Saturday, 30 April 2011

Burnouts are dangerous. (Who knew?)

In Nelson v Police [2011] SASC 55 the South Australian Supreme Court recently declared that doing burnouts and doughnuts next to a crowd of observers is recklessly dangerous conduct.

This is probably no great revelation to anyone who regularly endures the sounds of Billy the Buck doing burnouts in neighbouring streets, or to anyone who regularly graces our courts. What is surprising is the absence of judicial authority on the point! Perhaps it was so self-evident that no one ever bother seriously questioning it? The closest I could find was DPP v Massey [2008] VSCA 254, but that was a sentencing appeal where the burnouts were more background circumstances rather than the dangerous acts charged.

In Nelson, an undercover police officer video-recorded Mr Nelson driving his car in a cul-de-sac, doing burnouts and doughnuts while a crowd of around 60 people watched. He was convicted of doing an act likely to cause harm and being recklessly indifferent to whether such harm was caused, contrary to s 29(3) of the Criminal Law Consolidation Act 1935. The offence is roughly equivalent to reckless conduct endangering serious injury to others contrary to Crimes Act 1958 s 23.

On appeal, Mr Nelson relied on  the Court of Appeal's decision in R v Abdul-Rasool (2008) 18 VR 586 to argue that his driving wasn't likely to cause harm because a further act was required, such as him losing control of his car or a spectator getting too close. (I guess this is similar to the tension between probability and possibility that we see in the cases dealing with recklessness.)

In Abdul-Rasool the accused doused herself in petrol and threatened to set herself alight in a school principal's office. There were no realistic independent sources of ignition in the room, and a further voluntary act — such as her reaching for her matches or lighter and then trying to ignite herself — was required before any appreciable risk was created to anyone.

In Nelson, the Supreme Court considered the appellant's driving was inherently risky and did not require anything more.
[24] Mr Nelson’s driving was likely to cause harm because it was a form of driving that gave rise to a real risk that due to a momentary loss of control, or a slight miscalculation, his vehicle could move suddenly and unexpectedly in an unpredictable direction. There were spectators quite close to the vehicle. Having regard to the fact that there was no barrier between the spectators and the car, and no-one preventing spectators from moving wherever they wished, there was an evident risk of a spectator moving too close to the car. This combination of circumstances means that the act was one likely to cause harm. It might be harm resulting from a miscalculation or loss of control by Mr Nelson, or simply from someone getting too close to the car.

[25] An illustration will make my point. If I deliberately fire a shot that passes very close to the head of another, but I intend that the shot not hit the person, there is no difficulty, I consider, in saying that my act was likely to cause harm to another. The risk of the person moving the person’s head at the crucial moment, or the risk of my aim being out by a tiny amount, means that my act in deliberately shooting very close to the person’s head is an act likely to cause harm. That conclusion follows, even though the harm would result only if the person moved or my aim was not true.

[26] I agree that the manner in which the Magistrate expressed his conclusions at [18] is, strictly, incorrect. The real and substantial risk of harm was present. It was present because of the real possibility that a spectator would get too close or possibly that Mr Nelson would miscalculate or lose control. The risk of harm was present and inherent in the circumstances in which Mr Nelson drove his vehicle, and did not arise only if and when there was a miscalculation, or loss of control, or one of the spectators got too close.

[27] I also reject the submission that it cannot be said that it was the driving that was likely to cause harm. It is false logic to argue that the cause of the harm would be the spectator getting too close, or the loss of control of the motor vehicle. Each of these things is part of the overall circumstances.

[28] It is irrelevant that the spectators were not in Mr Nelson’s direct path, and equally irrelevant that he did not drive at them.

[29] The substantial risk of harm arose from the nature of the manoeuvre performed, the inherent risk of the sudden movement of the car, the proximity of the spectators and the absence of any protective barrier.

[30] For these reasons, I agree with the conclusion by the Magistrate that the driving in which Mr Nelson engaged was to be characterised as an act likely to cause harm to another.

Thursday, 28 April 2011

(Some) suspended sentences to go

Some of the Sentencing Amendment Act 2010 (discussed last year here) commences operation on 1 May 2011 (see Special Gazette, S125, 19 Apr 2011), namely:
  • Section 3 (definitions) — except paragraphs (b) – (e) which repeal CSO, ICO and CCTO as part of the introduction of the proposed intensive correction management order
  • Section 12 (suspended sentences)
  • Section 27 (transitional provisions inserted into the Sentencing Act 1991)
  • Section 28 (amendment of Road Safety Act 1986 – offence to drive when disqualified)
Some of the Sentencing Further Amendment Act 2011 (discussed here back in March) commenced operation on 13 April 2011 (see Special Gazette, S117, 12 Apr 2011), namely:
  • Part 1 (preliminary)
  • Part 2 (amendment of the Sentencing Amendment Act 2010)
That means the amending act was itself amended, before it commenced and amended the Sentencing Act!

The effect is that from Sunday, there will be a new definition of significant offence. A significant offence is:
  • Recklessly causing serious injury (unless heard and determined summarily)
  • Aggravated burglary (unless heard and determined summarily)
  • Arson (unless heard and determined summarily)
  • Arson causing death
  • Trafficking in large commercial quantities of drugs
  • Trafficking in commercial quantities of drugs
Those last three offences can only be determined in the County or Supreme Courts.

From 1 May, the Sentencing Act 1991 s 27(2B) will provide:
(2B) Despite subsection (1), a court must not make an order suspending the whole or a part of a sentence of imprisonment imposed on an offender for a serious offence or for a significant offence.


A suspended sentence may be available for a serious offence or for a significant offence committed before the commencement of section 12 of the Sentencing Amendment Act 2010.
Serious offences are already defined in s 3 of the Sentencing Act, and are offences that can't be heard in the Magistrates' Court.

That means suspended sentences will still be available in the Magistrates' Court — at least for now.

While some may be expecting prisoner numbers to increase as a result of the amendments, that isn't the stated aim of the legislation. In his press release Robert Clark said,
Abolishing suspended sentences will put truth back into sentencing, so that jail will mean jail. If a judge thinks an offender should not go to jail, the judge will say so openly and put the offender on a community based sentence, instead of the law pretending the offender is being sent to jail.
The government intends abolishing all suspended sentences prior to the end of its first term, but at present there are no further Bills before Parliament for a further phase of reform.

1 May is also when mandatory suspended sentences for subsequent offences of driving while suspended or disqualified are abolished. Sentencing Amendment Act 2010 s 28 will amend the penalty portion of s 30(1) Road Safety Act 1986, which will read:
For a first offence, 30 penalty units or imprisonment for 4 months; For a subsequent offence, 240 penalty units or imprisonment for 2 years.
The new system of Intensive Correction Management Orders (ICMOs) in Sentencing Amendment Act 2010 s 13 (inserting ss 35A – 35ZQ in the Sentencing Act) is not commencing, so the existing system of ICOs and CBOs will apparently continue for some time yet.

Tuesday, 26 April 2011

Virtual justice

Update: Back in 2009 I posted about the introduction of video-feeds between courtrooms and police stations in the UK. A couple of weeks ago the ABC's Law Report did a follow-up on how that system is working.

As the Magistrates' Court of Victoria unveils its new virtual tour (following in the footsteps of Tasmania and South Australia), the United Kingdom is experimenting with another kind of virtual court experience.

The UK government is expanding its pilot virtual court to a number of police stations around London. The scheme has attracted lots of criticism. It allows summary matters to be dealt with by a magistrate and Crown prosecutor in a court building while an accused and their counsel are in a linked room at a police station, often miles away. It's estimated the scheme - if fully implemented - could save the new UK Ministry of Justice around £15 million a year in prisoner transportation costs and early case-resolution.

Edit: According to the Law Report piece it seems more common that a solicitor will be in the courtroom, while their client is in a room at the police station. This makes taking instructions on the fly difficult, if not impossible. There are also question marks over whether the facilities are actually more efficient.

The technology involved is similar to video links already in use in Victoria under Part IIA of the Evidence Act 1958. But under s 42K(2) there's a presumption against the use of video links here for sentencing hearings. The intent of the UK's Virtual Court is specifically to encourage an accused to enter a guilty plea and be sentenced soon after their offence - often within hours of arrest.

The traditional common law position in Australia favours the right of an accused to face their accuser, but there are now two distinct lines of authority on the issue. One favours use of remote witness technology unless there are reasons not to; the other has a presumption against it unless there are good reasons why it should be used. The conflict is discussed in R v Goldman [2004] VSC 165.

Sunday, 24 April 2011

Director of Public Prosecutions v Finnegan [2011] TASCCA 3: proving a prior inconsistent statement

In DPP v Finnegan [2011] TASCCA 3 the Tasmanian Court of Criminal Appeal ruled the trial judge was wrong to refuse leave to the prosecution to cross-examine its own witness.

Three men stood trial for assault. The Crown called a witness, Watkins, who had earlier pled guilty to his involvement. Watkins claimed no knowledge of the incident. The Crown sought leave to cross-examine Watkins under s 38(1)(a) and (b) and (c) Evidence Act 2001 (Tas) - a provision identical to s 38 Evidence Act 2008 (Vic).

The trial judge refused the application. His reasons were reproduced in the appeal [at 4]:

"Well I can't see any unfairness to Mr Watkins. He, in my view, he's created this situation and it wouldn't be unfair to him to be cross-examined. But, there are problems of unfairness to each of the three accused. For a start, Mr Watkins is, according to the account in his interview, a person who was criminally concerned in the events in question. And such people have a tendency, or such people often try to shift blame away from themselves and on to other people, including innocent people. So, it may be that any version of events that he did give would not be accurate and that he would be serving purposes of his own in trying to shift blame on to others. One or more of whom might have been innocent. Secondly, ... – if I do give leave ...– it's unrealistic to think that it's possible or likely that Mr Watkins might do anything other than continuing to maintain that he has no memory of the events in question. That being so, the evidence that he is likely to give will be of no value. And the[re]'ll be a risk of prejudice, in that the jury might act on the information or assertions contained in questions, even if they're instructed not to do so, and told that answers are evidence but questions aren't. There's a risk that they'll assume any assertions in the questions to be the truth, or to possibly be truth. There's a risk that they might begin speculating, basing their speculation upon things suggested in questions. And there's a problem there that any version of events asserted in questions, couldn't be tested by cross-examination if the witness were to continue to maintain that he is so drug affected that he can't remember anything. So I think it would be a waste of time to grant leave, but more significantly I think, I think it would ... involve a risk of unfair prejudice to each of the three accused, and for that reason I refuse leave."

The Court of Criminal Appeal agreed that the witness was unlikely to change his story in cross-examination. But the Court held that it would have been legitimate for the Crown to put a prior inconsistent statement to the witness and ask him to adopt it, and that it should have been given the opportunity to do so.

Evans [adding to the primary judgment of Tennant J, Crawford CJ agreeing with both]:

7 The evidence established that Mr Watkins had participated in a police interview some six weeks subsequent to the conduct in question and that there was an audio visual recording of it. In it Mr Watkins had said that he and the three accused, which includes the two respondents, all kicked the complainant to the head and punched him to the head, and were all fully involved in assaulting the complainant while he was on the ground. On the evidence before his Honour it was likely that, if cross-examined, Mr Watkins would agree that he was the person in the audio visual recording of the interview, acknowledge that he had pleaded guilty to a charge of assault arising from his participation in the assault that was the subject of the interview, and acknowledge that he had been convicted and sentenced for that crime. It was also likely that Mr Watkins would maintain that he had no recall of the incident and he had no recall of participating in the interview.

8 Evidence to the above effect from Mr Watkins would not have been a waste of time. It was necessary in order to found an application by the prosecution to lead evidence of the audio visual recording of Mr Watkins' prior inconsistent statements. Had that application been made and succeeded, the recording would have spoken for itself. In that event, there would not have been an out of the ordinary risk that the jury might act on information or assertions contained in questions put in the course of the police interview, even if directed not to do so. In the course of any trial, when witnesses are cross-examined or when a recording of an accused's police interview is tendered, it is almost inevitable that questions will have been asked, either by counsel or an interviewing police officer, that contain information or assertions. This does not present a problem that cannot be resolved. It is usually dealt with by a direction to the jury that questions are not evidence.

Unlike under the common law, there's no impropriety in a party calling a witness just to prove a prior inconsistent statement through them: Adam v R (2001) 207 CLR 96. The Court of Criminal Appeal referred to Tasmania v S [2004] TASSC 84, a case with facts similar to Finnegan.

Tennant J concluded [at 50]:


50 In all the circumstances, I am satisfied his Honour erred in the manner I have identified. As a consequence, the State has been denied at least the opportunity to present to the jury evidence which could have had a significant impact on the trial. The evidence clearly had significant probative value. As a consequence, a miscarriage of justice has occurred. I would give the appellant leave to appeal, and allow the appeal. I would also order that the acquittal of the respondents be quashed and that there be a re-trial.

Wednesday, 20 April 2011

Zukanovic v Magistrates' Court at Moorabbin [2011] VSC 141: judicial review of a contempt proceeding

Edit: Costs were awarded against the Magistrates' Court: Zukanovic v Magistrates' Court of Victoria at Moorabbin (No 2) [2011] VSC 160.

This incident of apparent courtroom contempt was originally noted here.

The bubble-blower, Zukanovic, was found guilty of contempt in the face of the Magistrates' Court and sentenced to a month's imprisonment. He was released on bail by the Supreme Court the same day. He then applied for judicial review under O 56 of the Supreme Court Rules.

In determining the review Forrest J walked a line between preserving the ability of courts generally to charge and punish contempt, while ruling that the magistrate had over-reached on this occasion.

Forrest J identified two issues of significance [at 27]:

  • Firstly and primarily, was Mr Zukanovic afforded procedural fairness once he was charged by the Magistrate with contempt?
  • Secondly, given that the charge was laid under s 133 of the Magistrates' Court Act 1989, did the Magistrate follow the correct procedure prior to laying the charge; if he did not, then was he deprived of jurisdiction to determine the charge?

The procedure itself was considered adequate, but procedural fairness was lacking. Forrest J found [at 6], 'firmness must be accompanied by fairness'.

The Supreme Court frequently referred to the decision of Magistrates' Court at Prahran v Murphy (1996) 89 A Crim R 403, a decision which involved the same magistrate.

After reviewing other authorities, Forrest J said [at 41],

In light of these clear and unambiguous statements of principle, a fair hearing of the charge of contempt against Mr Zukanovic required the following steps to be taken by the Magistrate prior to determination of the charge.

First, to set out the charge. This could be done either orally or in writing. What was essential was that Mr Zukanovic understood the charge the Magistrate was laying.

Second, to afford Mr Zukanovic the opportunity to consider the charge and if necessary, to seek further legal advice, or an adjournment or, perhaps, further particulars of the charge: see Murphy at 210.

Third, to give Mr Zukanovic the opportunity to state whether he pleaded guilty or not guilty to the charge.

Fourth, in the event that Mr Zukanovic pleaded not guilty to the charge, to give him the opportunity to present evidence and to make submissions relevant to the determination of the charge.

Then, having adopted this procedure, the Magistrate was required to be satisfied beyond reasonable doubt that Mr Zukanovic was guilty of the charge: Witham v Holloway (1995) 183 CLR 525. In doing so, he was required to consider carefully all the evidence and keep at the forefront of his mind the unusual role he was undertaking in this process.

The Supreme Court quashed his conviction and sentence.

Tuesday, 19 April 2011

AB & Anor v Magistrates' Court at Heidelberg [2011] VSC 61: judicial review of an intervention order

A respondent in a family violence proceeding who is dissatisfied with having an order made against them has a statutory avenue of appeal to the County Court: Division 9 of Part 4 of the Family Violence Protection Act 2008.

But that's not the only option. In AB v Magistrates' Court at Heidelberg [2011] VSC 61 the respondents to an application sought judicial review of the presiding magistrate's decision to grant interim orders effectively prohibiting them from having contact with their niece.

Mukhtar AsJ:

5 The plaintiff’s counsel, Mr Perkins, described what happened in the Magistrates’ Court as a muddle. But this was really a root-and-branch attack on the judicial integrity on the conduct of the case. He contends the interim orders against the brothers did not ban them from contact with child, and the real harm lay in the order made (by consent) against the grandmother which in effect did. He says the brothers had bonded with the child and the Magistrate’s orders “smashed” the family relationship on nothing more than the Magistrate’s concern for the child based on the mother’s untested allegations, and without disclosing any reasoning process or evaluation of the strength or credibility of the mother’s allegations against them.

6 He also says that the Magistrate’s conduct of the case put counsel for the brothers and the grandmother in such an invidious position that, in the end, the Magistrate’s will was overbearing to the point that the grandmother had no choice but to consent to final orders.

7 And, it is contended, the Magistrate was so apparently preoccupied with despatch of the cases in a busy Court list, and so resolved on taking a set course, that her Honour disregarded the requirements of the statute and disembarked from her judicial task and the jurisdiction conferred upon her. That is, it was a constructive failure to exercise jurisdiction.

None of these submissions were upheld. The proceeding was dismissed. In examining the circumstances, Mukhtar AsJ made some interesting observations about the way the intervention order process works.

43 There is before the Court a transcript of the recording of proceedings that took place that day. There is no need to refer copiously to its contents. It is important to keep in mind this was a mention hearing. It is an occasion on which the parties inform the Court about the state of the contest. That is, whether the matter is still proceeding, or whether interim orders are to be extended or varied by consent, or whether final orders can be made by consent. In the event that the order is to become contested, the purpose of the mention hearing is to fix a date for the hearing of a contest. In the meantime the interim orders can continue, without admissions, akin to an interim injunction. If no agreement can be reached on interim orders, then the Court can hear evidence for interim purposes on a standard under the statute to which I have already referred. In that regard, the legislation does not require that any alleged family violence be proved before an interim order may be made: see Zion-Shalom v Magistrates Court. What matters is the safety or well being of the child.

44 It ought be accepted that a mention date is or can be a busy day. The Court must deal with many applications, maybe in a milieu of despatch depending on judicial resources. Matters are mentioned, then stood down to enable parties to discuss their differences and try to agree on interim orders at least. The philosophy, naturally enough, is to let parties reach an acceptable position for themselves on an interim basis, rather than have an imposed legal intervention. It stands to reason that Magistrates will encourage continuation of interim orders consensually without admissions to minimise the inflammation of family conflict with interim contests, and defer the contest to a final hearing when evidence can be adduced and carefully considered.

Zion-Shalom v Magistrates' Court of Victoria at Heidelberg (No 2) [2009] VSC 477 was discussed here back in 2009.

Mukhtar AsJ went on to describe a magistrate's role in interim proceedings,

61 I think the statute is investing faith in the Magistrate to form a belief judicially, which is based not on caprice or convenience or personal value, but on some rational grounds. There is a natural inclination to say probative as well but there are bound to be cases where allegations may not be improbable but not manifestly so, and a Magistrate forms a belief conscientiously that “a risk may be posed” as s 78(5) says. Perhaps it could be a real and sensible risk. However one poses the test, in my view, a belief can be formed about a risk on the basis of allegations that are yet to be proven, but have to be taken seriously (or not dismissed as frivolous) until they are eventually tested. An element of judgment has to be involved, especially as a child is involved, and so much will depend on the circumstances. To that end, regard must be had to the evidentiary requirements and the inquisitorial flavour of s 65 which states that: “Subject to this Act, in a proceeding for a family violence intervention order the court may inform itself in any way it thinks fit, despite any rules of evidence to the contrary.”

Mukhtar AsJ rejected the suggestion that the magistrate in the case before him had overborne the will of the parties, He observed [at 86] that a 'Sphinx-like' approach by the magistrate would have probably added to the problems of the hearing.

93 This Court is not here to judge the manner of magistrates or to make pronouncements about judicial etiquette. For one thing, the Magistrate cannot respond personally to the complaint or defend herself and maybe tell me what she was experiencing in Court. Magistrates are at the coal face and have to do practical justice in cases that are emotionally charged and troublesome. There is a growing expectation that Courts should take a more interventionist role than in the past and some may want to run a tight ship: see generally Thomas, Judicial Ethics in Australia. Courts have to act with courtesy but above all with authority. Instances of sharp words, incredulity, sarcasm or urgings may be no more than a technique to try and ensure parties concentrate on the issues before the Court and act constructively. Litigation in the courts would simply be unworkable if relief was available by way of certiorari each time a judge in effect was telling parties to “get on with it” or each time a judge revealed what his or her preliminary thinking was so as to encourage the parties to reach agreement. That is especially so in cases under this Act.

An entertaining review of the book referred to by Mukhtar AsJ above can be found here.

Monday, 18 April 2011

Childrens' Court rulings now on AustLII

I'm not sure when this happened but there is now a Childrens' Court of Victoria icon at AustLII. The cases are both criminal prosecutions and child protection applications, with identifying features suitably anonymonised.

Judge Grant and Magistrate Power (previously mentioned here) are the two most frequent contributors, but other magistrates' decisions are presented as well.

Some cases provide handy starting points for research of issues particular to the Childrens' Court. The case of Herald & Weekly Times v AB [2008] VChC 3 is a thorough exploration of considerations for and against an application to publicly name an accused child under s 534 of the Children, Youth and Families Act 2005. Likewise, Victoria Police v CB [2010] VChC 3 cites useful authorities on whether a matter should be determined in the Childrens' Court or a child committed for trial in the County Court.

Over in the criminal division of the Magistrates' Court it seems only Magistrate Garnett releases his judgments for public scrutiny. The decision of Hemingway v Hamilton [2011] VMC 10 probably made it into the paper because of the on-line publication. (Despite a game attempt by the media to keep the story going there's nothing surprising in the decision).

If Magistrate Garnett keeps publishing his decisions he'll soon be the most quoted magistrate in Victoria - apart from Magistrate Crisp, of course.

Friday, 15 April 2011

Douglas v Police [2011] SASC 50: Practical application of DPP v Moore?

Most advocates who deal with drink-driving offences will know of DPP v Moore (2003) 6 VR 430, where the Court of Appeal held the then public-policy discretion, or the unfairness discretion, could be used to exclude a result of a breathalyser test if the accused person was talked out of or denied a subsequent blood test.

The case crops up fairly frequently, but defences relying on it are not often successful.

Douglas v Police [2011] SASC 50 demonstrates why the Moore's defence has a role to play.

The police stopped Mr Douglas and he was breath tested, returning a blood-alcohol result of 0.098% at 10:20 PM.

At 12:30 AM — nearly 3 hours later — he took a blood test, later analysed and returning a result of 0.034%.

These results indicated he eliminated about 0.027% alcohol per hour. An expert testified that 95% of social drinkers eliminated somewhere between 0.015 and 0.017%.

Expert evidence established that Mr Douglas' breath test reading probably should have been 0.06%, based on his drinking on the night and assuming he was a healthy social drinker who would eliminate around 0.016% per hour.

That suggested that the breath test result of 0.098% was probably exaggerated. The Supreme Court quashed Mr Douglas' conviction.

The result here would be different though.

In South Australia, Road Traffic Act 1961 s 47K provides that a breathalyser reading is presumed to be correct in the absence of evidence to the contrary. (See here for our earlier post on evidence to the contrary.)

Here, Road Safety Act 1986 s 48(1A) in combination with s 49(4) and (6) significantly limits when a breathalyser reading can be challenged for exceeding prescribed concetration of alcohol offences contrary to s 49(1)(f). for that reason, the points raised in Douglas can't apply under the statute but might strengthen the argument for applying the unfairness discretion (now found in Evidence Act 2008 s 135) applied in DPP v Moore.

Thursday, 14 April 2011

Sing a song of sixpence? DPP v Twenty Fourth Trengganu Pty Ltd [2011] VSCA 92

We don't get very many appellate decisions on the Confiscation Act 1997, and even fewer from the Court of Appeal.

DPP v Twenty Fourth Trengganu Pty Ltd [2011] VSCA 92 was delivered by the Court of Appeal earlier this week. The company Twenty Fourth Trengganu Pty Ltd applied to exclude a car from being restrained for automatic forfeiture. The application is made under s 22 of the Act.

The company was owned by Vincent and Maria Rizzo, who were its directors and officers.

Their son Bartholomew was employed by the company, but wasn't an officer of the company.

In May 2006 the company bought a Holden ute to help deliver stock. It didn't have the money for it, so Bartholomew Rizzo loaned $30 000 to the company. At [18], the Court noted the trial judge's findings that Bartholomew obtained the money from a criminal associate, and that the car was bought from the sister of a known criminal.

The car was mainly used by Bartholomew Rizzo, and garaged at his home. Very occasionally, it was used by the company for business purposes.

Rizzo used the car when trafficking a drug of dependence in not less than a commercial quantity. He was arrested and charged in 2007; ultimately pleaded guilty, and received a total effective sentence of 16 years jail.

The company claimed in its application it wasn't involved in the offence, and, when it acquired the car, it didn't know Bartholomew Rizzo would use the car for drug trafficking.

A large part of the appeal turned on what interest the company had in the car: [29] – [41].

The trial judge concluded that although Bartholomew had control and possession of the car, he didn't have the power to exclude the company from it (i.e. actual possession). Nor did he have the right in law or in fact to dispose of it: that required the signature of the company's officers on the notice of transfer: [21] and [35]. And, bartholomew did not have effective control of the car, which would have defeated the company's exclusion application, under s 22(1)(b)(i) or (ii).

The Court approved Kaye J's previous explanation of effective control:
The whole scheme of the Act is to treat as the owner of property those who, in reality, exercise a fundamental incident of ownership, namely, the practical control of property. Accordingly, the question whether the defendant has the effective control of property involves an examination of the actual practical exercise, or capacity to exercise, by the defendant of rights over the property in question, such as the right to possess, use, sell, mortgage, make fundamental improvements to, and exclude others from possession of, the items of property in question: DPP v Ferguson [2006] VSC 484 at [54].

Nettle JA succinctly summarised all these considerations at the start of the case:
[2] In this case, the judge found that the respondent was the legal and beneficial owner of the motor car which was the subject of its application for exclusion under s 22(b)(i) of the Confiscation Act 1997 (‘the Act’). The appellant does not seek to disturb that finding.

[3] In this case, the judge also found that, although the respondent was in the habit of making the vehicle available to the defendant, Bartholomew Rizzo, under a family arrangement whereby he was permitted to treat the vehicle for the most part as if it were his own, the respondent at all times retained the right to require immediate possession of the vehicle, to direct how and when it be deployed in the service of the respondent, and to sell or otherwise dispose of it as the respondent determined in the respondent’s own interests. The appellant does not seek to disturb that finding either.

[4] The judge further found that, although it might be that the defendant had a moral claim to the use of the vehicle, inasmuch as he provided the loan funds with which, indirectly, the respondent financed its purchase, he did not have any right or ability, de facto or de jure, to control the respondent’s exercise of its rights to require possession or deployment or disposal of the vehicle. That finding, too, is not challenged.

[5] Given those findings, the appeal was bound to fail.

And, in a unanimous judgment, the appeal did fail.

This provides useful guidance to notions of control and ownership often involved in forfeiture applications.

With the increasing number of car impoundment and forfeiture applications in summary courts, this case might provide some help for determining impoundment and disposal applications under the 'hoon' provisions in the Road Safety Act 1986. (Though the legislative scheme is not the same, so this case has to be treated cautiously in its application.)

Sunday, 10 April 2011

Legislation Watch: Crimes Amendment (Bullying) Bill 2011

The Crimes Amendment (Bullying) Bill 2011 was in the media a bit last week. The Introductory Print is here. The Explanatory Memorandum is here. The Statement of Compatibility is here and the Second Reading is here.

The Bill adds definitions to the Crimes Act 1958, the Stalking Intervention Orders Act 2008 and the Personal Safety Intervention Orders Act 2010 (this last one isn't in force yet. It has a forced commencement date of 1st January 2012, but might commence this year). Arguably, the amendments are unnecessary. But given Parliament's specific identification of behaviour that might induce self-harm as stalking, the number of applications and charges of this type will probably go up.

The Second Reading speech groups the changes into four categories:

  • threats and abusive and offensive words or acts may form part of the course of bullying conduct

  • the description of a course of conduct will include any conduct that could reasonably be expected to cause the victim to physically harm themselves

  • the requisite intention for stalking includes the intention to cause a person to harm themselves

  • mental harm includes psychological harm and causing a victim to have suicidal thoughts.

This Bill is designed to deal with the specific circumstances of one bullying incident where the perpetrators were charged and convicted under the Occupational Health and Safety Act 2004 in the Magistrates' Court last year. Three employees were fined $45,000, $30,000 and $10,000 each. The manager was fined $30,000 and his company $220,000. There's no suggestion that the sentencing court would have imposed more severe penalties had they been available, but it appears Parliament thinks tougher penalties are needed.

On my reading of it, they already exist. The Occupational Health and Safety Act isn't one I'm familiar with, but its s 32 provides,

32. Duty not to recklessly endanger persons at workplaces

A person who, without lawful excuse, recklessly engages in conduct that places
or may place another person who is at a workplace in danger of serious injury
is guilty of an indictable offence and liable to-

(a) in the case of a natural person, a term of imprisonment not exceeding 5 years, or a fine not exceeding 1800 penalty units, or both; and

(b) in the case of a body corporate, a fine not exceeding 9000 penalty units.


However, the offence may be heard and determined summarily (see
section 28 of the Criminal Procedure Act 2009).

I'm not sure if this is the offence the men were charged with. But it seems this offence would have at least as good a chance of being proven as stalking would, and highly unlikely that a court would want to go beyond the 5 year maximum gaol sentence or $200,000 fine.

The Crimes Amendment (Bullying) Bill 2011 will take effect on the day following its Assent.

The Family Violence Protection Amendment (Safety Notices) Bill 2011 also needs a mention. This will make minor changes to the FVSN system. It has a forced commencement date of 1st November 2011, unless proclaimed earlier.

Saturday, 9 April 2011

The Great Dissenter

Edit: For another perspective, here's an opinion piece written by the man who was responsible for choosing Michael Kirby for the job, former Attorney-General Michael Lavarch, writing in The Australian when Kirby stepped down in 2009. It's not very well-written but it does remark on some of the Great Dissenter's judicial accomplishments.

Former Puisne High Court Justice The Honourable Professor Michael Kirby AC CMG is currently on the media circuit promoting a new biography about himself, Paradoxes and Principles.

Radical Restraint by Ralph Heimans, 1998.

(For the record, people who keep track of such things have calculated that, in fact, Kirby J dissented in only 48% of his High Court cases. That should silence the critics ...)

It's as good an excuse as any to post a few good quotes I've been hanging on to. First, from the man himself, from an address to the Compensation Court of NSW in 2008:

The organised legal profession seems sometimes to have its priorities wrong. Many attach great importance to commercial litigation, much of which is, in truth, nothing but elaborate debt recovery. In the estimate of ordinary citizens, the most important area of the law is, and always will be, criminal law. Citizens are not wrong. They know intuitively that criminal law enshrines the character of the society in which it operates.

Next, his fellow scholar, lawyer, judge and individualist Roddy Meagher QC is quoted as saying that,

[Justice Kirby] loves to make speeches. It does not matter what the subject is. He will speak on any aspect of the law, on modern medicine, on dental decay, on child welfare, on the activities of UNESCO, on the Arab-Jew problem, on music, on economics, on the Stock Exchange, and on the multiple complications of the computer. Recently he spoke to the Loya Jirga at Kabul, on ‘The message of Islam’, and to a gathering of senior monks at Phnom-Penh on ‘The necessity for silence’.

And finally another of my favourites from Meagher, discussing the diverse ways he said judges go about writing their judgments:

One is the way sometimes favoured by our President, Mr Justice Kirby, and others, which is to throw your mind into neutral, close your eyes, open your mouth, and let it all come out.

Thursday, 7 April 2011

Miller v Miller [2011] HCA 9: Drink, drive, bloody negligent?

The High Court's decision in Miller v Miller raises again the general question of the ability of a party to a joint criminal enterprise to sue another party to the caper.

The decision undoes the inflexible approach of previous unaninimous High Court decisions (Smith v Jenkins and Gala v Preston) that one illegal user of a vehicle does not owe a duty of care to a passenger complicit in the illegal use.


The facts can be stated briefly, and sound like they've been lifted from a torts law exam:

Danelle stole a car. She moved into another seat of the car and allowed Maurin to drive it. She knew that he had been drinking, and probably that he was unlicensed. Maurin started driving the car dangerously. Danelle asked to be let out. Maurin continued, crashed the car and Danelle was seriously injured as a result.

The majority (French CJ, Gummow, Hayne, Crennan, Keiffel and Bell JJ) posed the question they had to answer [at 5]:

Can Danelle recover damages for negligence from Maurin? Does her theft of the car, or her subsequent use of the car (or some combination of both her theft and her use of the car), defeat her claim for damages for negligence?

Legal principles

In some Australian jurisdictions the issue would be resolved by a specific statutory provision regulating the recovery of damages for personal injury suffered when the plaintiff was acting illegally. Western Australia doesn't have one so the issue was determined by the common law. (Section 14G(2)(b) in Part IIB of the Wrongs Act 1958 (Vic.) provides that a plaintiff's illegal activity must be considered in a claim for damages, but it doesn't specify how).

The majority began by basically writing off the illegality doctrine of ex turpi causa non oritur actio as inapplicable to negligence (though the Court did acknowlege [at 15] that the law in this respect needs to remain congruent with the rest of the civil law, notably contract and trusts.) The Court found the maxim to be vague and unhelpful.

At 16,

Ultimately, the question is: would it be incongruous for the law to proscribe the plaintiff's conduct and yet allow recovery in negligence for damage suffered in the course, or as a result, of that unlawful conduct? Other questions, such as whether denial of liability will deter wrongdoers or advantage some at the expense of others, are neither helpful nor relevant. And likewise, resort to notions of moral outrage or judicial indignation serves only to mask the proper identification of what is said to produce the response and why the response could be warranted.

The relationship between the parties in a negligence action is the foundation of the tort. Here, the Court drew attention to the fact that different ways of defining the relationship between Danelle and Maurin suggested contrary outcomes [at 47]:

One aspect of the relationship between the parties in the present case was that they were joint participants in an illegal act. Another aspect of their relationship was that the plaintiff was a passenger in a motor vehicle being driven by the defendant. The relationship between the parties could therefore be described as a relationship of passenger and driver. But, just as it is wrong to describe the relationship between them only as that of participants in a joint criminal enterprise, it is wrong to describe their relationship only as that of passenger and driver. Both characterisations of the relationship are accurate, but neither is complete. Both characterisations must be applied to describe the relevant circumstances fully.

Edit: The majority held that Danelle was a party to the theft. Consequently, she was a party to the bad driving through the operation of s 8 of the WA Criminal Code.

That reads,

8. Offences committed in prosecution of common purpose

(1) When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.

(2) A person is not deemed under subsection (1) to have committed the offence if, before the commission of the offence, the person —

(a) withdrew from the prosecution of the unlawful purpose; and

(b) by words or conduct, communicated the withdrawal to each other person with whom the common intention to prosecute the unlawful purpose was formed; and

(c) having so withdrawn, took all reasonable steps to prevent the commission of the offence.

The High Court held that dangerous driving was a probable consequence of the theft of the car. But the Court also accepted that Danelle had withdrawn from that purpose by asking to be let out. (See the comments attached to this post for a discussion of why that interpretation is questionable. And particular thanks to Jeremy Gans for his analysis.)

Heydon J wrote his own judgment in dissent, broadly in agreement on many points but outlining a hypothetical series of arguments he would have run if he been acting for the respondent. (I predict we're going to see more and more of this kind of thing from Heydon J during his remaining 3 years on the bench). He held that the request to get out was insufficient to constitute a withdrawal from the criminal enterprise.

I've criticised the High Court's judgments lately. Miller is a case that does involve a more comprehensive critique of previous cases and a bolder approach to legal principle. But in this case the principle arrived at was each case needs to be dealt with on its merits.

Sunday, 3 April 2011

Family Violence Bench Book

There has been some information about intervention orders on the Judicial College website for a while.

There is a 12-page overview, a summary of important provisions, and some checklists. These have been around since the legislation was overhauled 3 years ago and are useful for practitioners trying to get to grips with the system.

Recently the College uploaded a Family Violence Bench Book. It doesn't have the same depth or range as previous Bench Books (case law in this area is rarer), but no doubt the resource will develop over time. Perhaps it's the first installment of the Magistrates' Court Bench Book I am still waiting for.

There's also a link on the JCV site to Magistrate Peter Power's research on family violence and stalking orders, which is impressively detailed.

Friday, 1 April 2011

Relevance of motive

Relevance is described at s 55 of the Evidence Act 2008,

55. Relevant evidence

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(2) In particular, evidence is not taken to be irrelevant only because it relates only to-

(a) the credibility of a witness; or

(b) the admissibility of other evidence; or

(c) a failure to adduce evidence.

What is a fact in issue will be determined by the trial judge. In R v Middendorp [2010] VSC 147, Byrne J said [at 17]:

17 This is a criminal trial. The accused by pleading not guilty raises the general issue. At common law an accused is incapable of admitting a fact. Pursuant to s 184 of the Evidence Act an accused may admit matters of fact, subject to certain conditions or agree facts pursuant to s 191. Under s 183 of the Criminal Procedure Act an accused may make an admission in response to a notice of pre-trial admissions given by the prosecution under s 182. None of these courses appears to have been taken in this case, so that all factual matters to be proved by the prosecution are technically facts in issue.

It's notable that relevance relates to facts in issue, not elements of a charge. If evidence was only admissible if it bore on an essential charge element, evidence that would tend to show a motive for a crime could be inadmissible, not in the exercise of discretion but absolutely. Arguably, the motive for a crime goes toward demonstrating both the identity and the intention of the perpetrator, but it won't do so in every case. A charge can be proven at law without the Crown having proved why the accused person committed the offence (for a tragic example, see R v Guinab [2011] VSC 110.)

If the law was applied the other way, when a husband was charged with his wife's murder, evidence proving his contemporaneous affair with another woman might not be admissible. That's not an outcome that common sense would tolerate.

In Plomp v R (1963) 110 CLR 234 that factual scenario arose. It was alleged that the appellant had drowned his wife to be with another woman. He argued on appeal to the High Court that the jury should have been told that the fact that the wife had been drowned would first have to be proved before the evidence of the affair could be considered.

The Court rejected the argument. The admission of the evidence at trial was approved, and didn't require the murder to be proved before evidence of motive for the crime became relevant [Kitto J at 247, the rest of the Court concurring]:

The argument that to prove a person had a motive for doing an act cannot be relied upon to prove that he did the act was also supported by references to persuasive authority - but again I am unpersuaded. The authorities cited were relied upon in the first place to show that the term corpus delicti relates at most to the commission of a criminal act by somebody and does not cover the commission by an accused person of the criminal act charged against him - that is, here, that [the victim] had not died accidentally but had been killed, but not that the applicant had drowned her. Had the authorities cited not gone beyond this, they would hardly have assisted the applicant's case, but it was sought to attach this limited meaning to the term corpus delicti as a step towards establishing that it was not until the corpus delicti had been proved that evidence that the applicant had reasons for killing her and had sought to take advantage of her death became material, and some of the authorities cited do give some support to this contention.

The authorities were then referred to. He continued,

Notwithstanding such support as counsel have been able to muster for their submission, I am satisfied that proof of a case cannot be so fragmented. The cause of death, to the exclusion of suicide or accident, is unquestionably part of the corpus delicti, yet proof of this is often inseparably involved with proof that the person who is charged with homicide caused the death. In such a case it could not be maintained that proof of identity must wait upon proof of the corpus delicti. Futhermore, in such a case any evidence to show that an accused person caused the death would be at once evidence of the corpus delicti and an indication of who it was that committed the crime.

Indeed, this is just such a case and any evidence tending to prove that the deceased was drowned by the applicant was evidence against him for all purposes of the case. Such evidence - as will appear in greater detail when I come to the third question - included that there were inducements for his killing his wife; that immediately before her death he spoke of her as dead and introduced another woman as her successor, so, it could be taken, manifesting a disposition to kill her; that immediately after her death he sought to take advantage of her death by attempting to marry the other woman; that he lied about his relationship with the other woman and sought to induce her to do the same; and that he gave various accounts of what happened when the deceased was drowned. It hardly needs to be stated that to prove motive for a crime and no more could never be sufficient evidence upon which to convict anyone and it is to this that it seems to me some of the authorities cited are really directed, but, in a case like this, proof of such matters as I have just indicated does bear upon the probability that the applicant killed the deceased. Such proof was therefore admissable and could be used as evidence both that [the victim] was killed and that it was the applicant who killed her.

To hold otherwise would really involve the absurdity of requiring the jury to be directed that they could not consider the evidence to which I have just referred unless and until they had decided that [the victim] was killed by the applicant because, if she were killed, it must have been by the applicant.

Since relevant evidence relates to facts that are in issue, a carefully crafted concession by the defence can have the effect of rendering otherwise probative prosecution evidence inadmissible. (Heydon J discusses this in the context of similar fact evidence in his dissent in Stubley v Western Australia [2011] HCA 7). A more common example is the concession of the fact of death in a murder trial, saving the need for the trier of fact to hear gruesome details.

I haven't heard of counsel making the concession 'my client wished her dead' for an accused who denied the offence outright but I suppose that, in the right circumstances, it could happen.