Wednesday, 21 December 2011


Well, that's it for regular posting for another year.

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.

Saturday, 17 December 2011

R v Smith (No 5) [2011] NSWSC 1459: relevant but weak evidence

With the end of the year rapidly approaching I'm yet again caught with a pile of interesting (and possibly important) cases sitting in my inbox, and no time to properly digest them.

An example is R v Smith (No 5) [2011] NSWSC 1459. Like many trial court decisions it's useful as an application of the law (made on what Ipp J described as the 'factory floor' of justice) rather than for containing any particular revelations.

The Crown proposed to lead evidence of a podiatrist at trial. He held the expert opinion that shoes left at the scene of the murder could belong to the accused, because of a series of individual biometric factors.

Importantly to this Cinderella story, the Crown sought to rely upon the evidence as establishing that the accused could have been the wearer of the shoes, not that he was. Does this even pass the threshold test of relevance at s 55 of the Evidence Act? Your answer probably depends on your philosophical understanding of a trial.

Buddin J's ruling traverses the applicable principles of admissibilty, as well as offering a look at an evolving branch of forensic science.

Sunday, 11 December 2011

Road Safety Amendment (Drinking while Driving) Bill 2011: no more travellers

This 'emergency legislation' was rushed through the Victorian parliament in the last few days. Introduced on the 6th December, it was read twice in a day and passed the Upper House two days later. It will take effect immediately after receiving Assent.

The Bill, as it was passed, is here. The Second Reading is here. The Statement of Compatibility is here, and the Explanatory Memorandum here.

The new section 49B of the Road Safety Act 1986 will prohibit the consumption of alcohol by the driver of a motor vehicle.

It will read (in part),

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.

The reason for the haste is a mystery. Unlike previous events where a precipitating incident has led to a rush for reform, I don't know of any particular incident that has prompted a public outcry about this issue.

During the second reading the A-G's explanation was,

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.

The change will mean a significant cultural shift for those accustomed to buying a traveller for the trip home. It might also mean that police officers will have to caution a driver before asking questions intended to eliminate mouth alcohol as the cause of a positive preliminary test result.

Thursday, 8 December 2011

RTF or PDF, please

Supreme Court Practice Note 9 of 2011 was signed last month. It replaces Practice Notes No 3 of 2004 and No 1 of 2006.

The Note lends increased legitimacy to medium neutral citations and might even help to reduce the amount of unnecessary photocopying that goes on. It also draws attention to the preference for Rich Text Format (RTF) prints from AustLII rather than the direct-from-screen prints sometimes used. (The latter have an AustLII banner prominently at the top of the first page).

The Note includes the instructions on how to produce RTF prints:

1) Click on the link to view the judgment.

2) Choose the “Download” option in the toolbar above the case citation.

3) Click on the “Rich Text Format (RTF)” or “Portable Document Format (PDF)”
hyperlink below the heading “Available Data Formats”.

4) Print the document and provide in this format.

I should also mention the Court's Practice Note 8, which clarifies the status of decisions which have the phrase no point of principle in their headnote. The Note prohibits reference to such cases without leave.

Caen discusses the problems with this direction here. I'd always thought that the catchwords of a headnote didn't form part of the judgment they summarise, and shouldn't be assumed to have been written by the authors of the judgment.

Wednesday, 7 December 2011

Programming note

If you haven't seen it and don't want to buy it, remember to set the DVR this Friday for The Staircase. The first episode is still available from the SBS website here. It's from the same documentary team who did the fly-on-the-wall series Sin City Law.

Saturday, 3 December 2011

Australian Crime Commission v Stoddart [2011] HCA 47: No spousal privilege at common law

There is no common law privilege against incriminating your spouse.

There never has been, it seems. Centuries ago in Britain a wife was neither competent or compellable to give evidence against her husband due to the legal fiction (derived from the Bible) that man and wife were the one flesh. Even by the time of the establishment of the Australian colonies that position was changing. David Lusty's 2004 article, along with every other textbook dealing with the subject, will need to be revised.

But despite the media interest and some hysteria to the contrary, this won't make the slightest difference to the operation of the law in practice. (Except, perhaps, where coercive investigative powers are in play). Section 18 of the Evidence Act (and before that, s 400 of the Crimes Act) provides a broad discretion to judicial officers to excuse people from giving evidence against their partners because of the potential damage the relationship may suffer. The UEA deals with this as an issue of compellability, not privilege.

(In NSW, s 19 creates an exception in the case of various violent and sexual offences. Those exceptions don't exist here.)

This case, involving the Australian Crime Commission and its use of its inquisitorial powers, has been in the system for a while. It was discussed back here as Stoddart v Boulton [2009] FCA 1108 back when it was an application for injunctive relief before the Federal Court. The decision was reversed by the Full Federal Court, then recently decided as Australian Crime Commission v Stoddart [2011] HCA 47 before the High Court.

Statutory protection for spouses and significant others has existed for so long that it was reasonable to suppose the principle of spousal privilege, like so many others, has its foundation in judicial precedent. But [as Heydon J states unreservedly at 56] there is no case in the legal history books precisely on point, until the very recent decisions in coercive powers cases Callanan v B [2004] QCA 478 and S v Boulton [2006] FCAFC 99 which didn't engage in a thorough historical analysis.

The appellant successfully urged the High Court not to, 'join the dots and lend colour to an apparition that is really nothing more than an historical relic at best'.

French CJ and Gummow J [at 41, Crennan, Keiffel and Bell JJ in agreement]:

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.

Heydon J dissented, embarking on his own detailed discussion of the legal history. Finding that not all principles of the common law can be found in ratio decedendi may be controversial to some (certainly the majority of the Court), but his finding that the ACC legislation does not contain the express language or necessary implication from Coco v The Queen (1994) 179 CLR 427 [at 438] is fairly orthodox reasoning.

The dissent is also worth reading for drawing attention to this little gem from Griffiths CJ in Riddle v The King [1911] HCA 33; (1911) 12 CLR 622 [at 629], quoting an unnamed 'distinguished lawyer from England':

The law is always certain although no one may know what it is.

Sunday, 27 November 2011

Swearing at the police can still be a crime

For the last week or so the UK media has made a lot of noise about a recent judgment where the Queen's Bench upheld an appeal by Denzel Harvey against his conviction for using threatening, abusive or insulting words within the hearing of a person likely to be caused harassment, alarm or distress, contrary to s 5(1) of the Public Order Act 1986. (It's similar to Summary Offence Act 1966 s 17(1), but has a slightly different element of causing harassment, alarm or distress, rather than threat, abuse or insult.)

Here's one example from the BBC, one from The Mirror and one from The Telegraph.

The case excited a lot of comment on twitter, until folks got their hands on what the judgment actually said rather than what the media reported.

F*** you, bad reporting by @_millymoo highlighted the real problem: the prosecutor hadn't adduced any evidence of harassment, alarm or distress and so failed to establish an element of the offence.

In Harvey v DPP [2011] EWHC Crim B1, the Queen's Bench said:

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.

Notably, the law in the UK doesn't proscribe public swearing alone.

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.

Had the police actually been alarmed or distressed the offence might well have been made out.

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.

Running from the police ain't a crime when you ain't arrested

Only recently my colleague discussed the case of a man who fled from police who wanted to speak with him about dinner.

He was charged with resisting the police in their execution of their duty — making life difficult by not hanging around to be investigated. The Magistrates' Court dismissed the charge in Hemingway v Hamilton [2011] VMC 10.

The DPP appealed the decision, and last Friday the Supreme Court upheld the Magistrates' Court decision, in DPP v Hamilton [2011] VSC 598.

Despite some of the media reporting at the time, the case is not a green light for people to run from the police. Kaye J was very careful to identify the narrow scope of the judgment.

[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.

After reading the facts, it's probably no great surprise to hear the outcome, and there's not a huge amount of new law in the judgment. But it does remove any doubt about the purpose of Crimes Act 1958 Part III, Division 1, Subdivision 30A — the part often referred to in short-hand as "464".

The DPP argued that because Andrew Hamilton was in custody as defined in s 464(1)(c), he was obliged to remain with the police when they wanted to speak with him.

The provision provides:

(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.

But Kaye J confirmed the conventional understanding of that provision: its purpose is to provide the same rights and protections to suspects who aren't actually under arrest as for those who are arrested.

[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.

Note this

One of the iPad questions I'm often asked is what I use for note taking. I touched on this briefly in my second post on using the iPad, back in December last year, but there are a few worthy contenders out there all deserving of consideration depending on your needs.


Yeah, I know: properly, they're styli. But, don't we have enough Latin in our lives already?

First up, I should say I don't think the iPad is ideally suited to writing notes like we would on a paper pad. It's a digital simulation of something that works fine with pen and paper, so on the iPad we get the drawbacks of the real thing, plus the limitations of the iPad.

If you fit a screen protector to the iPad, the increased friction really makes it hard work for writing on the screen surface. As a result, over time, the soft rubber-type styluses tear. I went through three before I figured out it wasn't due to some sort of defect in the styluses or a problem with the way I was using them.

And the screen doesn't always acknowledge the touch of a capacitive stylus — it can take a surprising amount of pressure to register.

But, it allows me to hold my iPad with one hand, and write with the other; jot things down; draw as well as write (can't do that easily with a typing app); and means I can back up my notes, export them to PDF for filing and archiving, and carry my notes for a long time with no extra bulk.

I haven't found any bricks-and-mortar stores in Melbourne that stock styluses — although I'm told Office Works have some now.

I've bought mine from:

There's also a new Australian site I found as I wrote this post, selling the Dagi stylus.

I've used the PogoSketch, but didn't like it much. It has a spongy tip, and tends to distort with pressure on it while writing.

I've also used the BoxWave, and tend to use that the most. It writes well, but the broad tip takes some getting used to. And the rubbery end can drag a bit at times.

The most recent one I bought is the Jot (which is similar to the Dagi). It has a fine nib that fits into a clear plastic disc on the end to provide enough 'touch' for the screen to recognise it. It makes fine writing and drawing a cinch. The only downside is it requires more writing pressure than the others, and I found it left very fine scratches on my screen with constant use.

Styluses: Pogo Sketch, BoxWave, Jot

There's also a few chunky-style styluses: the AluPen and the Cosmonaut. I haven't used either, but they sound promising.

If you want to buy only one, I reckon the BoxWave — or similar styles — is the way to go. It's useful for general use of the iPad, especially with gloves, as well as writing. The Jot is excellent for note taking but not so good for general purpose stuff.

You might find these couple of reviews helpful too: this one on iMedicalApps, and this one on iPhoneJD.

Note taking apps

There are heaps of note takings apps, but these are the best that I'm aware of.

Paper Desk Lite

The first is Paper Desk Lite. It's free, so you lose nothing by trying it.

You can type in it, and handwrite, and it allows for PDF export to other apps. This is a must-have for me, because I export my notes and archive them with my scanned briefs.

The lite version only allows for a couple of pages. If you want more, you need to buy the full version.


Noteshelf is a really nice app, with a well thought out user interface (UI). It's a pleasure to look at and use. Selecting pen colours and sizes is quick and easy, and it offers heaps of customisation. (Right now, it's 80% off for Thanksgiving in the USA.)

It has the option of a zoom box — fairly common in note taking apps — with a window at the bottom of the page showing a magnified view of the main page. Anything you write in there is mirrored on the page. It allows for smaller and neater writing, and solves the problem of your writing looking like you used a crayon.

If this had an export to PDF function in other apps such as GoodReader, I'd use this.


Penultimate is another great note taking app, similar many ways to Noteshelf. It doesn't have quite the range of pen colours and thicknesses, and it too doesn't allow for export to PDF.

NoteTaker hd

NoteTaker HD is the app I use. It was one of the first available in the app store, and it did PDF export, so that's why I chose it.

In my view, the UI has become busier and less intuitive over time, but it has a lot of features and can do more than most other note taking apps.

I can write directly on a page or in a zoom box, and re-order individual pages in each note. It also allows for marking up of imported PDFs. I used that with an excel spreadsheet converted to PDF for my car logbook: I just wrote start and finish times and distances in the columns, and there was my logbook, always with me and always backed up. This feature alone can be a big benefit for lawyers, because you can import all sorts of pro-formas that need filling in, and then export the completed document, either in to another app or email.

Handwriting recognition

I hadn't really considered this until a couple of weeks ago when I was presenting about the iPad and was asked about handwriting recognition. If you want typed text I reckon the best way to do it is to type it or, perhaps, dictate it. But not everyone is skilled in the art of ten-fingered-typing or hunt-and-peck-tapping, so there's definitely a need for this.

I found two applications that I reckon are serious contenders for handwriting recognition.


WritePad for iPad (watch out you do buy the iPad version as they maker also has iPhone versions)

The handwriting recognition is not bad, and improved when I took the time to delve into the settings and select the forms of letters closest to my handwriting. It's still not perfect, and I found the recognition wait too slow and tedious, and had difficulty figuring out how to continue writing when I filled the zoom box.

It also allows for handwriting and typing, and has a heap of export options in the 'share' menu: printing, exporting to PDF, emailing, sending to Google Docs, twitter, facebook and sharing on WiFi.

For me, the handwriting recognition is too slow and not accurate enough for me to use this regularly.

7notes HD Premium

7notes HD Premium (the 'premium' version is the one with handwriting recognition) works surprisingly well.

It allows for handwriting, handwriting recognition and typing, and uses a zoom box with an auto-advance. I found the handwriting a bit clunky, but the handwriting recognition was really good.

It also has really good sharing options, and exports to PDF. The handwriting recognition is too slow for my liking, though it's pretty accurate, and so too is the typing with the predictive text function. I'd rather just use a quick text editor like PlainText or Quickoffice Pro HD or Documents To go Premium if I want something more sophisticated and akin to a wordprocesor.

But if you need all options in one app, this is the one I'd go for.

Saturday, 26 November 2011

Security or security blanket?

Every day at metropolitan court houses in Victoria we see the unedifying sight of police and lawyers being searched before they're permitted inside. (This doesn't occur at some country venues simply because there aren't any security guards employed for this at all venues.)

The basis for this is s 3(3) of the Court Security Act 1980, which provides:

(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.

The irony of this is that sworn police officers are themselves authorized officers under the Court Security Act, and bound to keep the peace and prevent offences against the law. Lawyers are officers of the Supreme Court (which has supervisory jurisdiction over inferior courts), yet they may not enter those courts where they challenge whim and caprice on behalf of their clients unless first subjected to a search seemingly based on merely following orders.

My memory is that when this came in, the police were not routinely screened, and either the Law Institute or Bar (or perhaps both) pointed out that it didn't seem right that officers of the court were screened while police were not. So the solution chosen by the folks then responsible for court security was that all should be screened!

I didn't understand then — and still don't now — why there is a need to routinely scan police or lawyers. Both are supposed to be trustworthy. Because of their training and office, both are afforded special privileges, powers or responsibilities not available to the general public. Both are subject to continuing scrutiny about their suitability to continue their profession, so criminal offending tends to result in job loss. It wouldn't be difficult to permit them entry upon presentation of suitable identification. (Of course, if there were reason to search particular individuals, it should occur.)

I'm not concerned just by the symbolic damage done when these central players in the justice system are treated as suspect by the very courts they serve. It's also the arbitrary nature of the searches and the exercise of powers by authorized officers that rankles. I've had to surrender a penlite torch at some Magistrates' Court venues, and the always at the Supreme Court — presumably in case I shine someone to death. Some require I surrender an umbrella; others don't. (I can see some sense in this one.) A colleague of mine was once required to open his wallet for inspection: I'm not sure how many lawyers have smuggled contraband into courts in the last decade, let alone in their wallet, but I reckon I'm on fairly safe ground speculating the number is pretty low!

Now of course, some might point out that it's possible to use a great many items as weapons. For example, a small torch might be used as a kubotan — one of several prohibited weapons in Victoria.

Heck, even pencils and pens can be used as weapons. But common sense usually prevails, and if there's no indication that a person is going to use an ordinary item as a weapon, the court security guards normally don't worry about them.

Authorized officers can require surrender of prohibited items, defined in Court Security Act 1980 s 2:

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 weapons are defined as:

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;

Trying to dispute their view of what is prohibited is futile, because they won't let you in, relying on section 3(9):

(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.

And s 2(2) is also relevant, providing:

(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.

I still reckon that without evidence I intend to use a torch as a weapon, or wreak havoc with the contents of my wallet, there's no justification for surrender or search of such items. These broad interpretative provisions don't seem to bestow power on authorised officers to intervene for reasons other than the security, good order or management of the court premises.

So I was surprised and concerned to hear recently of an instance when a lawyer was told by an authorised officer that the lawyer wasn't allowed to use their iPad while sitting in the body of a court room, and could only use it while at the bar table, and would have to either turn off their iPad or leave until their case was called.

I've heard of similar directions occuring at at least one other venue of the Magistrates' Court, so although this seems isolated, it's not a one-of occurrence either.

I could understand it if someone — anyone — were playing loud music, games or video. (That might well fall within the scope of the court's contempt powers anyway, as interfering with the course of justice and interrupting proceedings: Hancock v Lynch [1988] VR 173.) But quietly reading notes, email, calendar appointments, checking legislation? How does that interfere with the security, good order of management of the premises?

Judicial officers on the other hand have absolute authority about security in the court, extending to jurors, witnesses and even counsel and solicitors in a case: R v Smith [1982] 2 NSWLR 608 at 616 – 7 per Street CJ; Murray v Flack (1983) 6 A Crim R 394; R v Benbrika (No 12) [2007] VSC 524.

So long as a lawyer's use of an iPad — or anything else — interfered with the proceedings, the presiding judicial officer could deal with it. But short of that, I can't see any reasons they would, and more to the point, why authorised officers under the Court Security Act should be concerning themselves with such things. It might be a mild annoyance for some, but I know for me and some other lawyers, it would be equivalent to depriving us of access to our brief, and everything else essential for our practice.

I understand the Magistrates' Court at least is in the process of making a policy on this, and if it does, it probably won't be too long before other courts do too. I hope so, and that in the meanwhile, common sense prevails.

Wednesday, 23 November 2011

Running from the police is not a crime

Edit: The decision was affirmed on appeal.

You can read our discussion about DPP v Hamilton [2011] VSC 598 here.

Not the offence of resisting police, anyway. Thanks to Jeremy Gans for letting me know about this pending appeal.

In Hemingway v Hamilton [2011] VMC 10 it was alleged that the accused had left a restaurant without paying the bill. When the police who arrived indicated to the accused that they wanted to speak to him he took off on foot, and a classic foot chase ensued of the kind that fans of The Bill will be familiar with.

The accused was arrested and charged with an offence under s 52 of the Summary Offences Act 1966 for resisting the officers. Magistrate Garnett dismissed the charge in April, and the DPP appealed.

As I said at the time, there isn’t anything surprising in the magistrate’s original decision, and I think it unlikely to be disturbed on the appeal. While not running from the police might be the right (and sometimes, smart) thing to do, absent a specific obligation the police force don’t own a tractor beam that requires anyone to stop when an officer shouts “Freeze!”

Magistrate Garnett went so far as to hint [at 9] that a different charge would have been successful in the same circumstances,

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.

Perhaps the appeal submits that the magistrate ought to have made the amendment to the cognate charge, pursuant to Thomson v Lee [1935] 360 and Heddich v Dike (1981) 3 A Crim R 139. It’s not clear from the article I read, but it doesn't appear that way.

Kaye J has reserved his decision.

Saturday, 19 November 2011

Making the punishment fit the crime

Duplicity occurs where one charge alleges more than one offence. Double punishment occurs where two (or more) offences describe the same act. Both are errors in legal drafting that can result from trying to apply neat legal theory to untidy real life events.

Since duplicity and this particular sub-set of double jeopardy involve matters of fact and degree it's not easy to say with confidence when an offender is doubly punished and when they aren't. A review of the case law resists the expression of a general rule. McHugh, Callinan and Hayne JJ said in Pearce v R (1998) 194 CLR 61 [at 40] that the sentencing judge should use common sense. That's not a test likely to be applied consistently.

The High Court was echoing Lord Morris of Borth-y-Gest in DPP v Merriman (1973) AC 584, who said [at 593],

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.

Tran v The Queen [2011] VSCA 363 is a recent example. The appellant was sentenced for offences of reckless conduct and assaulting police officers arising from the same incident. On the appeal he argued that R v Sessions [1998] 2 VR 304 stood for the proposition that he should not have received a penalty for each charge.

Nettle JA described the tense events leading to the charges this way [at 7],

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.

It was suggested that it was artificial to draw a distinction between the driving that impacted directly on the police officers and the rest of the driving that placed other (or potential) road users at risk. The argument was ultimately unsuccessful.

Nettle JA [at 20]:

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.

The appellant didn't challenge a charge being laid for each of the two police officers involved, even though it was really one act that was said to make out the assault against both. Multiple charges, each alleging a separate victim, have always been permitted as an exception to the general rule: R v WWS [2009] VSCA 125 [at 30].

Sunday, 13 November 2011

Considering pending legislation

I just came across this interesting little tidbit about statutory interpretation: in Campbell v Employers Mutual Ltd and Others [2011] 110 SASR 57 the Full Court of the South Australian Supreme Court held that courts can and should take into account enacted legislative amendments that had not yet commenced. The particular references are at [68] – [69], citing New South Wales v Commonwealth (1990) 169 CLR 482 and Queensland v Central Queensland Land Council Aboriginal Corporation (2002) 125 FCR 89 at [60].

At [184], White J said:

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?

Sometimes; I swear...DPP v Marijancevic; DPP v Preece; DPP v Preece [2011] VSCA 355

You probably read the recent news about the bombshell discovery in a County Court trial that the deponent of an affidavit for several search warrants didn't actually swear the affidavit.

The trial judge decided the evidence consequently obtained from the search warrants should not be received in evidence under Evidence Act 2008 s 138. Because the warrant application wasn't sworn as required by Drugs, Poisons and Controlled Substances Act 1981 s 81(1), there was no affidavit as required, and hence the grounds for the warrant weren't met. There are similar provisions for other search warrants, contained in Magistrates' Court Act 1989 s 75(2).

The DPP appealed that decision to the Court of Appeal, arguing that the trial judge should have received the evidence.

The result was delivered last Friday in DPP v Marijancevic; DPP v Preece; DPP v Preece [2011] VSCA 355.

The Director's appeal was refused, but there are a few nuances in the judgment that warrant close reading.

The Court of Appeal set out some of the transcript from the trial, particularly where the deponent admitted to not swearing the affidavit. He went on to say it was the only practice he'd ever seen in Victoria Police; he wasn't aware of training on the topic; and he thought he would be exposed to a possible perjury charge if he lied in the affidavit. (One of the concerns noted by the trial judge and the Court of Appeal was that the failure to swear an affidavit means the purported deponent isn't potentially deterred from fabrication and deceit because they can't be charged with perjury. I'm not sure that's as big a concern as the courts seemed to think. Presumably the police could be charged with attempting to pervert the course of justice — punishable under Crimes Act 1958 s 320 — if they spoke falsely in the search warrant application, sworn or not?)

Now some folks might scoff at the notion that a police officer could genuinely be ignorant of such a fundamental requirement as swearing an affidavit for a search warrant. However, you might be surprised to know that the police manual — VPMP Searches of Properties and VPMG Searches of Properties, for those with access to them — say precisely nothing about the need to actually swear the affidavit. (Presumably that's about to change in a hurry.) And I know that the Victoria Police Reference Guide didn't contain that detail until 2009 — because I put it there. (And that publication was discontinued this year.)

What came out fairly clearly from the police officer's evidence was that he didn't know he was doing the wrong thing: at [25] and [34]. Despite that, the trial judge concluded the police conduct was deliberate and 'of the highest order': at [65] – [84].

It seems that the trial judge adopted submissions for the accused Marijancevic when His Honour made that ruling, and there was some uncertainty about what he meant by 'deliberate'. If he meant no more than 'voluntary' or 'not accidental' (or perhaps 'conscious decision to follow the practice', at [87]), there wouldn't be much problem. But it was argued in the County Court that 'deliberate' meant 'knowingly illegal'. The DPP argued that finding wasn't open to the trial judge.

The appeal failed on that point. Because the appeal was an interlocutory one, concerning a discretionary decision, the applicant had to show that the decision was not open to the trial judge, rather than just that he should have made a different decision: at [13] (citing DPP v MD (2010) 205 A Crim R 349 and House v The King (1936) 55 CLR 499) and [90], [92].

However, there was one ray of hope for the prosecuting authorities in this.

[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.

It seems the Court of Appeal was careful to say that if the issue of unsworn 'affidavits' for search warrants crop up in other cases, they'll need to be determined on their merits. In particular, if the Courts accept that the police were ignorant rather than criminal in their failure, it might be permissible to receive the evidence despite that problem.

But, the Court of Appeal was also pretty critical of the 'mere' fact of ignorance, and its comments speak pretty powerfully in favour of curial rejection of that.

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.

Those are pretty strong words and don't sound very much like acceptance of the practice. It's a pretty safe bet there'll be a lot more argument on this topic for some time.

Saturday, 12 November 2011

Legislation Watch: Criminal Procedure Amendment (Double Jeopardy and Other Matters) Bill 2011

The Criminal Procedure Amendment (Double Jeopardy and Other Matters) Bill 2011 had its second reading last Wednesday. The speech is here. The Bill itself is here and its Explanatory Memorandum is here.

Double jeopardy

The most attention-getting aspect of the Bill is the proposal to reform double jeopardy. That's the kind that arises from being presented for trial on the same charge twice, not the kind where an accused person falls to be sentenced for the same deed several times. The Bill specifically removes the principle in R v Carroll [2002] HCA 55 that an accused in a murder trial cannot be tried for perjury if doing so revists the correctness of the acquittal.

The Attorney-General said in the Second Reading,

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.

The procedures are complex, selective and require the approval of the Court of Appeal. Though there are similar provisions in other jurisdictions and they do occasionally get used, I'm doubtful there will be a secure conviction resulting from a second trial in Victoria in my lifetime.

Some would probably have thought that s 26 of the Charter of Human Rights prevented this kind of thing. That reads,

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.

That might sound like a definite prohibition. Unlike most Charter rights it doesn't have the wiggle-room of a except on grounds, and in accordance with procedures, established by law or except where reasonably necessary clause. But like all Charter rights the right is subject to the reasonable limitation test under s 7. The various checks-and-balances written into the legislation may make this exception a reasonable limitation.

The Attorney-General wrote in the Statement of Compatibility (at 95),

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).

Infringement notices as prior convictions

Clauses 3 and 7 through 12 clarify that an infringement penalty is a prior conviction for the purposes of a sentencing hearing.

Provision of the police brief

Clause 6 inserts new section 53A in the Criminal Procedure Act 2009. This section will set out the documents to be provided by the police informant to the accused or the accused's legal practitioner at the first mention hearing of a matter.

While this might appear to move the court process along more efficiently, the detail of what must actually be provided suggests that the police won't be under much pressure to produce more information than they do already.

Clause 53A(2) reads,

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 accused was already entitled to a copy of the charge sheets under s 27. This new provision is so riddled with exceptions it doesn't go much further than that. If not prepared the document doesn't have to be provided.

Further, and despite the use of the word must, no consequences are provided for a failure to comply. A dismissal of the charge(s) seems unlikely, and costs have always been at the discretion of the court.

The Bill has a forced commencement date of 1 July 2012.

Sunday, 6 November 2011

SPA v The Queen [2011] VSCA 306: the possibility of concoction must be real

SPA v The Queen is an interlocutory appeal. The Court of Appeal's reasons tend to be brief in these judgments. The Court is anxious to say no more than is necessary than to decide the admissibility question before it, knowing that it will possibly see the matter back before it again after the trial ends.

In SPA the Crown sought the admission of evidence of charged and uncharged sexual acts against the victims, who were family members of the accused. The accused denied the charges, and it was uncontentious that the tendency and coincidence evidence of other acts was relevant. The accused asserted at trial and on the appeal that the evidence was insufficiently probative. Neither court agreed.

A late ground for challenging the admissibility of the evidence was the possibility of concoction. Before the introduction of s 398A of the Crimes Act (repealed when the Evidence Act 2008 came in), and still in some other jurisdictions, the possibility of concoction (witnesses agreeing on a story) needed to be rebutted (in some cases, excluded) before similar fact evidence could be admitted. The extract of the interlocutory judgment referring to concoction [Hansen JA at 11, Weinberg JA and AJA Judd agreeing] is brief:

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.

The fleeting reference affirms the approach taken in NSW under the UEA. As the NSW Court of Appeal said in BP v R; R v BP [2010] NSWCCA 303, [Hodgson JA at 108, Price and Fullarton JJ in agreement],

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 trial judge will consider the evidence from this fresh perspective, if it's raised. In order for the possibility of concoction to influence its probative value (assuming it can) there will need to be a foundation laid that establishes concoction may have occurred.

Monday, 31 October 2011

Drug analogues

Minor differences at microscopic level can produce substances very similar in effect to drugs of dependence, but that aren't specifically listed in any of the schedules of the Drugs, Poisons and Controlled Substances Act 1981. Provisions in state and Commonwealth legislation prohibit these copycats so that their possession and sale is illegal even if a few molecules have been added or removed from a substance's chemical structure.

In Victoria the Act defines a drug as [at s 4]:

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;

The Act doesn't provide a definition of what the terms salts, derivatives and isomers mean.

The Commonwealth Criminal Code refers to drug copycats as analogues. The definition of analogue is found at s 314.1(2) for controlled drugs and s 314.4(2) in the case of border controlled drugs.

(Please note that, although I've linked to the Code on AustLII, I don't recommend opening it unless you really need to. AustLII's automated bots are incapable of handling the Commonwealth parliament's predelicition for placing enormous schedules - often bigger than the Acts they're attached to - like the Criminal Code and Australian Consumer Law in the back of their Acts. To access one provision in a schedule at AustLII it's necessary to download the lot. If you're after a more printer-friendly version, use ComLaw).

The definition of analogue for both categories of drug is extensive. Sub-section 314.1(2) reads,

(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;

(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
; or

(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).

It might be that the Commonwealth legislation is just more specific than the Victorian provision, but the general consensus is that the term analogue covers more than salts, derivatives and isomers.

In DPP (Cth) v Coory the substance was methylmethcathinone. The accused was charged with importation of a border controlled drug under s 314.4 of the Criminal Code, and pled guilty.

Methcathinone (also known as miao miao) is a substance which is thought to simulate the effects of MDMA or amphetamine. It's specifically prohibited in Victoria by its inclusion in Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 and s 314.4(1)(95) of the Criminal Code. Methylmethcathinone isn't specifically mentioned in either the state or Commonwealth schedules, but has a similar chemical structure to methcathinone.

In Victoria it's settled that all drugs of dependence are treated on sentence as being equally harmful. If parliament intended different drugs of dependence to attract different penalties, the reasoning goes, parliament would have allocated different penalties to them, rather then putting them all in the one penalty section: R v Adams (2008) 234 CLR 143; R v Pidoto & O'Dea (2006) 14 VR 269, both referred to here. Though this rationale might fly in the face of experience, the High Court approved it on the basis that if this wasn't the law then sentencing hearings would bog down in non-justiciable arguments about whether amphetamine is more dangerous than heroin, cocaine use more prevalent than ecstacy use, etc.

Among the sentencing judge's remarks was a comment that the harm caused by methylmethcathinone is unclear. While both factually correct and made in the context of condemning the accused's behaviour, on the DPP appeal the Crown asserted that this comment reflected the judge engaging in an assessment of the harm caused by a particular drug of dependence.

Harper JA [at 27]:

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.’

Both Redlich JA [at 8] and Harper JA [at 46] remarked on the desirability of removing the doubt surrounding the status of 4-MMC as a drug of dependence under the Victorian Act, by an appropriate amendment to the Drugs, Poisons and Controlled Substances Act 1981 to make drug copycat legislation work the same way at state and federal level.

Edit: Parliament haven't yet signalled any intention to act on this advice, but a couple of months ago they did pass the Drugs, Poisons and Controlled Substances Amendment (Drugs of Dependence) Bill 2011. This bill allows the addition of new substances to the schedule through regulation, rather than legislative change.