Tuesday, 30 November 2010

New citation guide available

Hat tip to Stephen Warne for re-tweeting this tidbit...

The Australian Guide to Legal Citation is now in its 3rd edition, and available for free download or purchase.

It’s a great resource for anyone working or studying in the law and worth every bit of the $20 it costs.

Monday, 29 November 2010

Disclosure, adjournments and guilt — Part 2

In Part 1 of this post I discussed summary case-management and the requirements of disclosure by parties to a summary criminal prosecution, and the courts’ powers to accept or reject guilty pleas.

The Criminal Procedure Act 2009 (“CP Act”) changes the old Magistrates’ Court Act 1989 Schedule 2 disclosure process a fair bit, but not necessarily in the way expected by those involved in its introduction.

In Part 2, I discuss the current disclosure provisions and a few details that seem to have escaped attention thus far.

Preliminary and full briefs

Preliminary briefs

The content of a preliminary brief is prescribed in CP Act s 37. CP Act s 35 says the police must serve a preliminary brief when required by s 24, itself requiring a preliminary brief within 7 days after a charge-sheet is filed (s 22) following issue of a notice to appear (s 21). (Alternatively, the police can give notice under s 23 the accused isn't required to attend and the notice has lapsed or will lapse. If they don't, they might incur costs under s 402.)

So far (at least, as far as I know), the Notice to Appear is not being used. Yet.

But this isn’t the only way a preliminary brief can be used. CP Act s 35(4) permits the police to serve a preliminary brief if they file a charge-sheet without relying on the Notice to Appear procedure. This is the basis for the current summary case conference process...

Full briefs: ‘put your cards on the table’

Under s 39(1A)(b), the accused may require a full brief anytime after a criminal proceeding commences. Under CP Act s 39(2) the police aren’t required to provide the full brief until 14 days before a contest mention, or a summary hearing (defined in s 3 as a contested hearing conducted under Part 3.3).

I’m not sure how this might work if the police refused to disclose a full brief until 14 days before a contest-mention or contest hearing! But I reckon very few judicial officials would force the accused on at a contest-mention or summary hearing if, after requesting a full brief, they only received one 14 days before the hearing. Perhaps except for a very simple case.

Full briefs still required most of the time

Even though the new preliminary brief process is hoped to reduce the need for police to prepare full briefs, the accused can still require one, except a summary case conference must happen first when:
  1. A Notice to Appear was issued, or
  2. A charge-sheet was filed
and a preliminary brief was served on the accused within 7 days.

The police — and the Magistrates’ Court itself in its Practice Note 3 of 2010 — Summary case conference procedure — suggest all charges must go to a summary case conference first before the accused can obtain a full brief, and point to CP Act s 54(2), which relevantly provides:
(2) If a preliminary brief is served within 7 days after the day on which the charge-sheet is filed, a summary case conference must be conducted before—
(a) the charge is set down for a contest mention hearing or a summary hearing; or

(b) a request for a full brief is made under section 39(1).
But that sub-section is conditional: note the ‘if’ at the start! It applies only if the police serve a Notice to Appear and then a preliminary brief within 7 days as required by CP Act s 24, or, the police commence a criminal proceeding in the first instance by filing a charge-sheet and are fast enough to serve a preliminary brief within 7 days of filing.

In all other cases, the accused can request a full brief without participating in a summary case conference.

(Note also that s 24 has no role to play when criminal process commences other than by ‘filing’ a charge sheet i.e. the ‘instant’ summons process in s 14.)

The Criminal Procedure Act 2009 – Legislative Guide suggests the same on pages 81 – 2, noting that only for cases commenced by Notice to Appear must a summary case conference occur before a contest-mention or summary hearing is set and full brief requested.

In short, the accused is generally still entitled to a full brief.

Teething problems?

Additionally, it seems the new process isn’t working quite as well as hoped. The VLA summary criminal procedure update page recent bulletin mentions some of the problems. The Law Institute’s criminal law section recently advised its members it wrote to the Magistrates’ Court to say it supports the reforms but considers the summary case conference system isn't working efficiently. The Section provided template letters for requests of the Court to adjourn cases to a contest-mention if lawyers haven’t been able to conduct out-of-court negotiations with prosecutions units because of a shortage of prosecutors, and notes that VLA doesn't fund court attendances by practitioners for summary case conferences.

Disclosure and the full brief

CP Act s 54(1)(a) provides that a summary case conference is intended to identify and provide to the accused any:
  • information
  • document or
  • thing
in the possession of the prosecution that may assist the accused to understand the evidence available to the prosecution.

Additionally, the CP Act s 41 prescribes what a full brief must contain.

The Criminal Procedure Act 2009 – Legislative Guide p 73 neatly outlines the three categories of material covered by s 41:

  • Basic material required in all cases e.g. charge-sheets and prescribed notices: s 41(1)(a) – (c)
  • Relevant material the prosecution intends to rely upon at Court: s 41(1)(d)
  • Relevant material the prosecution does not intend to rely upon at Court: s 41(1)(e)
This third category is a significant new development, and one that seems to have been largely overlooked so far.

Section 41(1)(e) provides:
41. Contents of full brief

(1) Unless earlier disclosed to the accused, whether in a preliminary brief, at a summary case conference or otherwise, a full brief must contain—
(e) any other information, document or thing in the possession of the prosecution that is relevant to the alleged offence including—
(i) a list of the persons (including experts) who have made statements or given information relevant to the alleged offence but who the prosecution does not intend to call as witnesses at the hearing; and

(ii) a copy of every statement referred to in subparagraph (i) made by each of those persons or, if the person has not made a statement, a written summary of the substance of any evidence likely to be given by that person or a list of those statements or written summaries; and

(iii) a copy of every document relevant to the alleged offence that the prosecution does not intend to tender as an exhibit at the hearing or a list of those documents; (given the wide meaning of ‘document’ in the Evidence Act and Interpretation of Legislation Act, this provision is potentially very broad indeed) and

(iv) a list containing descriptions of any things relevant to the alleged offence that the prosecution does not intend to tender as exhibits at the hearing; and

(v) a clear photograph, or a clear copy of such a photograph, of any thing relevant to the alleged offence that cannot be described in detail in the list; and

(vi) a copy of—
(A) records of any medical examination of the accused; and

(B) reports of any forensic procedure or forensic examination conducted on the accused; and

(C) the results of any tests—
carried out on behalf of the prosecution and relevant to the alleged offence but on which the prosecution does not intend to rely; and

(vii) a copy of any other information, document or thing required by the rules of court to be included in a full brief; and
A parallel disclosure regime also exists at CP Act Part 4.4 for committal briefs, and both operate in conjunction with the subpoena power in Part 8.1 at s 336.

Reading those provisions, it’s clear the CP Act intends providing more material to an accused than previous disclosure schemes required, and to reduce the need for subpoenas in many cases.

The Criminal Procedure Act 2009 – Legislative Guide commentary for s 336 states:
As discussed throughout this guide, the Act now creates clearer statutory disclosure obligations at each level of criminal proceedings. Importantly, the courts have been given express powers to resolve disputes about disclosure, which may lead to less reliance on witness summons/subpoena processes. The location of statutory disclosure obligations at each level of criminal proceedings is indicated below.


The availability of an express power to resolve disclosure disputes removes much of the need for the (comparatively cumbersome) subpoena process to be used, particularly where the material is in the prosecution’s possession (DPP or police). It will be open for such disclosure disputes to be resolved by simple application to the court and hearing of the issue on the merits. Having examined the contested material (if necessary to resolve the dispute) the court may order either disclosure, partial disclosure, or non-disclosure of the material that is the subject of the application.

CP Act s 42 imposes a continuing obligation of disclosure upon the prosecution. The Criminal Procedure Act 2009 – Legislative Guide commentary for that section notes:
As the Act harmonises provisions across jurisdictions, similar sections exist at the committal and trial stages (see sections 111 and 185).

The Criminal Procedure Act 2009 – Legislative Guide commentary for s 185 (the continuing disclosure obligation for indictable proceedings) notes:
This section is a central part of the Act’s approach to disclosure in trial proceedings. It is designed to clearly articulate disclosure obligations and provide a simple process to resolve disclosure disputes as an alternative to the use of subpoenas.

Because of the harmonised approach across jurisdictions, noted above, the legislative intent discussed at s 185 applies to summary cases too. (Otherwise, we'd have the ludicrous position where an accused person can obtain material without the expense and inconvenience of subpoena in the indictable stream, but not the summary stream.)

The disclosure provisions in the CP Act are deliberately intended to operate as an alternative to the use of subpoenas. Subpoenas are probably now required only when third-parties hold relevant material: Criminal Procedure Act 2009 – Legislative Guide commentary for s 336, discussed above.

I understand anecdotally from colleagues that some Magistrates’ Court registries are suggesting lawyers rely on these disclosure provisions in preference to issuing subpoenas, if not outright declining to issue subpoenas until the disclosure process is exhausted.

Of course, s 41(1)(e) doesn't provide open slather to the accused to gain whatever they want: it’s still founded on the touchstone of relevance, meaning cases discussing relevance of material sought by subpoena will be useful when considering what to seek and what to disclose. The most recent subpoena case on this point is Johnson v Poppeliers (2008) 20 VR 92, where Kyrou J held the test for release of material was if there’s a reasonably possibility it will materially assist the defence.
[42] In my view, the authorities discussed above establish that in Victoria, the test for determining whether evidence sought on summons by a defendant has a legitimate forensic purpose, is whether there is a reasonable possibility that the evidence would materially assist the defence. The test of “within the range of probability” set out in Fitzgerald does not correctly state the law. The authorities also establish that while a fishing expedition is insufficient, the test of “reasonable possibility” must be applied flexibly (and, I would add, with common sense) in order to give the accused a fair opportunity to test the Crown’s case and take advantage of any defences available to the accused. Where the accused wishes to rely on a statutory defence, the absence of evidence from which an inference can be drawn that the documents sought will satisfy the requirements of the defence does not necessarily mean that the reasonable possibility test is not met. This is particularly so where there is only one statutory defence available to the accused and that defence involves technical information exclusively in the possession of the Crown; insistence by the court that the accused present evidence which provides a basis for a positive inference that the documents sought will satisfy the requirements of the defence may effectively “eviscerate”[36] the defence.

The end result is an accused may require and the prosecution ought to provide relevant material if it’s reasonably possible it will materially assist the accused. I expect that documents like running sheets, reports, notes and diaries are covered by this provision, rather than requiring a subpoena.

The effect of CP Act ss 41 and 42 is that disclosure material must be provided as part of a full brief as a matter of course. In some cases, it probably won’t be necessary, and if the accused doesn’t take issue with non-disclosure nothing will come of it. Otherwise, the accused may request non-disclosed material under s 43, and if refused, apply under s 46 to the Court for disclosure.

The whole disclosure process is bolstered too by Charter of Human Rights and Responsiblities Act 2006 s 25(2)(a) which provides:
(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees—
(a) to be informed promptly and in detail of the nature and reason for the charge in a language or, if necessary, a type of communication that he or she speaks or understands; ...(emphasis added)

No doubt there are a few skirmishes ahead before we get cases from appellate courts declaring how the provisions operate. Until then, careful reading of what the legislation says will help resolve some of the disputes.

Saturday, 27 November 2010

Notice of tendency and coincidence evidence

Section 97(1)(a) of the Evidence Act 2008 provides that tendency evidence is only admissible if,

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and

(b) ...

Section 98 has an identical provision for coincidence evidence. Section 99 of the Act states that notices given under section 97 or 98 are to be given in accordance with any regulations or rules of court made for the purposes of this section.

The relevant regulations are the Evidence Regulations 2009. Unlike notices relating to fingerprints or prior convictions there is no standard form provided in the Regulations for giving notice of tendency or coincidence evidence. Instead, there's a list of things that the notice must contain.

Rule 7 provides,

7. The tendency rule and the coincidence rule - form of notices

(1) For the purposes of section 99 of the Act, a notice given under section 97(1)(a) of the Act (relating to the tendency rule) must state-
(a) the substance of the evidence that the notifying party intends to adduce, and

(b) if that evidence consists of, or includes, evidence of the conduct of a person, particulars of-
(i) the date, time and place at and the circumstances in which the conduct occurred; and

(ii) the name of each person who saw, heard or otherwise perceived the conduct; and

(iii) in a civil proceeding, the address of each person named under subparagraph (ii), so far as they are known to the notifying party.

(2) For the purposes of section 99 of the Act, a notice given under section 98(1)(a) (relating to the coincidence rule) must state-
(a) the substance of the evidence of the occurrence of two or more events that the party giving the notice intends to adduce; and

(b) particulars of-
(i) the date, time and place at and the circumstances in which each of those events occurred; and

(ii) the name of each person who saw, heard or otherwise perceived each of
those events; and

(iii) in a civil proceeding, the address of each person named under subparagraph (ii), so far as they are known to the notifying party.

The Magistrates' Court has no specific directions regarding notice of the introduction of tendency or coincidence evidence. The County Court's Practice Note is here (specifically pages 13, 15 and 30) and Supreme Court Practice Note No 4 of 2010 is here.

On the final page of the Supreme Court's practice note there is an example of a notice, but its format doesn't seem intended to be rigidly prescriptive.

Given the almost endless variety of circumstances that might give rise to the desire to adduce tendency or coincidence evidence, a fill-in-the-blanks pro forma probably wouldn't work. Some notices can probably state their basis succinctly in two lines, while others may run on for dozens of pages. Case law seems divided on how much detail has to be included in the notice, and how much the party seeking to adduce the evidence will be committed to what was stated in the notice.

Not all of the material intended to be relied on must be reproduced in the notice, provided it's referred to. In R v AB [2001] NSWCCA 496 Adams J rejected an argument about the form of a notice under s 99 [at 15, Spigelman CJ and Sully J agreeing],

14 It is not submitted to us that had those statements been incorporated in the notice itself, there would have been insufficient compliance with the requirements of [the regulations]. As I understand the appellant's argument, it is that [the relevant regulation] requires that material to be contained in the notice and it is not sufficient compliance if reference is made to another document of whatever form, however provided, and even if it were attached to the notice itself. I am unable to accept this argument. It would represent a triumph of form over substance and a triumph which could not fail but to bring the administration of justice into disrepute.

15 I consider that it is sufficiently compliant with the regulation if the notice states, either in its own body or by reference to documents readily identifiable, the nature and substance of the evidence sought to be tendered. Whether or not that narrative does give the substance of the evidence is a second matter to be considered and, of course, a notice which failed to do so, whether by narrative in the body of the document or a document to which it refers, would not comply with the regulation and the evidence, in my view, would then not be given unless the corrective provisions of the Evidence Act were enlivened. The statements are not before us but it is reasonable to infer that the evidence given in the trial as to those other matters reflected what was in those statements. If so, it seems to me that they were sufficiently specific to comply with the regulation. I would therefore reject the appellant's argument in so far as it depends upon the form of the notice.

Courts may waive the requirement to give notice under s 100, making arguments about compliance or non-compliance redundant. Whether notice will be waived depends primarily on the nature and extent of prejudice caused to the other party by the applicant's failure to give notice: Regina v Harker [2004] NSWCCA 427.

Where waiver is declined, an applicant (usually the prosecution, but it's important to remember that an accused can rely on tendency and coincidence evidence, too) will almost inevitably argue that a fair remedy is an adjournment to allow correct notice to be served, rather than the exclusion of the evidence.

Wednesday, 17 November 2010

Disclosure, adjournments and guilt — Part 1

Earlier this year I discussed Police v Beard [2010] SASC 49, an appeal against a magistrate summarily dismissing a charge because the prosecution hadn't complied with certain pre-hearing obligations.

The Court there listed six points to guide summary case management.

[6] The following propositions emerge from these cases.
  1. The procedure for hearing and determining a Magistrates Court matter in which the defendant pleads guilty or not guilty is set out in ss 64, 67, 68 and 69 of the Summary Procedure Act 1921 (SA).
  2. These provisions require that the final disposal of the matter must take place at a properly convened hearing with a Magistrate sitting in open court.
  3. Rule 8 of the Magistrates Court Rules 1992 (SA) provides for a system of case-flow management in the Magistrates Court and as part of that system rule 26 provides for the holding of pre-trial conferences. The purpose of such conferences is procedural and is aimed at assisting the processes of case-flow management.
  4. Although a pre-trial conference may be converted in to a hearing in open court before the Magistrate, it must be made clear that this procedure is being adopted and that the procedural requirements of the taking of a plea and the subsequent conduct of a trial or sentencing hearing are observed.
  5. The Magistrate cannot summarily dismiss a matter at a pre-trial conference nor can the matter be dismissed in the absence of the procedural requirements to which reference has been made.
  6. The case-flow management system provided for in the rules must be read subject to the statutory requirements. In an appropriate case an application may be made for a permanent stay on the ground of an abuse of the process of the Court. This procedure is available in a wide variety of circumstances which include a situation where the prosecutor has misused the rules of procedure. In a less serious case it may be appropriate for the Court to make costs orders against the prosecution.
Police v Beard cited several authorities which now seem pretty helpful when considering our own pre-hearing processes under Chapter 3 of the Criminal Procedure Act. And of course, we now have Charter s 25 (rights in criminal trials) which provides additional protections for the accused. In particular, s 25(2)(c) provides for timely hearings, and 25(2)(b) provides for adequate time and facilities, which could include disclosable information in the ken of the prosecution.

In Police v Childs (2000) 76 SASR 425 the defendant was charged with two counts of damaging property. The charges were adjourned several times to a pre-trial conference — similar it seems to a summary case conference here. At that conference, the accused elected to plead guilty through his counsel to the first charge, and the prosecutor applied for the second charge to be stood down pending possible resolution. The magistrate refused, and dismissed the charge.

The Supreme Court held there the magistrate had no power to dismiss a charge before a plea was taken because the relevant SA legislation required a plea first before a magistrate could then consider — and hence dismiss — a charge. Here, Criminal Procedure Act 2009 ss 27 and 28 provide that a charge must be heard and determined in accordance with Chapter 3, similar in effect to those SA provisions.

In Police v Slater (2003) 86 SASR 189 the accused was charged with disorderly behaviour, using indecent language and three counts of assaulting police. At a subsequent pre-trial hearing counsel for the defendant applied for dismissal of the assault charges, partly because she claimed the police hadn't complied with disclosure obligations as directed. The prosecutor argued otherwise, and submitted in any event the appropriate remedy was an adjournment with costs.

The magistrate dismissed the three assault charges, and fined the defendant for the other two offences. No plea was entered to the assault charges.

The Supreme Court allowed the prosecution appeal, applying Police v Childs, and also adding:
[29] was, in my view, an incorrect and erroneous exercise of the discretion to dismiss the assault counts on the complaints in so in a peremptory fashion, simply because the prosecution had failed fully to comply with earlier orders for the production of certain documents.

[30] The magistrate should have afforded an opportunity for the further material which the defence required to be provided. He could have ordered that the matters go to trial at that stage, with supplementary orders designed to ensure that complete discovery, as requested by the defence, was made by the prosecution a reasonable time ahead of the hearing.

[31] Attempts to convert case flow management procedures into overly rigid procedural orders which put a prosecution out of court in such a peremptory fashion should not be encouraged. There is a public interest in the maintenance of prosecutions. There is a public interest, if police officers are alleged to have been assaulted, in having the charges dealt with and ventilated properly. That interest is not well served by such a heavy-handed application of case flow management procedures.

In Police v Long & Long [2004] SASC 381, the defendant brothers were charged with assaults. The case had many directions hearings and pre-trial conferences, but when the scheduled three-day hearing started (but before any pleas were taken), the prosecutor applied for an adjournment because certain forensic testing was not completed. The magistrate stood the case down for a short time to consider that application before returning and suddenly announcing the charges would be dismissed, without hearing from the parties.

That appeal was allowed, again because no plea was entered so the magistrate had no jurisdiction to determine the charge. The Supreme Court opined that the magistrate would have been entitled to refuse the adjournment and force the prosecution on.

And in Police v Turbitt (2005) 92 SASR 480 a magistrate dismissed charges after the prosecution failed to provide material as and when ordered. The Supreme Court considered that amounted to much the same thing as a permanent stay — I'm not certain: is it the same, even if it has much the same effect? — and the circumstances fell short of those required for a permanent stay, given there were still 3 months until the hearing. The Court also considered the prosecution was denied procedural fairness by the magistrate's refusal to hear any explanation for the apparent non-compliance.

At [52], the Supreme Court referred to Queensland v JLH (1997) 189 CLR 146, and it's oft-quoted observation at 154 that ‘Case management is not an end in itself,’ and then went on to observe:
[54] The proper role of case flow management principles is to ensure the prompt and efficient disposal of court business. The application of such principles is always subject to the ultimate objective of the court, the attainment of justice. Rules of court in any jurisdiction exist to facilitate the attainment of justice. It is therefore incongruent to apply them in such a way as to obstruct that goal. Justice requires that an accused be tried according to law; not according to case management principles. In the circumstances, the order of dismissal was entirely inappropriate.

Of course, no principle of case management can compel the accused to disclose their case and thereby abrogate their right to silence: R v Ling (1996) 90 A Crim R 376; [1996] SASC 5856.

Following on from this, if an accused person does enter a guilty plea, that plea is an admission of every element of the offence.
An accused is entitled to plead guilty to an offence with which he is charged and, if he does so, the plea will constitute an admission of all the essential elements of the offence. Of course, if the trial judge forms the view that the evidence does not support the charge or that for any other reason the charge is not supportable, he should advise the accused to withdraw his plea and plead not guilty. But he cannot compel an accused to do so and if the accused refuses, the plea must be considered final, subject only to the discretion of the judge to grant leave to change the plea to one of not guilty at any time before the matter is disposed of by sentence or otherwise.

The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered. But otherwise an accused may insist upon pleading guilty: Maxwell v The Queen (1996) 184 CLR 501 at at 510 - 11.

One consequence of this principle is that if a person pleads guilty to an offence when either the evidence doesn't support the allegation or there is actually no such offence known to the law, the accused should be permitted to change their plea lest a miscarriage of justice occurs. (See changes of pleas here and here.)

The appropriate course if the court considers the accused should plead not guilty (and the accused acts on that suggestion), or they refuse to plead, is adjourn the charges for determination: DPP v Yeo (2008) 188 A Crim R 82. In Yeo, the NSW Supreme Court considered it an error of law when the magistrate refused to accept a guilty plea and summarily dismissed the charge because she considered the summary of the offence didn't make out the offence. The Supreme Court held that the appropriate course should have been to adjourn the charge for a hearing on its merits.

One unanswered question from all of this is what remedy does the Court have if the prosecution or accused don't or won't comply with their disclosure obligations? (The accused has only two: alibi and notice of expert evidence.) In the first instance, an accused person may seek an order compelling disclosure, under s 46 of the Criminal Procedure Act.

But what then? Adjournments with costs, initially.

And then? In Foskett v Burgess (1998) 102 A Crim R 448 the Victorian Supreme Court suggested estoppel might operate at least when a party failed to comply with pre-hearing obligations — in that, case, notice by the accused of proposed expert evidence. But later in DPP v Sarossi (2000) 110 A Crim R 376 it doubted if estoppel applied to the criminal law. I guess there comes a stage where, if the accused has satisfied the Court material ought be disclosed, a failure or refusal to provide that will provide grounds for a stay (which Sarosi noted is effectively the same as estoppel) until the prosecution complies with the order.

It seems then that the new procedures oblige parties to follow the courts timetable, but the accused can't waive their right to silence, and the courts shouldn't refuse to exercise jurisdiction — which is what a stay or dismissal amounts to: Police v Turbitt at [61] — if the prosecution won't comply with its obligations.

Perhaps the simplest remedy might simply be adjournments to a date to be fixed, with an order that the charges not be re-listed until the prosecution complies with any disclosure order?

In Part 2, I’ll discuss the Criminal Procedure Act’s disclosure provisions in more detail.

Tuesday, 16 November 2010

Agar v Dolheguy & Anor [2010] VSC 506: can't get no satisfaction

Last week, the Supreme Court delivered its decision in Agar v County Court of Victoria [2010] VSC 506, which was an application for judicial review of a County Court case on appeal from the Magistrates' Court.

Mr Agar was accused of speeding, with his alleged speed detected by a Gatsometer MRC System speed camera. (The offence occurred before the current Road Safety (General) Regulations 2009 and Road Safety Road Rules 2009 commenced operation. But despite different regulation numbers, the provisions remain largely the same in their operation.) It seems Mr Agar has a keen interest in speed cameras: according to the Herald-Sun, he operates the Fight Fines website. (Who-is also shows the domain owner as Carl Agar.)

Mr Agar's argument centred largely on the operation of Road Safety (General) Regulations 1999 reg 306, which relevantly provided that a prescribed speed measuring device had to be tested in a prescribed manner:

306 Testing of speed measuring devices

For the purposes of sections 79, 81 and 84(7) of the Act, a speed measuring device is tested in the prescribed manner if the testing officer who tests the device—
(a) is satisfied that the device is in a satisfactory electrical condition and, in particular, that any maintenance carried out on the device has been carried out in a satisfactory manner; and

(b) is satisfied that the device is properly calibrated so that it operates within the following limits of error—

(ii) in the case of an automatic detection device referred to in regulation 302(b) and (c), the frequencies or speeds at which calibration is effected indicate speed readings within a limit of error not greater than or less than 3 kilometres per hour or 3 percent (whichever is greater) of the true speeds determinable from those frequencies or speeds;


(c) records and retains the results of the test, including—
(i) a statement showing the frequencies or speeds at which the calibration was effected and the number of times that each frequency or speed the calibration was effected; and

(ii) the date of the test and the ambient temperature at the time of the test.

Mr Agar focussed on the meaning of ‘satisfied’, and argued the testing officer could not or ought not be ‘satisfied’ the device was tested as required.
[41] Mr Agar advanced similar arguments of construction before me. Those arguments were presented both in detailed written form, and also in oral submissions. I was much assisted by Mr Agar’s oral argument in understanding the essence of his complaints. His arguments may be summarised as follows:
(a) “satisfied” cannot be judged purely by the subjective state of mind on the part of the testing officer — it must at least be subject to some criteria of reasonableness;

(b) “satisfied”, in respect of testing a measuring device’s condition and accuracy, must mean satisfied against some sort of standard: and that standard must at least require that the test be verifiable, reproducible and have accommodated all possible variables that might affect the device’s operation (which, for example, would require testing in the field as well as the laboratory);

(c) the word “satisfied” must be understood to mean “satisfied in accordance with accepted metrological principles” because, since 1959, Australia has been a signatory to the Convention that established the International Organisation of Legal Metrology, and legislation should be construed in accordance with our treaty obligations; and

(d) further, because a “testing officer” as defined in reg 105 includes, amongst the three classes of persons so defined, one class which, by definition, would apply metrological principles, that means that all testing officers are required to do so when carrying out a task under the regulations.

The Court concluded as a matter of statutory construction the Regulations didn't import standards from the International Organisation of Legal Meteorology, or the National Measurement Act 1960 (Cth) or National Measurement Regulations 1999 (Cth).

The Court also rejected an argument that a court must take into account the speedometer tolarance permitted under the Australian Design Rules incorporated in the Road Safety (Vehicle) Regulations 1999, and affirmed that a defence of honest and reasonable mistake of fact isn't available upon a charge of speeding, citing Kearon v Grant [1991] 1 VR 321.

The application for the writ quashing the County Court's decision was refused.

Saturday, 13 November 2010

DPP v Piscopo & DPP v Rukandin : notice required of 3-hour limit for refusals

The Supreme Court delivered its decision in two drink-driving cases yesterday.

The first was DPP v Piscopo [2010] VSC 498. (For all the non-Maltese speakers reading this, Piscopo is pronounced Pis-cŏ-pō — short ‘o’, long ‘o’.) The second was DPP v Rukandin [2010] VSC 499. Both were very similar cases, with very similar reasons for decision.

A police officer charged Mr Piscopo with an offence contrary to Road Safety Act 1986 s 49(1)(e) for refusing to accompany the police to Keilor Downs police station for a breath test as required by s 55(1). A different police officer charged Mr Rukandin under the same offence section for refusing to accompany the police to the Monash Medical centre for medical practitioner to take a blood sample as required by s 55(9A).

For s 49(1)(e) offences, police must tell a motorist there's a 3-hour limit

In both cases, Kyrou J held the police must require an accused motorist to:
  • provide a sample of breath for analysis; and
  • and accompany the police to a place (in these cases, a police station and a hospital) and remain there until the motorist provides a sample of breath and receives a certificate of analysis, or, three hours pass.
This result means the ‘requirement’ relied on by the police from their proformas and guide-cards falls short of what is needed to establish the offence.

Kyrou J considered DPP v Foster [1999] 2 VR 643 in detail, and also Uren v Neale (2009) 196 A Crim R 415. (I discussed Uren v Neale here in June last year.) Once he reviewed those cases in detail, Kyrou J concluded that there are two requirements contained in s 55(1), and that both need be communicated to an accused driver.

In my opinion, for the purposes of s 49(1)(e), s 55(1) sets out two, rather than three, requirements. The first requirement is to furnish a sample of breath. The second requirement is to accompany a police officer to a police station where the sample of breath is to be furnished and to remain there until the sample is furnished and a certificate is given or until three hours have elapsed since the driving, whichever is sooner. The second requirement has both an ‘accompany’ component and a ‘remain’ component. These components, however, are not separate requirements; they are integral parts of a single composite requirement.


My interpretation of s 49(1)(e) is consistent with the proposition that the RS Act contemplates that a motorist who is subject to a ‘requirement made under s 55(1)’ is presented with the choice of compliance or refusal, with the penalty for refusal being the risk that he or she will be convicted of an offence under s 49(1)(e). In conferring such a choice, the Parliament must be taken to have intended that the motorist would be placed in a position to exercise his or her rights in an informed manner. Plainly, a motorist who is required to accompany a police officer to a police station for the purpose of furnishing a sample of breath without being told the maximum period for which he or she will be required to remain at the police station for that purpose would not be in a position to make an informed choice: Piscopo at [50] and [57]; Rukandin at [56] and [60].

Distinguishing previous authority

His Honour went on to consider if previous authority — particularly DPP v Foster [1999] 2 VR 643 and Uren v Neale (2009) 196 A Crim R 415 — precluded the conclusion he drew.

His Honour considered they didn't. Put simply, he reasoned that those cases provided that when a driver did accompany, and did remain at a place and did provide a sample of breath for analysis, it wasn't necessary for the police to recite all things in s 55(1). (And, that is indeed consistent with the Court of Appeal's decision in Foster.)

But, when a driver is accused of refusing a requirement under s 55, then consistent with Uren v Neale, and DPP v Foot (discussed here), DPP v Greelish (2002) 4 VR 220, and Hrysikos v Mansfield (2002) 5 VR 485, they must be told the full extent of their obligations.

By way of contrast, in relation to a charge under s 49(1)(e), the key questions are whether ‘a requirement [was] made under section 55(1)’ and whether the motorist has refused to comply with it. The first question depends on the nature of the requirement that must be made, which, in turn, is governed by the language of s 55(1), the purposes of Part 5 of the RS Act, and the context of s 55(1) and the Act as a whole: Piscopo at [70]; Rukandin at [76].

Detention, and the Charter of Human Rights

An interesting result in these cases was the finding that Road Safety Act s 55(1) is compatible with Charter s 21(3), which provides:
(3) A person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law.

His Honour considered two Court of Appeal decisions rejecting the conclusion that a requirement under Road Safety Act s 55(1) involved detention or arrest: Hrysikos v Mansfield (2002) 5 VR 485 at [2], [5] and [51], and Mastwyk v DPP [2010] VSCA 111 (discussed in my post here).

(I wonder if the in-court argument considered that those cases might be per incuriam in the sense they were decided pre-Charter, and not binding on today's Supreme Court?)

At Piscopo at [82] and Rukandin at [86], the Court also considered a Canadian case, R v Therens, [1985] 1 SCR 613 where Le Dain J said at [53]:
In addition to the case of deprivation of liberty by physical constraint, there is in my opinion a detention within s. 10 of the Charter when a police officer or other agent of the state assumes control over the movement of a person by a demand or direction which may have significant legal consequence and which prevents or impedes access to counsel.

The Court considered itself bound by the Victorian cases (though they're pre-Charter), but noted Hrysikos v Mansfield (2002) 5 VR 485 at [5] and Mastwyk v DPP [2010] VSCA 111 at [50] and [64] both considered that Road Safety Act s 55(1) involved a deprivation of liberty. (I genuinely don't know if there's a distinction between ‘detention’ and ‘deprivation of liberty’. It seems to me like two names for the same dog.)

For that reason, Charter s 21(3) did apply. The Court concluded that if Road Safety Act s 55(1) is interpreted as requiring advice of the different obligations in the section, it is compatible with human rights.
[88] Applying the approach set out in R v Momcilovic (2010) 265 ALR 751 in relation to s 32 of the Charter, I have concluded that the interpretation of s 55(1) of the RS Act which I have adopted is correct and that, so interpreted, s 55(1) is compatible with the human right set out in s 21(3) of the Charter. That interpretation requires that a motorist be informed of the temporal limitation in s 55(1) and thereby ensures that any deprivation of liberty that is involved in complying with a requirement under s 55(1) is in accordance with the procedures that are set out in that section. By being aware of the temporal limitation, a motorist can take steps to ensure that the deprivation of his or her liberty does not exceed the maximum period permitted by s 55(1).

The end result

The appeal was dismissed. Unless the DPP appeals or the legislation is changed, I expect this means the police will need to dust off their pre-Foster and Bajram advice cards for refusal charges.

Tuesday, 9 November 2010


With the Government in caretaker mode, all media announcements are now published on political party websites, rather than the government media site.

An interesting one released today by the ALP is a plan to webcast court cases!

This report in The Age has a snippet from morning radio where Mr Brumby says he hasn't yet spoken to the judiciary about this proposal.

I suspect it might take some fine-tuning before it becomes a reality.

In June I discussed contempt of court made out by filming or photographing inside a court room, albeit without the court's permission. (Presumably, webcasting would only occur with the approval of the presiding judicial officer.) Similarly, publication of a court case can in some instances be a contempt — specifically sub judice (Latin for ‘before a judge’), which is a particular form or sub-category of contempt. But, the publication must usually have ‘a real and definite tendency to prejudice or embarrass pending proceedings’: Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 34. Publication is generally permitted, unless statutory provisions provide otherwise, such as Children, Youth and Families Act 2005 s 534 or, particularly, Judicial Proceedings Reports Act 1958 s 3.

That last provision would result in pretty careful scrutiny by judicial officers of what happens in the courtroom, and what things should or shouldn't be streamed. At least on a practical level, I imagine they might not welcome one more thing to concentrate on when managing their courtrooms.

Sunday, 7 November 2010

Wells v The Queen (No 2): Charter points not for interlocutory appeals

Wells v The Queen (No 2) [2010] VSCA 294 is the second time this culpable driving trial has gone up to the Court of Appeal for interlocutory hearing, and the parties haven't even opened yet.

The Court was highly critical [Ashley and Redlich JJA at 4, Weinberg JA even more so at 47] that the first interlocutory appeal had been brought before the making of all preliminary rulings prior to the commencement of evidence.

4 Subsequent to the previous application being refused, the judge conducting the trial was called upon, before empanelment, to make numerous further rulings as to the admissibility of certain evidence; and further stay applications were made. Given the interruption to the trial which inevitably results if there is an interlocutory appeal, and the strain which is imposed on the limited resources of this Court when such appeals are pursued, the Court expressed its concern to applicant’s counsel that his client did not wait until all issues had been raised with the trial judge, and rulings obtained, before making an application. All of the pre-trial rulings could have been sought and obtained before any interlocutory appeal was undertaken. In another case, it may well be necessary for this Court to consider whether the interests of justice would be served by granting leave where compelling reasons were not present which justified pursuit of pre-trial issues in a fragmented and disruptive way.

The trial judge's rulings admitting evidence from the Crown case were upheld, and the application for a permanent stay dismissed. The Court of Appeal declined to revisit issues of fairness relating to the destruction of the accused's vehicle that had been central to Wells v The Queen (No 1) VSCA 100.

The Court also had little patience with an argument that the Charter of Human Rights and Responsibilities Act 2006 extends the right to a fair trial beyond the existing common law. It wasn't that the Court discounted this was possible. The Court wasn't happy about the way the issue was raised.

Redlich and Ashley JJA [at 38; Weinberg JA 'specifically aligned' himself with the majority on this point, at 48]:

Further in support of his application for a permanent stay, counsel for the applicant submitted that Charter provisions intended to ensure that an accused receives a fair trial, provide greater protection to the accused against an unfair trial than do the common law principles applicable to a stay application. Counsel did not proffer any authority for that proposition to the trial judge, nor did he do so before us. In short, counsel advanced no reason, as distinct from mere assertion, in support of his submission that the Charter confers a right more extensive than the common law right that, so far as possible, the accused be afforded a fair trial.

This Court should generally not be expected to entertain arguments involving the application of the Charter on interlocutory appeals. As counsel for both parties to this application conceded, such arguments will usually involve complex questions. The construction of the provisions of the Charter often require substantial research of international jurisprudence and resulting lengthy consideration. The raising of a Charter issue requires the notification, and the possible involvement, of additional entities (including the Attorney-General); and most often significant delay in the trial below. For these reasons, it can be expected that arguments involving the Charter will rarely be appropriate for determination on an interlocutory appeal. The fragmentation of individual trials should be avoided unless there is a compelling reason to the contrary.

Further, in circumstances where it is not perfectly plain that a fair trial cannot be had, assessment whether there was not in fact a fair trial - by reference to the common law, or to the Charter if and insofar as applicable principles differ - is best undertaken by reference to the trial as a whole. In this case, it was not demonstrated to be perfectly plain that a fair trial could not be had. None of the factors relied upon by the applicant, either individually or in combination, justified a permanent stay of proceedings. The trial judge was right to conclude that he should not certify that his decision to refuse to grant a permanent stay was of sufficient importance to the trial to justify it being determined on an interlocutory appeal.

I'm guessing it will be a while before anyone takes up a Charter point on an interlocutory appeal (and when they do, they better have their powder dry).

Thursday, 4 November 2010

Slips and fixes

The NSW Court of Criminal Appeal recently delivered a decision about a court's power to correct judgments, and more particularly, the reasons for judgments, in R v Jones; R v Hili (No 2) [2010] NSWCCA 195.

I knew courts can amend their judgments in limited circumstances: I didn't realise there's law dealing with amending reasons for judgments. Turns out it's Victorian too, and the NSW Court of Criminal Appeal considered itself bound by it. (On that point, see my post on de facto binding precedent in April this year. Notably, the NSW CCA followed Farah Constructions Pty Ltd v Say-dee Pty Ltd (2007) 230 CLR 89.)

Amending reasons for judgments

‘Judgment’ differs from ‘reasons for judgment’. The substance of reasons for judgment may properly be amended only until judgment or sentence is recorded: R v Jones; R v Hili (No 2) [2010] NSWCCA 195 at [42] – [49]; Fletcher Construction Australia Ltd v Lines MacFarlane Marshall Pty Ltd (2001) 4 VR 28 at [49] – [51].

Errors and other matters such as wording and grammar may be properly changed so long as they do not in substance become different reasons and are done within a reasonable time after judgment.

[49] The extent to which judges of a superior court may properly alter reasons for judgment subsequent to their being given may depend not only on whether the changes are sought to be made before or after judgment has been entered, but also on the nature and extent of the alterations. A litigant is entitled to a decision that is based on reasons that have led the judge to that conclusion. It would obviously impede the proper administration of justice and work unfairness to the parties if the judge could, at a later time, give different reasons for the decision which were crafted after judgment had been pronounced. Thus, the courts limit the rights of a judge to change the reasons, but they do so consistently with the practical requirements of justice. In the case of a superior court of record, judgment is not relevantly finalised until it is entered in the records of the court. Hence, until that occurs, the judge can recall the order and the reasons and make a different order and give different reasons — Smith v Australia and New Zealand Banking Group Ltd, unrep, NSW Court of Appeal, 21 Nov 1996; Sherpa v Anderson, unrep, NSW Supreme Court, 14 Oct 1993; Mulvena v GIO NSW unrep, NSW Court of Appeal, 16 Jun 1992; Re Harrison's Shares Under a Settlement [1955] Ch 260 at 284. But once judgment is perfected the judge cannot, in substance, re-write the given reasons so as to give different reasons for the decision or, in the words of Willmer LJ in Bromley v Bromley (No 2) [1965] P 111 at 114, “put a different complexion on the issue in dispute”. In Nakhla v McCarthy [1978] 1 NZLR 291 Woodhouse J at 296 said that in general a judge cannot alter the reasons so as to modify or change the effect of the judgment once it has been perfected. Similarly, in Bank of Nova Scotia v Province of Nova Scotia (1977) 23 NSR 357 at 357 – 8, the Nova Scotia Court of Appeal held that once judgment is entered, the substance of the reasons cannot be changed; if correction is needed it can only be made by a higher court.

[50] An example of a case where it was held that the judicial officer had impermissibly changed the reasons for the decision is Lam v Beesley (1992) 7 WAR 88. In that case, the magistrate announced the verdict and convicted the defendant for reasons which he gave orally. He then sentenced him and subsequently published “Reasons for Decision” in which he made a finding of fact that was inconsistent with his earlier finding as expressed in his ex tempore reasons. On appeal, Owen J held at 92, 94 – 5, that the two findings could not stand together and that, in the circumstances, the magistrate was not entitled later to formulate reasons which were, in substance, different from those which had been pronounced. His Honour held at 95 that, in the circumstances, the conviction could not stand. More recently, in Todorovic v Moussa [2001] NSWCA 419[62] leave to appeal from the decision of the District Court was granted by the New South Wales Court of Appeal seemingly for the reason that after delivery of an oral judgment the District Court judge inserted in his corrected judgment an additional sentence, namely, “I do not accept [X] as an accurate witness”. It would appear that there was no other reference in the reasons to the acceptability or otherwise of X‘s evidence which in fact was corroborated by other evidence. Furthermore, it was at least arguable that the addition of a broad statement that was unconnected with the rest of the reasons, namely, that the judge did not accept the witness, went beyond what could be done when revising an oral judgment.

[51] It seems, however, that ordinarily, even after judgment has been entered, it is permissible to change the given reasons provided that in substance they do not become different reasons as a result of the changes and provided the alterations are made within a period that is not unduly long in all the circumstances. Thus, it is clear enough, for example, that a judge can alter the transcript of the reasons at any time to remove an error brought about by an administrative act which related to the compiling of the reasons — Nakhla v McCarthy [1978] 1 NZLR 291 at 296; Bromley v Bromley (No 2) [1965] P 111 at 114. In Bar-Mordecai v Rotman [2000] NSWCA 123 it was held that ex tempore reasons can be altered by a judge provided the substance of them is not changed, nor are the orders which they sustain. There is no reason in principle why a like position should not apply to written judgments that have been published. It is common practice for judges to make changes not only to reasons that have been given ex tempore, but also to written reasons and in the latter case to make changes to them between the time they are published and when they become the subject of an authorised report. For example, in Duke of Buccleuch v Inland Revenue Commissioners[1967] 1 AC 506 Lord Reid and Lord Guest did not question the correctness of the action of Sankey J in deleting in the version that was later published in the Law Reports [1918] 2 KB 735 a paragraph of his reasons in Earl of Ellesmere v Inland Revenue Commissioners, which had been published in the Law Times (1918) 119 LT 568. In fact, Lord Reid considered at 527 that Sankey J was wise to have deleted that paragraph, given that his Honour must have had a reservation about its correctness: Fletcher Construction Australia Ltd v Lines MacFarlane Marshall Pty Ltd (2001) 4 VR 28.

(The reference to ‘superior court’ in [49] above doesn't mean that only superior courts can alter their reasons for judgment: the reference to Lam v Beesley in [50] shows that. The context for that comment was that part of the argument in the case was about the requirement for superior courts to provide written reasons for their decisions.)

Amending records of judgments

Sentencing Act 1991 s 104A provides a statutory power to amend clerical errors in sentencing records up to 14 days after judgment.

In addition, all courts have inherent jurisdiction to correct a judgment or order that does not reflect what the court pronounced and may correct their own records, especially if a clerical error is made by an officer recording the judgment or order: R v Saxon [1998] 1 VR 503 at 505 – 8; R v De Zylva (1988) 38 A Crim R 207.

Both this statutory and common law power are sometimes called the “slip rule”.

However, if the entry is consistent with an order announced in court and which the court intended to make, it is not a slip and cannot be amended: Kelly v Von Einem (1995) 84 A Crim R 37.

Sentences ordered without jurisdiction are void and unenforceable: Nollen v Police (2000) 78 SASR 421. In such cases, there is nothing to correct. The Court is not functus officio and is entitled to have the offender re-presented for sentencing: R v Judge Bland; ex parte DPP [1987] VR 225 at 229; R v Brattoli [1971] VR 446 at 447 – 448.

A court may correct a sentencing order before it passes into the record. In the Magistrates’ Court the order passes into the record when recorded in the court register: Magistrates’ Court Act 1989 s 18. In the County and Supreme Courts, this occurs when the judge signs the sentence recorded on the back of the indictment: R v Brattoli [1971] VR 446; R v Judge Bland; ex parte DPP [1987] VR 225; R v Saxon [1998] 1 VR 503 at 505 – 8. This is different from when the accused is found guilty, which occurs either when they enter a plea or the jury delivers its verdict: Criminal Procedure Act 2009 s 253B.

In R v Jones; R v Hili (No 2) [2010] NSWCCA 195 the NSW Court of Criminal Appeal said this of the power to correct judgment in the records of the court:

[33] Thus, there are two quite distinct periods, each of which determines the ability to alter judgments or orders. Prior to the judgment being entered, the circumstances in which a court will be persuaded to entertain further argument (and possibly further evidence) are extremely limited. In relation to such earlier period, the High Court, in Elliott & Blessington applied the civil criteria expressed by the Court in Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 which said, at 303:
“What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases.”
[34] On the other hand, after judgment has been entered there are only three bases upon which a judgment or order may be reopened and amended and they are:
(a) the “slip” rule;

(b) the power to amend the rule where the intention of the Court has not manifested in the judgment; and

(c) the capacity to allow the opening of orders made in chambers...

Why am I posting this on a summary offences blog?

An excellent question! Partly because I reckon it's useful, but more because it's quite common for judicial officers to correct errors in sentencing records — particularly in the Magistrates' Court, where the Court Link computer system sometimes results in temporary triumphs of form over substance.

And also because as the jurisdiction of summary courts has increased in recent years, bringing with it increasingly complex cases, we're seeing more magistrates provide written reasons for their decisions, and I expect this will only increase in the future.

Tuesday, 2 November 2010

Speeding penalties

Below is a table showing the minimum suspension periods for speeding, as provided in Schedule 5 of the Road Safety Act 1986,


Speed Minimum period
Exceed speed limit by 25 kilometres per hour or more, but less than 35 kilometres per hour. 1 month
Exceed speed limit by 35 kilometres per hour or more, but less than 45 kilometres per hour. 6 months
Exceed speed limit by 45 kilometres per hour or more. 12 months
Any speed of 130 kilometres per hour or more that is not covered by item 1, 2 or 3. 1 month

These minimum periods are mandated by s 28(1)(a) of the Road Safety Act 1986.

The Interpretation Of Legislation Act 1984 s 44(6) states,

(6) In an Act or subordinate instrument, unless the contrary intention
expressly appears-

(a) a reference to midnight, in relation to a particular day, shall be construed as a reference to the point of time at which that day ends;

(b) a reference to a month shall be construed as a reference to a calendar month;

(c) a reference, without qualification, to a year shall be construed as a reference to a period of twelve months;

(d) a reference to a financial year shall be construed as a reference to the period of twelve months ending at midnight on 30 June; and

(e) a reference to a calendar year shall be construed as a reference to the period of twelve months ending at midnight on 31 December.

DPP appeal in Kypri going ahead after all

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

edit The grant of leave is available here.

I was wrong in yesterday's post: turns out the DPP was granted leave to appeal, and although no date was set, the case is set down for an expedited hearing.

Although I edited my post, I know many people just read the emails sent out by the Feedburner service, so I figured I should post a mea culpa to update you all.

One thing this does show is how helpful a system would be of reporting appeal applications and showing their status and dates. Although the Courts provide daily lists, they only come out the day before the appeal is heard, which isn't much use to the rest of the legal industry. How about it, court webmasters?

As an aside, thanks to all who emailed to correct me! And rang. And SMSed...

It's good to know our audience is indeed listening!

Monday, 1 November 2010

More on child pornography sentencing principles

The jurisprudence on this complex topic continues to grow, suggesting perhaps appellate courts are not entirely settled on the approach to sentencing for child pornography offences — or perhaps 'just' their proper application.

In DPP (Cth) v Ison [2010] VSCA 286, the Court of Appeal considered again an appeal against a non-immediate custodial sentence. I suspect the reason we're seeing a few of these is because the general principles laid down by the Courts suggest that jail is appropriate, but in some cases it's not warranted. Quite where the bright dividing line falls between immediate jail and sentences in the community isn't always clear.

In Ison, the Court considered there was no error of the type required for a prosecution appeal, and approved the sentencing judge's decision.

The Court referred again to the appropriate principles, taken from DPP v Smith [2010] VSCA 215 at [23] and DPP (Cth) v D'Alessandro [2010] VSCA 60 (discussed in this post).
[23] The precepts which apply to the sentencing of offenders for offences of possessing child pornography are tolerably clear.
1) First, the nature and gravity of the offending ordinarily falls to be determined by reference to the four criteria adumbrated by Johnson J in R v Gent:
(a) The nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted.

(b) The number of images or items possessed.

(c) Whether the material is for the purpose of sale or further distribution.

(d) Whether the offender will profit from the offence.

In the case of child pornography for personal use, the number of children depicted and thereby victims is also regarded as a relevant considerations.

2) Secondly, general deterrence is regarded as the paramount sentencing consideration - because of the public interest in stifling the provision and use of child pornography; and less or limited weight is given to an offender's prior good character because it has been the experience of the courts that such offences are committed frequently by persons otherwise of good character: DPP (Cth) v D'Alessandro [2010] VSCA 60 at [21].

3) Thirdly, a sentence of immediate imprisonment would ordinarily be warranted — R v Jongsma [2004] VSCA 218; (2004) 150 A Crim R 386 at 395; Hill v The State of Western Australia Unreported, WACA, 1 December 2008 at [28] and the cases there cited; R v Booth [2009] NSWCCA 89 at [48]; R v Sykes [2009] QCA 267; DPP v Groube [2010] VSCA 150 at [24] — but it is recognised that there are cases where a sentence which does not involve a period of actual custody is not precluded — R v Gordon; ex parte DPP (C’th) [2009] QCA 209 at [43]; R v Sykes [2009] QCA 267 at [24].

In this case, the offender pleaded guilty at the committal stage, was assessed as not being 'frankly paedophelic' by a psychologist (and it seems the sentencing judge was confident putting some store in that psychologist's views), was socially isolated, gainfully employed, had good prospects for rehabilitation and might suffer significant and rapid mental-state deterioration in custody, and the psychologist considered it imperative he participate in a sex offender program and receive individual psychotherapy.

The Court of Appeal considered at [2] and [29] the sentence was appropriately crafted, achieved the necessary sentencing purposes, and at [30] that it wasn't in the public interest to allow the appeal and jail the offender when he was half-way through his community based order.