Penalty units 2011/12

The value of a penalty unit increases tomorrow, 1 July 2011.

The value of a penalty unit for the coming financial year will be $122.14, up from $119.45. This was published in Victoria Government Gazette S 158 on 26 May 2011.

The value of a fee unit will also go up to $12.22, up from $11.95.

PENALTY UNITS

Units	Dollars
1	$122.14
2	$244.28
3	$366.42
4	$488.56
5	$610.70
6	$732.84
7	$854.98
8	$977.12
9	$1099.26

A ready reckoner produced by the Magistrates' Court of Victoria details the fees charged for summonses, licence restorations and the like. This one relates specifically to the criminal jurisdiction.

Hoon legislation passes

A few weeks back we mentioned the impending amendments to the vehicle impoundment provisions in the Road Safety Act.

The amending act passed the Upper House yesterday and received Royal Assent, and was gazetted today.

It starts on 1 July as previously announced.

Demerit points appeals

Late last month the Court of Appeal dismissed an appeal about demerit points in Sherman v Roads Corporation & Anor [2011] VSCA 149.



It dealt with demerit points under Part 3 and Schedule 3 of the Road Safety (Drivers) Regulations 2009 and VicRoads' obligation to suspend a driver licence under Road Safety Act 1986 s 25, and a driver's right of appeal against that suspension under s 26AA.



Peter Sherman had 11 demerit points against his licence. Then, he made an improper turn at an intersection, incurring another 2 demerit points. That brings into play the option under s 25 of incurring a 3-month suspension, or taking the option to keep driving but not incur any demerit points in the following 12 months under pain of then incurring a 6-month licence suspension.



The chronology went like this:

• 15 Jan 2009 — improper turn at an intersection
• 17 Nov 2009 — Vic Roads sends Sherman a s 25 election notice
• 30 Nov 2009 — Sherman elects to contest the infringement notice for the 15 Jan offence. (The judgment doesn't say when the infringement was sent, so I guess it was some time around October or November and Sherman was in the time permitted to contest the infringement)
• 29 Dec 2009 — VicRoads suspended Sherman's licence (seemingly contrary to reg 73 of the RS(D) Regs)
• 5 Jan 2010 — Sherman appeals the calculation of demerit points, in accordance with Road Safety Act s 26AA. Section 26AA(2) provides that stayed the licence suspension
• 11 Jan 2010 — VicRoads realises Sherman elected to contest the infringement notice, and removes the 2 demerit points
• 1 Feb 2010 — Magistrates' Court allows Sherman's s 26AA appeal. VicRoads isn't there because Sherman didn't notify it of his appeal
• 15 Mar 2010 — VicRoads granted a re-hearing of the s 26AA appeal, but adjourned pending a hearing for the infringement offence
• 6 Jun 2010 — Sherman convicted of making an improper turn at an intersection, and 2 demerit points recorded against his licence
• 15 Jun 2010 — Sherman appeals his conviction to the County Court
• 14 Sep 2010 — Magistrates' Court dismisses Sherman's s 26AA appeal
• 22 Sep 2010 — Sherman issues an originating motion for an Order to Review (see Sherman v Roads Corporation [2011] VSC 142)
• 12 Apr 2011 — application by originating motion dismissed

Mr Sherman's main argument was that the Magistrates' Court could not and should not have granted a re-hearing of his s 26AA appeal. VicRoads argued the appeal has no reasonable prospect of success and should be summarily dismissed. The Court of Appeal agreed, at [22].



The interesting point in this case is on the power of the Magistrates' Court to grant a rehearing.

[11] The Corporation acknowledged and the appellant agreed that the appellant’s principal ground of appeal was that the Magistrates’ Court had no power to rehear the appellant’s appeal pursuant to s 26AA of the Road Safety Act. The appellant had submitted to the judge that the Magistrates’ Court did not have such power because an appeal under s 26AA of the Road Safety Act was not a civil proceeding within the meaning of s 100 of the Magistrates’ Court Act 1989 (Vic). The appellant reiterated that submission before this Court, adding that the power of rehearing granted to the Magistrates’ Court under s 26AA of the Road Safety Act was in the nature of ‘an original supervisory jurisdiction’ and was neither a criminal nor a civil proceeding under the Magistrates’ Court Act. It followed, so the appellant submitted, that the first order made by the Magistrates’ Court allowing his appeal under s 26AA was not ‘a final order ... in a civil proceeding’ within the meaning of s 110(1) of the Magistrates’ Court Act and therefore the Magistrates’ Court had no jurisdiction or power to rehear the s 26AA appeal. It seems to me that this question, in turn, depends upon whether an appeal under s 26AA of the Road Safety Act is a ‘cause of action’ in respect of which the Magistrates’ Court is ‘given jurisdiction ... under any Act’ within the meaning of s 100(1)(d) of the Magistrates’ Court Act. If that question be answered in the affirmative then the s 26AA appeal is a civil proceeding but if that question be answered in the negative then it is at least strongly arguable that the Magistrates’ Court had no power under s 110 to order and conduct a rehearing.



[12] The appellant relied on the case of Lednar v Magistrates’ Court (2000) 117 A Crim R 396. In that case Gillard J stated, although it was probably not part of the ratio of his decision, that an application to the Magistrates’ Court for an order for the taking of a forensic sample under s 464ZF(3) of the Crimes Act 1958 (Vic) was neither a criminal nor a civil proceeding within the meaning of the Magistrates’ Court Act. The appellant submitted that a s 26AA appeal was likewise neither a criminal nor a civil proceeding. Although I tend to the view that a s 26AA appeal is properly to be characterised as a ‘cause of action’ under statute within the meaning of s 100(1)(d) of the Magistrates’ Court Act, I would accept that the contrary is arguable and that it cannot be said that the appellant has no prospect of succeeding in his submission that s 110 of the Magistrates’ Court Act was not a valid source of power for the rehearing of the s 26AA appeal conducted by the Magistrates’ Court.



[13] However the Corporation submitted that, even if the Magistrates’ Court had no power to rehear the s 26AA appeal under s 110 of the Magistrates’ Court Act, the Magistrates’ Court had an inherent discretionary power to set aside an order made in the absence of a party and to rehear the matter the subject of that order. In Taylor v Taylor (1979) 143 CLR 1 the High Court considered the jurisdiction of the Family Court to set aside an order in various circumstances including one made in the absence of a party. The High Court was unanimously of the view (although Murphy J dissented as to the result of the appeal) that the Family Court had an inherent jurisdiction or power to set aside an order made in the absence of a party if, in the circumstances, justice so required, provided that the Act did not negative the existence of any such power. Reference was made to an earlier High Court decision in Cameron v Cole (1944) 68 CLR 571 which was concerned with the Federal Court of Bankruptcy and in which it was considered that a statutory court of limited jurisdiction nevertheless had an inherent jurisdiction to set aside its orders (unless displaced by statute) in certain circumstances including those in which an order was made in the absence of a party. Indeed, in Taylor v Taylor (1979) 143 CLR 1, Murphy J expressly stated that there was a longstanding principle that an order made against an absent party might be set aside even where the absence was the absent party’s fault.



[14] In my opinion, as the judge below also thought, it is inconceivable that the Magistrates’ Court does not have a discretion to rehear a s 26AA appeal decided in the absence of the Corporation pursuant to an inherent jurisdiction or power to do so (on the assumption that s 110 is inapplicable). It follows, in my view, that the appellant’s principal argument has no prospect of success.

If the s 26AA appeal were categorised as a criminal proceeding, then the rehearing power would be Criminal Procedure Act 2009 Part 3.4. Although Criminal Procedure Act s 88 provides that a rehearing applies when a sentence is imposed by the Magistrates' Court, I reckon it might apply in this case. The definition of sentence is not exhaustive. And, in Chief Commissioner of Police v Rigg (2004) 10 VR 134 at [15], the Supreme Court held that a provision was characterised as criminal or civil by considering if the underlying foundation for the proceeding was criminal or civil. (That case dealt with alcohol interlocks. They too might not be considered a sentence in the usual sense, but still have a punitive affect and for that reason also those provisions are criminal.) In reaching that conclusion, it relied on several cases including the Court of Appeal's decision in Perkins v County Court (2000) 2 VR 246 at [16] – [21].

All that suggests that in this case, the proceeding was criminal, and within the scope of the rehearing provisions in the Criminal Procedure Act.

I'm not sure about an inherent power of the Magistrates' Court to rehear the appeal. In Grassby v The Queen (1989) 168 CLR 1 at [21] – [24] the High Court held that inferior courts — such as a Magistrates' or Local Court — can't possess inherent powers but only implied powers: those that are necessarily antecedent to their statutory source of power.

In any event, it seems well within the power of the Court to allow the rehearing — either civil or criminal — when VicRoads wasn't aware of the appeal.

This area of the law is notoriously complex, and fraught with difficulties for all the players. When VicRoads was notified that Mr Sherman committed the offence — even though that wasn't correct because he was contesting the infringement notice  — it had no choice but to record the relevant demerit points. Because there is no discretion, there is no 'decision' to be made and so that can't even be subject to administrative review: Russo v VicRoads (2001) 34 MVR 343; Roads and Traffic Authority (NSW) v Wilson (2003) 58 NSWLR 240. Nor can the driver appeal to the Magistrates' Court unless they fit within the narrow criteria contained in Road Safety Act s 26 or s 26AA: Russo v VicRoads(2001) 34 MVR 455.

There isn't even very much restriction on when the suspension must commence, aside from RS(D) Regs 73(3) which prohibits VicRoads from acting on demerit points more than 12 months after it's notified of them. But, when legislation is silent about the time to perform an act, it is implied that the act must be performed in a reasonable time: National Car Parks Ltd v Baird (Valuation Officer) [2005] 1 All ER 53 at [59] – [65] per Dyson LJ.

Bail: how not to do it!

Hat-tip to Stephen Warne for this case from an American Professional Responsibility blog, where a judge was reprimanded for ordering a defendant attend church as a condition of bail, and other conduct held to be misconduct.

Here, the primary concern of bail is to ensure an accused person presumed innocent should be permitted remain at liberty so long as they will attend court, and in the interim, will not commit further offences or interfere with witnesses: Burton v The Queen (1974) 3 ACTR 77 at 79; Lim v Gregson [1989] WAR 1 at 16; Application for bail by John Flynn & Stewart Paton, SC V, 21/10/1994; Victorian Law Reform Commission, Review of the Bail Act – Final Report (2007), 29 and 122.

The VLRC wasn't certain if therapeutic programs like CISP or CREDIT were authorised by the Bail Act, and recommended amending the act to clearly allow them. That's yet to happen, but there seems little dispute that bail conditions intended to reduce possible offending while on bail are valid.

However, I haven't heard anyone suggest church attendance will be required under the VLRC recommendations. I daresay it would take more than for a judicial officer to be referred to the previously-proposed judicial commission, but it would probably breach the freedom of religion in s 14 of the Charter of Human Rights, and perhaps freedom of movement in s 12, right to privacy in s 13, freedom of expression in s 15, and freedom of association in s 16.

Bail in the Magistrates Court: new practice direction

The Magistrates' Court today released Practice Note 4 of 2011 for bail applications.



This replaces several previous practice directions, and expressly provides for various steps an applicant must take when applying for or varying bail.



Much is unexceptional, aside from fresh applications after bail is refused or revoked. The Direction provides that a fresh application should go before the same magistrate (which is sensible and hard to argue against), but will only be considered by a different magistrate if the original one can't hear the application within 7 days! Of course that's not likely to happen often, but when an applicant asserts they have new facts and circumstances, that's a long time to wait.

Written advocacy gets a fillip

The Commercial Court recently hosted a workshop on legal writing by well-known writer and lecturer Bryan Garner. I hoped to attend, but couldn't make it. Shame really, because the opportunity to see Garner first-hand without needing to travel to the USA probably won't come along for a while.

Garner is the current author of Black's Law Dictionary, and widely known for his books Garner's Modern American Usage, The Winning Brief, Garner's Dictionary of Legal Usage, and with Justice Scalia of the USA Supreme Court, Making Your Case: The Art of Persuading Judges. (I'm looking forward to reading on my iPad my just-bought Kindle version of this.)

I guess that it's no accident that our Supreme Court got someone like Garner to speak about effective legal writing: the emphasis on written work is greater now than ever. I hope we'll see the effects in judgments too — the end of passive voice and perfect past tense perhaps?

Garner's name popped up in the blogosphere and twitter streams last week when some big media picked up his SCOTUS (Supreme Court of the United States) interviews with 8 of the 9 Justices of the Court. (I got it from JD Supra — a useful US site — which republished it from The Appellate Strategist.) He's also published a transcript to accompany the videos. (For a bit of humour, check the short video of Garner sharing the floor with Justice Scalia. I'm sure I've seen a longer version on YouTube or somewhere, but I can't find it right now.)

Australia has its own good sources for advocacy. I still come back again and again to Don Watson's Death Sentence. (And if you like that, you'll probably enjoy Steven Poole's Unspeak, though it's a little dated now with its examples from the Blair & Bush era of politics.) David Ross's Advocacy can't be missed.

Another book that sounds very interesting is Rediscovering Rhetoric, even more so after reading Chief Justice Spigelman's speech at its launch (also in the NSW Bar News). Hope to make it to the bookshop for this one this arvo.

Last, another excellent resource for written advocacy is Matthew Butterick's Typography for Lawyers. He's a typographer-turned-lawyer, so he knows what he's on about. If you want to make your written material look more persuasive and easier to absorb, this is the book for you. I know I picked up many useful tips from this book. I hope this is another of  the good ideas we adopt from our US colleagues. (Bye bye to Times New Roman in legal documents perhaps?)

Vehicle impoundment aide mémoire

The vehicle impoundment provisions in Road Safety Act 1986 Part 6A are about to be overhauled.



The original provisions were introduced by the Road Safety and Other Acts (Vehicle Impoundment and Other Amendments) Act 2005, with effect from 1 July 2006. The explanatory memorandum is here, and the second reading speech here.



Last year the Brumby government passed the Road Safety Amendment (Hoon Driving) Act 2010. We discussed that here. The explanatory memorandum is available here; the second reading speech here; and the statement of compatibility here.



Not to be outdone, the current government intends amending the amending act to make the new provisions even more punitive. The Road Safety Amendment (Hoon Driving and Other Matters) Bill 2011 will almost certainly pass both houses of Parliament and is apparently intended to commence on 1 July 2011. The second reading speech is available here, and the statement of compatibility here.



After painstakingly amending the amending act, and then amending the principal act, I think I've nutted out the changes we should see at the end of this month.



Based on that, we've been working on this aide mémoire or ready reckoner to help make sense of it all.

Bear in mind it's just an aide, and no substitute for reading the legislation.



Some of the major changes are:

• roadside seizure by the police is now for 30 days
• impoundment and forfeiture is based on relevant offences up to 6 years old

There are many more, but you can read them for yourself.



I think the new legislation still contains a great many uncertainties, and won't provide the clarity that police and courts would hope for.



For example, the transitional provisions to be created at ss 103ZC and 103ZD provide that:

• the new provisions apply to relevant offences committed after the new legislation commences (at this stage, expected to be 1 Jul 2011)
• the old provisions apply to relevant offences committed before 1 Jul 2011 (meaning the Court application for forfeiture or impoundment based on pre-1 Jul offences will be the same as at present)

What is not clear is what happens when an accused person allegedly commits a new relevant offence and has some old relevant offences.



Let's say the police stop Billy the Buck on 2 Jul 2011 and he's disqualified from driving, and was previously convicted of disqualified driving on 20 Jun 2011. Under the new provisions they can seize his car on the roadside for 30 days.



But what about an impoundment application at court? Driving while disqualified will become a Tier 1 relevant offence, and found an impoundment application under s 84S. But...the transitionals are not at all clear:

103ZC Transitional provision—Road Safety Amendment (Hoon Driving) Act 2010

(1) Part 6A as amended by Part 2 of the Road Safety Amendment (Hoon Driving) Act 2010 applies to relevant offences alleged to have been committed on or after the commencement of Part 2 of that Act.

(Relevant offence is defined in s 84C as either a Tier 1 or Tier 2 offence, which are themselves defined.)



In this example, the previous relevant offences were committed by Billy before the amending Act commenced. Sure, his present relevant offence is allegedly committed after that commencement, but because the transitional provision doesn't distinguish between previous and present relevant offences, it quite possibly refers to both.



If so, it means the police have to wait for Billy to commit his second offence of driving when disqualified after 1 July before they can apply for impoundment after 1 July.



After all the huffing and puffing and blow-your-house-down statements from the politicians, I reckon this is probably not the intention of the new legislation, but I think the ambiguity is arguable and will probably create another hydra of technicality.



Tell us your thoughts about how these new provisions might operate.

'Consent' is not mitigation to child sexual abuse

In Clarkson v The Queen; EJA v The Queen [2011] VSCA 157 the Court of Appeal (comprised of five judges) considered the relevance of an unresisting victim to sentencing an adult offender for child sex offences.

Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA [at 3]:

The absolute prohibition on sexual activity with a child is founded on a presumption of harm. The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent. It is for this reason that a child’s consent is more accurately referred to as ‘apparent’ or ‘ostensible’ consent. References to consent in these reasons should be understood as having that connotation.

We have concluded that a child’s consent can never, of itself, be a mitigating factor. That is, proof that the child consented will not of itself differentiate the case for sentencing purposes from one where the child’s consent cannot be established. (Proven absence of consent, on the other hand, significantly increases the seriousness of the offending and the culpability of the offender.

Proof that the child consented is the beginning, rather than the end, of the sentencing court’s enquiry. In assessing the gravity of the offence and the offender’s culpability, the court’s attention will be directed not at consent as such but at the circumstances in which the consent came to be given.

Typically, the giving of the consent will be a reflection of the relationship between the child and the offender. In very many cases, the consent will be seen to reflect a significant age difference and/or power imbalance between offender and victim. In such cases – for example, the consent given by a pupil to her teacher, or by a daughter to her mother’s partner – the circumstances will usually reveal the offender’s abuse of a position of trust or authority, rendering the offence more grave and his culpability greater.

At the other end of the scale, there are exceptional cases – for example, in a relationship between a 15-year-old girl and an 18-year-old boy – where the consent is, relatively speaking, freely given and genuine and a reflection of genuine affection between the two. In such circumstances, as the cases illustrate, the sentencing court is likely to view the offence as less grave and the offender’s culpability as reduced. In such a case, too, the offender may be able to establish, by appropriate evidence, that the victim is not likely to suffer the harm which the law presumes to flow from premature sexual activity.

In short, to ask whether consent is a mitigating factor is to ask the wrong question. It is only when the circumstances in which the consent was given are properly understood that the court can appropriately assess the offender’s conduct and, hence, determine the appropriate sentence.

The Court did acknowledge that an accused should be allowed to attempt to rebut that presumption of harm [at 52], though such an attempt may be fraught with risk:

On ordinary principles, it is open to an offender to seek to demonstrate, to the requisite standard of proof, that the sexual activity in question did not have (or is unlikely to have) the harmful impact on the victim which the law presumes it to have. Put another way, it is open to an offender to lead evidence to rebut the statutory presumption of harm. To the extent that such a submission relied on the consensual nature of the sexual activity, the court would draw on its assessment of the circumstances in which the consent came to be given, in particular the age difference between the offender and the victim, the nature of the relationship between them, and the circumstances in which the sexual activity was initiated.

We think it likely that such an attempt at rebutting the presumption would succeed only in very limited circumstances. For obvious reasons, a statement from the child victim would be unlikely to satisfy the court that no harm had been caused or that there would be no long-term consequences. Independent expert evidence to that effect would ordinarily be essential. Moreover, it would only be in a very clear case that such evidence would warrant a material reduction in sentence. The task of a sentencing court is difficult enough without having to deal with gradations of harm to a child victim, particularly when much of the assessment of harm involves predicting long-term consequences.

So in practice the position is more complicated than just ignoring the attitude of the victim. Normally a court will consider (and is justified in presuming) that a child victim of a sexual offence will suffer negatively as a result. But if the court is satisfied that a particular victim will not suffer that presumed harm, that will be mitigating.

Programming note

Tonight marks the beginning of a new 5-part documentary series on ABC1. Each episode of On Trial follows prosecution and defence as they prepare a serious case for hearing.



It is available to watch on demand here. It seems to be aiming for the same fly-on-the-wall approach that made Sin City Law so compelling to watch.



And speaking of new shows, I saw this promo for the next in the long series of reality cop shows on TV at the moment:









Looks like another winner.

Audio and visual standards for material presented in court

Chief Magistrates' Direction 3 of 2011 addresses the use of courtroom technology. It takes effect today.



The direction contains a list of media formats that the Magistrates' Court is capable of supporting. If it is not possible for material to be presented in one of those formats, the onus is on the party presenting the evidence to provide suitable equipment for playback: point 9.