Wednesday, 29 September 2010

VLA fee structure review

Victoria Legal Aid has recently conducted a review into its system of payments to private practitioners in criminal matters. Their 107 page report can be found here. Widespread changes are expected.

The biggest impact to practice in the Magistrates' Court is movement to a whole of job fee structure, replacing grants on an appearance basis. Cases which are classified as taking approximately 6.5 hours of work (called non-complex matters) will attract a flat fee of $754. Complex cases (cases expected to require 13 hours of work) will attract a fee of $1508 (and an additional $116 if the matter proceeds to contest). VLA expect 25% of cases to be categorised as complex cases.

A single fee will relate to the conduct of a whole summary crime case regardless of when and how it resolves. There is no additional fee for any other particular type of hearing.

An implementation date for the new fee structure of 1 January 2011 has been set. There are likely to be further discussions before the final model is implemented. The Law Institute isn't happy about the proposed changes, and after a couple of years of behind-the-scenes negotiation is starting to voice its dissatisfaction publicly (Edit: including here and here).

Wednesday, 22 September 2010

Dickson v The Queen [2010] HCA 30: the direct collision of Commonwealth and State offences

Yesterday the High Court quashed convictions on Victorian conspiracy charges, finding they were directly inconsistent with Commonwealth conspiracy laws.

Dickson v The Queen is sure to have some prosecutors scanning charge sheets for offences that ought to have been laid under Commonwealth law. But like all High Court decisions, the impact of Dickson will only become clear in time.

The facts

The appellant was a former federal employee who allegedly conspired to steal a consignment of cigarettes in the possession of Customs. Edit: According to the transcript of argument, it was a live issue on the appeal whether the property actually was in the possession of the Commonwealth at the relevant time. The Court didn't spend much time on this point in their decision. A relevant head of Commonwealth power was found to have existed.

He wasn't charged under Commonwealth law. He was charged under Victorian law with conspiracy under s 321 of the Crimes Act 1958 to commit theft under s 72. The question for the Court was: could the State charge of conspiracy succeed despite the availability of applicable Commonwealth law? The High Court found that the State law was directly inconsistent with the Commonwealth provisions because it altered, impaired or detracted from the operation of a Commonwealth law: Victoria v The Commonwealth (1937) 58 CLR 618, Dixon J at 630.

The law

Questions of Commonwealth/State inconsistency are frequently resolved by consideration of whether the Commonwealth law was intended to cover the field. (Because of the priority given to Commonwealth law under 109 of the Constitution, where the Commonwealth Parliament are found to have intended to make exhaustive or exclusive laws on the subject the conflicting State law on the subject is inoperable).

In Dickson, the High Court instead applied the direct inconsistency test. Under 80 of the Constitution, Commonwealth law doesn't permit majority verdicts in jury trials, where Victorian legislation does. The High Court relied upon this discrepancy and the absence of certain statutory defences in the State law in finding that the Victorian law did alter, impair or detract from the operation of the Commonwealth law.

French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ [at 22]:

The direct inconsistency in the present case is presented by the circumstance that s 321 of the Victorian Crimes Act renders criminal conduct not caught by, and indeed deliberately excluded from, the conduct rendered criminal by s 11.5 of the Commonwealth Criminal Code. In the absence of the operation of s 109 of the Constitution, the Victorian Crimes Act will alter, impair or detract from the operation of the federal law by proscribing conduct of the appellant which is left untouched by the federal law. The State legislation, in its application to the presentment upon which the appellant was convicted, would undermine and, to a significant extent, negate the criteria for the existence and adjudication of criminal liability adopted by the federal law. No room is left for the State law to attach to the crime of conspiracy to steal property in the possession of the Commonwealth more stringent criteria and a different mode of trial by jury. To adapt remarks of Barwick CJ in Devondale Cream, the case is one of "direct collision" because the State law, if allowed to operate, would impose upon the appellant obligations greater than those provided by the federal law.


The overlapping nature of State and Commonwealth laws has been a sleeping giant for a while now. Under the Crimes Act 1914 (Cth) all State and Territory police officers (as well as Federal police) are entrusted with the powers of arrest, search, seizure, custody and charge under that Act. It hasn't been made clear whether these powers are merely available, or whether they are required to be used, when dealing with a State offence with a federal aspect. (The inclusive definition at s 3AA(3) of the Crimes Act 1914 (Cth) is wide.)

(3) A State offence is taken to be covered by paragraph (1)(c) if the conduct constituting the State offence:

(a) affects the interests of:

(i) the Commonwealth; or

(ii) an authority of the Commonwealth; or

(iii) a constitutional corporation; or

(b) was engaged in by a constitutional corporation; or

(c) was engaged in in a Commonwealth place; or

(d) involved the use of a postal service or other like service; or

(e) involved an electronic communication; or

(f) involved trade or commerce:

(i) between Australia and places outside Australia; or

(ii) among the States; or

(iii) within a Territory, between a State and a Territory or between 2 Territories; or

(g) involved:

(i) banking (other than State banking not extending beyond the limits of the State concerned); or
(ii) insurance (other than State insurance not extending beyond the limits of the State concerned); or

(h) relates to a matter outside Australia; or

(i) relates to a matter in respect of which an international agreement to which Australia is a party imposes obligations to which effect could be given by the creation of an offence against the domestic laws of the parties to the agreement; or

(j) relates to a matter that affects the relations between Australia and another country or countries or is otherwise a subject of international concern.

Don Mathias has described this decision as 'one judgment, tightly reasoned, narrowly focussed'. He makes the point that recent High Court judgments decide the case before them but leave many unanswered questions. For some readers of High Court judgments it probably comes as a relief not to have to wade through pages of individual judgments searching for elusive ratio.

But added to the list of questions that the High Court has not addressed here, it's now unclear whether State charges are invalid simply because charges could have been, but were not, laid under equivalent Commonwealth law. (Harley Schumann also poses this question over at the Lamp Post.)

Whether this decision has an impact on the same scale as Re Wakim, only time will tell.

Sunday, 19 September 2010

Adjournment applications

Edit: The Court of Appeal strongly rejected the notion that adjournments are of an administrative character, and so attract human rights considerations, in Slaveski v The Queen (on the application of the Prothonotary of the Supreme Court of Victoria) [2012] VSCA 48.

Redlich and Nettle JJA [at 106]:

The Commission contended that, when a trial judge determines to grant or refuse an adjournment of the trial, the judge acts in an administrative capacity within the meaning of s 4(1) of the Charter and thus as a public authority within the meaning of s 38(1) of the Charter. It followed, it was contended, that the courses of action open to the judge are limited to those which are demonstrably justifiable having regard to the criteria delineated in s 7(2) of the Charter.

The Commission’s contention is quite unsustainable. The function to grant or refuse an adjournment is one which takes its character from the tribunal or court in which the function is reposed. Where, therefore, the power to grant or refuse an adjournment of a trial is reposed in a trial judge, it is to be inferred that it is to be exercised judicially and thus that the character of the function is judicial. More precisely, when a trial judge determines to grant or refuse an adjournment of the trial, the judge exercises judicial power which involves the governance of a trial for the determination of criminal guilt and its punishment or, in a civil proceeding, the determination of a dispute inter partes. That is not an administrative function.

Sabet v Medical Practitioners Board of Victoria or Kracke v Mental Health Review Board, on which the Commission relied, were concerned with administrative tribunals. Plainly, they involve different considerations. It should not be thought that anything said in either case was supportive of the Commission’s position.

Section 331 of the Criminal Procedure Act 2009 confers a wide discretion on judges and magistrates to grant or refuse adjournment applications in criminal matters.

It's not clear yet to what extent the High Court's decision in Aon Risk Services v Australian National University (2009) 258 ALR 14 should influence the exercise of that discretion. Instinctively I would have thought not much, but the Judicial College's case note on the Aon decision suggests otherwise:

While this decision primarily affects the civil jurisdiction and relies heavily on the ACT Court Rules, it is arguably relevant in all cases when a party seeks an indulgence from the court without adequate justification or when granting the application will prejudice other court users by delaying the resolution of cases.

In this state, of course, concerns about court efficiency must be read in light of Charter rights like ss 24 and 25.

The common law position is that an application for the adjournment of a trial should be based on evidence, unless the facts are manifest or admitted: R v Jones [1971] VR 72. Nettle, Harper and Hansen JJA in AJP v R [2010] VSCA 224 [at 17]:

Mere assertions of the Bar table leave a judge without the means to properly assess the merits of an application and are likely to result in its rejection.

Applications for adjournment are interlocutory in nature and the rules of evidence do apply: s 4 Evidence Act. (Though some of the Act may be waived by agreement of the parties under s 190 if the accused is represented).

A number of recent interstate decisions have reinstated charges dismissed due to the prosecution's failure to be ready for hearing. Elucubrator blogged in May about Police v Beard [2010] SASC 49, a case where the SA Supreme Court overturned a magistrate's order striking out the charge because of the prosecution's failure to meet its disclosure obligations. DPP (NSW) v Maleselo Fungavaka & Anor [2010] NSWSC 917 is a similar case.

In Lusted v Menichelli [2010] TASSC 15 the police had failed to arrange for the attendance of a witness serving sentence at Risdon Prison. The charges were struck out, but that decision was set aside by the Tasmanian Supreme Court and the charges remitted for hearing.

In Police v Vuckic [2010] SASC 271, the prosecution had failed to call an important witness, and the decision to refuse the adjournment and strike out the charge was considered invalid. Interestingly, Duggan J quoted Sali v SPC Ltd & Anor (1993) 116 ALR 625, where Brennan, Deane and McHugh JJ [at 628] had said,

An adjournment which, if refused, would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action.

This was exactly the sentiment disapproved in Aon. It seems the notion that costs are sufficient compensation to prejudice remains alive and well.

Saturday, 18 September 2010

Legal dictionary on the go

Lexis Nexis AU has a new legal dictionary app for iOS devices.

The Butterworths Concise Australian Legal Dictionary has ‘only’ 7600 words — so doesn't seem to be the full thing. But more portable than the hard-copy. (The full edition is still only available in the 1997 edition; the concise paperback was last published in 2004 with 8000-odd entries.)

If you already have a LexisNexisAU subscription, I reckon accessing the dictionary through the web-portal would provide greater coverage. But otherwise, at $20, this is a great buy for advocates and students.

Thursday, 16 September 2010

Legislation Watch: Judicial Commission of Victoria Act 2010

Edit: The Bill had a second reading in the upper house, then disappeared into committee and was never heard from again. It lapsed at the end of the last parliamentary session, and would now need to be reintroduced to be considered by the new parliament.

Victoria's Judicial Commission has arrived. The new legislation announced by the Attorney General in June has passed the Lower House. Once passed by the Council and given Royal Assent it will commence on the 1st January 2012, unless proclaimed earlier.

A government press release came out on 1st September, the date of First Reading. From there the Second Reading was moved a day later and Third Reading in the lower house passed by special majority today.

The Explanatory Memorandum is here. The Act itself here. The Statement of Compatibility is here and the Second Reading Speech is here.

Rob Hulls said during the Second Reading,

Presently in Victoria, there are two methods for dealing with complaints and concerns about judicial conduct.

In cases where conduct may warrant removal from office, an investigating committee formed in accordance with the Constitution Act 1975 decides whether facts exist that could warrant removal. A judicial officer may be removed by the governor upon an address of both houses of Parliament by a special majority seeking removal due to proved misbehaviour by or incapacity of the judicial officer.

In cases of less serious complaints that do not warrant removal from office, there is currently no formal complaints process. In practice, the head of jurisdiction deals with these matters.

The bill combines processes for dealing with both serious and less serious complaints, and invests them in a single complaints body, thereby modernising the system and creating a more efficient and structured approach.

The Commission will be a public statutory body that handles complaints against the judiciary, both in a professional and private capacity. It will also have the ability to require judicial officers to undergo medical reviews where unfitness to perform offical duties is suspected. The Commission's board will consist of ten members: six are the Chief Justice of the Supreme Court, the Chief Judge of the County Court, the Chief Magistrate, the President of the Children's Court, the State Coroner, and the President of VCAT. The remaining four board positions will be appointed by the Attorney-General.

Parallels with the Judicial Commission of NSW are obvious. The education wing of the new Commission will take over the role currently played by the Judicial College, a move the College itself viewed cautiously.

Wednesday, 15 September 2010

Community expectations

The Court of Appeal resentenced an offender for sexual penetration of a child in WCB v The Queen [2010] VSCA 230. The Court's own summary of the case can be read here.

The offender had been sentenced to a non-parole period of six years, which was reduced to four. The case would be unremarkable but for one ground of the appeal; it asserted community expectation had assumed an improper role in the sentencing judge's discretion. The Court took the opportunity to judicially comment on issues of public expectations in sentencing, adding to things previously said by the Chief Justice on other occasions.

Warren CJ and Redlich JA [at 10]:

10 Under ground 3 it was submitted that the learned sentencing judge erred by taking into account an irrelevant consideration, namely that ‘the community would expect a lengthy sentence', which may have contributed to the imposition of a sentence that was beyond the permissible range. As will appear, we have concluded that the sentence on count 1 was outside the range, but we reject the contention that this reflected a misapprehension or misapplication of community expectations.

11 The parties were given leave to file further written submissions on this ground. Ultimately, the Director made none. The appellant submitted that ‘absent proper research, consultation and evidence’, to have regard to such a consideration as community expectation is ‘fraught with great difficulty’. It was also said that this was an irrelevant consideration under the Sentencing Act 1991. The submission rests upon the assertion that the sentencing judge was likely to have imposed a higher sentence than was required at law in order to satisfy a public expectation as to the length of the sentence which should be imposed.

12 In summary we have reached the following conclusions with respect to this ground:

(a) There is a misconception prevalent within the public domain that generally, sentences imposed by the courts are too lenient.

(b) The sentencing judge was not adverting to that misconceived public perception in his sentencing remarks.

(c) When members of the public are informed about and objectively assess the matters which are relevant to a particular sentence, including sentencing principles and matters personal to the offender, there is generally little disparity between the sentence which they consider appropriate and the sentence fixed by the court.

(d) The sentencing judge in referring to community expectations was making reference to the expectations of ‘informed’ and objective members of the public.

(e) A judge may, in his or her sentencing remarks, refer to such community expectations and to the fact that the sentence involves a reaffirmation of society’s values.

(f) There is a pressing need for the community to be better informed about sentences imposed in all of the common areas of offending. Discussion about individual sentences can only be placed in a proper perspective if the sentences generally imposed for that type of offence are known by the public.

Public perceptions of sentencing

The Court went on to develop this issue [at 15]:

15 In part, sentencing principles rest upon an assumption that the public is adequately informed about sentencing. We shall later refer to the importance of public awareness if the principle of general deterrence is to have its intended effect. The appellant advanced his argument against the background that the level of public knowledge about sentencing for most categories of crime is seriously deficient. Central to the argument was the notion that the community labours under the misconception that sentences are too soft and demands harsher penalties. Thus it was said that, when his Honour referred to the sentencing expectations of the community, he must have been referring to the perception within the community that sentences should be longer such that his Honour was deflected from imposing a sentence in accordance with sentencing principles.

16 The community is very poorly informed about most sentences that are imposed. Every day many sentences are handed down across the Magistrates’, County and Supreme Courts. Only a fraction of these are reported. The Sentencing Advisory Council found that the media reports selectively, choosing stories with the aim of entertaining more than informing, focussing on the unusual, the dramatic, and the violent. The view has been expressed in the United States that economic factors which encourage entertainment increasingly determine the style and content of crime reporting in both television and the print media at the expense of the traditional journalistic criteria of newsworthiness.

The judgement outlines the general lack of knowledge about sentencing in the community, and quotes research from the Sentencing Advisory Council that, when informed of surrounding circumstances, members of the public tend to reach similar conclusions to sentencing judges on appropriate sentences.

In WCB, the appellant's argument asserted that the sentencing judge intended to give effect to an ill-informed public perception that sentences are too lenient, leading to the imposition of a sentence higher than that which was permitted on a proper application of sentencing principles. The Court rejected that argument. It also expressly approved of judicial officers making reference to community values [at 34]:

34 A sentencing judge need not be reticent to express him or herself in terms of community values. The circumstances in which a sentencing court may refer to or draw upon the concerns or expectations of the community is not to be circumscribed as the appellant suggests. The courts do not exist independently of the society which they serve. As the sole legitimate administrator of criminal justice, they may be viewed as the trustees of the power of the community to judge and, where appropriate, punish its members. This requires that the courts vindicate the properly informed values of the community and, equally significantly, that they are seen to do so.

35 The expectations and values of the community are, in fact, often invoked in sentencing remarks and in the broader context of sentencing law. Central to the purposes of sentencing is public denunciation of the offending conduct and reinforcement of society’s expectations. The sentence communicates society's condemnation of the offender's conduct. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator: DPP v DJK [2003] VSCA 109. The sentence serves to reinforce the standards which society expects its members to observe. As Kirby J stated [at 118] in Ryan, the sentence represents:

a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law.


37 Under the Sentencing Act 1991 the offender must receive ‘just punishment.’ It is punishment which does justice between the community and the offender. Hence Maxwell P in R v Avci discussed community concern about the prevalence and seriousness of rape and like crimes and the need for salutary sentences for those crimes. On a Directors’ appeal against sentence, a relevant test of the appropriateness of the sentence- that is to say whether the sentence has been imposed according to law- is whether the sentence would ‘shock’ the ‘public conscience’. What is there in contemplation is an assessment of the sentence by an objective, properly informed public, invested with an understanding of the relevant sentencing principles, cognisant of the circumstances of the case and aware of current sentencing practices. It was that same standard which the sentence judge was here seeking to apply.

44 We conclude that there is no foundation for the suggestion that his Honour fell into error, in response to ill-informed community expectations, by formulating a sentence that did not rest solely upon relevant sentencing considerations. His Honour’s remarks are quite inconsistent with such an inference. They appear in a paragraph which sets out a number of principles which are relevant to the sentencing discretion. The judge was stating no more than his conclusion that the instinctive synthesis required a lengthy sentence to be imposed and chose to express himself, as he was entitled to do, in terms of the community expectation. So much was recognised by counsel for the appellant on the plea, who conceded that condign punishment was required in view of the seriousness of the offending conduct. The sentencing judge did not adopt a criterion that called for a sentence of a greater length than that which would be required by the law. On the contrary his Honour’s reference to the community carried an underlying assumption of an objective, fully informed community that understood the range of sentencing that would be appropriate in the circumstances.

Prosecutor's authority to nominate appropriate penalty

The Court of Appeal also addressed another ground of appeal, claiming that the prosecutor at the sentencing hearing had inappropriately submitted a specific penalty to the sentencing judge. The Court reviewed the record of proceedings and determined this hadn't actually occurred. Argument that the prosecutor had been required to produce or tender specific instructions from the DPP to represent the prosecution's position was rejected [at 52]:

52 This plea took place before the decision of this court in MacNeil Brown was published. For that reason the prosecutor did not seek to place any range before the sentencing judge. That said, we should make it clear that we do not accept the premise contained in the appellant’s written submission that MacNeil Brown requires the prosecutor to have obtained instructions as to the appropriate range prior to a hearing of the plea. Frequently, the submission as to range will not be made until after the conclusion of submissions made on behalf of the offender, when all relevant mitigatory circumstances have been made known. It is too often the case that expert or medical evidence concerning the offender is not produced until the hearing of the plea. Only after the plea in mitigation can the prosecutor make an informed submission as to the appropriate range which takes account of and makes reference to all of the factors which are said to support the range which is nominated. It is to be borne in mind that the prosecutor’s submission as to the appropriate range is not simply the provision of the top and bottom of the range. It must, like any other submission as to how a discretionary judgment is to be exercised, refer to the factors that bear upon the exercise of the discretion. Hence in supporting the range one would ordinarily expect some reference to the gravity of the offence and aggravating or mitigating factors. The degree of guidance provided to the prosecutor by those instructing him or her prior to or during the plea is a matter for the Office of Public Prosecutions. It may be that the prosecutor will have authority to make such an assessment after the plea in mitigation for the offender has concluded. What is required is that the prosecutor make a submission which states the prosecution’s position. It is not for the sentencing judge or this court to undertake an inquiry as to whether the prosecutor’s submission is based upon instructions. It will be presumed to be so: Humphries v The Queen [2010] VSCA 161. Whatever be the authority of the prosecutor, the extent to which the range submitted by the Crown has taken into account the matters raised on the offender’s behalf during the plea must be made clear to the sentencing judge.

Pre-sentence detention error

The last point of interest was the confirmation of the principle in DPP v TY [2009] VSCA 226 that errors in calculation of pre-sentence detention are not remediable by appeal. Slips can be fixed via s 104A(3) Sentencing Act, or not at all.

Tuesday, 14 September 2010

Savage v The Queen [2010] VSCA 220: Undoing the deal

Edit: A similar 'undoing the deal' was sought in Nguyen v The Queen [2010] VSCA 244. The Court of Appeal decided that cultivation and possession charges were not duplicitous as they related to different cannabis. The Queen v Stemnkovic [2009] VSCA 185 was similar.

But in R v Bidmade [2009] VSCA 90 the Court of Appeal did quash the sentence on the possession of the same drugs subject of a trafficking charge, even though a plea had been entered on both charges at the sentencing hearing. The Court quoted Buchanan JA in R v Ahmed VSCA 270 [at 20]:

20 In my view we should grant leave to appeal, hear the appeal instanter and allow it and quash the convictions on counts 2 to 5 in the first presentment and counts 1, 3 and 4 in the second presentment, notwithstanding that the applicant pleaded guilty to all the counts on both presentments. An appeal against conviction by an offender who has pleaded guilty will be entertained if it appears that upon the admitted facts the accused could not in law have been convicted of the offence charged or otherwise it appears that there has been a miscarriage of justice. In my view there has been a miscarriage of justice in this case. The applicant stood convicted of more offences than he had committed. That is apparent from the circumstances which emerged at the hearing of the plea. It is not necessary to investigate the events which induced the applicant to plead guilty.

This was also found to be the case in R v Georgiou [2009] VSCA 57. For more on double jeopardy see the post we did back in June.

In Savage v The Queen [2010] VSCA 220 the appellant was sentenced for multiple offences involving sexual communication with children.

The appellant entered into a plea agreement with the Crown. On the appeal the appellant argued that he should not have been convicted of charges of performing an indecent act with a child under 16 under s 47 of the Crimes Act 1958, even though he had entered a plea of guilty to them.

The disputed counts involved contact by telephone or computer when the appellant and victim were some distance away from one another. The appellant successfully contended that an act with a child required physical proximity. The law in relation to this issue is fairly settled by the decisions of R v Alexander and McKenzie (2002) 6 VR 53 and R v Coffey (2003) 6 VR 543. The Court of Appeal saw no reason to depart from these previous decisions, though the Crown (surprisingly) did attempt to challenge their correctness.

Mandie JA [at 12]:

12 The applicant submitted that the convictions on counts 9, 10 and 15 should be quashed because, on the admitted facts, there was no offence – the alleged indecent acts had not been committed ‘in the presence of’ the complainants and, as there was no physical contact, they were not committed ‘with’ the complainants. The applicant relied on two prior decisions of this Court. Given that the Court of Appeal was bound by its prior decisions unless they were plainly incorrect, it was submitted that these decisions were correct, alternatively not plainly incorrect.

The Court could also have pointed to the plethora of other offences provided by State and Commonwealth law to cover the development of sex offences involving telecommunications in recent decades.

Alternative charges include:

Those are just the offences that appeared might be appropriate on a quick scan through the legislation. There's probably a lot more. There doesn't appear much need to stretch the scope of s 47 of the Crimes Act to discourage this kind of conduct.

The discussion about undoing the negotiated plea was interesting. Mandie JA [at 13]:

13 At the outset, the Crown complained that the proposed appeal sought to interfere with a settled plea agreed between experienced counsel. On the other hand, the Crown rightly did not seek to contend that the Court had otherwise than a duty to quash the convictions on the relevant counts if they were insupportable as a matter of law. The position generally and also as regards plea negotiations was made clear by Callaway JA in R v Tait [1996] 1 VR 662. In that case, his Honour dealt with the question of appeals against conviction where a plea of guilty had been recorded. His Honour referred to R v Forde [1923] 2 KB 400 in which Avory J (delivering the judgment of the English Court of Criminal Appeal) said that, where a plea of guilty had been recorded, the Court could only entertain an appeal against conviction if it appeared either that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it or that upon the admitted facts he could not in law have been convicted of the offence charged. Callaway JA said that Avory J’s words should be understood and applied against the background that the power to intervene where conviction was consequent on a plea of guilty arose from the general requirement to set aside a conviction if there had been a miscarriage of justice. His Honour said that if a person could not lawfully be prosecuted, he could not lawfully be convicted. His Honour added that the Crown’s submission that there was no miscarriage of justice because the applicant had been represented and had pleaded guilty in the context of a plea negotiation did not weigh against the illegal quality of the convictions and was not a basis for distinguishing the case from the general principle laid down in R v Forde and subsequent cases in Victoria to a like effect.

There's a warning to the Crown in this. The prosecutor negotiating the plea in the County Court probably believed that counsel for the accused was protecting their client's interests when negotiating the plea. But if the accused is convicted of offences for which they could not successfully be prosecuted, these convictions are vulnerable on appeal.

In this case the outcome made only a small difference to the head sentence. It's not hard to imagine situations where the withdrawal of a major charge and an invalid plea to a lesser one make a significant difference to penalty. Could an accused be re-presented on the major charge that was withdrawn? I don't know.

Sunday, 12 September 2010

Rolling stops

Someone told me last week that there's no definition of stop in the Road Rules Dictionary. Edit: That same friend has now sent me this:

Strictly speaking, she's wrong. There is a definition but it's an inclusive and exclusive one, not exhaustive, and intended to apply to parking. It reads,

stop, in Part 12 and for a driver, includes park, but does not include stop to reverse the driver's vehicle into a parking bay or other parking space;


1 Driver's vehicle, park and parking bay are defined in this dictionary.

2 Part 12 deals with restrictions on stopping and parking.

The point my friend was really making was that unlike giving way, there's no explicit instruction of what a driver is obliged to do under the Road Rules when they come to a sign like the one above (or even one marked stop). So if a driver slows down and satisfies themselves that there's nothing coming before driving through an intersection, have they stopped or not?

I don't know for sure, but I expect the police take the view that stopping involves coming to a complete halt. That's what driving instructors teach, but I can't find any authority that says this is what the law requires. There's no definition in the Road Safety Act either, and the authorities on s 61 aren't on point. I can find lots of cases where there was a factual dispute between the parties about whether the accused did stop or not, and many more where the accused admits the offence and the argument is about penalty (Dycer v Police [2010] SASC 241, for example). I can't find a case where the meaning of the term stop was properly argued.

I'm throwing down the gauntlet to readers. Are rolling stops legal?

Thursday, 9 September 2010

DPP v Kypri [2010] VSC 400 — don't forget the sub-section!

Edit: The Court of Appeal have handed down their decision in Kypri. See our discussion of it here.

I was nearly going to title this post Oops!...I did it again but thought better of it.

DPP v Kypri was a DPP appeal against a dismissal of a charge of refusing to accompany for a breath test, contrary to s 49(1)(e) of the Road Safety Act 1986. In this case, the pathway to the alleged offence could have been through any one of several sub-sections in the Act: 55(1), (2), (2AA), (2A) or (9).

The charge didn't specify which sub-section was relied on, and so the magistrate dismissed the charge because it didn't contain an essential element of the offence.

The Supreme Court didn't take long to conclude the magistrate was right, because the same point was decided in Goodey v Clarke (2002) 37 MVR 121; [2002] VSC 246. That case concluded that s 49(1)(e) created separate offences for each sub-section in s 55, and on that point was affirmed by the Court of Appeal in DPP v Greelish (2002) 4 VR 220.

Another nail in the coffin for the prosecution case is the Road Safety (Responsible Driving) Act 2002 s 8. That was enacted after Goodey v Clarke, and provided ‘In section 49(1)(f) of the Road Safety Act 1986, for "55(1) or (2AA)" substitute "55".’ That meant for 49(1)(f) charges, it didn't — and still doesn't — matter if the prosecution doesn't specify in the charge which limb of s 55 it relies on to make out the offence. Applying the maxim expressio unius est exclusio alterius — express reference to one matter indicates other matters are excluded — it's arguable that Parliament's failure to change s 49(1)(e) means the prosecution does need to specify the limb of s 55 for offences contrary to that section.

Just to round off the appeal, Pagone J noted there was no application to amend the charge in the Magistrates' Court, and said he wouldn't have allowed an application to amend even if it was a ground of appeal.

Wednesday, 8 September 2010

High Court to consider Charter in Momcilovic appeal

In case you missed it earlier this year, Momcilovic's case on the reverse-onus provisions in Victoria's Drugs, Poisons and Controlled Substances Act and the Charter of Human Rights and Responsiblities Act didn't provide all the answers we had hoped it might.

That might change yet!

The Lamp Post blog recorded that the High Court granted Momcilovic and her lawyers special leave to appeal. No word of the date yet, but it's already been picked up in the mainstream media and is sure to generate a lot of interest as well as potentially set the stage for Charter interpretation and application in Victoria for a while to come.

Stay tuned!

Tuesday, 7 September 2010

DPP v Nicholls [2010] VSC 397: Exempted witnesses are unavailable

Edit: Because of the case of DPP v Easwaralingam & Anor [2010] VSC 437 I've read through Darmody again recently. It is impossible to reconcile this magistrate's reasoning with the Court of Appeal's decision and the wording of cl 4(c) of Pt 2 the Dictionary of the Evidence Act 2008.

In the pointed words of the NSW Court of Criminal Appeal in Brown, Barwick, Brown v R [2006] NSWCCA 69,

There are a number of errors in her Honour’s reasons ..., the subject of this ground. A theme which runs through some of them is her Honour’s lack of attention to what the Evidence Act actually says.

Yesterday the Supreme Court delivered its judgment in DPP v Nicholls [2010] VSC 397.

The facts

The police evidence was that a woman attended the Pakenham Police Station in December 2008 and reported being assaulted by her de facto partner, the respondent. A statement was taken from her and she signed it. Her partner was arrested and interviewed.

He was later charged with offences under the Crimes Act 1958:

  • making a threat to kill, contrary to s 20;

  • intentionally causing injury, contrary to s 18;

  • recklessly causing injury, contrary to s 18; and

  • unlawful assault, contrary to s 22 of the Summary Offences Act 1966.

The case

A contested hearing occurred at the Dandenong Magistrates' Court in February 2010. The complainant applied for and was granted an exemption from giving evidence under s 18 of the Evidence Act 2008.

When the complainant was excused from giving evidence the prosecutor sought to tender her statement under the exception to the hearsay rule at s 65. The magistrate refused to admit the statement and dismissed the charges at the 'no-case' stage of proceedings.

The magistrate gave the following reasons [recounted in the appeal at 14],

I have had a look at the Evidence Act. Effectively, in relation to this matter, section 18(7) allows me, which I already have done, that:

If there’s a likelihood that harm would or might be caused to the person or the relationship between the person and the accused if the person gives evidence, and the nature and extent of that harm outweighs the desirability of having the evidence given, then I must grant the exemption.

And clearly in relation to this matter [the complainant] has sought that exemption, and given public policy really requires me to grant it. In relation to section 65, the prosecutor put that given that she is not available to give evidence, her statement should be tendered through that section. I think that that is, although a clever argument, not one that is going to be sustainable. The reality is section 18 is in the legislation for a reason and that reason is to prevent both spouses and partners from being forced or compelled to given (sic) evidence against their husbands or partners. I have been using section 65 to circumvent that public policy consideration, is not an appropriate use for that section. And on a completely simple level the witness is available and sitting in court, and is simply refusing to give evidence.

That is not a situation where she is unavailable because she is overseas, which is where that section would often apply. Public policy is, therefore, on [the complainant]’s side in this matter. In relation to the no case submission, the prosecution case at its highest, has evidence of the informant and photos of [the complainant]. The problem is there is no evidence attached to the photos as to how the injuries occurred. The record of interview, although there are some admissions to grabbing and pushing, effectively denies all of the allegations put to me by the informant and corroborator. No evidence can be now led by the prosecution to support how [the complainant] sustained injuries to her arms in the photograph. Accordingly, I have been left with the position of no choice, but to grant the no case submission in this matter.

The appeal

The appeal by the DPP (on behalf of the police informant) advanced a number of grounds, which stated in different ways that the magistrate had erred in her refusal to admit the complainant's statement, based on the finding that she was not unavailable.

The meaning of unavailable under the Evidence Act has been posted about here, here and here. It was discussed in R v Suteski (2002) 56 NSWLR 182; (2002) 137 A Crim R 371 and first received Victorian judicial consideration in R v Darmody [2010] VSCA 41. The Evidence Act 2008 provisions represent a substantial shift from the previous common law position.

Clause 4 of Schedule 2:

4 Unavailability of persons

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

(a) the person is dead; or

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

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

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

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

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

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

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

The Supreme Court held there was no basis for distinguishing the legal availability from the physical availability of a witness.

Beach J [at 21]:

21 In my view, nothing in s 18 (or the policy underlying it) operates to limit the application of s 65 or the operation of clause 4 of Part 2 of the Dictionary. Section 18 permits a family member to be relieved of the obligation of giving evidence because of a possible likelihood that harm would be caused to the family member or to the relationship between that person and the defendant. However, the section says nothing about the use by the prosecution of a statement already given by the family member. The resolution of this appeal falls to be determined by construing the terms of clause 4 of Part 2 of the Dictionary.

22 Notwithstanding the identified difference between the circumstances of the authorities I have referred to and the circumstances of the present case, in my view, there is no relevant point of distinction. There is no relevant difference, for the purposes of s 65, between a refusal to give evidence that is without legal foundation and a refusal to give evidence that is authorised by an order of the Court. Further, in Mindshare Communications Ltd v Orleans Investments Pty Ltd [2007] NSWSC 976, Hamilton J specifically accepted the possibility that clause 4(1)(f) had operation where a witness declined to give evidence on the ground of privilege. Whilst what Hamilton J said was only obiter, it is, in my view, correct and should be followed.

The matter was remitted to the Magistrates' Court, to be dealt with by a different magistrate.

Summon or arrest?

Twitter — yes, twitter! — is yet another great source of legal information.

For example, Associate Professor Alex Steel at UNSW tweets at crimlawnsw, with some great tips.

One recent tweet referred to an appeal against hindering police. It seems that the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 99(3) expressly prohibits police from arresting people unless for one of a several prescribed reasons (similar to s 458(1) in the Victorian Crimes Act).

In DPP v Carr (2002) 127 A Crim R 151; [2002] NSWSC 194 the NSW Supreme Court held a magistrate was correct to conclude the evidence of resisting, assaulting and intimidating police was improperly obtained and subject to exclusion under s 138 of the Evidence Act because it resulted from an arrest for a summary offence of offensive language. (The DPP appeal succeeded on a different point about procedural fairness.)

Crimes Act 1958 s 461(2) provides that police need not arrest a person when a summons or notice to appear will effectively commence proceedings. Children, Youth & Families Act 2005 s 345 sounds like it's even stronger — children to be proceeded against by summons except in exceptional circumstances — though the section restricts registrars from issuing first-instance arrest warrants, rather than proscribing arrest and charge by police.

Neither of those provisions go as far as the NSW one above, which provides police must-not-arrest-unless-necessary.

But, combined with Charter s 21(2) (freedom from arbitrary arrest or detention), and perhaps also s 12 (freedom of movement), s 13 (right to privacy and reputation), and perhaps s 10 (protection from cruel, inhuman or degrading treatment) and s 25 (presumption of innocence), I think the reasoning in DPP v Carr gains greater significance.

The riposté from prosecutors will probably be Crimes Act s 461 (arrest on reasonable grounds not taken to be unlawful) and cases such as Jensen v Eleftheriou [1982] VR 184.

It remains to be seen which approach will triumph. There haven't been any resounding wins with application of the Charter of Human Rights and Responsibilities so far — but that could be about to change with the High Court poised to consider its first Charter case soon!

Monday, 6 September 2010


There's nothing wrong with a piece of paper and a pen, but sometimes having a more professional diagram of an accident is useful.

These images are from an online product called AccidentSketch.

I've had a play around with various packages from the web and AccidentSketch is my current favourite. It's free and surprisingly easy to use.

My only complaint is that it's from Germany, so a few of the traffic symbols aren't right for Australia.

Saturday, 4 September 2010

Vigilante justice

I referred to DPP v Pham & Ors [2010] VSCA 181 in a post about honour crime a couple of weeks ago.

In that case co-offenders were sentenced for a home invasion where a man was badly injured. They claimed in mitigation their belief (since accepted as mistaken) that the victim had raped the sister of one of the men.

Buchanan JA [at 15]:

15 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 [one co-offender] 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.

The Court of Appeal didn't say that these facts were mitigating (Buchanan JA went on to list the matters which the court was entitled to take into account) but in my view the paragraph above from Pham sits uneasily with
previous decisions on vigilante conduct: see Wilshaw & Lowe [2001] VSCA 35, R v Rushby [2002] VSCA 44 and DPP v Miller [2002] VSCA 137.

In last week's decision in Sumner v The Queen [2010] VSCA 221 the offender had been sentenced for the abduction and murder of a man who he believed had raped his brother. He appealed the sentence, asserting (among other things) that sufficient weight had not been given to the circumstances leading to the commission of his crimes.

Bongiorno JA [at 84, Mandie and Redlich JJA also agreed],

84 In his sentencing remarks the trial judge specifically referred to the fact that the applicant believed that his brother has been anally raped by the deceased, although his Honour also found that it was unlikely that such a rape had in fact occurred. Counsel for the applicant in this Court conceded that the law does not countenance vigilante conduct and that there can be no lawful justification or excuse for such behaviour. However, he also submitted that ‘... the law recognises that, when faced with such disturbing revelations, human frailty can be exposed and can act out of understandable anger and distress’.

85 Assuming such a principle exists, the difficulty with the application of it in this case is the degree of premeditation and planning in which the applicant engaged before killing the deceased and disposing of his body. The evidence before the Court was that he told [someone] on the evening of 24 April that he intended to find the deceased and kill him because of what he believed he had done to his brother. The applicant then spent the next day or so carrying out this plan; finding [the victim], kidnapping him, killing him and subsequently disposing of his body. This activity involved the applicant in driving long distances and engaging in significant logistical planning. Whilst such activity may be not inconsistent with continuing anger – even rage – it did give the applicant ample time and opportunity to reflect on his decision and to reconsider it. On the evidence before the Court he probably had Allen in the vehicle he used for the kidnapping for some time before he killed him. At any point during that period he could have desisted from his original plan. He did not.

86 There is no basis for ameliorating a proper sentence in this case by any consideration of distress and human frailty. Murders are committed for a variety of reasons and none. This murder was a premeditated act of revenge for a perceived wrong to the applicant’s brother. It was, in effect, a vigilante killing. He took the law into his own hands, something which he had no right whatsoever to do.

87 In his sentencing remarks the trial judge referred to Brooking JA’s judgment in DPP v Whiteside and Dieber where his Honour condemned vigilante action in no uncertain terms, adverting to the fact that such activity often involves violence ‘... inflicted on individuals who are quite innocent of any offence whatsoever’. His Honour said [at 339]:

Vigilante enterprises must be suppressed, as appellate courts have made clear. Where four men, acting on ‘rumour and innuendo’, assaulted a fifth for ‘messing with kids’, the Court of Appeal endorsed the judge's description of the ‘vigilante action’ and said that it called for serious reaction from any court anxious to preserve the rule of law; R v Sheekey [1996] EWCA 385. Similar offences committed by only one or two offenders have, as one would expect, drawn the same response: Attorney-General's Reference (Nos. 17 and 18 of 1994) (1995) 16 Cr App R (S) 418 [at 421]: (‘That is what this case was about, people taking the law into their own hands. It has to be stopped’); R v Kennedy: (‘vigilante enterprises of this kind are simply not tolerated by the community’); R v Demittis (Unreported, Queensland Court of Appeal, 29 May 1997), 5-6 (McPherson, JA): (‘The idea that individual citizens may take the law into their hands in this way is quite mistaken. It frequently results in serious injuries, and very often they are inflicted on individuals who are quite innocent of any offence whatsoever. It is not the view adopted in this Court in previous cases that the law may be taken into the hands of citizens or, indeed, that anything but the proper processes of the law should be gone through before a person is dealt with for criminal offences. Vigilante enterprises of this kind are simply not tolerated by the community.’); R v Brelsford (Unreported, Queensland Court of Appeal, 14 September 1995), (McPherson JA): (‘Vigilante action, from which Australia has happily been free so far, is notorious for the serious consequences that it often entails. Quite frequently, they are unintended and, on occasions, of course, the wrong person is selected as the target of this kind of rough justice.’)

These comments are apposite in the context of this case. This ground should not be upheld.

The Court of Appeal did stress that the significant preparation for the killing in Sumner contradicted an assertion that the murderer acted spontaneously. The confrontation in Pham was less organised, but vigilante conduct was present in both cases.