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Sunday, 31 October 2010

DPP appeal in Kypri unsuccessful?

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








Edit A colleague rang me this morning to say he hears leave to appeal was granted. That sure don't sound like a 'failure', so it seems my first thoughts below were a bit premature!






The Herald-Sun reports today that the DPP appeal against DPP v Kypri [2010] VSC 400 'failed' on Friday. I guess that means leave to appeal was refused. (I discussed the Supreme Court judgment in Kypri here in September.)



The Supreme Court's lists show the appeal was listed for 9:30 AM last Thursday 28 Oct in the Red Court before Harper and Hansen JJ, but there's no result available online. Yet. Assuming one will be.



It could be that if leave to appeal was refused, there will be no 'judgment', especially given the Court of Appeal previously dealt with the same point when it refused leave to appeal in Clarke v Goodey.



Unless the HUN has it wrong, it seems the police now have to reconsider their model charge-wording for refusal charges.

Saturday, 30 October 2010

Penalties for drink-driving

Magistrates don't usually go beyond the statutory minimum periods of licence disqualification for drink-driving offences on a plea of guilty. This makes penalties for drink-driving more consistent and predictable than other sentences, unless the circumstances are particularly serious. But it isn't easy to work out if, and for how long, a driver can expect to be be put off the road when their reading is low.

For offences under s 49(1)(b), (f) and (g) the minimum period of licence disqualification can be found in Schedule 1, at the back of the Road Safety Act 1986.

Here's a simplified version of that table:

MINIMUM DISQUALIFICATION PERIODS

















Reading First offence Subsequent offence
less than .07 6 months 12 months
.07 or more but less than .08 6 months 14 months
.08 or more but less than .09 6 months 16 months
.09 or more but less than .10 6 months 18 months
.10 or more but less than .11 10 months 20 months
.11 or more but less than .12 11 months 22 months
.12 or more but less than .13 12 months 24 months
.13 or more but less than .14 13 months 26 months
.14 or more but less than .15 14 months 28 months
.15 or more but less than .16 15 months 30 months
.16 or more but less than .17 16 months 32 months
.17 or more but less than .18 17 months 34 months
.18 or more but less than .19 18 months 36 months
.19 or more but less than .20 19 months 38 months
.20 or more but less than .21 20 months 40 months
.21 or more but less than .22 21 months 42 months
.22 or more but less than .23 22 months 44 months
.23 or more but less than .24 23 months 46 months
.24 or more24 months 48 months


For most drivers where an alcohol concentration reading has been recorded this table shows how long their minimum disqualification period will be.

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.

The table says that a reading below .07 is punishable by a minimum 6 months disqualification as a first offence and 12 months for a subsequent offence, but that's not always true. Sometimes it's necessary to look at s 50 for the exceptions to the general rule.



.00 Drivers

Under s 52 a driver must have an alcohol concentration of .00% when behind the wheel if they are any of the following:

    * not the holder of a full licence (except where the they have merely failed to renew an otherwise valid Victorian licence); * driving a large vehicle; * taxi drivers; * driving instructors; * a probationary driver; * a driver who, in the last 3 years, has had their licence restored to them after previously losing it for drink-driving.

(A driver who has had an alcohol interlock fitted to their car by order of the Court is required to remain .00% until the interlock is allowed to be taken off.)

If a first-time offender goes before the Court for a reading below .05% (because they are a 'P' plater, driving instructor, etc) the Court may disqualify them from obtaining a licence for up to 6 months, but isn't obliged to. If a first-time offender has a reading below .07 and is aged 26 or over the Court is not required to cancel a driver licence or permit or disqualify the offender from obtaining one unless it proceeds to conviction: s 50(1AB)(b).

If not a first-time offender, that discretion isn't available and the Court must disqualify the driver's licence in accordance with Schedule 1 unless the reading was below .05 and the Court decides not to proceed to conviction: s 50(1AB)(1). (This is available to drivers under 26).

Trying to persuade a magistrate not to award a conviction for a second drink-driving offence can sometimes be difficult, but is not impossible.

Demerit points

That's not the end of the story. Drink-driving with a low reading is a relevant offence carrying 10 demerit points. These are applied whether an infringement notice is paid or the charge is proved at Court (but only if the licence is not cancelled.)

Drivers who exceed their demerit points are served a notice by VicRoads. This notice requires a driver to accept the suspension of their licence, or to elect to drive for a year with only a single point, risking a loss of licence for a longer period. Section 25(3) of the Road Safety Act 1986 states,

(3) The Corporation must serve a notice (a demerit point option notice)
containing the prescribed particulars on-

(a) the holder of a full driver licence if he or she incurs 12 or more demerit points within any 3 year period; and

(b) the holder of a learner permit or probationary driver licence if he or she incurs-

(i) 5 or more demerit points within any 1 year period; or

(ii) 12 or more demerit points within any 3 year period.

Since probationary and learner drivers only have 5 demerit points to lose they will always receive a demerit point option notice. For drivers who have already taken their option a suspension of their licence is unavoidable.

Thursday, 28 October 2010

CW v The Queen [2010] VSCA 288: Court of Appeal rules on tests for coincidence evidence

Edit: In R v Ceissman [2010] NSWCCA 50, Latham J sets out the approach taken to coincidence evidence in NSW.








CW v The Queen [2010] VSCA 288 went to the Court of Appeal as an interlocutory appeal from the trial judge's ruling, under s 295 of the Criminal Procedure Act 2009.



The accused was charged with setting fires in three commercial properties. The fires occurred on the same night, in the same suburb. The prosecution alleged the accused had issues with each of the torched businesses.



Permission was granted by the trial judge to allow the evidence for each count of arson to be used cross-admissibly in deciding the other two. If the jury members were satisfied the accused started one of the fires, they could use that to draw the inference that he'd caused the others. They could (if they wanted to) conclude that it was highly improbable that different people might have lit each one.



This was a coincidence ruling under s 98. These are rare compared with tendency rulings under s 97. Unlike tendency cases which typically rely on a striking similarity or calling card feature, there was no suggestion here that the way each fire was lit made it uniquely identifiable.



The prosecution relied on the circle of persons reasoning from R v Perry (1982) 150 CLR 580. (Perry was the notorious case where the accused's husband was poisoned by arsenic, and her first husband and brother had also mysteriously died of arsenic poisoning in separate incidents). As in Perry, the prosecution asserted it was innately improbable that three persons known to the accused would fall victim to the same kind of crime in a short space of time, unless the accused had committed all of them.



Maxwell P, Buchanan and Neave JJA [at 19]:



The argument for the applicant was that the present case was distinguishable on the facts, in that the class of business associates was much wider, and more diffuse, than the groups of persons (characterised as ‘small family circles’) under consideration in the poisoning cases. Hence, it was contended, the mere fact that all three victims of these fires were members of that class did not give the evidence any particular probative force. We disagree. Not only was each victim a person with whom the applicant had had business dealings, but he was in a current dispute with each of them. In the circumstances, the judge was entitled to conclude, as would the jury as the tribunal of fact, that (in the language of Perry) it would be contrary to ordinary experience for this series of fires, affecting these particular victims, to have occurred by coincidence.




The Court rejected the need for strikingly similar features [at 21]:



Counsel for the applicant contended, further, that it was necessary for the prosecution to show some ‘striking similarity’ in the circumstances, before it could be concluded that the evidence had significant probative value. He relied for this purpose on statements in the authorities that, where what was in issue was not whether a crime had been committed but the identity of the perpetrator, a stringent requirement of similarity should be applied. With respect, this submission is misconceived. As we have already explained, the basis of the coincidence reasoning in a case such as the present is quite different. It relies on the existence of a relationship which uniquely links the accused person with two or more victims of similar crimes. There is no separate requirement of ‘striking similarity’.



As mentioned earlier, the prosecution did rely on certain similarities in the fire events, as follows:
* each fire was deliberately lit by spreading an accelerant;

* each fire was lit in commercial premises;

* each fire was started at or near the entrance door to the premises;

* all of the fires occurred on the same evening, within a four hour period; and

* all of the fires were in the same suburb.

The argument for the applicant was that the use of an accelerant was ‘the stock-in-trade of the arsonist’ and that, likewise, there was nothing distinctive about fires being lit at the front door of commercial premises. We accept that, by themselves, these features might be insufficient to give the evidence significant probative value. The close proximity in time is of more significance, at least in pointing to the improbability of there having been more than one arsonist active on this particular night. But nothing further need be said on this aspect since, as we have said, what gave the evidence its significant probative value was the link between the accused and each intended victim.




The Court also found that the evidence passed the s 101 test, describing the trial judge's finding [at 26] as 'unimpeachable'. The Court did say that applying s 101 could sometimes put the test as high as the no rational explanation test from R v Pfennig (1995) 182 CLR 461, but adopted Spigelman CJ's reasoning in R v Ellis (2003) 58 NSWLR 700 in finding that the no rational explanation test isn't generally appropriate under the Evidence Act 2008.

Monday, 25 October 2010

As you were: no adjournments pending Momcilovic's appeal?

I mentioned a few weeks back that the High Court granted leave to appeal in Momcilovic's case.

I know a few cases have been adjourned pending the High Court's judgment, but there might not be too many more.

In S C v The Queen [2010] VSCA 271 the accused was charged with trafficking a drug of dependence. The prosecution relied on s 5 of the Drugs, Poisons and Controlled Substances Act — one (but not the only) issue in Momcilovic's case.

The accused applied for his trial to be adjourned pending the High Court appeal. (The general power to adjourn is s 331 of the Criminal Procedure Act 2009.) The trial judge refused the application. The accused appealed to the Court of Appeal under s 295 of the Criminal Procedure Act.

The Court of Appeal noted that the decision to grant an adjournment is a discretionary one, and as with all discretionary decisions, an appellate court won't intervene in that decision unless plainly wrong. Cases like House v The King (1936) 55 CLR 499 are probably relevant, but there are a number of discrete authorities on the point regarding adjournments. The general gist of them is that the Court must balance the interests and rights of the accused with the interests of justice — which might not be the same: Brimbank Automotive Pty Ltd v Murphy [2009] VSC 26 at [20]; Champion v Richardson (2003) 40 MVR 529 at 539; R v Cox [1960] VR 665 at 667.

Though it seemed not to get a mention in this case, presumably Charter s 25(2)(c) also tends against the adjournment, providing that an accused must be tried without unreasonable delay.

The Court of Appeal considered there was no error in the trial judge's decision, and so refused the appeal.

Because it was an appeal of a discretionary decision, this decision doesn't mean that adjournment applications must be refused in all cases.

But...the Court did tell us what its thoughts are about adjournments generally, at [10] – [11]:
[10] The power to grant an adjournment being discretionary, this Court would not intervene unless appellable error was demonstrated. With respect, we think that, far from disclosing error, her Honour’s reasoning was entirely correct. The law in Victoria in relation to s 5 remains unchanged. The criminal courts of Victoria will continue to apply the established interpretation of s 5 unless and until the High Court declares that, whether by application of the Charter or otherwise, that interpretation is wrong.

[11] The possibility that the High Court might reach a different conclusion on the interpretation of s 5 of the Act, whether by application of the Charter or otherwise, is simply that: a possibility. The position might have been different had there been some indication from one or other member of the High Court bench on the application for special leave that the established view of s 5 appeared to be demonstrably wrong. There was no such indication. Leaving that exceptional circumstance aside, no guidance can be obtained from the discussion on special leave as to the likely outcome on the appeal.

I think it's a pretty sure bet many prosecutors will make use of this to oppose adjournment applications pending Momcilovic's case.

However, I daresay those accused of offences relying on s 5 will still apply for adjournments, and there are several reason why they might.

First, there's the practical concern of conviction and penalty and the inability to unscramble the omelette should the High Court decide Momcilovic was wrong.

Second, there's the argument that following an adjournment — subject to such restrictions as necessary on bail or in custody — if Momcilovic was right, there's no real impediment to the Court appropriately dispensing justice, albeit later than it otherwise would have.

Third, and perhaps most importantly, there are the criteria governing High Court appeals, found in s 35A of the Judiciary Act 1903:
  • if a question of law:
    • is of public importance, because of its general application or otherwise; or
    • that the High Court must resolve differences of opinion between different courts, or within the one court, about the state of the law; and
  • if the interests of the administration of justice generally or particularly require the High Court's consideration.

Reading the leave application transcripts, it seems all those boxes are ticked. Crennan J even mentions there might be Constitutional problems with the declaration of inconsistency and Kable arguments, even though none of the parties have raised them. (Yet.)

It seems arguable at least that if the High Court considers the issues are important enough for its attention, and that — on the Charter point at least — there are different opinions to be reconciled, there must be some doubt about the current state of the law justifying a wait-and-see approach subject to adequate safeguards.

Mind you, it'll be a courageous judicial officer who doesn't pay close heed to what the Court of Appeal said! Expect to hear some more argument on this in the months to come!

Sunday, 24 October 2010

Giretti trafficking

Giretti v R (1986) 24 A Crim R 112 authorises the Crown's practice of alleging trafficking in illicit drugs 'between dates'. A count of trafficking which alleges one offence on a Giretti basis is not bad for duplicity even though multiple acts (each possibly making out its own offence) are sought to be proved.



A very useful discussion of the case can be found in R v Dent [2002] QCA 247 between 14 and 20 (with further comments about sentencing at 25).



The Facts in Giretti



Mr and Mrs Giretti owned a massage parlour in Geelong and over the course of a year sold heroin to their employees, occasionally giving them payment for their services in heroin.



The Girettis appealed after being convicted of trafficking by a jury. One ground advanced on the appeal was that the charge was duplicitous as it clearly revealed more discrete offences than charged.



The Law



On first blush it would seem obvious that the charges would be considered invalid, at least in need of particularisation. The evidence at trial disclosed (as the Crown intended it to) numerous instances where transactions of heroin took place. The appellants relied on the case of R v Trotter (1982) 7 A Crim R 8, which discussed the principle of charges which were void for uncertainty.



The Court (Crockett, Gray and Ormiston JJ) determined that trafficking drugs can be alleged as either a single event, or can be a continuing offence. Where alleged as a continuing offence there may be a number of discrete offences which go towards establishing the course of conduct. Crockett and Gray JJ formed the majority, dismissing the Girettis' appeal. Ormiston J dissented, opining that the conviction ought to have been quashed based on inadequate jury directions.



Crockett J first discussed the single transaction analysis, a way of bundling together criminal acts closely related in time and geography [at 22]:



The cases show that in certain fact situations drafting a presentment so as to accommodate to these requirements can prove difficult. In Ballysingh the indictment charged the appellant in one count with theft of four items which had each been stolen from a different section of a large department store. But for counsel's consents having been given to the charges being so pleaded, the Court of Criminal Appeal considered it to be a case for individual counts for each of the four articles stolen. This conclusion would, however, appear not to be correct in the light of later authority. Otherwise where would the analysis end? Is a person who picks up and takes away half a dozen tomatoes from a shop display case to be charged with six counts of theft? The Divisional Court in Jemmison v Priddle [1972] 1 QB 489 held that it was permissible to allege in an information one "activity" even though that activity involved more than one act each of which could be labelled illegal. In that case it was said that, as the matters complained of occurred within a few seconds and in the same geographical location, they were components of a single activity. In DPP v Merriman [1973] AC 584 Lord Morris at p.593 approved of the course adopted in Jemmison's Case. He thought that the difficult questions that might arise "are best answered by applying common sense and by deciding what is fair in the circumstances". In the same case Lord Diplock said (at p.607) that where -

"a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment."




In Giretti, it was clear that this test was not satisfied. The acts comprising the trafficking occurred on different days in different places, involving different participants.



His Honour continued,



But an offence may be "continuous" in a quite different and less "constructive" way. It is a submission by the respondent that counts 2, 3 and 5 deal with such offences that brings me to the second matter to which consideration of ground 3 requires attention to be given. That question is whether the offence of trafficking (other than as it is statutorily defined) is by its very nature a continuing offence. The definition of the expression in the current Act certainly refers only to single acts. It is, however, an inclusive definition. There is nothing in its terms to preclude the adoption of the construction for which the respondent contends.



In my opinion the term "traffick" does connote a continuing activity. The Shorter Oxford Dictionary includes among the meanings of the verb - "To carry on or trade in, to bring and sell; to deal in; often with sinister implication." Such a construction is consistent with such observations as there are in the reported cases. The tenor of the judgment of Anderson, J in Falconer v Pedersen [1974] VR 185 (a decision often referred to with approval by appellate courts) is that it is immaterial for the purpose of proof of the offence whether the defendant's conduct was or was not an isolated act. His Honour pointed out that the expression "traffic" was not to be given a limited meaning. See, too, R v Holman [1982] VR 471.




Gray J reached the same conclusion by taking a plain, literal interpretation to the wording of the legislation. After first describing the meaning of traffick at some length, he queried [at 25],



Are there any practical objections to such a broad definition? No doubt as a matter of form counts relating to isolated or finite events are easier to draft, and certainly they describe easier concepts for a jury to grasp. "Continuous" offences are, however, well known to the law, although such learning as exists relates more to summary offences and the problems of continuing penalties: cf. R v Industrial Appeals Court ex parte Barelli's Bakeries Pty Ltd (1965) VR 615 and R v Industrial Appeals Court ex parte Circle Realty Pty Ltd (1980) VR 459. Nevertheless, they are by no means unknown as indictable offences, especially in cases of conspiracy, public nuisance and certain statutory offences; cf DPP v Doot [1973] AC 807 and R v G, F, S & W [1974] 1 NSWLR 31 at pp. 43-44. Nor is it of consequence that the continuing offence may in fact consist of a series of activities or transactions which can each be described in themselves as acts of trafficking, so long as the jury is properly directed as to the significance of the individual transactions alleged to evidence the continuing offence.



Crockett, J has referred to a number of the cases where a series of acts have been held to be a single activity, transaction or enterprise, whether carried out over a period of a few minutes or many days: see, e.g., Jemmison v Priddle (1972) 1 QB 489, DPP v Merriman (1973) AC 584 at pp. 593, 597 and R v Wilson (1979) 69 Crim App R 86. These cases, which involved claims of what has been called "hidden" duplicity, are examined in detail at paragraphs 1-57 to 1-62 of Archbold, Criminal Pleading and Practice (43rd ed.).



Without wishing to deny the possibility of a single count covering a series of sales or deliveries of drugs at the same place within the course of, say, an hour, it is clear that in the present case the activities alleged against the applicants over the period stated in count 2 were many and varied and could not be said to form part of a single activity or transaction or, possibly, enterprise within the meaning of those cases. It is argued on behalf of the respondent that there was indeed a continuous enterprise in the present case, but that was clearly an enterprise in the sense of a continuing trade of dealing or trafficking in drugs, "continuing" not in the sense that the activities took place at all times throughout the period, but in the sense that they took place with the necessary degree of regularity and system to amount to a business or trade in heroin.




That argument was accepted by the majority and the appeal was dismissed.



Analysis



The Court in Giretti found that trafficking could be made out based on a single transaction (or even no transaction, such as preparation for sale) but could equally belong to the class of continuous offences. Common examples include consorting, stalking or persistent sexual abuse of a child.



(The late David Ross QC's 2005 article in the Deakin Law Review, from which these examples are drawn, is an authoritative discussion of continuing offences.)



The Court of Appeal in Meng Kok Te v R (1997) 97 A Crim R 386 rejected an appeal ground claiming that the High Court had disapproved of Giretti in Walsh v Tattersall (1996) 188 CLR 77. (Giretti was referred to in Walsh v Tattersall, but not disapproved, and the nature of the charges alleged in each case was distinguished). Giretti-style presentments have been tacitly approved by the Court of Appeal since. In Djukic v The Queen [2010] VSCA 65 the Court strongly advised that plea agreements on Giretti-trafficking should be put in writing to avoid later disputes about the scale of the offending.



Later cases have expanded the principle to hand the prosecution further forensic advantages. It's permissible for the prosecution to charge a so-called Giretti count and also lay individual counts of trafficking which comprise the alleged course of trafficking. (Section 51 of the Interpretation of Legislation Act prevents both the individual and the 'umbrella count' being found proven.) The Giretti count may still succeed even if some of the individual acts are not proved.



Trafficking in other kinds of drugs is admissible toward the inference that trafficking in a particular kind of drug took place: R v Komljenovic [2006] VSCA 136. A disparity between dates alleged and evidence given will not necessarily lead to injustice: R v Lee [1995] VSC 121.

Friday, 22 October 2010

Civil Procedure Act 2010

Edit: The new government is removing the requirement that parties attend mandatory pre-litigation proceedings for debt recovery and other matters. The amendments are contained in the Civil Procedure and Legal Profession Amendment Bill 2011 currently before the parliament.



The Explanatory Memorandum says,



The Bill will deliver on the Government's commitment to end mandatory
pre-litigation procedures for debt recovery and other inappropriate proceedings by removing the pre-litigation requirements from the Civil Procedure Act 2010.



The pre-litigation requirements, which will apply to proceedings which commence on or after 1 July 2011, would add unnecessarily to the costs of resolving a dispute and make it more difficult for disputants to access the courts. In particular, the pre-litigation requirements would provide an opportunity for disputants who were not prepared to negotiate in good faith to delay a settlement or decision and thereby prevent or delay disputants with legitimate claims from gaining access to the courts.



The courts will retain their power to consider a party's use of mandatory or
voluntary pre-litigation processes. Further, the Bill will allow rules of court
to be made for or with respect to any mandatory or voluntary pre-litigation
processes in relation to specified civil proceedings or specified classes of
civil proceeding.










I said last week that we were finished with Legislation Watch for the year.



While that's true, I do want to briefly mention the existence of the Civil Procedure Act 2010. It received Assent in August and its provisions come into effect on the 1st January next year, when QCIC will be on summer hiatus.



Here is the Explanatory Memorandum, the Second Reading and the Statement of Compatibility.



The Act aims to standardise practice across courts of civil jurisdiction. But the operation of the Magistrates', County and Supreme Courts is never going to be uniform, which makes the Rules for each court so important. The devil (as always) will be in the details.



Most of the Act's provisions are aspirational in nature, reinforcing the obligation of parties and practitioners to make genuine efforts to resolve disputes. In the wake of Aon Risk Services v ANU, this isn't a significant change. Few of the new sections place new obligations on the parties. There are a few common-sense relaxations of existing rules.



Most important for present purposes is identifying what the Act does not apply to.



Section 4 states,



4 Application of this Act



(1) Subject to subsections (2) and (3), this Act applies to all civil proceedings.



(2) This Act does not apply to proceedings under the following Acts—



(a) the Family Violence Protection Act 2008;

(b) the Stalking Intervention Orders Act 2008;

(c) the Confiscation Act 1997;

(d) the Proceeds of Crime Act 1987 of the Commonwealth and the Proceeds of Crime Act 2002 of the Commonwealth;

(e) the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997;

(f) the Children, Youth and Families Act 2005;

(g) the Coroners Act 2008;

(h) the Victims of Crime Assistance Act 1996;

(i) the Sentencing Act 1991.




In short, even where criminal proceedings have a civil character to them, the Civil Procedure Act's overarching principles will not apply.



The most obvious omission is reference to the Road Safety Act 1986. This is particularly relevant given the changes to the hoon laws discussed here, which will see many more applications by the police for seizure and forfeiture of people's vehicles. (Perhaps it will be a prescribed Act under the Regulations).

Friday, 15 October 2010

Early Neutral Evaluation

Chief Magistrates' Direction No 4 of 2010 was published this week.



It introduces a pilot ADR programme to run at Melbourne Magistrates' Court from the start of next month. It's exclusively for civil claims. The findings of the magistrate who presides over the hearing will not be binding on the parties. The name that has been given to the pilot is Early Neutral Evaluation (ENE).



Something similar has been running in the Supreme Court for a year. Non-judicial ADR (referred to as court-annexed mediation) has been going on at some sittings of the Magistrates' Court for a couple of years now.



How much difference there will be between the running of an ENE and a regular arbitration hearing will probably depend on the individual magistrate. The hearing will take place in a courtroom but it's not expected that oral evidence will be received in most cases.



The direction provides at point 9(3) that the hearing will not be sound-recorded. (It's probable that the hearing would be privileged as an attempt at settlement negotiation under s 131 Evidence Act 2008 anyway: see, for example, Wilson and Anor & Roberts and Anor (No. 2) [2010] FamCA 734.)

Wednesday, 13 October 2010

Legislation Watch: Sentencing Amendment Bill 2010

This is the final Legislation Watch for 2010.



The Sentencing Amendment Bill 2010 was introduced and passed last week. It had looked like the bill would be put before Parliament and prorogued like the Crimes Amendment (Forensic Procedures) Bill 2010. To the surprise of many (including, it seems, in the parliament), the legislation was put to a vote in the final week of sitting before the government goes into caretaker mode.



The Second Reading speech is here. The Explanatory Memorandum is here. The Statement of Compatibility is here.



Mandatory imprisonment for s 30 offences



The contents of the bill had been foreshadowed for a long time. Driving while suspended or disqualified was the most common principal proven offence in the Magistrates' Court in 2007-2008 despite the mandatory 'sentence of imprisonment' for a second or subsequent offence. When talk of ditching suspended sentences entirely was popular there was some concern that magistrates would be left with no other option but to sentence mums and dads to immediate imprisonment for offences under s 30.



This legislation represents a halfway point. It doesn't eliminate suspended sentences (only for serious offences) but does amend the Road Safety Act to remove the mandatory imprisonment for a second offence.



Serious offences



Serious offences are listed in s 3 of the Sentencing Act 1991. I believe the only one commonly dealt with in the Magistrates' Court is the offence under s 20 Crimes Act 1958 (threats to kill).



Courts will no longer be permitted to suspend sentences of imprisonment for these selected offences.



Intensive Correction Management Orders (ICMOs)



These new orders replace Intensive Correction Orders and Combined Custody and Treatment Orders (CCTOs). Unlike ICOs these orders are not burdened with the fiction of being a term of imprisonment. ICMOs may be awarded with or without conviction. There are two types of ICMO.



The Explanatory Memorandum explains the difference between the two.


To be eligible for a (General) order,



• An offender must be convicted or found guilty of an offence punishable by imprisonment.

• The court must be satisfied that if the ICMO was not available, it would consider sentencing the offender to a term of imprisonment.

• The court must have received a pre-sentence report.

• The offender must also agree to comply with the order

These prerequisites are intended to provide that an ICMO (General) is an order one-step below imprisonment in the sentencing hierarchy and is a community based sentencing option. Ordinarily the sentence would apply to offences which are in their nature and/or gravity medium to high or high in seriousness and to an offender at risk of further offending.



New section 35C establishes the ICMO (Drug and Alcohol). This order has the same prerequisites as the ICMO (General). However, an ICMO (Drug and Alcohol) is aimed at a different type of offender and circumstances of offending. The additional pre-requisites for a court to make this order are—
• The offender must be dependent on or abuse drugs and/or alcohol.

• The dependency or abuse must have contributed to the offending.

• The offender must be a risk of re-offending.

Drug or alcohol "abuse" includes not only repeated use but also "binge" use. "Binge use" is large consumption of drugs or alcohol from time to time. Accordingly, an additional prerequisite for this order is that a court has received a drug and alcohol assessment report in addition to receiving a pre-sentence report.




Not all IMCOs will require community work. Where community work is required, an IMCO made in the Magistrates' Court has a maximum of 500 hours unpaid community work over 2 years, and an IMCO in the Supreme Court and County Court has a maximum of 600 hours unpaid community work over 3 years.



Community Based Orders



Under the new regime a Community Based Order made in the Magistrates' Court, County Court or Supreme Court has a maximum of 300 hours unpaid community work over 2 years. Under the old system orders of 500 hours duration were possible but, as discussed here a couple of weeks ago, orders of more than 200 hours are rare.



The Bill has a default commencement of 1 January 2012, but 1 July 2011 was suggested as a likely start date during the Second Reading.

Minimum periods of disqualification for drug-driving offences

Edit: The amending legislation has now received assent and been proclaimed in Victoria Government Gazette G42, dated 21 October 2010. Most of the Act came in on 1 November 2010.



Sections 14 and 21 (which are discussed below) come into effect on 12 December 2010.








Most people would probably be surprised to learn that there's no minimum period off the road for people caught committing specific drug-driving offences under the Road Safety Act 1986. (Section 49(1)(a) has been punishable by a mandatory minimum disqualification of two years for a long time).



The other drug offences don't have mandatory minimums at the moment, but will once the Road Legislation Miscellaneous Amendments Bill 2010 commences.
The Explanatory Memorandum can be found here. The Second Reading is here, and the Statement of Compatibility is here.



The EM explains that clause 14,



amends section 50(1E) of the Road Safety Act 1986 by creating minimum periods for licence disqualification for certain drug-driving offences. Currently a court may, on convicting or finding a person guilty of a drug-driving offence under section 49(1)(bb), (h) or (i), cancel a driver licence or permit and disqualify the driver from obtaining one for such period as the court thinks fit, being not more than 6 months for a first offence and not more than 12 months for a subsequent offence. Under section 50(1E) as amended by clause 15 a court must, on convicting or finding a person guilty of a drug-driving offence under section 49(1)(bb), (h) or (i), cancel a driver licence or permit and disqualify the driver from obtaining one for a period not less than 3 months for a first offence and not less than 6 months for a subsequent offence. There will be no maximum periods of disqualification.




and at clause 15,



amends section 51(1A) of the Road Safety Act 1986 by including a reference to the offence under section 49(1)(eb). The purpose of this amendment is to make persons who commit a first offence under section 49(1)(eb) of refusing to provide a sample of oral fluid in a roadside drug-driving test in accordance with section 55D or 55E, or refusing to comply with any other requirement made under one of those sections, liable to an immediate licence suspension. Under section 51(1A) a person may be given a notice by a police member informing the accused that his or her licence or permit is immediately suspended until the charge has been determined. The accused will also be required to immediately surrender his or her licence or permit document to the police member who gave the notice.




The Bill passed the Council on 7/10/10 but hasn't received Assent yet. If not proclaimed earlier it comes into operation on 1 August 2011.

Monday, 11 October 2010

Legislation Watch: Road Safety Amendment (Hoon Driving) Act 2010

Edit: Extreme care needs to be taken when reading this post as it was written (and apart this bit, it has not been modified) before the introduction of the Road Safety Amendment (Hoon Driving and Other Matters) Bill 2011.



To see how we think the new legislation might operate see this more recent post, but always read the Act for yourself.











The last session of Parliament saw the introduction of two principal amending acts for the Road Safety Act 1986. The Road Safety Amendment (Hoon Driving) Act 2010 passed last week. The substantive parts of the Act will come into effect on 1 July 2011 unless proclaimed earlier.



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


Care needs to be taken when reading the EM. Amendments to impoundment periods (from 7 days to 14 days for immediate impoundment, and 28 days to 45 days for court-imposed impoundment) were circulated and adopted after the Explanatory Memorandum was published.



Provisions increase the number of offences covered under the hoon system (to include offences like drink-driving and unlicensed driving), extend the immediate impoundment period, create mandatory impoundment periods the court must impose (on the application of the police, unless very limited circumstances apply), increase penalties for speeding and licensing offences, and require operators of vehicles to answer questions about the location of their vehicle.




The current system



Relevant offences currently include:







A full list of current relevant offences is found at s 84C.



Now, a first offence may result in the impoundment or immobilisation of a vehicle for 48 hours. A second offence may, in addition to an initial 48 hour impoundment or immobilisation, result in a further court imposed impoundment or immobilisation sanction of up to three months in total. A third offence can, in addition to an initial 48 hour sanction, result in the court ordering the forfeiture of the vehicle.



The new system



After the enactment of the Road Safety Amendment (Hoon Driving) Act 2010 the following changes to the system will be made:



Lengthening the immediate impoundment period



The immediate impoundment period for vehicles is being increased from 48 hours to 14 days for all relevant offences.



A 2-tiered system



Relevant offences will be grouped into two tiers.



tier 1 relevant offence means—



(a) a second or subsequent offence against section 18(1) other than an offence to which section 18(2) applies;



(b) a second or subsequent offence against section 30(1);



(c) a second or subsequent offence against section 49(1)(b), (f) or (g)
in circumstances where the concentration of alcohol—



(i) present in the blood of the person was 0·10 grams or
more per 100 millilitres of blood; or



(ii) present in the breath of the person was 0·10 grams or more per 210 litres of
exhaled air;




(d) a second or subsequent offence against
section 49(1)(bb), (h) or (i);



(e) an offence against section 65B or rule 20 of the Road Rules in circumstances where the motor vehicle is driven—



(i) at 70 kilometres per hour or more over the applicable
speed limit; or



(ii) if the applicable speed limit is 110 kilometres per hour, at a speed of 170 kilometres per hour or more;




(f) an offence against section 64(1) in circumstances where the motor vehicle is driven—



(i) at 70 kilometres per hour or more over the applicable speed limit; or



(ii) if the applicable speed limit is 110 kilometres per hour, at a speed of 170 kilometres per hour or more;




And the second category of offences,



tier 2 relevant offence means—



(a) an offence against section 64(1)



(i) in circumstances involving improper use of a motor vehicle; or



(ii) in circumstances where a motor vehicle is driven at 45 kilometres per hour or
more over the applicable speed limit but under 70 kilometres per hour over that limit; or



(iii) in circumstances where a motor vehicle is driven, if the applicable speed limit is 110 kilometres per hour, at a speed of 145 kilometres per hour or more but under 170 kilometres per hour;




(b) an offence against section 64A(1);



(c) an offence against section 65(1) in circumstances involving improper use of a
motor vehicle;



(d) an offence against section 65A(1);



(e) an offence against section 68(1) or (2);



(f) an offence against section 68B;



(g) an offence against section 65B or rule 20 of the Road Rules in circumstances where the motor vehicle is driven—



(i) at 45 kilometres per hour or more over the applicable speed limit but under 70 kilometres per hour over that limit; or



(ii) if the applicable speed limit is 110 kilometres per hour, at a speed of 145 kilometres per hour or more but under 170 kilometres per hour;




(h) an offence against rule 291 of the Road Rules in circumstances involving improper use of a motor vehicle;



(i) an offence against rule 297 of the Road Rules in circumstances involving improper use of motor vehicle.




Mandatory impoundment



In all cases where a person appears before the court for an offence for which a three-month impoundment or immobilisation sanction may be imposed, the court will be required, upon a finding of guilt and upon the application of the police, to impose a vehicle impoundment or immobilisation sanction for at least 45 days. There are exceptions, but the Court's discretion to refuse applications will be narrower than under the earlier provisions.



Extreme Speeding Offences



Where an offence of exceeding the speed limit by 70 km/h or more (or 170 km/h in an 110 km/h zone) is detected, the driver may be liable to an application to impound the vehicle for three months on the first such offence, as well as the immediate 14-day impoundment. For a second such offence, application for forfeiture of the vehicle may be made.



Driving while suspended or disqualified



Offences under s 30 were treated less severely than other relevant offences. Under the amendments, a second offence may result in up to three months vehicle impoundment or immobilisation and a third offence may result in forfeiture of the vehicle. The offence of driving unlicensed for a second or subsequent time will also become subject to the vehicle impoundment scheme.



Compelling questioning provisions



Adults may be questioned about the location of vehicles subject to the hoon provisions, and refusal or a failure to provide relevant information may be an offence.



The Statement of Compatibility explains,



The proposed measure has become necessary because police have repeatedly been frustrated by offenders who deliberately conceal the location of relevant vehicles to prevent the imposition of immobilisation, impoundment and forfeiture sanctions. There are no less restrictive means of achieving the stated purpose.




This provision will probably be subject to challenge in future. Its potential for abuse seems clear.



Conclusion



The addition of offences under s 18 and s 30 needs to be read in conjunction with the provisions of the Sentencing Amendment Act 2010 that remove mandatory imprisonment for a second offence of driving while suspended or disqualified (of which, more soon). The legislature have recognised that the threat of gaol does not deter a significant number of people without a licence from getting behind the wheel. It's obviously thought that the seizure of their cars might be more effective.

Slaveski v Victoria: police powers

The marathon case of Slaveski v Victoria [2010] VSC 441 ran for several months longer than planned, and covered a lot of ground over 115 days.

Mr Slaveski was originally self-represented, and then represented by his wife who was appointed as a litigation guardian. Self-represented litigants (and other lay people) present particular problems for courts balancing precious court time and resources when others wait their turn for those same scare resources, and providing procedural fairness to the self-represented person who wants their day in court.

The AIJA covered this topic in 2004, and many courts and other legal bodies have considered it in detail since then. A quick google search will return a lot of information — much of it provided by the courts themselves — to assist the self-represented person navigate an unfamiliar court system. The Victorian Supreme Court has a page of its website for unrepresented litigants, and the County Court has an information guide for self-represented litigants.

Slaveski's case is a massive 664 pages long — 2385 paragraphs! Despite that, it's an easy read. Probably because its intended audience partly comprises Mr Slaveski and his wife — and also the police involved — it's written in a very clear and accessible style, and provides some very good restatements of legal principles about police powers. I don't mean that in any way to be dismissive — I suspect Slaveski will be the first port of call for many years to come when lawyers and police have what's-that-authority-for-x questions on the scope and content of police powers. Even though it's ‘only’ a Supreme Court judgment of a first-instance trial, I reckon it'll be reported. I hope so.

I'm not going to try to canvass many of the issues: that would require many pages. Instead, I'll just highlight the topics the Kyrou J covered, and then delve into three particular areas that haven't previously received much judicial consideration: reasonableness of searches under warrant; video recording searches under warrant; and liability of supervising police officers in negligence.

(The opening pages discuss possibly contemptuous behaviour by the plaintiff, including threatening to photograph a witness: [66] and [72]. I discussed this uncommon form of contempt Digital Contempt in June this year.)

Parts 2 and 3 of the judgment — yup, it's big enough to be divided into parts! — deal with police powers, and civil actions against police. Part 3 isn't exhaustive, but the ones discussed are the most common against police. For this reason, Slaveski should be essential reading for the police, and probably practitioners involved in cases that raise questions about the propriety of police conduct. The contents of those Parts are:

PART 2 – POLICE POWERS
  • Arrest without warrant
    • Power of arrest conferred by s 459 of the Crimes Act
    • Common law requirements for arrest
    • Deprivation of liberty Communication of arrest
    • Communication of the reason for the arrest
    • Use of force
    • Use of handcuffs
    • Detention of arrested person in custody
    • A lawful arrest is not vitiated by subsequent unlawful conduct by the arrester
  • Entry onto premises to effect arrest
  • Search of property pursuant to warrant
    • Common law background
    • Crimes Act, Magistrates’ Court Act and relevant regulations
    • Execution of search warrant
      • Belief on reasonable grounds required to seize items under warrant
      • Obligation to act reasonably in executing search warrant
      • Factors affecting reasonableness of a search
    • Photographing and filming the execution of a search warrant
    • Duty to carry seized items before Magistrates’ Court
  • Relevant provisions of the Victoria Police Manual
    • Legal status of the Victoria Police Manual
    • Conducting and reporting investigations
    • Police identification
    • Effecting arrest
    • Use of handcuffs
    • Execution of search warrant
    • Non involvement in private civil disputes
    • Conflict of interest
    • Communicating outcome of investigation
    • Return of seized property
PART 3 – CAUSES OF ACTION AGAINST THE POLICE DEFENDANTS
  • Assault and battery
    • Assault
    • Can mere words constitute assault
    • Battery
    • Defences to an action in assault or battery
  • False imprisonment
  • Malicious prosecution
    • Malice
    • Absence of reasonable and probable cause
  • Defamation
  • Trespass to land
    • Defence of consent
    • Implied licence
    • Defence of lawful authority – search warrant
  • Trespass to goods
  • Conversion
    • Wrongful dispossession
    • Use
    • Refusal to surrender on demand
  • Detinue
  • Negligence
    • Liability for failing to investigate a complaint of criminal activity
    • Conflicting duties principle
    • Principles based on public policy
    • Summary of principles
    • Liability of a supervising police officer

Reasonableness of searches under warrant


At [175] – [178] Kyrou J discussed restrictions implied to the power of search conferred by a search warrant, and provided a helpful checklist of things to consider when determining if the search is reasonable.

[176] The factors that will inform the reasonableness of the manner in which a search is conducted are likely to include – but are not limited to – the following:
(a) the nature and quantity of the items described in the warrant;

(b) the nature of the conduct under investigation;

(c) the size, layout, physical features and nature of the use of the premises being searched;

(d) the likely location of the items described in the warrant;

(e) in the case of a search for documents in an office area, whether the office area appears to have an orderly filing system;

(f) in the case of a search for bulky or uniquely identifiable items, whether there are any obvious places where such items are likely to be located;

(g) the time required to secure the premises and to set up an exhibits kit to enable the search to be conducted;

(h) the number of officers conducting the search;

(i) the number of people on the premises when the search is conducted and whether they are hindering the search;

(j) whether the occupier of the premises is a suspect or a third party;

(k) the history of police dealings with the occupier of the premises, including whether he or she is considered to be trustworthy or dangerous;

(l) whether the occupier of the premises is cooperative;

(m) whether any information that the occupier initially provides about the location of the items described in the warrant proves to be accurate and reliable; and

(n) any prior intelligence that the police obtained lawfully about the premises, the items described in the warrant, the occupier and any other matters that are relevant to the search.

For example, the sort of search that leaves a house and contents up-ended wouldn't be necessary or justified if the police were using a search warrant to obtain material from a bank.

When a search is unreasonable and hence outside the scope of the search warrant, it's potentially a tortious trespass: [291] – [292]. A more immediate consequence would be conduct contrary to Charter 13 (right to privacy), 20 (property rights), 21 (right to liberty and security of the person), and 38 (acting compatibly with human rights), and possible exclusion of evidence under Evidence Act Part 3.11.

Video recording searches under warrant


The AFP has video recorded its searches for some time now. Victoria Police doesn't always do it, but it's becoming more common. One reason to do it — and a darn good one at that — is to try to reduce or prevent factual arguments about who said or did what. (I discussed this last year in Disputed confessions to police.) It seems this was at least one reason for video recording a search at Mr Slaveski's property on 13 December 2005. But, at [1058] and following, it turns out this was also a source of controversy because of what wasn't recorded!

In any event, Kyrou J provided a detailed analysis of the legality of video recording searches under warrant, and in general terms held it was legal, subject to observing certain requirements.

[192] ...a search warrant, in addition to conferring on police officers the express powers set out in it, also implicitly confers on them the power to do anything that is incidental to, and for the purpose of, exercising those express powers. This includes an implied power to take video footage or photographs of the execution of the warrant, provided that:
(a) the activity, object or part of the premises being filmed or photographed is incidental to the exercise of the express powers conferred by the warrant (‘incidental nexus requirement’); and

(b) the filming or photographing of that activity, object or part of the premises is for the purpose of exercising those express powers (‘proper purpose requirement’).

[193] It will be noted that this principle comprises two limbs. Strictly speaking, both limbs are elements of a single requirement because the failure to satisfy either limb will sever any nexus between the conduct in question and the express powers set out in the warrant. Nevertheless, for clarity of exposition, I will maintain the bifurcation.

[194] In my opinion, the incidental nexus requirement will be satisfied where the video footage shows:
(a) the police knocking on the door of the premises, introducing themselves to the occupier and then entering the premises;

(b) the officer in charge introducing the search team to the occupier, serving the warrant and explaining its terms to the occupier;

(c) the police conducting an initial security sweep of the premises;

(d) the exhibits officer setting up the exhibits kit;

(e) officers searching the premises and conducting discussions with the occupier;

(f) any seized items in their original locations;

(g) seized items being moved from their original locations, being photographed, being entered in the property seizure record, being labelled and being placed in exhibit bags;

(h) the arrest of any person apparently having possession, custody or control of a seized item; or

(i) the police packing up the exhibits kit and departing the premises with the seized items in their possession.
This list, which is intended to be illustrative only and not exhaustive, is also applicable to the taking of still photographs.

...

[196] The proper purpose requirement will be satisfied where, for example, the execution of the search warrant was filmed or photographed for the purpose of creating a record for use as evidence in support of charges that may be laid against the occupier of the premises or another person. On the other hand, the requirement will not be satisfied where, for example, the filming or photographing was carried out for the purpose of selling the images for profit.

[197] An improper purpose will render the taking of the video footage or photographs unlawful, and thus a trespass, even if the images are confined to activities, objects or parts of the premises that are incidental to the exercise of the express powers conferred by the search warrant and would therefore satisfy the incidental nexus requirement.

[198] Where the taking of video footage or photographs satisfies the incidental nexus and proper purpose requirements, that conduct will not constitute a trespass merely because it was also motivated by concurrent subordinate purposes.

[199] As video footage or photographs are normally taken over a period of time and in different locations, the application of the incidental nexus and proper purpose requirements may produce different liability consequences for distinct phases of that conduct. For example, a police officer that enters premises and takes photographs of the items to be seized as a record of the proper execution of the search warrant will not commit a trespass for such time as his or her conduct is so confined. If, however, for a period of time, the photographer moves to a different area of the premises in order to photograph the occupier’s artwork for personal artistic gratification, he or she will commit a trespass during that period.

[200] In this proceeding, there was an issue as to whether the police were authorised to take video footage or photographs during the execution of a search warrant for the purpose of gathering intelligence for possible use in future police operations. In my opinion, the position is as follows:
(a) If the incidental nexus and proper purpose requirements are satisfied, a trespass will not be committed merely because an item of interest from an intelligence gathering perspective appears in the footage or photograph.

(b) If an item of interest from an intelligence gathering perspective is located on a part of the premises which is not to be searched, the act of filming or photographing that item will constitute a trespass because it will not satisfy either the incidental nexus requirement or the proper purpose requirement.

(c) If an item of interest from an intelligence gathering perspective is located on a part of the premises which is being searched, the act of filming or photographing that item in isolation from the search activity, or as the item of prime focus, will constitute a trespass because neither the incidental nexus requirement nor the proper purpose requirement will be satisfied.

(d) Where the sole or dominant purpose of the taking of video footage or photographs is to gather intelligence for possible use in future police operations, the conduct will constitute a trespass because the proper purpose requirement will not be satisfied. In addition, the incidental nexus requirement may not be satisfied because the focus of the video footage and the photographs will be on items of interest from an intelligence gathering perspective, rather than on the search activity.

At [1380] ff, Kyrou J found that some of the video footage didn't meet these requirements, and hence was outside the scope of the warrant and was a trespass.

He was particularly critical of the police for video recording separate conversations between Mr and Mrs Slaveski and their lawyers, at [1095] – [1098] and [1384] - [186].
[1384] The trespass committed by officer Wendt was neither trivial nor inconsequential. In my opinion, it constituted a serious infringement of Mr Slaveski’s privacy and the quiet enjoyment of his property. This is particularly so in relation to the taking of footage of the security features of the Lalor shop and the separate conversations between Mr and Mrs Slaveska and their lawyers. As a person in custody following his arrest and whose property was the subject of a coercive search, Mr Slaveski was entitled to obtain confidential legal advice, directly or through Mrs Slaveska, without the detectives overhearing the relevant communications.

[1385] I note that, when Mrs Slaveska spoke to a lawyer, she had moved away from the detectives in the downstairs office area to an area of the shop which was not intended to be searched. Officer Wendt’s conduct in following Mrs Slaveska, and filming her, was totally unwarranted. He seriously compromised Mr Slaveski’s basic right to seek confidential legal advice.

[1386] An invasion of privacy that is constituted by the recording of a particular item or a particular event in a permanent audiovisual medium is far more serious, and has the potential to be significantly more harmful, than an invasion of privacy that is constituted by the mere observation of the same item or event. For the purposes of legal redress, the serious infringement of Mr Slaveski’s privacy on his land constituted a serious trespass to land.

[1387] Although officer Wendt’s unauthorised filming constituted a serious infringement of Mr Slaveski’s rights, I reject Mrs Slaveska’s allegations that officer Wendt chose what to film as part of a conspiracy with the other detectives or that he engaged in any deliberate misconduct. I find that officer Wendt acted in good faith in taking the unauthorised footage. He simply misunderstood the scope of his legal power to film. His misunderstanding was based, in turn, on a misunderstanding by officer Sadler of the power of police officers to take video footage of the execution of a search warrant.(Footnotes ommitted.)

Liability of a supervising police officer


This is a topic that's caused a lot of fear and loathing within Victoria Police in the past, much of it due to ignorance and lack of understanding about the law of negligence.

Kyrou J referred to Victoria v Horvath (2002) 6 VR 326, itself a salutory lesson on limits of police power — and still not as widely understood within Victoria Police as it should be. His Honour then reviewed a number of well-known authorities on police negligence — including the Victorian case of Zalewski v Turcarolo [1995] 2 VR 526 — before tentatively concluding in obiter at [356] that supervising police officers might be liable in negligence for supervising subordinate officers. I dare say we'll see more on this topic in years to come.

Overall


It seems the police defendants successfully defended many of the claims against them. There are more topics highlighting pitfalls for police when they don't follow their processes, but for the most part, the fairly strong allegations against them weren't made out. Despite the portions I highlighted above, Salevski is a largely useful judgment for the police, both as a clear statement of their powers and their scope, and a poignant example of what can happen when the police force and individual officers aren't crystal-clear on those legal principles.

Friday, 8 October 2010

William Cooper Justice Centre

I've been watching with interest the old County Court building in William Street as it nears completion. Nobody I asked knew what was going to happen to it, though it looked suspiciously similar to its previous incarnation, and very court-like.


The Government released a media release earlier this week, announcing this will be the William Cooper Justice Centre, providing extra court space for the Supreme and Children's Courts and other courts as required, and other hearings such as Royal Commissions. I guess that trials such as the high-security ones held in the County Court will also be held there.

You can read a little bit about who William Cooper was in this media release, and also on Wikipedia.