Monday, 31 October 2011

Drug analogues

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

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

drug of dependence means a substance that is-

(a) a drug-

(i) specified in column 1 of Part 1 of Schedule Eleven; or

(ii) included in a class of drug specified in column 1 of Part 1 of Schedule Eleven; or

(b) any fresh or dried parts of any plant specified in column 1 of Part 2 of Schedule Eleven; or

(ba) prescribed as a drug of dependence in accordance with section 132AA whether specified as included in Part 1, Part 2 or Part 3 of Schedule Eleven; or

(c) a drug-

(i) specified in column 1 of Part 3 of Schedule Eleven; or

(ii) included in a class of drug specified in column 1 of Part 3 of Schedule Eleven- and includes-

(d) any form of a drug specified in column 1 of Part 1 or column 1 of Part 3 of Schedule Eleven, whether natural or synthetic, and the salts, derivatives and isomers of that drug and any salt of those derivatives and isomers; and

(e) any-

(i) drug specified in, or drug included in a class of drug specified in column 1 of Part 1 or column 1 of Part 3 of Schedule Eleven, whether natural or synthetic; or

(ii) salts, derivatives or isomers of a drug specified in column 1 of Part 1 or column 1 of Part 3 of Schedule Eleven; or

(iii) salt of any derivative or isomer mentioned in subparagraph (ii)- contained in or mixed with another substance; end user declaration means a declaration required for the purposes of section 80J, 80L or 80M, as the case requires;

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

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

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

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

(2) A substance is a controlled drug if the substance (the drug analogue ) is, in relation to a controlled drug listed in subsection (1) (or a stereoisomer, a structural isomer (with the same constituent groups) or an alkaloid of such a controlled drug):

(a) a stereoisomer; or

(b) a structural isomer having the same constituent groups; or

(c) an alkaloid; or

(d) a structural modification obtained by the addition of one or more of the following groups:

(i) alkoxy, cyclic diether, acyl, acyloxy, mono-amino or dialkylamino groups with up to 6 carbon atoms in any alkyl residue;

(ii) alkyl, alkenyl or alkynyl groups with up to 6 carbon atoms in the group, where the group is attached to oxygen (for example, an ester or an ether group), nitrogen, sulphur or carbon;

(iii) halogen, hydroxy, nitro or amino groups
; or

(e) a structural modification obtained in one or more of the following ways:

(i) by the replacement of up to 2 carbocyclic or heterocyclic ring structures with different carbocyclic or heterocyclic ring structures;
(ii) by the addition of hydrogen atoms to one or more unsaturated bonds;

(iii) by the replacement of one or more of the groups specified in paragraph (d) with another such group or groups;

(iv) by the conversion of a carboxyl or an ester group into an amide group; or

(f) otherwise a homologue, analogue, chemical derivative or substance substantially similar in chemical structure;

however obtained, except where the drug analogue is separately listed in subsection (1).

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

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

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

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

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

Harper JA [at 27]:

27 The argument in its favour is based in part upon references in her Honour’s reasons for sentence to the similarity, in some respects, of 4-MMC to other designer stimulants. Her Honour also referred to its use as an alternative for amphetamine related drugs and MDMA (or ‘ecstasy’). Then the judge said:

In terms of the harm your offending caused or could have caused, [it] is unclear what harm the drug 4-MMC causes. Fortunately, the authorities detected you and your offending was stopped. Due to the vigilance of customs officials, this clearly stopped further amounts of these drugs getting into the community. The custom’s vigilance, of course, comes at the expense and inconvenience of the Australian community as a whole.

The appellant submits that error is revealed by the references to other designer stimulants, to the use of 4-MMC as an alternative for both amphetamines and ecstasy, and to the harm caused by 4-MMC. I agree with these submissions. The Director points, correctly, to authorities which establish that, in sentencing for drug offences, it is impermissible to apply ‘a judicially constructed harm-based gradation of penalties’. I depart from him, however, when he goes on to submit that the sentencing judge drew an inference favourable to the respondent from the absence of any specific evidence of harm caused by 4-MMC.

The appellant submits that the drawing of such an inference is evidenced by her Honour’s observation in her reasons for sentence that it was not clear what harm the drug caused or could cause. So far as I can see, however, there is (apart from the impugned passage) nothing in those reasons for sentence to suggests that she took into account as a mitigating factor any notion that the relative harm suffered by consumers of 4-MMC, and the general public which must share the cost of its use, was less than for other illicit drugs. Indeed, during the course of argument on the plea, her Honour made it quite clear that she was aware that, in her words, ‘an illicit drug is an illicit drug, it doesn’t matter whether it is heroin or marijuana.’

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

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

Sunday, 30 October 2011

Legislation Watch: Sentencing Amendment (Community Correction Reform) Bill 2011

Intensive Correction Management Orders (ICMOs, discussed here) are going to go, without ever having been. In their place will be Community Corrections Orders (CCOs), for most purposes exactly the same thing.

In September the Attorney-General said,

Using new powers under the CCO, courts may require offenders to pay a bond that will be forfeited if the offender fails to comply with their order. Courts may also impose up to 600 hours of community work, curfews and no-go zones, conditions on where an offender may live, prohibitions on contact with specified persons such as associates of the offender, victims, witnesses or their families, and exclusions from licensed premises. Courts will be able to apply these conditions in a way that addresses the circumstances of the offence and the offender, in order to reduce the likelihood of further offending or protect those affected by the crime.

Courts will be able to use the new CCO to ensure that those who have committed serious crimes will no longer walk out of court free to continue their criminal behaviour with no restrictions or penalties. Courts may use the place or area exclusion to prevent offenders from going to a particular site or an area such as the CBD. Courts may also use the curfew condition to require that an offender stay at home for up to 12 hours a day to stop them going out at night or other times and engaging in further criminal behaviour.

Under the alcohol exclusion condition, courts will have the power to ban offenders from entering or consuming alcohol in licensed premises. Offenders will be completely banned from going to nightclubs, pubs, bars, restaurants, cafes and function centres. Offenders will be able to access other types of licensed premises. However, they will not be allowed to enter the bar area and will not be allowed to drink alcohol anywhere in the premises. If they do, they will be in contravention of their order.

Judges and magistrates will also be empowered to actively monitor an offender's compliance with their order through a judicial monitoring condition. Courts will have a broad discretion to manage offenders as they see fit -- for example, by requiring offenders to return to court for monitoring at regular intervals or just once. The judicial monitoring condition will allow courts to keep close watch over offenders' progress in completing the requirements of their order. Courts will be able to request progress updates from the offender, Corrections Victoria, prosecuting agencies, and other appropriate persons.

Courts will retain their existing powers to order supervision of the offender by Corrections Victoria, order treatment and rehabilitation such as drug or alcohol treatment, or programs that target particular offending behaviour and reduce the risk of reoffending.

This legislation passed the Assembly and made its way through the Council this week. The Bill will repeal combined custody and treatment orders, intensive correction orders and community-based orders, introduce a new community correction order, amend the Sentencing Amendment Act 2010 and make minor and consequential amendments to other Acts.

The Bill itself is here, the Explanatory Memorandum here and Statement of Compatibility here. The Second Reading Speech was read in September, and can be found here.

The legislation is a continuation of the government agenda discussed here. Parts of the Sentencing Amendment Act 2010 and Justice Legislation Amendment Act 2010 will be repealed without ever having come into effect.

Although the government has repeatedly stated its intention to abolish home detention, the curfew and no-go provisions of a CCO make comparisons inevitable. It might be more accurate to say that home detention is being removed as a 'jail' option and made a 'community-based' alternative.

It will be interesting to see whether magistrates adopt their new 'monitoring' function. Historically judicial officers have been reluctant to impose orders that require their ongoing supervision. It's likely that some magistrates will continue to rely on Corrections Victoria to track an offender's progress post-sentence, whilst others will take to direct supervision with enthusiasm.

Most of the provisions have a forced commencement date of 30 June 2013.

I should also briefly mention the Justice Legislation Further Amendment Bill 2011. Folllowing the vast increase in powers to be given to Protective Services Officers, this legislation will amend the Criminal Procedure Act to allow police prosecutors to represent them in their matters before the Magistrates' Court.

Sunday, 23 October 2011

Legislation Watch: Bonged off

The Drugs, Poisons and Controlled Substances Amendment (Prohibition of Display and Sale of Cannabis Water Pipes) Act was assented to last week. The Explanatory Memorandum is here, and the Second Reading is here.

It will come into effect on 1 January 2012. My flip through the legislation suggests that it looks a lot like the Drugs, Poisons and Controlled Substances Amendment (Prohibition of Display and Sale of Bongs) Bill 2010 that failed to pass in the last session of parliament. Both aimed to prohibit display of cannabis smoking tools in retail outlets and markets.

Section 80U will make it an offence to display a bong or a component of a bong in a retail outlet. Possession of one will not be illegal per se, except for those engaged in a commercial activity: s 80W.

The last time the law was proposed it was going to be a defence for the accused to prove that the bong, or the component of a bong, was designed primarily to be used for a purpose other than administering a drug of dependence. That's gone. Instead the prosecution will have to prove that the device is capable or intended to be used for the purpose of introducing cannabis fumes into the body. The definition of cannabis water pipe does provide some scope for argument about what a particular device was made or intended for.

Most of the offence sections specify a maximum penalty of 60 penalty units for a natural person, and 300 for a corporation.

Bongs are already sold under the legal fiction that they are used for smoking tobacco. The situation is further complicated by the existence of hookahs, a device which in every way resembles a bong but will now be given a specific exemption under s 80T.

cannabis water pipe means a device—

(a) capable of being used or intended to be used for the purposes of introducing into the body of a person cannabis or other drugs of dependence by the drawing of smoke or fumes resulting from heating or burning the cannabis or other drug through water or another liquid in the device, commonly known as a "bong"; or

(b) that is intended to be used as a device referred to in paragraph (a) but is not capable of being so used because it needs adjustment, modification or addition —

but does not include a hookah;

hookah means a fully assembled device—

(a) used for smoking a substance consisting of tobacco, molasses, fruit, herbs or flavouring, whether the substance contains all or any combination of them, by the drawing of smoke or fumes resulting from heating or burning the substance in the device through water or another liquid in the device; and

(b) that has one or more openings and one or more flexible hoses, each with a mouthpiece through which the smoke or fumes are drawn;

There's no information about what constitutes adjustment, modification or addition. Presumably it means something more than filling the thing with water. Does selling a bong in its component parts get around the prohibition? Apparently not, as sale of a bong kit or bong component is also prohibited: s 80T.

As someone who has enjoyed the occasional shisha in Sydney Road, I'm pleased to see that hookahs are not being outlawed. Only an outlet which displays more than 3 hookahs will be committing an offence: s 80X. But I don't see how you can tell them apart in a practical sense.

Tuesday, 18 October 2011

Green v The Queen [2011] VSCA 311: just punishment, specific deterrence and Verdins

This is another post about Verdins. In that case, Maxwell P, Buchanan and Vincent JJA laid out six principles [at 32]:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.

5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.

The Court of Appeal helpfully provided a numbered list of limbs of the Verdins doctrine. They aren't conceptually difficult. A major theme of the original decision was that those with mental conditions may have reduced moral culpability, diminishing their suitability as vehicles for general deterrence. It's tempting to try to distil the essence of the case still further into a 'mental condition = mitigation' equation (and many practitioners do), but that isn't accurate.

I've written about Verdins' case before here, here, here and here.

Green is the latest in a long series of cases where the Court considers itself obliged to revisit the original decision, adding little but repeating what was said there. The appellant here committed two 'carjackings' on consecutive days while armed with a meat cleaver (a different cleaver each time, it seems). He was easily identified as the culprit and pled guilty to the crimes.

Although the appellant had an extensive history of institutionalisation, with a long history of paranoid schizophrenia, assessment by a forensic psychiatrist rendered an opinion that a defence of mental impairment was not available as he possessed the necessary insight and self-control to be considered 'sane' at the time of the offences.

Maxwell P [at 19]:

The submission for the appellant was that, because of the link between [the appellant’s] mental illness and the offending, just punishment ‘was of little significance for sentencing purposes’. This submission misunderstands, however, the first of the principles summarised in Verdins, as follows:

The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

Other things being equal, a reduction in moral culpability will ordinarily mean that ‘the punishment that is just in all the circumstances’ will be less than it would have been had there been no such reduction. But the assessment of moral culpability is only one aspect of the Court’s task of determining a ‘just punishment’. As the judge correctly pointed out on the plea, the determination of ‘just punishment’ must be based on a consideration of all relevant sentencing principles.


For similar reasons, his Honour was correct to conclude that specific deterrence remained a relevant consideration notwithstanding the reduction in moral culpability.

The principle of specific deterrence is premised on the assumption that an appropriate punishment will operate to deter an offender from repeating the same or similar conduct in the future. Whether and to what extent that assumption is applicable to a person whose mental functioning was impaired at the time of the offending will depend on the circumstances. As Steytler J explained in Payne v The Queen:

[I]n a case in which the mental illness contributed to the commission of the offence, the importance of personal deterrence may, depending upon the nature and effect of the illness, be lessened. The whole notion of personal deterrence assumes some rational analysis or reasoning in the course of comparing the likely gains from the crime against the prospect, and likely severity, of punishment. Where the illness affects the person’s ability to make that very analysis, there is no justification for affording the consideration of personal deterrence the same measure of significance as it might have in the case of a well person, although there may then be a greater need to protect the public.

In the present case, specific deterrence still had real significance. On the uncontested evidence, the appellant had been fully aware of what he was doing and that it was wrong. Although his decision-making was, on the evidence, impaired to some extent by his chronic illness, the evidence showed that he had been able to act in a logical and purposeful way, first in planning and then in carrying out the armed robberies. It was appropriate to treat as one of the purposes of this sentence the deterring of [the appellant] from engaging in similar conduct in the future.

The conclusions of this case are, really, self-evident. A just punishment is the one appropriate in the circumstances. It might be that the appellant's counsel was thinking of just desserts, the Old Testament notion of bad things being made to happen to bad people, but I don't know that s 5(1)(a) of the Sentencing Act is so limited.

It's easy to see how giving a person with a mental condition a sentence more severe than is appropriate in order to send a message to others is wrong. But an unjust sentence is also a failure of the sentencing process, and so is one that fails to adequately address a need for specific deterrence.

Monday, 17 October 2011

Sentencing not to deter claims of innocence

In R v Kumar [2011] NSWCCA 139 the New South Wales Court of Criminal Appeal allowed Rajendra Kumar's appeal application. The applicant was found guilty of accessing and possessing child pornography, receiving 5 years jail with a 3 year non-parole period for accessing child pornography, and 3 years jail with a 2 year non-parole period for possessing child pornography.

The trial judge considered it necessary to impose a sentence that would deter others from similar conduct and from making false claims that they did not engage in it when they did (but not as punishment for pleading not guilty).

In NSW, the purposes of sentencing are set out in Crimes (Sentencing Procedure Act) 1999 s 3A, which is pretty similar to Victoria's Sentencing Act 1991 s 5(1). Unsurprisingly, both Acts don't say anything about deterring accused people from pleading not guilty when they will be — perhaps even unbeknownst to them or anyone else — found guilty of criminal offences in the future. That would probably undermine the practical effect of the presumption of innocence, both at common law and Charter of Human Rights and Responsibilities Act 2006 s 25(1).

[21] His Honour concluded with the following passage, which I set out again for convenience of reference:
"The sentences which I impose as will be seen give greater weight to general deterrence, the need to deter others from engaging in this conduct and particularly the need to deter others from making false claims that they did not engage in it when they did, and of course the principles of retribution fixing an appropriate sentence for the seriousness of the offences". [Emphasis added.]

[22] In this Court, the Crown prosecutor conceded that, if the sentencing judge expressed the view "that the conduct of the defence at trial was an aggravating feature which increased the sentence, then he would have fallen into serious error". In my view, although the sentencing judge referred to the conduct of the defence, the false claims which he was concerned to deter were of the type made by the applicant after he was convicted. His Honour had agreed during submissions that the defence conducted at the trial was not aggravating but rather deprived him of various mitigating circumstances and commented that the applicant had "defended the case as he [was] entitled to". The reference to the course of the defence simply gave a context for the evidence which his Honour discussed. However, in my respectful view, the sentencing judge plainly regarded the "claims" made to the psychologist and the probation officer as being in a quite different category which, it appears his Honour thought, were required to be refuted by reference to the evidence at trial.

[23] It seems to me that, in determining Ground 1, it makes no difference in point of principle whether it could be said that the applicant was punished additionally because of the defence he ran at trial or his subsequent claims of innocence in which he blamed his daughter. The fact is that, in this case, sentencing error as explained in paragraph [22] has been made out. Whilst the continuation of the applicant's claims of innocence were relevant to the subjective factors of remorse, contrition and rehabilitation, they were in no sense aggravating features of the offences. The need to deter others from making "false claims" of innocence is not and never has been a function of sentencing. It cannot be an element of general deterrence: that function of sentencing is directed to deterring the commission by others of the offence in question. And, because it is not an offence, it cannot be justified by the need to prevent such false claims by the offender being made in the future.

The Court of Appeal noted in any event that at trial the applicant hadn't tried to blame his daughter for the pornography on his computer. That claim came out 'only' from the psychological reports. Though his views about his subsequently-proved offending were relevant to remorse, contrition and rehabilitation, a lack of remorse shown by a refusal to admit guilt did not, on its own, show the applicant was more likely to reoffend in the future.

After considering the factors in this case, the Court allowed the appeal and reduced Kumar's sentence to 3 years with a 2 year non-parole period for the accessing offence, and 2 years with 1 year 6 months non-parole period for the possession offence.

Monday, 10 October 2011

Aggravated burglary

Aggravated burglary is capable of being dealt with summarily (provided the accused consents to jurisdiction) because of Schedule 2 of the Criminal Procedure Act 2009.

If it wasn't specifically included at clause 4 the offence wouldn't be triable summarily, because the 25 year maximum sentence far exceeds the limit allowed the Magistrates' Court of Victoria by s 28.

Not all types of aggravated burglary can be dealt with summarily, though. Schedule 2 clause 4.7 provides,

4.7 Offences under section 77 of the Crimes Act 1958 (aggravated burglary), if the offence involves an intent to steal property the amount or value of which does not in the judgment of the court exceed $100 000.

A similarly worded provision relating to simple burglary is found just above it at sub-clause 4.6. Consequently, an aggravated burglary where the burglar has an intention to steal may be dealt with summarily, but a burglary where they have the intention to assault or damage cannot: DPP v Vergios [2004] VSC 97.

The two circumstances of aggravation provided in the Act are,

a) at the time has with him or her any firearm or imitation firearm, any offensive weapon or any explosive or imitation explosive; and

(b) at the time of entering the building or the part of the building a person was then present in the building or part of the building and he or she knew that a person was then so present or was reckless as to whether or not a person was then so present.

In DPP v Woodward [2006] VSC 299 a magistrate dismissed a charge of aggravated burglary because, although it was admitted that the accused was carrying a pocket knife with him at the time of the burglary, he considered it did not meet the definition of an offensive weapon. On judicial review Cavanough J found that there was no error on the face of the record, but stressed [at 47] that his finding was not conclusive on the point. There is more judicial consideration of the status of pocket knives in R v Pope [2000] VSCA 108, referring to Wilson v Kuhl; Ryan v Kuhl [1979] VR 315 which involved a carving knife.

It's not necessary for the burglar to have originally acquired the item with the intention of using it offensively, provided such an intention existed at the time of the burglary: R v Nguyen [1997] 1 VR 551.

UK authorities (considering legislation similar to our own) favour the view that the time when being armed falls to be considered is at the time of theft rather than the time of entry. An intruder who arms himself with a weapon after entry is guilty of aggravated burglary: R v O'Leary (1986) 82 Cr App R 341. The offender entered the house unarmed but picked up a kitchen knife once inside and used it to force the occupier to hand over property. Similarly, where a burglar brandished a screwdriver he had brought with him when surprised by residents it was considered a weapon, although originally intended as a tool to gain entry: R v Kelly(1993) 97 Cr App R 245.

Sunday, 9 October 2011

DPP v Giannoukas [2011] VSCA 296: "glassing means jail", but not always

The other day I mentioned in passing an attempt by the DPP to persuade the Court of Appeal to prioritise general deterrence above current sentencing practices for the offence of recklessly causing serious injury under s 17 of the Crimes Act. The case was Winch v The Queen [2010] VSCA 141, and we discussed it here last year.

The only really clear message that emerged from Winch was that striking someone with a glass cup or bottle (with all the potential for injury that involves) should not be considered less serious than assaults with other kinds of weapons. What the circumstances lack in preparation, the Court said, they make up for by how commonly it occurs. There was an acknowledgment that the majority of sentences handed out amount to only a small proportion of the maximum penalty provided by parliament, but despite some tough language the judgment didn't go further than saying an immediate prison term will ordinarily be appropriate.

Maxwell P and Redlich JA [at 53]:

[I]in a glassing case (where the offender is being sentenced for RCSI) the full suspension of a custodial sentence will not ordinarily be an available sentencing option. The objective gravity of the offence will usually require a term of immediate imprisonment. This approach is necessary, in our view, if the courts are to give appropriate effect to the maximum penalty -- which marks out the sentencing parameters -- and to general deterrence, and to recognise the objective seriousness of ‘glassing’ as an instance of RCSI.

Glassing cases should, in our view, be treated as being in the same category as other RSCI offences which involve the use of a dangerous weapon likely to produce serious injury. There is no warrant for placing these cases in a lower category of seriousness where an immediate custodial sentence is not ordinarily required.

It follows, in our view, that sentencing judges should not regard themselves as constrained to follow the course disclosed by the glassing cases to which we have referred. Those advising clients in the future whether or not to plead guilty to RCSI in a glassing case should ensure that no assumption is made about the availability of a suspended sentence.

White v The Queen [2010] VSCA 261 confirmed that the Court of Appeal didn't intend to increase the usual tariff for RCSI offences. Buchanan and Neave JJA considered a case where the appellant had struck his brother-in-law a blow to the head with an iron bar after a domestic dispute. The appellant admitted being present but denied striking the blow, and took the matter to trial in the Supreme Court, where he was found guilty by jury of the RCSI charge. He was sentenced to seven years imprisonment, with a minimum of four to be served.

The appeal asserted that the sentence was outside the range of current sentencing practices; only 5 of 505 sentences for that offence had, in recent years, exceeded 7 years. It was acknowledged that 88% of such charges are dealt with in the Magistrates' Court, where the sentence available is statutorily limited to 2 years. The Court quoted Ashley, Redlich and Kellam JJA in DPP v Maynard [2009] VSCA 129 when they said [at 35] that statistics, by themselves, do not establish a sentencing practice.

It's notable Winch was quoted in that case [at 42] in support of the penalty being reduced, not affirmed.

The facts in Giannoukis occurred in the typical context of a fight between young men in a club. The evidence disclosed the respondent was less culpable than might usually be expected, but he did flee the scene and the injury was significant. The sentencing judge awarded a suspended sentence, which the DPP appealed. Certain factual findings of the sentencing judge about the circumstances of the offence were unsuccessfully challenged. The term of imprisonment was increased on the appeal, but was suspended.

Neave JA reviewed the cases of Trowsdale v The Queen [2011] VSCA 81, Ellis v The Queen [2011] VSCA 296, DPP v Gerrard [2011] VSCA 200 and DPP v Aslan [2010] VSC 518. Her Honour's analysis [33 - 41] conveniently summarises recent developments regarding the offence.

The potted history ends with a quote from Whelan J in Aslan where it was said [at 21],

The Court of Appeal has recently made it very clear that the seriousness and prevalence of this type of offence mean that general deterrence and, where necessary, specific deterrence must be given primacy in the sentencing synthesis. General deterrence is very important here. At the risk of oversimplification, the courts must strive to send this message: glassing means jail.

Neave JA added [at 24],

There is no doubt that the imposition of a suspended sentence requires two distinct steps. As Kirby J said in Dinsdale v The Queen (2000) 202 CLR 321:

The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise. It follows that imposition of a suspended term of imprisonment should not be imposed as a ‘soft option’ when the court with the responsibility of sentencing is ‘not quite certain what to do’.

Neave JA found Giannoukas had strong mitigating factors that warranted the suspension of his sentence. Courts may need to send the message that glassing will mean jail, as Whelan J said, but that doesn't mean imprisonment will always be the appropriate penalty.

Wednesday, 5 October 2011

Getting AROUND

Hat tip to Lauren K at Legal Research Rescue, a useful (if occasional) source of information about new techniques for legal research. We've referred to her site here before, but not for a while. It has many quick tips to help the non-tech savvy find what they are looking for, like this simple one about Google.

Google is okay for rapidly getting to all kinds of information, including law. But, like all search engines, it's inclined to produce too many results or none (that you want, at least).

While there are a seemingless endless number of ways of trimming the number of relevant responses to a navigable figure, I've found Lauren's suggestion of using AROUND(*) increases the chances of finding what I'm looking for when all of the results are off-topic.


negligent AROUND(5) criminal

will get you sites with negligent within 5 words to either side of the word criminal. And of course you can choose the proximity of words closer in or further out, or add extra AROUNDs, depending on the number of responses you're getting.

Tuesday, 4 October 2011

The law of unintended consequences

The Judicial College's Charge Book has this to say about the assessment of witnesses (at

It is generally a misdirection to tell the jury that if they think a witness has an interest in the outcome, they should scrutinise their evidence closely. This is because the jury will likely conclude that the accused has the greatest interest, and so the direction may have the effect of undermining the presumption of innocence (Robinson v R (No 2) (1991) 180 CLR 531; R v McMahon (2004) 8 VR 101).

Practitioners who have learnt from their mistakes will know that this type of submission before a magistrate also has a high potential for ricochet.

Sunday, 2 October 2011

Lithgow City Council v Jackson [2011] HCA 36: hearsay, lay opinion evidence and business documents

Sometimes the wheels of justice grind very slowly.

The High Court heard appeals from this case twice, most recently delivering its decision on 28 September 2011. The NSW Court of Appeal also dealt with the matter twice. On its face it's a fairly simple negligence action arising from a fall in a public park one night back in 2002. Since then the costs bill in the matter must have acquired the proportions of the rolling ball from the original Indiana Jones' film.

The Court of Appeal's first encounter with the matter can be read here. Round two from 2010 can be found here, and my discussion of it here.

Objective facts about how the plaintiff's fall occurred are lacking. The man himself was drunk and has no recollection of its circumstances. There were no witnesses. What facts he could marshal were important to the plaintiff's claim of negligence against the local council for failing to erect reasonable fencing, provide adequate lighting, signage, etc.

In the absence of anything more substantial, the notes made by a paramedic who went to the park and took the claimant to hospital by ambulance assumed central importance. This case has been one for evidence scholars to watch as the various courts have wrestled with the issues of admissibility of documentary opinion evidence, and its interplay with hearsay, under the Uniform Evidence Acts.

The general prohibition on opinions at s 76 is disturbed by s 78,

78. Exception - lay opinions

The opinion rule does not apply to evidence of an opinion expressed by a person if-

(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and

(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.

The rule and its exceptions are applied far more loosely in the civil jurisdiction than in the criminal courts. But even civil trials must have their limits or else the rules of evidence stop performing any gatekeeping function at all.

French CJ, Heydon and Bell JJ found the case raised two groups of issues they described [at 1] as 'difficult'. The first is whether the notation made by the paramedic, without evidence being given by that person and as likely to have been based on guesswork as information, was admissible at all. The second issue was, even if it was admissible, was that note (either alone or in combination) enough to establish that the plaintiff had been injured by the asserted act of negligence. The majority decided that it wasn't admissible and that it wouldn't have been enough, anyway.

Hearsay and business documents

The majority quickly disposed of the idea that just because the record qualified as a business document that meant that it escapes all of the other tests in Chapter 3 of the Act. The Court held the fallacy of that argument emerges just from a plain reading of the relevant sections.

Section 69(2) creates an exception to the hearsay rule for business documents, but a limited one:

(2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made-

(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or

(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.

The ambit of (b) is unclear. If interpreted widely it could apply to almost anything, allowing something in a document in that would never have been admissible if a witness was saying it on oath. Here, the paramedic who filled in the form was not relying on personal knowledge of the circumstances of the fall. Could it be said that he based it indirectly on information supplied by someone who had personal knowledge of the fall?

The facts as agreed concluded that the plaintiff was unconscious at the time of the attendance of the ambulance (and probably throughout) and that passers-by, also not there at the time of the fall, had noticed him and called for an ambulance, and were there when it arrived.

French CJ, Heydon and Bell JJ [at 17, Gummow and Crennan JJ agreeing about this]:

What is the asserted fact? If the asserted fact is "the respondent fell 1.5 metres onto concrete", at once a difficulty arises which was not debated by the parties. Section 69(2)(a) cannot apply, because the makers of the representation, the ambulance officers, did not have personal knowledge of a fall of 1.5m onto concrete, and could not reasonably be supposed to have had it, since the fall had happened some time before they arrived. And s 69(2)(b) cannot apply, because even if it were the case that the ambulance officers were told by bystanders that the respondent fell in that fashion, the bystanders did not have personal knowledge of the fall, and could not reasonably be supposed to have had it: again, the fall took place before the bystanders arrived. The problem may be reduced by the approach adopted by the majority of the Court of Appeal: they saw the impugned representation as a representation that there was a question whether the respondent had fallen 1.5m onto concrete. And the problem may be completely overcome if asserted fact in s 69 includes an opinion in relation to a matter of fact. There is authority that it does: Ringrow Pty Ltd v BP Australia Ltd [2003] FCA 933; (2003) 130 FCR 569 at 573 [18]; Australian Securities and Investments Commission v Rich [2005] NSWSC 417; (2005) 216 ALR 320 at 366-367 [206]- [207]. See also Connex Group Australia Pty Ltd v Butt [2004] NSWSC 379 at [3].

But the construction of asserted fact to include an opinion in relation to a matter of fact, though convenient, is a little strained. In one sense every person who holds an opinion has personal knowledge of it, and indeed is the only person to have personal knowledge of that person's opinion. But to hold an opinion that the respondent fell in a certain way (or that there is a question about it) is different from having personal knowledge that he fell in that way (or that there is a question about it): that personal knowledge could normally only be derived from seeing or perhaps hearing the event, not by drawing inferences from other circumstances observed some time later. However, it was not argued in this Court that the authorities which state that asserted fact includes an opinion in relation to a matter of fact are wrong. It is not necessary further to deal with this point, which the parties did not debate at any stage. That is because, even if it is assumed that the difficulty does not exist, the evidence must be held inadmissible on other grounds.

After raising the issue that neither party had addressed, the High Court was content to let the matter go undecided. What a person must have personal knowledge of in order for it to qualify for the exception to hearsay as a business record is still unclear.

Does an opinion in a business record have to comply with ss 76 - 79?

In order for an opinion to be admissible from a witness there are various hoops to be jumped through. The Court affirmed that merely satisfying one of the tests in Chapter 3 doesn't allow the evidence to be admitted. If it offends against multiple exclusionary rules then it will be necessary to find exceptions that apply to each basis of objection.

French CJ, Heydon and Bell JJ [at 19, Gummow and Crennan JJ again agreeing on these points]:

Section 69 is in Pt 3.2 of the Act. Sections 76-79 are in Pt 3.3. Section 56(1) contemplates that relevant, ie otherwise admissible, evidence may be excluded by more than one exclusionary rule in Pts 3.2-3.11. One exclusionary rule is the hearsay rule. If evidence satisfies s 69, then by s 69(2) the hearsay rule does not apply. But s 69(2) does not provide that the evidence is admissible. It is only admissible if no other exclusionary rule applies. Section 76 excludes "[e]vidence of an opinion" – not "evidence by a witness of an opinion". There is no indication in any other provision in Pt 3.3 that it operates only in relation to the opinions of witnesses.

In this case if the opinion about the fall was an opinion at all (rather than just plain hearsay) it could only be lay opinion as allowed by s 78. The majority described the development of the rule at common law rule and its potential scope, but [at 46] weren't willing to state conclusively whether s 78 is identical or just overlaps the common law.

It was agreed that s 78(a) didn't apply on these facts. The NSW Court of Appeal had applied a low threshold to the word necessary - too low, according to the High Court. The majority rejected the notion that in its appropriate context the word is synonymous with convenient or conducive.

The word necessary is not directed to meeting difficulties that arise where it is impossible or inconvenient to call the person propounding the opinion as a witness. It is not analogous to the provisions permitting evidence of hearsay statements where better evidence is unavailable (eg ss 63 and 65 of the Act) or where to call better evidence could cause undue expense or undue delay or would not be reasonably practicable (s 64 of the Act). Section 78 is not a best evidence provision, permitting reception of the evidence if there is no better evidence. The word necessary is instead directed to a relationship internal to the evidence of the perceiver – the relationship between the perceiver's perceptions and the perceiver's opinion.

Crennan J dissented on the causation issue. The remaining four justices upheld the appeal and ruled in favour of the Lithgow Council, finding - as the original trial judge had - that the causal connection was not made out.