Wednesday, 30 September 2009

The Law Report on coercive powers

Dr Manhattan posted 2 weeks ago about investigative powers v human rights.

ABC National's The Law Report is this week discussing the same case, and coercive questioning by police. Apparently that very issue is about to be decided by the European Court of Human Rights.

You might remember academics Mirko Bagaric and Julie Clarke (who has not one but eight websites!) raised this polemical issue in 2005, which raised some debate! They later wrote a book, Torture: when the unthinkable is morally permissible.

The Law Report can be downloaded, podcast, or you can read a transcript.

Tuesday, 29 September 2009

Magistrates' and County Court decisions now available on AustLII

AustLII have been publishing the decisions of District Courts (the equivalent of our County Court) from other states for some time.

They had been on record as saying they weren't interested in publishing the decisions of the summary jurisdiction. But last year the Victorian Legal Services Commissioner made a substantial grant to AustLII, and they wanted written Magistrates' Court decisions on-line.

The Victoria Model Jurisdiction project was launched. Some County Court judgements going back to 1993 and some Magistrates' Court decisions going back to 2006 are now available.

(While it's sometimes said that the Magistrates' Court and County Court are not courts of record, that's not the case. Both meet the requirements of a court of record.)

Since most of their decisions are delivered ex tempore (not with written reasons) you won't be able to find every judicial decision. And, of course, where the verdict was from a jury trial, you won't find reasons at all (though, in future, you might find sentencing remarks).

Only where the magistrate or judge files written reasons will they be uploaded to AustLII, and they're under no obligation to do so. So, in a way, it's as if individual judicial officers are deciding whether to "report" their decision in a particular case.

Unfortunately, it's not comprehensive. Even where a notorious written decision was given, there's no guarantee it'll be there. The database for the County Court looks like a straight lift from the County Court website, which was far from complete. So, for example, if you're looking for the precursor to DPP v Mastwyk, Salton v Wigg (27/2/98) Victorian County Court (Kimm J, Unreported), among the County Court cases, you won't find it.

More databases are expected soon. Like earlier AustLII efforts, it's likely that the fruits of their labour will only be realised down the track.

Sunday, 27 September 2009

Section 138: Discretion to exclude

New arrivals to the arena of criminal law are sometimes surprised to learn that evidence which is improperly or unlawfully obtained by investigators is not — for that reason alone — inadmissible.

Historically, the default position has been that relevant evidence is admissible unless made inadmissible by statute or an exclusionary rule of evidence. The touchstone of confessional evidence was always reliability, not fairness. Principles regulating the exercise of judicial discretion to exclude evidence have developed significantly over the last century as ideas of justice, individual rights and the role of courts have evolved.

Further, the courts have traditionally adopted a tolerant approach to behaviour by police that might be regarded as sneaky or underhanded, without deeming it to be improper. In Tofilau v The Queen police pretended to be members of an underworld gang, even committing staged "crimes" to gain the trust of suspects and elicit admissions from them for offences. The High Court, though with obvious reservation, found that such trickery was acceptable:

[416] Nothing said above should be taken as a warrant for any undiscriminating reception of evidence gathered by police officers operating covertly. Plainly, as these appeals show, it is desirable that covert operations be undertaken from time to time, and they can be undertaken without damaging the integrity of the police force, or indeed of the system of criminal justice itself. Covert operations can however be risky. Sometimes the covert officers will, as a matter of necessity, be remote from close supervision and the discipline that it entails. Seduction of officers by criminals is not unknown. Covert officers can be placed in danger. Their response to that danger may cause them, however understandably, to act in a way that might otherwise be thought irregular. But none of those factors were present in the circumstances out of which these appeals arose. The trial judges in these cases were in all respects careful and discriminating in considering and admitting the relevant evidence.

There's been debate about how many types of discretion to exclude there are, and whether some should be considered sub-categories of others. Three broad categories have been reproduced in statutory form in the Evidence Act 2008:
The new Evidence Act will confer other specific powers and obligations on a court considering admissibility (notably ss 84 and 85 about the admissibility of confessions and admissions), but those three are the general discretions to exclude evidence.

Section 138 has been discussed here before. It's been in force for over ten years in New South Wales, giving the courts there opportunity to consider its implications. In R v Helmhoudt, the NSW Court of Appeal dealt with inadvertent non-compliance with regulations governing the treatment of people in custody. The Court decided the onus of proving unlawful or or improper conduct lay on the accused, on the balance of probabilities: R v Coulstock (1998) 99 A Crim R 143. Once satisfied, the onus then shifts back to the prosecution to prove that, despite the impugned conduct, the evidence should nonetheless be admitted. If the prosecution can't do that, the evidence will be excluded.

In Fleming v R, the behaviour of the police was far more deliberate, though not contrary to any specific statute or rule.

The investigation was a cold case. It was reopened to discover if advances in technology could lead to the identification of the offender. A DNA sample was taken from the deceased victim of a sexual assault and murder in NSW in 1984. At the time the investigation was re-opened, the suspect lived in rural Victoria. Neither Victorian nor NSW law provided for taking a DNA sample that might prove or disprove his involvement in the offence. (But it later emerged that the sample could have been taken if an outstanding warrant had been executed and the suspect extradited to NSW).

A Victorian policeman met with the accused under the pretext of investigating a local complaint about an unrelated matter. The suspect was asked to draw a diagram, and while doing so he dribbled on the paper he was drawing on. The paper was sent to NSW and analysed: the DNA matched the sample taken from the victim.

The evidence was challenged under s 138 at trial, but admitted. The trial judge ruled that taking the sample by trickery wasn't unlawful or improper, and that even if thought it was, the desirability of admitting the evidence outweighed the desirability of excluding it (relying on s 138(3).)

The accused was convicted and appealed.

At the appeal, McClellan CJ at CL said:

[17] Impropriety is not defined in the Evidence Act. In Ridgway v The Queen (1984) 184 CLR 19, a case before the Evidence Act was enacted, Mason CJ, Deane and Dawson JJ said, at 37, that “the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances.” Their Honours acknowledged that the effective investigation by police may involve subterfuge and deceit and may extend to the intentional creation of opportunities for the commission by a suspect of a criminal offence. Their Honours acknowledged that “a finding that law enforcement officers have engaged in ... clearly improper conduct will not, of course, suffice of itself to give rise to the discretion to exclude evidence of the alleged offences or of an element of it.” Their Honours accepted that deceptive tactics, which do not involve illegal conduct, will ordinarily be legitimate.

The Court of Appeal referred to its previous comments in R v Camalleri (2007) 169 A Crim R 197:

[31] As Howie J made plain in R v EM (2003) NSWCCA 374 at [74] – [78], s 138 is concerned with balancing public interests. The prejudice to the individual accused, which to varying degrees must be present in every case, will rarely be material. It may be of concern if the means by which the evidence was obtained has the consequence that an accused cannot effectively respond to it. There may be other personal considerations in a particular case. However, the fundamental concern of the section is to ensure that, if the law has been breached, or some other impropriety has been involved in obtaining the evidence, this is balanced against the public interest in successfully prosecuting alleged offenders. The competing interests are obedience to the law in the gathering of evidence and enforcement of the law in respect of offenders.

The appeal was dismissed. Whether a Victorian Supreme Court would rule the same way remains to be seen. But given that it concerns identical legislation, it appears likely.

Wednesday, 23 September 2009

UK Sentencing Guidelines

In the UK they recognise the inherently difficult task of sentencing appropriately in the summary jurisdiction. The volume of work, coupled with the number of discretionary considerations and ancillary orders available, make it difficult for judicial officers to avoid falling into procedural error.

In recognition of the complexity of the task, the UK's Sentencing Guidelines Council circulates the Magistrates' Court Sentencing Guidelines.

It's a series of checklists and charts designed to assist a sentencing court meet its responsibilities, from considering a reduction in penalty for an early plea to contemplation of making a football banning order.

The material is subject to Crown copyright (not to be reproduced for profit without permission) but otherwise there's nothing secret about it. And why should there be? Distributing a document like this can only help the courts to arrive at the kind of consistency and transparency they're aiming for.

There are moves toward something like a Magistrates' Bench Book by the Judicial College of Victoria. My prediction is that something similar will be brought in here soon.

Drink, Drive, Bloody i-Diot

If you don't value your licence, why not rely on an untested series of statistical tables (aka DrinkTracker) to determine whether you're safe to drive home?

I'm a big fan of apps for the i-Phone (the X-ray app being a personal favourite) but I wouldn't trust my life (or anyone else's) to them. The problem with statistics is that by definition they represent someone else's situation, not yours. (And the animation of three increasingly sozzled blokes engaging in a skolling competition at the top of their webpage doesn't engender much confidence, either).

But from the on-line discussion about them, it seems there are some people who will.

There's also an app that can tell you the nutritional value of your favourite beverage. I think I might take the risk with that one ...

Monday, 21 September 2009

Drugs standard now online

The Drugs, Poisons and Controlled Substances Act 1981 proscribes various drugs and poisons. Yes, this is hardly a groundbreaking revelation.

But, if you try to find what items are listed in Schedules 1 to 9 of the Act, you'll quickly discover they're repealed. (And have been for a long time.)

So, why can't we pop down to the local pharmacy and stock up on S4 drugs?

Transitional legislation arrives - Part 2

Dr Manhattan has already posted about the new Criminal Procedure Amendment (Consequential and Transitional Provisions) Bill 2009 to amend much of the Criminal Procedure Act 2009.

(It contains a huge number of amendments. So many, that I'm pretty confident the Criminal Procedure Act 2009 will be the first Act to be reprinted before it commences operation!)

As the good Doctor mentioned, it inserts a Part 8.2 into the Criminal Procedure Act, effectively replicating the rules found in the Evidence Act 1958 Part 2 that prescribe examination and cross-examination of specified categories of witnesses, either as complainants in sex-offence hearings or special witness such as children.

A new addition to those provisions is the inclusion of protected-witness provisions, similar to those found in the Family Violence Protection Act 2008 s 70.

Schedule 2 will also be replaced, specifying indictable offences that may be heard summarily. (But, it must be read in conjunction with Criminal Procedure Act s 28, which pretty much mirrors the current Magistrates' Court Act s 53.)

Since Friday, the Statute Law Amendment (Evidence Consequential Provisions) Bill 2009 has been published to the Victorian legislation website.

The Evidence Act 1958 will become the Evidence (Miscellaneous Provisions) Act 1958, and some parts will be retained.

For example, Part IIA on video-links will remain, as will Part IIAA on witness-identity protection.

Perhaps the most significant information, for now, is the transitional provision in clause 53, which inserts Schedule 2 in the Evidence Act 2008. There's a fair bit of detail there, but some of the highlights are:

  • the Act applies to any proceeding commenced on or after the commencement day (1 Jan 2010)
  • unless the Schedule provides otherwise, if a proceeding started before 1 Jan 2010, the Act applies to that part of the proceeding that takes place after the commencement date
  • the new identification rules in ss 114 and 115 don't apply to identifications carried out before 1 Jan 2010
  • the s 139 requirement for police to caution pretty much everybody they question only applies to statements or acts done on or after the commencement date (see Confirmation of admissions and the comments for discussion on how we think this provision might play out in summary hearings)
Part IV (oaths, affirmations affidavits and declarations) will also remain, and Schedule 3 provides for the form of oaths and affirmations. (The provisions suggest there might be regulations to prescribe the precise wording. (In 2002 Parliament's Law Reform Committee tabled its report into the Inquiry into Oaths and Affirmations with reference to the Multicultural Community, and noted there was no prescribed wording for Victorian court proceedings, unlike other jurisdictions that usually have an Oaths Act or similar. )

Clause 42 will repeal Crimes Act s 398A. I think this will mean Victorian evidence law will change to follow the High Court in R v HML.

Clause 43 will repeal Crimes Act s 399 (as recommended by the VLRC), which will allow Evidence Act 2008 s 20 to operate without conflict. That means Azzopardi v The Queen (2001) 205 CLR 50 will apply in Victoria — though rarely, given the High Court held that cases when a judge may comment on an accused's failure to give evidence will be rare and exceptional. Azzopardi (and Weissensteiner and RPS before it) dealt with jury trials. Section 20 prohibits a prosecutor from making comment, and restricts a judge from commenting, on the accused's failure to give evidence. Self-evidently, those stricture apply in front of a jury. The operation of s 20 could be raised between advocates and judge in the absence of the jury, especially if they want to discuss the possible operation of the section.

I'm not certain how that might operate in a summary hearing with a joint trier of law and fact. Perhaps it may be no more complex than clearly delineating the particular role played by a magistrate at any specified point in a proceeding? Egan v Bott [1985] VR 787 and Furnell v Betts (1979) 20 SASR 300 both suggest that despite their blurred role, magistrates ought to adopt the same procedure as a trial judge. (Similarly, they should 'direct' themselves as a trial judge does a jury: Beames v Police (SA) (2002) 135 A Crim R 447 at [19] – [20]; Fleming v The Queen (1998) 197 CLR 250Grbic v Pitkethly (1992) 65 A Crim R 12; R v Reid [1990] 1 AC 363 at 380.)

No doubt there's a lot more to uncover as we digest the Bills, but at least we now know the transitional details!

Thanks again to Jeremy Gans for the tip on Friday.

Sunday, 20 September 2009

Transitional legislation arrives

The Bill to amend legislation before the commencement of the Evidence Act 2008 and Criminal Procedure Act 2009 was before the Parliamentary Assembly last Thursday (thanks for the tip, Jeremy).

It's called the Criminal Procedure Amendment (Consequential and Transitional Provisions) Bill 2009. The Explanatory Memorandum for it can be found here.

At 256 pages, the proposed bill is only marginally smaller than the Criminal Procedure Bill itself (and larger than our new Evidence Act). Most of the changes are administrative in nature, to promote consistency in approach and terminology across a variety of Acts.

Of note is Clause 50, which will reproduce the provisions currently found in ss 37A - E and Division 3AA (ss 41A - E) of the Evidence Act 1958. The Bill will preserve existing special rules relating to the giving of evidence in sexual offence and family violence proceedings.

(Section 8 of the Evidence Act 2008 provides that it doesn't affect the operation of any other Act. Here's an example of where parliament clearly doesn't want our Evidence Act to be uniform with other states).

I'm still leafing through it. If you come across something that you think will change things dramatically, let us know.

Friday, 18 September 2009

UK Supreme Court start-date set

I mentioned last month that the House of Lords closed it doors after 600-odd years, to be replaced by the new UK Supreme Court.

The new Court has announced its first case to be heard on 5 October: Her Majesty's Treasury v A (FC) & Ors (FC), dealing with freezing terrorist-suspects' assets.

And The Times reports that the Court's proceedings will be broadcast on TV — still a novelty in most Commonwealth countries.

Wednesday, 16 September 2009

Bagaric and Faris on evidence

Edit: One of the authors of the book discussed below has contacted us and advised that, in fact, it is an annotated reproduction of the Act.

The sample copy I was provided some time ago is clustered around topics and appeared to be structured like a textbook, but the published version is apparently more like Odgers' work (but with a Victorian emphasis).

Mirko Bagaric and Peter Faris have released their take on the new Evidence Act 2008, Victorian Uniform Evidence Act.

I had a look at an advance copy a while ago. The authors approach the Act in the sequence that evidentiary issues are likely to arise: the text begins with a discussion of relevance as the gateway test of admissibility, works through the rules for admissibility and then the discretions to exclude.

While this makes it less useful as a quick reference in court than an annotated Act like Odgers' Uniform Evidence Law, the approach that Faris and Bagaric have adopted is probably better for developing an understanding of how the new provisions fit together as a cohesive whole when doing research. There's selected extracts from the ALRC Reports and Victorian Explanatory Memorandum that could also be quite useful.

Faris has pulled his annotated text on bail from the internet. Not enough people were accessing it, presumably because not enough people knew that it existed. A print copy will be available soon according to his website.

A clear example of use it or lose it, I suppose.

Tuesday, 15 September 2009

Laser prosecution zapped by wrong name

In February this year the West Australian Supreme Court dismissed the prosecution appeal in Hands v Baker (2009) 52 MVR 156.

Ivan Baker was charged with speeding. The police nabbed him at 113 km/h in a 50-zone, relying on a laser speed measuring device called the LTI 20-20 Ultralyte.

The Road Traffic Act 1974 (WA) s 98A defines a speed measuring equipment as apparatus approved by the Minister and published in a notice in the Government Gazette.

In 1992 (yes, that long ago), the Minister approved the LTI 20-20 as speed measuring equipment.

The problem for the police in this case was that the device they used on 17 April 2008 was an LTI 20-20 Ultralyte. In oral evidence, one police officer said there was also another different model, the LTI 20-20 Ultralyte Compact.

The magistrate first hearing the case wasn't sure if the LTI 20-20 gazetted in 1992 was the same thing as the LTI 20-20 Ultralyte used in 2008, and dismissed the charge.

At the appeal, the Supreme Court agreed with him.

[15] At the time that the Minister approved a speed detection system bearing the name 'LTI 20-20' there was only a single model of that device in existence. Accordingly, and even though the approval under s 98A(2) was of a 'type' of apparatus, there was only one model of the apparatus to which the approval could then in fact apply. Sixteen years were to elapse before a derivative or substitute model was used to measure the speed of the vehicle driven by the respondent.

[16] In my view, it is difficult to construe the Minister's approval in 1992 as applying to any future variations or versions of 'LTI 20-20' speed measuring equipment. In that regard, Constable Hands' evidence indicates that 'LTI' signifies 'Laser Industries Technology' (which I understand to be the name of the manufacturer). Although there is no evidence as to the meaning of '20-20', I assume that to be a reference to the common expression '20-20 vision'. It follows that in describing the apparatus that was approved by the name 'LTI 2-20', the Minister was referring not to some form of specific laser technology, but to a piece of equipment with that particular brand name. It is hardly likely that in doing so, the Minister was approving any future form of that manufacturer's equipment simply because it bore that brand name.

[17] In any event, the terms of the Minister's approval should be strictly construed, given the impact that approved equipment has on the prosecution of a motorist charged with a speeding offence. The apparatus approved by the Minister is a technological means of establishing a prima facie case of guilt. Because it is a machine and not a person, it cannot be cross-examined as to the accuracy of the speed which it records. Accordingly, justice can only prevail if the machine is strictly compliant with the statutory procedure under which it was lawfully approved.

[18] In the present instance the Minister approved a particular speed detection system which bore the name 'LTI 20-20'. He did not approve a speed detection system bearing the name 'LTI 20-20 Ultralyte'. In my view, the Magistrate was correct in coming to the decision that he did and in finding that the offence had not been proved. It follows that the appeal must be dismissed.

(Looking at the manufacturer's website, there seems to be some merit to this conclusion: it lists four different Ultralyte models, and none of them are called the 20-20.)

The Victorian Court of Appeal rejected a similar argument about prescribed preliminary breath testing devices, in Walker v DPP, unrep, 13 May 1993. In that case a police officer gave evidence that he used a Lion Alcometer to administer a preliminary breath test to a driver, rather than a Lion Alcolmeter. The defendant claimed there was no evidence a prescribed device was used. The Court simply said the submission was 'absurd' and dismissed it.

Here in Victoria, speed measuring devices are defined in the Road Safety (General) Regulations 1999 reg 105. They are also prescribed in reg 305, and must be tested, sealed and used in prescribed ways, and a certificate (found in Schedule 2) tendered to establish compliance with all those requirements.

So it might be that Hands v Baker won't provide a lot of succour for speeding Victorian motorists.

Sunday, 13 September 2009

Investigative Powers v Charter of Human Rights

Edit: The interplay between the Charter and the Major Crime (Investigative Powers) Act 2004 was again explored in BCD v The Chief Examiner & Anor [2012] VSC 193.

The applicant alleged inconsistency with Charter rights and repugnancy with the essential characteristics of a court under Ch III of the Constitution. BCD submitted that 2008 amendments to the Act allowing the Supreme Court to revoke a coercive order should be read as being exercisable at any time, and not just prior to its expiry. (BCD sought the revocation of an examination order it was alleged the applicant had failed to comply with, and was about to stand trial for that refusal).

Kyrou J found that it was too late to revoke the expired order [at 22]:

In my opinion, the Court’s jurisdiction under s 12(1) of the Act is confined to revoking a coercive powers order prior to its expiration. Once the order has expired, the Court lacks jurisdiction to revoke it. This is so even if the proceeding seeking a revocation of the order was commenced prior to its expiration.

Kyrou J said that the applicant could have filed application to revoke the order prior to its expiry, even after the alleged contravention. But once it had expired, there was no longer an order that could be revoked.

On the judicial review point, it was clear that the applicant was well out of time and required special circumstances in order to seek review under O 56.

Kyrou identified [at 35] that, although each case must be determined on its own merits, the relevant considerations to pay mind to included the reasons for the delay: Hinch v County Court of Victoria [2009] VSC 548, the length of the delay: Young v County Court [2005] VSC 311, whether the applicant had legal representation, whether the respondent has suffered any prejudice as a result of the delay: Young again, whether the respondent would be prejudiced by an extension of time, whether the respondent opposes the extension of time, the injustice to the applicant if the decision or order is allowed to stand: Lednar v Magistrates’ Court (2000) 117 A Crim R 396, the interests of and justice to both parties, and whether the applicant has an arguable case: Lednar again. Another important consideration is the public interest in ensuring certainty and finality in public decision-making once a statutory time limit for challenging a decision has expired: Lednar.

Though the respondents couldn't point to any particular prejudice caused by the delay, Kyrou J found that special circumstances were not made out. Consequently, the reagitation of earlier arguments about constitutionality and human rights were not argued.

What effect has the Charter of Human Rights and Responsibilities Act 2006 had on the law of Victoria?

Since it's a question that can't be answered in a whole shelf of books, I'm not going to try to do it in one post. For a comprehensive discussion of the first year of the Charter's operation, go and have a look (if you haven't already) at Jeremy Gans' Charterblog.

(I went to grab the link and discovered that Jeremy has come out of self-imposed blogging retirement to discuss the case that is the main focus of this post. For his analysis of Re an application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381, go there now. For a potted history of the Office of Chief Examiner, see his article at Inside Story).

Quite simply, the impact of the Charter depends who you ask. My impression from speaking to practitioners representing the police and the Crown is that they think it's proved to be the Millenium Bug of Victorian law: after a lot of anxious predictions, the law continues to be decided the way it always has been.

On the other hand, Kracke v The Mental Health Review Board [2009] VCAT 646wouldn't have been decided the same way without it, and is only one example of decisions influenced by the Charter that will affect hundreds if not thousands of people's lives. While it might not have changed the legal landscape overnight, the Charter has the potential to have a sustained and significant impact over time.

I had been waiting for the ultimate showdown of them all, and it came along last week: the point where the irresistable force of the Major Crime (Investigative Powers) Act 2004 ran at full speed into the immovable object of the Charter of Human Rights and Responsibilities Act 2006.

Although it didn't feature very much in the mainstream media, the case represents the collision of two pieces of legislation with diametrically opposed aims: the investigation of criminal offences at its most coercive; against the upholding of individual freedoms and privilege against self-incrimination. Perhaps the suppression of all the identities concerned damped things down, though I would have thought it would add an air of mystery to the coverage.

The Major Crime (Investigative Powers) Act 2004 is undeniably coercive (some might say draconian) legislation. It allows the Chief Examiner to apply to the Supreme Court for a coercive powers order. Such an order allows the summonsing of witnesses to secret hearings, with criminal sanctions for non-attendance: s 37. The hearing is not open to the public: s 35. The rules of evidence do not apply: s 30. The witness does not have to be told what the nature of the enquiry concerns, but commits a criminal offence if they refuse to answer any question put to them: s 37.

A coercive powers order grants the Chief Examiner similar powers to those of the Director of the Office of Police Integrity, except instead of police that are under investigation it is anybody that is potentially involved in (not necessarily suspected of) an organised crime offence. This is defined at s 3.

organised crime offence means an indictable offence against the law of Victoria, irrespective of when the offence is suspected to have been committed, that is punishable by level 5 imprisonment (10 years maximum) or more and that—
(a) involves 2 or more offenders; and

(b) involves substantial planning and organisation; and

(c) forms part of systemic and continuing criminal activity; and

(d) has a purpose of obtaining profit, gain, power or influence.

Perhaps most significantly, s 39 of the Major Crime (Investigative Powers) Act 2004 abrogates the common law right against self-incrimination. The only legal protection offered to a witness is that their evidence may not be used against them in a criminal proceeding.

39. Privilege against self-incrimination abrogated

(1) A person is not excused from answering a question or giving information at an examination, or from producing a document or other thing at an examination or in accordance with a witness summons, on the ground that the answer to the question, the information, or the production of the document or other thing, might tend to incriminate the person or make the person liable to a penalty.

(2) Subsection (3) limits the use that can be made of any answers given at an examination before the Chief Examiner, or documents or other things produced at an examination before the Chief Examiner or in accordance with a witness summons.

(3) The answer, or the document or other thing, is not admissible in evidence against the person in—
(a) a criminal proceeding; or

(b) a proceeding for the imposition of a penalty—

other than—

(c) proceedings in respect of an offence against this Act; or

(d) proceedings under the Confiscation Act 1997; or

(e) a proceeding in respect of—
(i) in the case of an answer, the falsity of the answer; or

(ii) in the case of the production of a document, the falsity of any statement contained in the document.

Though this section clearly prohibits using a witness's direct evidence against them in a criminal hearing, the scope for derivative evidence to be used against them was less settled. (So if a witness was compelled to provide the location of a gun, the evidence of providing the location of the gun would be inadmissible, but the location of the gun and any forensic evidence obtained from it would still be admissible against them.)

In Re an application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381 an application for a coercive powers order was granted by the Supreme Court, subject to a stipulation that the power not be exercised until the apparent inconsistency with s 25(2)(k) of the Charter was resolved.

Section 25(2)(k) of the Charter reads:

25. Rights in criminal proceedings

(1) ...

(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees—

(k) not to be compelled to testify against himself or herself or to confess guilt.

Chief Justice Marilyn Warren ruled on this conflict.

Her Honour determining the effect of the Major Crime (Investigative Powers) Act required referring to the Charter (at [78]), and that s 39 does limit a fundamental human right (at [143]). Applying the test at Charter s 7, the Chief Justice developed a new test similar to the fruit of the poisonous tree test familiar to viewers of American police and legal procedurals:

[157] Returning to the hypothetical examples I set out earlier, I note the problem highlighted in each instance falls squarely into the first category of derivative evidence established in S(RJ). My approach will continue to allow investigations to take place under the Act, and will not exclude the Crown from utilising any of the following:
(2) evidence that was discovered as a result of the testimony, but that could have been discovered without such testimony; (3) evidence that would, or would probably, have been discovered even without the testimony; and (4) evidence that was discovered after the testimony was given, but independently of the testimony. (Citing R v S(RJ) [1995] 1 SCR 451 at 546.)

The Crown bears the burden of proving that one of these situations applies, on the balance of probabilities ([159]). Her Honour concluded:

[177] In interpreting s 39 of the Major Crime (Investigative Powers) Act 2004, derivative use immunity must be extended to a witness interrogated pursuant to the terms of the Act where the evidence elicited from the interrogation could not have been obtained, or the significance of which could not have been appreciated, but for the evidence of the witness. Derivative use of the evidence obtained pursuant to compelled testimony must not be admissible against any person affected by s 39 of the Act unless the evidence is discoverable through alternative means.

But the Court decided that the provision (as newly interpreted) did not represent an unreasonable limitation on human rights. That meant Charter s 36 (declaration of inconsistent interpretation) did not apply.

So, no earth-shattering revelations. Victorian law will adopt an interpretive approach that will give each side some, but not all, of what they wanted, which experience has shown to operate fairly well elsewhere. No declaration of inconsistency.

While other observers may see it differently (Jeremy describes it as "the best thing that's ever come from the Charter so far"), I'll call that result a draw.

Friday, 11 September 2009

Cross-border questioning

Dr Manhattan posted earlier this week about Wallace v Debs & Anor [2009] VSC 355, dealing with an application made by Victorian police on behalf of NSW police to interview a suspect already in custody.

A comment there gave me the idea of discussing the status of various investigators who aren't from Victoria.

Crimes Act 1958 Part 3, Div 1, Subdiv 30A (section 464 on) prescribes investigation processes for investigating officials.

Investigating officials means Victorian investigating officials: R v Frugtniet [1999] 2 VR 297. If interstate police come here to interview a suspect, they need to comply with the legislative and evidentiary procedures for admissibility of interviews in their home jurisdiction. (But of course, there will also be local requirements for gaining access to a suspect.)

A West Australian police officer is not an investigating official under these Victorian provisions (R v Weston, FC V, 05/08/1992), and nor is a Queensland police officer (R v Bartlett, FC V, 14/09/1994. Similarly, an Australian Federal Police officer is not an investigating official: R v Gionfriddo [2000] VSCA 152; R v Frugtniet [1999] 2 VR 297. National Crime Authority operatives are also not investigating officials: WF1 v National Crime Authority (1993) 44 FCR 524; WF1 v National Crime Authority (1993) 44 FCR 533. That probably means Australian Crime Commission operatives (which replaced the National Crime Authority in 2003) wouldn't be considered investigating officials too.

When police want to interview a person interstate, they have several options.

If the person is under sentence, they can be transferred interstate under the Transfer of Prisoners Act 1983 (Cth). But that won't ordinarily apply for investigation purposes, only trials of charges.

A person under restraint as defined in the Service and Execution of Process Act 1992 (Cth) can be extradited under Part 5 of that Act, but (logically enough) only if they are not in prison.

Or, the police can cross the border and attempt to interview the suspect, as the NSW police tried in Wallace v Debs & Anor [2009] VSC 355. That's probably the most practical option (aside from waiting to see if the person eventually returns to the jurisdiction where they're wanted).

Thursday, 10 September 2009

Have conviction, will travel?

In March I posted about a mooted Spent Convictions Bill.

I reckon the significance of conviction or non-conviction court results is no longer as great as it once was. It's common for insurance companies to enquire about findings of guilt for relevant crimes, or even merely being charged. So too some employers ask for or even require criminal history checks that might record findings of guilt.

And various statutory provisions take effect following findings of guilt whether a court records a conviction or not. (Recording demerit points for driving offences is one minor example.)

Nevertheless, folks understandably prefer a court not records a conviction against their name.

One reason I've often heard raised is about the possibility of a conviction restricting future travel, especially to the USA.

I'm not sure of the exact answer to that, but from what I can find, I don't think it's as big an issue as is sometimes suggested.

The US State Department runs with advice for travellers to the USA.

Visitor visas are granted to 'aliens' who are eligible to receive a visa.

An alien is ineligible for a visitor visa under the Immigration and Nationality Act 8USC1182(a)(2) provides for ineligibility on criminal and related grounds.

(2) Criminal and related grounds

(A) Conviction of certain crimes
(i) In general Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of—
(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or
(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21),
is inadmissible.

(ii) Exception Clause (i)(I) shall not apply to an alien who committed only one crime if—
(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or
(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).
(B) Multiple criminal convictions

Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more is inadmissible.

(C) Controlled substance traffickers

Any alien who the consular officer or the Attorney General knows or has reason to believe—
(i) is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 802 of title 21), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so; or
(ii) is the spouse, son, or daughter of an alien inadmissible under clause (i), has, within the previous 5 years, obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity,
is inadmissible.

(D) Prostitution and commercialized vice

Any alien who—

(i) is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status,
(ii) directly or indirectly procures or attempts to procure, or (within 10 years of the date of application for a visa, admission, or adjustment of status) procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution, or receives or (within such 10-year period) received, in whole or in part, the proceeds of prostitution, or
(iii) is coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution,
is inadmissible.


So, this seems to exclude entry to people convicted of offences of moral turpitude (a broad term meaning conduct considered contrary to community standards of justice, honesty or good morals), drug users, people convicted of 2 or more offences of any type and imprisoned for 5 or more years, drug traffickers, and prostitutes and vice-related offenders.

edit And, following on from Dr Manhattan's comment below, it is indeed the case that the meaning of conviction for aliens includes a finding of guilt: see 8USC1101(a)(48). That states:

(A) The term "conviction" means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—
(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.
(B) Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.

Which means for the purpose of obtaining a visa to enter the USA, the distinction between conviction and non-conviction for prescribed offences is effectively meaningless.

Wednesday, 9 September 2009

Road Rules 2009 available

The Road Rules 2009 are now available on the Victorian Legislation Website.

The cumbersome method of publishing them in the Government Gazette, and incorporating them in Victorian law under the Road Safety (Road Rules) Regulations 1999 will go the way of the dodo. The new Rules are simply Statutory Rule 94/2009.

That means the confusing system of looking for amendments in the Schedule to the enabling regulations will also go, and the Rules themselves will simply be amended as required.

Vic Roads has a website outlining the changes, and says the new Rules commence operation on 9 November 2009.

You might remember that in June Dr Manhattan flagged the various new road safety regulations due to commence later this year. The Road Safety (Drivers) Regulations 2009 are also now available; the others should be available soon.

Crime and punishment in Las Vegas

I don't often recommend TV shows, but Sin City Law is a worthy exception to the rule. Made by the same documentary team responsible for Murder on a Sunday Morning and the The Staircase, it offers a fly-on-the wall view of the legal system in Las Vegas, Nevada.

Tonight's episode, Bourbon Strip, is part 2 of a trial of an elderly man accused of stabbing a friend to death in a drunken rage.

The access that the show's producers have been given is incredible. The stories are as compelling as any Law & Order or CSI but with the added impact of knowing that what you're watching actually happened.

It's on tonight at 8:30 on ABC2.

Sunday, 6 September 2009

464B applications

When the police want to speak to someone they suspect has committed a crime, they generally either arrest them or invite them in for an interview. When that person is already being held in custody for something else, an application before the Magistrates' Court needs to be made first.

Section 464B of the Crimes Act 1958 provides:

(1) An investigating official may apply to the Magistrates' Court or, if the application is in respect of a child, the Children's Court for an order that a person-

(a) who is-

(i) held in a prison or police gaol; or

(ii) a forensic resident or a security resident within the meaning of the Disability Act 2006; or

(iii) a forensic patient or a security patient within the meaning of the Mental Health Act 1986; or

(iv) detained under section 93 of the Sentencing Act 1991 in an approved mental health service within the meaning of the Mental Health Act 1986 as an involuntary patient or security patient within the meaning of that Act; and

(b) reasonably suspected of having committed an offence (being, in the case of an application in respect of a child, an indictable offence) other than the offence for which he or she is being held-

be delivered into the custody of the investigating official for the purpose of questioning or investigation in respect of the first-mentioned offence.

Case law on the interpretation of this section is not common. Although s 464B (4C) obliges Victoria Legal Aid to provide unrepresented suspects with legal representation, in practice these applications are rarely objected to and rarely refused. In many cases, it's advantageous for the person in custody to have an allegation against them resolved during their imprisonment so that any penalty which might result can be dealt with concurrently.

In Wallace v Debs & Anor [2009] VSC 355, the Supreme Court considered what was meant by offence under s 464B(1)(b).

Victoria Police Detective Jason Wallace applied in October 2008 to interview Bendali Debs about the murder of a woman in Sydney in 1995. Debs is currently serving multiple life sentences in Victoria for murder. The application was refused, the magistrate determining that offence in the context of s 464B(1)(b) of the Crimes Act refers only to Victorian offences, and has no extra-territorial application.

The police appealed to the Supreme Court. Pagone J found that the magistrate had interpreted the provision correctly. The offence reasonably suspected must be an offence which a court in Victoria would have jurisdiction to hear.

[8] Finally I should deal with one argument put against this construction; namely, that the provision would be unworkable if it required establishing Victorian jurisdiction before it could be invoked. In my view, this concern is unfounded. The section may readily be invoked whenever it is "reasonably suspected" that the person to be investigated has committed an offence contrary to the laws of the state of Victoria. In other words, it is sufficient to invoke the provision that the investigating officer has a suspicion capable of being described as reasonable. The investigating officer does not first have to establish that the offence was against the state. Rather, all that the investigating officer need do is that which is routinely done when embarking upon any investigation about the possibility of an offence having been committed in Victoria against Victorian law. The construction adopted by the learned magistrate, which I think to be correct, only excludes from operation of the section that narrow class of cases, of which this is one, where it is conceded that the offence has nothing at all to do with Victoria except the presence in Victoria of the person sought to be interviewed. In this case it is properly conceded on behalf of the investigating officer that the investigation to be undertaken is not for the purposes of investigating a Victorian offence but, solely, to enable the police force of another state to investigate a possible offence against the laws of that other state. That limitation is narrow and, it seems, has not otherwise been provided for. The only conclusion by the learned magistrate concerning that issue, with which I also agree, is that there is no justification to assume that section 464B was intended to cover a situation that has not previously been thought necessary to have been covered. Accordingly, I dismiss the application.

I don't think this means the s 464B(1)(b) offence must always occur in Victoria. As we discussed here a couple of weeks ago, there are a number of different ways that offences that occur (at least partially) outside Victoria can constitute a crime here.

The difference between this case and the High Court decision of Lipohar v The Queen is that here it was conceded that there was no real connection at all between the state of Victoria and the alleged offence, other than the suspect currently being imprisoned here.

Thursday, 3 September 2009

R v Fitchett: not guilty by reason of mental impairment

A couple of months ago I posted about the tragic circumstances in R v Fitchett [2009] VSCA 150.

The case raised some issues to do with the application of the Crimes (Mental Impairment and Fitness to be Tried) Act 1997. Most importantly, the case affirmed that a jury should be told what the potential effects of a finding of not guilty by reason of mental impairment will be (specifically, the ability of the County and Supreme Courts to make custodial and non-custodial supervision orders).

The requirement that the jury be advised of the possible consequences of their verdict is required by s 22(2) and is thought to minimise the risk that a jury would consider that a not guilty finding would result in a potentially dangerous person being released into the community.

New sample jury directions and Bench Notes for the higher courts are available in the Judicial College of Victoria's Criminal Charge Book.

This doesn't change anything in the summary jurisdiction. By virtue of s 5 of the Act, if the Magistrates' Court finds a person not guilty by reason of mental impairment the charge must be dismissed, and no sentencing alternatives arise.

Wednesday, 2 September 2009

Cyclists beware!

According to Victoria Government Gazette S 289, s 19 of the Road Legislation Amendment Act 2009 came into effect last Thursday.

This is the provision that creates an offence for road users (other than motor vehicles and wheel-chairs) to use their vehicle carelessly. Translation = cyclists.

I'd thought this provision had been in for a while, but according to the Explanatory Memorandum it was held back until the Road Safety (General) Regulations 1999 (which themselves will have to be repealed by December) were amended to prevent infringements being issued for this offence.

Yes, that's right. Due to the operation of the Road Safety (General) Amendment (Careless Driving) Regulations 2009, if you are a full licence holder and charged with careless driving in a car you'll receive a fine. But if you're on a bicycle, whether you're a full licence holder or not, you go to court.

The penalty will be a maximum of six penalty units for a first offence, and twelve penalty units for a subsequent offence.

Tuesday, 1 September 2009

The latest whiteboards

A couple of years ago electronic whiteboards that print were the in thing.

They were expensive, they were cumbersome to move around and they were difficult to operate. I'm guessing that they were as hard to repair as a modern photocopier, but nobody ever found that out because nobody got enough use out of one to need to fix it.

On the right side of the page you'll find an American outfit called TechnoEsq.Com on our blogroll. They take corporate technology and market it to lawyers. The latest thing they're reviewing is a product called PaperShow, which brings together a gizmo pen, some interactive paper and any TV or computer screen.

The article on their website explains how useful this could be in the courtroom. When a witness is in the witness box, everyone wants to be able to see what they're drawing while they're doing it, not later. A real whiteboard is good for this, but you don't end up with a permanent record of their sketch. A piece of paper gives you a permanent record, but you only end up with one copy and it's not easy to work out what each part of it is supposed to be unless it's been carefully labelled.

I can't see everyone rushing out to buy this gadget, but it's something that will become a common feature of courtrooms in the future.