Tuesday, 25 May 2010

Privilege and self-incrimination

The Judicial College of Victoria added commentary regarding the law of privilege to its Uniform Evidence Manual yesterday. It discusses Divisions 1 -4 of Part 3.10 of the Evidence Act 2008.

All practitioners in the summary jurisdiction (and elsewhere) need to become familiar with the operation of immunity certificates under s 128, a major change from the Evidence Act 1958. The interplay of these provisions with other sections of the Evidence Act 2008 such as ss 18 and 38 probably isn't fully understood.

The Criminal Charge Book has also added new chapters.

Wednesday, 19 May 2010

Verdins revisited: linking cause and effect

Further Edit: The paedophilia and paraphilia 'exception' discussed in DPP v OJA [2007] VSCA 129, where the High Court's majority view in Ryan v R (2001) 206 CLR 267 was said to take precedence over Verdins principles, has recently been approved by the Victorian Court of Appeal in WCB v The Queen [2010] VSCA 230.

Edit: I've received some feedback about this post querying how much of a discount Verdins principles afford. I'm going to dodge the question and take refuge in Hayne J's remarks in AB v The Queen (1999) 198 CLR 111 [at 115] where an argument that a particular scenario merited a discrete discount was rejected.

There are several flaws in the argument.

First, it assumes that sentencing an offender is some mechanical or mathematical process. It is not. Nobody can identify, let alone define, some precise relationship between the complex and infinitely various elements that bear upon what sentence is to be imposed on an offender such as this appellant. No calculus will reveal some mathematical relationship between this appellant's remorse, the harm he has inflicted on his victims and society's denunciation of what he did to them. A sentencing judge can do no more than weigh these and the many other factors (such as retribution and deterrence) that bear upon the question and express the result as several terms of imprisonment to be served, wholly or partly concurrently or consecutively. Remorse, harm, denunciation, retribution and deterrence - in the end, all these and more must be expressed by a sentencing judge in units of time. That is a discretionary judgment. It is not a task that is to be performed by calculation. Resort to metaphors such as "discount" or "allowance" must not be taken as suggesting that it can be.

The Court of Appeal found in Londrigan v R [2010] VSCA 81 that a diagnosis of Attention Defecit Hyperactivity Disorder (ADHD) did not merit a lesser sentence than had been awarded by the sentencing judge.

The appellant sought to attract the application of Verdins principles in mitigation. (It's not correct to say that Verdins only applies in some cases and not in others. Where the issue of the mental state of the offender and its connection to sentence arises (see Weinberg J's sentencing remarks in R v Wahani [2009] VSC 319 at 33), the principles in Verdins always apply. But the application of these principles is simply one part of the sentencing synthesis, and has no pre-determined impact on the resulting penalty).

Since Londrigan, a differently-composed Court of Appeal handed down Leeder v R [2010] VSCA 98. There, an offender was resentenced after the Court found the sentencing judge had failed to take appropriate account of the offender's intellectual disability.

The Court in Leeder, comprised of Maxwell P and Buchanan JA (two of the three judges in Verdins case), adopted the reasoning of pre-Verdins cases in R v Yaldiz [1998] 2 VR 376 and Kirby J's judgment in Champion (1992) 64 A Crim R 244 at 254.

Buchanan JA [at 34, Maxwell P expressly agreeing in his own reasons]:

34 Moral culpability and general deterrence apart, the appellant’s disability attracted the operation of Principle 5 in R v Verdins. That is, imprisonment imposes a greater burden on someone who is functioning with the brain power of an eight year old. That aspect does not appear to have been taken into account on sentence, although it was adverted to on the plea.

A review of cases decided since R v Verdins [2007] VSCA 102 might be useful. What follows isn't an exhaustive list, but does provide a thumbnail sketch of the Court of Appeal's approach to a variety of mental issues. I haven't included reference to any pre-R v Verdins cases; many helpful statements of general principle are available in the JCV's Sentencing Manual and there's also more information on the NSW Judicial Commission's website.

Verdins principles

In R v Verdins [2007] VSCA 102 the Court of Appeal laid out the now famous restatement of considerations applicable to sentencing offenders with what the law referred to in previous generations as, 'abnormalities of the mind'.

Maxwell P, Buchanan and Vincent JJA [at 32]:

32 Impaired mental functioning, whether temporary or permanent ("the condition"), is relevant to sentencing in at least the following six ways:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.

5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.

Applying Verdins

The Court was at pains to make clear that the condition would only be considered mitigatory under points 1, 3 and 4 if a causal link could be established between the condition and the actual offending. If no causal link is established, focus then shifts to considerations 3, 5 and 6. if the condition exists at the time of sentencing or will exist wile the offender is undergoing sentence.

The principles of Verdins do not dictate the automatic mitigation of sentence in an offender simply because he or she has suffered or is suffering from a mental illness, however severe. Rather, Verdins requires scrutiny and assessment, based on cogent evidence, of the relationship between the mental disorder and the offending and other relevant matters: Dodds-Streeton JA in R v Zander [2009] VSCA 10. Although helpfully enumerated in many cases, the relevant considerations do not constitute a rigid code and it is unnecessary to apply them to each of the considerations as if completing a check list: R v McIntosh [2008] VSCA 242.

Causal link established

Some mental conditions have been treated as potentially mitigating: R v Howell [2007] VSCA 119 where a schoolteacher who sexualy abused one of her students was found to suffer from a mitigatory depressive illness, DPP v Richardson [2007] VSC 221 where a murder accessory's penalty was mitigated by her 'fragile emotional state'; R v Atik [2007] VSC 299 where sub-normal intelligence and psychosis mitigated the period of imprisonment imposed for terrorism offences; a serious depressive illness in the context of rape and false imprisonment (R v Parton [2007] VSCA 268); a solicitor whose depression mitigated his theft from a trust account (R v Slattery [2008] VSC 81, and also R v Bernstein [2008] VSC 254); acquired brain injury and alcoholism as mitigation for rape (R v Finlayson [2008] VSCA 50); R v Iadonmwonyi [2008] VSCA 135 where the principles of Verdins were applied to the hospital detention order the court imposed, but a balancing process between Verdins and 'community protection' was deemed necessary; murder (R v Rattya [2008] VSCA 149); attempted suicide in which the person did not die but instead committed culpable driving (R v Clark [2008] VSC 633); and of course most recently in the case of an intellectually disabled offender who assaulted and attempted to rape women unknown to him in public, and who was described as having the IQ and maturity of 'an 8 year old' (Leeder). In R v Ephstein [2011] VSC 8 suicide attempts and eating disorders coupled with the senseless nature of trhe murder attracted both limbs of mitigation.

Link not established

In other decisions, courts have applied Verdins but been left unsatisfied of such a causal connection. Examples include pathological gambling (notably in R v Grossi [2008] VSCA 51, but previously in R v Do [2007] VSCA 308 and subsequently in R v MacNeil-Brown [2008] VSCA 190); battered wife syndrome leading to thefts from an employer (R v Elias [2007] VSCA 125); paedophilia and paraphilia (DPP v OJA [2007] VSCA 129, where the High Court's majority view in Ryan v R (2001) 206 CLR 267 was said to take precedence over Verdins principles); personality or mood disorder as motivation for elaborate tax fraud (DPP (Cth.) v Rowson [2007] VSCA 176); Attention Deficit Disorder (ADD) as a mitigatory feature of the rape of an elderly woman by a 15 year old male (R v JED [2007] VSC 348) and ADHD to explain drug trafficking and stolen property (Londrigan v The Queen [2010] VSCA 81); mild depression and prescription drug addiction of a police officer where the officer had supplied confidential information to a drug dealer (R v Bunning [2007] VSCA 205); a diagnosis of bi-polar disorder where the offender had previously denied played any role in the offending, an aggracated burglary (R v Christopher [2007] VSCA 290); self-induced drug psychosis (R v Martin [2007] VSCA 291) discussed here last year; sexual abuse as a child offered and rejected as causitive influence in culpable driving (R v Audino [2007] VSCA 318); alcohol and drug-use as mitigation for repeated violent attacks in public (R v Chong [2008] VSCA 119); aquired brain injury due to carbon monoxide posioning as the result of a suicide attempt (DPP v Glascott [2008] VSC 236); depression at the time of the murder (R v Fitchett [2008] VSC 258) though it should be noted that depression as mitigation at the time of sentencing was uncontentious and accepted as mitigation in regard to point 5 and 6 of the Verdins considerations - and that the offender in this case will be resentenced as a result of the re-trial concluded recently; depression as a motivating factor in a string of burglaries R v Buckley [2007] VSCA 107) heard together with Verdins, the Court of Appeal concluded amphetamine use and addiction, not mental illness, was productive of the offending; and R v Vo [2007] VSCA 107, also heard with Verdins where the principles were applied but did not affect the outcome. In Wassef v The Queen [2011] VSCA 30 the connection between an 'adjustment disorder' and dangerous driving was 'very vague' and insufficient to deserve more than limited mitigation. In Bowen v The Queen [2011] VSCA 67 the oral testimony of psychologist Jeffrey Cummins about the depression of a young man was insufficiently connected to the premeditated rape of a stranger. In Melham v Regina [2011] NSWCCA 121 an obsessive-complusive disorder was rejected as the causal motivation for child pornography offences.

An inconsistent approach?

It's possible to dismiss the two branches of decisions as the inconsistency of differently composed courts. However, judges sitting on one case which applied Verdins in mitigation also sat on other cases where it was found not to apply. While the diversity of cases seem to offer few common elements, the cases where Verdins principles were mitigatory were usually where the causal link was established. Where this link was not established, mitigation did not follow.

These judgments are a reflection of the case-by-case approach preferred in Verdins, where Maxwell P, Buchanan and Vincent JJA said [at 13],

Where a diagnostic label is applied to an offender, as usually occurs in reports from psychiatrists and psychologists, this should be treated as the beginning, not the end, of the inquiry. As we have sought to emphasise, the sentencing court needs to direct its attention to how the particular condition (is likely to have) affected the mental functioning of the particular offender in the particular circumstances – that is, at the time of the offending or in the lead up to it – or is likely to affect him/her in the future.

It would be unwise to treat any of the cases above as standing for the proposition that a particular category of condition described above cannot properly be considered mitigatory Verdins principles (with the possible exception of psychosexual dysfunction). In some of these cases the mitigation was not accepted or rejected on the basis of whether a particular category of condition fitted under the Verdins umbrella, but merely whether the condition had been proved (or the causal link established) on the evidence available in that particular case.

Maxwell P revisited his earlier remarks and stressed the importance of treating each case on its merits (specifically in relation to the issue of intellectual disability) again in Leeder when saying [at 39]:

39 Finally on the issue of intellectual disability, it seems to me important to ensure that this species of mental impairment is addressed with the same rigour and specificity as necessary in relation to the more familiar area of mental illness. The use of labels such as ‘mild’ or ‘moderate’ or ‘severe’ intellectual disability does not assist the sentencing court in deciding whether, and if so to what extent, sentencing considerations are affected by the condition of the particular person. What the Court needs to know is how the disability (is likely to have) affected the mental functioning of the particular offender at the time of the offending (or in the lead-up to it) and/or how it is likely to affect him/her in the future. As with mental illness, so with intellectual disability, there is scope for considerable refinement of expert opinion, and therefore of argument before sentencing courts, about how these matters are to be taken into account.

Monday, 17 May 2010

Speed and evidence-to-the-contrary

Section 79(1) of the Road Safety Act provides a prima facie provision for evidence of speed:
79. Evidence of speed

(1) If in any criminal proceedings the speed at which a motor vehicle or trailer travelled on any occasion is relevant, evidence of the speed of the motor vehicle or trailer as indicated or determined on that occasion by a prescribed road safety camera or prescribed speed detector when tested, sealed and used in the prescribed manner is, without prejudice to any other mode of proof and in the absence of evidence to the contrary, proof of the speed of the motor vehicle or trailer on that occasion.

The prescribed devices and testing, sealing and use requirements are contained in Part 3 of the Road Safety (General) Regulations 2009.

The result of this provision is that if the police use a radar or laser speed measuring device to accuse a person of speeding, the reading on the device is accepted as the driver's actual speed unless the driver adduces ‘evidence to the contrary’ to overcome the prima facie effect of the legislation.

The South Australian Supreme Court recently handed down a judgment showing how that might occur.

In Police v Hicks [2010] SASC 136, Mr Hicks was charged with speeding at 81 kph in a 60 kph zone. The police used a laser, which enjoys a similar statutory presumption to those in Victoria. The Traffic Act 1961 (SA) s 175 relevantly provides:
175. Evidence
(3) In proceedings for an offence against this Act—
(ba) a document produced by the prosecution and purporting to be signed by the Commissioner of Police, or by any other police officer of or above the rank of inspector, and purporting to certify that a specified traffic speed analyser had been tested on a specified day and was shown by the test to be accurate to the extent indicated in the document constitutes, in the absence of proof to the contrary, proof of the facts certified and that the traffic speed analyser was accurate to that extent on the day on which it was so tested and, for the purpose of measuring the speed of any motor vehicle—
(i) in the case of a traffic speed analyser that was, at the time of measurement, mounted in a fixed housing—during the period of 27 days immediately following that day; or

(ii) in any other case—on the day following that day, whether or not the speed measured differed from the speed in relation to which the analyser was tested or the circumstances of the measurement differed in any other respect from the circumstances of the test;

The accused driver said in evidence he wasn't speeding:
[5] The respondent gave evidence in his defence and called his wife; she was a passenger in the vehicle at the relevant time. Both gave evidence that the vehicle was not travelling as fast as 81 kilometres per hour at that time. The respondent himself said that shortly after leaving the roundabout he saw Senior Constable Turner and saw his flashing lights go on. He immediately looked down at his speedometer and saw that he was travelling at 50 kilometres per hour...

The Magistrate dismissed the charge. The police appealed to the Supreme Court.

The Supreme Court dismissed the appeal, noting at [8] that the accused driver didn't dispute the accuracy of the device but instead relied on the result of providing ‘evidence to the contrary’ of the speed shown by the laser.

I'm actually a little surprised at this result. Although the legal analysis is sound, from the facts as they appear in the judgment it seems the driver checked his speed some time after the police officer pinged him. This is the common problem for most drivers who want to rebut the prima facie provision, because they're often not able to swear precisely what their speed was at the exact time and place the police saw them. And it's often compounded by concealed or unmarked police cars.

There's quite a few cases that make this point. In Madgen v Ashe (1992) 17 MVR 219 the West Australian Supreme Court said evidence from a driver that he wasn't speeding wasn't competent or cogent evidence that displaced the prima facie evidence of the prosecution cases. There, the driver admitted to only estimating his speed without looking at his speedo, and was wrong about his speed and location estimates.

That case was cited in Davis v Armstrong (1993) 17 MVR 190, another West Australian case that explained the point neatly at 192:
The burden then fell upon the applicant to adduce evidence capable of displacing the prima facie effect of the prosecution evidence: Madgen v Ashe (1992) 17 MVR 218. In other words the onus was thrown upon the applicant to prove on the balance of probabilities that his speed did not exceed the limit at the relevant time. He could do that by displacing the prima facie evidentiary effect of the speed measuring device by throwing doubt on its accuracy by establishing that it had not been properly tested, or that the circumstances were such that it might not have operated accurately exclusively with respect to the applicant's vehicle, or he could seek to displace the prima facie evidentiary effect of the speed measuring equipment by persuading the court of trial to accept evidence, either his evidence or that of other witnesses, to the effect that he was not exceeding the speed limit: Cazzol v Fuss (1988) 6 MVR 350.

In that case, the driver lost his appeal because he challenged the accuracy of the speed camera rather than trying to displace the prima facie effect of the evidence. Cazzol v Fuss (1988) 6 MVR 350, cited in that case, succictly made the point at 352 about overcoming the prima facie provision:
[A] defendant and other witnesses may give evidence on oath that they are able to assert positively that the speed of the vehicle was 60 km/h or less. If that evidence is accepted then the defendant would have discharge the onus that has been placed upon him.

Perkins v Pohla-Murray (1983) 1 MVR 165 and Hizaji v Orr (1997) 26 MVR 266 are ACT judgments along the same vein.

The difficulty for a court determining these contests is when a credible witness gives cogent evidence to say "I wasn't speeding" (or, "I wasn't going that fast") and the prosecution adduces cogent evidence to say the accused was speeding. What then?

I haven't found any cases precisely on this point, but I think it's resolved the same way as any conflict between competing events, applying a Liberato direction from Liberato v The Queen (1985) 159 CLR 507 (and also R v Calides (1983) 34 SASR 355). The Judicial College's Criminal Charge Book provides a nice summary of this at 1.7.1 - Bench Notes: Onus and Standard of Proof:
76. While it is not necessary to give a Liberato direction in every case where the jury is invited to decide whether the prosecution witnesses or the defence witnesses should be believed, it is desirable as a matter of prudence to give such a direction whenever there is a conflict between the prosecution and accused’s evidence (Salmon v R [2001] WASCA 270; R v Chen, Siregar & Isman (2002) 130 A Crim R 300).

77. In such circumstances, it may be of assistance to tell the jury that:
  • If they believe the evidence of the accused, they must acquit;
  • If they have difficulty in accepting the evidence of the accused, but think that it might be true, they must acquit — because they will have a reasonable doubt about the prosecution’s case; and
  • If they do not believe the accused, they should put his or her testimony to one side, and determine, upon the basis of the evidence they do accept, whether the prosecution has proved the accused’s guilt beyond reasonable doubt (R v RP Anderson [2001] NSWCCA 488).

Saturday, 15 May 2010

Gul v Creed & Anor [2010] VSC 185: indecent language is all about context

Stephen Warne is justifiably fond of this legal submission charting the usage and development of the word 'fuck' in the English language. It was prepared by a Colorado public defender to persuade a judge that use of the word by a teen to his high school principal was protected by the US First Amendment.

In Bill of Rights-less Victoria it's well-established that what constitutes indecency for the purposes of s 17 of the Summary Offences Act 1966 falls to be determined by reference to contemporary standards.

Gaynor J fined Lyudmila Gul for use of indecent language for directing the invective fucking bitch toward a staff member of a variety store. Ms Gul had been confronted over an alleged stolen easter egg. Her evidence in the contested hearings was that she couldn't recall whether she had used the words or not, but in any event she did not consider them indecent. The charge was proven in the Magistrates' Court and again on a de novo hearing in the County Court.

Ms Gul took Gaynor J's decision before the Supreme Court for judicial review. This case is Gul v Creed & Anor [2010] VSC 185. Beach J didn't rule that the epithet fucking bitch would always be indecent but found that it could be.

Beach J [at 16, citations inserted]:

16 There are undoubtedly many occasions when a person might say the words “fucking bitch” in a public place or within the hearing of a person in a public place without committing any offence. Authorities in this area abound: See for example E (a child) v Staats (1994) 13 WAR 1; 76 ACrimR 343 where it was held that the use of the word “fuck” in the circumstances of that case was not obscene. However, in my view, it was open to her Honour to conclude that if Ms Gul called Ms Vanderlijn a fucking bitch in the circumstances described by Ms Vanderlijn, then this was a use of indecent language contrary to s 17(1)(c) of the Summary Offences Act. More specifically, the plaintiff has not persuaded me that it was not open for her Honour to so conclude. The fact that the words “fucking bitch” (or the word “fuck”) might be capable of being used in a public place without those words being held to be indecent does not tell against a finding that the use of such words is indecent in particular circumstances. As was said in Hortin v Rowbottom (1993) 68 ACrimR 381 at 385: “... [I]t is equally erroneous to hold that the common four letter words are necessarily indecent in every context, and to hold that they can never be indecent in any context at all.”

The County Court's finding was upheld.

Thursday, 13 May 2010

Tsolacis v The Department of Transport [2010] VSC 183: 'substantially proved' is not 'beyond reasonable doubt'

Tsolacis v The Department of Transport [2010] VSC 183 highlights the desirability of magistrates expressing themselves unequivocally in the terminology appropriate to the application of criminal law, and stating detailed reasons as best they can when making findings of fact.

In Tsolacis, a confrontation between authorised officers of the Department of Transport and the accused lead to charges of unauthorised tram travel and assault. The accused defended himself in the contested hearing in the Magistrates' Court but was found guilty of the charges he faced. The magistrate described the charges as 'substantially proved'.

This finding was one of a number of challenges on the appeal from the Magistrates' Court. It was argued on behalf of the Department of Transport that the expression 'substantially proved' should be equated to 'beyond reasonable doubt'. This submission was rejected.

Beach J [beginning at 11]:

11 Further, there may be cases where one could look at the whole of the judgment and say that whilst the Magistrate has referred to charges being “substantially proved”, it is clear that reasons have been given for finding each element of each charge established proven beyond reasonable doubt. Again, that is not this case. The reference to the charges being “substantially proved” is, in my view, exacerbated by the statement in her Honour’s reasons that whilst the appellant highlighted some inconsistencies in the evidence of the authorised officers, “the weight of the evidence was against him”. The use of this language suggests that her Honour may have engaged in a balancing exercise, rather than asking herself whether each element of each charge had been established beyond reasonable doubt. It is regrettable that in giving her reasons her Honour did not identify the elements of each charge she found “substantially proved”.

12 Counsel for the respondent submitted that a reading of the whole of her Honour’s reasons discloses that her Honour in fact found matters proved beyond reasonable doubt. It was put that the findings of fact made by her Honour disclosed that matters had been proved beyond reasonable doubt. I disagree. The language of the findings made by her Honour was, in my view, equally apposite to a case where the burden of proof was something less than beyond reasonable doubt. It was language of a kind that is often used in the resolution of civil disputes. That is, where the standard of proof is on the balance of probabilities.

13 The short point is that the language of her Honour’s reasons suggest that the appellant was found guilty on a standard different from, and lower than, beyond reasonable doubt. For this reason alone, the appeal must succeed. Whilst an attempt was made by counsel for the respondent to equate “substantially proved” with “beyond reasonable doubt”, this attempt failed for the reasons given by the High Court in Green v The Queen. As was said by Dixon CJ in Dawson v The Queen, “it is a mistake to depart from the time honoured formula [beyond reasonable doubt]”.

(Beach J observed that Dixon CJ had been referring to instructions to juries, but considered the comments equally applicable in this context).

It's a fool's errand to search for a definitive explanation of 'beyond reasonable doubt'. Beach J was particularly critical of the magistrate's use of terminology because of the lack of comprehensive reasons given why the magistrate accepted the evidence of the prosecution and rejected the account of the accused and his witness.

In Shu Zhang v West Sands Pty Ltd [2010] VSC 36, a breach of contract claim, Byrne J vitiated the magistrate's orders and remitted the matter to be reheard based on the absence of stated satisfactory reasons alone.

Byrne J [at 15]:

15 It has been said again and again that the duty of a judicial officer is to provide adequate reasons for the orders made. This is particularly the case where the orders are made following a contested trial. This was a relatively long contested trial of substantial claims. What may be adequate reasons in a given case will depend upon the circumstances, having regard to the purposes for the giving of reasons. These purposes are to inform the parties why and how the result was arrived at and to inform any appeal court what were the contentions of the parties, what were the facts as found, what were the principles of law relied upon and how these principles were applied. A further reason is the fact that it is often useful for the judicial officer to set out his or her reasoning process as a discipline to ensure that this process was in fact undertaken and that it was intellectually satisfactory.

16 The reasons for the Magistrate in this case, regrettably, do not address these objectives. His Honour says nothing about the facts which he found or about the documentary evidence which suggested the vendor was operating the business as manager rather than as owner. His Honour may have been perfectly correct in his assessment of the competing witnesses and in the conclusions of fact which he reached. It may be that there was evidence which supported these conclusions. The difficulty which I face is that I cannot from the reasons of the Magistrate form any view upon this.

The necessity for magistrates to clearly state their reasons could not have been more earnestly emphasised.

(Refshauge J expressed similar sentiments in Moh v Pine [2010] ACTSC 27. Due to language barriers and other issues it was not clear that the accused understood the sentence imposed and the reasons for it (one of a series of errors held to have infected the sentence).

Wednesday, 12 May 2010

Foot in-step with Mastwyk

I blogged about Mastwyk v DPP yesterday, but didn't get to write about the other similar appeal delivered straight after.

DPP v Foot [2010] VSCA 112 was referred to the Court of Appeal to be heard with Mastwyk's case because it dealt with very similar issues.

In this case, the Court of Appeal allowed the prosecution appeal and remitted the case to the Magistrates' Court.

In Foot, the police administered a preliminary breath-test to Mr Foot and then asked him to accompany them back to a police station for a breath test. He agreed. He got in the back of the divvy van, and the police closed the door.

We now know that wasn't imprisonment: Mastwyk at [82].

There was some dispute about what happened next, but it seems Mr Foot then decided he wanted out when he saw the police arrest a woman who was with him in the car. It seems the police didn't realise that...presumably because they were otherwise engaged arresting the woman.

The Court of Appeal considered that could not amount to imprisonment. Only if the police refused to release Mr Foot would he have been imprisoned. And if they didn't know he wanted out, they couldn't refuse his request...

That was enough to dispose of the appeal.

But the Court also went on to consider if the requirement to accompany had to be objectively reasonable before the police could establish an offence contrary to Road Safety Act s 49(1)(f) for exceeding the prescribed concentration of alcohol within 3 hours of driving.

They said that was wrong, applying DPP v Foster [1999] 2 VR 643 at [49] – [50]: the reasonableness of any request or requirement is only relevant when the motorist refuses a police request and the police then rely on their statutory powers to compel the motorist.

This means the ‘objective reasonableness’ requirement articulated in Mastwyk is confined to refuse-to-accompany cases contrary to s 49(1)(e) and doesn't apply to exceed-prescribed-concentration-cases contary to s 49(1)(f) (and probably 49(1)(b)).

Tuesday, 11 May 2010

Mastwyk v DPP: reasonable to go home in the back of a divvy van

The Court of Appeal today delivered its judgment in Mastwyk v DPP [2010] VSCA 111.

It's a bit of an involved read. The short result is:
  • the police can require motorists to accompany them in the back of divvy vans to a police station for a breath test
  • but, if a motorist refuses, and is charged with refusing and defends the charge by claiming the requirement was unreasonable, the police must prove that the mode of transport was objectively reasonable
  • reasonableness will be shown using the test set down by Kyrou J in DPP v Mastwyk (2008) 185 A Crim R 285; [2008] VSC 192

If the police don't do that, the requirement to accompany will be invalid...and the accused should be acquitted.

A very quick refresher...

On 10 June 2005 at Wattle Bank the police asked Ms Mastwyk to go back to a police station for a breath test. In a divvy van. In the cage at the back. She baulked at going in the van.

The police charged her with refusing to accompany them for a breath test, contrary to Road Safety Act s 49(1)(e). She contested the charge. The magistrate dismissed it, deciding that transport in a divvy van amounted to imprisonment. And it was unreasonable for the police to require her imprisonment someone when the Road Safety Act didn't provide that power. The magistrate relied on an old unreported judgment of the County Court — Salton v Wigg.

The police appealed: DPP v Mastwyk (2008) 185 A Crim R 285; [2008] VSC 192. The Supreme Court overturned the Magistrates' decision, deciding that the police must act reasonably when they requiring someone to accompany them for a breath test. In Ms Mastwyk's case, so long as she was able to communicate with the police at any time to say something like, "I want to get out", it was reasonable. (See [61] – [62].)

Ms Mastwyk appealed to the Court of Appeal.

The Court unanimously dismissed her appeal.

Court of Appeal's decision

All three members of the Court agreed that Road Safety Act s 55(1) does not authorise the arrest or detention of a motorist. (Hardly a revelation to anyone who deals with these provisions regularly, but nice to have a Court of Appeal opinion on the point.)


Nettle and Redlich JJA delivered separate judgments, but agreed the police may only require a motorist to accompany them in a way that is, objectively, reasonable.

Nettle JA said:
[38] Accordingly, I would limit the basis for decision in this case to saying that, where a driver is otherwise willing to comply with a requirement that he or she accompany a police officer to a designated place to undergo a breath test, but the police officer directs the driver to accompany the police officer to that place by means of travel which are objectively unreasonable, a refusal by the driver so to travel is not without more a contravention of s 55(1).

(Redlich JA agreed with that, at [54].)

At [46] Nettle JA said if the accused's defence is that the requirement to accompany was by an unreasonable method, the prosecution must establish the mode of transport was objectively reasonable. He didn't specify the standard of proof, but it's almost certainly beyond a reasonable doubt: Evidence Act s 141; Woolmington v DPP [1935] AC 462.

His Honour also dealt with the resources-argument raised on the appeal:
Police resources

[51] Finally, a fair amount was made in the course of argument of the difficulty which police would face if they had to provide reasonable means of transport in all cases of requiring a driver to accompany them to a designated place for testing. In my view that is not persuasive. Practical difficulties of the kind to which reference were made are the product of executive budgetary decisions. Absent an express or otherwise clear statutory indication that they were regarded by Parliament as informing the scope of a power, they are irrelevant to the amplitude of the power. The solution is to furnish the police with the resources required to carry out their duties in the manner that Parliament intended or to have Parliament amend the legislation to make clear that it intends to authorise requirements which are unreasonable.

At [74] Redlich JA said the prosecution does not have to establish as a separate element of the offence that a requirement to accompany under s 55(1) is reasonable. But, if an accused defends a refuse-to-accompany charge contrary to s 49(1)(e) by claiming the requirement was unreasonable, then objective reasonableness is “relevant to the question whether the prosecution has discharged its burden of proving a refusal.”

I think that's the same point raised by Nettle JA at [46], but differently worded. It makes more sense, too, when I look back at [39] where Nettle JA highlights the point from Hyrsikos v Mansfield about the difference between failing and refusing to accompany. The old ‘fail’ offences are long since repealed; only ‘refuse’ remains — and that requires a mental element of unwillingness...perhaps it's wilfulness?

His Honour went on:
[75] I consider that the section should be construed so that the requirement must be one that is objectively reasonable in the circumstances. My conclusion rests upon the premise that Parliament would not have intended that the refusal of an objectively unreasonable requirement would constitute an offence. It is an implication that is derived from the accepted presumption of statutory interpretation that Parliament will not, without clear words to the contrary, be taken to have intended a restriction on individual liberty that goes beyond what is necessary to meet the purposes of the section and the Act. The elements of the offence should, therefore, be read to reflect the intention. Accordingly, where a driver does not comply with a requirement to accompany the police officer because the proposed manner of compliance is objectively unreasonable, the prosecution will fail to establish the element of ‘refusal’ by the driver.

Put another way, if the police prove that the ‘proposed manner of compliance’ is objectively reasonable, they will establish the refusal offence.

Last, at [79] Redlich JA affirmed Kyrou J's disagreement with the part of Salton v Wigg that said putting a motorist in the back of a divvy van will always equate to imprisonment.


Maxwell P disagreed with Nettle and Redlich JJA. He considered that Ms Mastwyk was making a collateral challenge to the power to require a motorist to accompany police. At [15] – [17] he considered administrative law principles about challenges to exercising statutory powers, and concluded at [32] ff that Wednesbury unreasonableness must be argued before a court must consider the reasonableness of a request to accompany.

Redlich JA disagreed with that. At [70] he raised the real problems with trying to deal with Wednesbury unreasonableness in summary hearings in busy Magistrates' Courts, and said policy considerations weighed against it.

Some gratuitous observations

First, I think the requirement of reasonableness is understandable, and probably almost predictable. (Easy to say with hindsight!) Cases like Trobridge v Hardy (1955) 94 CLR 147 and DPP v Foster (1999) 2 VR 643 speak of reasonableness when police exercise statutory powers. We've only got to think of extreme examples to illustrate the point: a demand to accompany in the back of a brawler or prison van would be unreasonable. A demand to accompany by getting in the boot of a police car, or hanging on the roof rack, would be unreasonable. Of course no offence would occur if such a requirement were made.

But a requirement to accompany in the back of a divvy van...subject to the sorts of considerations discussed by Kyrou J in the Supreme Court decision...that's probably reasonable.

I expect we'll see a fair bit of litigation on that point as a factual argument in Magistrates' Courts. And it might make life a bit harder for police, because the test is objective reasonableness — determined by the courts, many months after the event. It won't always be easy for them to know at the time if they are right or wrong, if they think their requirement is reasonable while the motorist thinks it's not. But, that's a fact of policing.

Second, there were no Charter arguments in this case because the alleged offending was on 10 June 2005. 38. The Charter of Human Rights and Responsibilities Act 2006 commenced, in part, on 1 January 2007; the balance commenced on 1 January 2008. In R v Williams (2007) 16 VR 168 at [48] the Supreme Court held that the Charter had no application to proceedings commenced before the Charter commenced operation.

It's not likely this point will come up again any time soon: after all, it took ten years before Salton v Wigg was argued at appellate level. But, there is still the possibility it might be revisited with a Charter angle! Stay tuned...?

Friday, 7 May 2010

Police reading statements in evidence-in-chief

Section 33 of the Evidence Act 2008 allows police officers to give evidence by reading or being led through a previous written statement, subject to certain conditions.

I know the police were generally pretty keen on this provision: it meant the end of rote-learning statements before court cases, and provided a real incentive to take detailed and contemporaneous notes. (I've mentioned before that the Courts encourage police to go beyond mere pen and paper and jump into the 21st century with portable recording devices.)

Section 33 provides that police may give evidence by reading their statement. Can they just launch into reading from their statements, or do they need the tribunal's okay first?

Odgers points out that ALRC38 (the report that resulted in the Evidence Act 1995 in NSW and the Commonwealth, which in turn is the predecessor of Victoria's Evidence Act 2008) didn't propose s 33. (It doesn't get a mention in ALRC102 either.)

Instead, the provision came from s 418 of the Crimes Act 1900 (NSW). That section was considered in Orchard v Spooner (1992) 28 NSWLR 114; (1992) 62 A Crim R 184, cited by Odgers in his text. That case deals mainly with the contemporaneity requirements of the provision, but provides some insight into its purpose.

On 14 November 1990, when introducing the Bill which led to s 418 of the Crimes Act being constituted in its present form, the Attorney-General of the day said (Hansard, 14 November 1990 at 9660):
“...Mr Speaker, you know only too well the farce of an officer exhausting his memory, referring to the statement, giving more evidence, exhausting his memory again, and again referring to the statement. It is beyond intellectual capacity to tolerate that. Police are permitted to refer to their statements to refresh their memories. They must continue to give their evidence with further reference to the statement until their memories are again exhausted. This procedure cannot be permitted to continue. It is defective for two main reasons.

The first is that police must spend time memorising their statements word for word. I remember one case in which a policeman told me he had spent several weeks of his own time and several weeks of departmental time memorising a 40-page statement, and was in the witness box for only 20 minutes. In many cases a contemporaneously prepared statement is more accurate than a police officer's memory, unassisted by any written document and possibly clouded by time and intervening events.

The second defect in the current situation is that during evidence in chief the impression gained by a jury is that the police have an actual independent recollection of what happened. The jury should be made aware of the truth; that is, that the police officer recorded what was said at the time and has used that written record to give evidence. The Bill therefore provides that police called for the prosecution may give their evidence by being led through or reading from a statement prepared at the time of or soon after the events to which the statement relates. In jury cases a trial judge may then give a direction as to the reason police give their evidence in a different manner from the way in which other witnesses give theirs. I expect that in many cases the statement would merely be tendered and the officer would not be taken through it.”

Ex facie, the procedural reform encapsulated in s 418 is a useful one. By allowing police officers to read statements, the farce enacted by an officer attempting to remember a statement off by heart is a matter with which our system of justice can well do without: Orchard v Spooner at 116 - 117.

The point about accurate recollection was considered by Victoria's Full Court in R v Baffigo [1957] VR 303. Pietro Baffigo appealed his conviction at General Sessions (what is now the County Court) because a former police officer was allowed to refresh his memory from his contemporaneous notes.

Smith J said at 304:

The witness here who was allowed to refresh his memory, had, as I follow the position, sworn during the course of the evidence that he gave without the aid of the document, first that he could not be sure of the precise phrasing used, and secondly that as to quite a number of the particular questions that he referred to, he could not recall what was said. He could recall the question but not the answer, or there was some particular part of the answer that he could not recall. And lastly, at the end of the part of the evidence given without the aid of the document, he said that he remembered that there was more said, but he could not remember what it was. Whatever may be the position in other circumstances, it appears to me to be plain that in those circumstances it was proper to allow the witness to refresh his recollection by looking at his notes of the whole of the interrogation that he was attempting to narrate, and the objection that he should have been confined to the particular parts of the notes which bore directly on specific matters that he had forgotten, does not appear to me to be sustainable.

Cross on Evidence at [17170] discusses the importance of orality in Australian trials — courts hearing witnesses give oral evidence — which gives courts the opportunity to assess those witnesses' credibility and reliability.

When police merely memorise their statements and give a psittacine recitation of their evidence, the court is really just hearing a human dictation machine and might just as well read the document itself.

The only case I can find directly on s 33 seems to recognise this. In Chisari v The Queen (No 2) [2006] NSWCCA 352 the Court said:
[28] It is apparent that the provision exists to recognize the reality that police officers frequently are required to testify long after events have occurred and that in the intervening period they may be likely to have been involved in a multiplicity of incidents about which they may also be required at some future time to testify. A practice of reciting statements which have been learned by heart — a recognized past practice — represented more a test of recall of the recitation than a recall of events and s 33 provides a transparent practice of evidencing matters which would be fresh in the memory at the time of making the statement.

[29] It is relatively infrequent that the police officer would be speaking of matters which concerned that officer so directly as a victim although, as Mr Dawe QC for the Crown in the appeal observed, there are no doubt other such cases when, for example, officers are the victims of assault or resisting arrest, the situation would be similar.

[30] The provision vests a discretion and his Honour exercised it by declining to permit the reading of the statement. He indicated a preference that the constable be led through the statement, subject to the exclusions which he had ruled on an individual basis and it was observed that much of the evidence was in fact adduced by non leading questions. There is nothing to support a conclusion that the appellant was treated with any unfairness in this regard.

But that case muddies the water because it suggests that section 33 is a discretionary provision and a judge or magistrate might refuse permission for a police officer to read or be led through their statement.

In Uniform Evidence Law, John Anderson and Peter Bayne state there is no leave requirement under s 33 — but don't cite any authority to support their statement.

But I think they're probably right. The leave provision in s 192 certainly applies to s 32, about witnesses generally referring to documents in court to revive their memory.

But s 33 starts off with the qualifier Despite section 32..., and does not refer to a leave requirement. The principal of statutory interpretation expressio unius est exclusio alterius — express reference to one matter indicates other matters are excluded — adds weight to the argument that s 33 is not subject to the leave requirement.

I think that means the police can just launch in to reading their statements — if they so desire. But the risk they might run is criticism of the type raised in McKinney v The Queen (1991) 171 CLR 468; [1991] HCA 6 and R v Williams [2001] 1 Qd R 212; [1999] QCA 324 (see my post here). And that in turn might leave them open to suggestions of unreliability under s 165. Alternatively, it might be suggested that if they need to read all of their statement it's because they have no memory of the incident — in which case they can't dispute anything outside the scope of those notes.

My experience is most prosecutors encourage police officers to recall as much as they can, and turn to s 33 only for significant parts of evidence or those where accuracy is critical — such as conversation with an accused person. (Though that might also be covered by s 139 and perhaps s 86.)

What are your thoughts and experiences?

Legislation Watch: JRs across the court system

Judicial Registrars have been operating now in the Magistrates' Court for 5 years.

The Courts Legislation Miscellaneous Amendments Act 2010 will bring JRs into the County, Supreme, Coroner's and Childrens' Courts. As with the Magistrates' Court, the appointment of a Judicial Registrar will be for a maximum five year term.

In blurring the lines between two previously well-established callings with discrete roles and functions, the office of Judicial Registrar follows similar experiments with nurse practitioners and Australian lawyers. Given the current overload of work across jurisdictions, judicial officers might well welcome the appointment of JRs to help ease their load.

The Explanatory Memorandum can be found here. The provisions will come in on 1 January 2011, or earlier if proclaimed.

I appear for the alpaca, Your Honour

Melbourne Law School is teaching animal law to undergraduate students for the first time this year.

The head of the Barristers Animal Welfare Panel, Graeme McEwen, will be intimately involved with the course's delivery. Areas covered include constitutional issues affecting animal welfare, administrative law remedies and consideration of the rights of protesters.

The Subject Overview reads,

The subject examines Australian law which aims to protect the welfare of animals. The subject has three main components. First, the subject explores the history of the law of protecting animals generally. Second, the subject will explore ethical and theoretical justifications of animal welfare law. Finally, the subject examines current Australian state and federal legislation, regulations and general law which seeks to protect the welfare of companion animals and farm animals including those animals being exported for sale. The subject will also examine how such law has been invoked by protestors of animal cruelty in defence of charges brought against them. Included in the examination of Australian legislation is a consideration of, and to what extent, if any, the law in Australia requires reform.

The full course outline can be found here.

Thursday, 6 May 2010

Markovic v The Queen; Pantelic v The Queen [2010] VSCA 105: the role of mercy in sentencing

Markovic pled guilty to 11 counts of deception in the County Court. In a separate hearing, Pantelic pled guilty to three charges relating to child pornography. Both men were sentenced to terms of imprisonment, and sought leave to appeal their sentences.

In Markovic v The Queen; Pantelic v The Queen [2010] VSCA 105, the Court of Appeal convened as a bench of five justices to hear these two appeals, originating from very different cases but unified by a common argument; that the impact on their family of the sentence imposed on the offender in each case could (and each counsel asserted, should) give rise to the exercise of a 'residual discretion of mercy'.

The established precedent has been that exceptional circumstances would need to be shown in order for a court to discount a sentence on account of the hardship imprisonment would cause to the offender's family.

Maxwell P, Nettle, Neave, Redlich and Weinberg JJA [at 5]:

5 We have concluded that the established common law position should be reaffirmed. Our reasons may be summarised as follows:

1. Reliance on family hardship – that is, hardship which imprisonment creates for persons other than the offender – is itself an appeal for mercy.

2. Properly understood, therefore, the purpose and effect of the ‘exceptional circumstances’ test is to limit the availability of the court’s discretion to exercise mercy on that ground.

3. Accordingly, there can be no ‘residual discretion’ to exercise mercy on grounds of family hardship where the relevant circumstances are not shown to be exceptional.

4. The effect on the offender of hardship caused to family members by his/her imprisonment raises different considerations, to which the ‘exceptional circumstances’ test has no application.

The Court distinguished between taking into account the impact of the sentence on family, and taking into account the impact on family members has on the offender [at 20]:

20 The effect on the offender of hardship caused to family members by his/her imprisonment is a quite separate matter. An offender’s anguish at being unable to care for a family member can properly be taken into account as a mitigating factor – for example, if the court is satisfied that this will make the experience of imprisonment more burdensome or that it materially affects the assessment of the need for specific deterrence or of the offender’s prospects of rehabilitation.[25] These are conventional issues of mitigation, and they are not subject to the ‘exceptional circumstances’ limitation.

The original sentencing courts had found that exceptional circumstances did not apply, and applied mitigation to the extent that they considered appropriate. These rulings were left undisturbed by the Court of Appeal, and both applications were refused.

Wednesday, 5 May 2010

90% preparation, 10% inspiration

Given the criticism I gave them last year over the way their change in editorship was handled, it's time I gave the Bar News some credit before its current issue disappears from the website and becomes difficult to find.

In particular, the article by George Golvan QC is a gem. His message - that trials are won by the most thoroughly prepared advocate - may not be new but seems to be something that needs to be re-discovered over and over.

The book that Golvan references, the Advocacy Manual by Hampel, is available from the LIV.

Monday, 3 May 2010

Licence suspensions

In 2006, through the introduction of the Infringements Act 2006, a discrete offence of driving with a suspended licence was inserted at s 30AA of the Road Safety Act 1986.

The offence relates solely to licence suspensions as a result of the Infringements Act, and reads,

30AA Offence to drive while licence suspended under Infringements Act 2006

A person must not drive a motor vehicle on a highway while that person's driver licence or permit is suspended in accordance with Part 8 of the Infringements Act 2006.

Prior to the new Act licence suspension was still available to the State as an enforcement option, but the process didn't seem to be used much. The provision was intended as one of a number of sticks the State can use to persuade citizens to pay the millions of dollars of fines outstanding. Under the Infringements Act, sheriffs have the ability to serve notices on fine defaulters which suspend their driver's licence until they enter into an arrangement to pay the money owing. The differences between the two offences was discussed by Osborne J in Hoe v Vella & Anor [2009] VSC 600.

The offence of driving in defiance of a court-ordered or demerit point suspension is found at s 30 and is punishable by,

Penalty: For a first offence, 30 penalty units or imprisonment for 4 months;

For a subsequent offence, imprisonment for not less than 1 month and not more
than 2 years.

The offence of driving while under a period of licence suspension under the Infringements Act is punishable by a maximum 10 penalty units, or around $1160. A court may exercise its general discretion under s 28 to interfere with an offender's licence, but it does not have to and there are no additional penalties for subsequent offences.

I do not know whether an accused who fronts court and pleads guilty to a charge under s 30, and has a prior finding of an offence under s 30AA, would be considered to have committed a subsequent offence that requires imprisonment. The Explanatory Memorandum and the Second Reading speech are of no assistance on this point. I've asked prosecutors about this and they don't seem to know, either.

As a matter of basic statutory interpretation it would seem that a prior finding of guilt on a different charge would not make a s 30 finding a subsequent offence. If this is so, this will cause problems for the prosecution as the s 84 certificates produced by VicRoads that detail an accused person's prior traffic convictions do not appear to disclose the reason why a licence was suspended when detailing a prior finding of guilt.

I recall there was a similar issue a number of years ago where information from the Roads Corporation was insufficient to establish whether prior convictions were of a relevant type. This concerned offences under Part 6A of the Road Safety Act 1986, but I cannot remember if or how that issue was eventually addressed. I haven't been able to find any cases on point.

Sunday, 2 May 2010

Speed interlocks?

Further Edit: The Regulations which amend the Road Safety (Driver) Regs to make this trial scheme operate are now in effect. You can see them here. The terminology repeat speeders seems to be what they are going with.

The trial runs from last month until the end of 2011.

Edit: On 14 May the Sentencing Advisory Council released this press release. It said in part:

Professor Arie Freiberg, Chair of the Sentencing Advisory Council said, “Victoria’s prison population is growing steadily. More people are going to gaol and for longer periods. However, there are some cases where immediate imprisonment is not the most appropriate option. The Council believes the reason courts are not decreasing their use of suspended sentences in line with Parliament’s direction in such cases is because they do not have adequate sanctions to take the place of suspended sentences.”

Legislation has been introduced to Parliament broadening the scope of home detention orders. There is now talk in the newspaper of some kind of 'super-ICO'. (Details are sketchy, but perhaps a part-time imprisonment program). Suspended sentences will be phased out over time, beginning with the most serious offences and the coming down the scale. The proposals being talked about now do not touch the Magistrates' Court.

Over time the number of suspended sentences will decline. It is more likely that they will be replaced with offender programs in the community than with immediate imprisonment.

On the subject of licence suspensions and mandatory imprisonment (see the post on Licence suspensions, above) I haven't heard much about further reform to the system since posting on the topic last year. It became a political football for a couple of days at the start of 2010, but the story died off without reaching a resolution.

The government seem to have decided to get rid of the mandatory imprisonment that follows a second disqualified or suspended offence, but haven't finalised what to replace it with. If suspended sentences were removed as a sentencing option before this happened, the government has expressed concern that ordinary mums and dads would be serving actual terms of imprisonment for offences under s 30.

Something I saw on VicRoads' website might point the way to where the system is going. This article annouced that devices are to be fitted to the vehicles of 60 repeat offenders that warns them when they are travelling in excess of the speed limit. This sort of technology is standard in new cars. More significantly, the device used in this project records these breaches of the speed limit and the action which the driver took after receiving the warning.

This sort of thing has been commercially available for a long time and is sometimes mandatory in trucks and semi-trailers. Alcohol interlocks have received a generally positive response since their introduction. It's probably only a matter of time before recidivist speeders are required to apply for their licences back, have monitoring devices fitted to their cars, and return to court to explain the results, in the same way that drink-drivers do today.