Monday, 28 June 2010

Digital contempt

Before the Magistrates' Court started recording proceedings following Practice Direction 1 of 1999, the Victorian Supreme Court considered a few cases about tape-recording court proceedings.

The cases weren't definitive. Nguyen v Magistrates' Court of Victoria [1994] 1 VR 88 held that recording without the knowledge and permission of the presiding magistrate was a contempt of court. Later in Stefanovski v Murphy [1996] 2 VR 442, the Court of Appeal doubted that it was a contempt, but seemed to accept a magistrate could permit or refuse tape-recording under its general directions power in s 136 of the Magistrates' Court Act 1989. Still later in Tran v Magistrates’ Court of Victoria [1998] 4 VR 294 the Court of Appeal simply considered it was a discretionary decision for the presiding magistrate.

Today, a visitor to a Magistrates' Court will see notices of an order issued by the Chief Magistrate prohibiting recording of proceedings using mobile phones. The direction doesn't seem to be a practice direction issued pursuant to s 16A of the Magistrates' Court Act, so presumably is founded on s 136.

In Prothonotary of the Supreme Court of New South Wales v Rakete [2010] NSWSC 665 the NSW Supreme Court sentenced Te Rana Rakete for filming with a digital camera a witness giving evidence in a trial, after finding him guilty of the offence in Prothonotary of the Supreme Court of New South Wales v Rakete [2010] NSWSC 5.

The contempt was established because filming without the Court's permission risked interfering with the administration of justice — in the sense that it could disrupt the court hearing and smooth and efficient running of the trial. There was no evidence in this case that the filming was to intimidate the witness who was recorded, or later use that recording for some form of retribution.

[17] I have already found that the defendant‘s conduct had the tendency to interfere with the administration of justice, in terms of potentially interrupting the concentration and focus of jurors and diverting their attention from their task: [2010] NSWSC 5 at [43]. I also found that the activities of an unknown person seeking to record the evidence of a witness also had the tendency to interfere with the administration of justice in terms of at least distracting, if not actually frightening and intimidating, a witness of the presumed fortitude of Mr Campton, let alone a hypothetical witness of “ordinary” fortitude: [44]. The plaintiff has quite properly conceded that the seriousness of the contempt was not aggravated by any evidence that showed that the witness or any juror in fact saw the defendant using the camera or that he or she was in fact distracted, frightened or intimidated by what occurred: Prothonotary of the Supreme Court of New South Wales v Rakete [2010] NSWSC 665 at [17].

It seems no matter what the legal foundation is for the standing order in Victoria's Magistrates' Court prohibiting recording proceedings, the common law criminalises that conduct and justifies prominent warnings in the Court's precincts.

Sunday, 27 June 2010

Jurors not allowed to do research

It's a traditional common law directive (now given a 'gloss' at s 78A of the Juries Act 2000) that jurors are not to make their own enquiries about the case they are required to decide.

The rationale is easy to follow. Evidence that goes into the jury room without the knowledge of the court hasn't had the benefit of being tested. It might be inadmissible, or prejudicial, or capable of an explanation by one of the parties, who didn't think to present the explanation because it didn't know that the jury had received that information. Jurors are repeatedly told in the course of their service that they must make their findings solely on the evidence presented to them.

The prohibition on research most often relates to the facts of the case, and there are numerous examples of individual jurors (or more rarely, entire juries) being discharged after contact between juror and party, either before or during a case.

In rarer examples, jurors have been discovered conducting their own research into the case. Notoriously in R v Young [1995] QB 324, a retrial was ordered after it was discovered that some of the jurors in a double-murder trial had used a oiuja board in an attempt to contact the victims.

(Fortunately for Henry Fonda, the judge never found out what he'd been up to):

In Martin v The Queen [2010] VSCA 152 the Court of Appeal was confronted with a different problem. After the verdict of the jury had been given (guilty, obviously, given that it was the accused who appealed) the judge's tipstaff found 7 pages of material downloaded from the internet, discarded in the jury room. The pages concerned the legal definition of the phrase beyond reasonable doubt (a phrase which the High Court has notoriously admonished trial judges not to attempt to define for a jury, even should they ask). It raised the question, should a jury be prevented from conducting its own legal research?

The question didn't really get answered, as the Court felt that to consider the impact that the material may have had on deliberations would either amount to baseless speculation, or else intrude into the confidential workings of the jury room. Ashley JA referred to R v Chatzidimitriou (2000) 1 VR 493 where a trial judge allowed a jury access to a standard English dictionary to assist them in deciding the meaning of the phrase.

73 The question which I posed in the preceding paragraph needs to be considered, in my opinion, in the context of the standard of proof direction; not in the context of a general enquiry about the permissibility or otherwise of jurors researching the legal principles applicable to the case before them. The authorities make it very plain that it is for the jurors to give meaning to the critical phrase. The fact that a judge may not elaborate upon its meaning, except in particular circumstances, does not mean that jurors may not consider what meaning to give it.

The Court of Appeal advised trial judges to tell jurors that s 78A extends to searching legal dictionaries (though the Court did not actually find that this was the case). If such a direction had been given in this case it would have been easier for the Court to find that an irregularity had occurred (the jury would have been in breach of the trial judge's specific instruction). But, of course, this provides no assistance to jurors in determining what the phrase should mean.

For some observers Martin's case no doubt adds to Vincent J's criticism of the insistence in Australian law that beyond reasonable doubt not be further defined. (He described it as 'ridiculous' [at page 40] in his report to Parliament regarding the conviction of Farah Jama by flawed DNA evidence). If jurors are left to search the internet for the meaning of terms which are central to their decisions, there's a strong suggestion that jurors are not being properly assisted in their task. It may, but then again may not, run contrary to the current popular opinion that holds that most jury charges are overly long, needlessly complex and full of irrelevent material.

Against this backdrop, the state government has coincidentally announced plans to widen the jury pool to include people who are currently excluded from service. Last Tuesday, Rob Hulls announced that lawyers, judicial officers, police officers and Members of Parliament will be able to serve on juries sooner after leaving their office or practice under reforms to Victoria’s jury system.

The prohibition of people intimately involved in the day-to-day operation of the courts traditionally doesn't just stem from a concern that they won't be able to shed any previous bias to one side of the adversarial system or the other to perform their role as a juror. There was also a concern that other jurors might be inappropriately swayed by a juror with intimate knowledge of the justice system and not go about reaching their own verdict independently.

Given the lack of guidance being provided outside the jury room, it's interesting (and, in some cases, perhaps worrying) to think about the potential influence that a retired judge, police officer or practitioner might have.

Friday, 25 June 2010

Coulson v The Queen [2010] VSCA 146: the Crown's obligation to call experts

The Crown may not refuse to call an expert witnesses it has sought advice from, selecting only those opinions that support their case for tactical reasons, any more than they may refuse to call a witness just because their testimony fails to accord with the prosecution case.

Ashley JA [at 17, agreeing with Neave and Harper JJA]:

17 Even if there had been a significant difference in the opinions of [the two witnesses], in my opinion it does not follow that the Crown was able to pick and choose which witness it called, leaving it to the accused to take up the challenge of calling the other witness. That does not seem to me to accord with the Crown’s obligation of fairly adducing relevant evidence, or with the onus of proof resting on the Crown. No doubt a criminal trial is an adversary proceeding, but that does not mean that it should become a tennis match in which the Crown is able, in effect, to put on the other side of the net a witness whose opinion it has obtained, whose expertise and impartiality are not in issue, but whom it is disinclined to call.

The police informant in Coulson had originally sought an opinion from an independent expert in sleepwalking (sonambulism) to assess the credibility of an explanation put forward by the accused in interview.

The Crown subsequently sought an opinion from another expert and it was he who was named as a witness on the presentment. In pre-trial discussions the defence raised the desirability of the first expert conducting the assessments of the accused he had originally suggested. This was done, but at trial the Crown refused to call the first expert. The Court of Appeal allowed the appeal, ruling that the accused had been deprived of a chance fairly open to him of being acquitted.

Neave and Harper JJA:

61 In our opinion, the calling of [the expert witness) by the Crown was necessary for the presentation in this proceeding of the whole picture. He was appropriately qualified, having practised for 17 years before the appellant’s trial as a specialist in disorders that adversely affect sleep. His evidence was admissible. He was also available. Moreover, his first point of contact with this prosecution came not through the appellant but through the informant who, because of the suggestion that the appellant might be a sleepwalker, thought that (the expert's] expertise might assist the authorities in their investigation into the complainant’s allegations. [The expert] agreed to review the police brief of evidence, with a view to assessing whether the events as there depicted could (as he put it from the witness box) ‘possibly have been related to sleepwalking’.

Under ss 42 and 416 of the Criminal Procedure Act 2009 the prosecution are obviously obliged to disclose this sort of material regardless of whether they intend to rely on it or not. But the obligation goes beyond mere disclosure to an obligation that, (as it was put in Whitehorn v Queen (1983) 152 CLR 657) 'all available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based'.

Double jeopardy 2

Edit: Another example of how uncertain the operation of double jeopardy can be is found in Pollard v The Queen [2010] VSCA 156. There, sentences were handed down for offences of negligently causing serious injury (s 24 Crimes Act 1958) and failing to render assistance at the scene of an accident s 61(b) of the Road Safety Act 1986. The trial judge commented that leaving the scene was an aggravating feature of the first offence.

The Court of Appeal found otherwise, saying the real test was whether the appellant had been punished for a third time. The Court ruled the two offences were different, both conceptually and legally. The brief treatment of the double jeopardy issue in Pollard [between 17 - 30] seems similar to the test Habeas Corpus posits below.

A couple of weeks ago I posted something on the subject of double jeopardy. It kicked off one of the most lively discussions we've had here in recent times.

I think one of the reasons for this is that there's probably no single 'right' solution to double jeopardy issues. When offences overlap and when they are discrete is probably in the eye of the beholder, and it's impossible to predict with precision which way an appellate court will fall

Site regular Habeas Corpus weighed into the debate but found that his contribution to the discussion was longer than our 'comments' box would allow. Anyone else who has this problem should send us an e-mail.

With permission, I've done a little nip/tuck on what HC sent to me, and here it is:

You said that you doubt that one act can give rise to two separate penalties. The "one act = once crime" rule is not the law in Victoria. I would have to read the High Court’s decision in Pearce again, but I doubt that is a correct statement anywhere in Australia. Even if it is, R v Sessions [1998] 2 VR 304 is the case which interprets where double jeopardy fits in Victorian law.

The facts in Sessions’ case are unpleasant, but it is important to talk about them to understand the decision the court made in that case. During the course of a rape, the insertion of an object caused a rupture inside the victim. Consequently the accused was charged and found guilty of both recklessly causing injury and sexual assault. It is important to recognize that these offences both rose from exactly the same act (the forceful penetration). For the court, this made it different from an incident where, for example, to subdue his victim a rapist punches her in the face. That could be viewed as both an aggravating feature of the rape and an independent offence in its own right. The sentencing court would mitigate punishment to avoid punishing the offender for the same act twice, but both offences could be proven in compliance with s 51 Sentencing Act.

Sessions is not like that example. Sessions is like the hypothetical example of the person who is charged with both aggravated burglary and burglary. There is no single point of difference that distinguished the charges between the court. Justice Hayne said at page 16 of the judgment,

“But where, as here, the act for which the applicant was to be sentenced on count 1 was the same act as he was to be sentenced for on count 2 and there was no fact or matter that should be taken to account in sentencing on one count that would not be taken to account in sentencing on the other count it was, in my view, oppressive and unfair to punish him twice. The conviction on count 2 should be quashed.”

The common law didn’t used to allow an aggravating matter to be taken into account on sentence if it could have been the subject of its own charge. In R v Newman and Turnbull [1997] 1 VR 146 this was accepted as the case, as a matter of fairness, where the offence was discrete. But in Sessions, Justice Hayne found that overlapping offences are not discrete so don’t offend the principle.

The question that should be asked (in my view) is if either offence can be proved without the other offence being proved. If the answer is ‘no’, it would obviously be wrong to punish the offender twice. If both offences can be proved independently of the other – even if they share some common elements – then both charges can attract a penalty.

I don't agree with every single point but I think HC outlines a reasonable and practical test for whether a sentence amounts to double punishment.

Wednesday, 23 June 2010

Devil's Advocate

Learning advocacy can be a complex thing. I used to always say it was like watching Tiger Woods (at least, until his fall from grace) — when you see someone good at it, it looks really easy and effortless. Then when you try it, you're all thumbs and fumbles.

Like any skill, practice is the best thing. But, the advocate's role can be fairly solitary too. Few benches have the time to coach advocates before them — not to mention that in an adversarial environment, it's not really appropriate for them to try! — and the opposition is usually keen to convince you your approach is all wrong, with varying degrees of politeness and enthusiasm!

So reading how other good advocates go about their job is often a good way to improve. I bought a few more advocacy books this year to add to my collection, including The Devil's Advocate
by English barrister Iain Morley QC.

The Devil's Advocate

I really like it. It's a more modern (and I think, relevant) read than Richard Du Cann's The Art of the Advocate.

Iain Morley states his opinion on things clearly and forcefully — and then confidently makes the point in his opening pages that we won't agree with everything you read, and that's a good thing. (About the only thing I really disagree with is in his chapter on cross-examination. He states the rule made famous by Irving Younger of never asking a question you don't know the answer to. True enough, he also starts with Younger's caveats: it's a rule for new and inexperienced advocates, and one that can be broken when you know you're breaking it and you know why. But I still disagree with it. I like Max Perry's approach on this in his book Hampel on Advocacy. Max divides questions and answers into three: those you will get, might or might not get, and definitely won't get. They also correspond to some extent to how much damage an adverse answer may or may not do to your case. Definitely won't get questions and answers are for puttage under the rule in Browne v Dunn. Will get questions and answers are generally ones that won't hurt if an unexpected answer pops up, and will generally make the witness look shifty if they don't provide. Might get questions and answers are the tricky ones, where a calculated risk can be taken depending on what's at stake and if you know what you're doing.)

The written and visual asyndeton style features throughout the book, and conveys a real sense of being crisp, direct and succinct — and Iain writes that he writes like he speaks when he teaches advocacy. I like it.

Here's a couple of examples, posted with Iain's permission.

Page 1

Pages 2 & 3

Have a look at these pages on the quality of being irresistible. (Something we all probably aspire to, for various reasons and purposes...)

It's not just what he writes that is good: it's the way he sets it out too.

Pages 24 & 25

Pages 26 & 27

This last one is Iain's suggestion for dealing with Brown v Dunne. I haven't heard this suggestion before...but I like it. It quickly deals with the point without embarking on a pointless argument.

Pages 168 & 169

I reckon this is a good read, and worth adding to your collection.

Monday, 21 June 2010

Legislation Watch: intervention orders, VIS and public order offences

Edit: The Personal Safety Intervention Orders Act 2010 received Royal Assent on 7/9/10.

If not proclaimed earlier, it will come into effect on 1 January 2012. Part 13 Division 1 s 186 of the Act will repeal the Stalking Intervention Orders Act 2008, but ss 187 - 191 preserves applications and orders made under the repealed legislation.

Two current pieces of legislation that will amend the operation of existing Acts are discussed below. One of them has already passed into law, and the other is likely to do so soon.

Justice Legislation Amendment Act (Victims of Crime Assistance and Other Matters) Act 2010

This is omnibus legislation intended to accomplish a variety of different aims. The Act has already received Royal Assent but most of the significant amendments haven't been proclaimed yet. These include:

• Amending the Sentencing Act 1991 and Children, Youth and Families Act 2005 to put into effect some of the recommendations from a government report, A Victim's Voice: Victim Impact Statements in Victoria.

The definition of victim in both Acts has been broadened to include those indirectly affected by crime. The type of material that can be included in a VIS has been expanded, and a qualified right has been inserted for the victim of a crime to have their statement read aloud as part of the sentencing hearing.

Judicial Registrars will be permitted to sit as delegates of the Victims Of Crime Assistance Tribunal. New provisions allow for financial compensation for reasonable safety-related expenses.

• Changes to the Family Violence Protection Act 2008. Amongst a number of changes to police procedures, s 55 will require a court to consider the practicality of obtaining oral evidence if considering excluding the Family Violence Safety Notice document itself as evidence under s 65.

Amendments also create the opportunity for children who are to be the subject of an intervention order to be assessed by clinicians, to establish the conditions that may be appropriate in particular cases.

• Many changes to the Liquor Control Reform Act 1998 including doubling the infringement amount for being drunk or quarrelsome, extending the duration of banning notices, and increasing the statutory maximum penalty for various public order offences under the Summary Offences Act 1966, including public drunkeness.

The Explanatory Memorandum can be found here.

Personal Safety Intervention Orders Bill 2010

When the Crimes (Family Violence) Act 1987 was repealed in 2008 it was replaced by two acts: the Family Violence Protection Act 2008 and the Stalking Intervention Orders Act 2008.

The Act concerning family violence had been the subject of extensive community consultation and debate. It's fair to say that the Act which related to stalking had not received the same level of scrutiny. The Stalking Intervention Orders Act 2008 was a stop-gap designed to allow the statutory separation of the two types of intervention orders.

It will be replaced by the Personal Safety Intervention Orders Act 2010. The Bill hasn't had its second reading but seems assured to pass, though possibly with amendments. It will be enacted at latest by 1 January 2012, but is likely to come into effect far sooner than that.

The Stalking Intervention Orders Act 2008 was troubled by being required to deal with two very different kind of non-family violence situations. Some complaints concerned the kind of obsessive predatory behaviour which had given rise to the creation of the criminal offence of stalking found at s 21A of the Crimes Act 1958. It was also called upon to deal with the kinds of repetitive neighbourhood disputes which, in the past, have been dealt with under the common law under binding-over orders or the tort of private nuisance.

The Explanatory Memorandum to the Bill explains [at page 5]:

Under the Stalking Intervention Orders Act 2008 the only ground for an intervention order was stalking. As such, it became a "catch all" provision for other types of behaviour that, although they came within a broad reading of the definition of stalking, were not necessarily pursuit-type stalking. It is intended that only pursuit-type stalking will be covered by the term "stalking" under this Bill.

A new category of conduct called prohibited behaviour will describe the non-stalking behaviour that may provide a basis for an order. This is described at s 5 as:

• assault;

• sexual assault;

• harassment;

• property damage or interference;

• making a serious threat.

Section 47 will provide that courts can inform themselves as they see fit when determining an application, regardless of the normal rules of evidence. This is in similar terms to a provision in the Family Violence Prevention Act 2008.

Saturday, 19 June 2010

Representative counts and current sentencing practices

Last year the Court of Appeal decided the appeal against sentence of DPP v CPD [2009] VSCA 114. That case considered an appeal against sentence for sex offences against children, but provided useful statements of general principle with broader application in all sentencing matters. It's just been reported in the Victorian Reports at (2009) 22 VR 533 (which is what put me on to it) — suggesting the law reporters think it's kind of important too!

Representative counts

At [38] – [43], the Court said that representative counts are relevant at sentencing for two reasons.

First, a representative count prevents an accused person submitting in mitigation that the offence was isolated or out of character incident — but is not itself an aggravating factor (citing DPP v McMaster (2008) 19 VR 191 at [42] – [49]).

Second, the sentencing court must consider the accused’s behaviour demonstrated by the representative count to place the offending in its full context — or consider the full picture — and give appropriate weight to culpability, specific deterrence and rehabilitation: DPP v CPD (2009) 22 VR 533 at [38].

Current sentencing practices

Sentencing Act 1991 s 5(2)(a) and (b) provide:
(2) In sentencing an offender a court must have
regard to —
(a) the maximum penalty prescribed for the offence; and

(b) current sentencing practices;

This appeal considered how to resolve the tension that might arise if the prescribed maximum for an offence varies from current sentencing practices — especially if the maximum has been increased by Parliament.

At [77] in its joint judgment, the Court declared that current sentencing practices means the approach currently adopted by sentencing judges when sentencing for the particular offence. That involves considering relevant sentencing statistics for the offence (echoes of MacNeil-Brown) and sentencing decisions in comparable cases.

The Court then referred to DPP v OJA (2007) 172 A Crim R 181 at [29]–[32], where Nettle JA said (my paraphrase) current sentencing practices:

  1. Prohibit identifying aggravating increments and mitigating decrements above a mathematical norm (which would offend the Markarian proscription of two-step sentencing). But some [sexual] offences are more serious than others and there is a need for at least some degree of comparison.
  2. Having regard to current sentencing practices doesn’t mean manifest excess and inadequacy are capped and collared by the highest and lowest sentences for previous similar offences. A sentence may properly rise above or fall below the greatest and lowest sentences previously imposed.
  3. Sentencing Act 1991 s 5(2)(b) requires courts to have regard to current sentencing practices. That doesn’t preclude increases or decreases in the level of sentences for particular kinds of offences. Over time, views may change about the length of sentence which should be imposed in particular cases and, when that occurs, the notions of manifest excessiveness and manifest inadequacy will be affected. It is possible that previous sentences were simply too low.

In short: sentencers should consider relevant sentencing statistics and previous cases, but sentencing ranges are not carved in stone, and can change as prescribed maximums change and as sentencing standards change too.

I expect that in practice this means sentencers will look ever more for assistance from advocates to provide relevant statistics and cases for their consideration to help avoid appeals on sentence.

Friday, 18 June 2010

Bubble trouble

Edit: Contempt proceedings in Victorian courts are (fortunately) rare. One past instance is Anissa Pty Ltd v Parsons [1999] VSC 430.

Cummins J's decision is interesting for the story it tells and the law it applies.

A magistrate has imposed one month's imprisonment for contempt of court to an accused who blew and popped a chewing-gum bubble at him.

Magistrate Rod Crisp described the bubble-popping as an act 'calculated' to demonstrate disrespect for the court, the Age reports today.

The contemnor had been seeking an adjournment of unrelated matters at Moorabbin Magistrates' Court. He pled guilty to contempt in the face of the court soon after, and was sentenced immediately.

He was released by the Supreme Court last night pending an appeal.

Thursday, 17 June 2010

Winch v The Queen [2010] VSCA 151: Hitting people with glasses

Edit: The RCSI tables - which I previously said were missing from the JCV's website - have now been added. I can't link to them directly but they are at of the Sentencing Manual.

The Court of Appeal decided Winch v The Queen [2010] VSCA 141 this week. At issue was the appropriate penalty for an offender who had recklessly hit someone in the head with a glass, causing them serious injury. The Court referred to current sentencing practices (as any court must do under s 5(2)(b) of the Sentencing Act 1991) but indicated that previous cases of recklessly causing serious injury (RCSI) should not constrain sentencing courts from awarding appropriate sentences.

A differently-composed Court of Appeal had flagged last week in DPP v Malikovski [2010] VSCA 130 (Nettle JA at 64] that the Court had a lot more to say about the offence Winch had committed. The Court found [at 31] that the 'general run' of sentences for offences under s 17 of the Crimes Act 1958 'does not sufficiently reflect the fact that such conduct is inherently dangerous' and that hitting a person with a glass should not be considered a 'less serious form of the offence of RCSI'.

The offence carries a maximum penalty of 15 years imprisonment and is the most serious charge in the assault hierarchy which can be dealt with summarily.

The Court didn't give a guideline judgment, at least formally. (Neither party sought one, although that's not required if the Court had wanted to hand one down.) Prior to Winch the most frequently cited case in relation to glassing incidents was R v Mills [1998] VSC 241. That case was also a glassing incident in a Mildura pub and has become a keystone of sentencing principle. It was discussed here a while ago.

The Crown conceded in the circumstances of Winch the head sentence of five years imprisonment for the offence was manifestly excessive. The Court of Appeal reduced the penalty to two years and nine months (with a non-parole period of fifteen months). The Court declined to suspend the sentence, even in light of what the prosecution conceded were very substantial matters in mitigation.

Maxwell P and Redlich JA [at 44],

44 In our view, the seriousness, and the prevalence, of glassing (RCSI) mean that general deterrence (and, where necessary, specific deterrence) must be given primacy in the sentencing synthesis. The approach which should be followed is, we think, that which was described by Batt JA (with whom Winneke P and Nettle JA agreed) in DPP v Lawrence [2004] VSCA 154 as follows:

... Youth and rehabilitation must be subjugated to other considerations. They must take a “back seat” to specific and general deterrence where crimes of wanton and unprovoked viciousness (of which the present is an example) are involved ... This is because the offending is of such a nature and so prevalent that general deterrence, specific deterrence and denunciation of the conduct must be emphasised. There is a particular reason why, with this offence, youthfulness of an offender cannot be of much significance. This is that ... the persons who commit the offence and wreak appalling injuries ... are predominantly youths and young men acting under the influence of alcohol or drugs or both.

That was a case of intentionally causing serious injury but, for the reasons we have given, what was there said applies with equal force to ‘glassing’ as a serious instance of RCSI.

The majority decision concluded with a warning to lawyers advising their clients of the potential consequences of a guilty plea:

55 It follows, in our view, that sentencing judges should not regard themselves as constrained to follow the course disclosed by the glassing cases to which we have referred. Those advising clients in the future whether or not to plead guilty to RCSI in a glassing case should ensure that no assumption is made about the availability of a suspended sentence. For all the reasons we have given, a person who comes to be sentenced for RCSI, on a plea of guilty, for a ‘glassing’ offence – even with all the mitigating features to which we have referred – should proceed on the assumption that he or she will be required to spend a significant period of time in actual custody.

The judgment comes with a table of 15 glassing cases attached, taken from the Crown's submissions to the Court. There's currently no table for RCSI in the Judicial College's Sentencing Manual. The Sentencing Advisory Council's statistics are divided into the summary jurisdiction and the higher courts.

Tuesday, 15 June 2010

When is lay opinion 'necessary'?

Edit: I have been pointed to the decision of Connex Group Australia v Butt [2004] NSW 379 on this point. White J delivers a comprehensive judgment explaining his decision to allow lay opinion about the substance of conversation, where the words themselves could no longer be recalled.

I'll write a full post on it when time permits.

Section 78 of the Evidence Act 2008 is a short provision. It reads,

78. Exception - lay opinions

The opinion rule does not apply to evidence of an opinion expressed by a person if-

(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and

(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.

'Necessary' in the context of (b) does not refer to absolute necessity: Jackson v Lithgow City Council [2010] NSWCA 136. Allsop P noted what had been written in Odgers Uniform Evidence Law (2008, 8th Ed, Lawbook Co, p 302) prior to the matter going to the High Court, but found that (unlike as is suggested there) no distinction needs to be drawn between an opinion which is only a 'compendious description' of what was perceived and an opinion which 'actually draws an inference' from what was perceived.

Basten JA (agreeing with Allsop P and Grove J) said [at 71],

71 When used in the Evidence Act, the term “necessary” connotes a higher hurdle to surmount than that which is ‘helpful’, ‘convenient’ or ‘desirable’, but does not require absolute necessity, in the sense of being the sole means of proof. Whether the exception is satisfied in a particular case may need to take account of the purpose or purposes underlying the general exclusion and the purpose of the exception.

The Court did not consider it significant to admissibility that the evidence would have been easily proved by other means (calling one of the officers) or that the foundation for the opinion was ambiguous. Basten JA outlined in some detail judicial authority concerning what 'necessary' may mean in a variety of curial contexts.

The facts in this case were quite unusual. They are set out in Jackson v Lithgow City Council [2008] NSWCA 312. The appellant, originally the plaintiff in a negligence action, was found lying unconscious in a concrete drain in a park in Lithgow shortly before 7 am on 18 July 2002 with serious injuries, cuts and abrasions. He had taken his dogs for a walk at about 3:30 that morning whilst intoxicated. He had no memory of the events in question or of events from the middle of the day before. No one saw the accident. There was no direct evidence as to the position of the appellant’s body in the drain when he was found. The appellant sued the local council having care and management of the park, alleging that he had fallen over the low, unfenced retaining wall of the drain and down approximately 1.5 metres on to the concrete drain.

The primary judge found in favour of the respondent council. The respondent did owe someone in the position of the appellant, walking in the park at night, a duty to exercise reasonable care for his or her safety and that such duty was breached by the respondent failing to take steps to avoid the risk of foreseeable injury to someone falling over the wall at night. However, the primary judge concluded that the appellant had not proved how he fell and came to be injured, the evidence not permitting a conclusion that the appellant had stumbled over the low wall and fallen down on to the concrete, or that the appellant had approached the drain when it was dark.

The Court of Appeal found in favour of the plaintiff, relying upon a 'retrieval record' (a note made by ambulance officers who attended upon the plaintiff and took him to hospital). Unusually, neither ambulance officer had been called as a witness, but their notes had been tendered without objection. It then became the subject of some discussion as to whether the notes were admitted under s 78 (lay opinion), s 69 (business records), or some exception to the hearsay rule.

The Lithgow City Council took the matter to the High Court because part of the evidence placed before the Court of Appeal had been incorrectly transcribed. When remitted to the Court of Appeal before the identically-composed Court the result was again judgment in favour of the plaintiff, and the findings expressed above.

Thursday, 10 June 2010

Racing cars

Yet More Edits: In King v The Queen [2012] HCA 24, an appeal advancing flawed jury directions disentitled a culpable driver of conviction on a lesser charge, the High Court considered the nature of dangerous driving; its history, purpose, and relationship to other offences where use of a motor vehicle has created actual or potential danger to other road users. The majority [French CJ, Keiffel and Crennan JJ, at 38] said,

The ordinary meaning of "dangerous" is "[f]raught with or causing danger; involving risk; perilous; hazardous; unsafe": The New Shorter Oxford English Dictionary, 4th ed (1993), vol 1 at 591, sense 2. It describes, when applied to driving, a manner or speed of driving which gives rise to a risk to others, including motorists, cyclists, pedestrians and the driver's own passengers. Having regard to the ordinary meaning of the word, its context in s 319 and the purpose of s 319, as explained in the Second Reading Speech, negligence is not a necessary element of dangerous driving causing death or serious injury. Negligence may and, in many if not most cases will, underlie dangerous driving. But a person may drive with care and skill and yet drive dangerously. It is not appropriate to treat dangerousness as covering an interval in the range of negligent driving which is of lesser degree than driving which is "grossly negligent" within the meaning of s 318(2)(b) of the Crimes Act. The offence created by s 319 nevertheless takes its place in a coherent hierarchy of offences relating to death or serious injury arising out of motor vehicle accidents. It is not necessary to that coherence that the terms of the section be embellished by reading into them a requirement for proof of some species of criminal negligence.

The Court of Appeal erred in R v De Montero (2009) 25 VR 694 in finding otherwise, an error repeated in the case discussed below.

Further Edit: I recently had drawn to my attention the strong, condemnatory words of the Alberta Court of Appeal in R v Field 2011 ABCA 48 [Macfadyen, Watson and McDonald, at 22]:

The signal that must be sent out for crimes of this sort cannot be a mixed message. The target audience of deterrence is, mainly if not exclusively, people just like the respondent. Sentencing cannot focus entirely on the offender’s youth, or his otherwise good characteristics. Driving motor vehicles is a privilege, not a right, as it is governed by a vast array of licensing requirements and limitations reflective of universal public awareness that even largely safe motoring is perilous to the users of the road. There is a wide public consensus as to the need for the highest degree of social responsibility when driving. The public has a right to xpect that when using public thoroughfares according to the law, their lives and security will not be threatened by unexpected reckless conduct by other thrill seeking drivers.

Accordingly, street racing has a high degree of moral blameworthiness both on the side of gravity of the offence and degree of responsibility of the offender. The driver demonstrates not merely gross negligence but a willingness and intention to subject his passengers, the other competitor racer, and the public at large to great hazards. Driving a ton of glass and metal through spaces where people can be expected to be present and at a speed where it is likely to be impossible to stop the vehicle in time to avoid calamity cannot be treated as a youthful indiscretion. Street racing is entirely avoidable. There is no need for it to ever happen. A driver thus has plenty of choice not to start this crime and plenty of chance to stop it. Nothing impels the behaviour. Accordingly, what has been called the controlling emotion of fear must be enlisted by the law to deter such a choice. Since awareness of the risk of catastrophe seems insufficient to discourage it, then the tool of stern punishment must remain. As to denunciation, it is necessary for the law’s face to be set against such conduct with no ambiguity.

The case is currently on appeal to the Supreme Court of Canada.

Edit: The Court of Appeal recently considered the cases (and approved them) in a conviction and sentencing appeal King v The Queen [2011] VSCA 69.

Also have a look at the more recent case of Rodi v The Queen [2011] VSCA 48. Some issues of causation got a thorough treatment. The appellant unsuccessfully challenged both conviction and sentence after a jury convicted him of dangerous driving causing death and serious injury.

Ashley JA [at 50, arper JA and Hargrave AJA in agreement]:

The gist of the submissions for the applicant was that an agreement could not properly be inferred. I do not agree. Acceptance that nothing was said explicitly about racing at either intersection does not mean, having regard to the conversations and the events which ensued, that it was not open to the jury to infer the making of an agreement of the nature alleged. That is so notwithstanding that it required an inference adverse to the applicant.

There is a specific offence under the Road Safety Act for drivers who participate in a race on a public road. It is found at s 68 and reads simply:

68. Speed trials

(1) A person who on a highway drives or is in charge of a motor vehicle which
is being used in a race or speed trial is guilty of an offence.

Unlike dangerous driving (discussed here a couple of months ago) an offence under s 68 doesn't seem to require any accompanying element of dangerousness. The penalty is a fine with no mandatory loss of licence.

Racing cars on a public road can be dangerous, and it's unsurprising that a surplus of confidence combined with a deficit in ability can lead to one of the
'competitors' crashing. What's the legal liability of the non-crashing driver in these circumstances?

In Guthridge v The Queen [2010] VSCA 132 the applicant was the non-crashing driver who, a jury found, had engaged in a race with another car which had struck and killed a passing motorist.

Neave and Redlich JA, Coghlan AJA [at 5]:

5 Although the men did not know each other, the Crown alleged that they had agreed to participate in a race along Sydney Road, which involved driving at a high speed in an industrial and residential zone, weaving in and out of traffic and failing to keep a proper look-out, and resulted in the collision causing the victim’s death. Although it was [the other driver], who collided with the victim’s car, the Crown case was that by becoming involved in a race with [the other driver], the applicant had acted in concert with [him] or alternatively had aided and abetted [him] and that they were therefore both criminally liable for the death of the victim. The applicant’s driving was thus said to be a substantial and operative cause of the victim’s death.

The appeal was advanced on the ground of inadequate (or erroneous) jury directions. The trial was conducted a few days prior to the Court of Appeal's decision in R v De Montero [2009] VSCA 255 and so (unsurprisingly) the directions failed to accord with the test of dangerous driving the Court of Appeal outlined in that case (discussed here). The appeal was allowed and the conviction for dangerous driving causing death quashed.

The Court of Appeal went on to consider the principles of complicity as they relate to a non-crashing driver engaged in racing. The applicant had submitted that his mere presence at the collision location was insufficient to found a charge of causing death against him.

After considering traditional authorities that establish mere presence is insufficient to constitute aiding and abetting, the Court continued [at 107],

A participant in a two person race is not simply ‘present’ in the race with the other participant but engages in a process in which each person attempts to outdo the other. Whatever the precise goal of the race between two participants, it necessarily involves a notion of mutuality. Each participant attempts to drive faster than the other. In turn, this may encourage the other participant to attempt to outperform their competitor. It was a matter for the jury whether the applicant’s driving encouraged [the other driver] to drive in the manner that he did at the time of the collision.

108 The view we have expressed has been accepted in England. In R v Lee [2006] EWCA Crim 240 witnesses had seen the appellant and the deceased driving their motor cycles at excessive speeds and doing ‘wheelies’ before the accident. The deceased was killed when the men collided and the deceased drove into a brick wall. The prosecution case was that the appellant could be convicted of dangerous driving causing death either on the basis that the death was caused by the dangerous driving of both men or on the basis that the appellant’s dangerous driving encouraged the deceased to drive dangerously, even though the death may have been directly caused by the deceased hitting the back of the appellant’s motor-cycle. The English Court of Appeal upheld the appellant’s conviction for causing death by dangerous driving, having accepted that the question for the jury was ‘whether each was, by his driving, encouraging the other to drive in a similar manner’.

109 In R v Haynes [2008] EWCA Crim 1218 a number of witnesses observed the deceased and the appellant, driving at high speeds, before one of the men was killed when he lost control of his car. The men did not know each other. The Crown case was that the men were racing each other and that the appellant had aided and abetted the deceased man’s bad driving. The Court of Appeal refused to set aside the conviction of the uninjured man for causing the death of the other man by dangerous driving. One of the submissions of counsel for the appellant was that the men might have started off racing but by the time the man who was killed lost control of his car, the appellant had withdrawn from the race. Saunders J, who delivered the judgment of the Court, said that the incident of racing had lasted ‘at most a minute. The idea that over part of it the appellant was racing and then withdrew from it towards the end, is in our judgement unrealistic’.

110 Liability on the basis of aiding and abetting was also assumed to apply in R v Milburn [1974] RTR 431, where the person who was killed was a third person who was hit by one of the two men who was racing.

111 We have already said that there was sufficient evidence for the jury to find beyond reasonable doubt that the men were racing, when [the other driver] collided with the victim. We therefore consider that it was open to the jury to have convicted the applicant of the offence of dangerous driving causing death, on the basis that the applicant encouraged [the other driver] to drive dangerously.

The Court stated a preference for the allegation put by the Crown to be put on the basis of aiding and abetting, rather than acting in concert, unless there is 'cogent' evidence of an actual agreement [at 112]:

112 In our view, where an accused participates in a race on a public road in which another participant in the race directly causes the death of the victim, it is preferable that the Crown present the accused on the basis that he or she aided or abetted the principal offender. Accessorial liability of the non-colliding driver as an aider and abettor does not carry with it the artificiality of reliance on an implied agreement or understanding. It has the further advantage that it would simplify jury directions. The jury would only be required to consider whether they were satisfied beyond reasonable doubt that the actions of the accused encouraged the colliding driver to drive dangerously. As we have already stated, in a case where there is cogent evidence of an agreement or understanding, it will be appropriate for the Crown to rely upon concert.

Abettors in summary offences are liable to be punished as principal offenders under s 324 of the Crimes Act 1958. (It's hard to believe more of these procedural provisions haven't been moved into the Criminal Procedure Act 2009). I haven't heard of a driver being prosecuted for another driver's crash in the summary jurisdiction, but this case may encourage it.

Tuesday, 8 June 2010

Not following the instructions

The SA Supreme Court has decided another speed camera case in Police v Bulgin [2010] SASC 143. The Court affirmed that it's not necessary for the prosecuton to prove compliance with technical instructions (manufacturers' handbooks, user guides, instruction manuals, etc) as a prerequisite to the admissibility of certificates authorised under statute.

The respondent had been snapped by a camera allegedly travelling at 61 km/h in a 50 km/h zone. A certificate relied upon by the prosecution at the contested hearing was ruled inadmissible by the magistrate. The prosecution had no other form of evidence to lead in support of their charge under Road Rule 20, so it was dismissed.

White J summarised the issue before the Supreme Court [at 4]:

The Police now appeal against the dismissal of the complaint, contending that the Magistrate’s voir dire ruling was wrong. The appeal raises issues about the operation of the statutory aids to proof contained in s 79B(10) of the Road Traffic Act 1961 (SA) (RTA). The first issue is whether a Magistrate’s finding that a speed camera was not operated in accordance with the manufacturer’s operating instructions, or those issued by the Police themselves, with the resultant possibility of an incorrect reading, has the effect that the prosecution may not tender a certificate comprising a statutory aid to proof. The second issue is whether the prosecution must prove that the speed camera was in proper order and properly operated at the time of detection of the alleged offence before it can tender the certificate comprising the statutory aid to proof.

The statutory enforcement schemes operating in SA and Victoria are different, but similar. Regulation 19 of the Road Traffic (Miscellaneous) Regulations 1999 contains requirements with respect to the programming, positioning and operation setting of a speed camera. It can be likened to Division 6 of the Road Safety (General) Regulations 2009 currently in operation here.

A conventional approach holds that a certificate relating to the product or output of a prescribed device is prima facie admissible if it complies with relevant statutory requirements, with the weight to be attached to it to be determined once admitted: see DPP v Juchnowski [2008] VSC 181 for a local example. This case took a different course in the Magistrates' Court. The evidence was objected to, and a voir dire conducted into its admissiblity.

Both sides called expert evidence.

White J at 21 - 22:

21. In the voir dire hearing the prosecution called a Mr Hoffmann, an electrical engineer, and the respondent called a Dr Garwoli, a chartered professional engineer and scientist. Dr Garwoli had prepared a written report (exhib D1) in which he said:

The equipment utilised in both of these matters is excellent: I have no criticism of the equipment whatsoever ... My whole argument is based on the fact that there are adequate operating instructions relating to the use of this equipment and that these instructions have not been followed.

Dr Garwoli then referred to instructions contained in a manual containing operating procedures issued by the South Australian Police (exhib D2), the manufacturer’s instructions relating to the use of the speed camera (exhib D3), and to an Australian standard.

22. Dr Garwoli expressed the opinion that the operation of the speed camera on 7 June 2007 had not complied with the operating procedures of the police and of the manufacturer in six separate respects. Although Mr Hoffmann gave his evidence on the voir dire before Dr Garwoli, his evidence was directed to the criticisms of Dr Garwoli. He disagreed with Dr Garwoli’s conclusions. Neither Mr Hoffmann nor Dr Garwoli referred to reg 19 in the course of their evidence on the voir dire, nor to the matters required by reg 19. The question on the voir dire in relation to the alleged offence of 7 June 2007 was solely that of whether there had been non-compliance with the police and manufacturer’s operating instructions with the resultant possibility of an unreliable reading.

The respondent relied upon this opinion to argue that proof by the prosecution that the speed camera used in the detection of an offence had been in good operating order and was being properly operated was an essential condition of the admissibility of a certificate under s 79B(10)(b). It was submitted that unless the camera was factually proven to be in good order and condition, and operated correctly, any photograph which it took could not be said to indicate anything, and therefore wouldn't satisfy a threshold test of relevance for its admissibility.

White J rejected this construction. He found that not every departure from operating instructions would make a reading unreliable, referencing Police v Henwood (2005) SASR 15.

the Court declined to find that the phrase evidence to the contrary casts a legal burden on an accused to rebut a statutory presumption on the balance of probabilities (as expressed in Evans v Benson (1987) SASR 317). The more recent authorities of Police v Dodd (2004) 88 SASR 130 and Llewellyn v Police (2005) 91 SASR 418 hold that certificates are proof until contrary evidence is raised by the accused, at which point the burden returns to the prosecution to prove the charge beyond reasonable doubt (the Liberato approach).

Monday, 7 June 2010

Sex offender registration not arbitrary

Yesterday in Lifetime sex offender registration might offend Charter I posted about a UK case considering if lifetime sex offender notification requirements offended the human right to privacy.

Jeremy Gans gave me a very nice segue by commenting about the recent Victorian case of WBM v Chief Commissioner of Police [2010] VSC 219. In that case WMB sought:
  1. a declaration that he was not an existing controlled registrable offender and so not a registrable offender
  2. a declaration that sex offender registration was incompatible with the right against arbitrary interference with privacy
He was unsuccessful on both grounds.

The first argument failed on a fairly straight-forward case of statutory interpretation, in the process at [20] helpfully applying R v Bice (2000) 2 VR 364 to affirm that a suspended sentence is not ‘served’ until the suspension period expires (or the sentence is restored and actually served).

The second argument was rejected on the interpretation of Charter s 13, which provides:
13. Privacy and reputation

A person has the right—
(a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and

(b) not to have his or her reputation unlawfully attacked.

Kaye J considered a number of Victorian and international judgments, but held the international cases weren't terribly helpful because of different constitutional systems in their background, or different statutory schemes. In the end, His Honour concluded sex offender registration wasn't an arbitrary interference with privacy and dismissed the application.
[57] For the reasons which I have already set out, in my view the adverb “arbitrarily”, in s 13(1) of the Charter, is to be construed in its ordinary English meaning, namely as denoting an interference with the right of privacy which is capricious and not based on any identifiable criterion or criteria.

Although the proportionality-test under Charter s 7(2) was raised, the Court seemed to focus more on the test of arbitrariness under s 13.

It might be that issue could remain to be further explored in future cases. But in any event, as Jeremy pointed out, the right to apply for suspension of reporting obligations under Sex Offenders Registration Act s 39 suggests that F (A Child) v Secretary of State for the Home Department; Thompson v Secretary of State for the Home Department [2010] UKSC 17 might not carry so much weight in Victorian courts.

Sunday, 6 June 2010

Lifetime sex offender registration might offend Charter

The Sex Offenders Registration Act 2004 provides that when a person is sentenced for registrable offences (certain sexual offences) they automatically become a registrable offender. Part 3 requires registrable offenders to report for either 8 or 15 years, or for life, depending on why they are defined as a registrable offender.

Alternatively, a court might order that certain offenders comply with reporting conditions under the Act.

Similar provisions operate in the UK. In F (A Child) v Secretary of State for the Home Department; Thompson v Secretary of State for the Home Department [2010] UKSC 17 the UK Supreme Court considered the notification period for people convicted of prescribed sexual offences.

If a person is sentenced to 30 months or more jail, the notification period is for life.

F and Thompson argued that the notification requirements were incompatible with Article 8 of the European Convention on Human Rights, which provides:
Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

There's no direct equivalent in our Charter, but s 13 (right to privacy), in conjunction with s 32 and s 38, are fairly similar. I expect s 12 (freedom of movement) could also come into play here.

The question in F and Thompson was if the lifetime reporting requirements were disproportionate to the provision's aim of preventing crime and protecting the rights and freedoms of others. F and Thompson argued the notification requirements cold not be proportionate because there was no right to review if they continued to be justified in individual cases.

The Supreme Court adopted a test for proportionality laid down by the Privy Council.
The approach to proportionality

[17.] In order to decide whether interference with a fundamental right is proportionate to the legitimate end sought to be achieved the court has to ask the questions identified by the Privy Council in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 at p 80:
“whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.”

However, as Lord Bingham of Cornhill observed in Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167 at para 19, there is an overriding requirement to balance the interests of the individual against those of society.

The Court then considered other supervision and management mechanisms in the UK legislation, noting it was possible in some cases to vary notification requirements under those provisions, in contrast to the mandatory requirements involved in this appeal. The Court also accepted at [51] there was no point continuing with notification requirements if a person could demonstrate they were no longer a significant risk of committing further serious sex offences.

Counsel for the Home Secretary put the counter argument.
[52.] Both the Divisional Court and the Court of Appeal proceeded on the premise that there were some who were subject to notification requirements who could “clearly demonstrate” that they presented no risk of re-offending or of whom “it can confidently be said that there was no risk” that they would commit a sexual offence. Mr Eadie came close to admitting that, if this premise were correct, it would be hard to gainsay the proposition that there ought to be a right to a review to enable notification requirements to be lifted in respect of those who no longer posed a risk. He submitted, however, that the nature of sexual offences was such that it was never possible to be sure that someone who had been guilty of a serious sexual offence posed no significant risk of re-offending, and that this was borne out by statistical evidence. Either all sexual offenders had a (possibly) latent predisposition to commit further sexual offences or, if some did not, it was impossible to identify who these were. Whether these submissions are well founded is the question that lies at the heart of this appeal. I turn to consider the evidence before the court.

The Court concluded there was no evidence it wasn't possible to identify those who might re-offend, but that 75% of supervised offenders were not convicted of further offences. Lord Phillips concluded at [57]:
...I think that it is obvious that there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further sexual offence can be discounted to the extent that continuance of notification requirements is unjustified...

(I think there's a bit of an evidentiary leap there. The starting point is the liberalist idea of primacy of the autonomy of the individual, which triumphs over the absence of evidence to justify interference with that autonomy. It's not necessarily wrong, but to raise that almost as an afterthought at the end of the argument leaves the syllogism open to challenge.)

The end result was that the notification requirements were held to be disproportionate and so incompatible with the right to privacy and against arbitrary interference, and the Court issued a statement of incompatibility. (Though we know from Momcilovic's case, under Victoria's Charter that doesn't necessarily mean anything has to change.)

Friday, 4 June 2010

R v Halligan (No 2) [2010] VSC 232: Breach of a CBO can lead to gaol

Edit: Another example of comparatively harsh treatment is Matthews v The Queen, where a breach of CBO led to the imposition of twelve months imprisonment with a minimum of six.

Unlike Intensive Correction Orders, it's rare for an offender who breaches a Community Based Order to be resentenced to immediate imprisonment. There are several sentencing options between the two that courts will employ if possible.

It depends very much on the original offence(s) for which the CBO was imposed, of course. In the case of Halligan, the offence was one of robbery. The full facts are set out in R v Halligan [2008] VSC 279.

After failing to justify his non-attendance at appointments with the Office of Corrections, Halligan was re-sentenced for the original robbery. He was given twelve months imprisonment, six months to be served immediately.

Harper J:

22 Indeed, the history of your conduct since your sentence indicates that there is very little reason to be confident that any undertaking presently given to comply with a fresh community-based order would be fulfilled. It is true that you completed 48 and a half hours of community work pursuant to the original order. It is also true that in the 18 months allowed to complete the 150 hours of community work required, you failed to complete 101 and a half hours. That seems to me to be another indication of your dismal failure to make any real attempt to comply with the requirements of the order.

23 I also take into account the fact that after July last year you lost contact, or failed to renew contact, with your community corrections officers. That, in my view, is an inexcusable failure on your part. The corrections officers are in a position to assist a person subject to a community-based order to comply with the requirements of that order. They are not draconian in the exercise of their powers unless compelled to be so. Thus, it was not until you had failed on 14 occasions to attend when required, that any action at all was taken to bring your failure to the attention of the Court.

24 In other words, the community corrections officers bent over backwards to ensure that you did not come to the notice of the Court, despite your failure to obey the order. It was only when they lost contact with you after July 2009 that the action which brings you before the Court today was instituted.

25 In all these circumstances, I have, in my opinion, no option but to deal with you as if the robbery was an offence for which you had just been found guilty, and to sentence you to a term of imprisonment.

This case struck me as a useful example for practitioners to give their clients (particularly the younger ones) that demonstrates the importance of compliance with sentencing orders.

Thursday, 3 June 2010

Implied waiver of the right to silence

Interesting times over in the land of the free and home of the brave, as the US Supreme Court has held in a 5-4 decision that the right to silence must be unambiguously (and probably expressly) asserted.

The full text of Berghuis v Thompkins 560 US (including the dissenting judgment) can be found here.

In the US, questioning of a suspect must cease at the point where the suspect expresses a desire to invoke their rights under Miranda v Arizona 384 US 436. The Sixth Circuit Court had ruled that Thompkins' unresponsiveness in the face of questioning over a prolonged period amounted to an implied invocation of his right to remain silent. The Supreme Court overruled the Sixth Circuit by the narrowest of margins.

Kennedy J (joined by Roberts CJ and Scalia, Thomas and Alito JJ) at 17:

In sum, a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making anuncoerced statement to the police. Thompkins did not invoke his right to remain silent and stop the questioning. Understanding his rights in full, he waived his right to remain silent by making a voluntary statement to the police. The police, moreover, were not required to obtain a waiver of Thompkins’s right to remain silent before interrogating him.

Links to some US reaction to the decision can be found here and a detailed analyisis of the decision here. A local critique of the Supreme Court's decision can be found here.

Tuesday, 1 June 2010

Double jeopardy

Double jeopardy is often used to refer to an accused being presented for trial or sentence before different courts regarding the same matter. It's also used to describe the situation where an accused is punished twice for the commission of the same act.

Black J described the concept in this context in Green v United States [1957] 60 Cal2d 482:

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

In Victoria the principle is partially expressed at s 51 of the Interpretation of Legislation Act 1984, which reads,

51. Provisions as to offences under two or more laws

(1) Where an act or omission constitutes an offence under two or more laws,
the offender shall, unless the contrary intention expressly appears, be liable
to be prosecuted under either or any or all of those laws but shall not be
liable to be punished more than once for the same act or omission.

(2) In subsection (1) law means-

(a) an Act or a provision of an Act;

(b) a subordinate instrument or a provision of a subordinate instrument; or

(c) common law.

While this provides legislative authority for the prosecution to present an accused before the court charged with any number of offences, there's no further statutory clarification of what 'punished more than once for the same act or omission' means.

The notion of avoiding double punishment is bound up with related concepts of duplicity, estoppel, res judicata and autrefois acquit and convict. Like duplicity, there are questions of nature and degree preventing a one-size-fits-all rule being applied to the wide diversity of cases the principle can be applied to.

In Pearce v R (1998) 194 CLR 61 the High Court dealt with one of the easier scenarios. Unlike in Victoria, an offence of burglary exists in NSW where the aggravating feature of the offence is an assault causing grievous bodily harm (rather than a focus on the accused's intent at the time of entry, as here). Pearce was sentenced for offences of inflicting grievous bodily harm and of committing a burglary with that same feature of aggravation.

McHugh, Hayne and Callinan JJ [at 40, Gummow and Kirby JJ arriving at different conclusions but agreeing on this point]:

To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.


It is clear in this case that a single act (the appellant's inflicting grievous bodily harm on his victim) was an element of each of the offences [of causing grievous bodily harm] and [entering a house and causing grievous bodily harm]. The identification of a single act as common to two offences may not always be as straightforward. It should, however, be emphasised that the enquiry is not to be attended by "excessive subtleties and refinements". It should be approached as a matter of common sense, not as a matter of semantics.

The 'excessive subtleties and refinements' was a reference to earlier in the majority judgment to a quote of Sir John Barry's [at 39]:

"Dr Leon Radzinowicz has rightly observed that the criminal law is fundamentally 'but a social instrument wielded under the authority of the State to secure collective and individual protection against crime'. It is a social instrument whose character is determined by its practical purposes and its practical limitations. It has to employ methods which are, in important respects, rough and ready, and in the nature of things it cannot take fully into account mere individual limitations and the philosophical considerations involved in the theory of moral, as distinct from legal, responsibility. It must be operated within society as a going concern. To achieve even a minimal degree of effectiveness, it should avoid excessive subtleties and refinements. It must be administered publicly in such a fashion that its activities can be understood by ordinary citizens and regarded by them as conforming with the community's generally accepted standards of what is fair and just. Thus it is a fundamental requirement of a sound legal system that it should reflect and correspond with the sensible ideas about right and wrong of the society it controls, and this requirement has an important influence on the way in which the judges discharge the function of imposing punishments upon persons convicted of crime."

A case like Pearce (or like R v Sessions [1998] 2 VR 304) where one offence arises substantially out of the commission of another is fairly clear-cut. It's plain that, where a person is charged with offences of burglary and aggravated burglary in relation to the same conduct and the allegations are found proven, only one charge can proceed to sentence. But what about charges of burglary and theft arising from the same events, both of which routinely proceed to penalty? How closely (or far apart) do charges need to be to found an independent existence?

In R v Bac Ai Ngyuen Vu [2009] VSCA 231 double jeopardy was found to exist when the accused was sentenced for multiple charges of handling stolen goods when the offender bought a number of stolen computers under the same or similar circumstances. In R v Bradley [2010] VSCA 70 charges of recklessly causing injury and endangering life were considered to involve double jeopardy (a point already decided in R v Le [2009] VSCA 247. In R v Wei Tang [2007] VR 16 VR 545 the Court of Appeal considered two offences of 'using' and 'owning' a slave to create potential for double punishment, though Cummins J later said [at 47] he had difficulty with that analysis and declined to follow it: DPP (Cth) v Ho & Anor [2009] VSC 437. The Victorian approach seems to favour dismissing a 'doubled-up' charge: R v Sari [2008] VSCA 137; R v Healey [2008] VSCA 132; R v Audino [2007] VSCA 319.

On the other hand, there seems to be a firm rule that single acts which cause consequences to a number of victims legitimately attract multiple punishments. Vincent, Neave and Nettle JJA in R v WWS [2009] VSCA 125:

30 The prohibition on double punishment does not prevent the prosecution of an offender for more than one offence where an offender’s single action causes harm to more than one person. In Phillips v Carbone (No 2), the Full Court of the Supreme Court of Western Australia held that s 16 of the Criminal Code (WA), which prohibited a person from being ‘twice punished for the same act or omission’, did not apply in the situation where an offender caused bodily harm to two persons by a single act of dangerous driving. Ipp J said that s 16 was not intended to protect a person who caused multiple harm to different persons by a single act.

31 In R v Bekhazi, this Court held that an offender who drove a car while under the influence of drugs, killing one victim and recklessly endangering another, could be convicted of two offences arising out of that action. Winneke P said:

[t]he offences described by ss 22 and 318 of the Crimes Act are different, not only in their elements, but also in the acts or omissions which constitute them. Each contemplates ‘harm’ flowing to identifiable ‘victims’. In other words, they are not the same offence either in law or in fact and, accordingly, to punish the appellant for each of them does not infringe the protection afforded by s 51 [of the Interpretation of Legislation Act] merely because each offence derives from a common course of driving. So far as I am aware, it has never been doubted that, if the act of detonating a bomb kills or injures multiple victims, the accused can be charged with and punished for as many offences as there are victims. Likewise, if a course of driving a motor vehicle causes the death of one person and endangers the life of another, the fact of the death of one victim and the endangerment of the life of the other must be part of the relevant ‘acts or omissions’ constituting the separate ‘laws’ because the consequences cannot be divorced from the separate obligation owed by the accused to the separate victims. In the eyes of the criminal law, it is the existence of the separate obligations owed to the several victims of the one criminal act which, in part, defines the acts or omissions constituting the different offences arising from that act. It is that concept which, I think, underlies the ‘fundamental distinction’, referred to by Ipp J in Phillips v Carbone (No 2), above, at 190, between a single act that contravenes more than one ‘law’, and a single act that harms more than one person.

32 Vincent JA took a similar view. His Honour said:

[t]he detonation of a bomb in a shopping centre may, from the perspective of a particular perpetrator, involve a single action. However, as far as the law is concerned, the individual has committed a separate criminal act against each of his victims. Through the actor’s engagement in the one activity, he has breached what the law sensibly regards as quite distinct and identifiable obligations to the community and to each of those encompassed by the offence concerned and for which he is separately accountable. The one action may involve the commission of a number of such breaches and offences, each of which is regarded as involving a separate act. So viewed, the same conduct or act, although I would prefer to employ the term action, may attract criminal responsibility as murder, attempted murder, or one of a number of other lesser offences according to the consequences for the respective victim or potential victims.

It is not simply that the action undertaken has had a number of consequences or has affected more than one victim, although this underlying reality provides the most powerful rationale of the attribution of responsibility in respect of each victim, but rather that the criminal law represents and reflects, on behalf of the community, significant aspects of the relationships and duties which are regarded as essential and separately owed to the community and to each member. Returning to the example given above, it is not regarded as the same act to kill A as it is to kill B, although their deaths may result from the same action. Nor, in the present context, was the action which resulted in the death of Ms Hornidge to be regarded as subsuming the offence and acts of placing Ms Archdall and Mr Morland in danger of death.

33 The applicant’s action of masturbation affected each of the three young girls who were present when this action was performed. The situation is therefore similar to that arising in Phillips. If the applicant had been convicted of only one of these offences, the judge would not have been able to sentence the applicant for the effects of his action on the two other two girls.

34 The applicant’s counsel submitted that if the conviction on count 9 was upheld a man who masturbated in a hall full of children could be convicted of hundreds of separate counts of committing an indecent act in the presence of a child. The theoretical possibility that this could occur does not require the quashing of the applicant’s conviction on count 9. Such a situation is likely to be dealt with by the sensible exercise of prosecutorial discretion to limit the number of offences with which an offender is charged, where the offences arise out of a single act. Alternatively, the court may be able to exercise its power to prevent an abuse of process in such circumstances.

In NSW, where Pearce originated from, it seems that the courts apply the High Court's decision by mitigating the punishment to account for the overlap, rather than by striking out one of the offending charges.

A recent example is the Crown appeal in R v Elphick [2010] NSWCCA 112 where the NSW Court of Appeal considered the appropriate sentences for offences with common elements.

25 The Judge then articulated what he perceived as a problem in applying that authority to this case. He said:

“In the present case, the offender’s assault (unlawful violence) of the victim is an element of each offence under [the assault causing actual bodily harm provision] and [the affray provision]. Therein lies the difficulty presented to the court in this sentencing exercise. In the course of submissions the Crown had initially argued that the offence of assault occasioning actual bodily harm was merely a backup charge. If that was so, there would be no problem. The court could sentence in respect of the charge of affray and dismiss the assault occasioning actual bodily harm on the [related offences] certificate. However, s 165 of the Criminal Procedure Act makes it clear that the charge of assault occasioning actual bodily harm is not a backup offence but a related offence. That section provides that a related offence means an offence that arises from substantially the same circumstances as those from which the indictable offence has arisen. It does not possess all of the same elements of the indictable offence. Accordingly, it follows that I must pass sentence in respect of the assault occasioning actual bodily harm. If I do that and then pass to consider the penalty in respect of the charge of affray, I cannot punish the offence for the common element, that is the unlawful violence. In my view, it is that element that has resulted in my assessment of the offender’s conduct as being at the very upper end of objective seriousness, if not the worst case category (in respect of the charge of assault occasioning actual bodily harm).

If I was to do it in the reverse order, that is sentence for the elements of affray and then pass onto the assault occasioning actual bodily harm, I would be limited to having regard only to the injuries sustained by the victim, that is the actual bodily harm and ignoring the assault itself (i.e. unlawful violence) because that would have been taken into account in respect of the charge of affray. In my view, that approach would be a nonsense, and utilised simply as a device to get around the failure to elect.”

The Court of Appeal held this to be a misinterpretation of Pearce.

Allsop P, Grove and Hislop JJ [at 26]:

26 Those observations reveal a misapplication of the cited authority. The vice to be avoided is “punishing an offender twice” but this does not require ignoring elements which are common to overlapping offences.

27 In the present case it would have been apt to consider, independently, the facts and circumstances relevant to sentence for the indicted offence of affray and proceed to sentence accordingly. No inhibition on so doing is provided by the existence of the offence on the s 166 certificate.

28 The strictures in the extract from Pearce are focussed upon the avoidance of double punishment not on the structure of sentence imposition. The fact that the mechanics of dealing with the offence of assault occasioning actual bodily harm, in the absence of election, placed a limit on the term for that offence does not operate to inhibit an appropriate sentence being imposed for the offence of affray.

29 If the offence of affray is first dealt with, then when turning to deal with the offence of assault occasioning actual bodily harm, any necessary step in assessment of punishment for that crime to avoid that which would amount to double punishment can be taken.

30 In my view, the Judge’s perception that the statutory constraint which limited sentence for assault occasioning actual bodily harm to imprisonment for 2 years restrained him from imposing a greater sentence than that for the offence of affray was incorrect and it was a material error to apply that perception when pronouncing sentence.

31 In the light of that error, the grounds of appeal should be sustained.

A very different approach should be expected here. The difference could be s 26 of the Charter of Human Rights and Respoonsibilities Act 2006, but I doubt it. Where the Victorian Court of Appeal has quashed charges, it has invariably been at the invitation of prosecuting counsel. Whether they would adopt the same course in the absence of such concessions is unknown.