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Thursday, 30 December 2010

Using the iPad in legal practice — Part 3




Previous posts
1. Setting up
2. Applications for the iPad


This post
3. Getting information on and off the iPad
3.1 iTunes
3.2 Third-party file sharing
3.3 Internet
3.4 WiFi network
3.5 Printing
3.6 Video on the iPad
   3.6.1 Ripping video
   3.6.2 Converting video
   3.6.3 VLC
   3.6.4 Air Video
   3.6.5 Air Display

Later posts
4. Using the iPad in Court
5. Other uses and miscellaneous stuff


3. Getting information on and off the iPad


The next step to make use of the iPad is to get stuff on and off it. Transferring data with the USB cable is the fastest option, and my first preference.

3.1 iTunes


Apple’s standard way of transferring files is using File Sharing in iTunes.

From iTunes:
  • select your iPad
  • select the ‘Apps’ tab
  • under File Sharing, select the application you want to transfer to or from

Depending on your screen size, you might not be able to see File Sharing: you might need to scroll down to view it! (That took me about 10 minutes on Google to figure out my first time. Der!)

Here’s a screen shot, which (I hope) shows what I mean.


The next step is to select the ‘Add’ button, and navigate to the file or files you want to add, then select ‘choose’.


iTunes will transfer the files to the application, but only to the root level. To arrange things in folders — such as I have in GoodReader — I need to open GoodReader on the iPad, create the folders, and then move the files from the root level into that folder. I reckon it’s easier to use the next method instead...

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3.2 Third-party file sharing


There are various third-party programs that work similarly to iTunes’ file sharing, but with an approach that’s a bit more obvious to the casual user.

For the Mac, consider PadSync (which synchronises files between iPad and computer); for the PC, DiskAid.

I use a program called PhoneView, which does a great job, and allows me to transfer files directly to and from folders.


You can see in this screenshot that I can copy to and from folders in any app that provides for file sharing, and even delete files too.

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3.3 Internet


In my last post I mentioned that GoodReader is my file viewer of choice, so I'll use that to demonstrate this method.

To download a file stored in my DropBox I simply select my DropBox, and then the folder in that DropBox, and from there, chose the file, which is then downloaded into GoodReader.


The other way is to browse the web through the web browser in GoodReader, and select any documents there.

Or, in Safari (the iPad’s browser), place g at the start of the URL — the web address in the address bar — and it’s transferred to GoodReader.

Some apps allow for documents to be saved from the iPad to an internet based service (like DropBox). Most of the apps I discussed at 2.2 File authoring will do this.

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3.4 WiFi network


I won’t re-invent the wheel and describe this in detail. GoodReader has detailed notes about how to do this on its website. It works, but it’s cumbersome and slower than USB.

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3.5 Printing


When Apple released iOS 4 for the iPad (the operating system), it finally introduced printing from the iPad. But contrary to the original plan, printing is officially restricted to a small collection of Hewlett Packard printers, using a feature called Airprint. Apple apparently intends to provide printing for other brands in future releases of iOS.

There are ways around this, but they don’t enjoy Apple’s official imprimatur.

On the Mac, Printopia is a very good program that allows for printing to any printer connected to your network.

Another one is Airprint Activator, known as Hacktivator till a few weeks ago. Apparently there’s a Windows equivalent, but I don’t have any experience with it. If you desperately need to print from an iPad to a Windows PC, try googling: there are heaps of suggestions, but I can’t vouch for any.

Personally, I haven’t really needed to print from my iPad, because I have everything backed up on my computer and can transfer data from the iPad if needed and print from my computer. YMMV.

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3.6 Video on the iPad


A common query I get is how to get video on the iPad. A common example of video we might want to take with us is a police video record-of-interview.

3.6.1 Ripping video


When video is on a DVD, the first step is often to get that footage off the physical disc and on to a computer, called ‘ripping’.

I typically use a program called RipIt, or Mac DVD Ripper Pro.

In Windows, the best program is DVD Fab.

RipIt and DVD Fab can also convert video into iPad compatible format.

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3.6.2 Converting video


I use a free program called Handbrake, available in both Mac and Windows versions.

Handbrake has various preset conversion settings: choose the ‘universal’ setting for the iPad. (That setting will also work on an iPhone 4, but not the older, lower-resolution iPhones.)

[edit] Since I posted, Handbrake released a new version 0.9.5 with new preset conversion settings for the iPhone & iPod Touch, iPhone 4 and iPad.

It can convert directly from DVD in some cases. I expect it would do so for police records-of-interview, but haven’t actually tried — I’ve always ripped the DVD first.

Whichever way you choose, once the video is in iPad format, import it into iTunes — either by double-clicking, or click-and-drag — and then sync it to your iPad, much as we did above with files, but this time in the ‘movies’ tab.

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3.6.3 VLC


Another useful app for the iPad is VLC, an open-source (free) video player. It handles all sorts of video files, and is the program I use anytime I have trouble playing a video file. (Strangely, I’ve had to resort to it a few times to view police interviews that wouldn’t play in my DVD player.)

The iPad version of VLC (iTunes link here) lets me watch all sorts of video files on the iPad. By default, the iPad can only view a couple of video formats, but not the popular QuickTime and WMV formats. With VLC installed, I can view these popular formats.

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3.6.4 Air Video


Air Video (iTunes link here) converts a wide variety of video formats — including those that aren’t native to the iPad — and streams it to an iPad on the same wireless network as the computer hosting the video files.

A free version is available to try out.

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3.6.5 Air Display


Air Display (iTunes link here) is a nifty app that allows the iPad to operate as a second monitor for your Mac or Windows computer.

Earlier versions were a bit slow, but the current one seems fine. It now lets me chose to mirror my display — so the iPad shows what’s on my computer — or not, and to change the display arrangement, so the iPad can be to the left, right, top or bottom of the primary display.

This means it’s possible to have video play on a laptop, and also on the iPad which can be viewed by a witness or the Bench!

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Next: using the iPad in Court.

Tuesday, 28 December 2010

Using the iPad in legal practice — Part 2




Previous post
1. Setting up


This post
2. Applications for the iPad
2.1 File viewers
   2.1.1 GoodReader
   2.1.2 iAnnotate PDF
   2.1.3 ReaddleDocs
   2.1.4 DropBox
   2.1.5 SugarSync
2.2 File authoring
   2.2.1 Pages
   2.2.2 Quickoffice connect HD
   2.2.3 Office2 HD
   2.2.4 Documents To Go Premium
2.3.1 Note taking
   2.3.1 NoteTaker HD
   2.3.2 Circus Ponies Notebook
   2.3.3 Plain Text
   2.3.4 Dragon Dictate

Later posts
3. Getting information on and off the iPad
4. Using the iPad in Court
5. Other uses and miscellaneous stuff


2. Applications for the iPad


2.1 File viewers


I mentioned in my last post how great the iPad is for carrying around many documents. The iPad doesn't access it storage memory the way a computer does: there's no file manager or explorer program.

We need an app (application) to store and view our files. These are the big guns for legal work. (Apart from SugarSync’s own app, none of them link directly with the SugarSync cloud service I mentioned here.)

2.1.1 GoodReader


GoodReader (get it from iTunes here) is my file viewer of choice.

This is its default opening page. I added the folders you see at the top left. For now, it doesn't support file sync from iTunes into folders, but only into the main directory, and I then manually move them. (Actually, I use another work-around, but I'll mention that in a later post.)


Can you see the Word document in the file list? GoodReader can view Word, txt, html, pictures, video and PDF.

GoodReader allows me to connect to a variety of cloud storage services, including multiple DropBox accounts. It's very fast — faster than using the DropBox app.


I can annotate files on the iPad, and save to the original file or create a copy. Recent versions of GoodReader view annotations created using Adobe Acrobat.


GoodReader can transfer files over a WiFi network, or USB cable. It also has a really nifty trick when viewing documents on the internet. For example, if I search for an Act of Parliament, and open the PDF document in the iPad's web browser, Safari, what if I decide I want to keep that document? Simple, edit the URL in the address bar to insert a g at the start, and that document will download into GoodReader!

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2.1.2 iAnnotate PDF


iAnnotate PDF (get it from iTunes here) can only work with PDFs.

If you want to work with and mark up PDFs all the time, this app is probably the pick of the bunch. It uses customisable toolbars on the sides of the screen to provide quick access to editing tools. And it provides tabbed viewing, allowing quick access to switch documents. This is what it looks like, with a few example annotations on the document:


Tap the screen once to turn off editing and just view the document.


The document manager organises documents, and can create folders and tags with full drag-and-drop function!


There are a couple of reasons I don't use iAnnotate PDF as my primary app.
  • Visually, it's very busy, and I find the interface obscures some of my documents.
  • It treats document bookmarks as outlines. I can customise the toolbars to view my bookmarks, but I don't know why the app deals with them in this non-standard way.
  • It doesn't read other file types.
  • It only allows me to access one DropBox.
  • It scrolls pages by flicking top to bottom. To turn precisely a single page, you must use the turn arrows in the toolbars.

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2.1.3 ReaddleDocs


Readdledocs (get it from iTunes here) views a wide range of files and stores them on the iPad. It can download documents and attachments from websites, emails, computers, and cloud services. It too allows for folders to organise files.


Readdledocs links to quite a few cloud providers — including multiple DropBoxes— and also offers email access — but only to IMAP and POP services (no Exchange servers).


Annotating is limited to highlighting and adding notes.

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2.1.4 DropBox


DropBox (get it from iTunes here) provides a free iPad app that links to a single DropBox.


It can view many file types, but has no annotating ability and no capacity to save files on the iPad. You can email a link to an individual file, or open a file using another app like one of the ones above.

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2.1.5 SugarSync


SugarSync (get if from iTunes here) also provides cloud storage and synchronises files.

I haven't used it much, but in my limited playing with it, I found the iPad app a bit clunky and slow. It doesn't offer annotating, but does allow files to be stored locally and opened in other apps. It allows access to any files or folders I select on my computer, not just those stored in DropBox.

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2.2 File authoring


I don't use the iPad for this very much, but it’s possible to create spreadsheets and Word documents on the iPad. Most of the programs allow varying degrees of text manipulation, but struggle with anything more complex than text and two hard-returns. Footnotes and paragraph numbering are real problems, which means the iPad isn't helpful for formatting submissions.

You might also like to look at Josh Barrett's Tablet Legal two articles on Word processors on iPad for lawyers Part I and Part II.

2.2.1 Pages


Pages (get it from iTunes here) is Apple’s iPad version of its Mac word processor.

I haven’t used it, so I can’t tell you anything about it, other than what I read.

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2.2.2 Quickoffice connect HD


Quickoffice connect HD (get it from iTunes here) can create and edit MS Word and Excel documents, and read PDFs. It doesn’t provide for opening files in other apps.


It provides access to cloud services, and you drop-and-drag files to the iPad icon to store them locally, and to the trashcan or email icon to delete or send.

I find it doesn't import my document formatting when I used outline paragraph numbering and styles to provide paragraph spacing. It also undoes my formatting in my excel spreadsheets if I save the changes to DropBox.

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2.2.3 Office2 HD


Office2 HD (get it from iTunes here) is another MS Word & Excel-compatible app. I haven't used it.

2.2.4 Documents To Go Premium


Documents To Go Premium (get it from iTunes here) is another Word and Excel app, and also says it can create PowerPoint presentations, and also read PDFs. I haven't tried it, but I'm intrigued by the claim that the latest version can apply and view styles in word processing programs! I like also that it has a free trial.

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2.3 Note taking


When I first started using the iPad I struggled to take notes when at court or talking with people, and then keep track of those notes and integrate them with my electronic documents. I think some of these apps provide a solution.

2.3.1 NoteTaker HD


Note Taker HD (get it from iTunes here) lets me use the iPad like a note pad.

All my notes are stored locally until I chose to delete them. You can see here the opening page, with notes listed on the left side; a preview on the right side; and the page tool menu open for the most recent note.


Select individual notes by tapping on them from the list view on the left, then double-tapping the preview on the right. Here's the note open in Edit 1 mode (there are two editing modes), where the whole page is displayed. Pen colours and width are selected from the toolbar, and I can highlight text as well.


Notes can be emailed as PDFs. I email mine to myself, and insert them into my brief before I file it in my completed folder.

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2.3.2 Circus Ponies Notebook


CP Notebook for iPad (iTunes link here) was only released a couple of weeks ago. CP Notebook is a great program on the Mac, and Notebook users have been hoping for an iPad version for a long time. Initial reviews are that the current version has a few hiccups, but great promise. I haven't tried the iPad version yet, but if it can sync with Notebook on my computer I'll be getting it. DropBox support is mooted soon, so that's probably when I'll spend $36.99 on it.

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2.3.3 Plain Text


Plain Text (iTunes link here) is a deliberately simple text editor. It links with DropBox, so getting notes onto computer is a cinch.

It simply contains a list of files on the left side, and text on the right side. There are no formatting options: just text. You can expand the text entry window to fill the whole page.


I think for just typing text — like drafting a letter or advice — to format it later, this is ideal. The price is great too: free.

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2.3.4 Dragon Dictate


Dragon Dictation (iTunes link here) turns the iPhone and iPad into a dictaphone. This eagerly awaited app was also only released in Australia a few weeks ago. It works surprisingly well, and also has a great price tag: free.


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Next: transferring information to and from the iPad.

Monday, 27 December 2010

Using the iPad in legal practice — Part 1




1. Part 1 — Setting up
1.1 WiFi + 3G, or just WiFi
1.2 Storage capacity
1.3 Which mobile network
1.4 Online storage
   1.4.1 DropBox
   1.4.2 BoxNet
   1.4.3 SugarSync
   1.4.4 iDisk
1.5 Adobe Acrobat
1.6 Scanner
1.7 File structure and naming convention
1.8 Fax service

Later posts
2. Applications for the iPad
3. Getting information on and off the iPad
4. Using the iPad in Court
5. Other uses and miscellaneous stuff


Back in July I briefly blogged about using the iPad. Now I can’t imagine working without it!

It might be because I use my iPad so much that a few folks have asked me for more detail about how I use it.

I dare say some of you found a shiny new iPad under the tree on Christmas Day, so this seems like an opportune time to share my setup with you.

Of course, this is just my personal setup, not some gospel truth describing the only way to use an iPad, so please don’t think you should slavishly follow what I do. I’m always picking up new ideas about how to use the iPad, and would love to read any suggestions you have.

The iPad provides a fantastic way of accessing all my documents when I’m away from the computer: such as in court! The first thing to do is to set yourself up so you can take advantage of your iPad when you’re out of the office.

Part 1 — Setting up


1.1 WiFi + 3G, or just WiFi


WiFi refers to an internet connection over a wireless network, using a wireless access point to transmit an internet connection over a short distance, say up to 100 metres.

3G refers to the third-generation mobile telephone networks that provide high-speed data services as well as voice transmission.

I have the WiFi + 3G version. Many US blogs recommend buying just the WiFi version. Free public WiFi networks — or ‘hotspots’ — must be common over there. But here in Australia, they‘re still relatively scarce. Get the WiFi + 3G iPad so you can access the internet when you’re on the go.

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1.2 Storage capacity


The iPad uses solid-state storage — also called a flash drive — instead of a spinning magnetic hard-disk drive. It comes in 3 sizes: 16GB, 32GB and 64GB.

Just like you can’t be too rich and too good looking, when it comes to computer devices you can‘t have too much storage and too much speed. I have the 64GB model, so I never have to worry about how much space is available for my documents.

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1.3 Which mobile network


This is a complex question and provokes lengthy debates in online forums. You have three mobile phone networks to choose from: Telstra, Optus, and Vodafone. Virgin re-sells Optus; and 3 has a legacy network sharing agreement with Telstra, but was bought by Vodafone about a year ago and is gradually merging identity.

I’ve tried Vodafone, 3 and Telstra. Now that Telstra’s prices are more competitive, I use a Telstra 3GB-per-month pre-paid service, and find that’s heaps of data for me. (1GB would be a bit tight, and I just want to use my iPad without worrying about how much data is left.) If I kept mainly to the city or big population areas, I’d probably use Vodafone. 3 is only good if you stay in the capital cities, and in my experience, its network is a bit patchy in areas. Optus has good prices, but I don’t know if it still suffers network congestion because it’s so popular. YMMV. (Your mileage may vary.)

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1.4 Online storage


I said before I can access my documents on my iPad when I’m away from the computer. I do this using online or ‘cloud’ storage. (‘Cloud’ is a metaphor for the internet, as data is loaded ‘up’ to and ‘down’ from the ‘cloud’.)

All my documents are stored on my computer, and synchronised with a cloud-service. I have more than 64GB of data on my computer, so I only load onto the iPad those documents I anticipate needing. But if I need something else, I use my iPad’s data connection to access my documents stored in the cloud. I can even download them onto my iPad.

Two other good reasons to use cloud storage are:
  1. Files are synchronised across linked devices. I change a document on my laptop at home, and the changes are replicated on my desktop computer in chambers, and vice versa. And I can access different change versions.
  2. Files are securely backed up. In case of fire, flood or theft, all my files are still backed up and accessible in the cloud. Remember Hurricane Katrina? Apparently many New Orleans lawyers lost all their files, and even now struggle with cases more than 5 years old. What will you do if your only copy of your paper file is lost, destroyed or stolen?
There are many services, but I’ll mention only the main ones I’m familiar with.

1.4.1 DropBox


DropBox is indispensable. You need it. You want it. Just get it. Get a free 2GB account; try it for yourself.

It backs-up and synchronises everything inside a folder named DropBox. I put all my folders in there, rather than under ‘My Documents’. I have two accounts: a 100GB personal account, and a 50GB work account. DropBox uses 128-bit encryption, and its employees can’t see my data without my password.

DropBox allows me to set up share folders. I grant access to specified people to that share folder, and we can all see and access the files. No email size limits, and no problems with version control of our documents!

DropBox also has public share folders. Any documents in there are available to the world.

1.4.2 BoxNet


BoxNet. Similar to DropBox, but with a heavier emphasis on sharing documents. I also have a BoxNet account.

1.4.3 SugarSync


SugarSync. Also similar to DropBox, but allows the user to select any folder to backup. It doesn’t link quite as easily to some of the iPad applications I’ll discuss in later posts, which is probably the only reason why I prefer DropBox over this great service. Yup, I have a SugarSync account too.

1.4.4 iDisk


iDisk is online storage provided as part of Apple’s MobileMe service. It should work like the other services, but in my experience it is painfully slow to the point of being unusable. Everything else in MobileMe works just great, so I keep this subscription for my calendar, address book and email synchronisation.

Before using cloud-storage, you should make sure the service you chose will satisfy any obligations of privilege or confidentiality that apply to you.

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1.5 Adobe Acrobat


Aside from iTunes to activate the iPad when you first get it, you don‘t need other software on your computer to use the iPad.

But if you want to get the most use with your documents on it, having Adobe Acrobat helps. A lot. There are cheaper programs that do some of what Acrobat does, but not everything. If you want to do everything that Microsoft Office can do, you have to spend the cash buying MS Office. So too if you want to do everything Acrobat can do, you need to buy Acrobat. Oh, and I don’t mean Acrobat Reader: I’m talking about the full version of Adobe Acrobat Professional.

With Acrobat I can convert Word documents and webpages to PDF; combine files; add bookmarks, sticky notes and highlights to documents; insert annotations; OCR (optical character recognition) documents scanned as images, and virtual faxes, and turn them into searchable documents; and add security restrictions to documents.

If you want to know more about using Acrobat in legal practice, check out:

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1.6 Scanner


I have two scanners to turn all the paper I get into electronic documents. That way I can store my briefs in the cloud, and only carry on my iPad those that I need. If for some reason I need access to a brief not on my iPad, I get it instantly through my DropBox.

The Fujitsu ScanSnaps are highly recommended. I have two.

The S1500M desktop is a sheet-feed scanner that scans both sides of a document in one pass. It holds up to 50 sheets.

The S300M portable scanner unfolds to take up to 10 A4 sheets at a time, and also scans both sides of a document in a single pass. It can run off USB or AC power. I do take it to court occasionally. Once, when briefed at court, I used it to scan parts of the only copy of a police brief (with permission) at a courthouse with no copying facilities. Once it was converted to PDF I put the brief together electronically with Acrobat on my laptop, bookmarked it, and transferred it to my iPad! Instant disclosure!

If you shop around, you can buy both scanners from online retailers cheaper than the RRP.

And if you have a scanner, with software like Paperless or Neat Receipts you can digitise all your receipts and get rid of that shoebox!

Last, if you do use a scanner, buy a stamp that reads “scanned”. Scan paper as it comes in, and if you need to keep it rather than return it or shred it (ideal), stamp it as scanned so the next time you see it you know it’s done.

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1.7 File structure and naming convention


It’s important your file structure and naming convention helps you locate files quickly and easily. If you use a commercial document management system, then that system will name and file your files for you.

Otherwise, it’s up to you how to name and arrange your files.

Two common conventions for naming files are:
  • Starting with a date e.g. [document date] [description]
  • Starting with the type of document e.g. [Document Type][Receiving Party][Subject][Original Document Date] or some similar format

I use the first naming style, using the appearance date I’m briefed for e.g. yyyy_mm_dd FAMILYNAME Given name — [brief type].pdf.

Here’s a screenshot of my work DropBox, showing my folder structure, and some of my briefs.


These file names automatically sort in date order. If I do forget where a file is, I can search for it by file name or — because the files are OCR’d — by a word or phrase in the file.

Getting the structure right and choosing a naming system that works for you is important. I spent more time deciding on this than any other aspect of setting up my computer and iPad. A few resources you might find helpful are:

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1.8 Fax service


Last, not strictly something just for the iPad but useful nonetheless, a virtual fax service allows me to send and receive faxes by email as PDFs. No fax machine or paper required. Great for getting faxes at court without the fees some of them charge!

I use Ozefax, but only because I get so few faxes. The VicBar offers a service through Fax2Mail (also see here), which is better value if you send and receive a lot of faxes.

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Next up, apps for the iPad and how to get data on and off it.

Friday, 17 December 2010

Time off for good behaviour

We've come to the end of another year of Quis custodiet ipsos custodes?



Thanks to all who've made a contribution to the blog this year, whether by posting a comment, communicating with us directly, or making things possible behind the scenes. We plan to be back in February with more of the same, and a few new bells and whistles to keep things interesting.



Tuesday the 21st December is the last parliamentary sitting day for the year, and various media reports have carried stories suggesting that the new state government intends to introduce and pass significant legislation on that day. Not many details yet. Depending on what develops, you may see a final (yes, really final) Legislation Watch here before Christmas.



Otherwise, happy holidays and stay safe in 2011!

Wednesday, 15 December 2010

BP v R; R v BP [2010] NSWCCA 303: tendency or coincidence evidence?

Have difficulty telling the difference between tendency and coincidence evidence?

You're not alone.

The last time I wrote a paper on tendency and coincidence evidence (when it was still known as similar fact and propensity) it took me so long that by the time I had finished it the law had changed again. With that experience in mind, I'm not going to try for a comprehensive discussion of the topic the day before we wind up for the year. But I do want to mention BP v R; R v BP [2010] NSWCCA 303 before it gets lost over the summer break.

Facts


The appellant in BP v R was convicted at trial of indecently assaulting his daughter when she was a child in the 1970s and doing the same to one of his grand-daughters in recent years. He was acquitted of other counts, including charges of indecently assaulting another one of his grand-daughters.

The Crown appealed the sentence. The appellant appealed his conviction. He asserted three grounds of appeal:

    1. There was a miscarriage of justice because His Honour did not order separate trials in respect of the counts as to the Complainants 2. There was a miscarriage of justice as a result of His Honour's directions in respect of Tendency/Co-incidence Evidence 3. The Learned Trial Judge erred in his direction as to the risk of concoction.

Separate Trials


As in Victoria, the question of whether separate trials should be ordered is really about the cross-admissibility of the evidence of each complainant. If the evidence was admissible for a tendency or coincidence purpose the charges would naturally be heard together. If the evidence was not cross-admissible it would be better for the charges relating to each complainant to be split. Counsel for the accused sought separate trials but that application was rejected. The Court of Criminal Appeal upheld that decision.

Hodgson JA summarised one aspect of the first ground this way [at 100]:

On the question of the probative value of evidence relied on as tendency or coincidence evidence, [counsel] relied on O’Keefe v R [2009] NSWCCA 121, and on CGL v DPP [2010] VSCA 26. He submitted that the real assertion made by the tendency and coincidence notices was that the appellant had a sexual interest in young children, and as O’Keefe and CGL showed, this was insufficient for the probative value necessary for tendency or coincidence evidence. The limitation to family members did not significantly change the position, and in any event was artificial, because originally there were non-family complainants. Many of the further particulars were just matters of opportunity and how things allegedly happened to occur, and many applied only to some or only one of the complainants. The probative value of the evidence as tendency or coincidence evidence was small, and the prejudicial effect enormous.

Hodgson JA rejected that submission. In doing so, he helpfully restated the process of evaluating the admissibility of tendency evidence - at least in NSW [beginning at 106, Price and Fullarton JJ agreeing]:

Evidence with which s 97 is relevantly concerned is evidence that a person has a tendency to act in a particular way or have a particular state of mind; and the probative value of the evidence will depend both on its probative value in establishing the tendency and on the probative value of the tendency (if established) in relation to an issue in the case: R v Li [2003] NSWCCA 407 at [11], R v Cittadini (2008) 189 A Crim R 492 at [22] – [23].

To be admissible as tendency evidence, the evidence must have significant probative value. It must be capable of rationally affecting the probability of the existence of a fact in issue to a significant extent, meaning (at least) an extent greater than required for mere relevance: Zaknic Pty Limited v Svelte Corporation Pty Limited (1995) 61 FCR 171 at 175-6, R v Ford [2009] NSWCCA 306 at [50] and [51], R v PWD [2010] NSWCCA 209 at [66]. The question of probative value (and also the possibility of prejudicial effect) must be assessed having regard to the issues in the case: PWD at [63].

It is not necessary in criminal cases that the incidents relied on as evidence of the tendency be closely similar to the circumstances of the alleged offence, or that the tendency be a tendency to act in a way (or have a state of mind) that is closely similar to the act or state of mind alleged against the accused; or that there be a striking pattern of similarity between the incidents relied on and what is alleged against the accused: Ford at [38], [125], PWD at [64]-[65]. However, generally the closer and more particular the similarities, the more likely it is that the evidence will have significant probative value.

The possibility of prejudicial effect with which s 101 is concerned is the possibility that the jury will act on the evidence otherwise than by way of its rational effect on the probability of a fact in issue, for example by giving effect to “some irrational, emotional or illogical response” or “giving the evidence more weight than it truly deserves”: R v Suteski (2002) 56 NSWLR 182 at [116]. An assessment must be made whether the probative value of the evidence substantially outweighs any prejudicial effect that the evidence may have: R v Ellis (2003) 58 NSWLR 700 at [94]- [95]. If the evidence passes the s 101 test, it will a fortiori not be excluded under s 137: Ford at [59].

One matter that powerfully affects both the probative value of tendency evidence and the possibility of prejudicial effect is the risk of concoction or contamination of evidence. If the evidence of tendency from different witnesses is reasonably capable of explanation on the basis of concoction, then it will not have the necessary probative value: Hoch v The Queen (1988) 165 CLR 292. However, this will be so only if there is a real chance rather than a merely speculative chance of concoction: R v Colby [1999] NSWCCA 261 at [111], R v OGD (No 2) (2000) 50 NSWLR 433 at [74], [112]. The onus is on the Crown to negate the “real chance” of concoction: OGD at [74], R v F (2002) 129 A Crim R 126 at [48].

Relevant to consideration of concoction are the factors mentioned in Hoch at 297, namely relationship, opportunity and motive. One of these on its own is not sufficient to base a finding of a real possibility of concoction: R v RN [2005] NSWCCA 413 at [15], OGD at [111] – [112].

(The admissibility of tendency evidence seems much easier in NSW than Victoria, particularly when compared with Victorian decisions from early in the year like CGL, PNJ v DPP [2010] VSCA 88 and NAM v R [2010] VSCA 95. The Victorian Court of Appeal frequently references the pre-UEA judgment of Winneke P in R v Papamitrou [2004] VSCA 12 when saying tendency evidence ought to be strikingly similar in nature if it's to have significant probative value.)

The Court in BP v R said it distinguished CGL on its facts. Exactly what those facts were is elusive and not explicitly spelled out in the judgment.

Tendency or coincidence?


The second ground of the appeal advanced that the trial judge's directions to the jury confused s 97 and s 98.

The direction complained of was reproduced [in part] at 93,

93 In the course of summing up to the jury, the trial judge gave the following directions concerning tendency and coincidence evidence:

... You have evidence in the case in front of you that the Crown relies upon from each of the complainants that the accused committed each of those offences. The evidence that is before you, the Crown says, reveals a pattern of behaviour that reveals that the accused has a tendency to act in a particular way or to have a particular state of mind, namely, that he has a preoccupation. Perhaps you can use a stronger word, even an obsession with young prepubertal females and their sexual organs, particularly their vaginal areas.

Now you may look at the allegations and it is ultimately a matter for you of course to determine whether on the evidence that you accept the accused is found to have such a tendency. You may consider this evidence but if you are satisfied that the accused in this case did have such a state of mind you may use that fact in considering whether the accused committed the offences charged. The evidence must not be used in any other way. It would be completely wrong to reason that because the accused has committed one crime or has been guilty of one piece of misconduct that he is therefore a person of bad character and for that reason must have committed all the offences. That is not the purpose of the evidence at all. The evidence of the accused having such a state of mind can only be used in the way the Crown asks you to if you are firstly satisfied of that evidence. This is of the existence of such a tendency or state of mind beyond a reasonable doubt.

There is another aspect of this and it is this. Again, the accused is charged with the offences there on the indictment. And you have before you evidence that the Crown relies upon in establishing that he committed those offences. However, you also have before you evidence concerning the manner in which those offences were committed and these offences were on the Crown case committed very much in the family context, either within the family home or in the immediate surroundings of the family home, sometimes near to other members of the family and involved, in a number of instances on the Crown case, the young child involved being told not to tell anyone that if they did there would be consequence that he might be sent to gaol or that they would be to blame and that these circumstances surrounding the offences have a remarkable similarity. That evidence is before you because sometimes there may be such a substantial similarity between different acts and the circumstances in which they occur, that a jury may be satisfied that the person who did one act must have done the others. That is to say, there is such a substantial similarity between the acts and the circumstances in which they occurred but because of the improbability of the events occurring coincidentally, it establishes that the accused committed the act that is the subject of the offence because coincidence is a very unlikely explanation for the substantial similarity.

Earlier in my summing-up I mentioned a couple of instances where the accused have said in the tractor incident that the gearstick when drawn back would come into contact with the child's crotch which would be an innocent explanation and where he and one of the complainants was walking to the far paddock and put his arm around her, that there may have been either an accidental contact or there may be an innocent explanation for her allegation that her breast was squeezed on that occasion. You may, if you find beyond a reasonable doubt that there is substantial similarity in the allegations referred to here, utilise that in determining whether you are satisfied that such offence is not the result of coincidence or innocent explanation. So, the evidence of the pattern of behaviour can only be used in the way the Crown asks you to, if you are firstly satisfied that the accused did the other acts beyond reasonable doubt.

There was an obvious conflation of the two types of reasoning. Counsel for the appellant relied on another Victorian case, R v DCC (2004) 11 VR 129, where Callaway JA said [at 7],

It was necessary for the jury to understand the purpose for which the evidence on counts relating to one complainant was relevant to counts relating to the others. In particular, it was necessary for them to understand that they could reason from the improbability of coincidence, if they were satisfied beyond reasonable doubt that there was no collusion, but they were not to reason that, because the applicant was guilty in relation to one complainant, he was the kind of person who was likely to have abused the other complainants too.

The difference between probability reasoning and propensity reasoning is not a matter of words or artificiality. It is a different train of thought. It is one thing to say that the account of a witness is more likely to be true because of the similarities it bears to the independent account of other witnesses and the improbability that, by sheer coincidence, their accounts would be so similar. (Such reasoning could just as well be used in relation to armed robberies as sexual offences.) It is a different thing altogether to reason that, because the evidence of one witness is accepted in relation to offences committed against her, the accused is the kind of person who is likely to have committed similar offences against other complainants, ie, in the present context, to conclude that he is a paedophile. As I have said, the former chain of reasoning is permitted but the latter is not.

In the present case therefore it was necessary to warn the jury against propensity reasoning in relation to the charged acts as well as the uncharged acts. It was necessary to do so in relation to the charged acts partly because there were multiple complainants but also because the evidence relating to the charged acts was relied on as similar fact evidence.

Hodgson JA observed [at 132]:

In considering this passage, it is to be kept in mind that there was no provision similar to s 97 of the Evidence Act operating in Victoria until 2008, and that while coincidence reasoning was available to the extent permitted by common law, propensity or tendency reasoning was not. Also, the coincidence relied on in DCC was the coincidence of complaints of similar sexual assaults by each of three stepdaughters; whereas in the present case, the coincidence relied on was not that of allegedly similar complaints by different persons, but of allegedly similar acts of the appellant.

Accordingly, in my opinion, there was not in this case the sharp distinction between tendency and coincidence reasoning identified in DCC. Tendency reasoning was permissible in this case, and although in my opinion the similarities between the acts alleged against the appellant were not so striking that satisfaction as to the occurrence of some could directly make it significantly more likely that the appellant committed others, they were such that the commission of some could evidence a tendency and thereby increase the probability that the appellant committed others.

Concoction


The final point was the extent to which the Crown was obliged to exclude the possibility that the witnesses had spoken with one another and concocted similar accounts, deliberately or inadvertently, undermining the value of the tendency evidence. The Court was clearly satisfied that the risk in this case was low.

Since the repeal of s 398A of the Crimes Act 1958 the effect of the possibility of witness collusion on the admissibility of tendency evidence has been uncertain in Victoria. Hodgson JA tentatively expressed this view [at 123],

In my view, it is not a risk of any contamination whatsoever that would necessarily require the exclusion of evidence: it must be a risk of contamination that goes to the substance of the evidence, and not merely to incidental details of no materiality. I accept that, unless the Crown negates a real chance of contamination going to the substance of the evidence, then the evidence of other witnesses should not be admitted as tendency evidence. However, the risk of unconscious influence as to incidental details would not in my view necessarily require the evidence to be excluded.

Tuesday, 14 December 2010

R v Tran [2010] VSC 560: positive identification

R v Tran [2010] VSC 560 is a decision of Hollingworth J presiding over a murder trial. The judgment concerns the admissibility of the selection of the accused's picture from an array of photographs shown to an eyewitness.



Pitkin v R (1995) 80 A Crim R 302 is often quoted as authority for the proposition (amongst others) that it's unsafe to convict on a less-than-positive identification. While this is true, that doesn't mean that a less-than-positive identification is inadmissible, or that a trier of fact cannot use a less-than-positive identification in combination with other circumstantial evidence to find the prosecution case proven beyond reasonable doubt.



The facts



Two prosecution witnesses were each shown a selection of photographs arrayed in a folder (a photoboard) and asked to nominate, if possible, the man they saw with the deceased on the day of his death. One of the witnesses eventually selected the accused's photo, while the other merely said the accused's photo was 'like' the man he saw on that day.



The first witness made his selection this way (as described in his police statement):



I indicated to Photo Number 11 by pointing and saying:



1. They all look similar 11 could be it.



2. I remember that he was taller than average Asian, slender looks young (maybe 18).



3. Remember his lips – Asian lips normally thin whereas white people’s lips are usually fuller and this bloke had fuller lips.



4. Definitely not number 8, I reckon its number 11.



Question – Where have you seen number 11 before?



Reply – In the Telstra building the day the guy was bashed. It was the other guy that I have looked at earlier that had the bat when I saw them.




The first witness was cross-examined at the committal to the effect that, like the second witness, he wasn't sure whether the person he identified was the person he saw with the deceased. The first witness replied in his evidence, “No, I am sure that this is the bloke.”



Hollingworth J [at 21],



Defence counsel argued that [the first witness] did not make a positive identification of the accused, and the evidence was therefore inadmissible. I rejected both of those submissions, for the following reasons.



Had [the first witness's] proposed evidence gone no further than his witness statement, there might have been some room for argument about whether or not he had positively identified the accused, or merely said something to the effect of “I think it is him” or “he is similar to the man I saw”. But, when regard is had to his evidence at the committal, it is clear that he positively identified number 11, the accused, as the other man present at the squat at the relevant time.



Even if he had not made a positive identification, [the first witness's] evidence would have been admissible as part of the Crown’s circumstantial case. Evidence to the effect that an accused person is similar to, or resembles, the offender has been held to be admissible as part of the circumstantial evidence in cases involving issues of identification: Murphy v The Queen (1994) 62 SASR 121 and Festa v The Queen (2001) 208 CLR 593. Although such evidence is not sufficient in itself to sustain a conviction (Pitkin v R (1995) 80 A Crim R 302), it may nevertheless form part of a circumstantial case pointing to the accused as the offender.



As far as [the other witness] was concerned, the Crown accepted that he did not make a positive identification of the accused. However, his evidence was admissible as part of the Crown’s circumstantial case, on the authorities just mentioned.




Hollingworth J declined to reject the evidence under ss 135 or 137, deciding (similar to the way the Court of Appeal did in DPP v B B; DPP v Q N [2010] VSCA 211) that prejudice could be overcome by suitable jury directions.

Wednesday, 8 December 2010

Hili v The Queen; Jones v The Queen [2010] HCA 45: sentencing statistics and current sentencing practices

Further Edit: Additional remarks, referring to Hudson and Hili, were made by the Court of Appeal in Russell v The Queen [2011] VSCA 147.



Buchanan JA [beginning at 2]:



A sentencing judge is required to have regard to, inter alia, current sentencing practices[1] and accordingly will take into account in the instinctive synthesis of relevant sentencing considerations statistics relating to sentences imposed for the offence and the results in comparable cases.



Counsel for the appellant in this case placed statistics at the forefront of his case and subjected a number of other sentencing decisions to a detailed analysis. Counsel pointed to aspects of other cases said to disclose more serious offending than the present case and relied upon lesser sentences in those cases to argue that the judge in the present case erred.



In my opinion, such an approach is misconceived. Cases said to be comparable can do no more than provide a general guide, impression or background. They are not a benchmark that acts as a straightjacket. Further, such an approach runs the risk of adding or subtracting periods of time to reflect aggravating and mitigating factors present or absent in the cases being compared. As Kaye AJA has explained, statistics are an even rougher guide to an appropriate range.



Edit: Although the High Court was careful to specifically limit its observations about sentencing to federal cases, Hili & Jones has already been taken up and referred to by the Victorian Court of Appeal in support of general sentencing principles.

In Hudson's case, handed down last Thursday, one of the arguments raised attacked the non-parole period as being unjustifiably high when compared with other cases. The Court comprehensively rejected the use of sentencing statistics as anything more than a guide.

Ashley, Redlich and Harper JJA [beginning at 25],

The applicant sought to demonstrate, by reference to a number of ‘worst’ category cases of murder including R v Denyer [1995] 1 VR 186, R v Beckett, Director of Public Prosecutions v Adajian, R v Debs & Roberts, and R v Williams, that the non-parole period should not have been greater than 30 years. Aggravating factors were identified in some of those cases which were absent in this case, yet the offender in those cases received the same or a lesser sentence. In other cases said to be equally serious, a lower sentence was imposed. Counsel acknowledged that the sentencing judge had been taken to a number of these cases to establish where the applicant’s case fell in comparison with those cases.

The submission was unsound for two reasons. First, comparable cases may not be used for the purpose of trying to identify a sentence that is a fair comparison with the circumstances of the instant case. Second, the sentence under challenge will not fall outside the range because there are other types of ‘worst’ cases arguably more serious which have attracted the same penalty or cases no less serious which have attracted lesser penalties.

Comparable sentences are only a general guide as to the ‘range’

The selection of a sentence involves the exercise of a judicial discretion which is informed by the circumstances in which the offence was committed and the character, antecedents and conditions of the offender. It is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty. The method of instinctive synthesis will by definition produce outcomes upon which reasonable minds will differ. For that and other reasons, counsel are precluded from submitting that a specific sentence should be imposed.

Sentences imposed in ‘like’ cases provide some indication of the range that is open in the proper exercise of the discretion: Hili v The Queen [2010] HCA 45 (Unreported, French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, 8 December 2010) [53]-[54]; R v Shepherd [2003] NSWCCA 287; (2003) 142 A Crim R 101, 17. They will indicate, subject to relevant discretionary considerations, the order of the sentence that might be expected to be attracted by a certain type of offender who commits a certain type of offence. A general overview of sentences imposed for offences of a similar character will play a part in informing the ‘instinctive reaction’ when a court is asked to consider whether a sentence is manifestly inadequate or excessive. They are an indicator of ‘current sentencing practices’ which is one factor that the court must consider under s 5(2) of the Sentencing Act 1991. By facilitating the identification of the range, similar types of cases serve the criminal justice objective that sentencing should be systematically fair and consistent. They advance the underlying value of equality under the law.

‘Like’ cases can only, at best, provide a general guide or impression as to the appropriate range of sentences: R v Jimmy. In that context it has been said on many occasions that ‘comparable cases’ can only provide limited assistance to this Court: R v Price (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Crockett, O’Bryan and Gobbo JJ, 14 April 1987); DPP v Maynard [2009] VSCA 129 (Unreported, Ashley, Redlich and Kellam JJA, 11 June 2009) [35]-[36]; DPP v Moore [2009] VSCA 264 (Unreported, Neave and Redlich JJA and Lasry AJA, 24 November 2009) [13]; WCB v R [2010] VSCA 230 (Unreported, Warren CJ and Redlich JA, 10 September 2010) [63]. They may however be used in search of unifying principles: Hili v The Queen [2010] HCA 45. That was not the use to which counsel sought to employ them here.

Before both the sentencing judge and this Court, cases said to fall within the same category were examined in some detail to demonstrate which cases were or were not a fair comparison with the present case. That analysis, it was submitted, warranted the conclusion that a sentence of no more than 30 years was the correct non-parole period.

A detailed examination of ‘like’ cases to implicitly suggest that a particular sentence is the correct one or that the sentence should fall within a very narrow band, is not permissible. Sentences imposed in other cases are not precedents which must be applied unless they can be distinguished: R v Fong [2002] NSWCCA 320. Where principles of parity do not apply, they are not to be regarded as some sort of ’benchmark’ which is determinative of the sentence to be imposed. To attempt to so utilise other cases within a particular category involves the unwarranted assumption that all of the relevant factors which bore upon the imposition of those comparative sentences can be identified and weighted. There may be many reasons why the sentences in those cases should not be viewed by the sentencing judge as an appropriate sentence, or even a guide. Because of the dissimilarity in the offending conduct in other cases and the matters personal to the offenders, it would be an error to directly compare the sentence under challenge with that imposed in other cases: R v Morgan (1993) 70 A Crim R 368.

To undertake and utilise a comparative analysis, whether at first instance or on appeal, in an attempt to identify a sentence in a ‘like’ case that is a fair comparison, is calculated to introduce a level of mathematical precision inimical to the instinctive synthesis. Where the parity principle is not enlivened, recourse to other cases is not undertaken to strike some equality with another particular sentence. Consistency is to be achieved by the application of the appropriate range and not from the application of single instances of ‘like’ cases. The adoption of a sentence selected by an earlier court, even if the case is very similar, would be to sacrifice the proper exercise of judicial discretion in pursuit of consistency of sentencing: R v Fong [2002] NSWCCA 320.

It is no part of the sentencing task, or the assessment of a sentence on appeal, to embark upon that level of analysis of comparable cases. However, there has been an increasing tendency to overlook these limitations. Accordingly one must be wary of attempts to examine a comparable case in ‘micro detail’ (KC v The State of Western Australia) as such an approach will ordinarily be indicative of an intent to use the case as providing something more than a guide to a range.

Other jurisdictions have also deprecated the practice of inviting comparisons between the challenged sentence and sentences in other cases: R v Shepherd [2003] NSWCCA 287; (2003) 142 A Crim R 101, [17]; R v George [2004] NSWCCA 247; (2004) 149 A Crim R 38, 47; Western Australia v SJH [2010] WASCA 40 (Unreported, Owen, Wheeler and Buss JJA, 14 December 2009) [44]–[45]; KC v The State of Western Australia [2008] WASCA 216 (Unreported, Wheeler, McLure and Buss JJA, 23 October 2008) [49] (where Buss JA disapproved the practice of resorting to ‘micro-detail') Such comparisons have been viewed as providing no meaningful assistance other than as a general indicator of whether the impugned sentence is outside the range. This approach, well settled in New South Wales, was the subject of recent consideration in Jimmy v R, in which Campbell JA referred to the following statement of Wood CJ at CL, in R v George:

It is necessary to restate that the practice, which appears to have developed in recent times, of approaching sentence appeals by a search for, and comparison with, sentences passed in other cases, is neither helpful nor justified by authority: see R v Morgan (1993) 70 A Crim R 368; R v Salameh NSWCCA 9 June 1994 and R v Trevenna [2004] NSWCCA 43; (2004) 149 A Crim R 505 at [98] to [101] per Barr J. At the most, other cases can do no more than become part of a range for sentencing, which in the case of manslaughter is wider than for any other offence.

The difference in objective and subjective culpability, which is found in these decisions, is such that any search for a correlation between the case at hand and another decided case is to ignore the judicial discretion which is involved in the individual sentencing exercise required.

On appeal, the question is not whether the sentence under challenge is more or less severe than some other sentence that is within the range, but whether the sentence falls within the range of sentences that are appropriate to the objective gravity of the offence and to the matters personal to the offender.

The applicant did not confine the use to be made of comparable cases to providing a guide as to the range of sentences that were appropriate. An attempt to demonstrate that within the determined category - the worst category of the offence – there were worse cases which had attracted the same sentence or that there were cases no worse which had attracted a lesser sentence, does not disclose whether the challenged sentence is unreasonable or unjust.

Here the applicant invited a comparison of non-parole period sentences in ‘like’ cases. It is to be remembered that the minimum term provides for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence: Power v R [1974] HCA 26; (1974) 131 CLR 623, 629 (Barwick CJ, Menzies, Stephen and Mason JJ); R v VZ [1998] VSCA 32; (1998) 7 VR 693, 697 Consequently, an attempt to compare sentences in terms of the minimum periods imposed will be of even less utility, as the nature of the offence does not assume the same importance which it has when the head sentence is determined, while the personal circumstances of the offender will generally be given greater weight than when fixing the head sentence.

The Crown had originally advanced a ground of appeal asserting that current sentencing practices for the offence of attempted murder are inadequate. The ground was not pursued in argument. The Court of Appeal had this to say [at 79 and 80],

Under ground 3 in its notice of appeal, the Crown contended that current sentencing practices in respect of the offence of attempted murder are inadequate. However, at the hearing, at the outset of making his submissions, senior counsel for the Director informed the Court that it wished to abandon this ground of appeal. The reason given was that this Court should not take into account the inadequacy of current sentencing practices when this was not a matter that had been raised before the sentencing judge.

It is correct that this Court would not in re-sentencing an offender take into account the fact, if it be established, that current sentencing practices for that offence were inadequate if such a contention had not been disclosed to the offender before his plea: DPP v CPD (2009) 22 VR 533, 549; Winch v The Queen [2010] VSCA 141 (Unreported, Maxwell P, Ashley and Redlich JJA, 17 June 2010) [27]. Here the applicant pleaded guilty to counts 4 and 5 and he was entitled to assume that he would be sentenced in accordance with current sentencing practices. It would work a great injustice if on appeal this Court were to impose a higher sentence than could reasonably have been anticipated when considering whether to plead guilty. There may be circumstances in which the sentencing judge or this Court would not be precluded from considering and commenting upon the adequacy of current sentencing practices were the Director to make submissions supported by appropriate materials which permitted conclusions to be reached. The experience of this Court however is that on a Crown appeal, a ground of appeal asserting that current sentencing practice for a particular offence was inadequate, when raised, has been consistently abandoned by the Director at the commencement of the appeal. That, of course, is entirely a matter for the Director. But it can be said that where it is appropriate for the Director to advance an argument as to current sentencing practices, it ought be advanced before the sentencing judge or this Court depending on the circumstances, and not elsewhere.



In Simkhada v R [2010] NSWCCA 284 the NSW Court of Criminal Appeal made comments about the limited usefulness of sentence statistics [Hulme J at 55]:

55 There is a very wide range of circumstances attending an offence of wounding with intent to cause grievous bodily harm, particularly in relation to the severity of the wound, the manner in which it was caused and the reason it was caused. The extent of the grievous bodily harm intended, if discernible, and any relationship between the perpetrator and the victim are further variants. Accordingly, I am of the view that considerable caution needs to be applied in considering statistics for such an offence.

It's a familiar observation that has been discussed here before. Judicial consideration (and criticism) of statistical data is more common in NSW courts because of the information easily available from the Judicial Information Research System (JIRS). (These statistics are more like the Sentencing Snapshots of the Sentencing Advisory Council, with many cases represented in charts or graphs, than the tables of cases described in the JCV's Sentencing Manual.)

Past cases act as a useful guide to an appropriate sentence. (In Victoria s 5(2)(b) Sentencing Act 1991 requires current sentencing practices to be taken into account). But in Wong v R (2001) 207 CLR 584 the majority [Gaudron, Gummow and Hayne JJ, at 65 and 66] warned against reliance on raw sentencing figures,

To focus on the result of the sentencing task, to the exclusion of the reasons which support the result, is to depart from fundamental principles of equal justice. Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect. Publishing a table of predicted or intended outcomes masks the task of identifying what are relevant differences.

Further, to attempt some statistical analysis of sentences for an offence which encompasses a very wide range of conduct and criminality (as the offence now under consideration does) is fraught with danger, especially if the number of examples is small. It pretends to mathematical accuracy of analysis where accuracy is not possible. It may be mathematically possible to say of twenty or thirty examples of an offence like being knowingly concerned in the importation of narcotics where the median or mean sentence lies. But to give any significance to the figure which is identified assumes a relationship between all members of the sample which cannot be assumed in so small a sample. To take only one difficulty, why were the highest and lowest sentences set as they were? Do they skew the identification of the median or the mean? The task of the sentencer is not merely one of interpolation in a graphical representation of sentences imposed in the past. Yet that is the assumption which underlies the contention that sentencing statistics give useful guidance to the sentencer.

It's against this backdrop that Hili v The Queen; Jones v The Queen [2010] HCA 45 was decided, and handed down this week.

The appeals

Both appellants were targets of the Commonwealth‘s Project Wickenby. They pled guilty in the District Court of New South Wales to federal offences committed in evading income tax. The Commonwealth DPP appealed their sentences on the ground of manifest inadequacy and the Court of Criminal Appeal in NSW increased their penalties.

The appellants sought to challenge that increase. The High Court dismissed the appeals. While the decision related specifically to federal sentencing principles, the Court restated its doubts about the usefulness of raw sentencing data in arriving at appropriate sentences.

French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, at 46 to 49:

The mathematical approach to fixing the period to be served in custody that was urged in the Court of Criminal Appeal (and maintained on the applications to this Court) was advanced as a means of ensuring consistency in the sentencing of federal offenders. How is consistency in federal sentencing to be achieved?

As Gleeson CJ pointed out, in Wong v The Queen:

"All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency." (emphasis added)

Consistency is not demonstrated by, and does not require, numerical equivalence. Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of federal offenders sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results.

The consistency that is sought is consistency in the application of the relevant legal principles. And that requires consistency in the application of Pt IB of the Crimes Act. When it is said that the search is for "reasonable consistency", what is sought is the treatment of like cases alike, and different cases differently. Consistency of that kind is not capable of mathematical expression. It is not capable of expression in tabular form. That is why this Court held in Wong that guidelines that the New South Wales Court of Criminal Appeal had determined should be used in sentencing those knowingly concerned in the importation of narcotics were inconsistent with s 16A of the Crimes Act. Those guidelines had made the weight of the narcotic the chief factor determining the sentence to be imposed, thus distracting attention from the several considerations set out in the non-exhaustive list of matters prescribed by s 16A(2) as matters "the court must take into account" in fixing a sentence, if those matters are relevant and known to the Court.

Heydon J wrote his own judgment. His judgment appears to advocate a wider sentencing discretion than the majority. He found [in 78 and 79] that while a sentencing judge is obliged to apply the law,

... in exercising its discretionary judgment, the primary duty of a sentencing court is to be true to its own perception of what degree of severity or leniency is appropriate.

If the position were otherwise, a later court would be compelled to impose sentences on offenders which it thought to be too harsh or too lenient merely because earlier courts had followed that path, even though the question whether a sentence should be heavy or light is not a question of law. This would be a novel application of the doctrine of precedent. For a "sentence itself gives rise to no binding precedent. What may give rise to precedent is a statement of principles which affect how the sentencing discretion should be exercised": Wong v The Queen (2001) 207 CLR 584 at 605 [57] per Gaudron, Gummow and Hayne JJ.

It's particularly interesting to read these remarks in light of the recent attempts by the Victorian DPP to challenge current sentencing practices.