If last year is any guide, we'll be trying out some new things during the hiatus. There's lots to be done, with this blog and otherwise. Normal service will resume at the beginning of February.

The best wishes of the season to you and yours.
49B Offence to consume intoxicating liquor while driving
(1) A person must not consume intoxicating liquor while the person is driving a motor vehicle or is in charge of a motor vehicle.
Penalty: 10 penalty units.
(2) For the purposes of subsection (1) a person is not taken to be in charge of a motor vehicle unless that person is a person to whom section 3AA(1)(a), (b) or (c) applies.
It is inconsistent with the road safety message to the community about drinking and driving that a driver can lawfully consume alcohol while driving a vehicle in Victoria.
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In our view, it cannot be said that at the time of the enactment of the Act in 2002 the common law in Australia recognised the privilege asserted by Mrs Stoddart or that it does so now. We agree with the conclusion of Kiefel J in Boulton [2005] 155 A Crim R 152 that in All Saints and the subsequent decisions, in particular Hoskyn and Riddle, the term "compellable" was used to indicate that the witness might be obliged to give evidence in the ordinary sense of the term, not that, in response to particular questions, a privilege might be claimed by the witness.
The law is always certain although no one may know what it is.
It is now time to answer the questions posed for the opinion of the court by the justices. In answer to the first question: as part of the reasons for their decision, they were entitled to conclude that the use by the appellant of the expletives I have outlined, a total of three times, amounted to abusive or insulting words or behaviour. But I find that there was no evidence in this case on which they could have concluded that either of the police officers had been caused or was likely to have been caused harassment, alarm or distress as a result of the use of those words.
A number of cases establish that expletives such as "fuck" or "fucking" are potentially abusive words, whether the addressee is a police officer or a member of the public. But Parliament has not made it an offence to swear in public as such.
Where witnesses have given oral evidence of an incident which forms the basis of a charge under section 5 of the Public Order Act 1986, but have said nothing and been asked nothing about experiencing harassment, alarm or distress, there is no sound basis for the court to reach that conclusion for itself. This is particularly so in the case of police officers because, as Glidewell LJ observed in Orum, they hear such words all too frequently as part of their job. This is not to say that such words are incapable of causing police officers to experience alarm, distress or harassment. It depends, as the court said in Orum and Southard, on the facts; but where a witness has been silent on the point it is wrong to draw inferences.
[3] At the outset, it is important to note what this appeal is, and is not, about. In particular, this is not a case in which, at any material time, the police either had arrested the respondent, or were in the course of arresting him. Nor, on the facts of this case, was there evidence that the respondent was fleeing from the police, having been informed that the police intended, or were attempting, to arrest him. Further, it was accepted, on appeal, that this is not a case in which the respondent, as a suspect, had refused to provide his name and address in response to a request by a member of the police force, pursuant to s 456AA of the Crimes Act 1958. Rather, on this appeal, the issue which must be determined is whether, on the particular facts of this case as set out in the evidence which was led before the Magistrate, the police had the power to require the respondent, as a suspect, to stop and speak to them, notwithstanding that the police were not then in the course of arresting him. The resolution of that issue is critical to the question whether, at the relevant time, the police were acting “in the execution” of their duties for the purposes of s 52(1) of the [Summary Offences] Act.
(1) For the purposes of this subdivision (that is, subdivision 30A) a person is in custody if he or she is —
(c) in the company of an investigating official and is—
(i) being questioned; or
(ii) to be questioned; or
(iii) otherwise being investigated—
to determine his or her involvement (if any) in the commission of an offence if there is sufficient information in the possession of the investigating official to justify the arrest of that person in respect of that offence.
[37] Rather, in my view, the correct construction of the provisions of Division 30A is that contended for by Mr Carter. It is clear that the intention of the subdivision was to ensure that suspects, who are undergoing questioning by a police officer, have the same rights and protections as those which are provided, by the subdivision, to suspects who are under lawful arrest. Subdivision 30A constitutes a scheme or code, stipulating a number of basic protections, which are to be assured to a suspect, who is being questioned, whether that suspect is under arrest or not. In particular, subdivision 30A provides, in respect of any suspect who is undergoing questioning by police (whether under arrest or not): that that person be informed of his or her right to remain silent (s 464A(3)); that that person be informed, before questioning, that he or she may communicate with a friend, relative and legal practitioner (s 464C); that such person (where necessary) have an interpreter (s 464D); that if such a person is under the age of 18 years, the questioning not be carried out unless a parent or guardian, or other independent person, is available, and the suspect has been permitted to communicate with that person (s 464E); that, if the person in custody is not a citizen or permanent resident, that person be informed that he or she may communicate or attempt to communicate with the consular office of the country of which the person is a citizen (s 464F); that a recording be made of the giving to the person of the information required by the provisions to which I have just referred (s 464G); and that, where practicable, any confession or admission made by such person be recorded (s 464H). None of those provisions give rise to an implication, let alone a necessary implication, that the police have a right to detain a person, in custody, for questioning, without arresting that person. Rather, it is clear, from the structure of subdivision 30A, that that set of provisions is designed to extend the basic protections, stipulated by subdivision 30A, to persons who are being questioned, notwithstanding that they are not under arrest.
(3) Subject to any limitations or restrictions provided by the rules, an authorized officer may require a
person who wishes to enter the court premises, or is on the court premises—
(a) to submit to a frisk search or a search of any thing in the person's possession;
(b) to submit to a scanning search of his or her person or of any thing in the person's possession;
(c) to surrender to the authorized officer any item that the authorized officer believes on reasonable grounds is a prohibited item.
prohibited item means—
(a) a firearm; or
(b) an explosive substance; or
(c) an offensive weapon; or
(d) an item that is likely to affect adversely the security, good order or management of the court premises;
offensive weapon means any article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him for such use;
(9) An authorized officer may refuse a person entry to the court premises or remove a person from the court premises if the authorized person believes on reasonable grounds that the person is likely to affect adversely the security, good order or management of the court premises.
(2) A reference in this Act to "the security, good order or management of the
court premises" includes—
(a) the safety of all persons who work at or attend the court premises;
(b) the safety and welfare of all persons in custody at the court premises;
(c) the good order or management of legal proceedings or other business conducted at the court premises.
There has been a number of other of decisions to the effect that the offence of obstructing or hindering the police is committed if the acts of an accused make it more difficult for the police to carry out their duties: However, Mr Hamilton has not been charged with obstructing or hindering the police under s 52(1) of the Act. He has been charged with resisting LSC Hemingway in the execution of his duty.
The question arises – what is an offence? If A attacks B and, in doing so, stabs B five times with a knife, has A committed one offence or five? If A in the dwelling house of B steals ten different chattels, some perhaps from one room and some from others, has he committed one offence or several? In many different situations comparable questions could be asked. In my view, such questions when they arise are best answered by applying common sense and by deciding what is fair in the circumstances. No precise formula can usefully be laid down but I consider that clear and helpful guidance was given by Lord Widgery C.J. in a case where it was being considered whether an information was bad for duplicity: see Jemmison v Priddle [1972] 1 Q.B. 489, 495. I agree respectfully with Lord Widgery C.J. that it will often be legitimate to bring a single charge in respect of what might be called one activity even though that activity may involve more than one act. It must, of course, depend upon the circumstances.
The appellant was under surveillance by the Special Operations Group. Police watched the appellant exit a house in St Albans and enter the driver’s seat of a Commodore.
Police vehicles then attempted to intercept the appellant. A white police van pulled up beside the appellant’s car and another police vehicle activated its siren. Hearing the siren, the appellant repeatedly rammed a red sedan parked in front of his car until an avenue of escape was created and then accelerated down the street, colliding forcefully with a green four-wheel drive police vehicle which blocked his escape. Once the appellant’s vehicle was stationary, Operator 55 (a policeman) opened the door and grabbed the appellant’s shoulder shouting, ‘Police, don’t move.’ But the appellant struggled free and reversed rapidly causing the driver’s door to hit Operator 55’s lower left leg. The impact forced Operator 55 backwards until he collided with Operator 78 (another policeman) knocking him to the ground. Operator 55 sustained bruising and swelling of his left lower leg and Operator 78 landed heavily on his right elbow and sustained minor grazing and soreness (Charges 5 and 6, assault police).
The appellant reversed past the white police van, shearing off the door. He continued, hitting another unmarked police vehicle and a power pole guide wire on the nature strip. Then he accelerated forward along the footpath. The green four-wheel drive collided with the appellant’s car as he drove along the footpath, forcing his vehicle into a fence. Operator 96 (another policeman) was struck by the appellant’s vehicle and lifted from the ground into the fence. (Charge 4, reckless conduct endangering life).
The appellant attempted to flee on foot and was tasered. He got back into his car, however, and was tasered again before finally being arrested. Then he was taken to the police station.
Nor in my view is there anything illusory or artificial about the way in which the Crown drew a distinction between the specific acts of delinquent driving which constituted the assault of Operators 55 and 78 (which is to say, accelerating backwards into Operator 55 as he attempted to arrest the appellant) and the balance of the appellant’s delinquent driving which recklessly endangered the lives of others (by repeatedly ramming the red sedan; accelerating down the street so as to collide forcefully with the green four-wheel drive police vehicle blocking the appellant’s escape; reversing past the white police van, thereby shearing off its door; continuing on and hitting another unmarked police vehicle and a power pole guide wire on the nature strip; and finally accelerating forward along the footpath into a further collision with the green four-wheel drive, hitting Operator 96, and ultimately careering into the fence).
It is true that the Chief Judge referred in his sentencing remarks to ‘the driving’ constituting the offence the subject of Count 4. Perhaps, his Honour could have been more precise in his description of the offence. But, with respect, it is plain what his Honour intended. And, in view of the Plea Opening, there could not have been any doubt about it. It was the Plea Opening which was taken to set forth the facts agreed for the purposes of the plea and there is no reason to doubt that it was that which his Honour intended to encapsulate in the short hand form of expression which he adopted.
I consider that the following propositions should guide this Court in relation to the use to be made of the unproclaimed s 98F(3): (1) An unproclaimed provision forms part of the statute or amending statute when that statute or amendment was enacted. (2) Accordingly, although not yet in force, the unproclaimed provision forms part of the statute to be construed and a court can, and should, have regard to it in construing the statute. It would be a curious result if a court could have regard, for example, to extraneous materials to discern the true legislative intention concerning the provisions in a statute, but not to a provision which the legislature itself had enacted at the same time as part of the statutory scheme. (3) Subject to the propositions which follow, a court should strive to construe the statute, including the unproclaimed provision, as a whole, taking into account the effect which the unproclaimed provision has in the statutory scheme. That does not mean that the court must proceed on the basis of a fiction, that is, on the basis that the unproclaimed provision is in fact in force. (4) The court should allow for the possibility that the legislature intended that some elements of a statutory scheme should come into operation at different times, and that the scheme should operate differently upon the coming into force of the later provisions. Just as the legislature may intend an amending Act to alter the meaning of a statute, so may it intend provisions enacted at the same time, but to come into operation at a later time, to have that effect; and (5) Like Waddell J, I consider that it is permissible for the court to take into account that an unproclaimed provision may never be proclaimed and accordingly never be in force.I can't remember coming across this before (though I don't have my copy of Pearce & Geddes with me right now). I wonder just how far this principle goes? Clearly, it suggests that new provisions yet to commence can assist with understanding how the legislation is supposed to operate. But does that mean it can make decisions based on what the legislation will be? For example, when Road Safety Act s 30 was amended to remove mandatory jail for a subsequent driving when disqualified offence, would it have been legitimate for a Court to adjourn a case in anticipation of that amendment commencing? It seems to me that that goes beyond mere interpretation, but after reading the extract above, I'm not sure one way or the other. Anyone out there know the answer?
[93] Although we have concluded that the appeal must be dismissed we would not wish it to be thought that the discretion should necessarily be exercised in the same way were the same issues to arise again for consideration in similar circumstances. We have identified error in his Honour’s reasons and expressed our serious reservations as to various findings made by his Honour. It should not be assumed that we would have made like findings or that we would have exercised the discretion in the same way had a finding of inadvertent or careless conduct been made.
The practice of not requiring the affidavits in support of warrants to be sworn on oath or affirmed.
[53] We should say something as to the endemic practice employed within certain sections of Victoria Police of not requiring the accuracy and truthfulness of the contents of affidavits in support of warrants to be sworn to on oath or by affirmation.
[54] The importance of making an affidavit in order to obtain a search warrant can hardly be gainsaid. Trials in courts in Victoria and in all other states and territories proceed upon the basis that the evidence that founds the findings of fact, which determine the guilt or innocence of those accused of crimes, is given on oath or by affirmation. Similarly, the reasonable grounds of which a magistrate must be satisfied before he issues a warrant authorising a member of the police force to enter and search land, premises or a vehicle and seize any thing or document and carry it before the Court, can only be established by evidence on oath or by affidavit.
[55] An affidavit is the written form of sworn oral testimony. It is an ancient method of providing evidence in court.[29] Until 1989, whenever police needed to obtain a warrant they were required to physically attend court and give sworn oral evidence before a magistrate as to the facts relied on to support the granting of a warrant. This was a clear and long standing indicator of the significance and gravity of obtaining a warrant. The 1989 Act amended the provision to enable evidence to be given orally on oath or on sworn affidavit.[30] The new alternative methods from 1989 onwards did not justify or contemplate a derogation of standards – the evidence was still required to be sworn.
[56] The fundamental role which oaths and affirmations play in our system of criminal law is readily apparent. The requirements of s 81 of the Act are not a mere technical ancillary to obtaining a search warrant. Just as courts proceed upon the basis of testimony sworn or affirmed, so do magistrates issue search warrants on the basis of testimony sworn or affirmed.
[57] A search warrant authorises an entrance upon property and the seizure of property which would otherwise constitute an unlawful trespass. The common law has jealously guarded private property rights and has upheld the right of property owners to exclude other people and the state. Search warrants, which are obtained ex parte, displace those rights. As the Court said in George v Rockett:
The enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature’s concern to give a measure of protection to [property] interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation. ((1990) 170 CLR 104 at [5])
Similarly, Lockhart J in Crowly v Murphy said:
Notwithstanding that Commonwealth and State legislation governs the law of entry, search and seizure in Australia today, it is necessary to bear in mind the fundamental legal conception of the freedom of the individual in his home or premises. It is the cardinal principle in the light of which the statutory authority for the issue and execution of search warrants is read. Even today, there is no right of common law to enter a person’s home or premises for the purposes of search or seizure without the permission of the owner or occupier, except in the case of a search for stolen goods. Entry without such permission or authority of a valid warrant is to commit a trespass and to render the trespasser liable to damages. ((1981) 52 FLR 123 at 142)
[58] To proffer to a magistrate material which is not sworn or affirmed in order to obtain a search warrant has a tendency to subvert a fundamental principle of our law.
The bill reforms the common law so that a new trial can be allowed in three situations.
The first situation is where there is 'fresh and compelling' evidence against the person (for example, where new DNA evidence links a person to a murder or a person confesses to having committed a murder). The second situation is where the original acquittal was 'tainted' (for example, by the commission by the accused person or another person of an 'administration-of-justice offence' such as bribery of a witness or perjury). The acquittal will be tainted if it is more likely than not that, but for the commission of the administration of justice offence, the accused person would have been convicted in the original trial. The third situation is where there is fresh evidence that the accused person has committed an administration-of-justice offence in respect of an acquittal and the prosecution seeks to bring charges for that offence notwithstanding the acquittal.
26. Right not to be tried or punished more than once
A person must not be tried or punished more than once for an offence in
respect of which he or she has already been finally convicted or acquitted in
accordance with law.
The primary right engaged by the proposed double jeopardy reforms is the right not to be tried or punished more than once in section 26 of the Charter Act. The proposed exceptions to the double jeopardy rule impose a limitation on the right in section 26 of the charter act but in my view they do so in a way that can be demonstrably justified under section 7(2).
6 Mention hearing
After section 53 of the Criminal Procedure Act 2009 insert—
"53A Documents to be provided by police at first mention hearing
(1) This section applies if the informant is a member of the police force.
(2) At the first mention hearing, the informant must have the following documents available for provision to the accused or the legal 10 practitioner representing the accused—
(a) a copy of the preliminary brief (if prepared);
(b) a copy of the full brief (if prepared);
(c) if neither a preliminary brief nor a full brief has been prepared—
(i) a copy of the charge - sheet in respect of the alleged offence; and
(ii) a statement of the alleged facts on which the charge is based; and
(iii) either—
(A) a copy of the criminal record of the accused that is available at the time of the first mention hearing; or
(B) a statement that the accused has no previous convictions or infringement convictions known at that time.
The applicant raised one further point that was not raised before the judge. That was that concoction or contamination may be considered when considering the probative value of the evidence. Doubtless in principle that is so, but there must be a basis for doing so as distinct from mere speculative suggestion. If it is desired to raise the point it should be done before the judge. To seek to raise the point before this court now for the first time is to short-circuit the ordinary processes. It is apparent from what counsel said that it is a point that he desires to raise and accordingly it should be left to be considered by the trial judge. In that sense the present application may be seen to be somewhat premature.
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].
drug of dependence means a substance that is-
(a) a drug-
(i) specified in column 1 of Part 1 of Schedule Eleven; or
(ii) included in a class of drug specified in column 1 of Part 1 of Schedule Eleven; or
(b) any fresh or dried parts of any plant specified in column 1 of Part 2 of Schedule Eleven; or
(ba) prescribed as a drug of dependence in accordance with section 132AA whether specified as included in Part 1, Part 2 or Part 3 of Schedule Eleven; or
(c) a drug-
(i) specified in column 1 of Part 3 of Schedule Eleven; or
(ii) included in a class of drug specified in column 1 of Part 3 of Schedule Eleven- and includes-
(d) any form of a drug specified in column 1 of Part 1 or column 1 of Part 3 of Schedule Eleven, whether natural or synthetic, and the salts, derivatives and isomers of that drug and any salt of those derivatives and isomers; and
(e) any-
(i) drug specified in, or drug included in a class of drug specified in column 1 of Part 1 or column 1 of Part 3 of Schedule Eleven, whether natural or synthetic; or
(ii) salts, derivatives or isomers of a drug specified in column 1 of Part 1 or column 1 of Part 3 of Schedule Eleven; or
(iii) salt of any derivative or isomer mentioned in subparagraph (ii)- contained in or mixed with another substance; end user declaration means a declaration required for the purposes of section 80J, 80L or 80M, as the case requires;
(2) A substance is a controlled drug if the substance (the drug analogue ) is, in relation to a controlled drug listed in subsection (1) (or a stereoisomer, a structural isomer (with the same constituent groups) or an alkaloid of such a controlled drug):
(a) a stereoisomer; or
(b) a structural isomer having the same constituent groups; or
(c) an alkaloid; or
(d) a structural modification obtained by the addition of one or more of the following groups:
(i) alkoxy, cyclic diether, acyl, acyloxy, mono-amino or dialkylamino groups with up to 6 carbon atoms in any alkyl residue;; or
(ii) alkyl, alkenyl or alkynyl groups with up to 6 carbon atoms in the group, where the group is attached to oxygen (for example, an ester or an ether group), nitrogen, sulphur or carbon;
(iii) halogen, hydroxy, nitro or amino groups
(e) a structural modification obtained in one or more of the following ways:
(i) by the replacement of up to 2 carbocyclic or heterocyclic ring structures with different carbocyclic or heterocyclic ring structures;
(ii) by the addition of hydrogen atoms to one or more unsaturated bonds;
(iii) by the replacement of one or more of the groups specified in paragraph (d) with another such group or groups;
(iv) by the conversion of a carboxyl or an ester group into an amide group; or
(f) otherwise a homologue, analogue, chemical derivative or substance substantially similar in chemical structure;
however obtained, except where the drug analogue is separately listed in subsection (1).
27 The argument in its favour is based in part upon references in her Honour’s reasons for sentence to the similarity, in some respects, of 4-MMC to other designer stimulants. Her Honour also referred to its use as an alternative for amphetamine related drugs and MDMA (or ‘ecstasy’). Then the judge said:
In terms of the harm your offending caused or could have caused, [it] is unclear what harm the drug 4-MMC causes. Fortunately, the authorities detected you and your offending was stopped. Due to the vigilance of customs officials, this clearly stopped further amounts of these drugs getting into the community. The custom’s vigilance, of course, comes at the expense and inconvenience of the Australian community as a whole.
The appellant submits that error is revealed by the references to other designer stimulants, to the use of 4-MMC as an alternative for both amphetamines and ecstasy, and to the harm caused by 4-MMC. I agree with these submissions. The Director points, correctly, to authorities which establish that, in sentencing for drug offences, it is impermissible to apply ‘a judicially constructed harm-based gradation of penalties’. I depart from him, however, when he goes on to submit that the sentencing judge drew an inference favourable to the respondent from the absence of any specific evidence of harm caused by 4-MMC.
The appellant submits that the drawing of such an inference is evidenced by her Honour’s observation in her reasons for sentence that it was not clear what harm the drug caused or could cause. So far as I can see, however, there is (apart from the impugned passage) nothing in those reasons for sentence to suggests that she took into account as a mitigating factor any notion that the relative harm suffered by consumers of 4-MMC, and the general public which must share the cost of its use, was less than for other illicit drugs. Indeed, during the course of argument on the plea, her Honour made it quite clear that she was aware that, in her words, ‘an illicit drug is an illicit drug, it doesn’t matter whether it is heroin or marijuana.’