ground or virtually common ground that that was not the appropriate test, and that in fact the onus was on the defence to establish, on the balance of probabilities, the facts on which the defence relied in order to justify the exclusion of the evidence on the Bunning v Cross discretionary ground. Mr Tehan QC sought for a time to support the Chief Magistrate’s contrary approach by reliance on Liberato v Queen, but the relevant statements in that case relate to the obligation of the Crown to satisfy the court, beyond reasonable doubt, that the elements or ingredients of the offence have been made out. The position is quite different in relation to a submission that admissible evidence should be excluded as a matter of discretion on fairness or public policy grounds. I think that, in the end, Mr Tehan QC did not seriously contest that proposition.

The correct test for receiving the evidence was on the balance of probabilities. Cavanough J found that failing to apply the correct test tainted the Chief Magistrate's decision to receive the certificate in evidence. Once he decided Senior Constable Brannaghan couldn't prove Ms Lahogue said he could go in her house, he should have considered the five specific factors in Bunning v Cross at 78 – 80:

  1. Was the breach of the law deliberate or inadvertent?
  2. Does the illegality affect the cogency of the evidence?
  3. How easy was it to comply with the law?
  4. What is the nature of the offence charged?
  5. Was the legislation intended to restrict or expand police interference with the liberty of the subject?

[17] So, although the analysis that I would apply is perhaps not completely in line with the submissions of either side, it seems to me that this is a case where it would be wrong to let the decision stand. The decision seems to have been arrived at from a fundamentally unsound original basis, namely the application of the beyond reasonable doubt test to the evidence in question. The application of that test was inapposite in the circumstances and it is not so surprising that it has led to the failure of the Chief Magistrate to make the findings that needed to be made in relation to the Bunning v Cross principles.

The case was remitted to the Magistrates' Court for a fresh hearing.

Which jurisdiction?

I reckon cases that span jurisdictions are interesting. The law is confronted with them more and more often as technology and transport cuts across borders with greater ease.

Common law courts struggled with such cases. The basic premise under the common law was "all crime is local" and jurisdiction over a crime lay with the country where the crime was committed: Macleod v Attorney-General (NSW) [1891] AC 455 at 458.

But what happened when the acts comprising a crime occurred in one country, but the criminal intention took place in another? At various times courts used a terminatory or initiatory theory of jurisdiction, deciding that crimes occurred where an offence finished or started.

In Board of Trade v Owen [1957] AC 602 the House of Lords concluded that a conspiracy formed in England to commit a crime in Germany was not a crime in England.

But in Treacy v DPP [1971] AC 537 the Lords decided that a man who sent a blackmail demand by letter posted in England to Germany committed the offence in the UK.

In Thompson v The Queen [1989] 169 CLR 1, the High Court considered a murder that happened near the ACT-NSW border. It said if the question of locality was in dispute, it must be proved on the balance of probabilities.

Earlier in Ward v The Queen (1980) 142 CLR 308, the High Court considered if a murder on the Murray occurred in Victoria or New South Wales. The deadly shot was fired in Victoria (from the top of the riverbank); the victim was at the water's edge on the Victorian side of the river.

The border of NSW was the River Murray (its south side) — and the Court held that it ended at the top of the water-retaining land-contour. Or, simply, the top of the river bank. So, Ward's victim died in NSW. The High Court considered the terminatory theory of crime determined jurisdiction. And that meant his murder conviction in the Victorian Supreme Court was set aside! (The NSW Lands Department has very useful publications on this, and there's some general information on borders in the GeoScience Australia website too.)

The High Court later moved to a more pragmatic view in Lipohar v The Queen (1999) 200 CLR 485. That case dealt with a cross-border conspiracy focusing on a property in Melbourne, with the conspirators in South Australia, Queensland and Malaysia!

The result was that the High Court decided there is a single unified Common Law of Australia, and the common-law offence of conspiracy could occur in and be tried in any jurisdiction so long as there was a real connection between the State and offence. That meant the trial in South Australia was valid. (Similarly, the offence could have been tried in Victorian or Queensland, but that was a choice for the investigating and prosecuting authorities. A trial in any one state would entitled the accused to a plea of autrefois acquit or autrefois convict if later charged in another state.)

Lipohar considered a common law offence, but I think courts are likely to take a similar approach for statutory offences too. (We know that stalking can cross borders: see DPP v Sutcliffe [2001] VSC 43.)

Applying this sort of reasoning, offences such as breaching intervention orders or using carriage services to menace or harass probably also occur in multiple places. (Consider a breach of an intervention order alleged by proscribed telephone calls when the caller is in Dandenong and the recipient in Frankston. Where does the offence occur?)

(Jurisdiction for offences on aircraft flying to or from or within Australia are dealt with by the Crimes (Aviation) Act 1991 (Cth). Offences at sea are covered by the Crimes at Sea Act 1999 - logically enough.)

A practical issue for investigators in all of these examples is to understand which law to apply. It's not an issue that courts have dealt with very often, and so there's been little curial guidance for investigators.

Last week the Supreme Court held in Wallce v Debs [2009] VSC 355 that an investigation in Victoria by non-Victorian police for offences that occurred outside Victoria (and would presumably be prosecuted outside Victoria) did not fall within the scope of Victorian investigation law.

That particular case concerned Crimes Act 1958 s 464B (questioning a person for a different offence to the one they're held in custody for). But I imagine the same reasoning would apply for the other provisions of Part 3, Div 1, sub-div 30A.

Put simply, if Victorian police go to, say, Queensland to interview a person and want to present that evidence in a Victorian court, they need to comply with Victorian investigation law.

If Queensland police come to Victoria to interview a person and want to present that evidence in a Queensland court, they need to comply with Queensland investigation law.

But they will also need to observe local substantive legislative requirements about gaining access to suspects (such as arrest and time in custody, or access when already in custody) and so require the assistance of local colleagues.

An extreme example might be R v Thomas (2006) 14 VR 475, where Jack Thomas was interrogated in Pakistan by Australian Federal Police members purportedly in accordance with Australian domestic law. That appeal was on different issues — mainly voluntariness of admissions — but seemed to accept an interview to be used in an Australian court would be conducted in accordance with Australian laws, though it took place in Pakistan.

The Standing Committee of Attorneys-General is continuing its focus on cross-border investigations (started back in 2003 and appearing in Victorian law in the Crimes (Assumed Identities) Act 2004 and Crimes (Controlled Operations) Act 2004). So we might yet see more legislation on this topic in the future.

Monday, 24 August 2009

More reform on the way

With the focus on the impending commencement of the Evidence Act 2008 and Criminal Procedure Act 2009, it's easy to forget about other pending reforms for the Victorian criminal justice system.

A lot of plans are flagged in the Justice Statement 1 and Justice Statement 2.

One big legislative change will be a new bail act, discussed by VLRC. In simple terms, the offence-specific focus — with anomalies such as requiring remand for murder, but not for manslaughter — will be replaced by considering two issues: will an accused person answer a grant of bail, and do they pose an unacceptable risk to the community if released on bail.

Another change is a review of the Crimes Act.

This should result in new provisions for investigation powers and procedures — perhaps along the lines of Queensland's Police Powers and Responsibilities Act or NSW's Law Enforcement (Powers and Responsiblities) Act. It should also see the introduction of a Criminal Code, or something similar (see Justice Statement 2 at page 14 -15). The Model Criminal Code Officers Committee has worked quietly away for over a decade now, drafting a model criminal code envisaged to provide a national criminal law in the same way we having national road rules and are moving to national evidence laws. Much of this work has been adopted in the Commonwealth Criminal Code. (The Standing Committee of Attorney's General website has a draft Model Criminal Code on its website — complete with confidential draft stamped on the front cover. Does that mean it's not supposed to be online?)

The last big mooted change is a new Courts Act, to provide one legislative instrument to cover the Supreme, County and Magistrates' Courts (see Justice Statement 2 at p 49).

It seems this work is about to kick off, because the Department of Justice recently advertised for policy officers to work on the proposed Courts Act.

Friday, 21 August 2009

Faris on bail

A couple of years ago the VLRC conducted a review of the system of bail in Victoria. Their Final Report was handed down on 10 October 2007. Prominent recommendations included a plain English rewrite of the Act and the removal of the reverse onus test, but overall there were 157 recommendations of the Commission. The current Bail Act is on borrowed time.

Though it usually earns a chapter in every criminal law textbook, local resources that deal exclusively with bail are rare. Peter Faris QC has recently updated his commentary, which is only available online. He offers it for free over the internet rather than publishing it in hardcopy.

According to him, this decision was made,

Perhaps for three reasons. One, the cost of publishing is prohibitive and the financial return to the author so small as to not warrant the effort. Two, I was interested in the challenge to publish electronically and only electronically. Three, I can’t remember the third reason.

As well as section-by-section discussion of the Bail Act 1977, Faris provides hyperlinks to his sources. While I don't agree with everything he's written, that's partly the joy of reading it.

Thursday, 20 August 2009

Legislation Watch: Justice Legislation Further Amendment Bill 2009

The Justice Legislation Further Amendment Bill 2009 had its second reading moved in Parliament's Assembly last week.

It'll be back before the House in a week's time, and it's unlikely to encounter any difficulty passing. The Bill's human rights compatibility statement can be found in Hansard here.

It's omnibus legislation, designed to provide a nip-and-tuck to a variety of existing Acts, including:
  • new provisions in the Drugs, Poisons and Controlled Substances Act 1986 relating to the handling and recording of precursor chemicals, intended to discourage their diversion into the manufacture of illicit drugs;
  • the Family Violence Protection Act 2008 and Stalking Intervention Orders Act 2008 will provide that the procedure for surrendered firearms and weapons will be the same as it is for seized firearms and weapons;
  • there will be increased obligations and additional provisions for subjects of orders made under the Sex Offenders Registration Act 2004, such as the obligation to register passport details and internet addresses; and
  • provisions inserted into the Road Safety Act 1986 to interpret all references to automatic detection devices as their new name, road safety cameras. All speed measuring devices will now be referred to as one of two categories, either a road safety camera or a speed detector.
The Explanatory Memorandum for this amending legislation can be found here. The precursor chemicals provisions will come in on the day the Act receives Royal Assent. The remaining provisions will come into force on a day yet to be proclaimed, or at any rate by 31 May 2010, except for the changes to the Road Safety Act, which will be implemented at the same time as s 30 of the Road Legislation Amendment Act 2009 (though this Act was passed in June, s 30 has not yet commenced).

It would seem that the intent of Clauses 61 and 62 is to prevent motorists mounting challenge to the automatic enforcement system based on the changes to the relevant terminology. The Explantory Memorandum states,

Clause 61 inserts new sections 103U, 103V, 103X, 103Y and 103Z into the Road Safety Act 1986. These provisions operate to ensure that—

• no matter when evidence is indicated or determined by any such device, and regardless of the terminology used in respect of the device, the appropriate provisions will apply to that evidence; and

• no matter when a certificate is issued in relation to any such device, and regardless of the terminology used in respect of the device, the appropriate provisions will apply to that certificate.

Wednesday, 19 August 2009

Expert evidence on sentence

Most people who follow local news will have heard of the terrible assault on a Fitzroy man by his housemate in August of last year.

The victim suffered burns to 12 per cent of his body when boiling oil was poured over him whilst he slept. His assailant pled guilty to a change of intentionally causing serious injury in the County Court, and last Thursday was sentenced to six years imprisonment with a minimum of four to be served.

The sentencing remarks of Weinberg J are set out in R v Wahani [2009] VSC 319. The case provides a practical application of the principles of Verdins' case discussed here last week. The plea of mitigation relied heavily on an assertion that the accused was suffering from a psychotic episode resulting from a rare reaction to prescription medication. The bizarre conduct of the offending (said to be provoked by the victim getting the accused's takeaway order wrong) would seem to lend weight to the claim.

A clinical psychologist by the name of King assessed the accused and subjected him to a battery of psychological tests. He concluded that the accused had been suffering from a drug-induced psychosis at the time of the incident. Two experts were also called for the prosecution; a consultant psychiatrist named Sullivan and the accused's treating physician, Aboltins.

27 Dr King presented as an honest and obviously highly qualified witness. At the same time, he freely acknowledged that both Dr Sullivan and Dr Aboltins were much better qualified than he to comment upon the effect, if any, that the medication you had been taking had had upon you. He knew nothing of that medication apart from what he had read through his internet search.

28 The literature search that Dr King conducted ranged over the period 1963 to 2008. It spoke of Ethambutol-induced psychosis as a recognised condition, but one which was extremely rare. Much the same was said about Rifampicin and Pyrazinamide. The former was said to have occasional side-effects involving cognitive impairment, sometimes culminating in depression.

29 Dr King again acknowledged that no more than a few cases involving actual drug-induced psychosis stemming from the use of these drugs had been reported in the literature. He conceded that such an outcome would be uncommon, but would not exclude the possibility that it had occurred in your case.

30 On the question whether you were suffering from drug-induced psychosis when you committed this offence, I prefer the opinions of Dr Sullivan and Dr Aboltins to that of Dr King. They are the true experts in this area. Dr King is not.

31 Dr Aboltins, a specialist in the very treatment that you were receiving, was your treating doctor over a number of months in the period leading up to this offence. He saw no sign of any psychosis, or other mental disturbance, resulting from your use of these drugs. Even allowing for your counsel’s submission that cultural factors may have caused you to refrain from drawing these matters to Dr Albotins’ attention, I find no basis for the submission that the medication that you were taking contributed in any way towards your actions.

32 As regards Dr King’s assessment of you as being mentally impaired by reason of some neurological problem, resulting in a deficiency in your capacity for spatial alignment, and your ability to recall strings of numbers, it seems to me that neither condition, even assuming that it exists, has any causal connection with what you did on the night in question. Yours was an act of extraordinary violence, brought about by your feelings of anger and resentment towards your victim. It had nothing to do with any lack of capacity to visualise spatially, or your inability to remember sequences of numbers.

33 It follows that I reject the submission that your moral culpability for your actions should be regarded as having been reduced by reason of mental impairment, whether through your use of medication, or through neurological difficulties that you may have had. I am not persuaded that either of the two conditions that Dr King diagnosed had anything to do with your mental state at the time of your offending, or in the lead-up to it. Nor, I should add, do I believe that either condition is likely to affect you in the future in such a way as to call for some amelioration of your penalty. In other words, this is not a case to which R v Verdins has any application.

The case also demonstrates that even a professional and relatively confident expert opinion may be rejected by a sentencing court, where contrary evidence exists. The accused must satisfy the sentencing court on the balance of probabilities of facts relied on in mitigation: R v Storey [1998] VR 359, adopted by the High Court in R v Olbrich (1999) 199 CLR 270.

Tuesday, 18 August 2009

Email in evidence

The Queensland Bar produces an online journal called Hearsay.

The current edition has an interesting article on forged emails, prompted by the recent OzCar imbruglio in federal politics, written by Dr Bradley Schatz.

He discusses a couple of cases dealing with the use of emails in evidence, and establishing their provenance.

When the Evidence Act 2008 commences operation, s 161 will provide that electronic communications — such as email, SMS, blogs, tweets, Skype, and IRC chats — will be presumed valid on their face.

Of course this doesn't mean they can't be challenged (such as in the way discussed by Dr Schatz), but it means evidence law will adopt a pragmatic presumption that they are what they appear to be unless challenged. (This approach is typical through much of the uniform Evidence Acts, and is intended to reduce disputes over points of evidence to the real issues in dispute between the parties.)

Monday, 17 August 2009

One thousand and one visitors

In case you missed it (see our privacy information), we use Google analytics to get some idea of where our visitors are from and what content they find the most interesting.

It's not as Orwellian as it might seem: we can't see who you are, and the statistics rely (I think) on information provided from your ISP.

Analytics tells us that this weekend we just registered our one-thousandth unique visitor (and will soon register 10 000 page-views). Actually, we now have 1 005 unique visitors, but I took the poetic liberty of proclaiming one thousand and one because it has that certain cachet!

Not everyone who visited came back — but a sizeable number of you have. (73% in fact.)

I hope that means we're writing stuff you find interesting, and useful. Let us know if there are other topics or posts you'd like to see.

I know most of you get your updates by email — and that not everyone clicks-through to visit the blog, or even realises you can do so. So, feel free to click on the header to this or any email from us (or the picture of the Supreme Court), and visit the site.

If you do click-through and view an individual post, you can access the post-a-comment feature at the foot of that post. My concerns about spam or offensive posts seem to have been largely unfounded (touch wood) so I changed the comment-permissions to allow anyone to post without moderation.

Thanks to those who have contributed so far. We really appreciate your feedback and comments, and would love to hear from all our readers — whether it's to agree, offer an additional or contrary opinion, point out something we missed or (heaven forbid) tell us we're plain ol' wrong!

Friday, 14 August 2009

Confirmation of admissions

S 464H(c) of the Crimes Act 1958 says that an admission made to an investigating official by someone who was suspected or ought reasonably to have been suspected of having committed an offence is inadmissible unless,

If the confession or admission was made before the commencement of questioning, the confession or admission was recorded by audio recording or audiovisual recording, or the substance of the confession or admission was confirmed by the person and the confirmation was recorded by audio recording or audiovisual recording; ...

What does confirmed by the person mean?

A standard interpretation of this phrase is that s 464H requires investigating officials to confirm their conversation with the accused once the official recording has started by repeating a question-and-answer exchange verbatim and asking the accused to agree that the earlier conversation took place.

While this might be one way for the police to go about complying with s 464, that's not what the provision requires.

In R v Sindoni [2009] VSC 269, the trial judge was required to determine the admissibility of statements said to be made by the accused. This decision was made in the Supreme Court's original jurisdiction so it's not binding (it turns on its own individual facts, anyway) but it does provide a useful demonstration of when a Court has found an admission has been confirmed, and when it has found that it hasn't.

In deciding whether each statement had been confirmed, Bongiorno J laid each stanza of unrecorded conversation alongside the piece of the recorded interview that the prosecution asserted was the confirmation of that admission. He emphasised that he wasn't expecting to see identical words being used. He was looking for words that, "convey substantially the same information" [at 3].

Question: Well, what happened?

Answer: I had a fight with the bouncer and he king hit me.

Question: What happened then?

Answer: He wouldn’t let me back in.

This was compared with the later interview, where this exchange occurred,

Question: Okay. What time would that have been?

Answer: I couldn’t tell you but if you check the video you can see him punching me in the face and I just walked off and I thought “you’re fuckin’ kidd’n, mate”.

Question: Who punched you in the face?

Answer: Well, one of the security guards.

The conversations were held to be substantially the same, and the earlier conversation admitted.

In the next unrecorded conversation,

Question: Then what happened?

Answer: I went back to the club and shot the bouncer.

The prosecution claimed this was confirmed on tape by,

Question: Okay. I put it to you that you admitted to police in my presence this afternoon that you were involved in a shooting incident; what do you have to say about that?

Answer: I was just scared, mate.

The court rejected the claim that this constituted confirmation of the alleged earlier conversation.

Finally, the prosecution alleged,

Question: Aaron, where is the gun now?

Answer: It’s at a mate’s.

Question: Where?

Answer: 250 Hope Street, Brunswick.

was confirmed by the accused saying in interview,

Question: Okay. I put it to you that we’ve asked you where, where a handgun was located?

Answer: Yeah, yeah.

Question: Okay. And what did you... do you remember what we told you or what you told us?

Answer: Well, I told you it was at – at – at Hope Street.

Bongiorno J accepted that these exchanges were substantially similar, and admitted the earlier unrecorded admission. Of course, just because they were admitted did not mean it was accepted that the admissions were made. That factual issue was for the jury to decide later.

Tuesday, 11 August 2009

More from the JCV

The Judicial College of Victoria has recently added four new chapters to its Criminal Proceedings Manual.

For the summary jurisdiction, the most useful new chapters will be The Accused and Voir Dire.

While there's no earth-shattering revelations, it's encouraging to see the new chapters address the consequences of the Criminal Procedure Act 2009.

Sunday, 9 August 2009

Submissions on Verdins

Edit: This later post on Verdins includes a crude breakdown of the sorts of cases where mitigation has been found and others where it hasn't.

Perhaps the starkest demonstration of the point the court was trying to make about mental imprairment not being an automatic form of mitigation is Freeman v The Queen [2011] VSCA 214. Whatever you think of the merits of his mental impairment defence at trial, I don't think anyone could try to argue that Freeman was thinking rationally when he threw his daughter from the Westgate Bridge. Maxwell P refused him leave to appeal his sentence, effectively affirming the 32-year non-parole period.

The Court of Appeal handed down R v White [2009] VSCA 177 last Thursday.

Amongst other things, the judgment emphasises that when an accused is represented by counsel and relies on a diagnosed mental or psychiatric condition as mitigation, specific submissions should be made, either on how the offending was influenced by that state of mind or how it would tend to make a proposed sentence more onerous on the accused. This was a point previously made by the Court of Appeal in R v Zander [2009] VSCA 10.

To simply tender evidence of a diagnosis and rely on that alone as being mitigatory places no obligation on the sentencing court to impose a lenient penalty. Some connection between the diagnosis and mitigation must be established to fall within the considerations in the leading authorities of Tsiaris and Verdins.

R v Tsiaris

In R v Tsiaris [1996] VR 398, the Victorian Court of Appeal identified six ways serious mental illness not amounting to insanity could be relevant to sentence [at 400]:

First, it may reduce the moral culpability of the offence, as distinct from the prisoner’s legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective.

Second, the prisoner’s illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time.

Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such.

[Fifth], psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.

[Also] Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.

R v Verdins

In R v Verdins [2007] VSCA 102, the Court of Appeal considered that the reference to the serious psychiatric illness in Tsiaris was being misapplied.

Maxwell P, Buchanan and Vincent JJA in their combined decision in Verdins:

[5] The sentencing considerations identified in R v Tsiaras are not – and were not intended to be – applicable only to cases of "serious psychiatric illness." One or more of those considerations may be applicable in any case where the offender is shown to have been suffering at the time of the offence (and/or to be suffering at the time of sentencing) from a mental disorder or abnormality or an impairment of mental function, whether or not the condition in question would properly be described as a (serious) mental illness.


[8] The sentencing court should not have to concern itself with how a particular condition is to be classified. Difficulties of definition and classification in this field are notorious. There may be differences of expert opinion and diagnosis in relation to the offender. It may be that no specific condition can be identified. What matters is what the evidence shows about the nature, extent and effect of the mental impairment experienced by the offender at the relevant time.
In Verdins, the Court of Appeal discouraged the categorisation of a case as either invoking the principles in Tsiaris or not invoking them. (Not surprisingly, parallels can be drawn between this approach and the comments of Maxwell P in Wyley about the application of R v Mills to youthful offenders, also discussed here recently). Instead, the Court found the correct approach was to approach each case on its own facts, weighing each of the considerations accordingly.

[13] Where a diagnostic label is applied to an offender, as usually occurs in reports from psychiatrists and psychologists, this should be treated as the beginning, not the end, of the enquiry. As we have sought to emphasise, the sentencing court needs to direct its attention to how the particular condition (is likely to have) affected the mental functioning of the particular offender in the particular circumstances – that is, at the time of the offending or in the lead-up to it – or is likely to affect him/her in the future.
An example of the Court applying this principle is the later decision of R v Grossi. There, an assertion of gambling addiction did not attract mitigation because the causal connection between state of mind and offending wasn't sufficiently strong.

R v White

In White's case, the appellant was sentenced in the County Court to a total period of imprisonment of two years and three months (with a minimum of a year to be served) for offences of criminal damage, threat to cause serious injury and serious injury with a knife.

The appellant had pled guilty but contested the account put by the prosecution. After evidence was led of the disputed allegations the sentencing court accepted the Crown's version of events.

In mitigation, counsel relied on reports from a psychiatrist and a psychologist that diagnosed the appellant with a borderline personality disorder. A Forensicare report was ordered. This concluded an absence of any mental illness. The sentencing judge referred to the three reports in sentencing and concluded that the appellant suffered from no mental illness. The considerations of Tsiaris weren't raised by counsel, despite the specific comments of Nettle and Dodds-Streeton JJA in R v Zander [2009] VSCA 10.

On the appeal, it was argued that the diagnosis of a borderline personality disorder was worthy of some mitigation of penalty, in the exercise of sentencing discretion.

[16] On behalf of the respondent it was submitted that none of the material which was relevant to the psychological and psychiatric condition of the appellant linked the diagnosed conditions to the commission of the offences, or highlighted difficulties which would arise in the serving of any sentence as a result of those conditions. It was submitted that, where a person in the position of the appellant is represented by counsel, the sentencing judge is not required to consider any effect of the psychological condition of that person where there has been no attempt to link the psychological condition to a relevant sentencing factor. To support this submission, counsel for the respondent relied on the comments of Nettle JA in R v Zander, where his Honour noted:

Contrary to submissions advanced by counsel on behalf of the appellant, where a prisoner is represented by counsel, a sentencing judge is not ordinarily required to consider any possible effects of psychological or psychiatric disability other than those expressly relied on by counsel. Generally speaking, therefore, it is ordinarily not the duty of a sentencing judge to scour evidence and other material in order to identify not so identified psychological or psychiatric disability which may go in mitigation of penalty.

[17] With respect, I agree with the submission on behalf of the respondent. The sentencing judge referred to the report of the treating psychiatrist in his conclusions during the course of the reasons for sentence. No submission was made on behalf of the appellant seeking to specifically link the appellant's diagnosed condition to the offending, therefore, the evidence regarding his condition is simply part of the background. In addition, the opinion expressed in the Forensicare report, which the sentencing judge quoted, seems to me to be consistent with the treating psychiatrist's report.

A complementary view comes out of the High Court's decision in Fardon v The Attorney-General (Qld) (2004) 223 CLR 575, where Gleeson CJ said,

As was pointed out in Engert, people suffering from mental disorders frequently come into collision with the criminal justice system, and discretionary sentencing decisions must take into account a number of sometimes competing considerations, including the protection of society. The law is a normative science, and many of its rules and principles are based upon assumptions about volition that would not necessarily be accepted as accurate by psychiatrists. In United States v Chandler, Chief Judge Haynsworth said:

The criminal law exists for the protection of society. Without undue harm to the interests of the society it protects, it can exclude from its moral judgments those whose powers of intellect or will are so far impaired that they have no substantial control of their conduct. It can afford, too, elimination of the last vestiges of the notion of punishment for punishment's sake and a further implementation of the principles of rehabilitation, deterrence and, wherever necessary, the ultimate isolation from society of those individuals who have no capacity for the adjustments necessary to conform their conduct as active members of a free society to the requirements of the law. The law may not serve its purpose, however, should it embrace the doctrines of determinism. Should the law extend its rule of immunity from its sanctions to all those persons for whose deviant conduct there may be some psychiatric explanation, the processes of the law would break down and society would be forced to find other substitutes for its protection. The law must proceed upon the assumption that man, generally, has a qualified freedom of will, and that any individual who has a substantial capacity for choice should be subject to its sanctions. At least, we must proceed upon that assumption until there have been devised more symmetrical solutions to the many faceted problems of society's treatment of persons charged with commission of crimes.

Friday, 7 August 2009

Former Chief Justice dies

Former Chief Justice of the Supreme Court of Victoria, John Harber Phillips, died today.

I only ever had the opportunity to meet him twice. He seemed a thoroughly decent gentleman, and was certainly a well-respected jurist throughout Victoria and Australia.

The Victorian Bar has a short obituary online already. No doubt there will be much more written about his achievements explaining his contribution to Victoria's legal system.

"Why would they lie?"

Edit: For an example of a final address that was considered not to reverse the onus of proof, where an accused's responses were described as "guarded" and "deficient", see Cummins J's reasons in DPP v Baker(No 3).

And the position of closing addresses that refer to lies as consciousness of guilt (as expressed in Edwards v R (1993) 178 CLR 193) allows the prosecution a much wider lattitude to critique the responses of an accused. In R v McCann [2009] QCA 289 the Queensland Court of Appeal related the following, without disapproval:

[19] In the course of his address, counsel for the prosecution referred to the lies constituted by the appellant’s initial claim that he had no knowledge of the matter and had not been at the complainant’s home and had not had sexual relations with her:

“Think about the lies, the lies that he told. What would you do if you were an innocent man and two cops rock up at your door at 6 a.m. in the morning, or 6.30, or whenever it was. They come to your door and they are effectively – they’re telling you, ‘Look, there’s been a sexual assault and we think it might have been you.’ Now, they’re accusing you of a very, very, very serious crime. Would you lie to them out of fear that your girlfriend might find out? Did he think the police were going to run over and tell his girlfriend that, you know, he’d had sex with this other woman? It’s just ridiculous. Or would you think to yourself, ‘I better straighten this out really, really, really quickly. If I don’t I could be going to gaol here. I’ve got serious, serious problems and I’ve got nothing to hide. I know I’m innocent, I’ve got nothing to hide, I’m just going to tell them everything I know and I’m going to straighten this out right now.’ You’d be thinking, ‘I’ve got bigger problems right now than what my girlfriend is going to think.’ ”


“Then he says – rambles about he didn’t want his girlfriend to know, pissed as a nit. He needed to get his story straight quickly and stick to it but he wasn’t smart enough to do it. You can just – on the tape you can just hear his mind slowly ticking over. You can tell he’s making it up as he goes along. He changes his story multiple times. If you were innocent, if you were in that situation, you had nothing to hide, would you do that? Can you imagine yourself on the tape, trying to spin these yarns like that if you were innocent?” [6]

While such rhetoric would need to be balanced by appropriate jury directions by the presiding judge, no objection was taken to this approach by counsel or criticism made of it by either court.

Some cross-examination questions have no place outside TV drama.

The recent case of R v Mallia [2009] VSCA 175 discusses the limitation on the prosecution asking questions of defence witnesses like, “Who else but you would have done it?” or, “Why would the other witness lie?”

Referring to Palmer v The Queen (1998) 193 CLR 1, Buchanan JA reiterated why it’s considered unfair to ask an accused to explain the motives of other parties in a case (in addition to the evidentiary rules against opinion and speculation),

9 The principal vice in asking a witness, and particularly the accused, why another witness would lie is the fact that the witness has no knowledge of any matter from which a motive to lie might be inferred is generally quite irrelevant and inappropriately focuses attention on an immaterial and manufactured conflict. To ask an accused why a witness would lie is to invite the jury to accept the evidence of the witness unless a positive answer to the question is given by the accused. The same result might ensue if the prosecutor asks the jury the same question rhetorically.

Questions like these can suggest a reversal of the onus of proof, by making it appear as though the accused is under an obligation to explain or disprove the prosecution’s case. According to the famous Woolmington v DPP [1935] AC 462 and often repeated in Australian law, the duty remains on the prosecution to prove all elements of the charges beyond reasonable doubt, from first to last (other than exceptions, like mental impairment or other specific statutory provisions, that reverse the presumption). The correct view is that absence of proof of motive is entirely neutral: Palmer, at 9. Despite contrary proposals a prohibition on the topic at trial has been maintained by the courts. Questions to witnesses or statements to a jury which invite such speculation can, and do, lead to the quashing of a conviction.

Some references to the possibility of rejecting the accused’s account by the prosecutor are allowable, though. In Mallia, the applicant was alleged to have lured a much younger person who was previously unknown to them to their home with the offer of drugs, then sexually assaulted her. The accused denied offering the complainant drugs. In his closing, the prosecutor (rhetorically) asked the jury, “Why would the complainant leave her friends in the city and accompany the applicant to his home?” and stated to the jury that the applicant had advanced no reason for the complainant’s leaving her friends and going with the applicant.

10 In my opinion, the authorities dealing with the problems created by challenging an accused to explain why a complainant should lie do not preclude a prosecutor pointing out the absence of any explanation for a witness's conduct other than the motive stated by the witness. The prosecutor in this case did no more than emphasise the consistency and credibility of the complainant's account by urging the jury to accept the reason advanced by the complainant. I do not think that the prosecutor's rhetorical question reversed the onus of proof or diverted the jury by raising an irrelevant issue. The prosecutor was presenting an argument which did address the probability of the complainant accompanying the applicant for the reason she stated.

Though not argued, it may be that Mallia has more thematically in common with Weissensteiner v R 178 CLR 217 than with Palmer v The Queen. Logically, the fact that only one version of events is before a court may make it easier for a court to accept that version.

No News isn't good news

It's August, which means I should have received a fresh edition of the Victorian Bar News by now. But I haven't. Nobody I know has.

It's possible that I've missed an e-mail or a post somewhere advising that there's not going to be a winter edition. The by-line to this worthy industry journal is the Quarterly Bar News and the last one came out in March, so it looks like we're now going to have to wait for spring. The publishing schedule reads as though a print run was going to happen in July, but I'm fairly sure that it didn't.

The three co-editors of the News (Gerard Nash, Paul Elliott and Judy Benson) resigned their posts in March. Though they denied any acrimony, either between themselves or anyone else connected with the publication, in their Farewell piece it came across loud and clear that they were tired of criticisms they considered trivial (errors in captioning photographs of people attending social events being the recurring example), and a small but vocal minority of critics who would frequently disparage their stance on the issues, without once expressing their appreciation for taking a stance on the issues.

The new editors, Paul Hayes and Georgina Schoff, have been left with big shoes to fill. Taking a moment to find their feet before rolling out the next edition is probably a good idea.

But it'd also pay to let their readership know what is going on, too.

Thursday, 6 August 2009

Law Lords leave the House

I recently posted that the new UK Supreme Court is poised to commence operation on 1 October 2009.

The prelude to that occurred last week, when the Appellate Committee of the House of Lords delivered its last judgments, closing a chapter on 600 years of English legal history.

Peter A Clarke posted a useful summary of the final seven decision delivered by the Lords, and Insite Law Magazine linked to an article in The Times that shows a rare photo inside Committee Room 1 where the Appellate Committee routinely sat. Not what I envisioned in my mind's eye for the highest court of the land in the UK.

Tuesday, 4 August 2009

Dangerous driving applies to specialists

What do Michael Schumacher and pursuit-trained police officers have in common?

The English Court of Appeal will not take into account their driving skills if asked to determine if they are guilty of dangerous driving.

In R v Bannister [2009] EWCA Crim 1571, Thomas LJ, Collins and Owens JJ considered the conviction of a police officer who had completed an advanced driving course in November - December 2007.

On 13 January 2008 when driving on the M4 near Swansea, (mere weeks after completing that advanced driving course), he crashed his police car when it aqua-planed at 113 mph (181 kph).

He was charged with dangerous driving contrary to the Road Traffic Act 1988 s 2:
2 Dangerous driving

A person who drives a mechanically propelled vehicle dangerously on a road or other public place is guilty of an offence.
Dangerous driving is further defined in s 2A:
2A Meaning of dangerous driving
(1) For the purposes of sections 1 and 2 above a person is to be regarded as driving dangerously if (and, subject to subsection (2) below, only if)—
(a) the way he drives falls far below what would be expected of a competent and careful driver, and

(b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.
(2) A person is also to be regarded as driving dangerously for the purposes of sections 1 and 2 above if it would be obvious to a competent and careful driver that driving the vehicle in its current state would be dangerous.

(3) In subsections (1) and (2) above dangerous refers to danger either of injury to any person or of serious damage to property; and in determining for the purposes of those subsections what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused.

(4) In determining for the purposes of subsection (2) above the state of a vehicle, regard may be had to anything attached to or carried on or in it and to the manner in which it is attached or carried.

(The judgment refers to the Traffic Act 1991, which is actually an amending act inserting these provisions into the principal 1988 Act.)

This provision is similar to Road Safety Act 1986 (Vic) s 64.

Bannister was convicted of the offence, sentenced to 20 weeks jail and two years disqualification, and required to pass an extended driving test. He appealed, and on appeal the conviction was confirmed, but the penalty substituted by a £50 fine and 12-month disqualification.

He relied on the police traffic-exemption (similar to Road Rule 305) but the Court rejected that argument, noting it couldn't excuse dangerous driving. (Road Rule 305 here has a similarly narrow application, applying only to offences against the Road Rules.)

After reviewing earlier cases, the Court decided the offence provision provided for an objective test. The result was:

19 ...the special skill (or indeed lack of skill) of a driver is an irrelevant circumstance when considering whether the driving is dangerous.

Monday, 3 August 2009

Bail applications at Melbourne

Last week saw the release of new Court One Protocols that will attempt to regulate remand proceedings at Melbourne Magistrates' Court.

Where the Registry has been advised of a bail application prior to the date a specific time for the commencement of the application will be allocated. If the application is not ready to proceed at that time, the protocol warns, it may be adjourned to a further date.

Other issues include the formalising of a 12:30 call-over of unresolved matters and an expectation that all matters (excluding late remands) will be ready to proceed by 3 p.m. There's a presumption that all listed matters will be finalised by 4 and that the Court will not sit beyond 5.

The 16-point document is signed by Chief Magistrate Ian Gray. It adds to the existing Magistrates' Court of Victoria Listing Protocols.