Sunday, 27 February 2011

Common law offences triable summarily

Section 28 of the Criminal Procedure Act 2009 provides that common law offences punishable by not more than 10 years imprisonment or referred to in Schedule 2 may be heard summarily (as long as the requirements of s 29 are satisfied).

Penalties for common law offences are set out in s 320 of the Crimes Act 1958. The offences triable summarily are:

OffenceMaximum imprisonment


Breach of prison
5 years

Bribery of public official
10 years

Common assault
5 years

Criminal defamation

False imprisonment
10 years

Misconduct in public office
10 years

Public nuisance
5 years

10 years

5 years

Unlawful assembly
5 years

Wilful exposure
5 years

There are two common law offences specifically provided at cl 1 of Schedule 2 of the Criminal Procedure Act 2009 as triable summarily. They are:
1. Common law

1.1. Offences at common law of conspiracy to cheat and defraud, if the amount or value of the property or the financial advantage alleged to be involved does not in the judgment of the court exceed $100 000.

1.2. Offences at common law of conspiracy to defraud, if the amount or value of the property or the financial advantage alleged to be involved does not in the judgment of the court exceed $100 000.
I've added this table to the growing collection on the left side of the homepage. A list of all prescribed offences triable summarily is available here.

Monday, 21 February 2011

Fit to plead?

Advocates who regularly appear in summary courts know well the questions associated with mental impairment and fitness to plead arguments.

Late last year the Supreme Court decided in C L (a minor) v Lee & ors [2010] VSC 517 that the Children's Court couldn't determine if an accused person was fit to be tried and so the charges had to be referred to the County Court.

In Victoria, the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 prescribes the procedures for determining if an accused person was mentally impaired at the time of alleged offending, or is fit to stand trial when charges against them are heard at court.

The legislation

Fitness to stand trial is in section 6 of that Act:

6. When is a person unfit to stand trial?

(1) A person is unfit to stand trial for an offence if, because the person's mental processes are disordered or impaired, the person is or, at some time during the trial, will be—

(a) unable to understand the nature of the charge; or

(b) unable to enter a plea to the charge and to exercise the right to challenge jurors or the jury; or

(c) unable to understand the nature of the trial (namely that it is an inquiry as to whether the person committed the offence); or

(d) unable to follow the course of the trial; or

(e) unable to understand the substantial effect of any evidence that may be given in support of the prosecution; or

(f) unable to give instructions to his or her legal practitioner.

(2) A person is not unfit to stand trial only because he or she is suffering from memory loss.

The wrinkle with this Act comes from its very narrow meaning of 'court', contained in the definitions in s 3:

court means Supreme Court or County Court and in section 47 includes Magistrates' Court

Right there is the problem for applying any of this Act in summary courts. To some extent, s 5 overcomes this, but only for mental impairment questions:

5. Application to Magistrates' Court

(1) The defence of mental impairment as provided for in section 20(1) and the presumption in section 21(1) apply to summary offences and to indictable offences heard and determined summarily.

(2) If the Magistrates' Court finds a person not guilty because of mental impairment of a summary offence or an indictable offence heard and determined summarily, the Magistrates' Court must discharge the person.

The Children's Court can apply this provision because of Children, Youth and Families Act 2005 s 528, which bestows the powers of the Magistrates' Court upon the Children's Court. (See also C L v Lee at [25].)

For a variety of reasons, Lasry J held that the Children's Court couldn't determine if an accused person was fit to plead when charged with an indictable offence that can be tried summarily. He mentioned that last bit almost in passing, in [17] of the judgment. Because of that, I think there just might be some uncertainty about the situation for purely summary offences.

Crimes (Mental Impairment and Unfitness to be Tried) Act

The Supreme Court considered this Act didn't confer power on the Children's Court to determine fitness to be tried.

For one thing, there's no express provision saying so: [25].

And s 7 of the Act expressly refers to a special jury to determine the issue: [28]. (And for that matter, s 6 refers to an accused who is unfit to stand trial.)

There is an express, albeit limited, power for mental impairment: [29]. (Probably an application of the principle of statutory interpretation expressio unius est exclusio alterius — express reference to one matter indicates other matters are excluded.)

And the second reading speech suggests a limited application: [30].

Children, Youth and Families Act

Again, there's no express provision for fitness to be tried in this Act: [36].

Nor do ss 516 or 522 help. Although s 522 provides that the proceedings must be understandable to a child. The Court decided that didn't impliedly incorporate a jurisdiction to consider fitness to be tried: [40] - [46].

I reckon one of the telling responses to this argument is at [46], and also [17]: an accused person can't consent to summary jurisdiction as required by Children, Youth and Families Act s 356 — or for adults, Criminal Procedure Act 2009 s 30 — if they're not fit to be tried.

(Section 8 of the Crimes (Mental Impairment and Unfitness to be Tried) Act caters for committal of the person who's not fit to give instructions.)

At [51] the Court held that if a child isn't fit to be tried, their charges must proceed to a committal hearing.

That still leaves unanswered the question about what happens for purely summary offences that can't be tried indictably?

Common law

The Court also held that the common law didn't allow the Children's Court to consider fitness to be tried.

The Children's Court — like all statutory courts and tribunals — possesses only those powers conferred by legislation and by necessary implication. This is the implied-not-inherent powers doctrine espoused in Grassby v The Queen (1989) 168 CLR 1 at 16.

The DPP argued that a court of summary jurisdiction had not power to determine fitness to plea: [56], relying on Pioch v Lauder (1976) 27 FLR 79. The Court discussed it at [57]. Because it's not available online, I'll extract the relevant part from 84 - 86:

What then of the defendant and his disabilities? It was argued for the defendant and conceded by the Crown that he should be treated as if he were insane. This rather bizarre and no doubt offensive result seems to follow from the authorities (R v Pritchard (1836) 7 Car & P 304; 173 ER 135; R v Berry [186] 1 QB 447; R v Presser [1958] VR 45; R v Podola [1960] 1 QB 325). If this be right, and it seems clear that it is, what should the learned stipendiary magistrate do? If this were an indictable offence he should proceed with the hearing and commit the defendant for trial. I consider that notwithstanding the defendant's disabilities a committal hearing may proceed since no plea is required from him in such proceedings. Upon him being indicted before the Supreme Court a special jury should be empanelled to try the question of the defendant's fitness to plead. If the jury found in accordance with the facts found by the learned stipendiary magistrate and set out in the special case then this Court would have no option but to apply the provisions of s 20B of the Crimes Act, made to apply to the offence created by s 131C by s 4 of the Interpretation Ordinance, and commit the defendant to be kept in custody until the pleasure of the Governor-General be known.

In the case of simple offence, however, there appears to be neither authority nor statutory provision to deal with the matter of a defendant who is insane, whether properly so called as being a person suffering from a sufficient defect of reason, or disease of the mind, or a person like the defendant here. Of course, if the defendant to a charge of simple offence appears to a magistrate to fall within the provisions of the Mental Defectives Ordinance 1940-1969, his case may, so to speak, be disposed of by his being dealt with under that Ordinance. However, the defendant in this case is not a mental defective as defined. The researches of counsel and my own researches have failed to find any authority either in text-books or reports which helps with the problem. It is probably not a frequent occurrence because people suffering from the disabilities which the learned stipendiary magistrate has found afflict the defendant are, one hopes, not very numerous and because also those assisting such a person charged with a simple offence might take it upon themselves to enter a plea of guilty under the mistaken impression that a finding of inability to plead would lead to the defendant's confinement during the Governor-General's pleasure.

What then is the learned stipendiary magistrate to do in this case? It is clear that the defendant is not fit to plead and should be treated as though he were insane which he is not. No authority exists for the learned stipendiary magistrate to order the defendant's detention to await the pleasure of the Governor-General and yet plainly, it seems to me, it would not be proper to proceed with his summary trial. I was urged by Mr. Chow for the Crown to direct the magistrate to proceed as for a minor indictable offence and commit the defendant for trial if a prima-facie case should be made out. However, I have found that this is a simple offence and I do not consider that the learned stipendiary magistrate should properly reach the opinion "that the charge is a fit subject for prosecution by indictment" simply because of the defendant's disabilities. It would no doubt be an easier and tidier way of disposing of the defendant to commit him for trial and on the assumption that a jury empanelled for the purpose would find him to be unfit to plead as the learned stipendiary magistrate has found him to be then have this Court order him to be kept in strict custody to await the Governor-General's pleasure. A simple legislative amendment could give a magistrate power to make such an order in cases such as the defendant's but the power does not exist at present.

After anxious consideration I have come to the conclusion that the learned stipendiary magistrate, having reached the conclusion he has reached as to the defendant's capacity, should simply go no further and desist from hearing the charge against him because of his unfitness. There is no other course consonant with justice for the learned stipendiary magistrate to adopt.

That case was applied in Ebatarinja v Deland (1998) 194 CLR 444.

The DPP also argued that the Crimes (Mental Impairment and Unfitness to be Tried) Act covers the field on fitness to be tried, which means summary courts have no power conferred to determine such a question, and that it's always been a jury question: [61] & [62].

Lasry J also considered a previous Children's Court decision of Victoria Police v NL [2009] V Ch C 5, but considered it wasn't correct in concluding the Children's Court could consider fitness to plead: [67].

Instead, His Honour considered the proper remedy was to recommend the Government amend the legislation: [68] and [80] ff.


The Court also considered the Charter of Human Right and Responsibilities Act 2006, but — in short — decided that didn't affect the outcome of this appeal either.


It seems pretty hard to argue with Lasry J's analysis of the legislation and cases, and in any event, his decision binds summary courts, so the law is now that Children's and Magistrates' Courts can't consider the fitness to be tried of an accused person.

It seems that the effect of this case, applying Pioch v Lauder (1976) 27 FLR 79, is that if an accused person charged with only summary offences might be unfit to be tried, then the charges must be adjourned to a date to be fixed or stayed permanently.

I can see several problems with this.

If an accused person claims they're unfit to be tried, surely a summary court must have some evidence before it in order to make at least a preliminary assessment of the claim? Otherwise, merely raising the claim would defeat all summary charges.

Or even if the accused provides expert psychological or medical material suggesting they are unfit to be tried, what if the prosecution disputes or doubts that evidence? It seems counter intuitive that the Court can't even consider if the claim is properly made.

And if the claim is made out and the charges must be adjourned, what mechanism will the prosecution use to bring them back before the Court?

This sort of issue was touched on in DPP v Hogg; DPP v Cyberman (2006) 162 A Crim R 564 (dealing with the old 'instant summons' process in the now-repealed s 30 of the Magistrates' Court Act 1989), but is unresolved. The problem is if a valid charge is filed, but there's some problem with a summons (or it's answered), there's no express mechanism for issuing a fresh stand-alone summons without filing a new charge — which would be statute barred contrary to Criminal Procedure Act 2009 s 7.

I don't pretend to know the answers, but with any luck, now that C L v Lee has brought them into stark relief, Parliament will amend the legislation and the problems will be sorted.

Thursday, 17 February 2011

What should a modern court building look like?

Edit: The new Brisbane court complex is now open. I happily admit that it looks great from some angles.

Today's Herald-Sun carries a contribution by Marilyn Warren to the paper's current Make Melbourne Better campaign.

The article is an economical work of recycling by the Chief Justice. It's extracted from a much longer address made by her Honour to the Third Justice Environments Conference at the University of Western Sydney last year. The full speech can be found here. Both are further steps in the delicate dance by the judiciary to get the other branches of government to loosen their purse strings and furnish the Supreme Court with a new home, or update their existing one.

Both pieces challenge the traditional presumption that court buildings should instil fear and trepidation in those who pass through their doors. They invite building designers (and those who fund them) to further develop a new style of architecture for government buildings that is both inclusive and Australian.

The Chief Justice makes reference with approval to a number of recent court buildings, including the Adelaide and Melbourne Federal Courts, Melbourne's County Court and the Parramatta Courts Precinct in Sydney.

She singles out for particular praise the Brisbane Supreme & District Courts currently under construction. It's due for completion by the end of the year but will probably be delayed now, given the floods. Here's the artist's impression:

This is referred to as, 'a sophisticated layered fa├žade and a truly beautiful building internally and externally'. I don't wish to be unkind but from the sketches it looks to me like a modern glass box with a predictable IKEA interior.

Preliminary sketches for a new Victorian Supreme Court building have already been done by architects Billard Leece. While there are no external designs on their website (hard to do until a site has been confirmed) the internal drawings suggest that at least some rooms won't be converted to plastic and pressed balsa wood but will retain their classic appearance:

There was no reference by the Chief Justice to the UK Supreme Court. When the House of Lords closed up shop the Law Lords relocated to Middlesex Guildhall, where the former council chamber was converted to the main courtroom:

It's obvious that Gothic revival isn't in keeping with the Chief Justice's desire for a building that is 'open and full of light', but I like it. (But then I don't know anything about architecture except what I see on Grand Designs).

Edit: Here's a couple of pics of the Supreme Court of Singapore, built in 2005:

If I worked there I would always be waiting for a hatch to pop open on the flying saucer and all the people who were abducted to come stumbling out. Not sure I like the design, but at least it's original.

I'm interested to hear how people think a modern court building should look. What do you think?

Tuesday, 15 February 2011

Police v Beukes [2011] SASC 9: intervention order breaches are strict liability offences

In Police v Beukes the Magistrates' Court of South Australia dismissed a charge that alleged an offence under s 15(1) of the Domestic Violence Act 1994 (SA).

Section 15(1) reads,

(1) A person who contravenes or fails to comply with a domestic violence restraining order or a registered foreign domestic violence restraining order is guilty of an offence.

The prosecution successfully appealed and the matter was remitted for rehearing.

The Ruling

The magistrate dismissed the charge after being left unsatisfied that the accused intended to breach the order that prohibited him from attending his former partner's address. When interviewed by police the accused said that he had been told that the protected person had asked police to revoke the order and that it was therefore revoked. The magistrate found on that basis that the prosecution case was incapable of proving an intention to disobey the order.

On the appeal Vanstone J first examined [at 7] the penalty for a breach, a maximum penalty of imprisonment of 2 years (the same penalty as in Victoria for breach of an intervention order under s 123 of the Family Violence Protection Act 2008).

Vanstone J then turned her attention to the question of whether the offence was one which required a mens rea to be proven.

In He Kaw Teh v The Queen (1985) 157 CLR 523 there was reference to the common law presumption that mens rea – sometimes called an evil intention or knowledge of the wrongfulness of the act – is an essential element in every offence. At 529-530 Gibbs CJ, with whom Mason J agreed, explained the approach to determining whether in creating a statutory offence the Parliament intended that mens rea need not be proved. The Chief Justice said that first, regard must be had to the words of the statute creating the offence. Next, the subject matter with which the statute dealt needed to be considered. Finally, consideration needed to be given to the question of whether imposing strict liability upon a defendant would promote the observance of the provision. That is, was there some means available to a defendant to help him avoid contravention. I do not understand the plurality judgment in CTM v The Queen (2008) 236 CLR 440 at 447, a more recent case dealing with a quite different statutory offence, to question this approach.

In applying this to the interpretation of s 15(1) of the Domestic Violence Act it is apparent that the wording of the section, inasmuch as it does not require knowing or intentional or reckless contravention or failure to comply, tends to the conclusion that mens rea is not required. The subject matter of the Act similarly tends against the presumption. The protective purposes of orders made under the Act could be undermined were it determined that mens rea must be proved. It is noteworthy that by s 11(1) of the Act a domestic violence restraining order is not binding until it has been personally served upon a defendant. Variations or revocations of such orders must also be served personally: s 11(2). These requirements tend to ameliorate what might otherwise be a harsh result if mens rea is not required. The scheme of the legislation is to ensure that a person against whom a restraining order is made is apprised of his obligations. Plainly, he is in a position where he can take care that the terms of the order are not breached.

Therefore, I agree with the submission by the appellant that the offence created is one of strict liability. The only intention which must be proved by the prosecution is an intention to do the acts which constitute the breach of the order. The prosecution must prove that those acts were intentional or reckless. It is not necessary to prove that the defendant intended by those acts to contravene the order, or that he knew that his actions amounted to a contravention of the order. That leaves the prosecution with the task of excluding the defence of honest and reasonable mistake of fact, if it is raised.

As the contested hearing had not progressed into the defence case, whether there was sufficient evidence to satisfy that claim couldn't be answered on the appeal.


The classification of an offence of breaching a domestic violence order as an offence of strict liability may surprise some, given the serious penalties available. Strict liability offences tend to be those where the offence is minor or regulatory in nature: Kidd v Reeves [1972] VR 563. The Court found the requirement that the requirement that orders be personally served and explained relieved the risk of injustice that might otherwise result.

Vanstone J tentatively expressed the view that the accused's knowledge of whether an intervention order was in operation or not should be treated as a matter of fact, rather than law. (This would allow a claim of ignorance to be asserted as a 'defence' of honest and reasonable mistake, consistently with Menhennit J's judgment in Kidd v Reeves.) There's some interesting obiter about the reasonableness of a belief as well.

Local implications

I'm not aware of a Victorian authority on these points. The local statutory scheme is similar but not the same. Whether Police v Beukes has much persuasive value here probably turns on a Victorian court's application of Charter principles.

Sunday, 13 February 2011

Updates to the JCV Sentencing Manual

It's easy to sign up for updates from the Judicial College.

If you don't subscribe, the JCV still make it easy to go in and check for recent updates to their major publications. Once inside a Manual look on the right side of the page for a clickable link that says Recent updates. (The Sentencing Manual and Criminal Charge Book are updated most often).

Over the Christmas break their Sentencing Manual got a significant overhaul. Upgrades include:

· - Merciful discretion

· 3.2.3 - Procedural fairness

· - The duty to make submissions on sentencing range

· - Impact on appellate rights

· - Rejection of equivocal pleas

· 4.4 - Fact finding

· 4.4.4 - Interpreting a jury verdict

· 4.4.5 - Agreed facts

· 4.5.8 - Subsequent convictions

· - Use of co-offender’s statement permissible

· 4.6.4 - Victim impact statements

· 5.3 - Recording of conviction

· 5.10 - Reasons for sentence

· 5.11 - Correction of errors

· 5.14 - Sentencing after retrial

· 6.2 - Proportionality

· - Guilty plea

· 11.2.7 - Statement identifying discount for guilty plea

And if you're checking out the JCV website have a look at the new Civil Procedure Bench Book.

It notes changes to civil procedure caused by the introduction of the Civil Procedure Act 2010, and contains a built-in quiz like others already on the JCV's website.

Thursday, 10 February 2011

Web-based appearances

The Magistrates' Court is about to start staggered listings. It plans to predominantly list criminal or complex cases in the mornings, and traffic and less complex cases in the afternoons.

Additionally, all venues of the Court will commence sitting at 9:30 AM.

You can read about it here.

As part of this change, the Magistrates' Court is also creating a web-based system for practitioners, prosecuting agencies and court coordinators to enter appearances and request adjournments. I guess it's a bit like internet banking, where some of the work is pushed to the consumer, but lets them do it at a time convenient to them rather than the bank!

The system goes by the name of Electronic Filing Appearance System — EFAS. You can find it on the Court website.

The system is pretty bare-bones at the moment, and seems to assume everyone signing up here works in a solicitor's firm. For barristers, you'll need to dig out your Legal Services Board Registration of Solo Practice to find your 'firm' number. It seems too, that you chop off the leading letter and zeros...but I'm not entirely certain, because the webform provides no feedback to indicate if you've correctly entered data, or validly entered data. It just acknowledges your submission. I guess the folks running the system will email users to confirm it all.

The system is planned to operate from 21 February.

Wednesday, 9 February 2011

Driving to distraction

Edit: No surprises in the SA Supreme Court decision of Savage v Police [2011] SASC 13, reported as though it was news here. The decision was more about a magistrate's discretion to award a conviction. The issue of merely using a phone to check the time was dismissed immediately, with reference to Kyriakopoulos v Police [2006] SASC 71.

When the Road Rules 2009 came in the rule-makers had significantly changed the rules about using a mobile phone when driving. Rule 300 became much longer and more detailed. It was clearly the intention to make use of a hands-free kit legal, while almost any other use of a phone while driving remained an offence.

News reports this week carry Monash University Accident Research Centre findings that hands-free isn't that much safer than hand-held mobile phone use. The Draft National Road Safety Strategy for 2011 - 2020 reportedly floated a total ban on mobile phone use behind the wheel, but it's already been ruled out.

There's nothing new in this information. A MUARC report from 2003 reviewed the available literature and identified a number of studies that found hands-free phones were not, or were only a little, less distracting than actually holding the phone. Programming a sat-nav system was found to be one of the most distracting tasks a driver could perform. One study quoted eating and drinking as being more statistically dangerous than using a mobile phone.

This raises the question of whether a driver could be prosecuted for inattention when using a hands-free mobile phone (for example, where they have an accident). Rule 300(1) offers a defence to the offence created under rule 300, but not to offences under rule 297 (driving a vehicle without proper control) or under s 65 (careless driving) of the Road Safety Act 1986. (Or, to pick the most extreme example, culpable driving under s 318 of the Crimes Act 1958).

It could be argued that legislators have created a misleading impression of safety by making hands-free use specifically legal, where the previous law was unclear. But is this like claiming its okay to speed because of the 10% leeway permitted for speedometers in the standards for roadworthiness? (The argument swiftly dismissed by the SA Supreme Court in Police v Van Reesma [2010] SASC 201.)

Tuesday, 8 February 2011

School days 2011

The school term has now begun at most schools in Victoria. Cars are now obliged to crawl past primary and secondary schools at 40 km/h at certain times of day.

In the Road Rules - Victoria, school zones were defined and described at r 23. Under the Road Safety Road Rules 2009 school zones are gone but a similar rule has been inserted at r 317A,

317A Traffic control devices applying on school days

(1) If information on or with a traffic control device indicates that it applies on school days, it only applies—

(a) on a declared school day; or

(b) on any day indicated to be a school day by information on or with the traffic control device.


Rule 317 provides that information on or with a traffic control device may indicate the times, days or circumstances when it applies or does not apply.

* Example *
The following sign applies—

• on declared school days, but not on other days unless information on or with the sign indicates that it is a school day at that place; and
• at the times indicated on school days, but not at other times.
Note that a sign may have a different number on the sign—see rule 316(4) of these Rules.

(2) For the avoidance of doubt, subrule (1) does not limit or extend the effect of a traffic control device that does not have other information on or with that traffic control device.
* Example *
The following sign is not restricted to certain times or days and applies whenever it is displayed.
(3) In this rule—

declared school day means any day that falls within a period declared by the Corporation, by notice in the Government Gazette, to be a school days period for the purposes of this rule, and that is not one of the following—
(a) a Saturday or a Sunday; or

(b) a day appointed under the Public Holidays Act 1993 as a public holiday in the place in which the traffic control device is located.


Different schools have different terms. For this reason, a declared school days period may include days or weeks when many schools are open although some are closed. For the same reason, information on or with a traffic control device may indicate that it is a school day at that particular place even though the day is not in a declared school days period because most other schools are closed at that time or is a Saturday, Sunday or public holiday.

Traffic control device is defined in the dictionary.

The relevant gazette for 2011 is Government Gazette S 467, published on 16 November of last year. It contains a table of the declared school days for this year:

School Days Period 1 = 31 January 2011 to 8 April 2011
School Days Period 2 = 27 April 2011 to 1 July 2011
School Days Period 3 = 18 July 2011 to 23 September 2011
School Days Period 4 = 10 October 2011 to 22 December 2011

These days are school days unless there is local signage that says otherwise.

This information has been added to the TABLE menu on the left (and for more on these, read the Tables bar post.)

Monday, 7 February 2011

Tables bar

You may have noticed a new sidebar above SUBSCRIPTION INFORMATION marked TABLES.

Here you'll find a number of tables summarising information that may be useful if you practice in the summary jurisdiction. They are designed to be functional rather than pretty. Let me know if you can think of ways to improve them or extra ones you would find handy.

Currently we have:

* Mandatory minimum drink-driving penalties

* Mandatory minimum speeding penalties

* Police prosecutor summary case conference contact details

and from tomorrow,

* School days 2011

I'll make more of an effort to keep these tables up-to-date than we do with some of the old posts on this site, but this is still a good time to repeat that anyone who chooses to rely on information from a free anonymous blog rather than their own research does so at their own risk.

Friday, 4 February 2011

The Daily List (aka iKnow when my case is on)

Hat tip to one of my colleagues who mentioned this to me today.

I hadn't heard of it — please, don't tell me I'm the last to know? — so figure I should share the info.

The Department of Justice has an iPhone/iPad app called The Daily List. It provides access to daily court lists for the Magistrates', County and Supreme Courts, and the Court of Appeal, as soon as they are published.

It also has a search function, and can sort lists by judicial officer, time or case name!

Easwaralingam v DPP & Anor [2010] VSCA 353: the requirements of hearsay notices

While we were away the accused in DPP v Sajanesh Easwaralingam & Anor [2010] VSC 437 (a successful prosecution appeal) took the decision of Pagone J to the Court of Appeal in Easwaralingam v DPP & Anor [2010] VSCA 353.

We discussed the Supreme Court case here last year. The appeal involved argument about the meaning of the term record for the purposes of a judicial review. Argument about the operation of the Evidence Act 2008 was limited. Pagone J's findings were generally upheld.

The Court of Appeal [Tate JA at 32 and onwards, Buchanan JA in agreement] discussed how specific a notice advising of an intention to lead hearsay evidence must be. They took a fairly flexible approach.

Tate JA [at 35]:

35 The submissions on the deficiencies on the form of the notice focused upon that part of the notice which specified that s 65 of the Evidence Act was relied upon but failed to stipulate which particular sub-section was relevant. Section 65 permits the admission into evidence of a previous representation if the person who made the representation ‘is not available to give evidence about an asserted fact’.

36 The notice provided by the prosecutor stated: ‘It is intended to rely on the Evidence Act 2008, s 65(2)(a) or (b) or (c) or (d), s 65(3)(a) or (b) or s 65(8)(a) or (b)’. Some of the sub-sections were clearly not applicable.

37 Section 65 reads:

(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation –

(a) was made under a duty to make that representation or to make representations of that kind; or

(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or

(c) was made in circumstances that make it highly probable that the representation is reliable; or

(d) was –

(i) against the interests of the person who made it at the time it was made; and

(ii) made in circumstances that make it likely that the representation is reliable.

(3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the accused in the proceeding to which this section is being applied -

(a) cross-examined the person who made the representation about it; or

(b) had a reasonable opportunity to cross-examine the person who made the representation about it.

(8) The hearsay rule does not apply to –

(a) evidence of a previous representation adduced by an accused if the evidence is given by a person who saw, heard or otherwise perceived the representation being made; or

(b) a document tendered as evidence by an accused so far as it contains a previous representation , or another representation to which it is reasonably necessary to refer in order to understand the representation.

38 The trial Judge found that although some of the provisions may not have sustained the application, there was asserted the provisions on which reliance was placed. He found the Magistrate’s conclusion to the contrary not to be sustainable.

39 It was argued on the appeal that the broad reference to a range of sub-sections was not a statement of the particular provisions on which the prosecution intended to rely. It was, rather, a statement of almost every provision on which the prosecution might conceivably rely, although most of them were clearly inapplicable (s. 65(2)(a) or (d)(i), or 65(3)(a) or (b)), especially those that apply to statements adduced by an accused (s 65(8) (a) or (b)). The applicant argued that none of the sub-sections applied and that, in particular, the exception founded upon s 65(2)(b) should be read to reflect only the common law res gestae exception to the hearsay rule which, it was submitted, would preclude reliance upon it by the DPP in the circumstances of the case. Further, it was submitted, his Honour’s analysis leaves s 67(1) and 67(3)(a) with no function to perform.

40 The respondent argued that no prejudice flowed to the defence merely because some of the provisions relied upon may not have sustained the application. What mattered is that at least some of the provisions identified (s 65(2)(b), and perhaps s 65(2)(c)) could, at least arguably, be relied upon, in the circumstances of the case. This would not deny the function of s 67(1) or s 67(3)(a) as there was compliance with both sections, given that reasonable notice was given which did specify the particular provisions relied upon (amongst others), whether or not that reliance might ultimately prove to be justified.

41 The applicant is correct in his submission that most of the sub-sections of s 65 were inapplicable in the circumstances of the case. However, while it is to be expected that the Crown, when giving notice of an intention to adduce hearsay evidence, will identify with some precision the particular provisions sought to be relied upon, there was here no prejudice which flowed to the applicant by the failure to do so. What ultimately matters is whether the conditions under any of the relevant sub-sections relied can be made out. It may be that an analogy could be drawn with the principle that a decision made by an administrative decision-maker purporting to be done under one statutory power which is not available may nevertheless be valid if supported under another statutory power, so long as any pre-conditions to the exercise of that power are satisfied. Whether or not that is so, just as the failure to serve a notice under 67 may not be fatal to the application by the Crown to utilise s 65 of the Evidence Act, in the circumstances of a case (see The Queen v Darmody [2010] VSCA 41, [50]-[51]), in my opinion, so too the failure of the notice here to stipulate the sub-sections relied upon was not fatal to the application by the prosecutor to utilise s 65 of that Act.

The appeal was dismissed and the matter was remitted to the Magistrates' Court for rehearing.

Thursday, 3 February 2011

Legislation Watch: Sentencing Further Amendment Bill 2010

The new state government introduced legislation during the final sitting of Parliament last year to satisfy some pre-election commitments.

The three bills introduced were,

The first two bills allow state school principals to ban people from bringing weapons on to school grounds and expand the number and role of Protective Services Officers, respectively.

Sentencing Further Amendment Bill 2010

During the Second Reading of this Bill the Attorney General said,

Suspended sentences are a fiction that pretends offenders are serving a term of imprisonment, when in fact they are living freely in the community. A suspended sentence does not subject an offender to any restrictions, community service obligations or reporting requirements. As a consequence, many offenders actually incur no real punishment whatsoever for the offence they have committed and make no reparation to the community. Often those released on suspended sentences go on to commit further crimes.

You may remember that the previous government removed suspended sentences as an available disposition for certain offences just before the last election. (We discussed the Sentencing Amendment Act 2010 here). That Act will probably commence mid-year and will prohibit suspended sentences for offences designated as serious offences under s 3 of the Sentencing Act 1991.

(The only offence this impacts in the summary jurisdiction is the offence of making threats to kill a person under s 20 of the Crimes Act 1958.)

The effect of the pre-election amendments wasn't to make imprisonment mandatory for serious offences. Dispositions such as bonds, fines and community work remain available. But if the sentencing judge awards imprisonment it is not possible to then suspend the sentence.

The Sentencing Further Amendment Bill 2010 adds offences to the list of offences which cannot be suspended, by creating a new category of offences the legislation refers to as significant offences. These changes will not affect sentencing in the Magistrates' Court at all as any offence dealt with summarily is considered not to be a significant offence, even if it would be a significant offence if dealt with in the County Court.

The designated significant offences are,

  • causing serious injury recklessly
  • aggravated burglary
  • arson
  • arson causing death
  • trafficking in a large commercial quantity of a drug of dependence
  • trafficking in a commercial quantity of a drug of dependence)

The Second Reading speech suggests that a further removal of suspended sentences is planned for the next session of parliament.

The 'What's New' icon at LDMS

The Elucubrator discussed at 4.2.1 Victorian Legislation of his Using the iPad in legal practice — Part 4 that Part V of the Interpretation of Legislation Act 1984 gives an authorised electronic version of a Victorian Act or Statutory Rule, or a printed copy of an authorised electronic version, the same evidentiary value as a hard copy Act or Statutory Rule printed by the Victorian Government Printer.

To make this move into the 21st century possible the Victorian Legislation and Parliamentary Documents website are progressively adding authorised versions to their site. As they become available, a weekly list of updates is published in the What's New folder.

Other improvements to the site will also be flagged in that folder. Check it out.

Tuesday, 1 February 2011

And we're back ...

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

... though, as it turned out, we never really went away. The 'vacation' proved an ideal opportunity for the Elucubrator to sing the praises of his new toy - ahem, tool. Welcome to many new readers who got on board during the hiatus. Hopefully everyone had a relaxing and enjoyable Christmas break.

While we were away

The single day of Parliament in December resulted in some modest changes, with three new bills introduced. We'll talk about these, as well as some improvements to the parliament's website, in our first Legislation Watch for the year on Thursday.

On January 11th the new Attorney-General announced that retired Supreme Court judge Frank Vincent will conduct an inquiry into recent happenings at the Office of Public Prosecutions. The focus seems to be on the appointment of Diana Karamicov as an Associate Crown Prosecutor and various reaction to it, rather than a broader analysis of the Office's role and functions. The terms of reference ask Mr Vincent to conduct his inquiry, 'in light of claims that have been made in recent months' without actually saying what they are. There is some reportage of the story here and here.

Less media attention was paid to Victoria Legal Aid's decision not to proceed with the controversial whole of job fee structure it proposed last year. We discussed it here and here, and strong feelings were evident. VLA hasn't been very forthcoming about why the concept was scrapped. There's nothing I could find on their website, but the Law Institute obviously had the inside word when making an announcement confidently on their website.

Finally, the cases of Kypri, Piscopo, Rukandin and Serbest went before the Court of Appeal for directions hearing on 19th January. Each of the separate DPP appeals relates to the validity or invalidity of a police demand for a driver suspected of drink-driving to go to a police station for a breath test. The Kypri case was discussed here. Kyrou J's judgments in Piscopo and Rukandin were discussed here in November.

The appeals won't go ahead until at least June, leaving the situation with at least 800 other cases unclear until then.