Monday, 30 November 2009

Detailing efforts at rehabilitation

Edit: Another cautionary example of the burden that rests upon the accused on sentence is discussed in the judgment of Maxwell P and Buchanan JA in R v Ververis & Ververis [2010] VSCA 7 where one of the grounds advanced was delay. The Court of Appeal restated the principle in R v Merrett, Piggott and Ferrari (2007) 14 VR 392 that delay does focus attention on issues of fairness and rehabilitation. But the Court concluded that in the absence of specific evidence of either it should not be assumed to have taken place.

There are often very good reasons for counsel not to go into too much detail about mitigatory circumstances on a plea. In the busy Magistrates' Court, where dozens of guilty pleas are heard and finalised in the one sitting, there simply isn't the time (and some would say, need) to engage in the sort of extended analysis more common in the higher courts.

But there are also risks in providing insufficient detail to the court, in any jurisdiction. In R v Harris [2009] VCSA 189, the County Court sentencing judge expressed dissatisfaction with a report that was produced indicating that while remanded in custody the appellant had completed the Salvation Army's Positive Lifestyle Program. The report indicated only that the accused had, "been attentive, punctual, [and] willing to put strategies in place to help him deal with problematic behaviour".

That's the problem I have with Port Phillip and people like the Salvation Army. What's involved? Who carries out the course? How detailed are they? What was the accused's response?

The judge's questions went unanswered, and he subsequently referred to the lack of detail in his sentencing remarks. It was advanced on the appeal that the judge had not given appropriate weight to the appellant's completion of the Salvation Army course. The Court of Appeal rejected the argument.

It's fair to say that the work of the Salvation Army is better known in the summary jurisdiction than at the County Court. Many magistrates would probably find further information about the Positive Lifestyle Program unnecessary.

Even so, there's a plethora of non-government agencies, running courses and providing assistance of various kinds. Courts are entitled to disregard assertions of mitigation if not satisfied about what has been done and what it has achieved.

Saturday, 28 November 2009

Childrens' Court too adversarial?

On Thursday the State Ombudsman tabled his Own motion investigation into the Department of Human Services Child Protection Program.

In the report, Mr Brouwer said,

In my view the appropriateness of a legal system that generates such a degree of conflict ought to be reconsidered by government and an assessment made as to whether better outcomes for children and families could be achieved through an improved model.

According to Thursday's Age, while the Ombudsman had plenty of criticism for the Department of Human Services, he concluded that the low retention rate of child protection staff (leading to a lack of experience and accountability) was in large part due to their experience with the court.

In an account which will surprise nobody who appears in the summary jurisdiction, George Brouwer related the experience of a DHS worker who said all parties have to attend the Children's Court at 10 a.m. But sometimes they are told later in the day that there is no time to hear their matter, and need to come back the following day. This affects the time workers have with families. He cited one case where, over 10 months, there were 16 court hearings and nine court reports completed by DHS about just one family.

The report identifies DHS resourcing as an issue, but also says,

However it may be difficult for any government to adequately resource the child protection program whilst it expends so much of its resources responding to the forensic examination of this activity. Additional resources, without substantial systemic reform, is likely to merely lead to more families becoming caught up in a resource intensive and often counter-productive adversarial process. In my view the government ought to carefully consider whether it is getting the best value for its investment in the child protection system.

There's no doubt that the protection of vulnerable children is an emotive issue. George Brouwer doesn't want a system where children are removed from their parents without some right of review.

The existing system, with all its shortcomings, is probably in for some change.

Friday, 27 November 2009

Charge Book not binding

After the strong support given to the work of the Judicial College by the Supreme Court, it was only a matter of time before an appeal was brought which relied on a departure from the wording of the Victorian Criminal Charge Book as its ground.

In R v Carter [2009] VSCA 272, the trial judge instructed the jury that,

Moreover, the standard to which you must be satisfied is a high one. It is expressed in words which reflect our understanding of the serious nature of the work of the criminal court. Those words are 'beyond reasonable doubt'. They are words which have been applied by juries in criminal courts for many years. They mean what they say, and any further definition of them would be neither useful nor proper.

This direction complies with the observations made by the High Court in Green v The Queen (1971) 126 CLR 28 about unnecessary explanation of what reasonable doubt is (discussed here in April in Beyond Reasonable Doubt).

The Charge Book has a quite different sample jury direction, that reads [in part],

This is the highest standard of proof that our law demands. It can be compared with the lower standard of proof that is required in a civil case, such as where one person sues another for breach of contract. In that situation, matters only need to be proved on what is called the “balance of probabilities”. That is, they need to be shown to be more likely than not.

The Court of Appeal had little patience for the argument, perhaps seeing a tsunami of appeals based on a departure from the Charge Book looming on the horizon. Weinberg JA (Buchanan JA and Coghlan AJA agreeing) said this,

7 Put simply, the applicant contends that the failure of the trial judge to instruct the jury in accordance with the standard direction set out in the Charge Book gave rise to a miscarriage of justice. The submission comes down to this. The jury may have concluded from his Honour's use of the term 'high' that the standard of proof required in a criminal trial is something less than the highest standard of proof known to the law. In addition, the failure to contrast the ‘high’ standard required in a criminal matter with the lesser standard required in a civil case adds to the risk that they might have done so.

8 The argument faces several hurdles. In the first place, no authority was cited in support of the contention that, when speaking of the standard of proof, the term 'highest' had to be used, immediately followed after the words 'standard of proof', by the expression 'known to the law', failing which the trial will have miscarried. Next, no exception was taken to his Honour's charge. Finally, his Honour had, earlier in the proceeding, instructed the jury that there was a presumption of innocence, and that the applicant was entitled to the benefit of that presumption unless and until the prosecution satisfied them, beyond reasonable doubt, of the guilt of the accused.

9 That is not to say that it is good practice or desirable to depart from the time-honoured formula used repeatedly by judges in this State, and elsewhere, and recorded in the Charge Book. It is only to say that a departure from that practice does not of itself signify a miscarriage of justice.

Or in other words, the use of the Charge Book is to be encouraged, but failure to quote from it will not necessarily be condemned. Though the case wasn't cited, Winneke P's comments in DPP v Foster; DPP v Bajram [1999] VSCA 73 [at 29] about the use of meaningless 'ritual incantations' seems appropriate in this context.

Thursday, 26 November 2009

Conflicts of interest

Victoria Legal Aid is the largest 'firm' of solicitors in the state. Though this must carry a number of advantages, one of the downsides is the almost inevitable occurrence of client conflict.

So endemic has the problem become, it's become standard practice to have an alternative practitioner present or on call at sittings of the Magistrates' Court to act on behalf of clients that VLA would typically act for, but a client conflict precludes them from doing so.

From time to time the suggestion is made that VLA policy should be modified to allow VLA to act for both parties to a dispute. Particularly where counsel is briefed, there's some attraction to going down this path.

An article that barrister Mark Bender wrote for the Murdoch University Electronic Journal of Law a few years ago effectively puts the negative case.

(Incidentally, Bender is also a fellow blogger who does excellent work at his site MarkBender.Info keeping his posts 'tweet-sized' for maximum impact).

In Taking up the Cudgels, some recent (sometimes embarassing) examples of failures to recognise glaring conflicts of professional interest are discusssed. The article highlights that it's not just the potential disclosure of confidential information that exists; simply knowing which train a client catches every morning can be useful for the service of process.

Wednesday, 25 November 2009

Selective answering

Section 89 of the Evidence Act 2008 is sure to generate some fresh discussion about whether selective answering can be a valid source of inferences about an accused's consciousness of guilt.

The prohibition on the selective answering of an accused in response to police questioning being used to infer a consciousness of guilt - or at least the impermissibility of jury directions to that effect - is a settled issue: R v Smith, Alford and Schevella 50 A Crim R 434 and R v Russo [2004] VSCA 206. However, s 89(2) of the new Evidence Act will still allow evidence of selective answering for purposes other than to demonstrate consciousness of guilt (such as to provide proper context, as in R v Barrett [2007] VSCA 95).

89. Evidence of silence

(1) In a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused-
(a) to answer one or more questions; or

(b) to respond to a representation-
put or made to the party or other person by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence.
(2) Evidence of that kind is not admissible if it can only be used to draw such an inference.
(3) Subsection (1) does not prevent use of the evidence to prove that the party or other person failed or refused to answer the question or to respond to the representation if the failure or refusal is a fact in issue in the proceeding.

(4) In this section, inference includes-

(a) an inference of consciousness of guilt; or
(b) an inference relevant to a party's credibility.
Evidence can be given that an accused exercised their right to silence, but if this happens the trier of fact needs to be given a direction that the accused's silence cannot be used to infer guilt.

In Woon v R (1964) 109 CLR 529, the selective answering of the accused during police interview was the subject of comment by the trial judge. The High Court decided that the transcript of the interview was admissible and probative. Though it contained some evidentiary value as to facts in issue, its principal value was as evidence of the accused's responses indicative of alleged consciousness of guilt.

Some have difficulty reconciling Woon with the later Victorian authorities. The Court of Appeal have declined the attempt: R v Boros [2002] VSCA 181. The solution probably lies in recognising that it is the answers given, not the silences, which the High Court deemed admissible and probative.

In Woon, Kitto J (Owen J also adopting this reasoning),

The point here is that, whether or not an accused person's reactions to statements or questions put to him in the course of an interview indicate either that he admits any particular fact suggested to him or only in his own mind recognizes that it is a fact, those reactions may have evidential value upon the ultimate question of fact in the case because they show, when considered in the light of the circumstances, that he has a consciousness of guilt of the crime charged. It cannot be that while the jury may be allowed to take account of conduct of the accused person as showing his state of mind upon a subsidiary or primary question of fact they may not take account of it as showing his state of mind upon the ultimate question of fact. In the present case, in my opinion, it was in accordance with law that the jury was invited to consider the significance of the applicant's answers to such questions as he chose to answer and to treat as material upon which to found a verdict any revelation they might think those answers afforded of what they would have discovered upon the question of guilt or innocence if (to repeat the trial Judge's vivid expression) they could have looked inside the applicant's mind.

Taylor J,

Accordingly as I see the present case the primary question is whether it was open to the jury to infer from the words and conduct of the applicant upon his interrogation, viewed in the light of the associated facts proved against him, that he had revealed his guilt, or as the learned trial judge put it, that he had showed or indicated that he was conscious that he was guilty of the crime alleged. The case is somewhat unusual but it does not, in my view, involve the consideration of any important question of law.

Menzies J,

2. Furthermore, although the decisive question for the consideration of the jury in the case against the applicant was whether his answers to the questions which he chose to answer showed his participation in the crime proved by other evidence, I consider that the learned trial judge's direction that the jury should consider whether the applicant's answers indicated a consciousness of guilt was correct for, if those answers did so, then, in the circumstances here, what the applicant said could be regarded as a confession of his guilt notwithstanding that it was not so intended. As his Honour said to the jury, "A man may not intend to show his hand, gentlemen, but on the other hand he may just do that very thing".

Windeyer J,

4. In the present case there was no evidence against Woon other than his answers to the police and his possession of some money, notes, which may or may not have been some of those stolen from the bank. The Supreme Court said that his answers to questions were "selective". They were. But he had been told he need not answer any questions unless he wished to do so. He had replied "you can ask me any questions you like and then I will decide whether or not I will answer them". The interrogation then proceeded. He answered some questions. He refused to answer others. In the result some of his answers appear evasive. Some questions he answered by asking in effect for an assurance that what the other men were said to have told the police had been said in such a way as to implicate him. That is to say, he appeared to be trying to find the strength of the case against him. He carefully refrained from admitting any fact that he thought the police could not prove. In all this he seems to have been cautious and astute. I entirely agree that his answers to questions asked should be considered as a whole, and in the context of his refusals to answer other questions. But could the fact that he carefully chose the questions he would answer justify an inference of his participation in the crime with which he stood charged? He expressed surprise that in their statements to the police the other men should have implicated him. "Do you mean to say that they have put me in." . . . "It just surprises me that they would put me in." Something might turn on the tone of voice in which these things were said. But of that we know nothing. Taken literally the utterances are equivocal. They could be expressions of surprise that his participation in the crime had been disclosed by his confederates, or they could be expressions of surprise at the suggestion that they should have falsely implicated him. In one important matter he told lies. He said at first that he did not know his alleged accomplice Radcliffe. In fact, as later he admitted, he knew him well. Moreover he had sent telegrams to him, using code names and false addresses. These telegrams were apparently expressed in some sort of code. They were certainly capable of leading to an inference that he and Radcliffe were engaged in some secret enterprise. But it seems to me that showing that there was an association - and, let it be assumed, a guilty association - between Woon and Radcliffe does not really show that Woon was a participant, either as principal or accessory, in the breaking, entering and stealing from the bank. The evidence admissible against Woon may support an inference that Radcliffe and he were partners in a criminal enterprise. But does it support a conclusion that, beyond reasonable doubt, Woon was a participant in this crime? I doubt this. However, as I have said, I would refuse leave to appeal.

The combined effect of the decisions in Woon shouldn't be seen as abandoning any long-held legal precept, or even being out of step with later decisions. As Taylor J put it, "[T]he case does not involve the consideration of any important question of law".

Reviewing them, it is clear that the court considered the answers and not the silences to be the probative aspect of the accused's conduct; pressing his interrogators for information about how much they knew, evasiveness, delaying tactics and outright proven lies. This is where the consciousness of guilt is found; in the statements, not the silences.

Someremarks of Windeyer J are the source of the confusion,

3. A question asked of a person accused or suspected of a crime, or a statement made in his presence, is admissible if he is invited to, or might reasonably be expected to, respond in some way indicative of denial or of acceptance. It is not that what is said to the accused can of itself be evidence against him. But his response or reaction may be; and that is why what is said to him is admitted. His words, silence or conduct may amount to an admission of the truth of what was said. This is subject to the qualification that no inference adverse to a man can be drawn from his refusal to answer questions which he has been expressly told he is not bound to answer or from his silence after he has been told he need not speak at all.

The references to, "might be expected to, respond in some way indicative of denial or of acceptance" and, "his ... silence .... may amount to an admission of the truth" are liable to be misinterpreted, drawing attention to what wasn't said rather than to focus on what was. It borrows from the permissible adverse inference that attaches to silence in the face of an accusation made by parties of equal standing, Parkes (1976) 64 Cr App R 25, adopted in Victorian law in R v Alexander (1994) 2 VR 249

If there was confusion about the decision in Woon created by the remarks of Windeyer J (and to a lesser extent, Kitto J), the issue was clarified by Dawson J in Petty v R; Maiden v The Queen (1991) 173 CLR 95:

Of course, in speaking of drawing adverse inferences in Woon, both Kitto and Windeyer JJ. had in mind an admission of guilt, or the disclosure of a consciousness of guilt, to be inferred from the behaviour of the accused. They were not referring to the evaluation of an accused's evidence in the light of his previous silence, if that may be said to involve the drawing of an adverse inference. But I should add that, in my view, if a person remains silent intending to exercise his right to do so, his silence cannot amount to an admission of any kind or display a consciousness of guilt, whether or not a caution has previously been given.

While the principle may be settled, the application of it isn't always consistent. In R v Merlino [2004] NSWCCA 104 evidence of the accused not making an immediate complaint was held to be relevant for the purposes of evaluating a story that was held to be inconsistent, and cross-examination on the issue was held to be appropriate [67 - 77].

Theatrical performances

"All the world's a stage,
And all the men and women merely players;
They have their exits and their entrances;
And one man in his time plays many parts ..."

Jaques (As You Like It Act II, Scene VII, William Shakespeare)

Everyone agrees that good advocacy is a performance. It logically follows that some of the skills and training of actors can be useful to advocates.

In his article Advocacy: Performance of the Law, James E. Smith pulls together and compares these two disciplines. His conclusions may prove useful to advocates still developing their styles, and provide food for thought for more experienced practitioners.

Monday, 23 November 2009

Drinking & driving - no honest and reasonable mistake

Offences under s 49(1)(f) of the Road Safety Act 1986 are absolute liability offences. The assertion of a claim of honest and reasonable mistake has no effect against such a charge: Skase v Holmes (Unreported, Supreme Court of Victoria, 11 October 1995, Vincent J).

In that case, Vincent J aligned drink-driving with the offences of speeding (Kearon v Grant (1990) 11 MVR 377), overloading a vehicle (Welsh v Donnelly [1983] 2 VR 173) and driving without valid car registration (Pilkington v Elliot (Unreported, Supreme Court of Victoria, 26 September 1991, Coldrey J) . The absence of a requirement on the prosecution to prove any intent to a charge of exceeding the prescribed concentration of alcohol has become the accepted law in Victoria. That's been the case for so long, it's difficult to imagine any other legal position being adopted.

You might think a system which allows Proudman v Dayman as a defence would make the enforcement of .05 legislation unworkable. Many drink-drivers would not intend to place themselves over the limit, particularly since alcohol influences judgment. However, many jurisdictions allow a claim of honest and reasonable mistake, and their road tolls, etc. aren't very different to ours.

In NSW, drink-driving is an offence of strict liability. Defences of honest and reasonable mistake are available, and sometimes successful. In DPP v Bone [2005] NSWSC 1239, the accused was found not guilty of drink-driving charges after convincing a magistrate that his beer had been spiked with vodka without his knowledge. The DPP appealed but the magistrate was found to have been justified in his decision.

In Mendolicchiu [2008] NSWDC 182, the District Court considered an accused's claim that he had inadvertently consumed a cough mixture containing alcohol, and that this combined with other alcohol had led to a reading in excess of the prescribed limit. The District Court applied the precedent in Bone, as well as a line of Tasmanian authority, and quashed the conviction.

I emphasise that such defences would not succeed if argued in Victoria. But our law could easily have gone the other way.

Sunday, 22 November 2009

Google is coming ...

Google announced on its homeblog last week that it's getting into the law business in a big way.

Is this good news? We don't know. In the short-term, Google moving into the neighbourhood will probably free up access to US law for lawyers and non-lawyers alike, as happened in other countries thanks to free access movement members like AustLII and BAIlII.

Taking the longer view, more than a few people are saying this is the last nail in the coffin for commercial subscription services. Eventually, they might even put pressure on the free access services that rely upon donations and sponsorship for their continued existence.

Another player in the law information field is always welcome. An information monopoly isn't.

Wednesday, 18 November 2009

Improper questions

At the Chancellor's Lecture last week, former Court of Appeal judge Charles Stephen QC made reference to improper questioning in cross-examination. He made specific mention of Heydon J's comments in Libke v R (2007) 230 CLR 559. I read the case for the first time this week.

The Evidence Act 1958 has allowed a broad discretion in the way that questions are asked in cross-examination. Questions may be objected to if indecent or scandalous (s 49), or if considered intended to insult or annoy (s 40). In my experience, these provisions are rarely called upon.

The new Evidence Act 2008 is similar, though s 41 does provide that improper questions must be disallowed if asked of vulnerable witnesses, defined as children and the cognitively impaired. (A summary of the changes to statutory improper questioning can be found on page 4 of the Spring edition of the Bar Quarterly, where Stephen Odgers SC provides a rapid-fire description of some of the changes).

Other than these provisions there aren't many general rules placed on the way questions are asked. There are lots of evidentiary restrictions - hearsay, privilege, opinion, etc - and common law discretions which allow courts to restrict the evidence they receive, but in practice a wide latitude is given to practitioners in the way they conduct their cross. As the High Court recognised in Wakeley and Bartling v The Queen (1990) 93 ALR 79, “the limits of cross-examination are not susceptible of precise definition”: Mason CJ, Brennan, Deane, Toohey and McHugh JJ at 86.

Unfortunately, there's an altogether too common misconception which is often found at both ends of the bar table that, while examination-in-chief is governed by rules and expectations of propriety, cross-examination is open slather. But cross-examination that merely abuses and confuses a witness is not effective advocacy, no matter how dramatic it might be to watch.

In Libke, the accused stood trial for rape of an intellectually impaired woman. He called himself as a witness and was cross-examined by the Crown prosecutor. The questioning serves as a template of what not to do in cross-examination, whether acting as counsel for the defence or the prosecution. While all four justices criticised the cross-examination in strong terms, Heydon J grouped each form of inappropriate questioning under its own heading. What follows is a long quote, but I think it effectively summarises some of the most common traps cross-examiners fall into [beginning at 121]:

Offensive questioning

The most striking characteristic of the cross-examination in this case was its wild, uncontrolled and offensive character.

A prosecutor must "conduct himself with restraint and with due regard to the rights and dignity of accused persons. A cross-examination must naturally be as full and effective as possible, but it is unbecoming in a legal representative - especially in a prosecutor - to subject a witness, and particularly an accused person who is a witness, to a harassing and badgering cross-examination." One reason why there is a rule prohibiting this type of questioning was put thus by Wigmore:

"An intimidating manner in putting questions may so coerce or disconcert the witness that his answers do not represent his actual knowledge on the subject. So also questions which in form or subject cause embarrassment, shame or anger in the witness may unfairly lead him to such demeanor and utterance that the impression produced by his statements does not do justice to his real testimonial value." (emphasis in original)

Another was advanced by Lord Langdale MR when he deprecated "the confusion occasioned by cross-examination, as it is too often conducted", for it tended to "give rise to important errors and omissions". Yet another was suggested by an American judge: "a mind rudely assailed, naturally shuts itself against its assailant, and reluctantly communicates the truths that it possesses."

In this case the questioning was conducted "without restraint and without the courtesy and consideration which a witness is entitled to expect in a Court of law", and, as a result, it was "indefensible". The cross-examination was improper because it was "calculated to humiliate, belittle and break the witness". Its tone "was often sarcastic, personally abusive and derisive". It resorted to remarks "in the nature of a taunt". It amounted to "bullying, intimidation, personal vilification or insult", none of which is permissible.

The cross-examination not only offended these common law rules. Many of the questions were annoying, harassing, intimidating, offensive or oppressive, contrary to s 21 of the Evidence Act 1977.


The cross-examination also contravened the rules of evidence in that many things said by the cross-examiner were not questions at all. To adopt the language of the Ontario Court of Appeal, counsel for the prosecution infringed the rules of evidence when he "regularly injected his personal views and editorial comments into the questions he was asking". One vice of comments made in the course of questioning is that although they may be potentially damaging in the jury's eyes, they are not questions, and thus the witness has no opportunity of dealing with the sting in the comments. Another vice is that the jury may regard counsel as a person of special knowledge and status and therefore pay particular regard to the comments - particularly where it is counsel for the prosecution who chooses "to throw the weight of his office" into the case. The time for comments, at least legitimate ones - for disparaging comments based on evidence or the lack of it can be legitimate - is the time of final address. "Statements of counsel's personal opinion have no place in a cross-examination." The role of prosecution counsel in the administration of justice should not be "personalized". Their own beliefs should not be "injected" into the case. Thus in R v Hardy junior counsel (the future Gibbs J) for one of the accused asked a witness who had attended certain allegedly seditious meetings: "Then you were never at any of those meetings but in the character of a spy?" The future Lord Ellenborough CJ, appearing for the prosecution, objected to this line of questioning. Eyre LCJ said to defence counsel:

"[Y]our questions ought not to be accompanied with those sort of comments: they are the proper subjects of observation when the defence is made. The business of a cross-examination is to ask to all sorts of acts, to probe a witness as closely as you can; but it is not the object of a cross-examination, to introduce that kind of periphrasis as you have just done."

After junior counsel for the accused sent for leading counsel (the future Lord Erskine LC), and the point was debated further, Eyre LCJ upheld the objection:

"I think it is so clear that the questions that are put are not to be loaded with all of the observations that arise upon all the previous parts of the case, they tend so to distract the attention of every body, they load us in point of time so much, and that that is not the time for observation upon the character and situation of a witness is so apparent, that as a rule of evidence it ought never to be departed from ...".

Comments are particularly objectionable when they are sarcastic or insulting. They are even more objectionable when they are statements indicating the personal belief of prosecution counsel in the credibility or guilt of the accused: that is not something to be said in address, and a fortiori is not something to be said during questioning.

Compound questions

Partly by reason of the interspersing of both comments and questions between the accused's answers, and partly by reason of other defects in the form of the questions, some "questions" asked during this cross-examination were not single questions, but were compound questions. "A compound question simultaneously poses more than one inquiry and calls for more than one answer. Such a question presents two problems. First, the question may be ambiguous because of its multiple facets and complexity. Second, any answer may be confusing because of uncertainty as to which part of the compound question the witness intended to address." But compound questions have additional vices. It is unfair to force a witness into the position of having to choose which questions in a compound question to answer and in which order. Cross-examiners are entitled, if they can, to frame questions so as to seek a particular answer - either "Yes" or "No". Even though the answers desired by the cross-examiner to a compound question may be all affirmative or all negative, the witness may wish to answer to some affirmatively and some negatively. To place witnesses in the position of having to reformulate a compound question and answer its component parts bit by bit is unfair to them in the sense that it prevents them from doing justice to themselves. Some "questions" asked in this case contained at least four questions within them.

Cutting off answers before they were completed

On occasion during his cross-examination the accused's answers were cut off either by a comment or by some further question even though it was clear that there was more which the accused wished to say. "Evidence should ordinarily be given without interruption by counsel." The cutting off of an answer by a further question, though always to be avoided as far as possible, can happen innocently when a questioner is pursuing a witness vigorously and the witness pauses in such a fashion as to suggest that the answer is complete; it can happen legitimately if a witness's answer is non-responsive. But very few of the interruptions here can be explained away on these bases. They were usually interruptions of responsive answers, often by offensive observations. The rule against the cutting off of a witness's answer follows from the encouragement which the law gives to short, precise and single questions. It is not fair to ask a question which is disparaging of or otherwise damaging to a witness and to cut off an answer which the cross-examiner does not like. The right of a cross-examiner to control a witness does not entail a power to prevent the witness from giving any evidence other than that which favours the cross-examiner's client.

Questions resting on controversial assumptions

The cross-examiner on occasion alleged that the accused was inventing evidence when in fact the proposition supposedly invented corresponded with evidence given by the complainant in the prosecution case. The cross-examiner also put implicitly unfounded assertions that the accused was being evasive. And the cross-examiner, in putting a question about the accused's dishonesty, wrapped up in it an assumption that there had been an earlier and different piece of dishonesty.

A question put in chief which assumes a fact in controversy is leading and objectionable, "because it affords the willing witness a suggestion of a fact which he might otherwise not have stated to the same effect." While leading questions in the cross-examination of non-favourable witnesses are not intrinsically objectionable, "[w]itnesses should not be cross-examined on the assumption that they have testified to facts regarding which they have given no testimony. Such questions have a tendency to irritate, confuse and mislead the witness, the parties and their counsel, the jury and the presiding judge, and they embarrass the administration of justice." This is because a leading question put in cross-examination which assumes a fact in controversy, or assumes that the witness has in chief or earlier in cross-examination given particular evidence which has not been given, "may by implication put into the mouth of an unwilling witness, a statement which he never intended to make, and thus incorrectly attribute to him testimony which is not his." A further vice in this type of questioning is: "An affirmative and a negative answer may be almost equally damaging, and a perfectly honest witness may give a bad impression because he cannot answer directly, but has to enter on an explanation." Questions of this character are misleading and confusing, within the meaning of such the statutory and common law rules.

Argumentative questions

Another vice in the questioning in this case stemmed from the fact that some of the questions and observations of counsel for the prosecution did not seek to elicit factual information, but rather provided merely an invitation to argument. Examples include: "That doesn't tell us much, does it?", "Look, I'm giving you every opportunity?", "I'll shift to another topic whenever you're prepared to finish it", and "We want honesty at all times, of course". In form these remarks seemed apt to trigger a debate about how much the accused's hearers had been told, whether he was being given every opportunity, whether he had finished a topic, and whether he was being honest. The vice in a particular type of argumentative cross-examination was described thus by the English Court of Appeal:

"One so often hears questions put to witnesses by counsel which are really of the nature of an invitation to an argument. You have, for instance, such questions as this: 'I suggest to you that ...' or 'Is your evidence to be taken as suggesting that ...?' If the witness were a prudent person he would say, with the highest degree of politeness: 'What you suggest is no business of mine. I am not here to make any suggestions at all. I am here only to answer relevant questions. What the conclusions to be drawn from my answers are is not for me, and as for suggestions, I venture to leave those to others.' An answer of that kind, no doubt, requires a good deal of sense and self-restraint and experience, and the mischief of it is, if made, it might very well prejudice the witness with the jury, because the jury, not being aware of the consequences to which such questions might lead, might easily come to the conclusion (and it might be true) that the witness had something to conceal. It is right to remember in all such cases that the witness in the box is an amateur and the counsel who is asking questions is, as a rule, a professional conductor of argument, and it is not right that the wits of the one should be pitted against the wits of the other in the field of suggestion and controversy. What is wanted from the witness is answers to questions of fact."

Like several other of the rules discussed above, the rule against argumentative questioning rests on the need not to mislead or confuse witnesses.

The effect of the rules on the value of testimony

It is not unique in the law of evidence to find that the more closely the rules for admissibility are complied with, the greater the utility of the testimony from the point of view of the party eliciting it. It is certainly the case in this field. The rules permit a steady, methodical destruction of the case advanced by the party calling the witness, and compliance with them prevents undue sympathy for the witness developing. It is perfectly possible to conduct a rigorous, testing, thorough, aggressive and determined cross-examination while preserving the most scrupulous courtesy and calmness. From the point of view of cross-examiners, it is much more efficient to comply with the rules than not to do so.

Specific criticism was reserved for the trial judge who rarely interjected during the cross, and when he did so didn't act to curtail the unfair questioning. The High Court found that the failure of counsel to object to the questioning did not remove the obligation of the presiding judge to ensure a fair trial.

Stephen Charles made the point that improper questioning (of a serious degree) may lead to an unfair trial, an outcome that the trial judge is bound to prevent. It may lead to a conviction being set aside on appeal, and may also have human rights implications.

In R v TA (2003) 57 NSWLR 444, Chief Justice Spigelman made clear that similar duties attach to trial judges to prevent inappropriate and harassing questions being asked of prosecution witnesses [at 446]:

Judges play an important role in protecting complainants from unnecessary, inappropriate and irrelevant questioning by or on behalf of an accused. That role is perfectly consistent with the requirements of a fair trial, which requirements do not involve treating the criminal justice system as if it were a forensic game in which every accused is entitled to some kind of sporting chance.

Tuesday, 17 November 2009

Social News now online

The Spring edition of the Victorian Bar News is now available online.

It came out over a month ago, and I may not have noticed it being posted on the Bar's homesite for a few weeks. I had a bleat here about there being no electronic version soon after it was printed.

The editors explain,

The first thing you will notice is that Victorian Bar News looks different and has undergone some significant changes since the previous edition (No. 146 Summer 2008/2009).

Earlier this year, as a consequence of a Bar Council review of the Victorian Bar’s overall communications and publications policy, which included the Victorian Bar News, it was decided that the Victorian Bar would henceforth publish two periodicals to replace the single publication that was the Victorian Bar News in its earlier format.

Our brief is to publish a quarterly magazine reporting on the social and professional life of the Victorian Bar. We understand that the other soon-to-be released publication will be edited by Dr Ian Freckleton SC and will be a more academically orientated journal focussing on recent and important developments in the law and legal practice of interest to counsel practising at the Victorian Bar.

Professor Freckelton (holder of one of the most commonly misspelt surnames at the Bar) is already the editor of the Journal of Law and Medicine. The Winter edition of Thomson's Bar Quarterly (a brochure for their products) suggested his new effort will be called the Victorian Bar Review. I haven't heard of a release date yet.

Parliament passes amendments

We mentioned a while back about transitional legislation for the Evidence Act 2008 and Criminal Procedure Act 2009, in our posts Transitional legislation arrives Part 1 and Part 2.

Parliament passed those Bills — which also substantially amend the principal Acts — last week on Friday 12 November. All that remains is for Royal Assent. The amending Acts commence operation on 1 January 2010 at the latest.

I'm still betting on reprints for the new acts before they commence operation, based on nothing other than my own hunch and the sheer number and breadth of amendments!

We hope to start producing a little more detailed information soon, particularly for the Criminal Procedure Act as it will relate to summary hearings.

Monday, 16 November 2009

Judicial complaints and concerns

Edit: Since writing this I've stumbled across Ron Sackville's recent article, Judicial Ethics and Judicial Misbehaviour: Two Sides of the One Coin? in the Journal of Law and Social Science.

It traces the development of the NSW Judicial Commission and places it in historical context (if Lionel Murphy was Victorian it's at least arguable that we would have had such a body first).

The article also refers to the Guide to Judicial Conduct, a non-binding attempt to give the judiciary practical guidance on ethical issues, sanctioned by the Australian Council of Chief Justices. I found this copy on the AIJA's website, and will have to remember to put finger to keyboard next year about this organisation of increasing significance.

In July, Chief Magistrate Ian Gray leant his support to reform complaint-handling procedures against judicial officers. It followed a number of high-profile incidents, most notably the resignation of a magistrate following doubts about the accuracy of statutory declarations she had submitted concerning speeding fines.

With another magistrate currently taking leave pending the outcome of an investigation into his conduct, criticism of the existing system is inevitable. Currently, whether investigation into a complaint should occur and the form it should take is a matter left up to the head of each of the respective courts, a difficult task for a judicial officer who is merely a 'first amongst equals' with little actual power over their colleagues. There are no formal processes for dealing with less serious conduct that does not warrant removal from office.

Chief Justice Marilyn Warren also accepts the need for review of the system but publicly rebuked Attorney-General Rob Hulls for his comments on the issue. Apparently she doesn't like members of the executive branch saying publicly that judges should maintain the same high standards expected of other public officials.

The next step in the reform process was the release of a DOJ discussion paper last week, Investigating Complaints: Concerns Regarding Judicial Conduct.

The paper puts forward three broad alternative proposals:

1) do nothing

2) formalise or bolster the powers of heads of courts

3) create an independent complaints and investigative body

The clear front-runner preferred by government is a NSW-style Judicial Commission that will take on the responsibilities to make recommendations regarding remedial action and education for minor judicial misconduct. Similar bodies exist in Canada, India and the US. The conduct of hearings is similar to a Royal Commission, and the commission takes no final action itself but merely reports its findings to Parliament.

In NSW, the head of the Judicial Commission is the Chief Justice of the Supreme Court. Despite this, according to the report,

[w]hen the Bill to establish the NSW Judicial Commission was introduced, the Justices of the NSW Supreme Court issued a public statement that said in part: “The Bill has the potential to reduce the Judiciary to disciplined subservience. The right of the private citizen to have justice administered ‘without fear or favour’ is placed at serious risk”.

Concerns that the NSW Commission would be used to harass and persecute judges have
not been borne out. The success of the NSW model provides a powerful argument in favour of the establishment of a similar system in Victoria.

A major benefit of the NSW Commission is that it also performs an educative function
and this has contributed to the acceptance of its role.

The NSW Judicial Commission has been in place for 20 years. As well as an investigative function, the Commission also plays the roles which are fulfilled here by the Judicial College of Victoria and the Sentencing Advisory Council.

Submissions about the future of judicial complaints-handling must be in by 18 December 2009.

Drug Court

The usual process for justice sector reform has been fairly predictable in recent years; unveil a new initiative in one or two locations, wait for a year or so until the details are bedded down. then expand it to other places.

Drug Court has bucked that trend. Introduced at Dandenong in 2002, it has yet to be introduced across the board - or anywhere else, for that matter.

The Drug Court was profiled on the Law Report a couple of weeks ago.

Once heralded as the flagship "problem-solving criminal court" of the future, the statistics indicate that around 30% of people on the Drug Court program successfully complete it. Those who do have frequently continued to commit minor crime and continued to use drugs without having their Drug Treatment Order revoked. In the first year of its operation, only 6% of people on the program tested negative for illegal drugs 90% of the time or more.

The government apparently doesn't consider the program sufficiently successful to expand it elsewhere. On the Next Generation Courts page of the DOJ website, the CISP program, Diversion and Family Violence initiatives are referred to, but Drug Court is not.

Has anyone out there got some hands-on experience of the workings of Drug Court? What do you think about the program?

Friday, 13 November 2009

Human Rights and the European Convention

Together with a few hundred others I struggled through the oppressive heat on Tuesday evening to attend Parkville for the eighth annual Chancellor's Human Rights Lecture.

As it turns out, I shouldn't have bothered. Not that Stephen Charles QC didn't read a thought-provoking paper; he did, although the time constraints and breadth of what he wanted to cover prevented any detailed exploration of the issues he raised. But it turns out that the whole thing has been made available on the Web anyway - here - so you don't have to go through the discomfort I did to see it.

Most of the oration of the former judge of the Court of Appeal centred on an analysis of the potential application of decisions of the European Court of Human Rights in interpreting our own Charter. There was enough material there to launch a dozen posts, and at least a few in the coming weeks will have his lecture as their inspiration.

Stephen Charles referred to a paper prepared by Brian Walters SC and Simon McGregor The Charter of Human Rights and Responsibilities: A Practitioner’s Guide as a valuable aide to understanding the Victorian Charter. As a potted history of human rights development and a general overview of the Act, the paper makes a worthwhile read. For a more critical overview of the Charter, see Jeremy Gans' Evidence Law Under Victoria's Charter (and, of course, his Charterblog).

Thursday, 12 November 2009

WA Law: proof of facts on sentence

An addition to the body of law on the burden and standard of proof applicable to sentencing hearings appeared over the wires from Western Australia yesterday: Law v Western Australia [2009] WASCA 193

It borrows heavily from our own R v Storey [1998] 1 VR 359. The prosecution have to prove aggravating facts in a sentencing hearing beyond reasonable doubt. The defence have to prove mitigating facts on the balance of probabilities. The parties are obliged to lead admissible evidence if the other party disputes an assertion made from the bar table, or the sentencing judge refuses to accept it.

In Law v WA, a burglary occurred at a garden tool shop overnight. The offender(s) went in through the roof, disabled the alarm system and cleaned the place out. The accused was identified as a suspect via a palm print found in the roof space. He opted for an early plea and at his sentencing hearing his lawyer put to the court,

My client was in desperate need of money at the time.

His instructions are as follows in respect of the incident per se. He had been travelling to his residence when he saw a silhouette of two persons on the roof of the building referable to this burglary. Incidentally, your Honour, his recollection of the time is somewhat different from that on the material facts. He thought it was later, about 10-ish or so in the evening.

He returned to his home, thinking about what he had seen and no doubt appreciating that those two people were getting into the place. He resolved to return and did return to the premises with another. He made his way to the roof and found the cavity and followed it, finding his way ultimately to the showroom.

He and the other took items of an electrical nature from the showroom but my instruction further is that some other items were clearly - clearly items already on the list as described by my learned friend had been taken. Specifically, my client took a mower for his - that he particularly took by himself and a couple of other items of electrical - a couple of other electrical items. He ultimately took those items to a pub and sold them. The money that he received went towards unpaid debts as disclosed.

The prosecutor advised the sentencing judge that the State did not accept the facts as put by the accused's counsel. He made further submissions challenging the accused's account, and pointed out that it was unlikely, had the accused committed a separate burglary unrelated to the one where the majority of items had been stolen, that he would have chosen to make his entry through the roof, rather than the large roller-door which had been left open once entry had been gained.

The judge did not expressly say that he was rejecting the accused's account, but proceeded to impose just over two years immediate imprisonment. The accused appealed, arguing that the judge should not have rejected his version of events as it had not been disproven.

The WA Court of Appeal refused the appeal, noting that no evidence had been called in support of the accused's story, either.

41 The sentencing hearing bears the hallmark of a strategic decision by the appellant's counsel to secure a significant discount on the appellant's sentence for his fast-track plea of guilty, and then to endeavour to mitigate the seriousness of the offence by advancing a version of events from the bar table in the hope that it would weigh favourably on the mind of the sentencing judge, without exposing the appellant to the palpable risks of giving sworn evidence.

After the introduction of the Evidence Act 2008 here next year, s 4 provides that the rules of evidence will apply to sentencing hearings on the application of a party to the proceeding and when the presiding judicial officer considers it to be in the interests of justice.

Wednesday, 11 November 2009

Interim intervention orders and natural justice

The statutory scheme for dealing with complaints of family violence is set out in the Family Violence Protection Act 2008. Case law concerning the operation of this new Act is still rare.

Some magistrates (who are tasked with applying the Act by considering applications for intervention orders) express disquiet over the way the system operates. Orders are commonly made in the absence of the respondent, one of the people most directly affected by the granting of an order. In many cases when the respondent does attend court to object to the making of an order, they are either not in a position to, or are expressly not permitted to, call evidence on their behalf before an interim order is made. For some magistrates, who themselves studied and practiced law under a different set of rules, this sometimes appears contrary to long-standing principles of procedural fairness.

Of course this is also a view shared by many respondents, though few challenge the decision of a magistrate to grant an intervention order. Avenues of review lie both to the County Court under Division 9 and also to the Supreme Court in its common law jurisdiction to issue writs of certiorari and mandamus.

In Zion-Shalom v Magistrates' Court of Victoria at Heidelberg (No 2) [2009] VSC 477 the respondent challenged the making of an interim intervention order on two grounds.

First, he argued that as a matter of fact he was not and never had been a family member of the complainant, who was merely a residential co-tenant and business associate. This was contrary to what the complainant had stated, which was that the relationship had been of a sexual nature (though this had finished by the time that events leading to the complaint occurred).

Harper J rejected the submission that this was something the magistrate needed to resolve before making an interim order:

6 I do not agree that her Honour, sitting at the Magistrates’ Court at Heidelberg - which exercises the family violence jurisdiction conferred by s.4H of the Magistrates Courts Act – did lack jurisdiction. It is not in contention that, pursuant to s.26 of the Family Violence Protection Act, a family violence safety notice was issued by an appropriately senior member of Victoria Police. By s.31, such a notice is taken to be an application by the police for a family violence intervention order for the alleged victim against the alleged perpetrator of violence. It is also by that section taken to be a summons for the latter to appear in the Magistrates' Court on a date stated in the notice. Once those preconditions have been fulfilled, the Magistrates' Court has jurisdiction to determine the application. Indeed, it is provided by s.51(1)(c) [I believe His Honour intended to refer to s 53(1)(c)] of the Act that the court may make an interim intervention order if a family violence safety notice has been issued for an affected family member and the court is satisfied, on the balance of probabilities, that there are no circumstances that would justify discontinuing the protection of that person until a final decision about the application. The court does not have to ask itself whether the person for whom the notice is issued is properly within the category of an affected family member, because by s.4 of the Act one of the definitions of such a person is "a person the subject of an application for a family violence intervention order to protect the person or the person's property".

7 In this case it is not contested that the alleged victim was a person the subject of such an application. The conditions for jurisdiction were therefore made out. Accordingly, the magistrate had jurisdiction to make an interim order, and indeed had no option but to deal with the application. This ground for my making an order in the nature of certiorari must therefore fail.

The second ground advanced was an absence of procedural fairness occasioned by the refusal of the magistrate to allow the respondent to call evidence on the interim application.

8 It is next submitted on behalf of the plaintiff that he was not accorded procedural fairness or, to adopt the now almost discarded description, natural justice. His counsel, acting as his mouthpiece, was permitted to put orally to the magistrate the evidence which it was anticipated he would give were he to be called; but he was not allowed to be called himself, and his counsel was not allowed to cross-examine the alleged victim. The magistrate explained her position by saying that she did not have time to follow that course. The plaintiff does not suggest that her Honour’s explanation was inaccurate.

9 The Act explicitly provides, by s.54, that an interim order may be made whether or not the respondent (that is, the alleged perpetrator) has been served with a copy of the application for a family violence intervention order and whether or not the respondent is present when the interim order is made. It follows that an interim order may be made without hearing the respondent.

10 The plaintiff nevertheless submits that if he is present he must be heard. This submission encounters an immediate problem. It is clear that on an application for an interim order a full hearing is not necessary. Indeed, it may not be possible or even appropriate. Where, then, is the line to be drawn? In this case, a magistrate allowed some five minutes for counsel to obtain instructions from the plaintiff. Counsel then put to the magistrate what, on those instructions, the plaintiff would have said in evidence in chief had he given evidence. It follows that the plaintiff was given a hearing of sorts, albeit not one which would satisfy the criteria as laid down by the authorities for a fair trial. But – and the distinction is vital - an application for an interim intervention order is not a trial.

11 The importance of the distinction is reflected in the legislation itself. A final order may only be made if the court is satisfied on the balance of probabilities that the alleged perpetrator has committed family violence against the affected family member and is likely to do so again: s.74(1). By contrast, s.53 provides for a number of circumstances in which an interim order may be made, including those set out in s.53(1)(c). As I have already noted, this provides that the court may make an interim order if a family violence safety notice has been issued for an affected family member and the court is satisfied on the balance of probabilities that there are no circumstances which would justify discontinuing the protection of the person until a final decision about the application. Again, there is no obligation upon the affected family member (that is, the alleged victim) to give evidence before the interim order is made: s.55(2). In addition a registrar of the court must give both the alleged perpetrator and the alleged victim a written explanation of the interim order: s.57(1). That explanation must cover a number of matters, including the means by which the interim order may be varied or extended and the process for deciding the final order. If an interim order is made, the court must ensure that the hearing is listed for a decision about the final order as soon as practicable: s.59. Finally, by contrast to the position on the hearing of an application for an interim order, a contested application for a final order may be heard on an a mention date, but only if: (a) the court is satisfied that all the parties to the proceeding have had an opportunity to seek legal advice and legal representation, and have consented to the hearing of the contested application on the mention date; and (b) it is fair and just to all parties to hear the application on that date: s.61(1).

12 An important conclusion, which I think necessarily follows, is that the legislation does not require, before an interim intervention order may be made, that any alleged family violence be proved. In this case, once the magistrate was satisfied that the appropriate family violence safety notice had been issued for a person the subject of an application for a family violence intervention order to protect that person, she only had to be satisfied of one other thing; namely, that there were no circumstances that would justify discontinuing the protection which the notice gave to that person. In this case, her Honour was so satisfied, albeit on material that would not allow her, were she hearing a proceeding for a final order, to be satisfied to the requisite standard that the plaintiff had committed family violence against the alleged victim.

Harper J also referred to the comments of the Attorney-General where he outlined the intent of the Act in parliament. His Honour concluded,

It is not for the court to prescribe, as conditions necessary if procedural fairness is to be accorded, conditions which are inconsistent with those prescribed by parliament. It seems to me that, were I to accede to the plaintiff's application for certiorari, I would fall into that trap.

His Honour reasoned that, since the statute expressly provides that an application can be heard and granted in the respondent's absence, there was nothing unfair about refusing the respondent's request to call evidence or cross-examine.

The application for certiorari and mandamus was refused.

Tuesday, 10 November 2009

No place for Maximus on the Bench

Dr Manhattan Edit: For a more recent example of apparent bias, see Mogan Holdings Pty Ltd & Anor v Harrison [2011] VSCA 202.

The Court of Appeal recounted this unique exchange [at 16]:

Her Honour (to witness): ... You just said ‘I would’ve expected to see more acute changes had there been trauma’. Now, had there been trauma on that day from a door or something like that, you would’ve expected to see acute changes, and you saw no such acute changes?

Mr Middleton: I object to that question, your Honour.

Her Honour: Excuse me, I’m the finder of fact here, Mr Middleton. You don’t object to my question.

Mr Middleton: Your Honour –

Her Honour: I have to understand what the witness is saying.

Mr Middleton: I am objecting, your Honour, because ... you are putting a proposition to the doctor which calls for a conclusion which is deliberately weighted in favour of the plaintiff.

Her Honour: It is not deliberately weighted. You have made your objection it’s recorded.

(Her Honour proceeded to ask Mr Crock a number of questions including some leading questions.)

A new trial was ordered for this and other reasons.

Certainly some frank and fearless advocacy from the defendant's counsel, perhaps worthy of some kind of valor award.

If you're a fan of director Ridley Scott, you might remember his epic movie Gladiator, starring Russell Crowe as the Roman general Maximus, betrayed by the Emperor's son and enslaved as a gladiator, only to find fame and glory in the Colosseum.

However, similar to Royalty, judicial officers are not supposed to descend into the arena and join the fray of battle. The metaphor comes from an old English case, Yuill v Yuill.
A judge who observes the demeanour of the witnesses while they are being examined by counsel has from his detached position a much more favourable opportunity of forming a just appreciation than a judge who himself conducts the examination. If he takes the latter course he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict: Yuill v Yuill [1945] P 15 at 20; 1 All ER 183 at 189.

That's not to say that judicial officers can never ask questions of a witness. They can, but usually only to clarify some ambiguity.
[I]t is for the advocates, each in his turn, to examine the witnesses, and not for the judge to take it on himself lest by doing so he appear to favour one side or the other...The judge’s part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure...If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate: Jones v National Coal Board ]1957] 2 QB 55 at 64.

The Privy Council last week delivered its decision in a case that demonstrates just how spectacularly the wheels can fall off the cart if judicial officers do 'descend into the arena'.

In Michel v The Queen [2009] UKPC 41 the Judicial Committee quashed the conviction of accountant Peter Michel from Jersey. Jersey is a place said to be something of a tax haven, and apparently in the sights of the OECD and USA and other countries wanting improved information sharing. (Australia signed a Tax Information Exchange Agreement with Jersey in September 2009.)

Michel was charged with money laundering. Though the Privy Council described the evidence against him as overwhelming, it concluded it had no choice but to set aside his conviction because the judge in his trial breached the don't-be-Maximus rule.
Not often is defence counsel, appealing against conviction on the grounds of an unfair hearing, able to turn the appeal court's feeling from initial rueful concern to eventual deep dismay simply by reference to the number and character of the judge's interventions in the course of the trial. Such, alas, is the position in this case and, overwhelming though the evidence against the appellant may appear to have been, the Board can see no alternative but to set his conviction aside: Michel v The Queen [2009] UKPC 41 at [1].

The problem was not just the substantial number of interruptions by the judge, but also their tone and tenor.
The Board turn at once to the central ground of appeal as to the fairness of the trial, focused as this is entirely on the Commissioner's conduct of the hearing: his continual interruptions of the evidence, of prosecution witnesses as well as the appellant himself, of evidence in chief as well as cross examination. During the Crown's case the Commissioner time and again asked questions damaging to the defence case which prosecuting counsel could never have asked—for example cross-examining the appellant's clients to suggest both that they had behaved criminally and that this must have been obvious. During the appellant's own evidence the Commissioner intervened with substantive questions on no fewer than 273 occasions, 138 of them during evidence in chief. Generally this was with a whole series of questions, taking up in all just over 18% of the appellant's eight and a half days in the witness box. So much for the bare statistics. Of altogether greater significance than the mere number and length of these interruptions was, however, their character. For the most part they amounted to cross-examination, generally hostile. By his questioning the Commissioner evinced not merely scepticism but sometimes downright incredulity as to the defence being advanced. Regrettably too, on occasion the questioning was variously sarcastic, mocking and patronising: Michel v The Queen [2009] UKPC 41 at [12].

The Privy Council noted the Court of Appeal's (the intermediate appeal court) regret that defence counsel had not objected more often. It certainly is the duty of an advocate to object to any perceived unfairness or unjudicial behaviour: R v Lars (1994) 73 A Crim R 91 at 130 – 31. Quite how to do that is the tricky part, especially as most judicial officers are, or at least were, pretty good advocates themselves and must sometimes wonder how long they must endure inane questioning.

But there are good reasons for judicial officers retaining above the fray, and Michel's case provides one example, albeit an extreme one.

Monday, 9 November 2009

New Road Rules start today

A reminder that the Road Safety Road Rules 2009 and Road Safety (Drivers) Regulations 2009 commence operation today, 9 November 2009. The commencement details are found in Government Gazette S290, 26 Aug 2009.

When the Road Rules 1999 were introduced and the Road Safety (Traffic) Regulations 1988 repealed, the Supreme Court had the opportunity to rule not once but twice that charges alleging offences against the repealed laws were null and couldn't be amended: Flanagan v Remick (2001) 35 MVR 289; (2001) 127 A Crim R 534; Ciorra v Cole (2004) 42 MVR 547.

It will be just as important for the police to start using the new offence provisions from today. From today, any charges that claim to allege offending against the now-expired regulations will be null.

You might also remember Dr Manhattan's post about the other new regulations pending.

They too are also now out:

These regulations also commence operation today.

Friday, 6 November 2009

Legal liability of accompanying drivers

I had a query about my post, Licences and International Students. There, I suggested that the holder of a foreign licence (not being suspended or disqualified; accompanied by an English translation; complying with all other requirements, etc.) should not be considered a learner driver, and consequently would not be bound by the requirements under Reg 213 and 214 (which will become Regs 46 and 47 under the new Road Safety (Driver) Regulations 2009) to display L-plates and be supervised by an accompanying driver.

The question I was asked, which I hadn't turned my mind to, was this: What's the legal liability of accompanying licensed drivers under the Road Safety Act 1986? Are they legally responsible for the misdeeds of a foreign licence holder in the driver's seat? Is such a driver under their supervision, or not?

There's three distict categories of charges which spring to mind: drink-driving, speed offences, and the miscellaneous category of common enterprise offences.

In my view, the appropriate answers are no, no, and maybe


Under s 3AA(d), an accompanying driver is taken to be in charge of a motor vehicle.

Section 3AA(1)(d) reads,

(1) Without limiting the circumstances in which a person is in charge of a motor vehicle, the following persons are to be taken to be in charge of a motor vehicle for the purposes of this Act-

(a) ...

(d) an accompanying licensed driver while the person whom he or she is sitting beside is driving or in charge of the vehicle.

Accompanying licensed driver is defined at s 3 as,

accompanying licensed driver means a person, other than a commercial driving instructor acting as such, who is sitting beside a person, who is driving a motor vehicle for which that person does not hold an appropriate driver licence, for the purpose of enabling that person lawfully to drive that motor vehicle on a highway;

For the definition of appropriate driver licence, we need to return to the Road Safety (Driver) Regulations 2009, where the definition provided is as follows,

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;

A strict interpretation of these provisions leads to the conclusion that a fully licensed driver sitting beside the holder of a valid foreign licence is not an accompanying licensed driver, even if the holder of the foreign licence is also the holder of a Victorian learner's permit.

This is so regardless of the intention of the parties.


Regulation 607 of the Road Safety (Road Rules) Regulations 1999 provides,

607. Accompanying licensed drivers and excessive speed

(1) In this regulation-

(a) excessive speed means a speed described in section 28(1)(a)(i) or (ii)of the Act;

(b) accompanying licensed driver has the same meaning as in the Act.

(2) An accompanying licensed driver must not permit a learner driver to drive a motor vehicle at excessive speed.

Penalty: 5 penalty units.

For the same reasons that were given earlier for drink-driving, the passenger is not deemed an accompanying driver and not liable for the actions of the holder of a valid foreign licence.

Aiding and Abetting

In Proudman v Dayman, Ms Proudman was prosecuted (and ultimately convicted) of permitting an unlicensed driver to drive her vehicle, a specific South Australian offence she was charged with.

Potentially any passenger in a vehicle might be implicated as a principal in a crime under the common enterprise doctrine, but this won't turn on whether or not the passenger is an accompanying driver. Instead, it will depend on whether there's evidence to establish either a prior agreement or an intent on the part of the accused to encourage or assist in the commission of an offence.

The relevant authorities here are Bruce v Williams (1989) 10 MVR 451. It was last considered in a unanimous judgment of the Court of Appeal in R v Le Broc [2000] VSCA 125, where their Honours said

Nevertheless, it cannot, we think, be said that the law with respect to the mental element in aiding and abetting a crime of recklessness is clear beyond argument. It is true that the passage from the joint judgment in Giorgianni set out above and the passages from the other two judgments referred to at that point of these reasons are expressed in unqualified terms. However, there is some room for debate as to the meaning of certain expressions in those passages, such as the meaning of "acts" in the joint judgment and the expression "all the essential facts" in the other judgments. Furthermore, all the judgments recognise that there are some exceptions to the universality of their propositions. For instance, in certain cases the requisite knowledge need not extend to the precise crime which is in fact committed; a person can aid and abet the offence of driving with more than the prescribed quantity of alcohol present in the blood even though the person does not know the concentration of alcohol in the driver's blood; and in manslaughter and culpable driving cases it is not necessary to show knowledge on the part of the aider and abettor that death (or grievous bodily harm) would result. Moreover, the High Court's consideration was not directed to principal offences of recklessness, or indeed to principal offences where any mental state on the part of the principal offender was required. In addition, the reasoning in Giorgianni has been criticised, though such criticism clearly cannot stand in the way of our following faithfully the ratio of Giorgianni.

Drink-driving charges typically require no specific metal state, so the issues identified above are not relevant. Giorgianni v R (1985) 156 CLR 473 was a case of an unsafe vehicle rather than a drunk driver, so while often cited as an authority on aiding and abetting it may be said that the facts of the case do not lend themselves to transferral to other cases, though some general principles may apply. The High Court held that a vehicle owner could be held liable for procuring the commission of an offence, that offence being the driving of a defective vehicle that led to the deaths of other road users.

So the answer here is a maybe.

Tuesday, 3 November 2009

Calling a witness for cross-examination

Edit: Since this post went up, the case of DPP v Nair [2009] ACTCA 17 has affirmed that, under Commonwealth law, no motive or reason for a witness to give untruthful evidence needs to be shown before leave under s 38 may be granted.

The new Evidence Act will bring lots of changes to the way contested hearings are conducted. Some of these are big and others are small.

Section 38 hands the prosecution a significant tactical advantage. It clears away the existing common law on adverse and hostile witnesses, and replaces it with a single provision relating to unfavourable witnesses.

It reads:

38. Unfavourable witnesses

(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about—

(a) evidence given by the witness that is unfavourable to the party; or

(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or

(c) whether the witness has, at any time, made a prior inconsistent statement.
(2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).

(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility.

Note The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7.

(4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.

(5) If the court so directs, the order in which the parties question the witness is to be as the court directs.

(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account—

(a) whether the party gave notice at the earliest opportunity of the party's intention to seek leave; and

Note Paragraph (a) differs from the Commonwealth Act and New South Wales Act.

(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.

(7) A party is subject to the same liability to be cross-examined under this section as any other witness if—

(a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person; and

(b) the party is a witness in the proceeding.
Though this breaks with tradition, the provision is not necessarily inconsistent with the original intent of the rules on leading and non-leading questions, discussed in Mooney v James [1949] VLR 22. Though a witness is usually expected to be favourable to the party that calls them, this isn't invariably the case.

R v Souleyman (1996) NSWRLR 712 established that unfavourable isn't the same as hostile or adverse, merely meaning "not favourable".(Though in R v Kneebone (1999) NSWLR 450, it was found that a witness's evidence was not necessarily unfavourable just for failing to accord with the Crown's case theory).

A claim of no recollection might be considered unfavourable: GAC [2007] NSWCCA 315, see also R v Lozano [1997] NSWSC 237. The application is usually made in examination-in-chief, but may be made in cross-examination: R v Pantoja [1998] NSWSC 565. Or it might be made in re-examination in exceptional circumstances: R v Kingswell [1998] NSWSC 412 and R v BDF [1999] NSWCCA 98.

In BDF, Dowd J observed:

[34] There is a considerable tendency for those familiar with the law before the Act, to find the procedure of s 38 of the Act somewhat difficult to adjust to. Section 38 of the Act is one of the most important provisions of the new Evidence Act. Although there appears to be something unjust about a witness who is cross-examined by the opposing party and then subject to cross-examination by the party calling the witness, this is clearly the intention of the Act. The unfavourable evidence which comes out may come out at any stage.

There's no requirement that the unfavourable evidence to be unexpected, and nothing improper about calling a witness to put to them a prior inconsistent statement (see the discussion of Lee's case, below). Once admitted, a prior inconsistent statment can be used by the trier of fact as the truth of it, even if it is a statement the witness now denies is truthful: Adam v The Queen (2001) 207 CLR 96 (a case where Stephen Odgers appeared for the appellant). The prosecution can call a witness intending or at least prepared to make a s 38 application. Despite sub-s (7), the cross-examination should be restricted to the extent of the unfavourable evidence: R v Hogan [2001] NSWCCA 292, also GAC.

Although relatively simple, the consequences of s 38 will require a strategic re-think in many cases.

In the past it was commonplace to draw the prosecution's attention to the existence of certain witnesses whose evidence might be favourable to the accused and adverse to the prosecution case, and rely on the prosecution to honour its obligation to call all relevant witnesses. In future, the prosecutor might call such witnesses but, if their evidence is unfavourable, may also have the opportunity to cross-examine them!

Lee v R [2009] NSWCCA 259 is a simple and practical demonstration of how s 38 operates. Lee was charged with sexual assault against his son's teenage girlfriend. His wife was called as a witness and gave evidence that the accused had attempted to have intercourse with her earlier in the night in question, but had been unable to obtain an erection.

The evidence of sexual dysfunction was considered unfavourable to the prosecution's case as it tended to contradict the Crown case of a penile sexual assault occuring a number of hours later. An application to cross-examine the wife was made and granted. On the appeal, the accused took issue with both leave to cross-examine being given, and the instructions given to the jury as a result.

The NSW Court of Criminal Appeal rejected the argument.

[34] As I understood oral submissions, counsel contended that, because the prosecutor anticipated the unfavourable evidence (and assuming rejection of his other submissions) that the prosecutor’s application to cross examine was “a contrivance” and that therefore leave should be refused, because to grant it would be unfair. Reliance was, in particular, placed under s 192(2)(b) of the Evidence Act. In his reasons his Honour revealed that he had given express consideration to this and no error in his determination has been shown.

[35] I would reject ground 1.

After almost fifteen years of application in NSW s 38 is now generally understood, and so uncontentious that the Court of Criminal Appeal could dispose of such a ground of appeal in one paragraph without detailed recourse to the numerous authorities on it.

In Victoria it will be a novel concept that, for a time, we'll struggle to grapple with. As Dowd J observed, the ability of the prosecution to call a witness expressly for the purpose of discrediting their evidence or attempting to prove that it is untrue strikes practitioners familiar with the previous common law position as unfair.

But unless Victorian courts adopt a radically different approach to those in NSW, that is precisely what will occur on a regular basis.