Providing police recordings allowed or not?

Dr Manhattan Edit: There were practical problems with the breadth of the original legislation, and it has no undergone a nip-and-tuck in the Justice Legislation Further Amendment Bill 2010. The Explanatory Memo to this omnibus legislation can be found here.

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Last year in Going Digital my colleague discussed what is now the Justice Legislation Miscellaneous Amendments Act 2009, which will insert new provisions in the Crimes Act 1958. It has received Royal Assent, but is yet to commence operation.



Section 464JA will provide in part:

(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).



Note The maximum fine that may be imposed on a body corporate found guilty of an offence against this subsection is 600 penalty units: see section 113D of the Sentencing Act 1991.

(3) A person must not play an audio recording or an audiovisual recording to another person unless—

(a) the recording is played for purposes connected with the prosecution or defence of, or legal proceedings relating to, a charge to which the recording relates; or



(b) the recording is played for purposes connected with an investigation of a death or a fire or an inquest held by a coroner; or



(c) the recording is played for purposes connected with disciplinary action against a member of the force within the meaning of the Police Regulation Act 1958; or



(d) the recording is played for purposes connected with disciplinary action against a legal practitioner; or



(e) the recording is played in accordance with the direction of a court under section 464JB; or



(f) the recording is played in accordance with section 464JD; or



(g) the recording is played by an authorised person acting in the course of his or her duties.



Penalty: Level 8 imprisonment (1 year maximum).



Note The maximum fine that may be imposed on a body corporate found guilty of an offence against this subsection is 600 penalty units: see section 113D of the Sentencing Act 1991.

(4) A person must not supply or offer to supply an audio recording or an audiovisual recording to another person other than—

(a) the suspect in relation to whom the recording was made;



(b) a legal practitioner representing the suspect;



(c) an authorised person acting in the performance of his or her duties;



(d) a person engaged by a person referred to in paragraph (a), (b) or (c) to transport the recording.



Penalty: Level 8 imprisonment (1 year maximum).



Note The maximum fine that may be imposed on a body corporate found guilty of an offence against this subsection is 600 penalty units: see section 113D of the Sentencing Act 1991.

(5) A person, other than an authorised person acting in the performance of his or her duties, must not copy the whole or any part of an audio recording or an audiovisual recording or permit another person to make such a copy, unless the person is acting in accordance with the direction of a court under section 464JB.



Penalty: Level 8 imprisonment (1 year maximum).



Note The maximum fine that may be imposed on a body corporate found guilty of an offence against this subsection is 600 penalty units: see section 113D of the Sentencing Act 1991.



(6) An authorised person must not knowingly or recklessly tamper with, modify or erase (in whole or in part) a recording, except in accordance with the direction of a court under section 464JB.



Penalty: Level 8 imprisonment (1 year maximum).



Note The maximum fine that may be imposed on a body corporate found guilty of an offence against this subsection is 600 penalty units: see section 113D of the Sentencing Act 1991.



(7) A person must not publish or cause to be published the whole or any part of an audio recording or an audiovisual recording except in accordance with the direction of a court under section 464JB.



Penalty: Level 7 imprisonment (2 years maximum).



Note The maximum fine that may be imposed on a body corporate found guilty of an offence against this subsection is 1200 penalty units: see section 113D of the Sentencing Act 1991.



(8) An offence against a provision of this section is a summary offence.

The Scrutiny of Acts and Regulations Committee raised a few concerns about these provisions, and in Alert Digest 4 of 2010 at pp 51 – 55 published them and the Minister's response.



Sub-section (4) seems to be the most problematic, and on its face prohibits disclosure of co-suspect interviews to suspects or practitioners, or release of an interview to an expert or to non-legally-qualified advisers or confidants.



I won't reproduced all of the material here, but the nub of it is that the Minister says these new provisions affect disclosure of recordings themselves, but not the transcripts or summaries of them. Because the prosecution is obliged to disclose all material it intends to rely on, the accused isn't disadvantaged.



Although this is true as far as it goes, it doesn't seem to consider that such material might be used by an accused for exculpatory purposes, not just by the prosecution for inculpatory use.



It also seems contrary to the prosecution's ethical obligation of disclosure of all relevant material, exculpatory and inculpatory: Mallard v The Queen (2005) 224 CLR 125; Cannon v Tahche (2005) 5 VR 317 at [57]–[59], [77].



There is a general directions power for courts in s 464JB, but it's not clear if that allows a summary court (which possesses only those powers expressly conferred by statute or by necessary implication) to override or modify the effects of s 464JA.

Charter restrictions on validity of search warrants?

Australian law is still not entirely certain if a Court can review the grounds for the issue of a search warrant.

In Victoria, magistrates issue the bulk of search warrants under s 75 of the Magistrates' Court Act 1989.

It's pretty settled now that a magistrate or justice's decision to issue a search warrant is an administrative, not judicial, one: Ousley v The Queen (1997) 192 CLR 69 at 100; Love v Attorney-General (NSW) (1990) 169 CLR 307. Under Federal Law, that decision can be reviewed under the Administrative Decisions (Judicial Review) Act 1975.

But under Victorian law, decisions made by a Court — presumably including administrative ones — are excluded from the administrative review process because Victoria's Administrative Law Act 1978 s 2 provides that a 'tribunal' does not include a court of law. That might mean Judicial Review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 is one way to review a magistrate's decision to issue a search warrant.

Alternatively, it might be reviewed in a hearing that relies on evidence derived from the search warrant. In Ousley, the High Court accepted that an inferior court sitting in its judicial capacity — that is, deciding a case — could review a superior court's (administrative) decision to issue a search warrant.

But in both Ousley and R v Murphy (1989) 167 CLR 94 at 105 – 6 the High Court said a Court reviewing a warrant can only consider the validity of the warrant, not if there were sufficient material or proper grounds for its issue.

Could the Charter of Human Rights and Responsibilities Act 2006 change this?

Last year I wrote about the Canadian Supreme Court's decision in R v Grant, 2009 SCC 32. In that case, the Court applied a Bunning v Cross style of reasoning to not exclude evidence from an illegal search.

In R v Morelli, 2010 SCC 8 the Canadian Supreme Court applied Grant to hold 4:3 that the search and seizure of an accused's computer for child pornography relying on a warrant under Criminal Code s 164(1) was unreasonable contrary to s 8 of the Canadian Charter of Rights and Freedoms, and should be excluded under Charter s 24(2).

The main reason for that result was the majority considered the application for the search warrant — the Canadians call it an ITO or Information To Obtain — was misleading.

There are a couple of differences in Canadian law that mean the case must be considered cautiously for Victorian use.

Canadian law has offences for making, distributing, possessing and accessing child pornography.

In contrast, Victorian law proscribes producing and possessing child pornography.

The result is that Australian (and similar UK) jurisprudence considers viewing child pornography as analogous to making a copy of an image in a darkroom, from either a negative or print — and hence as producing child pornography. Applying this analogy, Australian and UK cases consider transferring image data from a server on the internet to a user's computer — either in the temporary internet cache or a deliberately downloaded file — to be creating a copy. (The prosecution must still prove knowledge as an element of the offence.)

In Morelli the majority considered the information provided to the justice who issued the search warrant didn't establish an offence of possessing child pornography under Canadian law, though it might have established accessing it.

That meant it wasn't open to the justice to have found there were reasonable grounds to believe there were copies of child pornography on the accused's computer.

Specifically, the majority considered that possession required knowing acquisition of the underlying data files and storing or placing them under the accused's control. With no evidence of that, the search warrant wasn't justified and so the search and seizure was unreasonable.

Here, Charter s 13(a) (and perhaps s 20 or 21(2)) provides similar protections. It might be that if an accused person challenges the basis for the issue of a search warrant, Morelli could be used to argue that the sufficiency of grounds for issue of the warrant can be considered because of Charter s 39(1).

The consequence might then be unlawful search or seizure under Charter s 38(1), in turn leading to exclusion of evidence under Evidence Act 2008 s 138.

DPP (Cth) v D'Alessandro: child pornography sentencing principles

DPP (Cth) v D'Alessandro [2010] VSCA 60 considered the appropriate penalty for a person convicted in Victoria under the Commonwealth Criminal Code of possessing what the sentencing judge described as the "very worst" of child pornography.



The respondent had been sentenced to a total effective sentence of 2 years imprisonment, but released immediately on a recognisance. (The judgment refers at [5] to s 21B of the Crimes Act 1958, but since this doesn't exist it seems likely the Court was referring to s 20(1)(b) of the Crimes Act 1914 (Cth)). A recognisance can be likened to a suspended sentence or accountable undertaking, but is not either of those things.



(Incidentally, this is a good opportunity to draw attention to a very useful paper prepared by the CDPP, Federal Sentencing in Victoria. It has recently been updated to take into account the changes to local procedure caused by the Criminal Procedure Act 2009).



The CDPP appealed the sentence on the ground of manifest inadequacy, and the appeal was upheld. The Court of Appeal substituted a sentence of two years imprisonment to be served immediately, with a further 12 months served by way of a recognisance.

Double Jeopardy

Harper JA (Williams AJA agreeing) imposed a lesser penalty than he would have done otherwise in recognition of the repondent having stood twice to receive his sentence: R v Clarke [1996] 2 VR 520. This principle which applies in Crown appeals has been abolished by the Criminal Procedure Act 2009 (in the County Court by operation of s 259(3) and in the Court of Appeal by s 289(2)) and will not apply to appeals from sentences handed down this year.

Sentencing Principles

The Court included in the judgement [at 21] one of the dense lists of relevant sentencing principles which can be so useful when researching legal argument. I've reproduced it below, with the authorities cited inserted into the main text and hyper-linked:

Applicable sentencing principles



21 When construing and applying Commonwealth legislation, this Court follows principles of comity in according respect to the decisions of intermediate appellate courts of other jurisdictions concerning the same legislation. It is therefore worth recording that there seems to be unanimous support across the jurisdictions for a number of propositions.



First, that the problem of child pornography is an international one: R v Jones (1999) 108 A Crim R 50 51.



Secondly, that the prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration: Assheton v The Queen (2002) 132 A Crim R 237.



Thirdly, that those inclined to exploit children by involving them in the production of child pornography are encouraged by the fact that there is a market for it: R v C [2004] QCA 469.



Fourthly, that those who make up that market cannot escape responsibility for such exploitation: R v Gent [2005] NSWCCA 370 at 43.



Fifthly, that limited weight must be given to an offender’s prior good character: R v Gent, at 65.



Sixthly, that a range of factors bear upon the objective seriousness of the offences to which the respondent in this case pleaded guilty: R v Gent, at 99.

They include:



(a) the nature and content of the pornographic material – including the age of the children and the gravity of the sexual activity portrayed;



(b) the number of images or items of material possessed by the offender;



(c) whether the possession or importation is for the purpose of sale or further distribution;



(d) whether the offender will profit from the offence.

Last year I posted about Dr Ian Freckelton's paper on making pleas of mitigation on behalf of sex offenders. In light of the Court of Appeal's remarks in D'Alessandro his approach to this difficult task seems even more appropriate.

The meaning of unavailable

Edit: As Jeremy points out below, the Court of Appeal considered the meaning of unavailable for the first time in R v Darmody [2010] VSCA 41, discussed here. Though not specifically considering the (g) provision, the Court did outline some considerations to be taken into account, describing it as 'a balancing act'.

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Section 65 of the Evidence Act 2008 provides exceptions to the general prohibition on hearsay evidence.

In shorthand, these are:

- Duty (made under a duty to make that representation or to make representations of that kind); or

- Res Gestae (made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication); or

- Reliable (was made in circumstances that make it highly probable that the representation is reliable); or

- Against You (against the interests of the person who made it at the time it was made AND made in circumstances that make it likely that the representation is reliable).

For those who survived their studies through the use of mnemonics, it may be worth pointing out that the summary above spells out the acronym DR GRAY. I admit this is not as elegant as VOID (or accurate - I'm sure some readers will already have noted the differences between traditional common law res gestae and paragraph (b)). I'm fairly sure that the drafters of s 84 deliberately worded the section that way to create the mnemonic.

An essential precondition to any of these avenues of potential admissibility is that the maker not be available (hearsay statements where the maker is available are dealt with at s 66). What constitutes unavailable is exhaustively defined at cl 4 of Part 2 of the Dictionary:

4 Unavailability of persons

(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if—

(a) the person is dead; or

(b) the person is, for any reason other than the application of section 16 (Competence and compellability—judges and jurors), not competent to give the evidence about the fact; or

(c) it would be unlawful for the person to give evidence about the fact; or

(d) a provision of this Act prohibits the evidence being given; or

(e) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success; or

(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.

(g) the person is mentally or physically unable to give evidence and it is not reasonably practicable to overcome that inability.

(2) In all other cases the person is taken to be available to give evidence about the fact.

Paragraph (g) is unique to the Victorian (not very) Uniform Evidence Act. In 2005 the Joint Discussion Paper recommended the inclusion of a provision like (g) and it was enacted in Victoria. The Commonwealth and NSW did not subsequently adopt it.

In Queensland, s 93B Evidence Act 1977 (Qld) provides an exception where a witness is unavailable because the person is ‘mentally or physically incapable of giving the evidence’. The Criminal Justice Act 2003 (UK) also has similar provisions.

Since (g) hasn't been taken up elsewhere, there's no body of UEA law on the scope of its operation. Is a medical certificate for the day of the contest sufficient to render a person, 'mentally or physically unable to give evidence,'? That seems demonstrably unfair to the other party. At the other end of the scale, where the witness lies in a coma with uncertain prospects of recovery, para (g) seems more likely to be satisfied (though unnecessary, since (f) would also seem to apply).

Evidence which is admissible is still open to be rejected in the exercise of one of the discretions. The reason why the witness is unavailable is only one part - sometimes an insignificant part - of whether the evidence will be admitted.

DPP v Angell [2010] VSC 76: demerit-point notice served by mail

In DPP v Angell [2010] VSC 76 the Supreme Court held the Magistrate's Court was wrong to dismiss a charge of driving while suspended contrary to Road Safety Act 1986 s 30.

The magistrate dismissed the charge because VicRoads posted a demerit-point option-notice to the wrong address.

The accused lived in Thomson Street, Sale. One of the s 84 certificates tendered in the case showed VicRoads addressed the notice to the accused to Thompson Street with a ‘p’, rather that Thomson Street without a ‘p’.

Ms Angell defended the charge by arguing only that the option-notice was not served as required by s 25(4A).

Section 25 deals with option-notices, and relevantly provides:

25. Demerits Register

...

(4A) A demerit point option notice or a notice under subsection (3B)(c) sent by post addressed to the holder of the licence or permit at his or her current address as shown in any record maintained under this Act must be taken to have been served on that person 14 days after the date of issue of the notice unless at any time after that period of 14 days the Corporation is satisfied that the notice has not been served on that person. (Emphasis added)

(4B) The service of a demerit point option notice or a notice under subsection (3B)(c) is not a condition precedent to a suspension under this section taking effect but if at any time after the period of 14 days after the date of issue of the notice the Corporation is satisfied that the holder of the licence or permit has not been served with the notice, it must cancel the suspension with effect from the date on which it took effect, determine another effective date and specify that date in another notice served under subsection (3) or (3B)(c), as the case requires.

(4BA) Subsection (4B) does not apply if—

(a) a person is prosecuted under section 30 for driving while a suspension under this section is in force; and

(b) he or she is found not guilty on the grounds that he or she was not aware at the relevant time that his or her licence or permit had been suspended.

Note In the circumstances set out in this subsection, it is still open to a court under section 30A to order that the person serve an additional period of suspension of up to the period specified in section 30A(3).

The provision provides that a notice is deemed to be served if posted to an address on VicRoad's records unless VicRoads (no less) is satisfied it wasn't served.

The Supreme Court didn't specifically rule on that point. What it did say at [37] — [38] was the magistrate was wrong to dismiss the charge solely because he considered the notice was not served in accordance with s 25(4A). The effect of that was to wrongly treat that provision as an essential element of the offence.

But...a likely result of wrong service or non-service was that the accused didn't receive the notice, and didn't know her licence was suspended.

[35] The fact that the demerit point option notice was sent to a ‘43 Thompson Street’ in Sale rather than to ‘43 Thomson Street’ in Sale may well support a finding that the respondent did not receive the notice, which will be relevant to whether or not she was aware at the time of driving that her licence had been suspended. There was evidence in the informant’s statement that the respondent told the police officers that she did not know her licence was suspended. Consideration of this evidence may have led the learned Magistrate to conclude that the respondent was not aware that her licence was suspended. However, the Magistrate quite deliberately confined his inquiry to whether service of the demerit point notice had been effected under s 25(4A). He was not willing to consider other evidence that was before him that might have been relevant to the respondent’s awareness of her licence suspension or to draw any inferences from it.

The prosecution appeal was allowed and the charge remitted to the same magistrate for determination according to law.

The end result may be something of a Pyrrhic victory, but at least this appeal seems to answer the question posed by Dr Manhattan about deemed service by mail negating honest-and-reasonable mistake of fact defences.

Legislation Watch: a fistful of bills

Edit: In fact, Mirko Bagaric has been proved prescient as the new (2011) government are in the process of abolishing home detention and suspended sentences.

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Some major pieces of legislation have passed through the Victorian parliament in the last couple of years. While the autumn sitting won't bring change on that same scale, the passage of a number of recent bills will affect the operation of the Magistrates' Court.



New laws include:



The Magistrates' Court Amendment (Mental Health) Bill 2009 has been discussed here before. Other than being re-badged as the, 'Assessment and Referral Court' instead of the 'Mental Health Court' the trial list at Melbourne Magistrates' will go forward as discussed in that post. The Third Reading took place on 9th March.



The Justice Legislation Amendment Bill 2010 - This is omnibus legislation the accomplishes several things, notably provisions that make breaches of Intensive Corrections Orders (ICOs) and Combined Custody and Treatment Orders (CCTOs) more like breaches of suspended sentences or undertakings (by way of application rather than charge).



Other provisions of the Bill expand the scope of Home Detention Orders. It seems that Professor Mirko Bagaric was wrong in his confident prediction that the program would be abolished after its three-year pilot project expired. This Bill has not yet passed through Parliament.



The Crimes Legislation Amendment Act 2009 was another omnibus bill. It increases the maximum penalties for the sexual penetration of children, amends the definition of document in the Evidence Act (Miscellaneous Provisions) Act 1958 (to make it consistent with the Evidence Act 2008) and extends the trial operation of Family Violence Safety Notices to December 2011. It received Royal Assent on 16 March.

The costs of getting it wrong

On Wednesday Lawyers Weekly carried the story of a NSW Local Court civil case where Magistrate Daphne Kok reportedly took the parties to task over their failure to resolve the issues in dispute.



Apparently the legal costs of the case are far in excess of the $30,000 original claim. They were more than $100,000 before the trial even started. The claim was dismissed but the issue of who will bear costs, and how much they will pay, has yet to be decided.



In the judgment her Honour said,

The plaintiffs are solicitors. The defendants are solicitors. Both parties are or have been separately legally represented. Not only do the proceedings involve too many lawyers, they involve too many experienced and well-informed lawyers. Too much heat and emotion has been engendered.



There has been too much distrust. There has been too little courtesy and comity. Too many words have been generated. There have been too many submissions including attempts to shore up or bolster earlier submissions and to counteract prior opposing submissions. Far too much time and money has been spent

Last year I posted about a Federal Magistrates' Court decision to order that lawyers on both sides not bill their clients for work which the Court found was irrelevant and unnecessary. I've since been told that such orders, while not standard practice, are not uncommon in that jurisdiction.



The old Magistrates' Court Act 1989 conferred on the court a general discretion (now repealed) in regard to costs. s 401 of the Criminal Procedure Act 2009 replicates this in similar terms, but s 410 specifically identifies legal practitioners as being potentially liable for costs.



Legal practioner in this context isn't limited to admitted lawyers, but by virtue of the definition provided at s 2.2.2(2)(g) of the Legal Profession Act 2004 includes a person who appears in the course of their employment with the Crown or a public authority or in the performance of duties under an appointment by the Governor-in-Council.

Human rights, possessing drugs, and deeming provisions: Momcilovic decided

edit: Jeremy Gans has come out of blogging-retirement a second time to blog on this case. His piece is a cracker of a read, and aside from being a far more detailed analysis, also drives home the point that when all is said and done the Charter really is just another piece of legislation, which relies on the government to fix laws that are inconsistent with the Charter.

(I've always thought that the way to really make legislation effective and beyond the reach of political imperatives is give it obligatory provisions and double-entrench them.)

If you haven't read Jeremy's analysis, I urge you to have a look.

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Last year I blogged about Vera Momcilovic's application to the Court of Appeal, courtesy of information from the Criminal Bar Association.

The Court of Appeal today delivered its judgment, R v Momcilovic [2010] VSCA 50. The Human Rights Law Resource Centre already has its analysis of the case online.

The headline: s 5 of the Drugs, Poisons and Controlled Substances Act 1981 (DPSC Act) does impose a legal burden on an accused person to disprove possession on the balance of probabilities; is incompatible with the presumption of innocence; but is still valid; and Vera Momcilovic remains guilty of trafficking a drug of dependence.

It's a joint judgment (hooray), and very well written and easy to read. Although it's 75-pages, when it's reported — as inevitably it will be — without the broad margins and double-spaced lines of a media-neutral case, it'll probably be no more than 20 pages in the Victorian Reports.

A quick refresher on the basic facts...the police searched Vera Momcilovic's apartment and found 394 grams of methylamphetamine in a freezer. She gave sworn evidence she didn't know about the drugs. Her boyfriend Velimir Markovski (convicted in a separate trial of trafficking the drugs, discussed in his sentencing appeal here) gave evidence at her trial that Ms Momcilovic wasn't aware of the drugs or his trafficking. Momcilovic was convicted of trafficking a drug of dependence.

She applied to the Court of Appeal with three reasons why it should let her appeal her conviction and sentence.

The first two were unsuccessful. The third one, on sentence, succeeded.

1. Conviction appeal — the reverse onus

Momcilovic's first argument was to allow an appeal against her conviction for possession of drugs found in the freezer.

Section 5 and the burden on an accused person

The first limb of this argument was that s 5 of the DPSC Act imposed an evidentiary rather than legal burden on an accused person to disprove possession.

An evidentiary burden means simply there is evidence — information admissible under the rules of evidence and placed before the jury — the accused can refer to that raises an issue, such as, “I didn't know the drugs were there.” Once that happens, the prosecution must disprove it beyond a reasonable doubt to prove its case.

A legal burden means the accused must prove the point on the balance of probabilities.

The Court rejected the argument.

[19] In our view, these submissions must be rejected. The question of construction is a straightforward one. The phrase ‘unless the person satisfies the Court to the contrary’ conveys unambiguously the legislative intention that the accused should carry the legal burden of establishing, to the Court's satisfaction, that he/she was not in possession of the relevant substance. That was the view of the Full Court in 1986 in Clarke, and it was reaffirmed by this Court in Gluyas and again in Tragear. (Citations omitted)

Charter effect

The other limb to this argument was that the Charter of Human Rights and Responsibilities Act 2006 (the Charter) required courts to now interpret DPCS Act s 5 differently.

At [25], the Court laid out the Charter-argument:

1. Under s 25(1) of the Charter, ‘[a] person charged with a criminal offence has the right to be presumed innocent until proven guilty according to law.’

2. The imposition on an accused of a legal burden of disproof, on the balance of probabilities, of ‘an issue as fundamental as possession’ is not compatible with s 25(1).

3. Nor can the imposition of the legal burden be regarded as a reasonable or proportionate limit upon the presumption of innocence, within the meaning of s 7(2) of the Charter.

4. Section 32(1) of the Charter provides: ‘So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.’

5. It is possible to interpret s 5, consistently with the purpose of the offence provisions, as placing only an evidentiary burden on the accused, and that is how s 5 must therefore be interpreted.

The Court then reviewed the parties' arguments (there were 5 all up, with the Attorney-General, Victorian Equal Opportunity and Human Rights Commission, and Human Rights Law Resource Centre all intervening).

A major point was the role of Charter s 32(1), which requires courts to interpret statutory provisions compatibly with human rights. Does it come into play after a section is interpreted if that interpretation is inconsistent with human rights? Or, does it operate before interpreting a provision, so that its meaning must be figured out compatibly with human rights, from the word go? This is important, because it might mean that human-rights-interpretation is a different type or method of statutory interpretation from those accepted at common law.

And it might also affect the reasonable-limits provision in Charter s 7(2), and whether that comes into play before or after interpreting a statutory provision.

At [35] the Court said the right way to do Charter interpretation is:

Step 1: Ascertain the meaning of the relevant provision by applying s 32(1) of the Charter in conjunction with common law principles of statutory interpretation and the Interpretation of Legislation Act 1984 (Vic).

Step 2: Consider whether, so interpreted, the relevant provision breaches a human right protected by the Charter.

Step 3: If so, apply s 7(2) of the Charter to determine whether the limit imposed on the right is justified.

The Court then said:

On the view we take of s 32(1), it is not ‘possible’ to interpret s 5 of the DPCS Act, consistently with its purpose, otherwise than as it has been traditionally interpreted — that is, as imposing a reverse legal onus of proof.

The Court then reviewed English, Hong Kong and New Zealand authorities on human rights interpretation. In a brief, but tellingly candid observation, at [61] the Court pointed out that one reason for the different conclusions in other jurisdictions is that a finding of incompatibility under some Charter equivalents elsewhere is that the statutory provision is invalid (or ‘struck down‘ in legalese). Here, because of s 36(5)(a), it's doesn't make a jot of difference — at least in a practical sense for the validity of the legislation.

At [74] the Court considered that s 32(1) differed from the similar UK provision because it didn't require interpretation contrary to Parliamentary intention; rather, it provided for interpretation compatible with human rights so far as is possible. That means, if the clear purpose and interpretation of a provision isn't compatible with human rights, courts can't interpret them any differently.

It went on to note at [92] – [96] that courts can declare legislative provisions inconsistent with human rights — consistent with the ‘dialogue-model’ of our Charter — and it's then up to Parliament what it wants to do to fix that.

Does s 5 limit the presumption of innocence?

The Court then turned to consider the Charter s 7(2) point: if the provision breaches a human right, and if so, is it justified?

At [135] it said, yup, s 5 does infringe the presumption of innocence. It means that proof of occupation establishes a prima facie case of trafficking against an accused person.

At [152] the Court said s 5 is unjustifiable in its operation for possession offences contrary to DPCS Act s 73(1). (You'll find a typo in the judgment at that paragraph, where the Court refers to s 72 instead of 73.)

And at [153] it said the same for s 5 relating to trafficking offences.

The result? A declaration of inconsistency under Charter s 36. I'm pretty sure this is the first one in Victoria. The Court issued a draft notice of inconsistency, and granted the Attorney-General and Commission the opportunity to make further submissions — which may well result in Momcilovic (No 2) at the Court of Appeal.

2. Conviction appeal — other grounds

The other grounds didn't deal with Charter grounds, but directions by the trial judge. In short, they were all rejected on the basis that they didn't accord with the way the trial was run.

3. Sentence appeal

This was allowed. At [189] the Court said the sentencing judge considered Momcilovic possessed a quantity of drugs nearly 80% of a commercial quantity of methylamphetamine in a mixture (which was 1250 grams at sentencing), rather than 31%.

That error meant the discretion to re-sentence existed, and the Court imposed a new sentence of 18 months' jail, with the balance owing suspended for 16 months.

The end result

Momcilovic provides some answers, but raises a few more.

The current state of play is: the DPSC Act s 5 imposes a legal burden on an accused person, and can't be interpreted compatibly with human rights. The Court of Appeal intends to declare it's inconsistent with the presumption of innocence in Charter s 25(1). There might be further legal argument about the declaration of inconsistency, and if made, Parliament must decide what its response will be under Charter s 37. Most importantly for future prosecutions relying on s 5, and people accused of trafficking or possessing drugs of dependence, s 5 remains valid because of Charter s 36(5)(a).

What happens next, and how Parliament responds, will be the first opportunity to see what and how much emphasis the Parliament will place on human rights affected by human-rights-incompatible legislative provisions.

And of course, there's always the possibility of a High Court appeal.

False accounting

Here in Victoria, an offence of false-accounting contrary to s 83 of the Crimes Act 1958 is made out only if the documents are required for or prepared in connection with the accounting records of a business: R v Jenkins (2002) 6 VR 81. Examples provided by our Court of Appeal were balance sheets, profit and loss accounts, and income and revenue statements.

Section 83 is based on s 17 of the Theft Act 1968 (UK). The English Courts seem to interpret that section more broadly.

In R v Lancaster [2010] EWCA Crim 370 the Court of Appeal accepted that application forms for various social security benefits were accounting documents.

Mr Lancaster omitted to declare that he and his wife owned a web-design company run from their home, and were setting up another company that published and traded books.

The Court of Appeal considered that was a material particular by ommission and misleading, false or deceptive.

On first blush, it seems that Jenkins says that in Victoria, such conduct might amount to obtaining property by deception, but not false accounting. I'm not entirely certain.

Jenkins dealt with misleading property valuations that resulted in a building society lending money for a property when it would otherwise not have made the loan.

It might be that when the false or misleading or deceptive particular is provided directly on a loan document, that it is indeed an accounting document. After all, a financial institution requires that information to prepare its accounts. On a black-letter reading of the provision, I reckon that's a better 'fit' than obtaining property by deception.

Court Craft

Authentic peer review in the legal profession is rare.



The practice of law can be lonely. Certainly the time spent drafting, reading and preparing is mostly spent in solitude. When it comes to appearances in the Magistrates' Court, it's rare to be accompanied to court by anyone except your client - not always the most reliable indicator of how you went.



Your opponent or the presiding magistrate may be forthcoming with their assessment of your efforts, but they do not always have your best interests at heart (though, notably, some do). It's very easy for practitioners to go on making the same mistakes in their advocacy (in style and substance), year after year through their careers, without anyone bringing these flaws to their attention or suggesting alternative approaches.



If this is true of practitioners, it's even more so of the judiciary. How often do they get the opportunity to watch one of their brothers or sisters at the grindstone, running a practice court or deciding cases? Never. Reading a transcript or having it described later is not the same thing.



The Judicial College have been running a project to provide constructive criticism to the judiciary in an informal setting. The promotional video can be found on the JCV's website here.



Like all sorts of voluntary training, it's inevitable that those who need it the most will use it the least. But it's a step in the right direction.

Unlawful assembly requires cooperation, not just togetherness

An offence of violent disorder contrary to s 2(1) of the Public Order Act 1986 (UK) — similar to unlawful assembly, contrary to common law — requires only that three or more people are in the same place at the same time. It's not necessary to prove they deliberately acted in combination with each other.

In R v NW [2010] EWCA Crim 404 the UK Court of Appeal rejected a 15-year-old schoolgirl's appeal against conviction for violent disorder after she and a friend fought police officers while an unruly mob surrounded and stopped the police from arresting the girls.

When the cavalry arrived, the crowd lost interest and disappeared.

The trial judge contrasted the offence with riot, which requires a common purpose. The Court of Appeal approved his interpretation.

[19] That being so, we think that the expression "present together" means no more than being in the same place at the same time. Three or more people using or threatening violence in the same place at the same time, whether for the same purpose or different purposes, are capable of creating a daunting prospect for those who may encounter them simply by reason of the fact that they represent a breakdown of law and order which has unpredictable consequences. We are unable to accept that the phrase requires any degree of co-operation between those who are using or threatening violence; all that is required is that they be present in the same place at the same time. The section is concerned with public disorder and is deliberately worded in a way that is apt to apply to anyone who uses or threatens violence of the requisite nature in a particular context, namely, in a public place where others are engaged in the same activity. We think that the requirement that the conduct of the participants taken together should be such as to cause members of the public to fear for their safety was included in order to direct attention to the overall effect of what may otherwise be unrelated acts or threats of violence.

Here, unlawful assembly remains a common law offence and requires the prosecution prove an element of intention:

1. Three or more people assembled together;
2. Intending to:
• Commit, or encourage the commission of, a crime by open force; or
• Carry out any common purpose, whether lawful or unlawful, in such a manner to give firm and courageous people in the neighbourhood of the assembly reasonable ground to apprehend a breach of the peace resulting from that common purpose.

That differs from the UK's statutory provision.

Probably the closest statutory offence here is riotous behaviour in a public place, contrary to s 17(1)(d) of the Summary Offences Act 1966.

Unlawful assembly remains triable summarily because s 28(1) of the Criminal Procedure Act 2009 provides summary jurisdiction for common law offences punishable as level 5 or 6 offences, and s 320 of the Crimes Act 1958 lists unlawful assembly as a level 6 offence.

Documents must say something to be hearsay

A document that says nothing — that shows something did not happen — can't be a hearsay document.

That's the gist of a decision by the UK's Queen's Bench Division of the High Court in DPP v Leigh [2010] EWHC 345 (Admin). The case isn't on Bailii, but is (for the moment at least) available here on wikicrimeline.co.uk.

Mr Leigh was charged with failing to give the police information to identify the driver of a motor car involved in certain offences. That offence is similar to s 60 of the Road Safety Act 1986.

The prosecution wanted to tender business records from a police unit, purportedly showing no information was provided by the accused.

The accused objected that the evidence was hearsay.

The Court considered it wasn't, because it didn't assert anything.

[13] The record is of significance, but the significance lies not in what it says, but in what it does not say i.e. the fact that it says nothing. The entry in the record is demonstrating that someone has asserted that a reply has been given, but it is artificial to suggest that anyone by failing to put anything in the record concerning a particular individual is thereby seeking to assert that no reply has been given by that person. That is not the purpose behind their inaction in not recording a response that has not been made.

Here, s 59 of the Evidence Act 2008 defines hearsay similarly to the provisions considered in DPP v Leigh.

edit: I published this article first on our Evidence Act blog, and Jeremy Gans has already posted his thoughts about the case there.

Our Evidence Act Dictionary defines representation as including:

(a) an express or implied representation (whether oral or in writing); or

(b) a representation to be inferred from conduct; or

(c) a representation not intended by its maker to be communicated to or seen by another person; or

(d) a representation that for any reason is not communicated;

When you look at (b) and (c) and consider that the 'representation' truly being considered is that by the accused driver — albeit inferred through the police records, which of themselves say nothing relevant about the case — I think Jeremy's right that here the hearsay rule would apply.

R v Darmody [2010] VSCA 41: first Court of Appeal decision on Criminal Procedure Act

The Court of Appeal yesterday published its reasons for judgment in R v Darmody [2010] VSCA 41 about:

• the application of the transitional provisions in the Evidence Act 2008
• their effect on the Evidence Act 2008
• the meaning of 'not available to give evidence' in the hearsay exception in s 65 of the Evidence Act 2008
• the notice requirements under s 67 of the Evidence Act 2008

There are a number of cases before the Court of Appeal under s 295 of the Criminal Procedure Act 2009 (appeals against interlocutory decisions). I'm pretty sure Darmody is the first one to be published — does anyone know any different? — and there are more to come.

There were four grounds of appeal by the accused applicant.

All were rejected by the Court of Appeal.

Darmody was charged with causing serious injury to and threatening to kill Brendan Jones. Jones refused to give evidence on a number of occasions, before and after the Evidence Act 2008 commenced operation.

1. Did the Evidence Act 2008 apply?

The Statute Law Amendment (Evidence Consequential Provisions) Act 2009 — doesn't the name just roll off the tongue? — inserted Schedule 2 in the Evidence Act 2008.

Clause 2 of Schedule 2 relevantly provides:

2 Application of this Act on commencement day

(1) Except as otherwise provided by this Schedule, this Act applies to any proceeding (within the operation of section 4) commenced on or after the commencement day.

(2) Except as otherwise provided by this Schedule, in the case of any proceeding (within the operation of section 4) that commenced before the commencement day, this Act applies to that part of the proceeding that takes place on or after the commencement day, other than any hearing in the proceeding that commenced before the commencement day and —

(a) continued on or after the commencement day; or

(b) was adjourned until the commencement day or a day after the commencement day.

The Court distinguished between a proceeding and a hearing in a proceeding, and held that the relevant hearing in a proceeding commenced after the commencement day and so the Evidence Act 2008 did apply to the case.

Unfortunately, the Court didn't go that next step and give us all a helpful definition of what a hearing in a proceeding is. But, I reckon it's pretty clear it's the part of a criminal proceeding when the judge rings the bell; the advocates take their corners; witnesses are examined and cross-examined; and legal submissions argued. Simply put, it's the main game, the meat in the sandwich, in contrast to all the other procedural steps in criminal proceedings leading up to the hearing proper.

It might be the Court considered it so obvious that it just didn't need spelling out.

2. Was the complainant available to give evidence?

The Court said the trial judge was right to follow R v Suteski (2002) 56 NSWLR 182; (2002) 137 A Crim R 371 and decide that if a witness refused to give evidence they are 'not available to give evidence' as provided in the Evidence Act's Dictionary, Part 2, cl 4(1)(f).

The Court particularly noted it was the accused himself who objected to further adjournment when the complainant might be prepared to give evidence. In any case, it wasn't certain the complainant would give evidence later on.

3. Did the accused suffer s 137 prejudice?

Section 137 is the probative-versus-prejudicial-value provision in the Evidence Act 2008.

On the appeal, the accused-applicant argued he would suffer prejudice if the complainant's committal evidence were led at the trial (under the s 65 exception) — in general terms, because the evidence couldn't be tested.

The Court fleshed out the details more than I'm paraphrasing here, but basically said "Nope", and also pointed out that any prejudice the accused suffered wasn't unfair prejudice of the type proscribed by the authorities. (Probably the leading case to make the point about unfair prejudice being the target is Festa v The Queen (2001) 208 CLR 593 at [22] and [24]. It probably wasn't cited in this case because Festa dealt with discretionary exclusion under the common law, while s 137 is a mandatory provision.)

4. Failing to give notice under s 67

Section 67 of the Evidence Act 2008 requires a party to give notice before it can adduce hearsay evidence under s 65(2). Evidence Regulations 2009 reg 5 specify what the notice must contain.

But, the Court might (in effect) waive that requirement under s 67(4), and impose conditions. The Evidence Act has a conditions-power in s 192.

The trial judge dispensed with the need for written notice, subject to certain conditions.

The Court of Appeal agreed, noting that counsel for the accused was told orally about two weeks before the hearing that the Crown might try to lead the hearsay-evidence, and had time to properly consider and respond to such an application. That meant there was no unfairness to the applicant.

More free online research resources

A few weeks ago the Department of Justice quietly added a new website to its collection, at www.courts.vic.gov.au.

It seems to replicate material from the various court-websites and also some content from the main site www.justice.vic.gov.au.

But, this one has the advantage of combining all court-related information in one place, and logically organised too! Another one for the bookmarks.

And another useful blog I stumbled across today is Legal Research Rescue. Seems I'm not the only person interested in online legal research! (And you all thought I was nerdy...)

Seems the author had a bit of break but is back blogging again. Regardless, it seems this blog is one in the quality-not-quantity category, and has some useful information.

For starters, I can recommend find your case on Austlii first time, every time for getting even better results from Austlii.

Summary case conference not the time to dismiss charges

Section 54 of the Criminal Procedure Act 2009 provides for summary case conferences between the prosecution and accused in a summary proceeding.



It's essentially a case-flow management system, or compulsory pre-trial conference, intended to make the parties sit down and sensibly resolve what can be resolved, and identify with some precision and particularity issues that can't be resolved, so valuable court time is used productively.



There's deliberately not a lot of detail in the Act about how or where a summary case conference should happen, to make it as flexible as possible for the parties to talk. The Magistrates' Court's Practice Direction 6 of 2009 Summary Case Conference Procedure doesn't add much, and nor does rule 21 of the Magistrates' Court Criminal Procedure Rules 2009.



But a recent South Australian decision considering similar provisions there suggests that while summary case conferences are subject to curial control, they're not a step in the curial process and so the court can't dismiss charges at that stage — even if they're called into open court.



A magistrate dismissed a charge of criminal damage at a pre-trial conference, largely because the prosecution had stuffed around for too long and hadn't complied with its disclosure obligations.



The Supreme Court held in Police v Beard [2010] SASC 49 that the magistrate didn't have the power to do that at a pre-trial stage — but in some cases either a permanent stay or costs order would be warranted.

One year on

QCIC is a year old. To be honest, I didn't remember the anniversary till my co-blogger Dr Manhattan pointed it out to me.

We've slowed down a little while we've both got a few other responsibilities, but I still have a growing pile of material to blog about!

Thanks to all our readers and commentators!

Jurisdiction for web-based offences

In January this year the United Kingdom Court of Appeal decided it had jurisdiction to try three people accused of posting racially inflammatory material on the internet even though the web-server hosting the material was in the USA.

In R v Sheppard [2010] EWCA Crim 65, the accused wrote and edited the material in England; uploaded and controlled it from England, and emailed it to another man in the USA who loaded it on the server there. At [23] the Court listed other factors indicating a substantial measure of the alleged acts occurred within the geographical jurisdiction of England — and that gave the English courts jurisdiction to try the charges.

The Court mentioned three suggested alternative tests for internet-crimes, at [33], but I reckon they're just different names for the initiatory, terminatory and real-and-substantial-link theories of jurisdiction I wrote about last year in Which jurisdiction?

It seems where criminal statutes don't specify jursidictional tests, courts are more prepared to step in and decide that they will try cases where it would be impractical to suggest they should be held elsewhere. This growing confidence of courts to deal with internet-based crime is not all that surprising, given the similar forum conveniens (most convenient forum) test has applied in civil disputes for years.