Wednesday, 21 December 2011


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

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

The best wishes of the season to you and yours.

Saturday, 17 December 2011

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

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

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

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

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

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

Sunday, 11 December 2011

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

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

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

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

It will read (in part),

49B Offence to consume intoxicating liquor while driving

(1) A person must not consume intoxicating liquor while the person is driving a motor vehicle or is in charge of a motor vehicle.

Penalty: 10 penalty units.

(2) For the purposes of subsection (1) a person is not taken to be in charge of a motor vehicle unless that person is a person to whom section 3AA(1)(a), (b) or (c) applies.

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

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

It is inconsistent with the road safety message to the community about drinking and driving that a driver can lawfully consume alcohol while driving a vehicle in Victoria.

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

Thursday, 8 December 2011

RTF or PDF, please

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

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

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

1) Click on the link to view the judgment.

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

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

4) Print the document and provide in this format.

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

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

Wednesday, 7 December 2011

Programming note

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

Saturday, 3 December 2011

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

There is no common law privilege against incriminating your spouse.

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

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

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

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

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

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

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

In our view, it cannot be said that at the time of the enactment of the Act in 2002 the common law in Australia recognised the privilege asserted by Mrs Stoddart or that it does so now. We agree with the conclusion of Kiefel J in Boulton [2005] 155 A Crim R 152 that in All Saints and the subsequent decisions, in particular Hoskyn and Riddle, the term "compellable" was used to indicate that the witness might be obliged to give evidence in the ordinary sense of the term, not that, in response to particular questions, a privilege might be claimed by the witness.

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

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

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