Tuesday, 31 August 2010

National scales and measurements

An unrepresented litigant suffers from all sorts of disadvantages in court proceedings. Not having a grasp of the relevant legal principles is just the start. From not knowing formal etiquette, to simply being nervous speaking publicly, there's a host of reasons why anyone would be better off getting a lawyer.

There are two common tactical mistakes that unrepresented litigants make:

  • choosing too many arguments to rely on; and
  • mounting a global attack on the justice system.

I have never heard of either of these approaches working in a litigant's favour, and I don't expect I ever will. They often feature where somebody with no experience of the legal system tries to defend their own minor traffic charge.

The problem with the first tactic is plain. A legal practitioner identifies many arguable issues and then concentrates their efforts on a few key areas. Identification of the most promising lines of attack requires experience, skill and judgment. Not knowing what might be important, an unrepresented litigant typically resorts to the 'shotgun' approach. This wastes the court's time and makes the hearing more confusing than it needs to be.

Edit: Thanks again to Stephen Warne for drawing my attention to the remarks of Gleeson CJ in Ali v The Queen (2005) 214 ALR 1 at [6],

It is not a mark of competent advocacy to pursue at trial every line of argument that can be imagined, regardless of its consistency with other arguments, and regardless of its prospects of success. On the contrary, such an approach is the hallmark of incompetence.

The second approach is equally doomed. For obvious reasons, a judge or magistrate is unlikely to rule that every decision they have ever made or ever will make is legally invalid. It just seems improbable that anyone would decide that their career of choice is totally meaningless. Despite this, unrepresented litigants often persist with sweeping constitutional challenges that seek to dislodge the pillars of the Australian legal system.

A recent example of both flaws in action is found in Moran v Police [2010] SASC 269. The appellant was a truck driver who challenged a speeding fine given to him by a police patrolman. He was found guilty in the Magistrates' Court but took the matter to an appeal.

In the Supreme Court the appellant relied on a number of reasons why the magistrate's decision should be overturned. He claimed he'd not been given the chance of calling his mechanic. He said the lower court should not have allowed the charge to be amended. He tendered a certificate showing his vehicle's speed governor had been operating correctly two years after the alleged offence. None of these arguments assisted him.

The appellant was unable to resist the temptation to challenge the magistrate's jurisdiction.

Kelly J [at 12],

The appellant's first contention was that the court comprised of a single magistrate had no jurisdiction to hear the matter. This complaint is without substance. A breach of the Australian Road Rules is a summary offence and therefore hearing by a magistrate was appropriate. The Australian Road Rules are adopted into South Australian law as a regulation under the Road Traffic Act 1961 (SA). The offence created by r 21(2) of the Australian Road Rules is a summary offence by virtue of s 5(2)(a) of the Summary Procedure Act 1921 (SA). The appropriate court to hear the complaint was therefore the Magistrates Court of South Australia.

The appellant also raised a familiar argument of purported Commonwealth/State inconsistency. Kelly J [at 15],

The appellant's next complaint was that the speed device and the method of testing it by the police did not comply with s 10 of the National Measurement Act 1960 (Cth). Section 10 of that Act operates only when it is necessary to ascertain whether or not a measurement of a physical quantity has been made in the terms of Australian legal units of measurement. It does not in its terms set out a method of determining whether an Australian legal unit has been measured correctly in a particular instance. Nor does it displace the common law presumption of the accuracy of scientific instruments where the scientific instrument is notoriously accurate; see Jenkins v WMC Resources Ltd (1999) 21 WAR 393. Speedometers fall within the category of scientific instruments to which the presumption of accuracy applies; see Gray J in Pinkerton v Police [2006] SASC 341, Redman v Khun (1979) 20 SASR 343 at 344 - 345.

The appeal was dismissed.

Vanstone J made similar findings about the scales and measurements argument in Van Reesma v Police [2010] SASC 201 [at 20 and 21]. The operation of the presumption of the accuracy of scientific instruments was discussed in Such v Police [2010] SASC 274, summarising the principles and drawing assistance from Police v Henwood [2005] SASC 209 and Police v Bulgin [2010] SASC 143.

In Williamson v Hodgson [2010] WASC 95 the appellant challenged his finding of guilt for speeding (89 km/h in an 80 km/h zone). He cited perceived bias, actual bias, contravention of the United Nations Covenant on Civil and Political Rights, his alleged seccession from the Commonwealth of Australia, the invalidity of the Magistrates Court, the invalidity of the prosecuting entity, and his refusal to be allowed a jury trial. He was unsuccessful on the appeal.

By contrast, the accused in Police v Hicks [2010] SASC 136 succeeded at first instance and again on the Crown appeal with a much more direct defence. It probably doesn't do justice to the accused's case to say that he simply denied the offence, but that was exactly what he did and the court was left in doubt about the charge, and dismissed it.

Thursday, 26 August 2010

Dead men do tell tales

Section 65 of the Evidence Act 2008 provides an exception to the hearsay rule where the maker of a representation is unavailable. We've discussed the scope of that word here before. This post concentrates on the previous court proceedings exception:

65. Exception - criminal proceedings if maker not available

(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2) ...

(3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied-

a) examined the person who made the representation about it; or

(b) had a reasonable opportunity to cross-examine the person who made the representation about it.


Section 67 imposes notice requirements relating to this subsection.

(4) If there is more than one defendant in the criminal proceeding, evidence of a previous representation that-

(a) is given in an Australian or overseas proceeding; and

(b) is admitted into evidence in the criminal proceeding because of subsection (3)-

cannot be used against a defendant who did not cross-examine, and did not have a reasonable opportunity to cross-examine, the person about the representation.

(5) For the purposes of subsections (3) and (4), a defendant is taken to have had a reasonable opportunity to cross-examine a person if the defendant was not present at a time when the cross-examination of a person might have been conducted but-

(a) could reasonably have been present at that time; and

(b) if present could have cross-examined the person.

(6) Evidence of the making of a representation to which subsection (3) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by-

(a) the person to whom, or the court or other body to which, the representation was made; or

(b) if applicable, the registrar or other proper officer of the court or other body to which the representation was made; or

(c) the person or body responsible for producing the transcript or recording.

(7) ...

(8) ...

(9) ...

In DPP v B B; DPP v Q N [2010] VSCA 211 the witness was indisputably unavailable - he was deceased. The trial judge ruled the dead man's statement complied with s 65(3) but then rejected it in the exercise of discretion under s 137.

The trial judge gave these reasons [recounted in the appeal, at 10]:

... the combination of effective inability to fully explore cross-examination because of pressure from the magistrate and lack of clarity as to the actual responses to cross-examination because of the difficulty raised by the interpreter, together with the inability of the jury to see the witness in my view, is properly to be characterised as unfair prejudice.

The Court of Appeal held these grounds were insufficient to enliven the discretion in the circumstances, either alone or in combination.

Bongiorno JA [at 16, Harper and Hansen JJA also agreeing]:

16 In enacting s 65(3) in the form it is, the legislature placed alternative primary conditions on its application. Those conditions require that the accused has either cross-examined the relevant witness in an earlier proceeding about the ‘previous representation’ of which hearsay evidence is sought to be adduced or he had a reasonable opportunity of doing so. The legislature clearly anticipated a situation where hearsay would be rendered admissible by s 65(3) even where there was, in fact, no cross-examination at a previous proceeding of the relevant witness ...

17 Section 65(3) is not the first Victorian statutory provision which permitted prior depositions to be tendered as evidence at trial. Section 55AB of the Evidence Act 1958, which has since been repealed, provided for the use of depositions taken at committal in a subsequent trial where a witness was unavailable. The conditions for use of such a deposition against an accused under that provision were that the accused must have been present when the deposition was taken and he (or his lawyer) must have had a full opportunity of cross-examining the witness. This section, in substance, if not in form, can be traced back, at least, to the Justices Act 1890 in this State and appears to have had its origin in the Indictable Offences Act 1848 (UK) (Jervis’s Act), the first English provision which introduced the statutory exception to the hearsay rule rendering a deposition admissible at trial if a witness was unavailable for certain specific reasons set out in the statute. It could be argued that the substitution of the word ‘reasonable’ in the current Evidence Act for the word ‘full’ in earlier legislation compels a conclusion that the legislature intended the qualifying condition for admissibility to be now less onerous than it was before.

The Court apparently concluded that the exercise of the discretion under s 137 would thwart the will of Parliament in introducing s 65. If that argument had general application to the Evidence Act it would make the discretions in it next to useless. Perhaps in a situation as specific as this one there is more justification for this kind of reasoning.

Wednesday, 25 August 2010


Infringement enforcement in Victoria is hopelessly complex and almost impossible to navigate. There's no question that the complexity of the system drives many people to pay their tickets rather than challenge them. Unfortunately, that's not an option for everyone.

I've mentioned before that the VLA's Workers' Guide to Fines is a useful reference when trying to get to grips with the system. The information in the online Fitzroy Legal Service Handbook is also handy.

I want to add this chapter from PILCH's Homelessness Law & Advocacy Resource Manual to that list. Don't be put off by the title. Although specific information is provided that is relevant to the homeless, most of the information contained in the Manual can apply to anyone.

The Manual only claims to be current up to July 2008, but the important thing is that it takes into account the major changes brought in by the Infringements Act 2006.

Oh, and a little bit more about the PILCH, in case you're not familiar with their work:

The Public Interest Law Clearing House (VIC) Inc. (PILCH) is an independent, not-for-profit organisation which is committed to furthering the public interest, improving access to justice and protecting human rights. PILCH does this by facilitating pro bono legal services to Victorian individuals and organisations in need, and by undertaking law reform, policy work and legal education.

Their site design is a little counter-intuitive, but well worth a look.

Monday, 23 August 2010

Disclosing indecent images

Section 70 of the Crimes Act creates an offence for possession of child pornography.

Under sub-s (4) law enforcement officials and people authorised by the Chief Commissioner of Police don't commit an offence by possessing child pornography if they possess it to perform a lawful power or duty.

What about an accused person's lawyers? Section 70(2)(b) provides a defence for possessing child pornography ‘for a genuine legal purpose’, which probably covers receiving a copy of material under the disclosure provisions in the Criminal Procedure Act 2009.

In R v LR [2010] EWCA Crim 924 the UK Court of Appeal had to settle a bunfight between the Crown Prosecuting Service and lawyers for an accused about disclosing copies of child pornography.

The trial judge ordered disclosure to the lawyers, considering it wasn't appropriate for a police officer to remain within hearing of the accused so as to supervise the images he was charged with possessing.

The CPS objected, and said it would commit an offence by creating fresh copies. Ultimately, the trial judge stayed the prosecution, holding that the CPS's refusal to hand over copies of the exhibits amounted to an abuse of process.

The CPS appealed. And lost. Unsurprisingly, the Court of Appeal held that when circumstances require the accused to review the subject matter of the charges against him or her, they must have an opportunity to do so in the proper confines of the lawyer-client relationship.
[18] As some fundamental aspects of the administration of criminal justice are engaged, we propose to make some general further observations.

[19] The principle that the defendant is entitled to private and confidential discussions with his legal advisers, unsupervised and unobserved by police officers or representatives of the CPS, is too elementary to require citation of authority. In the context of the issue which arises in this case, at such a conference the defendant and his lawyers need access to the material relied on by the Crown. Without such access, first, the defendant's lawyers cannot give him and he cannot receive clear and unequivocal advice about his position, and second, proper preparations for the forthcoming trial in which the very material in question provides the entire basis for the prosecution case cannot be made.

[20] Arrangements to provide defence lawyers with the relevant material for the sole purpose of discharging their professional responsibilities to their client, and the acceptance by them of access to such material for this purpose, cannot, in any circumstances, be regarded as criminal. This elementary principle is acknowledged within the relevant legislation. Both the Protection of Children Act 1978 and the Criminal Justice Act 1988 provide defences for solicitors and counsel who for these purposes are in possession of what would otherwise be prohibited material. So. too, does the Sexual Offences (Protected Material) Act enacted in 1997, but not yet in force. The same defences would be available for the jury at any trial. So far as the legal advisers are concerned, it is normal to invite undertakings in relation to the retention and control of such material, which are readily given, and, as far as we know, have never yet been broken.

[21] Lawyers and jurors alike must be trusted to act in good faith, unless and until there is some reason to suggest that they are deficient in any respect. They are provided with the material for a very limited and strictly defined purpose. Possession and use outside these limited purposes is unlawful, and would put them in peril of prosecution. Thus, at the risk of stating the obvious, no further hard copies or digital copies beyond those necessarily required for the purpose of the conference (or indeed a trial) should be made. All the material must be returned to the custody of the Crown Prosecution Service when the relevant trial has concluded.


[23] We do not intend to be prescriptive. The processes should ensure that when issues like the present arise, or where, for example, in the event of a guilty plea, there is a dispute about the nature and gravity of the material, it should be made available for examination in circumstances of confidentiality between the defendant and his lawyers, and at the same time, for all those properly involved to understand that although this limited possession is protected, if the Crown's case that the material is indecent for the purposes of the protected legislation were correct, any circulation or continued possession beyond the strictly limited purposes for which it is made available would be criminal.

Sunday, 22 August 2010

Honour crimes

Honour crimes are (at least in this post) offences that are motivated, in whole or in part, by the offender's recognised community values.

Crimes perpetrated by migrants tend to gain the most media attention, but there's many types of honour crime. Other examples include initiation and punishment rites of bikie gangs, traditional indigenous practices like ritual spearing, and even entrenched police corruption like that responsible for the conviction of the Birmingham Six.

These crimes throw a spanner into the works of the justice system, particularly sentencing. Honour crimes draw attention to the legal fiction that courts work under that the community is one homogenous group. It's really more of a sea of people with a diversity of opinions and perspectives.

If criminal offending is prompted by attitudes that are not held by the majority of people, but held by a significant number and are passed on to successive generations from parent to child, what then? Such views pose a difficult sentencing problem. Is the subjective view of the offender mitigating in that it may be the product of an established system of cultural values, or is it aggravating because the offender claims jusitification for their actions?

The argument can be taken in either direction.

Federal Law

Commonwealth law tries to shortcut the entire argument and prevent customary law or cultural practice being used as a defence, in mitigation or as aggravation.

The Commonwealth Crimes Act 1914 provides at s 16A,

16A Matters to which court to have regard when passing sentence etc.

(1) ...

(2) ...

(2A) However, the court must not take into account under subsection (1) or (2) any form of customary law or cultural practice as a reason for:

(a) excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates; or

(b) aggravating the seriousness of the criminal behaviour to which the offence relates.

(2B) In subsection (2A):

"criminal behaviour" includes:

(a) any conduct, omission to act, circumstance or result that is, or forms part of, a physical element of the offence in question; and

(b) any fault element relating to such a physical element.

State Law

There's no similar provision in Victoria or NSW. (If anything, s 19 of the Charter cuts in the opposite direction). Customary laws or cultural practices don't offer a defence at law, but may be taken into account on sentence.

In Hussain v R & Ali v R [2010] NSWCCA 184 the NSW Criminal Court of Appeal considered an appeal on sentence for offences of assault, aggravated burglary and abduction. The appellants were brothers-in-law. Their victim was the wife of one of the men and the sister of the other. She had gone to live with another man after the breakdown of her marriage. The appellants went to her new address, broke in and abducted her. She escaped while being taken away in a car.

After the escape the husband signalled an intention to flee to New Zealand, but both appellants later surrendered themselves.

James J [at 21 and 22]:

[The husband] presented himself to a police station, where he was arrested. He was informed that he was being arrested for the abduction of [his wife] and was cautioned. He then said, “But she is my wife”.

[The brother] also presented himself at a police station, where he was arrested and cautioned. He then said, “Listen she is my sister and she has been cheating on her husband. This is shameful to my family. She should be at home with her kids and husband”

The sentencing judge took the preliminary view that the offences were mitigated by the "shaming" conduct of the victim.

James J [at 47 and 48]:

In the sentence hearing the prosecutor submitted that the two more serious offences committed by [the husband] fell towards the mid range for offences of their kind. The sentencing judge then referred to [the wife's] infidelity with her cousin and described it as a “powerfully mitigating factor”, - His Honour added “I think it makes a difference between something that would otherwise have fallen in the mid range, an offence that would, as a result of the mitigation, be very much probably mid way between the middle range and the low end middle range”.

What his Honour said, like many impromptu remarks made in the course of an exchange during a hearing between the bench and legal representatives, is not precisely expressed but indicates, in my opinion, that, contrary to the submission which had been made by the prosecutor and contrary to the present ground of appeal, his Honour was then observing that, because of the powerfully mitigating factor of [the wife's] infidelity, the objective seriousness of the more serious offences committed by [the husband] was below the middle of the range.

The ground of appeal was rejected. Davies J agreed with the outcome but added strongly worded comments of his own about the assertion that the infidelity of the victim lessened the objective seriousness of the crimes against her [ at 80 - 82]:

It was submitted on behalf of both [husband] and [brother] that, all other things being equal, when an offender is a close relative of the victim that association in most cases and in the present case makes the act of criminality of a lesser nature. I do not agree with that submission. It overlooks the fact that a victim who is a relative, and particularly a wife, may be in a more, rather than a less, vulnerable position with regard to the wrongful acts of the offender. It contains the inference that it is less serious to commit a crime, whether a crime involving property or a crime of violence against a relative compared with a stranger.

In the present case it wrongly provides support for the attitude [the husband] expressed to the Police at the time of his arrest for the abduction of his wife that he was entitled to do it “because she is my wife”, and the attitude of [the brother] when he was arrested that “she is my sister and she has been cheating on her husband. This is shameful to my family.”

Those views and attitudes have no place in Australian society. A submission that offences committed against relatives are of a lesser criminality should be firmly rejected.

That view can be contrasted with the Victorian position in DPP v Pham & Ors [2010] VSCA] 181 where three men were sentenced for aggravated burglary in a situation that was different but perhaps no less morally dubious.

Buchanan JA [at 1]:

[The first appellant] is the brother of [another appellant] and the brother-in-law of [the third appeallant]. [The first appellant's] wife told him that his sister, whom the respondent later told police was ‘a bit slow’ had been sexually assaulted by [the victim]. [The first appellant] told the other respondents and at about nine o’clock at night all three went to the house in which the victim resided. [The victim] was in the house with his eight year old daughter. They were in the sitting room. [The victim] was watching television and his daughter was doing her homework when the power went out.

After cutting power to the home, the appellants forced entry and beat the victim, breaking his eye socket. They took hold of his penis and told him they intended to cut it off. The beating occurred in the presence of the victim's daughter, who was prevented from calling the police.

Each appellant was given a 32-month suspended sentence, a penalty the Director of Public Prosecutions appealed and the Court of Appeal held to be appropriate.

Buchanan JA [Beach and Ashley JJA in agreement]:

Although the sentencing judge and counsel for the appellant characterised the respondents’ conduct as that of vigilantes, that description must be placed in context. I accept that the victim was innocent, but the respondents held another view. The relationship between [the first appellant] and his sister imposed a cultural obligation upon the respondent to take the matter up with the victim for the purpose of ensuring his sister’s future protection. His co-offenders were bound to him by ties of blood and marriage.

Both sets of appellants were awarded sentences of several years duration. The appellants in Victoria had their sentences entirely suspended; the appellants in NSW not suspended at all. All the men had clean criminal histories, stable employment, good references and expressed contrition by the time they appeared at court.

I think the Victorian case attracted far more lenient actual sentences (both in the original sentencing hearing and upheld on the appeal) because the behaviour of the appellants, while equally unlawful, expresses a cultural response shared by a larger proportion of the community. Whether that is fair or not, I don't know.

Friday, 20 August 2010

DPP v Farmer: reasonably believe you're gonna drive?

Last week the Supreme Court decided DPP v Farmer [2010] VSC 343.

The police saw Mr Farmer sitting in a car parked in a bicycle lane. The headlights were on. Just after the police saw the car, the headlights went off. The police stopped behind the car and walked up to it. Mr Farmer was talking on a mobile phone. He was wearing his seatbelt; the keys were in the ignition; the engine was running.

The police asked him to take a preliminary breath test. Mr Farmer refused.

He was charged with that offence, contrary to Road Safety Act s 49(1)(c).

The magistrate dismissed the charge, saying:
I am not satisfied beyond reasonable doubt that the informant’s belief was, in fact, held on reasonable grounds in this case and on that basis the charge is dismissed.

The police can do a preliminary breath test on a driver they find driving or in charge of a motor vehicle.

Section 3AA of the Road Safety Act provides for a person in-charge of a motor vehicle.
3AA. Circumstances in which person is to be taken to be in charge of a motor vehicle

(1) Without limiting the circumstances in which a person is in charge of a motor vehicle, the following persons are to be taken to be in charge of a motor vehicle for the purposes of this Act—
(a) a person who is attempting to start or drive the motor vehicle;

(b) a person with respect to whom there are reasonable grounds for the belief that he or she intends to start or drive the motor vehicle;

(c) a commercial driving instructor while the person whom he or she is teaching to drive is driving or in charge of the vehicle;

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

The police alleged they reasonably believed he was in-charge of the motor vehicle, so they were entitled to require a PBT.

The Supreme Court covered the main cases dealing with reasonable belief compared to suspicion, at [13] – [19]. The Court also emphasised at [12] and [31] – [32] that the Magistrate's role was to consider if the police informant's belief was reasonable, rather than if he (the Magistrate) would hold the same belief.

The prosecution appeal succeeded, because the Magistrate applied the wrong test — holding that belief was a state of mind approaching certainty — and considered he had to reasonably believe the accused intended to drive.

This case referred to a previous decision of DPP v Mitchell (2002) 37 MVR 142, on reasonable belief of police officers for drink-driving allegations, but curiously not to the Court of Appeal judgment affirming that decision in DPP v Mitchell (2004) 40 MVR 358.

There are a few older cases on in-charge, before s 3AA was introduced. Woods v Gamble (1991) 13 MVR 153 held that the intent to drive must be immediate (or just about). Davies v Waldron [1989] VR 449 said that starting a car could be enough to be in-charge. Neither case was mentioned in DPP v Farmer, but nothing in this case is inconsistent with them, so it seems they're still good law.

Tuesday, 17 August 2010

Inconsistent results

The most recent quiz from the Judicial College is about unfavourable witnesses and the admissibility of prior inconsistent statements. It came out a couple of months ago, but the JCV has moved a few things around on its website so I looked over it again.

The authors of the quiz give as broad a definition to the word inconsistent at s 38(1)(c) as NSW courts have given to the term unfavourable at s 38(1)(a). (The Act's Dictionary describes prior inconsistent statements, pretty unhelpfully, as a previous representation that is inconsistent with evidence given by the witness.)

I'd thought a witness who claims not to remember something would not be giving evidence inconsistent with a previous representation they have made. There's nothing inconsistent about a failure to recall, in the sense that it contradicts or casts doubt on the previous representation. But apparently that's not required. Stephen Odgers refers to Klewer v Walton [2003] NSWCA 308 as identifying both types of inconsistency potentially engaging s 38(1)(c).

Where the Evidence Act 2008 refers to a witness giving inconsistent evidence, it appears that the evidence given need only be different or not as the party who called them expected to be considered inconsistent.

Sunday, 15 August 2010

... But don't sign (just) anything!

It's not for nothing that people say, when they push a piece of paper and a pen in your direction, 'sign your life away'.

Korgbara v The Queen [2010] NSWCCA 176 was an appeal on sentence. The appellant claimed, and the Court of Appeal accepted, that he had signed the 'Statement of Facts' tendered to the sentencing court without reading it first.

McCallum J [at 23 and 24]:

23 The statement of facts runs to some 10 pages of closely typed print. It contains a combination of direct accounts of the evidence against Mr Korgbara (mostly recorded conversations) and conclusions contended for by the Crown as to the inferences to be drawn from that material. Its contents plainly called for express instructions from Mr Korgbara. For example, the statement said:
“It is alleged that during this conversation although the accused was suggesting that he would not be involved in the supply of drugs that he was in reality negotiating a drug deal with the undercover officer. It is also alleged that during this conversation it was the intention of the accused to use another man referred to as Mark (Raymond Emefo) to deliver prohibited drug to Hamish so that the accused was distanced from the transaction.”

24 Those were critical contentions in determining the measure of Mr Korgbara’s responsibility for the offence, but it would seem that he was not given an opportunity to consider them before the statement of facts became an agreed exhibit.

The appellant was not a native English speaker. Quite how he came to sign a document he didn't agree with isn't clear, but on the appeal a statutory declaration from him was tendered. On the appellant's version [reproduced at 19 of the judgment] and partially supported by his solicitor's affidavit,

She said just sign it, I will explain to you later.

He did. He later wished he hadn't.

The Court of Appeal upheld the appeal and returned the matter to the District Court for resentencing.

Friday, 13 August 2010

Sign up!

Though perhaps not quite as dramatic as signing up for the US Army, it's important that witnesses sign their statements — especially in summary proceedings under Chapter 3 of the Criminal Procedure Act 2009. (Charges that are tried before a jury are subject to committal proceedings with evidence tested on oath, or else statements are admitted under s 139 if they are attested as true and comply with s 112.)

Section 47 of the Act provides:

47. Rules with respect to statements

(1) Subject to subsection (5), a statement referred to in section 41 which the informant intends to tender at the hearing of the charge if the accused does not appear must be—

(a) in the form of an affidavit; or

(b) signed by the person making the statement and contain an acknowledgment signed in the presence of a person referred to in Schedule 3 that the statement is true and correct and is made in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury; or

(c) in a form, and attested to in a manner, prescribed by the rules of court.

There are further details for statements by children and illiterate folks; sub-section (5) is now repealed.

(The attestation speaks for itself, and doesn't require oral evidence per Evidence Act 2008 s 149.)

One reason for this requirement is if an accused person doesn't attend court, the prosecution can tender the properly-attested statement rather than call oral evidence to prove the charge — see ss 80 and 83.

The attestation also protects witnesses against allegations of recent invention, but conversely prevents them from later 'improving' their evidence (in a pejorative sense) or recanting it.

It's also a wee bit important if the case delves into the area of unfavourable witnesses.

On a black-and-white reading of the introductory words of s 47(1), you might think the rules apply only if the informant intends to tender a statement if the accused doesn't front court.

The Criminal Procedure Act legislative guide focuses on the admissibility of a statement in the absence of the accused. But, it goes on to mention a crucial consideration when it refers to the specific offence in s 414, of acknowledging a false statement:

However, it remains crucial for both the prosecution and the accused that statements are accurate and that those who knowingly provide false information in a statement should be guilty of the offence. Therefore, the Act creates a separate offence of acknowledging a false statement (set out in section 414). This provision broadens the ambit of the offence in order to ensure that the offence applies to all situations where a witness knowingly provides false
information (see discussion of section 414).

Self-evidently, we want honest witnesses giving evidence and providing honest statements outlining what that evidence will be.

The explanatory memorandum simply says, "Clause 47 sets out how a statement contained in a full brief must be acknowledged."

It seems the rules are intended to apply more broadly that just when the informant intends to tender the statement. (Logically, that intention can't arise until the accused doesn't turn up at court — which is always long after the statement is made anyway.)

Section 41(1)(d)(iv) makes this clearer, providing that a full brief must contain:

(iv) a list of the persons the prosecution intends to call as witnesses at the hearing, together with a copy of each of the statements made by those persons
See section 47 for requirements for statements.

I'm not sure if the new preliminary brief procedure is confusing police investigators, but there seem to be many more briefs of evidence now with unsigned 'statements' than I remember seeing in the past. What's your experience?

Wednesday, 11 August 2010

Tardy accused is still entitled to bail

GP v The Queen [2010] VSCA 142 saw the Court of Appeal dealing with another Criminal Procedure Act interlocutory appeal.

The accused was committed for trial on 21 counts of obtaining and attempting to obtain property by deception. From 21 July 2009 until 31 May 2010, and despite several directions hearings and adjournments, he didn't retain any lawyers, though it seems he told the court he could get money to fund his defence. In common parlance, a case of 'gunna'...

On 19 April, the judge told the accused if he didn't get his act together she'd consider an application by the Crown to revoke bail.

On 23 April, not much had changed. The prosecutor applied to revoke GP's bail, and the judge granted that application.

GP applied for the judge to recuse herself. She declined; hence the appeal. GP v The Queen tells us now, at [47], that decision is an interlocutory one that may be subject to the process under s 295 of the Criminal Procedure Act 2009.

The Court of Appeal also considered the bail revocation. At [59], Ashley JA said:

[59] I next consider — and indeed it was correctly conceded by senior counsel for the Crown — that there was no basis for the judge revoking the applicant's bail. The reasons which her Honour gave were quite outside legislative warrant, and gave what her Honour did the appearance of punishing the applicant for transgressing directions which in some respects were themselves beyond power. The circumstance that, as it appears, another County Court judge had earlier threatened the applicant with such a course did not transform what was otherwise beyond power into a lawful act. The judge's statement of what needed to be done before a fresh grant of bail would be considered was misconceived. It built upon the illegality of what was being done by the judge's order.

Bongiorno JA endorsed that observation, and added comments on the role of the prosecutor.

[64] I agree with Ashley JA and add only the following comments concerning the position taken by the Crown in this matter before the primary judge. The function of a Crown prosecutor is to act as Minister of Justice. It is not the function of a Crown prosecutor merely to act as might some counsel in an ordinary inter partes proceeding, taking every point regardless of its merit. It is the function of a Crown prosecutor, by appropriate argument to assist a Court not to fall into appealable error. In this case the prosecutor fell short in the discharge of these duties.

[65] On 23 April she seized upon the judge's earlier suggestion that bail might be revoked without any apparent consideration of whether there were any grounds for such revocation. There were of course no such grounds.

[66] The application for revocation was made using the arguments suggested by the judge and included reference to conduct of the accused's brother-in-law in giving evidence before the Court. These arguments were insufficient in any sense to justify an application for revocation of bail. Further, when the judge said she would not consider bail for the applicant until he had complied with her wishes as to the preparation for trial, the prosecutor remained mute, complicit in a situation where a citizen had been unlawfully deprived of his liberty by having his bail revoked and would continue to be deprived of his liberty until the judge's wishes were met.

[67] The prosecutor should have politely but firmly pointed out to her Honour the illegality of the course she was following and urged her to reconsider the matter. That was the prosecutor's duty. The criminal justice system depends upon prosecutors discharging their obligations to the Court fearlessly. Had the prosecutor done so in this case it may have been unnecessary for this Court to intervene in the applicant's trial as it has had to do.

Two things come out of this loud and clear.

The first is about the proper function of bail. Dr Manhattan mentioned last week the proposed tinkering with the Bail Act. (It falls a long way short of the VLRC recommendations to overhaul bail legislation in Victoria, but I suspect there's more to come and this is just a stop-gap.) If there were any doubt, it's now unarguable that case-management isn't a relevant consideration in bail decision-making.

The second is, once again, the Courts' expectation of advocates — and prosecutors in particular — to hold firm, no matter the view from the Bench, in helping a Court avoid appealable error.

Sunday, 8 August 2010

Legislation Watch: Firearms and Other Amendments Act 2010

Edit: The Act received Assent on 7/9/10. If not proclaimed earlier it will come into effect on 1/7/11.

As the law currently stands if it looks like a gun, it is a gun. This will change when the Firearms and Other Amendments Act 2010 comes in.

The bill is here. The Explanatory Memorandum can be found here and the Statement of Compatibility is here. In the Second Reading speech Justin Madden said,

The change in the regulation of imitations firearms results from a national agreement between all of the states and the commonwealth. Ultimately, all jurisdictions will regulate imitation firearms, based on the definition that this bill inserts into the Control of Weapons Act 1990.

The Control of Weapons Act will be amended to include the following definition of imitation firearm:

Imitation firearm is defined as a device, the appearance of which could reasonably be mistaken for that of an operable firearm, but which is not designed or adapted to discharge shot or a bullet or other missile by the expansion of gases produced in the device by the ignition of strongly combustible materials or by compressed air or other gases, whether stored in the device in pressurised containers or produced in the device by mechanical means and is not capable of being made to do so.

The new definition of firearm will be the same in the Control of Weapons Act and Firearms Act, and will read:

firearm means any device, whether or not assembled or in parts and whether or not operable or complete or temporarily or permanently inoperable or incomplete-

(a) which is designed or adapted to discharge shot or a bullet or othermissile by the expansion of gases produced in the device by the ignition of strongly combustible materials or by compressed air or other gases, whether stored in the device in pressurised containers or produced in the device by mechanical means; and

(b) whether or not operable or complete or temporarily or permanently inoperable or incomplete.

The phrase which has the appearance of such a device will be removed.

An imitation firearm will become a prohibited weapon at s 5 of the Control of Weapons Act. The maximum penalty for possession or dealing with a prohibited weapon is 480 penalty units or 4 years imprisonment.

Once passed the amendments will come into effect on 1 July 2011, unless enacted earlier.

Friday, 6 August 2010

Going postal

The NSW Supreme Court discussed the operation of s 160 of the Evidence Act 1995 (NSW) in Gabriel Hotels Pty Ltd v Corlita Pty Ltd [2010] NSWSC 826.

That section is the same as our own s 160, and reads,

160. Postal articles

(1) It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted.

(2) This section does not apply if-

(a) the proceeding relates to a contract; and

(b) all the parties to the proceeding are parties to the contract; and

(c) subsection (1) is inconsistent with a term of the contract.

(3) In this section, working day means a day that is not-

(a) a Saturday or a Sunday; or

(b) a public holiday or a bank holiday in the place to which the postal article was addressed.

We discussed this section here last year. I said then that I thought that this presumption would be a very weak one, and Gabriel Hotels tends to shows this prediction to be correct.

A brochure from Australia Post setting out standard delivery timeframes was found to be sufficient to rebut the presumption in this case.

Monday, 2 August 2010

Smith v The Queen [2010] VSCA 192; the impact of forgiveness on sentence

Smith v The Queen [2010] VSCA 192 reaffirmed that a victim's forgiveness can be a relevant consideration in sentencing, but should be treated cautiously.

Evidence of forgiveness by the victim may indicate that the consequences of the offence on the victim have not been long-term or debilitating, thereby affording some mitigation: R v Skura [2004] VSCA 53. AJA Smith said in Skura [at 48] that '[w]here the offence occurs in a domestic situation, the attitude of the victim may be relevant to the question of rehabilitation'.

I mentioned in a post a couple of days ago that the case of DPP v Walden [2003] VSCA 139 left undecided whether material in a VIS - specifically evidence of the forgiveness of the victim - could be used in mitigation.

In Smith the accused faced charges of recklessly causing injury to his partner, and attempting to pervert the course of justice by endeavouring to persuade her to withdraw the complaint. The accused pled guilty, but on the appeal argued that the submissions by his counsel about his reconciliation with the victim were not given appropriate weight on the plea.

The Court found that wasn't true in this case and dismissed the appeal. Beach AJA [at 8]:

8 In my view, the sentencing judge was not bound to give any weight to the unsupported assertions that were made below concerning Ms Rodriguez’s attitude to the prosecution. As was said by Neave JA in R v Hester, even in cases where there is evidence of forgiveness of the victim of domestic violence, this evidence should be treated with extreme caution.

In cases of domestic violence the victim may be particularly susceptible to the offender's influence. Eames JA said in R v Wise [2004] VSCA 88 [at 36]:

36 The support offered to the appellant by his victim is also a significant factor when assessing his prospects of rehabilitation. It is, of course, an unfortunate fact that victims of violent, drunken partners, to their own cost, often seek to forgive their partner and to resume a dangerous relationship. The courts must offer protection even when the potential victims deny its need, but the forgiveness of an offender by a victim of crime and the positive effect that has on prospects of rehabilitation is not an irrelevant factor in sentencing. In this case the victim appears to have been a vulnerable person in many ways, not least because of her youth, and it is understandable that His Honour apparently saw the protection of the community, including [the complainant], as being a more important consideration on sentencing than her desire to resume cohabitation with the appellant.

Bongiorno J went further in R v Melten [2001] VSC 184 [at 21]:

Whilst it is important that reliable information as to the effects of a crime upon a victim should be placed before a sentencing court, it must be borne in mind that the sentencing process is one in which the Judge must balance the interests of the State against those of the offender. Whilst it is entirely appropriate, and indeed required, that the Court take into account the effects of a crime upon a victim it must be vigilant to ensure that the views of a victim as to what might or might not be an appropriate sentence in a particular case do not intrude upon the sentencing process. Were they to do so the process would be distorted so that the perpetrators of crime would be dealt with, in part at least, according to whether the victim was prepared to extend or withhold mercy as the case may be. A moment's reflection demonstrates that the victim of a crime is the worst possible judge of what is fair and just treatment of an offender. This is so whether the victim's inclination is to forgive or to urge the Court to exact vengeance.

Sunday, 1 August 2010

Legislation Watch: the Bail Amendment Bill 2010

The new Bail Bill has arrived.

It's not a whole new Act, but a revamp of the existing one. Once passed, it will commence on 1 January 2011 unless proclaimed earlier. The Bail Amendment Bill 2010 is partially based on the recommendations of the VLRC's Final Report released in 2007. That report had 157 recommendation for change. This amending legislation addresses 40 of them. The remaining recommendations are still being considered.

The Explanatory Memorandum can be read here. The Second Reading Speech is here, and the Statement of Compatibility here.

So what's going to change with the Bail Act 1977 and what will stay the same for now?

'Show Cause' and 'Unacceptable Risk'?

The two primary tests that can lead to a refusal of bail in the summary jurisdiction remain as they are for now. Watch this space - a discussion of the proposed changes is in the works and will be posted soon.

Bail conditions

The distinction between general and special conditions is to be abolished. The amendments expressly provide that bail conditions may only be imposed when necessary, and only to reduce the likelihood that the accused will:

fail to attend court

commit an offence while on bail

endanger the safety or welfare of members of the public

interfere with witnesses or otherwise obstruct the course of justice.

If requiring a deposit the court must have regard to the accused's ability to pay.


The court, when considering a surety, must also consider the ability of the surety to pay. The amendments create a new procedure for objection to a surety. Where an objection is raised the suitability of the surety is to be determined by a magistrate or judge. The provision is deliberately silent on who may raise the objection in order to allow objections to be raised by anyone involved in the proceeding — including the registrar, the police informant or prosecutor or the court.

The power of arrest for sureties is to be abolished, in recognition of the fact that this power is never used and this function would be better performed by the police.

Further bail applications, revocation applications and variation applications

A subsequent application from the refusal of bail by a bail justice has been made easier under the amendments. There are no other substantive changes to the operation of s 18.

Charter of Human Rights

The amendments insert reference to the Charter of Human Rights and Responsibilities Act 2006 and specific references to 7(2), 12, 21, 23 and 25.

Bail justices

The bill establishes five year fixed terms for bail justices, with the ability for re-appointment. The Secretary of the Department of Justice is granted new powers to train, supervise and monitor bail justices in the performance of their duties.

Debate will continue on 12 August.