Going digital

During this last year the Victorian Police Force switched from using cassette tapes for recording its interviews to modern digital technology.

Along with the new technology has come new regulation of it, in the form of amendment to s 464H and the creation of new ss 464JA - JD of the Crimes Act 1958. These provisions are inserted into the Crimes Act by ss 3 and 4 of the Justice Legislation Miscellaneous Amendments Bill 2009, which had its second reading on the 15th October and is expected to receive Assent early next year. The Explanatory Memorandum can be found here.

As the new units record pictures as well as sound, the new legislation clarifies that an accused is entitled to the audio within 7 days of the interview and is entitled to a copy of the vision within 7 days of being charged.

The Bill also seeks, in a fairly draconian way, to ensure the contents of the recordings are not distributed beyond those who have a legitimate interest in them. Sub-section 464JA(2) will create an offence for possession of a recording produced under ss 464B(5A), 464G or 464H.

(2) A person must not knowingly possess an audio recording or an audiovisual recording unless the person—

(a) is the suspect; or
(b) is a legal practitioner representing the suspect; or
(c) is an authorised person acting in the performance of his or her duties; or
(d) has possession of the recording in a sealed package in the course of his or her duties as a person engaged by a person referred to in paragraph (a), (b) or (c) to transport the recording to that person.

Penalty: Level 8 imprisonment (1 year maximum).

An authorised person at (c) includes lawyers, courts, police and so on. Sub-section (3) creates an offence with the same penalty for playing the recording to anyone who is not in one of those categories or for an appropriate purpose.

This means that if a person has been interviewed by the police and on their release from custody their family would like to listen to the recording of what was said, they can't, regardless of what the accused wants. It's also not clear what the position of professionals acting on behalf of the accused would be. (Many expert opinions from psychologists and psychiatrists rely upon material contained in the police interview to form their conclusions).

Under s 464JA(1)(p) it states that a prescribed class of person may also possess the recording, but it's not known who will be in this category as the regulations are yet to be finalised.

The new law will also require that all recordings be kept by the police for a minimum of 7 years.

Charge Book becoming essential reading

The VLRC's report on jury directions came out in June and suggested a number of different reforms. One of the proposals was more frequent reference by judges to the Judicial College's Charge Book.

In R v Said [2009] VSCA 244 the Court of Appeal delivered its strongest encouragement yet for increased use of the Charge Book.

Maxwell P said:

28. As Ashley JA has already noted, none of the complaints which we are upholding in respect of the charge in the present case would have been sustainable had the charge book charge been used. It is most unfortunate that this appeal was made necessary because of what were avoidable errors. Not only has the appeal involved time and cost for the court and the parties, but the conviction must be quashed and a retrial ordered.

29. This case illustrates just how important a resource the charge book is for trial judges, and how important it is that it be used for its intended purpose, that is, to minimise the risk of appealable error. The charge book contains much more than the model charges. Each part of the charge book provides references to relevant decisions, and guidance as to when and how particular topics need to be addressed (depending always on the circumstances of the particular trial). The charge book is accessible on-line and there is every reason to think that judges can — and should — avail themselves of the assistance which it provides.

30. The charge book is a living document. For example, following comments which the Court made in Hendy, the model charge on self-defence was modified to remove the passage which had given rise to debate in that case. It is also important to emphasise that it is not an academic document. The model charges are reviewed and edited by experienced trial judges and experienced appeal judges, who have worked very hard with the Judicial College of Victoria, over several years, to arrive at formulations which are both faithful to the requirements of the law and cognisant of the practicalities of running trials. I want to express this Court’s appreciation of the work that has gone into the charge book, and to reiterate the hope that that work will continue to pay dividends.

31. Every time appealable error is avoided, every time the community is saved the time and expense of an appeal and a retrial, the vital importance of the charge book is reinforced.

Said was a trial in the County Court of a charge of recklessly causing serious injury. It could even be described as a relatively simple case. Self-defence was in issue and the judge's directions were found to be in error. Criticism (in the traditional, indirect fashion of appellate courts) was made of all the parties to the proceeding for not referring to the Charge Book.

While talk of juries might seem irrelevant to the summary jurisdiction, magistrates are required to direct themselves prior to the commencement of fact-finding (Fleming v R (1998) CLR 250), and practitioners are obliged to assist them in doing so correctly. The assumption that magistrates "know the law" is as likely to be wrong in the Magistrates' Court as it has proven to be elsewhere.

Award for Mallard Inquiry lawyer and journalist

Lawyers Weekly reported today that lawyer John Quigley and journalist Colleen Egan received Australian Lawyers Alliance Civil Justice Award for 2009, for their work contributing to Andrew Mallard's release.

His case is a strong example of the need for an independent judiciary, legal profession and critical media.

Mr Mallard appealed to the High Court against his conviction before the Supreme Court of Western Australia. The High Court considered Mr Mallard’s conviction was unsafe for a number of reasons, and quashed it. The case is reported at Mallard v The Queen 2005) 224 CLR 125.

One reasons his conviction was quashed was because the prosecution failed to disclose evidence to Mallard.

The prosecution case was:

• Mr Mallard killed Mrs Lawrence when he beat her about the head with a Sidchrome wrench
• The killer was splattered with blood
• Mr Mallard washed his clothes in a nearby salt-water river, accounting for the lack of blood on his clothes
• It was raining heavily that day, and the rain washed the salt-water from his clothes
• Mr Mallard was seen at the scene, identified by a distinctive hat he wore
• The murder weapon was never located, but the prosecution relied on a sketch of a wrench made by Mr Mallard when the police interrogated him. (Notably, much of the interrogation was not tape-recorded! That created another controversy, because Mr Mallard disputed making the alleged confessions.)

When the case went to the Western Australian Court of Appeal, and the High Court, it turned out that:

• Forensic tests (striking a pig’s head with a wrench) established positively that a wrench like that drawn by the appellant could not have caused the wounds suffered by Mrs Lawrence
• Further tests showed the defendant’s clothes would have had salt water in them if washed in the river where alleged by the prosecution, but the clothes didn’t have any salt residue in them. The police requested removal of this information from a written report given to the appellant
• Further tests showed the rainfall could not have washed the salt out of the defendant’s clothes
• A witness made a handwritten statement in the days after the murder, saying the defendant’s distinctive cap remained on a hook in her apartment on the day of the murder. Reference to this was removed in a subsequent typed statement given to the appellant
• Various witness made statements of identification, describing a person whose appearance seemed to be different from that of the appellant.

None of this was disclosed to the defendant.

The judgment of Kirby J (agreeing with the majority), at [45] – [94], covers these issues in detail. It makes for a good summary of the obligations of disclosure on the prosecution.

The High Court ordered a retrial, but the DPP later decided not to proceed with the prosecution. A Corruption and Crime Commission inquiry was setup into the saga (report available here), and Perth's Sunday Times ran a blog covering the inquiry.

On the lam

People who turn themselves into the authorities after having absconded a long time ago can pose a difficult sentencing problem.



This is particularly true where the offences involved are relatively minor, and the fugitive has been living a blameless life on the lam (and it is lam; life on the lamb sounds very uncomfortable). On the one hand, the courts don't want to reward someone for having skipped bail. On the other, some of the purposes of sentencing can seem a little less relevant after the passage of time.



(I was recently contacted by a man returning from living in NSW, having fled this jurisdiction as a teenager. Now over thirty with a wife, child, and job requiring him to move down to Melbourne, he wanted to know if he was going to be sentenced to the juvenile detention that had led him to flee in the first place. He feared (probably quite rightly) that being twice the age of juvenile offenders if he was locked up with them he could quite easily become a target for their abuse!)



In R v Berry [2009] VSCA 219, the Court of Appeal considered the case of Russell Berry. He had been convicted of a string of burglaries committed while a heroin addict during the late 90s. They were committed as part of a group of like-minded individuals, were fairly organised and netted hundreds of thousands of dollars.



Mr Berry jumped bail before being sentenced in May 2001. His period dodging authorities came to an end when he handed himself in at a police station on Christmas Day 2006. It was accepted by the sentencing court that he'd made significant improvements in his life, and it was this that had led him to the point of turning himself in.



What made it particularly difficult as a sentencing exercise was that Berry's co-offenders had not absconded, but had answered their bail and been sentenced years ago. If Berry's sentence was significantly reduced as a result of his self-rehabilitation, might his co-offenders (and anyone else awaiting sentence) be better off doing what he did?



Redlich JA:

33 In R v Thompson the appellant absconded while on bail and was not apprehended for nearly three years. The evidence put forward on the plea demonstrated the appellant had used those three years to undertake a ‘significant change in lifestyle’. This included establishing a new and stable relationship, taking employment and making the most of the opportunities to fully stabilise his life. Street CJ held that the appellant could not claim the full benefit of this in as much as the freedom he used in order to rehabilitate himself was freedom that flowed from his having absconded from bail.



34 It would be an undesirable precedent for courts to encourage persons to abscond from bail and rehabilitate themselves and then come forward and seek to have that taken into account in a significant way when they stand for sentence. To allow leniency in such circumstances would reward the failure to answer bail and would be contrary to the public interest. But as Street CJ observed:

rehabilitation already accomplished will of course always be taken into account however it may have arisen but when it has arisen through self taken liberty by a bail absconder, it will be given less significance than if it has taken place simply in the ordinary passage of time.

35 Thompson was referred to with apparent approval by Phillips CJ in the unreported decision of Stephenson. It was cited by Winneke P in R v Whyte in support of the conclusion that delay that is fairly attributable to the accused will result in ‘less credit’ being given for rehabilitation established during that period. In R v Mundy Maxwell P, with whom Buchanan and Vincent JJA agreed, said that the mitigating effect of rehabilitation during a period of delay must be greatly reduced where it is the offender’s absconding which has created the delay and enabled him to demonstrate a period of law-abiding activity in the intervening period. The President and Vincent JA also adverted to the fact that, between co-offenders, rehabilitation during a period of self-created delay could not advantage the absconder over those who complied with their bail conditions. The latter consideration is relevant in the present circumstances.



36 I would adopt the approach taken by Street CJ in Thompson and treat any rehabilitation during such a period as having a significance that might be reflected by a non-parole period which is something less than that which might otherwise have been appropriate had the offender been dealt with at an earlier date. Such an outcome appears consistent with the observations made in Mundy.

Berry stands for the principle that rehabilitation always remains relevant to penalty. It doesn't attract the same amount of weight that it would if the accused went about rehabilitating themselves lawfully, and for reasons of parity, it cannot operate as mitigation where co-offenders who had not absconded were sentenced by the courts long ago.

JPs to go?

Edit: The decision has been made to retain the role and, apparently, the name. A press release was issued from the Attorney-General on 22 Feb 2010.

---

Last month the state government released a consultative paper A Review of Justices of the Peace in Victoria.



There are currently two types of honorary justice in Victoria: JPs and bail justices. It seems that the role of bail justices, volunteers who conduct out-of-hours bail hearings, will survive the imminent reforms to the Bail Act and continue for the forseeable future.



The survival of the office of JP doesn't look to be so likely. The powers of a Justice of the Peace have been restricted more and more over the years. Once, the office was a creature of the common law with vaguely-defined but wide-ranging powers and duties. Half a century ago the functions of a JP were similar to a magistrate's. Since the mid 80s, JPs don't perform any official functions other than the witnessing of documents, a power now granted to many professionals and office-holders.



The discussion paper suggests an abolition of the office altogether. Alternatively, a changing of the title to 'Commissioner for Declarations' (as they are sometimes known in other states) is said to be less potentially confusing. (This might be intended to avoid confusion with the recent invention of the office of Judicial Registrar.)



Submissions on the future of JPs have to be in by the end of the month. Whatever changes are coming are likely to be included in the raft of reforms planned for next year.

Judicial College free feeds

The Judicial College website has been revamped, and now features RSS feeds for updates to its publications.

The actual feed is a little hard to find. Tip: look for the standard feed icon....

The College provides a link to an RSS reader, but I recommend Google's free reader.

Once you subscribe to the feed, any updates to the College's website will be delivered straight to your reader without you needing to remember to visit the site. A great way to keep up-to-date.

Megaphone diplomacy

From January 1 2010, under s 139 of the Evidence Act 2008 a caution against self-incriminination will need to be given to every suspect who an investigating offical believes has committed an offence. If not given, any subsequent admissions may be excluded under s 138 as having been improperly obtained.

That's a change from the current position, where an investigating official must typically possess a power of arrest for the suspected offence before a warning against self-incrimination is required.

The practical effect of this will be to encourage the police to caution against self-incrimination when investigating summary offences.

Most of the time it will be quite clear when such a belief was present. In other cases it will not be obvious if investigators believed an offence had been committed. Suspicion — a less certain state of mind than belief — is insufficient to require a caution: R v Pearce [2001] NSWCCA 447.

Under s 138(1),

(1) Evidence that was obtained—

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

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

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

There then follows a number of considerations for a court deciding this question. Those factors are similar to those in the High Court's decision in Bunning v Cross.

As I discussed here recently, the consequences of unlawful or improper conduct by police are often not dire for the prosecution. They often don't even result in the exclusion of the evidence that the impropriety facilitated.

Though frequently invoked, there's now a substantial number of NSW cases where appellate courts have upheld discretion exercised to allow improperly or unlawfully obtained evidence to be admitted. (Though it's important to recognise that not being excluded by s 138 doesn't mean that evidence can't be excluded under another of the discretions.)

R v Naa [2009] NSWSC 851 is an example. There, NSW police members were tensely negotiating with a man, trying to persuade him to disarm so medical treatment could be provided to his injured (it later became apparent, deceased) partner. The statements made by the accused were inculpatory, and he declined to repeat them when later questioned in a formal interview.

On trial for murder, the accused challenged the admissibility of these inculpatory statements, made without benefit of caution. After discussing the relevant NSW provisions about recording admissions (analagous to custody provisions in our Crimes Act), Howie J turned to non-compliance with 139 of the Evidence Act 1995 (NSW):

[101] I do not believe that the conversation between officer McCarthy and the accused amounted to “questioning” for the purpose of s 139. The questions asked by McCarthy were completely incidental to what she was trying to achieve: to convince the accused to put down the weapons for the safety of himself and others. She was not seeking information from him. She was seeking to distract him, to mollify him and ultimately to persuade him to disarm. No bystander watching the incident would have considered that the officer was questioning the accused. The section was never intended to apply to a siege situation where the police were involved in negotiation rather than investigation.

[102] In any event, even if I were wrong in that view, it does not follow that the absence of a caution means that the evidence should be rejected. Section 138 applies and I am required to undertake a balancing exercise to determine whether “the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained”. In determining that balance I am required to consider relevant matters including those mentioned in s 138(3).

[103] In the present case the substantial majority of those considerations is very strongly in favour of admitting the evidence. There is no doubt that the admissions made by the accused at the scene are highly probative on the charge of murder and very important in the proceedings. They impact significantly upon the two issues that have been identified: intention and substantial impairment. The offence is clearly of very great gravity.

[104] Such contravention as there was by the police in failing to administer a caution is in my opinion relatively minor having regard to the particular facts of this case. The contravention was not intentional: McCarthy never thought of administering a caution because she did not believe that she was questioning the accused in an attempt to obtain admissions. Inspector Winmill believed that a caution would have been inappropriate because it was important that the accused continue to communicate with the police. The contravention was not inconsistent with the rights of the accused under the International Covenant on Civil and Political Rights: see R v Em [2003] NSWCCA 374 at [87].

[105] There will be no other proceedings taken in respect of the contravention. The difficulty of obtaining the evidence without contravention does not seem to me to be a relevant consideration.

[106] The decision whether to admit evidence, notwithstanding that it was obtained improperly, is based upon public policy considerations being weighed against one another. In my opinion the weight of those considerations falls very substantially upon the desirability of admitting the evidence. I do not believe that any other view is reasonably open.

It's likely that impropriety of various kinds by investigating officials will be identified through the application of the new Evidence Act. Whether that leads to the exclusion of the evidence thus acquired is a separate question.

Bar News — already sprung?

I had a gripe back in August about there being no winter edition of the Bar News, and no explanation.

Having seen the publication date for the spring edition also come and go with no change to the Victorian Bar webpage, I contacted co-editor Georgina Schoff and asked her whether something was being readied to roll off the presses.

Already done, I'm told. Copies of the Spring Edition (2009) 147 Vic B.N. are available from the Victorian Bar Office in William Street. I haven't seen it yet, and I can't attach a link to the online version because it's not being made available online.

While I'm glad that publication has resumed, it seems a step backwards not to publish on the Web.

The NSW Bar post their Bar News in PDF format on their website (though admittedly they only publish twice a year, they also do a monthly newsletter for members of their Bar Association, as well as their own version of In Brief). Queensland's Hearsay is only available on-line, and supports a combination of items that you might see in the Bar News and others commonly found in In Brief.

I invite anyone who has seen a copy of the latest edition to share their thoughts.

Lumping to avoid double jeopardy

A very useful judgment for defence advocates was handed down by Appeal Justices Neave, Lasry and Redlich last week in R v Bac Al Nguyen Vu.

It's a common practice in the summary jurisdiction for the prosecution to agree to amend charges on a plea of guilty and reduce the overall number of counts an accused faces. (In some quarters it's referred to as lumping on a plea). Now there's authority for the proposition that it may produce a double jeopardy outcome if they fail to do so.

In Vu, the accused faced the County Court on charges of handling stolen goods. He had received a number of stolen laptop computers at the same time, then resold them individually. Vu entered pleas of guilty to all counts, and was awarded partially cumulative periods of imprisonment.

On appeal, Vu argued manifest excess. Neave JA decided it was unnecessary to decide that question as the record disclosed double punishment:

24 In this case I consider that the individual sentences and the orders made under which one month of each of the sentences imposed on the handling counts was cumulated on each other and on count 29 amounted to double punishment, because they arose out of the applicant’s single act of purchasing the computers from Mr Quang. Accordingly it is necessary to re-sentence the applicant.

Traditionally it would have been considered that each distinct actus reus involved in the on-selling of the goods to different buyers would sufficiently differentiate the charges. It's possible (but not certain) that had the charges been put on the basis of disposal rather than handling their conclusion would have been different. The Court of Appeal did not address this point.

Making the periods of imprisonment concurrent wouldn't have cured the defect: R v Sari [2008] VSCA 137, quoting McHugh, Hayne and Callinan JJ in Pearce v R (1998) 194 CLR 610. Impermissible double punishment may occur even where the effective penalty is not affected.

This case probably won't change what happens in practice much, though it may give the prosecutor some incentive to agree to lump charges. It probably won't lead to a reduction in the number of charges laid, though. At the other end of the spectrum, if charges are drafted which contain more than one offence they may be considered duplicitous (and unless then particularised, invalid).

New magistrates appointed

The Attorney-General today appointed three new magistrates — Susan Armour, Julie O’Donnell and Jack Vandersteen — and two new justices to the Supreme Court — Terry Forrest QC and Dr Karin Emerton.

Amending charges...up!

I've mentioned slaw.ca blog before, and owe this post to slaw's Ontario Court of Appeal on speeding.

It discusses York (Regional Municipality) v Winlow, 2009 ONCA 643.

The case is interesting because it deals with the fairly common scenario where police detect a motorist speeding but book them for a lower speed than they were allegedly travelling at.

In Victoria, the power to amend a summary charge is found in Magistrates' Court Act 1989 s 50 and Criminal Procedure Act 2009 s 8. Those provisions say nothing about increasing the speed alleged (or increasing any other detrimental allegation contained in a charge. But nor is it open slather: amendment applications are typically permitted only when they do not cause unfairness to the accused, or amount to alleging an entirely new offence outside of the statutory limitation period.

The Court of Appeal approved the practice in Ontario of ‘amending-up‘ a charge if the motorist contested the ticket, holding it was appropriate for the prosecution to allege the detected speed rather than the speed the driver was booked for.

The Ontario Court of Appeal considered ticket-undercharging a form of plea-bargaining.

[61] I do not consider it inappropriate when a police officer uses discretion to charge a driver with speeding at a rate less than the actual rate over the speed limit. In a sense it is a form of plea bargaining. Normally, the prosecutor engages in plea bargaining with the defence. If a police officer charged a person with speeding 30 km per hour over the speed limit, and the prosecutor said that the charge would be reduced by 15 km if the person pleaded guilty, no one could seriously object. Plea bargaining by the prosecution and the defence is as essential to the effective working of the provincial regulatory system as it is to the effective working of the criminal justice system.

[62] In this case, the police officer, not the prosecutor, initiated the plea bargaining. Many offending drivers no doubt welcome receiving this “break” from the officer, without having to go to court to obtain it. Systemically, many cases can be disposed of without using valuable court time and resources. Indeed, I expect that the large number of speeding charges, the heavy volume of traffic cases before justices of the peace, and the desirability of finding an efficient way to deal with many of these cases has prompted the practice now before this court.

[63] However, when drivers, as is their right, decide not to plead guilty and pay the set fine, but to instead defend the charge at a trial, different considerations come into play. The prosecutor then has carriage of the charge against the defendant. The prosecutor’s carriage of the charge includes the discretion to manage the prosecution in accordance with the statute.

The Victorian Court of Appeal once frowned on plea or charge-bargaining (though the specific thing it was disapproving was discussion in chambers between advocates and a trial judge): R v Marshall [1981] VR 725.

But since then the legislature, spurred on by the courts, has specifically enacted pre-hearing negotiation provisions, first in Magistrates' Court Act 1989 Sch 2 Clause 3A, and now in Criminal Procedure Act 2009 s 55.

There might be scope then in Victoria for the Canadian practice of amending-up when speeding tickets are contested.

I wonder if the same argument might carry over to the case when the police see someone speeding and, say, not wearing a seatbelt, but only book the driver for the speeding offence. If they elect to challenge the ticket, can the police lay charges for all the alleged offences?

Well done, Chicken!

According to a press release issued last Wednesday, NSW Attorney General John Hatzistergos announced the appointment of John Chicken to the bench of the NSW Local Court.

“Mr Chicken is an accomplished barrister, with 25 years’ experience in the legal profession,” said Mr Hatzistergos.

Since graduating from University of Otago with a Bachelor of Laws in 1983, Mr Chicken has appeared extensively as a criminal advocate in the Local, District and Supreme Court of NSW.

In 21 years appearing in the NSW jurisdiction, Mr Chicken has acted in hearings before the Mental Health Review Tribunal, the State Parole Authority and in statutory commissions.

He also appeared extensively in the Wood Royal Commission into the NSW Police Service and subsequently appeared in numerous Police Integrity Commission and Independent Commission Against Corruption hearings.

In 1999, Mr Chicken commenced practice at the private criminal bar.

“I congratulate Mr Chicken on his appointment and wish him every success in the role,” Mr Hatzistergos said.

“His strong background in criminal law will no doubt be an asset to Local Courts in NSW.”

Mr Chicken will be sworn in as a magistrate on November 2.

Common law spousal privilege

A sequel of sorts to Re an application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381 played out in Federal Court last week. The very different outcome serves as an example of how influential the Charter of Human Rights and Responsibilities Act 2006 has been to Victorian law.

In Stoddart v Boulton [2009] FCA 1108, an application for an injunction was lodged in Federal Court to restrain the Examiner of the Australian Crime Commission from compulsorily examining a woman about matters involving her husband.

The powers of the Australian Crime Commission Act 2004 (Cth) are like the powers conferred by the Major Crime (Investigative Powers) Act 2004 (Vic) in many respects. Section 30(2) of the Act prohibits a witness at an examination from refusing or failing to answer any question put to them.

In the case of Mrs Stoddart, she refused to answer questions on the grounds of spousal privilege, then brought action for an injunction to permanently stay the Examiner from further questioning her. She relied upon a series of obiter remarks in previous cases that strongly suggested the existence of spousal privilege or immunity at common law. The argument was then developed along similar lines to Re Major Crime, though interestingly Chief Justice Warren's decision was not specifically referred to; in the absence of a specific and express intention of parliament, a basic common law right should not be considered to be abrogated (the right in this case being spousal privilege, rather than privilege against self-incrimination through use of derivative evidence).

In the Commonwealth jurisdiction, of course, there is no Charter of Human Rights to re-balance the scales in favour of the protection of the individual. In the absence of such statutory protection, the Federal Court found that spousal privilege was impliedly abrogated by the provisions of the ACC Act:

In particular, whether spousal privilege is derived from self-incrimination privilege, or is a separate and distinct type of privilege based, as Ms Martin submits, on the unity of the family, the ultimate purpose of both is to prevent the husband (in this case) being incriminated. If this is so, it would be perverse, in my view, for the legislature to abrogate the husband’s privilege against self-incrimination in s 30 of the Act, such that he must answer and thereby incriminate himself directly by his own words, and yet, to keep in place his wife’s privilege not to incriminate him (not herself) indirectly by her words. Furthermore, as Mr Cooke QC pointed out, it would be somewhat surprising if the ends of marital and family harmony were to be given a higher level of protection under the Act, than the perseveration [sic] of personal liberty.

(perserveration is, in fact, a word, but in the circumstances I think preservation may have been intended by Reeves J).

This decision reinforces the significance that a proposed Commonwealth Bill of Rights could hold. As Jeremy Gans said on the Law Report, a number of law enforcement mechanisms at Commonwealth level would need to be reviewed if such a Bill becomes a reality.

No point smiling for the camera?

Video surveillance is pretty common these days, and video footage frequently features in forensic forums.

In Hodder v Public Transport Authority [2009] WASC 239 the West Australian Supreme Court considered an appeal from a Magistrates' Court hearing where video footage of the offence was lost. James Hodder argued his conviction was unsafe and unsatisfactory because the video wasn't provided to him for use at his court hearing.

In WA, one ground of appeal from a summary court under the Criminal Appeal Act 2004 s 8(1)(b) is that there was a miscarriage of justice.

Mr Hodder was charged with causing a nuisance to people in the Midland railway station contrary to the Public Transport Authority Regulations 2003 (WA) reg 13.

Transit officers gave evidence there were seven to ten people around when Hodder was swearing.

At the original hearing Hodder claimed there was no one at the station. He had asked for video footage, but the Court was told that footage was only kept for 7 days and had been destroyed after the incident, but before the hearing.

The Supreme Court considered that didn't cause a miscarriage of justice, or grounds to stay a prosecution.

McKechnie J followed R v Edward (2009) 255 ALR 399 (we discussed that case back in May), where the High Court said:

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

He also referred to Police v Sherlock (2009) 103 SASR 147 — what a great name for a criminal case! — where the Full Court of the South Australian Supreme Court said:

[76] ...It has never been the case that a trial is fair only if all potentially relevant material is available to the parties, or at least to the accused person in criminal proceedings. Such a wide notion of fairness cannot be supported by the authorities.

I know of two other cases that deal with a similar point, though they dealt with admissibility of witnesses' oral evidence when video footage was lost, rather than claims of a miscarriage of justice or a permanent stay of proceedings.

The first is Taylor v Chief Constable of Cheshire [1986] 1 WLR 1479. Douglas Taylor was charged with stealing Duracell batteries worth £1.89.

A security officer watching closed-circuit televsion cameras allegedly saw Taylor pick up the batteries, put them in his jacket, turn and glance up at the camera (showing his full face) and leave the store.

That incident was video recorded. The recording was seen by the store manager, two police officers, and the defendant's solicitor.

The tape was returned to the shop, and new security officers later recorded over the footage before the court case.

The defendant argued the witnesses could not give evidence of what they say on the recording because it was destroyed.

The High Court (Queen's Bench division) considered the evidence of what the witnesses saw on a video recording was no different from evidence of witnesses who saw the event directly.

It was therefore not hearsay or inadmissible for that reason. (But, like all evidence, it could vary in its weight, credibility and reliability.)

Taylor was applied by the Queensland Court of Appeal in R v Sitek [1988] 2 Qd R 284. Sitek was playing blackjack at Jupiters Casino on the Goldcoast. He handed the croupier $3000 cash; she mistakenly thought it was $6000, and gave Sitek $6000-worth of chips, and was accused of dishonestly keeping them, knowing they were worth double what he was entitled to.

The transaction was viewed by a camera-surveillance operator, Miss Estreich, over a live video-feed. She was able to give evidence of what she saw over the video-feed, as eyewitness evidence. It didn't matter if a witness saw a transaction directly, or through a telescope or heard it over a telephone. Applying Taylor, nor would it matter if the transaction was recorded or not. Though of course that might affect its weight, credibility or reliability.

Would you like to make a further statement?

Police typically follow template-prompts when interviewing suspects, and usually conclude their interviews with something like:

• You're going to be charged with <offence>
• Do you wish to say anything in answer to the charge?
• Would you like to make a further statement about the allegation?

Occasionally, a suspect decides they do want to make a written statement. Dr Manhattan discussed confirming admissions last month. But what about those rare occasions when a suspect asseverates their guilt in a confessional written statement?

I read a case on this exact point recently, but couldn't for the life of me remember when or where. (Of course, Sod's law I was able to find it after I needed it.)

A couple of cases I found that touched on the point were R v Pace & Conduit (Ruling 1) [2008] VSC 290 (later completed in R v Pace & anor (2008) 187 A Crim R 205) and R v Sindoni [2009] VSC 269.

Sindoni is the subject of Dr Manhattan's post above.

Pace & Conduit considered statements taken by a police officer investigating a death on behalf of the Coroner, at a time when the accused were considered witnesses and not suspects. (Those statements were excluded, but not because of the effect of s 464H of the Crimes Act.)

The case I was really looking for was DPP v Donnelly & Reed (2006) 166 A Crim R 534.

Donnelly and Reed were co-accused jointly tried. Both provided written statements to the police after they were interviewed in accordance with s 464H. The evidence in those statements could only be about themselves or their co-accused, and either way covered by the law governing reception in evidence of admissions.

[24] ...Any evidence he might have given in relation to other persons would have been evidence in relation to his co-accused. Ordinarily, an out-of-court statement made by one accused in the absence of his co-accused is evidence for or against the first accused only, not against the co-accused...

[25] The police say they thought there would not be a problem with admissibility because Mr Reed gave them an undertaking that he would give evidence against his co-accused. I note that no such undertaking was recorded in either of the police officers' notebooks nor mentioned in court on the subsequent bail application. But even if it is accepted that they took the statement on that basis, they did so at their own risk; that is to say, if in fact Mr Reed subsequently chose not to give evidence, experienced detectives ought to have been well aware that his statement would be inadmissible if not recorded.

Donnelly also made a written statement, but it was not recorded. Because the relevance of each was as admissions against the accused or co-accused, they could only be admissible if recorded. That didn't occur, and as there were no exceptional circumstances justifying receipt of the statements as provided in s 464H(2), they were inadmissible.

The position might be different if a single suspect is interviewed and exculpates themself and then provides a written statement, not as a suspect but solely as a witness. I don't know of any cases on that precise point, but I expect the legal position would be as for any other witness, where ordinarily the statement itself wouldn't be admissible but the oral testimony of the witness would. Section 38 of the Evidence Act 2008 will be the most relevant provision in that scenario.

Are you being served?

A charge is the foundation for a summary court's jurisdiction to try an accused person.

The charge must be brought to the accused's notice, by either serving a summons or executing a warrant (or a notice to appear).

Usually, a summons must be served personally as required, though it may be posted in some cases.

But a person who lays a charge always has the option to apply for substituted service when appropriate, under Magistrates' Court Act 1989 s 34(2), or soon, Criminal Procedure Act 2009 s 345, which provides:

345. Order for substituted service

If it appears to a court by sworn evidence, whether oral or by affidavit, that service cannot be promptly effected, the court may make an order for substituted service.

For whatever reason, it's pretty unusual to see substituted service in summary criminal cases. (Well, in my experience anyway.) Part of it might be the general conservatism of the law and prosecuting agencies cautious not to jeopardise prosecutions — especially those that are subject to strict time-limits.

It might also be partly due to the lack of viable alternatives. It's been possible for a decade in Victoria to serve criminal process electronically, under the Electronic Transactions (Victoria) Act 2000 s 8, but validity required consent of the recipient. But, the internet is providing some new options.

Last year Master Harper of the ACT Supreme Court ordered substituted service of a default judgment by Facebook. (But see the comments by Peter Black — from the blog Freedom to differ — and Nick Abrahams.)

In March this year, the New Zealand High Court also permitted service of process using Facebook.

In Help Asteron Life Ltd v Franck [2009] NZHC 450 the NZ High Court granted substituted service on a gmail email address.

And last month slaw.ca reported a Facebook-service order granted by an Alberta court.

(If you've checked the hyperlinks above, you're probably wondering why I'm linking to the web articles and not primary sources: because decisions about service are interlocutory, it's rare to see them dealt with in judgments.)

And The Times Online reports on 1 October 2009 the UK High Court ordered service of an injunction by Twitter!

Will we see criminal courts accept these alternative forms of service in suitable cases?

Not driving; steering

Here in Victoria, the leading case defining the meaning of drive is Tink v Francis [1983] 2 VR 17. That case was decided by the Court of Appeal, and actually considered three separate appeals. The three appeal justices, Young CJ, McInerney and Southwell JJ, gave separate judgments.

In essence, they said that it is a question of fact if a person is driving a car, so earlier cases didn't really provide any definitive test. But, they all agreed that a driver needed to have control over a car's direction and whether it moved or stopped.

Parliament has since inserted s 3AB in the Road Safety Act, which provides:

3AB. Circumstances in which person is to be taken to be driving a motor vehicle

Without limiting the circumstances in which a person is driving a motor vehicle, a person who is steering a motor vehicle which is being towed by another motor vehicle is to be taken to be driving the towed motor vehicle for the purposes of this Act, whether or not the towed motor vehicle has any other means of propulsion and whether or not the person steering it has any control over its means of propulsion.

The South Australian Supreme Court recently considered when a person is driving in Harvey v Police [2009] SASC 302.

In that case, Harvey was the front-seat passenger in a Ford Fiesta. His friend drove a Ford Fiesta to a petrol station, refueled, and went to pay for the petrol. He left the car door open.

Harvey leaned over, with his seat-belt still on, and closed the door. He then turned the ignition key, intending to turn it to accessories so he could turn the radio on. Instead, he turned it one notch too far, to start. The car was in gear, and lurched foward, continued on for about 5 metres (why, doesn't seem to have been explored at the first hearing) and collided with a metal frame at the console-operator's window. Harvey tried to steer the car away from the building, but history records that he was not successful.

Harvey was charged with various driving offences, including driving with more than the prescribe concentration of alcohol in his blood. (He had a BAC of 0.25%! That might have had something to do with the whole episode, including that he didn't try to use the handbrake to stop the car.)

The South Australian Supreme Court considered a number of SA authorities on driving, and drew a distinction between a broader meaning applied in third-party insurance cases, and a narrower meaning applied for criminal cases. Torts lawyers often talk about courts extending or finding liability in certain cases when they know the deep-pockets of insurance companies stand behind the party in a civil proceeding. Most of the reported cases stem from jury trials, so we have no idea what those juries were thinking: but it's probably a fair conclusion. Indeed, the finding of the Supreme Court in this case supports that conclusion.

After canvassing all the authorities, the Supreme Court considered that — for criminal charges at least — intention to drive was not determinitive, but was a relevant consideration. Additionally, because third-party insurance liability schemes now covered passengers in cars (at least in South Australia), courts didn't need to find ways of concluding that someone was driving for people injured by the movement of a car to be entitled to compensation.

That meant it wasn't necessary to give the extended meaning of drive to this case, and Harvey was acquitted of the criminal charges.

This is consistent with Victorian cases such as Woods v Gamble (1991) 13 MVR 153, which hold it's necessary to show a person intends to start or drive a motor vehicle to be guilty of an offence, at least for drink-driving charges.

Licences and international students

The new Road Safety (Driver) Regulations 2009 will take effect on 9 November 2009.

The drafters have made the effort to correct the unwieldly numbering system in the previous regulations (though the (Driver) Regs 1999 had fewer than 50 regulations, the last one in the booklet is numbered Reg 703).

Some steps have also been taken to make the position of driving licences more clear. While they have retained the exception-to-the-exemption-to-the-rule system from the Road Safety (Driver) Regulations 1999, some additional definitions have been provided to clarify the obligations of foreign licence holders.

The Exemption

Section 18 of the Road Safety Act 1986 specifies that all drivers must hold a valid licence. Reg 17 of the Road Safety (Driver) Regulations 2009 provides an exemption to this requirement, provided various requirements are met. Reg 221 of the Road Safety (Driver) Regulations 1999 (which is in very similar terms at new Reg 18) then creates an exception to the exemption to the rule:

18. Exceptions to exemption under regulation 17

(1) A person who holds a driver licence or learner permit referred to in regulation 17 is not exempt, or ceases to be exempt, under that regulation if—

(a) the licence or permit was issued in another jurisdiction or New Zealand and the person has resided in Victoria for a continuous period of 3 months or more; or

(b) the licence or permit was issued in a country other than Australia or New Zealand, and—

(i)the person is the holder of a permanent visa under the Migration Act 1958 of the Commonwealth that was issued when the person was outside Australia and 6 months or more have elapsed since the person arrived in Australia; or

(ii) the person is the holder of a permanent visa under the Migration Act 1958 of the Commonwealth that was issued when the person was in Australia and 6 months or more have elapsed since the visa was issued; or

(c) the person is disqualified from driving a motor vehicle in another jurisdiction or another country; or

(d) the person has had the licence or permit suspended; or

(e) the person has been notified under subregulation (3) that he or she is no longer exempt.

(2) Subregulation (1)(a) does not apply if the person also holds a valid Driver Identification Document issued by the Commonwealth Department of Defence.

The definition of jurisdiction for the purposes of Reg 18(1) is provided at Reg 104 (and is the same in the new Reg 5),

"jurisdiction" means an Australian State or internal Territory;

Why a New South Welshman who stays within our borders for more than 3 months should have to obtain a local licence while a true Welshman does not is not explained in the regulations. Doubtless it has to do with the revenue our nation derives from tourism, business and foreign study, and doing everything possible to make our shores an attractive place for people from overseas to visit.

A person who is not the holder of a permanent visa but does have a valid foreign licence (apart from poor old New Zealand) does not need to obtain a local licence, no matter how long they have resided in Victoria. The VicRoads website states this slightly more clearly than the regulations:

The requirement to change your overseas driver licence to a Victorian driver licence depends on whether your stay in Victoria is permanent or temporary.

If you are in Victoria on a temporary visa, you can drive on your overseas licence (provided it is current and valid) for an indefinite period provided your overseas licence is in English (or you have an English translation or an International Driving Permit).

If you are in Victoria on a permanent visa issued under the Migration Act 1958, you may drive on your overseas licence for three months from the date you first entered Australia or from the time the permanent visa was issued to you (whichever is the later). If you want to continue to drive in Victoria after this time you must hold a valid Victorian driver licence.

Learner Permits

The situation where the holder of an overseas licence is also the holder of a Victorian Learner Permit is more difficult. It has sometimes been said that the holder of a licence or permit is bound by all of the conditions of that licence or permit. While as a general statement that's probably correct, in the case of a Learner Permit I think there's scope to argue that many of the requirements don't apply to a person who holds both a Learner Permit and a valid foreign licence. On my reading of it, the regulations permit the holding of dual authorities (and probably always did).

The relevant provisions are at Regs 213 and 214 (which will become Regs 46 and 47). Both provisions, which require the display of L-plates and the presence of an accompanying driver, apply to a learner driver.

According to the definitions at Reg 104 (and this will remain in new Reg 5):

learner driver means a person who has a learner permit (including an interstate learner permit) and does not have an appropriate driver licence or other permit;

In the new (Driver) Regs a definition of appropriate driver licence or other permit is inserted:

"appropriate licence or permit", for a category of motor vehicle, means a driver licence or learner permit that authorises the holder of the licence or permit to drive a motor vehicle of that category in the jurisdiction or, if issued in another country, the country in which it was issued;

At least arguably, the regulations anticipate a situation where the holder of a Learner Permit is also exempt from holding a licence by virtue of Reg 18. If such a person is considered not to be a learner driver, it follows that regs 213 and 214 do not apply to them.

As I said at the start, this regulatory system is complex. If I were the holder of a foreign licence I wouldn't take the risk; I'd be surrendering my Learner Permit to VicRoads immediately.

The contrary argument (that the holder of a Learner Permit is bound by all the conditions of a learner driver) has been accepted by magistrates in the past. While I don't agree that this is a correct statement of law, that's no guarantee that a court might not do so again.

The final point that needs to be made regards the assertion of an honest and reasonable mistake of fact. If a court finds that an accused is not a learner driver then not obeying the conditions which attach to a learner driver will simply mean no offence has occurred.

However, if the court finds that a holder of a permit is a learner driver, an accused is unlikely to escape the charge although they might have been entirely ignorant of their obligations (or may have even been given the wrong advice by a person in authority). While the belief of the accused may be honest and reasonable it is unlikely to avail an accused of a Proudman v Dayman claim; first, because the offences are arguably of absolute liability (applying the considerations to such offences from Kearon v Grant (1990) 11 MVR 377); and secondly, because the mistake would not be one of fact, but instead a mistake of law: Ostrowski v Palmer.

UKSC blog

I mentioned last month that the new UK Supreme Court hears its first case on 5 October 2009.

The Supreme Court of the United States has a blog run by American lawyers, providing detailed commentary and analysis on cases, and updates readers on pending and newly-filed appeals. (I reckon that our own Supreme Court and High Court are both candidates ripe for something similar. Especially our Supreme Court, because unlike the High Court, it doesn't list upcoming appeals.) That blog, SCOTUSblog referred to the just-launched UKSCblog.

UKSCblog also rated a mention from Times Online Law Central (which now has an everything you wanted to know about the new Supreme Court section), and Canadian blog slaw, also great blogs themselves.

In the Summertime

Victoria moved to Australian Eastern Daylight Time this morning at 2 am.



The legal mechanism for this process is found in the Summer Time Act 1972.

Under s 3 of the Act, the Governor-in-Council proclaims the start and finish of summer time. Currently, this is found in Government Gazette G35, 30 Aug 2007, p 10. The relevant part provides:

1. Subject to paragraph 2, the period of summer time shall commence at the hour of two o’clock in the morning standard time on the first Sunday in October in each year and end at the hour of two o’clock standard time (three o’clock summer time) in the morning on the first Sunday in April the following year.

2. In the year 2007 the period of summer time shall commence at the hour of two o’clock in the morning standard time on the last Sunday in October, being Sunday 28 October 2007.

Although this probably seems a bit twee, it can be significant in some summary criminal matters, especially those involving the use of breathalysers for drink-drive charges. Those instruments must be manually adjusted to account for daylight saving time. If the police forget to do this, it can affect the statutory three-hour period for demanding breath tests under Road Safety Act 1986 s 49. And in cases that occur on the cusp of a new day, it might also affect the correct date of the offence.

Does jail work?

That's a loaded question bound to get a few responses. It all depends on what we mean by 'work', and what we think jail is supposed to achieve.

One stated aim of jail — and any sentencing option — is to reduce offending. Surprisingly, there's not a lot of research to see if jail achieves this or not.

The Australian Institute of Criminology published a paper last week, The specific deterrent effect of custodial penalties on juvenile reoffending. (One of the authors is Don Weatherburn, Director of the NSW Bureau of Crime Statistics and Research (BOCSAR), and renowned authority on sentencing issues.)

The tentative conclusion is that sending children to jail doesn't produce any noticeable affect on re-offending rates.

The authors were careful not to say anything more than that. No doubt they're well aware that jail, and sentencing generally, is used for other reasons too.

In Victoria, the Children, Youth and Families Act 2005 s 362 provides that the Children's Court may sentence for prescribed purposes — including protecting the community — but not punishment or denunciation.

Cases such as DPP v Ty (No 3) (2007) 18 VR 241 (a 14½-year-old child convicted of murdering an 18-year-old boy by penetrating his skull with the steel tip of an umbrella), and DPP v SJK & GAS [2002] VSCA 131 (an 18 and 16-year-old guilty of manslaughter of a 73-year-old woman in her bedroom) are subject to different sentencing considerations because they are dealt with in the Supreme Court, and hence subject to the sentencing considerations in the Sentencing Act 1991 s 5(1).

Legislation Watch: Change to Road Safety Act

According to the Law Institute's website, section 10 of the Road Legislation Amendment Act 2009 came into effect today.

This section amends section 51 of the Road Safety Act 1986. The Explantory Memorandum explains the provision,

amends section 51(1) and (1B) of the Road Safety Act 1986 to decrease the current blood and breath alcohol concentration threshold for immediate licence suspension from 015 grams to 010 grams in the case of a person who holds a full driver licence.

The Justice Legislation Further Amendment Act 2009, recently discussed here, also received assent last week.

Dale on bail

Further Edit: In DPP (Cth) v Barbaro & A-G (Vic)(2009) 20 VR 717 the Court observed that there will be circumstances where the actual or antipated delay of a trial is of such magnitude that risks which would, in other circumstances, be regarded as unacceptable may properly be viewed as acceptable.



Pasquale Barbaro applied for bail again in December of last year, arguing the further passage of time had ameliorated the risk previously found. The Supreme Court didn't agree. It was his fourth application in relation to Commonwealth charges and second in regard to state offences. The judgment of Coghlan J can be found here.

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Edit: Since Dale was handed down, many practitioners making bail applications are seeking to draw similarities with that case. There is certainly nothing unique about people being diagnosed with clinical depression when facing extended periods in gaol awaiting trial, though whether as severe (or the delay as prolonged) as in Paul Dale's case will be what a court will be primarily interested in.



In Re Eileen Creamer, Whelan J adopted the approach of Lasry J in several respects. In particular, in response to counsel Robert Starry's contention that the Charter of Human Rights and Responsibilities Act 2006 changed the applicable tests for bail, His Honour said,

31 It was submitted on behalf of the applicant that the Charter of Human Rights and Responsibilities Act 2006 has relevantly altered the way in which the Court ought to consider the issue of delay in this context. I would again adopted the approach of Lasry J. In In the matter of Dickson Lasry J said, addressing what Bongiorno J had said in Gray:

“What his Honour’s ruling demonstrates is that the Charter has a significant role to play in emphasising the importance of particular rights, but when it comes to the right to be brought to trial without unreasonable delay, that right remains to be considered within the appropriate or relevant provisions of the Bail Act.”

The application in Re Creamer was refused.

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Last week the Court of Appeal gave its reasons for releasing former police detective Paul Dale on bail, in DPP v Dale [2009] VSCA 212.



Previous applications for bail had been unsuccessful; DPP v Dale [2009] VSC 107; re Paul Noel Dale [2009] VSC 332(R).



Interestingly, in the most recent application counsel for the DPP chose to query whether the Court of Appeal was competent to consider an appeal against refusal of bail. It had been decided that no avenue of appeal lay from a refusal of bail in the Trial Division of the Supreme Court in Beljajev's case. But since then a Court of Appeal composed of five justices overturned that historial interpretation, in Fernandez v DPP [2002] VSCA 115. Not surprisingly, the Court in Dale chose to follow the precedent in Fernandez.



Detailed submissions were made about the effect of incarceration on the mental health of the accused. As it had done in R v Benbrika & Ors (Ruling 20) [2008] VSC 80, the Court expressed disquiet over the conditions that high security prisoners are kept in while on remand.