Friday, 30 April 2010

Summary case conferencing spreads farther

Summary case conferencing is now operating at all metropolitan Magistrates' Courts, and Geelong and Ballarat.

Oddly, this information was provided by the Law Institute to its Criminal Law Section members, but there's nothing about it yet on the Victoria Police website. Not only does this seem counter-intuitive, it's unhelpful for those lawyers who aren't members of the Criminal Law Section but still occasionally have clients with criminal law files.

Case conferencing formalises what good solicitors and barristers have been doing for years: speaking with prosecutors to identify and resolve issues. Summary case conference managers are prosecutors who can negotiate with practitioners about withdrawing or amending charges or summaries or liaise with police informants to obtain further information.

These are the summary case conference managers contact details.

prosecutions unit telephone fax email
Ballarat 5336 6122 5336 6125
Broadmeadows 9302 8263 9302 8264
Dandenong 9767 7460 9767 7450
Frankston 9784 5611 9770 5997
Geelong 5225 3254 5221 5020
Heidelberg 9450 8160 9450 8170
Melbourne 8628 3200 9670 5473
Moorabbin 9090 5888 9090 5899
Neighbourhood Justice Centre 9948 8715 9948 8719
Ringwood 9871 2777 9871 2755
Sunshine 9313 3334 9313 3337
Magistrates' Court Coordinators contact details are still available on the Magistrates' Court website.

Lawyers might also need to email the police informant. Criminal Procedure Act 2009 s 18 provides that the informant should provide an email address for service of documents. Another alternative for contacting police if you don't have their STMP email address is to use the format, using their five-digit registered number in place of the hashes. (For this to work, you do have to include the vp in the email address you type.)

Wednesday, 28 April 2010

Indirect speech in evidence

Edit: Jeremy Gans was kind enough to point out to us (in his comment on When is lay opinion necessary) that the NSW Court of Appeal suggested in Jackson v Lithgow City Council that the Evidence Act 1995 (NSW) should not be interpreted so narrowly that a witness would be prevented from giving the 'gist' of a conversation unless they could demonstrate they were unable to recount the exact words used.

Basten JA [at 63]:

63 The submissions did not seek to make good that last proposition. It gives rise to a question, not addressed in argument, as to whether the exclusion of opinion evidence found in s 76 of the Evidence Act was intended to exclude the kinds of inference and impression which would have been admissible under the general law, so that their continued admissibility depends upon the operation of the exceptions. If the exclusionary rule were intended to have such a comprehensive effect, it would be necessary to give a broad construction to, for example, s 78, so as to avoid the exclusion of evidence of impression and inference without which much testimony would become an unhelpful artefact. Even giving s 78 a broad operation might not properly resolve the matter. The recounting of a conversation commencing, “she then said words to the following effect ...” would only be admissible once the proponent of the evidence demonstrated the impossibility (or perhaps the impracticability) of repeating word for word what had been said. It seems unlikely that the structure of the Evidence Act (stating a rule of general exclusion, followed by exceptions) was intended to have such an impractical effect.

Basten JA's remarks were not essential to the deciding of the case, and so are not conclusive on the subject.

We mentioned last year a couple of cases that say witnesses may give evidence of indirect speech when they can't recall the exact words of a conversation.

I learnt last week of a case that says the principle applies for evidence given by affidavit as well.

In Hamilton-Smith v George [2006] FCA 1551 Besanko J considered an appeal dealing with rejection of an affidavit that didn't directly recount conversation but instead gave a summary of it.

[79] In theory, evidence of a conversation may be given in any one of three forms, namely, by recounting the actual words used by the parties to the conversation, or by recounting the substance or effect of what was said, or by recounting the witness’s conclusions as to the effect of the conversation. At common law, evidence of the conversation given in the first form is admissible and evidence of the conversation given in the third form is not. At common law, evidence in the second form is routinely admitted. Often a witness will be asked if he or she can remember the actual words used and if (as is often the case) they are not able to, they are invited to recount the conversation in terms of the substance or effect of what was said. When I use the word ‘effect’ here, I mean the effect of what was said, not the witness’s mere conclusions or impressions of the conversation.

[80] In Commonwealth of Australia v Riley (1987) 5 FCR 8, the Full Court of this Court said, albeit in the context of the Extradition (Foreign States) Act 1966 (Cth) (at 34):

‘Counsel submitted that there were two other categories of material which should also be disregarded: evidence of conversations which is not in the form of direct speech and statements of conclusions of witnesses. We disagree. Section 26(1)(a) of the Extradition (Foreign States) Act 1966 deals with the form of evidence in a proceeding under the Act namely:

"a document, duly authenticated, that purports to set out testimony given on oath, or declared or affirmed to be true, by a person in a foreign state is admissible as evidence of the matter stated in the testimony".

That provision is wide enough to authorise the proof of the substance of a conversation by a narrative using indirect speech. There is nothing in the Treaty to limit the application of that provision in proceedings to which the Treaty applies; Article XI(3) merely requires the transmission of "such evidence, as according to the laws of the requested state, would justify his trial or committal for trial ...". The provision deals only with the sufficiency, not the form, of evidence. The rule that evidence of conversations shall be given in direct speech is, in Australia, a rule of practice rather than of law; a practice that is probably now disregarded as often as it is followed. To apply to affidavits prepared in another country the rules of mere practice of our own courts would be substantially to diminish the utility of the Act; cf R v Governor of Pentonville Prison; Ex parte Passingham [1983] 2 AC 464.’

[81] In J D Heydon, Cross on Evidence (7th ed, 2004) page 476, the following passage appears (footnotes omitted):

‘The limits of one restriction on the form of testimony should be noted. Witnesses are commonly interrupted as they endeavour to recount conversations in indirect speech, and urged to give the actual words used. This is a counsel of virtue, but it is questionable whether it is a rule of law. A witness may give the witness’s best recollection of the substance, effect or purport of what was said, even though the exact words cannot be recollected, and the witness may also recount the impression made on the witness by whatever words were used. If so, it is hard to see why witnesses must be compelled into uttering untruths on oath by giving a form of words in direct speech with which they are not happy and which they cannot actually recollect in preference to their own words in indirect speech, so long as mere conclusions are avoided. "The rule that evidence of conversations shall be given in direct speech is, in Australia a rule of practice rather than of law; a practice that is probably now disregarded as often as it is followed". This is particularly so where the conversations took place a long time ago. Similarly, there is no provision in the Cth and NSW: Evidence Acts 1995 or the Tas: Evidence Act 2001 which makes inadmissible evidence of a conversation given in indirect speech, though the possibility of discretionary rejection under s 135 is available.’

See also, LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2001] NSWSC 688; (2001) 53 NSWLR 31 at [8] – [9].

[82] In my opinion, by and large the relevant paragraphs fall within the second form referred to above. It would appear that the Federal Magistrate considered that the paragraphs fell within the third form (see his reference to a ‘summary of the conversation’) and, in so doing, in my respectful opinion, he erred. No doubt there appear to be one or two objectionable passages in the relevant paragraphs and I refer, for example, to the reference to the respondent bragging. Furthermore, the evidence is clearly only admissible against the respondent and is not admissible to prove Mr Macks’ state of mind. Subject to those considerations, I think the evidence in the relevant paragraphs falls within the second form identified above and the only question is whether it should have been excluded because the appellant had not established by express evidence that Mr Gawronski could not give the evidence in direct speech. It would seem that that was not the basis upon which the Federal Magistrate excluded the evidence but it is a matter that needs to be considered.

[83] In my opinion, there is a rule of practice at common law that requires a witness to recount the actual words used in a conversation if he or she is able to do that: Commonwealth of Australia v Riley (supra); LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd (supra); J H Wigmore, 3 Wigmore on Evidence SS766 (Chadbourn rev 1970). If the witness is unable to recall the actual words used, he or she can give evidence of the substance or effect of what was said. A witness might say he or she cannot remember the actual words used. I think that as a matter of practice it is also open to the Court to infer that that is the case. I would be disposed to draw that inference in the case of the relevant paragraphs in Mr Gawronski’s affidavit bearing in mind the lapse of time between the conversation and the swearing of the affidavit, the apparent length and complexity of the conversation and the fact that an actual word used is from time to time identified by quotation marks. However, I do not need to finally determine the point because I think the evidence is admissible by reason of the provisions of the Evidence Act 1995 (Cth).

[84] Under the Evidence Act 1995 (Cth) evidence which is relevant is admissible subject to any exclusionary provision of the Act: s 56. The evidence in paragraphs 13.1 to 13.5 inclusive of Mr Gawronski’s affidavit is relevant. The only possibly relevant exclusionary provision is s 135 and in my opinion there is no question of the exclusion of the evidence under that section.

[85] In my opinion, subject to the matters I have mentioned, the Federal Magistrate erred in excluding paragraphs 13.1 to 13.5 inclusive of Mr Gawronski’s affidavit on the basis upon which he did.

Evidence by affidavit is not a common feature of summary criminal cases, because of s 129 of the Magistrates' Court Act 1989. Generally, that section used to require witnesses in the Magistrates' Court to give evidence on oath.

But with the commencement of the Evidence Act 2008 that provision is repealed, and Part 4.6 provides for affidavit evidence in some instances.

Additionally, affidavit evidence can be provided under provisions such as:

  • Criminal Procedure Act 2009 s 399 and Magistrates' Court Criminal Procedure Rules 2009 r 13(5)

  • Family Violence Act 2009 s 55 and 66

  • Magistrates' Court Act 1989 s 75 (application for search warrants)

In all of those cases, it seems it's preferable for the deponent to recount conversation in direct speech if possible, but there's no bar to admissibility of the affidavit if they can't, for that reason alone.

Tuesday, 27 April 2010

Throwing a light on the High Court

I just came across a new legal blog yesterday. Turns out it quietly started in January this year. Or maybe it was with great fanfare, and I was just asleep at the time...

Whichever it was, the blog seems good value. There are four bloggers posting on cases heard in and decided by our High Court, including discussion and analysis on cases as they are argued, and applications for leave to appeal — which is a great way of getting a heads-up on possible imminent changes to the law.

The blog is called The Lampost, inspired by the quote ‘legal academia is used as a drunk uses a lamp post, more for support than illumination’. You can get the RSS feed here. (For some reason, I get only feed headings in Google Reader. No text from the post. Anyone else get that?)

Give 'em your support and check it out.

Monday, 26 April 2010

New address

Over the weekend I took the jump to use Blogger's option for custom domain names, settling on

Apparently by doing it through Blogger, as I did, means that all the existing hyperlinks should automatically redirect to the new address.

So far, after 15 minutes, the new domain is working, and most posts seem to be re-directing to that new address. Blogger says old links will be automatically re-directed, so I won't have to rewrite all our posts! I sure hope so.

So far the only thing that doesn't seem to be working properly are the comments. It can take up to 24 hours for all the technical stuff to happen in the background, so I hope this is just a short-term glitch and they'll all be back soon.

In the meantime, if you see anything strange on the site, let me know and I'll see if I can figure out if I can fix it!

Sunday, 25 April 2010

Deportation as mitigation

Further Edit: The case of Mann v The Queen [2011] VSCA 189 treats the use of deportation as mitigation as a settled issue, citing Guden.

Edit: Regular contributor Habeas Corpus has alerted me that the Victorian Court of Appeal has clearly rejected the reasoning in Moh v Pine in Guden v The Queen [2010] VSCA 196. Deportation at the end of a period of imprisonment is a legitimate sentencing consideration in this state (subject to it being of sufficient likelihood for the Court to appropriately consider it). Maxwell P, Bongiorno JA and Beach AJA [at 25]:

25 In our view, authority does not require, and there is no sentencing principle which would justify, a conclusion that the prospect of an offender’s deportation is an irrelevant consideration in the sentencing process. As a matter of principle, the converse must be true. Like so many other factors personal to an offender which conventionally fall for consideration, the prospect of deportation is a factor which may bear on the impact which a sentence of imprisonment will have on the offender, both during the currency of the incarceration and upon his/her release.

Contrast with the Court of Appeal's decision in Ngyuen v The Queen [2010] VSCA 244. Both sides conceded that the judge had erred by failing to impose a non-parole period because of the almost certain prospect of the offender (who had overstayed their visitor's visa) would be deported when released from prison. The Court of Appeal held that both Strethsa and the relevant provisons of the Sentencing Act required consideration of a non-parole period to ignore the prospect of deportation.

Weinberg JA [at 4]:

4 The authorities make it clear that the likelihood that a person will be deported after that person has completed his or her actual custodial sentence is entirely irrelevant when considering whether a non-parole period should be fixed.

and at 23:

23 Whether or not the appellant is, in fact, deported, as seems almost certain, is of course a matter for the executive, and has nothing whatever to do with this Court’s disposition of this appeal.

Why the possibility of deportation is relevant in mitigation (as in Guden's case) but not when fixing a non-parole period (as in Ngyuen) has yet to be properly explained.

I've frequently heard the effect of a criminal sanction on a foreign national raised as mitigation in the Magistrates' Court. For example, a court may be told, 'my client currently has a visa application under consideration, and a conviction for these charges will probably spell the end to that'.

Given that courts often take into account the potential consequences of their sentences on an offender's employment prospects or travel plans (see the Elucubrator's Have conviction, will travel from last year) this hardly seems unreasonable.

I was surprised to read the other day that migration implications are, 'a matter for immigration authorities and not a matter that the court could consider': Moh v Pine [2010] ACTSC 27 at 43. In that case, the ACT Supreme Court held that a magistrate had been wrong to take into account when sentencing that the accused might be deported and refused re-entry to Australia.

Support for this view was said to come from R v Tsui (1985) 1 NSWLR 308, [Street CJ at 310],

The two matters of serving out sentences passed by criminal courts and of
implementing the immigration laws stand in entirely separate compartments.
The Commonwealth stands back in order to allow the criminal and penal
laws and orders to be carried through to the point where the criminal is freed
from custody. The Commonwealth then proceeds in accordance with the
policy enunciated by the Minister on its behalf.

That case dealt with the refusal to specify a non-parole period of a person who was likely to be deported after serving sentence. The principle has been carried through more broadly, notably in Dauphin v R [2002] WASCA 104 where Steytler J said at 21 -22 (Anderson and Mechechnie JJ agreeing):

Secondly, counsel for the applicant informed the Court that she had recently been advised that the applicant will be deported to New Zealand at the completion of his sentence. She suggested that this should be taken into account by the Court when considering the appropriate sentence to be imposed, particularly in light of the prospect of reconciliation between the applicant and his de facto partner and the fact that the applicant no longer has any connection to his country of birth.

[22] In my opinion, this submission is without merit. In R v Chi Sun Tsui (1985) 1 NSWLR 308 at 311, Street CJ (with whom the other members of the Court were in agreement) said that "the prospect of deportation is not a relevant matter or consideration by a sentencing Judge, in that it is the product of an entirely separate legislative policy area of the regulation of society". Those remarks were cited with apparent approval by Brennan and McHugh JJ in R v Shrestha (1991) 173 CLR 48 at 58. Furthermore, as McPherson JA explained in R v S [2001] QCA 531 at [6], taking the prospect of the applicant's deportation into consideration has the potential to "produce a regime under which visitors or non-permanent residents [are] sentenced more leniently than Australians who [have] committed the same kind of offence. That cannot be a proper result in the administration of justice".

In Islam v R [2006] ACTCA 21 the ACT Court of Appeal explicitly endorsed a paragraph of Doyle CJ's judgment in R v Berlinsky [2005] SASC 316 where his Honour said [at 27],

... at the end of the day the Judge had to impose an appropriate sentence having regard to the relevant circumstances. It would be wrong for the Judge to impose a lesser sentence than was appropriate on the basis that the shorter the sentence the better the prospects of the Minister permitting Ms Berlinsky to avoid deportation. And as to the fact of deportation, there was really nothing that the judge could do. The risk was there, whatever the Judge might do. While the risk of deportation is a matter that naturally arouses one’s sympathy, it is difficult to see how it can affect the sentencing process. As Ms Abraham QC, counsel for the respondent, correctly pointed out, deportation is a matter for the Executive Government. It is irrelevant, as such, as a sentencing consideration.

In R v Latumentan & Murwanto [2003] NSWCCA 70 the principle that the prospect of deportation is not a matter properly to be taken into account for sentencing purposes was described as 'well settled' by Studdert J [at 19]. Cummins J also described the principle as 'well settled' [at 42] when sentencing an offender in the case of DPP v Zhou [2008] VSC 239, suggesting there's a uniform approach across the Australian jurisdictions.

Saturday, 24 April 2010

DPP v Twigg & Anor [2010] VSC 145: ticking the boxes

The Supreme Court recently ruled in DPP v Twigg & Anor that the failure of a police informant to tick a box on the charge and summons document did not lead to the invalidity of process, and remitted the matter to the Magistrates' Court to be dealt with according to law.

Barrister Warwick Walsh-Buckley had argued before a magistrate that the failure of the informant to tick a box marked 'police informant' meant that a true copy of the summons had not been served pursuant to the Magistrates' Court Act 1989. The magistrate did not decide that question but instead struck the matter out on the basis that the summons had not been validly issued.

Bell J rejected both propositions.

7 In Director of Public Prosecutions v Diamond, Kaye J decided that, under reg 302 of the Magistrates’ Court General Regulations 2000, as long as the summons had been signed, failing to tick the officer designation box did not mean the summons was invalid.

8 I would follow this decision unless it was clearly wrong. Far from that, I respectfully agree with Kaye J. The present case is covered by r 2.02(a) of the Magistrates’ Court (Criminal Procedure) Rules 2006. That is not a distinguishing feature. The rule is in the same terms as the regulation considered by his Honour.

9 Under r 2.02(a), a summons signed by an authorised officer, and otherwise in proper form, is validly issued even if the officer designation box is not ticked. The process for commencing a prosecution is not invalid because a summons in such a form is served on the defendant. The summons served on Mr Twigg in the present case falls into this category. It, and the process of commencing the prosecution, was valid.


11 I will determine this issue because, if the summons has not been properly served, I would exercise my discretion to decline to grant judicial review. The prosecution would be bad, but not for the reason determined by the magistrate.

12 Mr Twigg submitted that a defendant needed to know the designation of the issuing officer for a number of important procedural reasons. Accepting that principle, I think Mr Twigg had three straightforward ways of obtaining this information.

13 First, the box next to ‘S 30’ was ticked. This referred to the procedure in s 30 of the Magistrates’ Court Act. A simply inquiry of the court, or of a source of legal advice, would have revealed that this procedure is used by members of the police force, such as the informant in the present case, to issue a summons. Secondly, as I have said, the signatures on the served summons reveal it was signed and issued by the informant. Thirdly, if Mr Twigg was in any doubt, he could simply have contacted the court or searched the file. As the officer designation box had been ticked on the court copies, this would have confirmed the informant had issued the summons.

14 In any event, I do not accept that to serve a copy summons (otherwise in proper form) without the officer designation box ticked is not to serve a ‘true copy’ of the issued summons. This is not a case like Nitz v Evans where, contrary to r 2.02 of the Magistrates’ Court Civil Procedure Rules, the served summons had not been signed. This is a case where, as required by s 34(1)(b)(i) of the Magistrates Court Act, the summons served on Mr Twigg was a signed copy. As Hayne J held in Nitz v Evans, the requirement is for service ‘of a copy which will show to the defendant [the] fact of issue.’ That was what the summons served here did. For these reasons, I conclude the signed copy of the summons served on Mr Twigg was, as required, a ‘true copy’ of the summons which was issued.

Section 30 of the Magistrates' Court Act has now been repealed and replaced by s 14 of the Criminal Procedure Act 2009.

Friday, 23 April 2010

De facto binding precedent and parity

Late last year Dr Manhattan wrote a post on de facto binding judgments.

The NSW Court of Criminal Appeal last week considered the effect of de facto binding judgments, and not following its own previous decisions when deciding a parity appeal in Jimmy v The Queen [2010] NSWCCA 60.

Parity is the principle in sentencing that offenders should be punished as similarly as possible as their circumstances and culpability allow.
It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account. The fact that one co-offender has received a sentence which is more severe than that imposed on a co-offender whose circumstances are comparable would provide no reason in logic for reducing the former sentence, if the only question were whether that sentence, viewed in isolation, was manifestly excessive. Lowe v The Queen (1984) 154 CLR 606 at 609.

The question was if a man charged with money laundering that involved two other men who he didn't know, and didn't know were also involved in the same scheme of money laundering, was entitled the benefit of the parity when he was sentenced.

The Court conducted a wide-ranging review of appellate cases from across the country, and concluded that ‘co-offenders’ could include participants in a common criminal enterprise, even if the participants weren't aware of that commonality!

One concern for the Court was the effect of two previous Court of Appeal decisions: R v Howard (1992) 29 NSWLR 242 and R v Kerr [2003] NSWCCA 234.

Campbell JA said at [88]:
R v Howard is authority for the proposition that people who participate in a common criminal enterprise, but are charged with different offences concerning that enterprise, cannot have their sentences compared in a way that seeks to undo or correct for any anomaly that there might appear to be as a consequence of the different charges that the people faced.

At [116] he said:
Kerr supports the application of the “parity principle” as a basis for reduction of a sentence if it is disproportionate to the sentence imposed on a person with whom the applicant has been engaged in a common criminal enterprise, but who has been charged with contravention of different provisions of the criminal law, and in that sense has not committed the same crime as the applicant.

The Court of Appeal here was faced with two of its own conflicting decisions, and a general rule that it should be cautious to depart from its own decisions, as well as the concept that judgments of interstate courts of appeal can be de facto binding on it!

The phrase ‘de facto binding‘ comes from Alastair MacAdam and John Pyke in their book Judicial reasoning and the doctrine of precedent in Australia, especially around [7.1] – [7.3]. They described it as:
[A]s a general guidence the concept covers decisions which (though not strictly binding) should be followed by another court unless there are good reasons for not doing so. The concept is more than judicial comity, that is something more than the respect judges give to decisions of other courts and judges.

I haven't seen the phrase yet in any judgments, though the concept certainly does exist and is applied.

Here in Victoria, our own Supreme Court considered that it ought to consider itself bound by judgments of interstate Courts of Appeal.
On the other hand, though not binding upon this Court, the decision in Kodak's Case is of high persuasive authority. For the past 40 years it has remained the law in New South Wales, and, as I have noted, it was followed and applied by this Court in Green v Windman; Scottish Union and National Insurance Co Ltd, Third Party, [1964] VR 297.

In circumstances where there is absence of any binding authority, there are sound reasons for seeking uniformity of the common law throughout the Commonwealth of Australia by following a decision of an appellate court of another State unless it is manifestly wrong: Body Corporate Strata Plan No 4303 v Albion Insurance Co Ltd 1982 VR 699 at 705 per Kaye J.

Albion Insurance is still good law, was applied most recently by Kaye J (!) in British American Tobacco v Gordon (No 3) [2009] VSC 619.

Similar reasoning applies for State courts exercising federal jurisdiction: R v Parsons [1983] 2 VR 499 at 506.

The High Court held in Nguyen v Nguyen that Courts of Appeal aren't strictly bound by their own judgements, but should be reluctant to depart from them. Similarly, the High Court isn't strictly bound by its own decisions, but is cautious before jettisoning accepted precedent and the certainty that comes with it.
The extent to which the Full Court of the Supreme Court of a State regards itself as free to depart from its own previous decisions must be a matter of practice for the court to determine for itself....The arguments in favour of certainty and against rigidity have been rehearsed on numerous occasions and no purpose is to be served by repeating them here...It should be observed, however, that neither the Court of Appeal in New South Wales nor the Full Courts in Victoria and South Australia regard themselves as strictly bound by their previous decisions...There is no reason to think that the practice in Tasmania is any different, but in The Transport Trading and Agency Co of WA Ltd v Smith (1906) 8 WAR 33 there was the suggestion of a contrary practice in Western Australia. In Victoria a procedure is adopted whereby a Full Bench of five or more judges is convened if a decision of a Full Court of three judges is to be reviewed: see Kidd, "Stare Decisis in Intermediate Appellate Courts" (1978) 52 Australian Law Journal 274. The Full Court of the Federal Court will depart from a previous decision if convinced that it is wrong...

Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predicability of the law...: Nguyen v Nguyen (1990) 169 CLR 245 at 269 (citations omitted).

The principle applies even more strongly when courts consider national uniform legislation: ASIC v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 497. That case was applied by the High Court just a few years ago when it said:
Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law. There has already been an example of a single judge feeling obliged to follow the Court of Appeal despite counsel’s submission that he was obliged not to do so: Farah Constructions Pty Ltd v Say-dee Pty Ltd (2007) 230 CLR 89 at [135].

The High Court recently took the opportunity to re-affirm Farah, and gave the NSW Court of Appeal a bit of a nudge to remind it about the de facto binding principle when it said:

[50] It was said by the New South Wales Court of Appeal in Gett v Tabet that Farah Constructions “expanded” the principle applied to the construction of national legislation and explained in Australian Securities Commission v Marlborough Gold Mines Ltd. But that is not correct. The principle has been recognised in relation to decisions on the common law for a long time in numerous cases before the Farah Constructions case. It was also recognised in Blow J's judgment in this very case. The principle simply reflects, for the operation of the common law of Australia within Australia, the approach which this Court took before 1986 in relation to English Court of Appeal and House of Lords decisions, as stated in Wright v Wright.

[51] In contrast, the Full Court majority did not say whether it thought the decision of the New South Wales Court of Appeal in Cole's case was plainly wrong, but it did not follow it. It distinguished it. This was a legitimate course to take, and consistent with the New South Wales Court of Appeal's approach, if the Full Court majority regarded the present case as “exceptional”. Counsel for the Board and Mrs Scott submitted to the Full Court, as they also submitted to this Court, that the present case was exceptional, and that Blow J had erred in not finding that it was exceptional. The Full Court majority did not in terms describe the case as exceptional. Unless the Full Court majority had concluded, giving reasons, either that the present case was exceptional, or that the New South Wales Court of Appeal was plainly wrong, it was its duty to follow the New South Wales Court of Appeal. The Full Court majority did not conclude that the present case was exceptional or that the New South Wales Court of Appeal was plainly wrong. Hence it did not carry out its duty to follow the New South Wales Court of Appeal. If these appeals had not been brought, there would have been an undesirable disconformity between the view of the New South Wales Court of Appeal as to the common law of Australia and the view of the Tasmanian Full Court majority. At best the Full Court decision would have generated confusion. At worst it would have encouraged the commencement of baseless and ultimately doomed litigation, to the detriment both of the unsuccessful plaintiffs and of the wrongly vexed defendants: CAL No 14 Pty Ltd v Motor Accidents Insurance Board; CAL No 14 Pty Ltd v Scott (2009) 239 CLR 390 at [50] – [51].

In light of that comment, I can imagine why the NSW Court of Criminal Appeal was keen to explain why it thought that Kerr wasn't good law and ultimately conclude that it should follow Howard.

In the end, the Court concluded at [203]:
There are significant limitations, however, on reducing a sentence on the basis of that of a co-offender who has committed a different crime. At least some of the limits on the use of the parity principle in such a case are:

  1. It cannot overcome those differences in sentence that arise from a prosecutorial decision about whether to charge a person at all, or with what crime to charge them...
  2. If it is used to compare the sentences of participants in the same criminal enterprise who have been charged with different crimes, there can be significant practical difficulties. Those practical difficulties become greater the greater the difference between the crimes charged becomes, and can become so great that in the circumstances of a particular case a judge cannot apply it, or cannot see that there is any justifiable sense of grievance arising from the discrepancy...
  3. It cannot overcome differences in sentence that arise from one of the co-offenders having been given a sentence that is unjustifiably low...
  4. There are particular difficulties in an applicant succeeding in a disparity argument where the disparity is said to arise by comparison with the sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the applicant...

Jimmy's sentencing appeal was refused.

Thursday, 22 April 2010

Commonwealth Bill of Rights off the table

Amid the babble of media speculation and deafening silence of suppression orders surrounding the death of a prisoner at Barwon Prison this week, you may have missed the more significant news (in a lasting sense, at least) that the Commonwealth government have decided against a Federal Bill of Rights.

While there's a promise to review it again in a few years, the current generation of Liberals are also on record as being opposed to a statutory Bill of Rights. The concept is now unlikely to get a serious re-visit until Australia becomes a republic.

I've been looking for a podcast of the speech Rob McClelland delivered at the National Press Club yesterday but can't find one. Here's the transcript.

Wednesday, 21 April 2010

Standard of proof for family violence orders

Sections 53 and 74 of the Family Violence Protection Act 2008 provide that a court must be satisfied on the balance of probabilities that an interim or final family violence protection orders is justified.

The police frequently apply for these orders to protect an affected family member. Because police tend to be involved in the more serious complaints of family violence, criminal conduct is often alleged against a respondent — though for various reasons, they aren't always charged.

That doesn't necessarily mean that family allegations founded on criminal conduct must only 'just' be proved on the balance for a court to be satisfied a family violence protection order should be made.

Briginshaw v Briginshaw (1938) 60 CLR 336 discussed the civil standard of proof in a divorce case. Before no-fault divorce someone who wanted a divorce had to prove there were grounds for the divorce — typically something tawdry like adultery or desertion.

An oft-quoted canon from that case is this part of Dixon J's judgment, at 361–2:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

What this means in essence is that it's not enough to simply conclude that a particular issue is 51% likely versus 49% unlikely, and so it's proved on the balance of probabilities.

Rather, the tribunal must be positively persuaded of the fact to be proved, and should take into account the nature and consequence of that fact or facts — particularly when those facts allege criminal conduct.

So if the conduct relied in a family violence protection order application is criminal conduct, the court should require something more compelling to satisfy it on the balance of probabilities that the order is warranted.

This principle was applied by the family court in two cases involving allegations of family violence interwoven with intervention order applications under the now-repealed Crimes (Family Violence) Act 1987: Adams v Adams (No 8 final orders) [2007] FamCA 1083 and Raymond v Harold [2009] FamCA 155.

Additionally, section 65(1) of the Act provides:
Subject to this Act, in a proceeding for a family violence intervention order the court may inform itself in any way it thinks fit, despite any rules of evidence to the contrary.

That doesn't mean the rules of evidence don't apply in such proceedings — merely that a court might choose to inform itself other than in accordance with those rules if it thinks it should. (Evidence Act 2008 s 190(3) also provides for a similar result in certain circumstances.)

In Pearce v Button (1986) 8 FCR 408; (1986) 65 ALR 83 the Full Court of the Federal Court considered similar provisions and concluded they weren't confined to dispensing with the rules of evidence just for formal matters...but courts should be cautious about dispensing with the rules on contentious and disputed issues — particularly when it would deny the other party the opportunity to challenge and test the evidence and resulted in denying them procedural fairness.

And our own Supreme Court held that hearsay evidence in an intervention order application could still be inadmissible, despite a provision like s 65(1): Kirby v Phelan [2003] VSC 43.

And of course, the court is entitled to consider the weight of evidence received contrary to the rules of evidence when it considers if it's satisfied of the facts that must be proved. And that might also properly come into play when deciding if the facts in issue are established in accordance with the Briginshaw standard.

For that reason, whenever possible, a party should look for evidence that complies with the rules of evidence, both to maximise the strength of its case and to minimise the potential for injustice — which might in turn result in appeal or review.

Saturday, 10 April 2010

Careless or dangerous?

Edit: The Judicial College have updated their Charge Book since this post was written. (Thanks to Habeas Corpus for letting me know). Commentary on De Montero's case can be found around 7.2.9.

What's the difference between careless and dangerous driving?

The obvious answer is the penalty. A person found guilty of careless driving may or may not lose their licence, depending on the circumstances and the magistrate they're before. Someone found guilty of dangerous driving is off the road for a mandatory minimum six month period. Further, dangerous driving carries with it the possibility of the slammer, where careless driving doesn't.

What's the difference in law? There's clearly a degree of overlap. An act that meets the classic Simpson v Peat [1952] 2 QB 24 test - falling below the standard of care that a reasonable and prudent driver would display in the same circumstances - can also meet the requirements of objective dangerousness necessary to found a charge under s 64.

Sub-section 64(3) states,

(3) If on a prosecution for an offence under this section the court is not satisfied that the defendant is guilty of that offence but is satisfied that
the defendant is guilty of an offence against section 65, the court may
convict the defendant of an offence against section 65 and punish the
defendant accordingly.

In practice, legal argument about whether a particular act constitutes careless or dangerous driving is rare. Despite the serious impact on an accused's licence, such judgments seem to be left to a magistrate's intuition which side of the theoretical divide it falls on.

There's plenty of common law authority on the topic, though it rarely gets referred to. The issue comes up a fair bit in the higher courts, usually surrounding driving causing death. In The King v Coventry [1938] SASR 39, the South Australian Court of Appeal laid out some tests for dangerousness. The High Court refused to hear an appeal from their decision, publishing their reasons as R v Conventry (1938) 59 CLR 633 for reaching that conclusion. Some practitioners consider the High Court to have approved the SA Court of Appeal's decision in Coventry, though the High Court said a number of times in the judgement that it didn't want to explore the issues in detail. (As Elucubrator discussed last year, reasons given for refusing leave to appeal do not create binding ratio.)

The SA Court of Appeal said (and the High Court seemed to agree) that what constitutes dangerous driving, like careless driving, has objective elements, and no specific state of mind is required to be proven. From Coventry comes the principle that the standard required for dangerous driving is less than the standard required for culpable driving (that being gross negligence). It referred to the following passage from the judgment of Lord Atkin in Andrews v Director of Public Prosecutions:

I cannot think of anything worse for users of the road than the conception that no-one could be convicted of dangerous driving unless his negligence was so great that if he had caused death he must have been convicted of manslaughter.

The SA Court of Appeal continued:

But in this state, Parliament has been fit to act upon the view that, in order to discourage dangerous practices by the drivers of motor vehicles, it is necessary to hold out the threat of serious punishment, whenever death is caused by a contravention of the prohibitions against driving at a speed or in a manner which is dangerous to the public. In our view of s 14 a charge of driving recklessly or in a culpably negligent manner must no doubt be supported by evidence which satisfies the jury that the defendant was guilty of a very high degree of indifference to the risk of injury to others. The charge is said to involve mens rea – some indeterminate state of the defendant’s mind which no-one has so far been able to define ... but a proper charge of driving at a speed or in a manner which is dangerous to the public the prosecution is no so much concerned with the state of the defendant’s mind as with his conduct. The essence of this charge is the objective fact – the risk of injury to others. In this form of the charge it alleges that the conduct of the defendant attained to a standard which is ‘objective impersonal and universal, fixed in relation to the safety of other users of the highway’ (McCrone v Riding [1938] 1 All ER 157.) As a matter of pure reason, we think that the difference between these two forms of offences is much more obvious in the approach than in the final result. A man can’t be held to be driving recklessly or with culpable negligence unless the manner of driving involves ‘danger to the public’ and it is difficult to see how a jury, properly directed could hold that the defendant was driving at a speed or in a manner dangerous to the public, unless the evidence justifies the inference of a fairly high degree of indifference to the safety of others ...

The fact to be proved in this case was that the defendant was driving in a manner which was dangerous to the public, and if it is necessary to attempt a definition we should say that driving in a manner dangerous to the public means the act of driving in a manner which any ordinary person (in the situation of the driver) would recognise as dangerous, in the sense that it involves a risk of injury to others which exceeds the ordinary risks of the road – the common place incidents of the use of the highway in question under the conditions of modern transport by fast moving vehicles.


77 To determine whether driving was dangerous calls for the application of the objective test to all of the circumstances relevant to the manner of driving. Authority and principle dictate that the test remains an objective one which enquires whether an ordinary or reasonable person in the driver’s situation would regard the manner of driving as creating an appreciable risk to the public. For example, the speed at which a motor vehicle is driven can itself constitute a danger to the public where it greatly increases the risk of accident. That will more likely be so where it is a speed greatly in excess of that permitted by law. But driving a vehicle within the speed limit prescribed by law will not necessarily mean that a reasonable person would not regard that speed or the manner of driving as dangerous. Conversely, though members of the public generally do not anticipate that speed limits will be ignored, there may be circumstances where a reasonable person would not conclude that driving at a high rate of speed well in excess of the speed limit has created a real potential for danger.

78 Thus for driving to be in ‘a manner dangerous to the public’, it must be such that an ordinary or reasonable (if there be any difference) person in the situation of the driver would recognise it as involving an appreciable risk of serious injury or death to other users of the road; a real and potential danger which exceeds the ordinary risks of the road which may include a lack of due care and attention. It involves a serious breach of the proper management and control of the vehicle, being more than an ordinary and everyday occurrence involving a breach of the road rules or a lack of due care sufficient for a civil negligence claim. But it involves less than the gross negligence and great falling short of the standard of care which a reasonable person would have exercised in the circumstances which is required for culpable driving.

The Victorian Court of Appeal developed the point further in R v De Montero [2009] VSCA 255 when it outlined the differences between culpable driving and the newer offence of dangerous driving causing death under s 319 of the Crimes Act 1958. The Court indicated [at 24] that the same considerations were applicable whether the offence is the summary form at s 64 of the Road Safety Act 1986 or the indictable form of causing death or serious injury at s 319 Crimes Act.

The Court quoted a Department of Justice report from 1992 that suggested a jury direction in the following terms,

Clearly, it is not always easy to distinguish between driving which is so bad as to constitute manslaughter, that which is bad enough to make the accused guilty of the lesser offence of dangerous driving causing death, and that which is merely careless. However, it will help you to make up your mind if you think of a scale. At the bottom of this scale are cases of momentary carelessness – the kind of driving errors which most of us may make from time to time, when we are not concentrating as carefully as we should. At the top of this scale is driving which we would all agree is totally unacceptable. Driving of the kind required to prove manslaughter belongs near the top end of this scale – it is a gross departure from what we would expect of a careful and competent driver. Dangerous driving is driving which falls more towards the middle of the scale. It is driving which we would all agree is unacceptable and deserves to be punished, but it is not so bad as to warrant that person being convicted for manslaughter. On the other hand, it involves considerably more than just a momentary, perhaps excusable, mistake or error of judgment.

Discussion followed about Coventry, McBride and Jiminez v The Queen. The Court summarised what a jury should be told [at 80]:

It must be made clear to the jury, in appropriate language, that before the jury can convict of dangerous driving, it must be satisfied:

1. That the accused was driving in a manner that involved a serious breach of the proper management or control of his vehicle on the roadway such as to merit criminal punishment. It must involve conduct more blameworthy than a mere lack of reasonable care that could render a driver liable to damages in civil law.

2. That the breach must be so serious as to be in reality, and not just speculatively, potentially dangerous to others who, as members of the public, may at the time be upon or in the vicinity of the roadway. (A momentary lack of attention would not be sufficient, of itself, to constitute such driving.)

3. That the manner of driving created a considerable risk of serious injury or death to members of the public.

4. That the risk so created significantly exceeded that which is ordinarily associated with being on or near a highway.(We have replaced the phrase ‘real and appreciable’ which appears in some cases with the word ‘considerable’ which we think will be more readily understood by the jury. The word ‘real’ adds nothing if the risk is considerable.)

5. That in determining whether the manner of driving was ‘dangerous’ the test is an objective one. Would a reasonable driver (We have used the ‘reasonable person’ rather than ‘ordinary person’ because it is employed in the case of culpable driving: R v De’Zilwa [2002] VSCA 158. But we see no difference of substance between the two concepts.) in the circumstances of the accused have realised that the manner of driving involved a breach of the kind discussed in paragraphs 1 and 2, and also gave rise to the risk identified in paragraphs 3 and 4.

Friday, 9 April 2010

R v Williamson [2009] QSC 434: the ends justify the means

They're a little strange up there in the Sunshine State - and I'm not just talking about the policemen who wear shorts and judges who Google legal terms rather than asking for submissions from counsel.

In The Queen v Williamson [2009] QSC 434, the Queensland Supreme Court needed to determine the admissibility of some highly incriminating evidence that the police had unlawfully obtained by forcing entry to a pair of sheds without a warrant.

[3] Inside Shed 20 was about $4000 in cash, a small quantity of cocaine, more than five kilograms of high grade cannabis packaged for sale in a variety of weights, tablets and substances containing more than 200 grams of Methylamphetamine, 1500 light brown tablets containing in excess of 26 grams of Methylenedioxyethylamphetamine and more than 80 grams of Methylenedioxymethamphetamine, cannabis seeds, a .45 calibre pistol, ammunition and electronic scales (weights are estimated pure).

[4] In Shed 28, more than $500,000 in cash was discovered.

The Queensland Police Service have recourse to a statutory power not available to their brothers and sisters down here. It allows them to enter and search places if they believe that evidence will be concealed or destroyed if they do not act immediately: s 160 Police Powers and Responsibilities Act 2000. The police then apply for a post-search approval from a magistrate, which will be granted if the magistrate is satisfied that the preconditions for a search without authority had been met.

Byrne SJA ruled that although a magistrate had subsequently granted this post-search approval this wasn't conclusive as to the admissibility of evidence at trial. This was particularly so where it seemed impossible to expect that the police held such fears of the loss of the evidence once they had the buildings surrounded.

[25] [The lead investigator] arrived at the sheds to find Shed 20 externally locked and secure. He found nothing to suggest that anyone might be inside. He must surely have realised, as was obvious, that with him and at least one other officer there, no one else would try to enter. Or in the highly improbable event that anyone attempted to do so, clearly the police would have been justified in entering immediately to prevent concealment or destruction of the contents.

[26] In those circumstances, at the time the police entered Shed 20, there was no basis for a suspicion that things inside that shed might be concealed or destroyed in the absence of immediate entry.

The searches were deemed unlawful. The trial judge then had to decide what to do with the evidence unlawfully obtained, applying the principles of Bunning v Cross (1978) 141 CLR 54 and Ridgeway v The Queen (1995) 184 CLR 19.

After further discussion of the relevant authorities, Byrne SJA said,

[50] Should the discretion be exercised to exclude evidence of the things found in the illegal searches?

[51] The deliberate disregard of the law by those whose duty it is to enforce it (see Stead at 671, citing Bunning v Cross at 78) is a highly significant factor, favouring exclusion of evidence of what was found in Sheds 20 and 28.

[52] So, too, does the consideration that a search warrant could easily have been obtained, and in circumstances where a delay in entering while the warrant was obtained could not have resulted in concealment or destruction of shed contents.

[53] But what was found in the sheds seems vital to the prosecution case.

[54] In the circumstances, exclusion of evidence of the shed contents could well let a man guilty of serious crimes go free. (Mr Farr acknowledges, appropriately enough, that a conviction after a trial in respect of this trafficking charge would attract a sentence of at least ten years imprisonment.)

[55] Here, then, there is every chance that suppression of the truth would impose substantial social costs.

[56] Weighing the pertinent factors, the balance decidedly favours refusal of the application to exclude evidence about the shed contents.

Perhaps the Queensland Supreme Court placed great emphasis on the cogency of the evidence that resulted from the search, though it didn't say that. (Cogency is one of the considerations the High Court put forward as relevant to the exercise of the Bunning v Cross discretion, though I hadn't understood the Court to mean that it's relevant to consider whether the accused is guilty of the offence and then work backwards to decide admissibility of the evidence that would prove it). The seriousness of the crime alleged was obviously a factor favouring admission.

It will be interesting to see whether the ruling is upheld on the (almost inevitable) appeal.

Thursday, 8 April 2010

JADE: another electronic judgement resource

A colleague recently put me on to JADE (judgments and decisions enhanced). It's provided or supported by BarNet, which —it turns out — has been around for 8 years. BarNet is run in NSW, primarily aimed at barristers at the NSW Bar, though it's not (it seems) a NSW Bar committee or service.

JADE provides an alert service for new judgments, and digest service for feeds of new cases by topic and brief outline of their content.

You can read about JADE here.

A new feature offered by JADE is CaseTrace, which provides a subsequent judicial-citation service. The difference with JADE's version is that it will provide pinpoint references to paragraphs!

It's easier to see it, than explain it. For example, I searched for Dyers v The Queen.

In the right-hand side of the screen you can see CaseTrace, showing which paragraphs have been cited in later judgments.

Clicking on any of those hyperlinks will jump to the corresponding paragraphs, and an expanding menu to show the subsequent citation history of those paragraphs.

There's also a most recent citation option, which you can see displayed in the picture above.

Wednesday, 7 April 2010

It pays to advertise ...

Something I tripped over on the Law Institute of Victoria's website:

In July 2010 the LIV will launch the first edition of the National Guide of Expert Witnesses. The LIV is offering the opportunity to advertise as an expert witness in the guide, which will be widely circulated.

Why not, I suppose. There has to be some way for lawyers to be put in touch with the 'forensic accountants, medical practitioners, psychiatrists, specialists in electronic discovery, veterinarians, automotive experts, chemists, estate valuers, building, construction engineers' and others they might wish to call upon for an expert opinion.

Of course, it's the time and expertise that an expert witness is remunerated for, not the opinion favourable to their client's case. Even so, some conservative practitioners (and experts) probably despair at such a candid admission that shopping the marketplace of expert opinion is exactly that. While the ads in the LIV Guide appear professional and restrained, can more lurid advertising be far behind?

For those interested here's the brochure.

Tuesday, 6 April 2010

Fingerprint evidence a matter of impression?

New Zealand criminal lawyer Don Mathias runs a great blog both on Blogger and WordPress.

Hat-tip to Don for Evidence of fingerprint matches, mentioning an article in New Scientist on 22 March 2010, Fingerprint evidence to harden up at last.

Essentially, it's about the potential for human error in the process of comparing fingerprints and concluding they're the same. The article refers to a US National Academy of Sciences report on USA forensic services — a free version is available online here — which resulted in reviews of statistical reliability of fingerprint evidence, similarly to that used for DNA evidence.

Sunday, 4 April 2010

Sentencing statistics

The Judicial College of Victoria have updated their Sentencing Manual.

There's some really useful information there now in Part E. Tables lay out a history of cases considering a specified offence, the surrounding circumstances that were taken into account, and the penalties that were given. Compiling this sort of material has always been a royal pain and it makes good sense to gather it all in one place where all parties and courts will have access to it.

To take an example, the offence of recklessly causing injury under s 18 of the Crimes Act 1958 can be dealt with in the County Court, but is more often dealt with summarily. Looking under this offence in the Sentencing Manual reveals a table of seven cases considered by the Court of Appeal (the most recent being R v Alexopoulos [2010] VSCA, decided only two weeks ago). It includes the circumstances of the offence, the characteristics of the accused, a very brief outline of the Court's considerations, the result and a link to the case. It seems fair to assume that the JCV have chosen fairly representative cases to include in the collection, but it still pays to read the judgment thoroughly to avoid missing any unexpected factors which influenced the outcome.

These tables are a work in progress. A few more examples under each category would be helpful. No doubt these will evolve over time. At the moment a lot of categories simply refer you to the Sentencing Advisory Council's homepage where you can view a variety of documents that they have compiled. I find these crunched numbers almost useless, especially the Sentencing Snapshots.

The Sentencing Snapshot concerning recklessly causing injury reveals 6,493 people were sentenced for this offence in the Magistrates' Court over a four year period. 522 were placed on the diversion program. 705 received an immediate custodial term. There's a lot more data like this, all general information with no specifics.

This kind of information is probably useful to policy makers and social scientists. It isn't of much assistance to a court when attempting to arrive at an appropriate sentence. While s 5(2)(b) of the Sentencing Act 1991 provides that a court must have regard to current sentencing trends, raw statistics don't give the full picture - or any real picture at all. How serious was the injury in the cases where imprisonment was the result? What were the mitigating factors in the cases which were diverted? Without these sorts of specifics the numbers themselves are meaningless.

The Judicial Commission of New South Wales offers a subscription product called the Judicial Information Research System (JIRS).

The system resembles the SAC's Sentencing Snapshots in compiling the results of government data to provide various tables, graphs, etc. the system allows more flexible searches to be conducted. Appellate NSW courts have expressed reservations about the utility of statistical data from JIRS when assessing whether a particular sentence was appropriate.

In Dodds v R [2007] NSWCCA v R 191, Fullerton J discussed the Court's concerns:

2 [The sentencing judge] imposed a sentence of imprisonment comprising a non-parole period of 2 years and 1 month dating from 7 December 2007 with a balance of term of 2 years and 2 months.

3 The challenge to the sentence is that it is manifestly excessive in light of his Honour’s finding that the offence was below the mid-range of objective seriousness. Support for that submission is said to derive from the Judicial Information Research System (JIRS) statistics which reveal that in only nine per cent of sentences for offending against s 112(1) which attracted full-time custody was a non-parole period imposed greater than 2 years and 1 month and only three per cent of sentences attracted a total term of imprisonment greater than or equal to 4 years and 3 months.

4 The applicant’s counsel frankly conceded that the statistics are a “blunt tool” consistent with this Court having repeatedly cautioned against the utility of referring to the JIRS statistics in assessing the appropriateness of a sentence under review. As Rothman J emphasised in Robertson v R [2007] NSWCCA 270; 177 A Crim R 121 the principal signposts for sentence are the maximum sentence provided for by the Parliament and the general principles of sentencing that apply in the sentencing exercise. His Honour went on to say:

“...The use of statistics as a measure of the appropriateness of the sentence has the effect of creating a self-fulfilling range of sentences, which may bear little relationship to the maximum sentence imposed by the legislature.”

5 The Crown submitted, correctly in my view, that the inherent limitation on the utility of the statistics is most pronounced in relation to offences which involve a potentially diverse range of criminal conduct as is the case with an offence [of aggravated burglary]. In addition, it is self-evident that the greater number of factors specific to an offender, the smaller the statistical base from which might be identified a range of penalties. That is exemplified in the applicant’s case. There were only four offenders within the applicant’s age range who were also sentenced for a single count following a plea of guilty accompanied by a record of previous conviction of the same type.

I'm not aware of any plans to develop a system like JIRS in Victoria. But as the database of specific cases builds in the Sentencing Manual it will become easier to avoid comparing apples with oranges.