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Sunday, 30 December 2012

Foster v Harris [2012] VSC 637: technical challenges to speeding offences

The appeal in Foster v Harris [2012] VSC 637 considered technical arguments about a speeding charge. It was handed down just before Christmas.

There were two broad issues:

1) did the charge information contain sufficient information; and
2) did the certificate of testing of the prescribed device comply with the regulations, making it admissible.

The magistrate determined both questions in favour of the prosecution, and Williams J found that both points had been decided correctly.

The charge wording

The speed limit applicable to the appellant at the time of the offence was in a school zone, a length of road which has a speed limit of 40 km/h during certain periods, but another speed limit the rest of the time. These limits only apply on certain proclaimed days of the year.

The charge information made no reference to the time of day when the offence was said to have occurred. It was common ground that if the offence had occurred when the school zone limit was not in operation the appellant wouldn't have been speeding.

The Court applied Ciorra v Cole [2004] VSC 416. In that case, Redlich J distinguished between the legal elements of the offence, the essential factual ingredients which must be stated, and particulars required for its proof and for the preparation of the defence. The speed limit is an essential element. The way in which the speed limit is set is a matter which must be proved, but is not a matter that must be expressed in the charge information. By analogy, the time of day when an offence occurs in a school zone is also a factual ingredient and not a charge element.

Williams J [at 17]:

The respondent reminds the Court of Charles JA’s direction in DPP Reference No 2 of 2001 4 VR 55, 68 [40]. that ‘a charge should be interpreted in the manner a reasonable defendant would understand it, giving reasonable consideration to the words of the charge, in their context’. His Honour also affirmed the necessity to strive to give a charge the meaning intended by the draftsman: Smith v Van Maanen (1991) 14 MVR 365.

It is clear from the statement of the charge before me that Ms Foster was alleged to have driven on 9 September 2010 in Prince Street, Myrtleford, at a speed greater than the speed-limit of 40 km per hour applicable to her, in contravention of r 20. Unlike the situation in Woolworths (Victoria) Ltd v Fred Marsh (Unreported, Supreme Court of Victoria, Ormiston J, 12 June 1986), there is no uncertainty as to the offence charged. Nor is the offence created by r 20 ambulatory in nature.

Ciorra and Kirtley establish that the two essential ingredients of the charged offence to be included in the charge are the alleged facts that the vehicle was driven by the appellant and that she drove it over the speed-limit applicable to her on that particular section of Prince Street. It was not necessary to include in the charge express reference to the factual basis on which the applicable speed-limit was to be determined, such as that she was driving on a declared school day or during the period referred to on the school zone sign. Such matters, and other relevant requirements of the Rules might have been the subject of requests of particulars of the alleged applicability of the 40 km per hour speed-limit to the appellant.

The certificate of testing

Under s 79 of the Road Safety Act 1986, evidence of a measurement of speed obtained by use of a speed detector was admissible and, absent evidence to the contrary, could constitute proof of speed, provided that the speed detector had been tested and sealed within the previous twelve months.

The certificate that had been tendered in the Magistrates' Court identified that the detector had been tested by a testing officer. It was argued that the certificate was ambiguous and insufficient to prove that the person who signed the certificate was a testing officer as defined by r 5 of the Road Safety (General) Regulations 2009. This argument was also rejected.

Friday, 21 December 2012

NSW limits challenges to speed cameras

The NSW Court of Appeal recently considered a case dealing with a challenge to a speed camera prosecution in the Burwood Local Court, Roads and Maritime Services v Addario [2012] NSWCA 412. The NSW equivalent to VicRoads used to be called the RTA (Roads and Traffic Authority). Turns out it recently changed name.

The judgment doesn't show up on Austlii yet, so I've linked to it on JADE.

It's an easy read. Mr Addario was charged with speeding, based on a photo taken by a speed camera.

In NSW, the relevant legislation presumes that the speed camera is evidence is correct and prima facie evidence of what it shows, unless sufficient evidence is adduced to raise doubt about it.

This is fairly similar throughout Australia, and particularly to Victoria's scheme, which I discussed in this post in May 2010.

But one thing is different in NSW.

Section 73A of Road Transport (Safety and Traffic Management) Act 1999.

That restricts contradiction of or challenge to the accuracy, reliability or correct or proper operation of speed cameras, to evidence adduced by a person who has relevant specialised knowledge (based wholly or substantially on the person's training, study or experience).

(At a wild guess, I'd say it's probably no accident that this provision is very similar to the expert-evidence rule in the Evidence Act.)

At the Local Court Mr Addario tendered two receipts for fuel he apparently bought. The times on those two receipts placed him at a nearby fuel station just before and just after the time on the photo. It seems that argument was that if the receipts were accurate, he couldn't have been driving past the speed camera at the time alleged. Kind of alibi for cars...a point raised by Campbell JA at [46] ff.

The appeal judgment doesn't note if it was possible for Mr Addario to buy fuel, drive past the speed camera moments later, and then return to the petrol station and buy more fuel several minutes later. Given the camera was only 200 metres down the road and all...

The Court of Appeal upheld the RMS appeal. (The case won't go back to the Local Court as the appellant expressly said it didn't want to re-prosecute Mr Addario: it just wanted to clarify the law on this point. It even agreed to pay Mr Addario's costs!)

In ruling in favour of the RMS, the Court held that s 73A was not an admissibility provision. Rather, it governed the use that could be made of admissible evidence. Mr Addario's evidence was admissible, but because it wasn't evidence by a person with relevant specialised knowledge, it didn't contradict or challenge the prima facie provisions concerning the speed camera. So, the prosecution didn't need to lead any further evidence about the proper operation of the camera.

But — and this is the useful bit for our jurisdiction — the admissible evidence was something the magistrate had to weigh up when considering if the prosecution had proved its case beyond a reasonable doubt. After all, the prima facie provisions weren't conclusive.

But, whether the magistrate would ultimately be satisfied the accused's evidence raised a reasonable doubt was another matter.

Thursday, 20 December 2012

Anti-corruption bodies set to start 1 Jan 2013?

I mentioned back in October that Brendan Murphy QC was appointed as the newly-created public interest monitor.

Last week the Victorian government appointed the head of its new IBAC, Stephen O'Bryan SC, and the Victorian Inspector, Robin Brett QC, who will oversee the IBAC.

One recent opinion article in The Age cast doubt on the likely effectiveness of IBAC. I confess I haven't read the legislation in any detail, but the gist of that article is that IBAC will be nobbled because it isn't specifically empowered to investigate misconduct in public office. But, on my very perfunctory reading, the new definition of corrupt conduct to be inserted into the IBAC legislation is so broad that it would probably catch conduct that would fall under the heading of misconduct in public office. No doubt that will be fertile ground for consideration at some stage...

On Wednesday, the government appointed two full-time deputy public interest monitors to assist the current PIM, Janine Gleeson and Joanne Smith. (I only know this because until Wednesday, I was sharing chambers with Janine, and now it's all rather quiet and lonely there. Intriguingly, the media release isn't available on the government's media release website. Maybe that's because this is all cloak-and-dagger stuff...)

Apparently the PIM is slated to start operation on 1 January 2013, so I guess that the other two new agencies are also intended to commence operating on the same day. I also guess that would mean the OPI would stop operating on the same day, but I haven't seen anything about that one way or the other. Does anyone else know?

Thursday, 13 December 2012

Reserve judgment

The Courts Legislation Amendment (Reserve Judicial Officers) Bill 2012 will abolish the offices of acting judges and acting magistrates and create the offices of reserve judge and reserve magistrate. The bill was introduced to Parliament on Wednesday.

The Introductory Print is here and the Explanatory Memorandum here.

On my reading of it, these reforms are unlikely to attract Kable issues. The changes are more to terminology than substance and court users are unlikely to notice the difference. There is a further shift in policy toward retired judicial officers returning to the bench, rather than the temporary appointment of practitioners that has occurred in the past.

Only former judicial officers of equivalent Victorian or interstate courts will be eligible for appointment as reserve judges or magistrates. The terms of their appointment are subject to the Judicial Salaries Act 2004 and Constitution Act 1975. Terms of appointment run for 5 years, and reserve judges and magistrates can only be removed from office by the same procedure applying to other judicial officers.

The absence of any restriction on the number of judicial officers that can be appointed on these 5-year limited terms may cause some concern. But as the High Court said in Forge v ASIC, just looking at the number of appointments doesn't determine whether the appointment of temporary judicial officers threatens the impartiality and independence of a court.

Gummow Hayne and Crennan JJ [at 49]:

If it is accepted that some acting appointments may lawfully be made under [the impugned legislation], a quantitative criterion for marking the boundary of permissible appointments would treat the circumstances seen by the appointing authority as warranting the appointment of an acting judge as wholly irrelevant to the inquiry about validity. It would assume that the external observer considering the independence and impartiality of the court as a whole should, or would, ignore why it had been thought necessary to appoint those who had been appointed to act as judges. Thus the necessity presented by sickness, absence for other sufficient cause, or the embarrassment of a judge or judges in one or more particular cases would be treated as irrelevant; all that would matter is how many have been appointed. And that, in turn, presents the question: how would the particular number or proportion of acting judges that would compromise the institutional integrity of the court be fixed? That is a question to which none but an arbitrary answer can be given. Rather than pursue the illusion that some numerical boundary can be set, it is more profitable to give due attention to the considerations that would have to inform any attempt to fix such a boundary: the fact and appearance of judicial independence and impartiality.

Most provisions will go into effect after its Assent, but that date is not yet known. There is no forced commencement date.

Tuesday, 4 December 2012

Guilty plea must be expressly acknowledged

In the ACT, Crimes (Sentencing) Act 2005 s 35 deals with the requirement to take a guilty plea into account.

Here, Sentencing Act 1991 s 5(2)(e) provides that a sentencing court must have regard to a guilty plea.

Section 6AAA requires a sentencing court to announce the sentence it would have imposed but for a guilty plea, but because of s 103, a sentence is probably still valid if a court doesn't comply with s 6AAA.

In Thompson v The Queen [2012] ACTCA 35, the ACT Court of Appeal discussed the need for a sentencing court to expressly articulate that it took a guilty plea into account when determining an appropriate sentence.

The Court noted:

[12] ...A court is obliged to have regard to the plea of guilty. It is not the fact that the court must necessarily impose a lesser penalty as a result, but it must have regard to the plea.

[11] In R v Thompson (2000) 49 NSWLR 383, Spigelman CJ said (at 395; [52]):

The absence of any reference to actual consideration of the guilty plea in the course of sentencing should, as a general rule, in the light of the obligation of sentencing judges to give reasons for their decision, lead to an inference that the plea was not given weight. This conclusion is significantly influenced by the express statutory obligations. The position may not be the same with respect to other matters which are required to be taken into account, either at common law or by reason of a general scheme listing relevant considerations...

That NSW case — R v Thompson — was also cited by Kaye J in R v Flaherty (No 2) (2008) 19 VR 305. (In Flaherty, His Honour observed that the s 6AAA declaration was a bit academic, because it required imagining that the offender didn't plea guilty and choosing from a range of options that might have otherwise reflected the course of the case.)

I don't know of an express Victorian authority on the point, but it seems that while mere non-compliance with s 6AAA won't invalidate a sentence, a failure to advert at all to a plea of guilty may well mean the sentence is open to challenge on appeal.

Monday, 3 December 2012

A call to arms

I'm on my way home from the Law Institute of Victoria meeting discussed here on Thursday. Properly described, it was an Extraordinary Meeting of the LIV's Criminal Law Section.

Lawyers came from far and wide to express their concerns. The meeting tonight was Standing Room Only. Many asserted their staunchly-held belief VLA is moving in the wrong direction, and still more were irked by the lack of consultation. It was said that redrafted eligibility criteria will be finalised by 12th December 2012.

Many possible responses by the Law Institute were suggested. The one which will definitely occur is a rally outside the County Court, next Tuesday 11th December.

Some speakers complained about VLA's recent Public Defender initiatives, arguing they came at the expense of the more mundane but important work that Legal Aid does routinely. There is a real worry that people who need help won't get it under the new rules. Criticism was made of VLA's decision to grant aid in the matter of Magee v Delaney [2012] VSC 407 earlier this year.

Kyrou J summarised what that case was about in the first paragraph of his judgement, rejecting the appeal [at 1]:

Kyle Magee was charged with the offence of damaging property under s 197(1) of the Crimes Act 1958 and the offence of possessing materials for the purpose of damaging property under s 199(a)(i) of that Act. He did not dispute that he intentionally committed the physical elements of those offences by painting over an advertisement in a bus shelter with white paint and by possessing a bucket of paint and a paintbrush for the purpose of painting over more advertisements. However, Mr Magee sought to escape criminal liability by contending that his acts engaged the right to freedom of expression in s 15(2) of the Charter of Human Rights and Responsibilities Act 2006 (‘Victorian Charter’), and that the exercise of that right in furtherance of his philosophical opposition to advertising constituted a ‘lawful excuse’ for the purposes of ss 197(1) and 199(a)(i) of the Crimes Act.

VLA reported a $3.1 million deficit for the 2011-2012 financial year. They are under pressure to ensure that this year's figures are better. The general feeling in the room was that VLA had better scrutinise its priorities more carefully.

Anyone who was at the meeting tonight (or just has a strong feeling about Legal Aid) is welcome to leave their own comment.

Unfortunately our 'Recent Comments' gadget was down when I posted about this issue last Thursday. The gadget is still down and awaiting a replacement, but you can read the comments attached to any post by clicking on the red link in the gray bar directly below the post. I have reposted Hugh de Kretser's comment from last week.

Sunday, 2 December 2012

BA v The Queen [2012] VSCA 285: adducing evidence of a witness's bad character

The UEA represents only a partial codification of the rules of evidence. Knowing whether the Evidence Act 2008 covers the field on a topic, or just introduces an alternative statutory pathway to the admission or exclusion of evidence, isn't easy. The stated intention of the ALRC or VLRC is helpful, but not the final word on the issue.

BA v The Queen [2012] VSCA 285 represents as clear a judicial conclusion as you are likely to find. While dismissing the appeal, Buchanan JA [at 21, Maxwell P and Osborn JA agreed] said briefly:

The fourth ground of appeal is that the trial judge erred in holding that a witness could not give evidence as to the general reputation for veracity of the complainant.

At common law evidence is admissible to impeach the veracity of a witness. The rule is stated by Archbold in these terms:

In order to impeach the credit of a witness for veracity, witnesses may be called by the other side to prove that his general reputation is such that they would not believe him upon his oath: Archbold, Criminal Pleading Evidence and Practice 2009, [8-153]. See R v BDX [2009] VSCA 28.

Counsel for the appellant, relying upon these authorities, sought to lead evidence from the complainant’s mother as to whether she believed the complainant’s allegations against the appellant, that the complainant frequently lied and that she would not believe the complainant on her oath.

The trial judge ruled that Part 3.7 of the Evidence Act 2009 [sic] (‘the Act’) ousted the common law rule and the evidence was not admissible.

Section 102 of the Act provides that credibility evidence about a witness is not admissible. Section 101A defines credibility evidence as evidence that is relevant only because it affects the credibility of a witness or is relevant because it affects the assessment of the credibility of a witness and for some other purpose for which it cannot be used because of a provision in the Act relating to hearsay or opinion. That provision, which the Act describes as ‘the credibility rule’, is succeeded by three sections containing detailed exceptions to the rule. It was not disputed that none of the exceptions applied in the present case.

In my opinion, it is apparent that Part 3.7 of the Act covers the field by establishing a general rule subject to a number of limited exceptions. To revert to the common law would effectively abrogate the statutory rule.

(Those statutory exceptions are mostly found in ss 103 and 106. They didn't apply in this case.)

BA makes it unlikely that trials of the sort considered in R v BDX [2009] VSCA 28 will make a resurgence. It makes sense not to retain the common law in this area - just as, if common law rules still applied to identification evidence, the more restrictive requirements on the prosecution found in Part 3.9 would be made redundant.

Going by the description of the facts provided in the judgment, this was not a case where the complainant's mother - at the time of the alleged offences, the appellant's partner - had any direct knowledge of the incidents in question, or where her evidence on a substantial issue might have contradicted the evidence of the complainant, as in Best v The Queen [2012] VSCA 277. Asking the relative of the complainant in an incest case whether they believe the allegations seems unhelpful, at best (even if it escapes the threshold test at s 55 because of s 55(2)(a)).

Thursday, 29 November 2012

VLA funding

Today the Law Institute sent out invitations to a meeting on Monday to discuss the further tightening of eligibility criteria for Legal Aid assistance.

The LIV have been told that the following proposals are currently before the VLA Board for consideration:

    1. That the eligibility threshold for summary crime be raised so that only those cases which carry an immediate term of imprisonment as the likely outcome will be aided

    2. That the fees payable to instructing solicitors will be limited to two half days per trial

    3. That grants of aid payable in youth crime matters will be cut

Each time I hear of another round of these proposals I'm reminded of the economic concept of externality - the generation of an external cost borne by a party who was not involved as either a buyer or seller of the goods or services causing the cost or benefit. While improvement to VLA's bottom line might seem superficially attractive, I wonder what the longer-term consequences of these decisions will be to the court system generally, and to our community as a whole.

I will be at the meeting on Monday. I'll let you know how it goes.

Tuesday, 27 November 2012

New Chief Magistrate

Back in October I mentioned that the current Chief Magistrate Ian Gray is to be appointed to the County Court with effect from 29 November 2012.

The Attorney-General announced today that Peter Lauritsen will be the next Chief Magistrate from 29 November 2012.

I mentioned in my earlier post that the new Chief Magistrate would need to be adept at herding cats. What with trying to keep a veritable throng of court users satisfied (if not happy), ranging from accused people and self-represented litigants, to the Law Institute, Victorian Bar, solicitors, and lawyers, and various prosecuting and support agencies, the Chief Magistrate has a varied and at times demanding constituency. I wish him well in his new job.

Wednesday, 21 November 2012

Vehicle forfeiture provisions invalid?

The new-ish Chief Justice of South Australia recently delivered an interesting judgment about the SA vehicle forfeiture provisions, Bell v Police [2012] SASC 188. Because of the similarities with Victorian legislation, the case is bound to receive consideration here.

In short, Kourakis CJ considered those provisions — found in the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) s 12 — and held they are invalid because they require a court to act inconsistently with the judicial integrity implication from Kable v DPP (1996) 189 CLR 51.


As an aside, this is a really easy-to-read judgment, because His Honour set out in the first 10 paragraphs — two-and-a-bit pages — what the appeal was about, and which of the two arguments for the appellant he accepted and rejected. That means when you read it, you already know the structure and the significance of his analysis. It's really nice to see for such a complex area. It's a style of writing journalists call inverted pyramid structure. The great thing about seeing this is a judgment is that when judges do it, it leads the way for advocates every where to follow. IMHO that can only be a Good Thing! (Bryan Garner says much the same thing in many of his texts on written advocacy.)

The legislation


Two provisions to note from the SA legislation are s 4 and s 12.

Section 4 provides:

4—Powers under Act in addition to other penalties

(1) A power exercisable under this Act is exercisable in addition to any other penalty that may be imposed on a person in relation to a prescribed offence.

(2) However, a court must, in imposing another penalty on a person in relation to a prescribed offence, have regard to any exercise of powers under this Act.

Section 12 of the SA legislation provides:
12—Court order for impounding or forfeiture on conviction of prescribed offence

(1) Subject to section 13, if this Part applies to a conviction for a prescribed offence, the court that records the conviction must, on the application of the prosecution

(a) order that the motor vehicle specified in the application is forfeited to the Crown if—

(i) the offence is a forfeiture offence; or

(ii) the convicted person has been found guilty of or expiated at least 1 other prescribed offence committed or allegedly committed within 12 months of the date of the offence; or

(iii) the convicted person has been found guilty of or expiated at least 2 other prescribed offences committed or allegedly committed within 10 years of the date of the offence;

(b) order that the motor vehicle specified in the application be impounded by the relevant authority for a period not exceeding 6 months if—

(i) the convicted person has been found guilty of or expiated 1 other prescribed offence committed or allegedly committed within 10 years of the date of the offence; and

(ii) paragraph (a) does not apply.

(1a) If the court makes an order under subsection (1), it must also order that the convicted person pay to the relevant authority fees calculated in accordance with the regulations in relation to the forfeiture or impounding of the motor vehicle.

This is roughly equivalent to Road Safety Act 1986 (Vic) s 84T. The difference is that s 84T says a court may order forfeiture of a car, subject to s 85Z. The difference is important.

Section 85Z purports to limit a Court's discretion to order forfeiture, and I suspect it was probably intended to operate in much the same way as the SA legislation. But, on a careful reading, what is seems to actually do is restrict a Court's discretion to not order forfeiture, but only when it does so on the basis of exceptional hardship. (I discussed that exception in May 2011 here.)

So, if a Court declined to order forfeiture on the ground that the punishment would be be more severe than is necessary to achieve the purposes of sentencing as set down in s 5(3) of the Sentencing Act, Road Safety Act s 85Z says absolutely nothing about that. Nor does the second reading speech or explanatory memorandum for the amendments that introduced s 85Z. I think this view is supported by s 84D, which provides:

84D. This Part does not affect other penalties

The impoundment, immobilisation or forfeiture of a motor vehicle under this Part arising out of the commission of a relevant offence is in addition to, and does not limit or otherwise affect, any penalty that may be imposed on the person for the relevant offence other than under this Part.

The reason I say this is important is because it is the mandatory nature of vehicle forfeiture that resulted in the SA Supreme Court holding that those provisions were invalid. If the Victorian provisions are mandatory, then they are probably invalid too.

Now, if your eyes are already glazing over getting your head around all these different sections, don't forget our aidé memoire for the vehicle impoundment provisions available here.

Prospective or retrospective operation?


The appellant was ordered to forfeit his car to The Man after he was found guilty on 10 January 2011 of drink-driving on 4 December 2010. The drink-driving offence — or 'confiscation offence' — was prescribed as a forfeiture offence from 16 December 2007, when the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 commenced operation.

The appellant argued the legislation was retrospective for two reasons. First, because the qualifying offences weren't qualifying offences when he committed them.

A person is liable to forfeiture when they commit a qualifying offence and have been found guilty or expiated two other prescribed offences — termed 'qualifying offences' by Kourakis CJ — within ten years of the confiscation offence.

This seems simple enough, but the legislation doesn't say the ten years must run before the confiscation offence.

If it only operates historically — if only qualifying offences committed before the confiscation offence can be considered — it won't operate retrospectively, according to Kourakis CJ.

Even if the qualifying offence wasn't prescribed as a qualifying offence when the person committed the offence.

That's because the person isn't liable to forfeiture of their car until they commit the confiscation offence. The legal effect of the qualifying offences isn't changed until then, so there isn't any retrospective operation: [25] – [32].

The second argument by the appellant was that because qualifying offences could potentially be relied on after the confiscation offence, even though they might not have been prescribed as qualifying offences when they were committed (and, for that matter, when the forfeiture offence was committed too), the legislation breached the prohibition against retrospectivity.

The Court dealt with that by referring to s 10, which provides that a person is taken to have been found guilty of or to have expiated a prescribed offence if the person has been found guilty of or expiated an offence that is a prescribed offence (as defined) at the time the application is made.

(I reckon that means all these provisions can only operate as you and I would expect: the driver must have two 'relevant priors' that pre-date the confiscation offence. Only then can the prosecution make a forfeiture application. If that's right, it shoots down the whole application-up-to-ten-years-after-the-event concern the Court had in this case.)

One point neatly resolved in this case is the query I posed in my earlier post: what's the position for a driver who committed relevant offences that weren't relevant offences at the time of offending? At [36] - [43], the Court listed four reasons why it was enough if the offences were prescribed — 'relevant offences' in the Victorian nomenclature — at the time of the application at Court. (I won't rehash them here; you can read them for yourself if you need to.)

Double punishment?


At [44] – [48] the Court dealt with the appellant's alternative argument that forfeiture amounted to double-punishment, additional to the sentence he received for the confiscation offence.

His Honour held the forfeiture didn't offend the prohibition on double-punishment.

The forfeiture order can only be made upon the offender’s conviction for the confiscation offence and it is with respect to that offence that forfeiture is imposed as a penalty. It is a well established sentencing principle that, all other things being equal, an offender with an antecedent criminal history, will receive a more severe penalty for a particular offence, than a first offender. The greater penalty is not an additional punishment for the other offences but reflects the heightened need for personal deterrence. So too for forfeiture imposed under the Forfeiture Act, the commission of the qualifying offences is a reason for making the forfeiture order, but it is made on conviction of the subsequently committed confiscation offence. The distinction is subtle, but is one of substance and not just semantics: at [45].

Maybe I missed something, but to me, the distinction is so subtle that it's non-existent. If a Court sentences someone for the confiscation offence, and takes into account their antecedent history and decides the offender deserves a bigger whack than someone with no history, and then on some later date, following an application from the prosecution, confiscates the driver's car, how can that be anything but a further punishment? Indeed, at [44], His Honour even noted, "The confiscation of an asset of such relative importance is undoubtedly a severe penalty. It is also a symbolic penalty. The primary effect of a forfeiture order is plainly punitive and for that reason it also operates as a general and personal deterrent." Sounds like a duck; walks like a duck...

His Honour did hold that forfeiture orders made based on qualifying offences committed in the future would amount to double-punishment. (I'm not convinced that can occur, given the operation of s 10 discussed above.) In any event, His Honour considered that Parliament indicated it intended to abrogate the rule against double-punishment. That might be so, but I don't understand how Parliament could lawfully do so. Section 50 of the Acts Interpretation Act 1950 (SA) — almost identical to s 51 of the Interpretation of Legislation Act 1984 (Vic) — expressly provides that a person is not liable to double-punishment. And s 4(2) of the SA forfeiture legislation seems to accept that, stating, that a court must, in imposing another penalty (emphasis added) on a person in relation to a prescribed offence, have regard to any exercise of powers under this Act.

I argue that forfeiture does amount to additional punishment. The way that a court can avoid infringing the prohibition against double-punishment is to impose a sentence for a confiscation offence contemporaneously with the forfeiture application, so that it's part and parcel of the overall instinctive synthesis. Contrast this with things such as sex offender registration and monitoring in Victoria, where s 5 of the Sentencing Act expressly prevents a court from considering the consequences of those ancillary orders.

Judicial integrity


In Kable v DPP (NSW) 1996) 189 CLR 51 the High Court considered the validity of State courts. Though State courts are subject to State Constitutions, because they can exercise federal power under s 39 of the Judiciary Act 1903, they must conform with prescribed requirements for judicial institutions in Chapter III of the Constitution of Australia. In Momcilovic, the High Court referred to the Kable principle as the repugnancy doctrine. Whatever you call it, the basis idea is that courts can't be legislatively compelled to make decisions that have the effect of just rubber-stamping executive decisions. For example, legislation was invalid when it required a court to make a control order for people only because they were bikies, with no judicial consideration of their guilt or risk they posed: South Australia v Totani (2010) 242 CLR 1.

The appellant succeeded on this point, with the Court accepting that the confiscation provisions offended the judicial integrity principle from Kable.

[75] In my respectful opinion, the above cited passages show that at the core of the judicial integrity implication lies a requirement that there be a rational connection between the adjudicative function invested in the court and the powers it must, or may, exercise. Legislation conferring a jurisdiction or power on a court will only be compatible with the judicial integrity implication if the orders which the court must, or may, make have a rational connection to findings of fact, and judgments on those facts, which the court itself has made.

...

[78] Questions of incompatibility with the judicial integrity implication loom larger when the legislative scheme, instead of proscribing specified conduct and providing for penalties or other orders in the case of breach, authorises, in prescribed circumstances, executive and judicial action to derogate from the otherwise lawful freedom of action, or property rights, of individuals.[49] It is also one thing for Parliament to provide a statutorily prescribed mandatory penalty for criminal conduct and quite another for it to allow the executive to nominate in its application to the Court an additional penalty of its choosing which a court must impose to depend on the selection...

[81] The scheme adopted by the Forfeiture Act has four core elements which together are incompatible with the judicial integrity implication. First, it disguises an executive decision to extract a forfeiture as an application to a court and by so doing largely immunises the decision from judicial review. Secondly, the Forfeiture Act denies that court any substantive judicial function with respect to that application by mandating the order it must make so as to ensure that the executive’s decision is given effect. Thirdly, it secures for an essentially executive order the immunity from collateral attack which only judicial orders enjoy. Fourthly, the object of the scheme is to require courts to impose a penalty selected by the prosecution in addition to the penalty they have already imposed in the exercise of the sentencing power.

...

[83] I acknowledge the dispensing power conferred by s 13 of the Forfeiture Act. However the scope of the power is limited, in the case of defendants, to cases of “severe financial or physical hardship”. The forfeiture of a motor vehicle would cause substantial financial hardship to most defendants. Something much more than the hardship which forfeiture would ordinarily cause must be shown. In the generality of cases no dispensation can be given. In any event the judicial power to exempt a defendant in a particular case on hardship grounds does not meet the constitutional objection to the nature of the primary power and the manner of its exercise.

In essence, the vice here is that the prosecution chooses if and when it will make a forfeiture application. Once made, the court is compelled to make the order if the offender comes within the scope of the legislation. There is no adjudication for the court to perform; it simply must make the order, unless some very narrow exceptions apply.

So long as this legislation is said to be mandatory or obligatory, I think it's likely to fall foul of the repugnancy doctrine.

For good measure, another Constitutional argument that might crop up is the prohibition on acquisition of property except on just terms, in s 51(xxxi) of the Constitution. I'm no Constitutional lawyer, and I haven't looked into the point in any detail, but I wonder if there's a difference between a penalty — where the court can require an offender to give up a fungible asset in the form of money — and forfeiture of a lawfully owned and specified chattel that is not necessarily associated with the offence that founds the forfeiture?

Apparently the South Australian Attorney-General is appealing this judgment, so it might be overturned on appeal, or else there is no doubt the government will try to amend the legislation.

Monday, 19 November 2012

Sentencing discounts

The Criminal Law (Sentencing) (Guilty Pleas) Amendment Bill 2012 (SA) caught my eye today. This bill recently passed the South Australian Parliament, and amends the Criminal Law (Sentencing) Act 1988 (SA).

The legislation encourages sentencing discounts for early pleas of guilty, and provides proportional limits on the discounts that can be offered, depending on when the plea is entered. It implies a 40% discount may be available at first mention of a matter, and then up to a 30% discount at any other time prior to contested hearing.

The new s 10B will read:

10B — Reduction of sentences for guilty plea in Magistrates Court etc

(1) This section applies —

(a) if the sentencing court is the Magistrates Court; or

(b) if the sentencing court is sentencing in relation to a matter dealt with as a summary offence; or

(c) in any other circumstances prescribed by the regulations.

(2) Subject to this section, if a defendant has pleaded guilty to an offence or offences —

(a) not more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences — the sentencing court may reduce the sentence that it would otherwise have imposed by up to 40%;

(b) more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences but —

(i) if a date has been set for a trial for the offence or offences — not less than 4 weeks before that day; or

(ii) in any other case — before the commencement of the trial for the offence or offences,

the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;

(c) less than 4 weeks before the day set for trial for the offence or offences, and if the defendant satisfies the sentencing court that he or she could not reasonably have pleaded guilty at an earlier stage in the proceedings because of circumstances outside of his or her control — the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;

(d) in circumstances other than those referred to in a preceding paragraph — the sentencing court may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed by up to 10%.

(3) If —

(a) the maximum reduction available under subsection (2)(a) does not apply in relation to a defendant's plea of guilty because the defendant did not plead guilty within the relevant period; and

(b) the court is satisfied that the only reason that the defendant did not plead guilty within the relevant period was because —

(i) the court did not sit during that period; or

(ii) the court did not sit during that period at a place where the defendant could reasonably have been expected to attend; or

(iii) the court was, because of reasons outside of the control of the defendant, unable to hear the defendant's matter during that period,

the court may nevertheless reduce the sentence that it would otherwise have imposed as if the defendant had pleaded guilty during the relevant period.

(4) In determining the percentage by which a sentence for an offence is to be reduced in respect of a guilty plea made within a particular period, a court must have regard to such of the following as may be relevant:

(a) whether the reduction of the defendant's sentence by the percentage contemplated would be so disproportionate to the seriousness of the offence, or so inappropriate in the case of that particular defendant, that it would shock the public conscience;

(b) the stage in the proceedings for the offence at which the defendant first indicated his or her intention to plead guilty (including whether it would, in the opinion of the court, have been reasonable to expect the defendant to have done so at an earlier stage in the proceedings);

(c) the circumstances surrounding the plea;

(d) in the case where the defendant has been charged with more than 1 offence—whether the defendant pleaded guilty to all of the offences;

(e) whether or not the defendant was made aware of any relevant matter that would have enabled the defendant to plead guilty at an earlier stage in the proceedings,

and may have regard to any other factor or principle the court thinks relevant.

Section 10C creates a similar provision for trial courts, but the discounts are smaller and the time periods slightly longer.

These provisions don't break new ground for South Australian courts, but represent tinkering with the existing system designed to encourage early pleas. Other states have them, too. When these 'transparent and understandable' discounts were first proposed in SA Parliament earlier this year, they provided for stricter discount limits, and were criticised from some quarters for reducing the discretionary powers of the judiciary and reducing the incentive for offenders to plead guilty. The proportional limits were increased.

But 30% or 40% of what? Sentencing practices vary so widely that what may be one magistrate's substantial discount on a plea may still be a harsher penalty than what would be awarded by a different magistrate after a contest. Nobody has found a solution to that issue yet.


Thursday, 15 November 2012

Legislation Watch: Justice Legislation Amendment (Family Violence and Other Matters) Bill 2012

Police Pursuit Amendments

Today the Victorian government announced their intention to create a new offence for drivers who avoid stopping their car when the police want them to.

The proposed offence is contained in the Justice Legislation Amendment (Family Violence and Other Matters) Bill 2012. The Explanatory Memorandum for it can be found here. A forced commencement date of 1 Jul 2013 is proposed.

The new offence is intended to be inserted into the Crimes Act 1958, and provides:

319AA Dangerous or negligent driving while pursued by police

(1) A person must not drive a motor vehicle dangerously or negligently if he or she knows, or ought reasonably to know, that—

(a) he or she has been given a direction to stop the vehicle by a member of the police force; and

(b) a member of the police force is pursuing the vehicle.
Penalty: 3 years imprisonment.

(2) For the purposes of subsection (1)—

(a) a person drives a motor vehicle dangerously if he or she drives the vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case; and

(b) a person drives a motor vehicle negligently if he or she fails unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances of the case; and

(c) a member of the police force may be pursuing a motor vehicle even if not travelling at the same speed as the vehicle; and

(d) it is irrelevant that the police pursuit is suspended or terminated before the motor vehicle being pursued stops.

Offences for failing to stop while being chased by the police already exist in the Road Safety Act at s 64A and, to a lesser extent, at Rule 304 of the Road Rules. This new offence is also punishable by a minimum licence disqualification of 12 months, and the impoundment of the vehicle as a Tier 1 offence under s 84C(1).

Whatever the merits of the legislation, the announcement couldn't be more timely, with another pursuit ending in injury (this time to occupants of both cars) this afternoon.

Family Violence Amendments

The Bill also proposes the introduction of new indictable offences for contravention of Family Violence Safety Notices and intervention orders.

37A Contravention of notice intending to cause harm or fear for safety

(1) In this section—

mental harm includes—

(a) psychological harm; and

(b) suicidal thoughts.
(2) A person who—

(a) has been served with a family violence safety notice; and

(b) has had an explanation of the notice given to him or her in accordance with section 35—
must not contravene the notice intending to cause, or knowing that his or her conduct will probably cause—

(c) physical or mental harm to the protected person, including self-harm; or

(d) apprehension or fear in the protected person for his or her own safety or that of any other person.
Penalty: Level 6 imprisonment (5 years maximum) or a level 6 fine (600 penalty units maximum) or both.

At s 123A it's proposed to introduce a new indictable offence for contravention of an intervention order, also making it punishable by a maximum 5 years imprisonment. Like the police chase offence, these new offences reproduce offences already in existence, with minor additional evidentiary requirements but a significantly bigger maximum penalty.

When the offence of breaching an intervention order existed at s 22 of the Crimes (Family Violence) Act 1987 it was punishable (at least in theory) by a maximum penalty of five years imprisonment. But since it was a summary offence, s 113A of the Sentencing Act 1991 limited the maximum penalty that could be imposed by any court to 2 years. (An anomaly discussed by Chernov JA in R v Duncan [2007] VSCA 137, at 13). Consequently, when the Family Violence Protection Act 2008 was enacted it appeared to cut in half the maximum penalty for that type of offence even if, in reality, it had no real effect.

The Bill also proposes a new offence for persistent and repeated breaches of safety notices and intervention orders:

125A Persistent contravention of notices and orders

(1) A person must not persistently contravene a family violence safety notice or a family violence intervention order.

Penalty: Level 6 imprisonment (5 years maximum) or a level 6 fine 20 (600 penalty units maximum) or both.

(2) To prove an offence against subsection (1) it is necessary to prove that—
(a) the accused engaged in conduct that 25 would constitute an offence against section 37 or 123; and

(b) on at least 2 other occasions within a period of 28 days immediately preceding the conduct referred to in 30 paragraph (a), the accused engaged in conduct that would constitute an offence against section 37 or 123 in relation to—

(i) the same protected person; or

(ii) the same family violence safety notice or family violence intervention order (whether an interim order or a final order), whether or not in relation to the same protected person; or

(iii) a family violence safety notice and a family violence intervention order (whether an interim order or a final order) made on the family violence safety notice as an application, whether or not in relation to the same protected person; and
(c) on each of the occasions referred to in paragraphs (a) and (b) the accused knew or ought to have known that the conduct constituted a contravention of the family violence safety notice or family violence intervention order (as the case requires).

(3) In a proceeding for an offence against subsection (1), a defence available under section 37(3) or 123(3) is a defence to an allegation that the accused engaged in conduct that would constitute an offence against section 37 or 123 (as the case requires).

(4) If on the trial of a person charged with an offence against subsection (1) the jury are not satisfied that he or she is guilty of the offence charged but are satisfied that the accused engaged in conduct during that period which constitutes an offence against section 37 or 123, the jury must acquit the accused of the offence charged but may find him or her guilty of that other offence and he or she is liable to punishment accordingly.
Sub-section (4) is an extension of the powers of a trial court under s 239 of the Criminal Procedure Act 2009. In the Magistrates' Court it will presumably still be necessary for the prosecution to lay both this new charge, and each individual charge said to make up the persistent behaviour, if they wish to rely on it as an alternative.

All of these new indictable offences are triable summarily, by virtue of s 28(1)(b)(iii) of the Criminal Procedure Act 2009.

The final point to note is that clause 4 intends to extend the maximum duration of Safety Notices from the current 72 hours (3 days) to 120 hours (5 days).

Thursday, 8 November 2012

Westlaw AU

Recently my Legal Online subscription was 'migrated' over to Thomson Reuter's new Westlaw AU interface.

(Not to be confused with Westlaw Australia, a case law tab found in Westlaw International, which is a clunky resource mostly useful for Canadian, EU, Hong Kong, US and UK cases).

I delayed it for as long as possible, wanting to put off losing another set of bookmarks and having to learn a new set of navigation tools.

The updated Westlaw AU looks neater than the old layout. They aren't afraid of a little blank space. It no longer overwhelms with too much information on one screen, which was my biggest issue with the old interface. And it's much faster.


The content remains the same so far as I can tell but, like with a car, it's the engine that drives the experience. WAU's primary commercial competitor, LexisNexis AU has also improved in recent times, but its search engine continues to offer either too many responses to my search queries, or none. Further refining my searches will eventually get to what I want, but only if I know what I'm looking for and I keep at it.

I'm open to the possibility that it's me that's the problem. But that's kind of my point - Westlaw AU gives me what I'm looking for without putting up the fight.

Tuesday, 6 November 2012

Legislation Watch: Road Safety Amendment (Operator Onus) Bill 2012

This legislation is about to pass the Assembly, and will take effect once it's proclaimed. It has a forced commencement date of 1 July 2014.

The Statement of Compatibility is here, the Explanatory Memorandum is here, and the Second Reading is here.

Clause 4 will insert a new s 84BA into the Road Safety Act 1986, which will read,

84BA Purpose of this Part

(1) The purpose of this Part is to establish an "operator onus" system for certain offences involving motor vehicles or trailers.

(2) The "operator onus" system applies to offences where the identity of the person driving, or in charge of, the motor vehicle or trailer is not established at the time the offence is committed.

(3) The system is based on the principle that, in the circumstances referred to in subsection (2), the person who was the operator of the motor vehicle or trailer at the time of the offence should be held responsible for the motor vehicle or trailer and should be liable for the offence.

(4) However, a person will not be held liable for an offence if the person, where permitted, establishes that, at the time of the offence, the person was not responsible for the motor vehicle or trailer and either—

(a) provides information sufficient to identify and locate the person driving or in charge of the motor vehicle or trailer at the time of the offence; or

(b) explains why the person cannot with reasonable diligence ascertain the identity of the person who was driving or in charge of the motor vehicle or trailer at the time of the offence.

The basic operator onus system currently in operation will be retained, but further amendments are intended to discourage corporations from failing to nominate the driver when a vehicle registered to them is detected by an automatic detection device like a speed camera or red light camera. If the same company fails to nominate a driver three times in the same year it can be prosecuted under a new offence created at s 84BEA, which will carry a maximum penalty of 120 penalty units.

The bill also extends the time for the laying of a charge for giving false or misleading information in a nomination, from the current 12 months to 2 years.

Monday, 5 November 2012

Driving a motor vehicle

Last week I wrote about an unrepresented appellant who challenged a fundamental principle of sentencing in the County Court. While I've previously warned of the serious disadvantage that unrepresented litigants place themselves at, they do occasionally bring a fresh perspective to issues that normally get taken for granted. This doesn't always work out for the appellant but it does, at least, clarify the law for everyone else.

A classic example is the case of George Tsolacis and his challenges to his convictions for offences against s 59 of the Road Safety Act 1986. Tsolacis drove home from work in the early hours of 15 June 1991. As he parked his car and got out he was approached by the police informant, who had been following him. The policeman asked for Tsolacis' licence and details, which he refused to supply.

Winneke P [Hayne and Kenny JJA agreed] in Tsolacis v Kelly [1997] VSC 34, at 2:

On 24 September 1991 [Constable] Kelly laid information against the appellant charging him with two offences against s 59(1)(a) of the Road Safety Act 1986. Relevant the sub-section provides as follows:

"(1) The driver or person in charge of a motor vehicle on a highway has the
following duties-

(a) to stop the motor vehicle, produce for inspection his or her driver
licence document or permit document and state his or her name and
address if requested or signalled to do so by-

(i) a member of the police force ..."
Sub-section (2) of the same section prescribes the penalties for failure to comply with the relevant requests outlined in sub-s 1.

The extent of the powers reposed in police officers by this section is not made abundantly clear by its terms.

The appellant has consistently maintained that he was not in breach of the duty prescribed by the sub-section because, at the time when the request was made, he was not "the driver of a motor vehicle on a highway". It has been, for him, I might say, a protracted and expensive campaign.

After conviction in the Magistrates' Court, the appellant unsuccessfully pursued an appeal to the Supreme Court on the point, then to the Court of Appeal. Through the litigation the appellant insisted, with some persuasive force, that at the time that his licence and details were requested his journey had been completed, and so none of the obligations created by s 59 applied to him.

Winneke P [at 4]:

As His Honour noted, there is no definition in the Act of what persons are taken to be "the driver of the motor vehicle on a highway" for the purposes of raising the duties contemplated by s 59 or, for that matter, for the purposes of other sections in this Act giving rise to similar duties. (See, for example, s 46.) But any sensible construction of the words of the whole of s 59 must, in my view, lead to the conclusion that the "driver" contemplated by the section comprehends a person in the circumstances in which the evidence discloses the appellant to have been in this case."

(Section 46 has been repealed since this case was decided in 1997).

The wording of the legislation would make it seem plausible that the obligations under s 59 only apply while the driving is actually going on. But successive courts interpreted the legislation purposively. The obligations in s 59 apply at any time proximate to, and not remotely from, the driving.

Winneke P [at 4]:

In each case that will be a question of fact. If the narrow construction of the sub-section were to be accepted, the administration and execution of the purposes of the Act by police could be wholly frustrated simply by the driver stopping the vehicle, turning off the ignition and alighting. It is clear from the perusal of the whole of the Act that such a construction was not intended.

Wednesday, 31 October 2012

JCV manuals updated

The Judicial College of Victoria today released updates to its ever-useful series of manuals. A big "huzzah" to the folks responsible.

The College hasn't put out much detail about the changes, but it seems to me that they've moved away from the java-scripting that previously ran them. My guess is they're now using HTML5. Whatever the difference is, they look better, and now support pinpoint and deep hyperlinks.

This means it's possible to link to a particular point in the commentary and save that for later, or open it in different browser tab. Previously, opening a link to a pinpoint location failed with a message that the sidebar — the navigation tree on the left-hand side of the screen — was missing.

The new manuals seem to be much quicker on the iPad, and to readily support opening pinpoint references in multiple tabs.

There are also cross-references to related sections now shown at the bottom of each page, and a built-in search window at the top of the page.

The index is also improved, and works without any of the little glitches that were present in Safari on a Mac.

The only thing that seems to now be absent is the list of cases. I'd like to see that return, because it was often useful to see the JCV commentary on particular cases, especially when it suggested applications of cases I knew but in different ways or circumstances I had not encountered.

The last apparent change is that the manuals are now hosted on the JCV's own site. Previously, they linked to a justice.vic.gov.au address (or URL). So if you had the manuals bookmarked anywhere, you'll need to update the bookmarks.

Sunday, 28 October 2012

Dankovic v The Queen [2012] VSCA 255: penalty limits in the Magistrates' Court

The Magistrates’ Court is limited in the periods of imprisonment it can impose by ss 113, 113A and 113B of the Sentencing Act 1991. The jurisdictional limits are two years for a single charge, and five years in respect of several offences committed at the same time. These restrictions apply regardless of the maximum period of imprisonment allowed by Parliament for that particular offence. So, for example, if the accused is convicted of knowingly possessing the proceeds of crime (triable summarily by virtue of cl 4.20 of Schedule 2 of the Criminal Procedure Act 2009) the statutory maximum period of imprisonment is 20 years, but the maximum period that can be imposed by a magistrate is two years.

The jurisdictional limits do not create a ceiling from which the appropriate sentence should be calculated. If it did, taking a purely mathematical approach, where the jurisdictional penalty limit is two years, and the offence is one of a ‘medium’ level of seriousness, then (absent all of the other sentencing considerations) the appropriate sentence would be one year of imprisonment. This is not how the sentencing process works.

It’s the upper limit for the specific offence that provides a guide to sentencing, and is only one of a number of statutory and common law considerations factored into the instinctive synthesis: s 5(2)(a) Sentencing Act 1991. If the matter is potentially too serious to be dealt with in the Magistrates’ Court, the Court may refuse application for a summary hearing: s 30 Criminal Procedure Act 2009.

While this may sound obvious, the jurisdictional issue came up again recently in Dankovic v The Queen [2012] VSCA 255. The (unrepresented, it would seem) accused mounted the argument in her written submissions to the court that, because her deception offences could have been dealt with summarily, the County Court judge who sentenced her should have considered himself constrained by the Magistrates’ Court’s limits.

Nettle JA [at 18, Maxwell P and Ferguson AJA concurring]:

That argument is also untenable. No doubt, the charges could have been prosecuted in the Magistrates’ Court, as the judge observed. If they had been so prosecuted, however, the maximum penalty for each offence would still have been as it was in the County Court. Section 28 of the Criminal Procedure Act 2009 (previously s 53 of the Magistrates’ Court Act 1989) enables indictable offences to be tried in the Magistrates’ Court in certain circumstances. If they are so tried, s 113 of the Sentencing Act 1991 provides that the Magistrate cannot impose a greater sentence on any one charge of more than two years’ imprisonment; and s 113B provides that the total effective sentence may not exceed five years’ imprisonment. But that does not mean that the maximum penalty for any offence so tried is reduced to two years’ imprisonment. As Brooking J explained in Hansford v His Honour Judge Neesham & Ors:
Where a court tries an indictable offence summarily under s 53(1) of the Magistrates' Court Act and convicts the defendant, by s 113 of the Sentencing Act, the maximum term of imprisonment to which the court may sentence the offender for that offence is two years. But this does not mean that two years is ‘the maximum penalty prescribed for the offence’, to which the court must have regard by force of s 5(2)(a). That phrase is confined to the maximum penalty selected by the legislature as that which should be prescribed for a particular crime. Section 5(2)(a) is in no way concerned with the limitation imposed by s 113 upon the jurisdiction or powers of a sentencing magistrate, whereby, whatever the nature of the offence, and whatever the maximum penalty prescribed for it, the magistrate may not impose a term of imprisonment greater than two years for the offence. Section 113 operates indifferently upon all sentences to be imposed for an indictable offence tried summarily under s 53(1). It does not prescribe a maximum penalty for the offence in the sense in which those words are used in s 5(2)(a), the specification of a maximum penalty by the legislature for a particular crime. It leaves the statutory maximum penalty untouched, but imposes upon a particular sentencing court a jurisdictional limit. It imposes its own maximum, not by reference to the nature of the offence and its gravity in relation to other offences, but by reference to the status of the sentencing court ...
.
The same point was made by Nettle JA [at 20] in regard to s 113A in R v Duncan [2007] VSCA 137.

The judge who sentenced Dankovic stated in his reasons that he did not exceed two years imprisonment for any single charge (there was some cumulation between charges) in recognition of the fact that the matter could have been dealt with in the Magistrates’ Court. But his Honour wasn’t obliged to do that, and certainly didn't have to treat two years imprisonment as the maximum penalty reserved for the most serious of cases.

Monday, 22 October 2012

DPP v Novakovic [2012] VSC 397: blood refusals, doctors and that three-hour thing

Last month the Supreme Court delivered its judgment in another drink-drive decision, DPP v Novakovic [2012] VSC 397. (The judgment only popped up on Austlii recently, which spurred me to get around to this post.)

This case dealt with a charge of refusing to permit a blood sample to be taken following two attempts to obtain a breath analysis, contrary to Road Safety Act 1986 s 49(1)(e).

Mr Novakovic was stopped by the police on 14 March 2011, somewhere in Geelong. He accompanied the police informant Leading Senior Constable Jeffrey Smith to the Geelong police station. He made two attempts at a breath test, but both resulted in 'insufficient sample' printouts.

The informant then said, "You have given two insufficient samples of breath into the breathalyser instrument and, as such, I now require you to undergo a blood test. Do you understand?"

Mr Novakovic replied, "No, I'm allergic to needles, I am not having a blood test."

The informant said, "...are you aware if you refuse the blood test, having given two insufficient samples of breath into the breathalyser instrument, you will lose your licence for a minimum of two years and receive a substantial fine at court?"

Mr Novakovic didn't say anything.

The informant said, "You have given, as I indicated, two insufficient samples of breath into the breathalyser instrument, and, as such, I now again require you to undergo a blood test. Do you understand?"

Mr Novakovic answered, "No, I’m not. I don’t have needles. I’m allergic to them."

The informant told Novakovic the matter would be reported, and Novakovic left the police station.

He was later charged that:

The accused at geelong [sic] on 14th March 2011 after having been required by a member of the Police Force to allow a sample of blood to be taken from him pursuant to Section 55(9A) of the Road Safety Act 1986, did refuse to allow such blood sample to be taken within three hours of the driving of a motor vehicle.

It's worth highlighting at this point that s 49(1A)(c) provides:

(1A) A person may be convicted or found guilty of an offence under paragraph (c), (ca), (e), (ea) or (eb) of subsection (1) even if—

...

(c) in the case of an offence under paragraph (e)—

...

(iii) the person requiring a sample of blood had not nominated a registered medical practitioner or approved health professional to take the sample; and

(iv) a registered medical practitioner or approved health professional was not present at the place where the requirement was made at the time it was made; and

The magistrate dismissed the charge. Reading that part of the magistrate's reasons contained in the appeal, it seems that there was some argument about whether the informant had formed one of the two opinions required to found a requirement for blood under Road Safety Act s 55(9A), but the dispute was resolved in favour of the prosecution.

The magistrate dismissed the charge after concluding Novakovic should have been advised when the blood request was made that he might be taken to a hospital, and be required to stay there until 3 hours had lapsed since he drove or a blood sample was taken.

The appeal


Interestingly, Mr Novakovic's aversion to needles didn't feature in the appeal. Fear of needles is variously called aichmophobia, belonephobia, or enetophobia, depending on which dictionary you reach for. As far as I know, there are no Australian cases dealing with the point, but there are some UK ones, with the leading case that of DPP v Jackson; Stanley v DPP [1999] AC 406. In that case, Jackson had replied to the police request for blood with, “I don’t like needles but I’m not giving anything anyway.” That was held to be an express refusal, and he was convicted of that offence. Stanley had said, “No, I don’t want no needle.” His only defence was for medical reasons determined by a medical practitioner. Without such a determination, his conviction was upheld.

The case suggests though, that a genuine medical phobia might establish a defence. And in light of Dover v Doyle [2012] VSC 117 — discussed here — I reckon it might succeed. But that's for another day...

This appeal dealt with two main issues, at [5] – [6]:

  1. Did the offence require that the informant tell Mr Novakovic of the three-hour time limit for his obligations?
  2. Did the offence require that the informant tell Mr Novakovic he was required to allow a registered medical practitioner or authorised health professional to take his blood sample?

The Court held the informant did not need to tell Mr Novakovic he had to remain for three hours, or that his obligation to remain or provide a sample of blood only applied for three hours since driving. That's consistent with DPP v Piscopo (2011) 59 MVR 200 at [66] and DPP v Rukandin (2011) 59 MVR 222 at [17], and Uren v Neale (2009) 53 MVR 57 (discussed here), and DPP v Foster.

The new development in drink-driving law was for the second issue. At [47] - [51] the Court held that it was essential for the police to convey to Mr Novakovic that the requirement was to permit a medical practitioner or approved health professional to take his sample of blood. This was said to be found in the requirement contained in s 55(9A).

I have to say though, it seems peculiar we are now in a position where precedent dictates that some requirements listed in s 55(9A) are 'additional subsidiary powers' — at [46], point 2 — and need not be communicated to a motorist, while some are essential and must be communicated.

So the police must tell a motorist of the requirement for a medical practitioner or approved health professional to take blood, but not of the requirement to remain only for up to three hours, even though both requirements are stated in s 55(9A).

I don't know if the DPP has sought leave to appeal the decision, but the 14-day time limit passed on 21 September 2012.

Some other observations


I wondered initially if the charge of refusing to allow blood was the right one, or if the proper charge was refusing to remain.

In this case, the informant required Mr Novakovic to provide a blood sample, and Novakovic said he would not. And in light of s 49(1A)(c) that I mentioned above, an 'anticipatory' breach is a good enough to constitute a breach. That analysis was accepted by the Court at [42].

One aspect of the judgment I'm not sure about though is at [30], where the Court said:

The Director correctly characterised the charge...as one of 'refusal to furnish', rather than a 'refusal to accompany'. He cites DPP v Foster as authority for the proposition that a refusal to furnish a sample of breath is the primary requirement under s 55(1) and that the requirements to accompany and remain are subsidiary and submits that the reasoning behind the decision in Foster is equally applicable in the case of sub-s(9A).

Certainly the charge could be alleged as a refusal to furnish, but I wonder if the alternative ought to have been a refusal to remain? I say this because in DPP v Piscopo (2011) 59 MVR 200 at [23] – [25], [46] and [66] the Court of Appeal held that the requirements to accompany and remain are separate and distinct, and at [66] that a requirement to remain must specify the purpose and time-limit of that requirement.

But, in the lead judgment, Ashley JA also said at [66], "I consider, in the event, that s 55(1) should be interpreted as meaning that, in every case where a requirement to remain must be stated — and in practical terms that will mean every case, because there will always be some time elapse between arrival at the specified place or vehicle and the furnishing of the (initial) sample — the requirement must specify its purpose and the temporal limit." (Emphasis added.)

What Ashley JA recognised that although the legislation orders the requirements as 'furnish-accompany-remain', in practice they can only occur in the order of 'accompany-remain-furnish'. (Though the present legislation provides that an 'anticipatory' breach can now occur at any stage.) Only in that sense can requirements to accompany and remain be considered 'subsidiary'. Winneke P in DPP v Foster said at [48]:

It is, to my mind, abundantly plain from a reading of s 55(1) that the requirement to furnish a sample of breath for analysis by a breath analysing instrument can only sensibly be made at the time when the device is presented to the motorist at the police station (or other place). That, as I see it, was the view taken by Southwell J. in Rankin v. O’Brien (above, at 73) when considering different, but for present purposes, similar legislation which existed in s. 80F of the Motor Car Act 1958. Indeed, in my view, the words of s. 55(1) themselves imply that the requirement to “furnish a sample of breath” is to be made when the instrument is presented to the motorist because it is stated that the relevant member of the police force “may require the person to furnish a sample of breath for analysis...and for that purpose may further require the person to accompany a member of the police force...to a police station ” (emphasis added). In other words, the section itself makes it plain, as I see it, that the power to make the latter requirement is to facilitate the purpose for which the power to make the primary requirement is given, which can only sensibly be exercised when the motorist is confronted with the machine."

So, given that Mr Novakovic had accompanied the informant to the Geelong police station, he could never have been liable to a charge of failing to accompany, surely?

Part of the bind the courts now find themselves in is that the neat logic of Winneke P's reasoning in DPP v Foster is gradually eroded by piecemeal legislative amendment. The notion of 'anticipatory' refusal has come about because of amendments to overcome Halepovic v Sangston (2003) 40 MVR 203. It might have made sense for that particular offence, but has really undermined the scope of refuse-to-remain offences. The whole point originally of the three-hour rule was to provide sufficient time for the police to get breath-test operators from the old Traffic and Alcohol Section in Brunswick to any police station, or forensic nurses to take blood tests.

The amendments to overcome Halepovic v Sangston were designed purely for the convenience of the police: see the explanatory memorandum, and also some of the Parliamentary debates. Those amendments meant the police didn't have to call out a doctor to attend when someone made it clear they weren't going to provide a sample. Fair enough.

But, the current legislation results in no need for the police to tell a motorist all of the motorist's obligations, or the consequences for non-compliance, and liability for non-compliance based on what the police anticipate the motorist will do. If anticipatory refusals could only result in a fail to remain charge — which does require the police to tell the motorist the extent of the motorist's obligations — the scheme would probably be unobjectionable.

Sunday, 21 October 2012

Plain language for lawyers

Someone gave me this book recently. I really liked reading it.


It's been in print for two decades. I wish I'd read it earlier. Enough said.

Sunday, 14 October 2012

Sure thing

When Julian Assange was released on bail by the Westminster Magistrates' Court last year he was released on a £240,000 surety, with a £200,000 deposit lodged. (His bail was later extended and varied, and the surety amount reduced, as he pursued avenues of appeal through the High and Supreme Courts).

Now that Ecuador has granted Assange asylum, the Chief Magistrate has ordered the promisors to part with some cash. Judge Riddle's decision from last week can be found here, tracing the history of the matter. His Honour exercised his discretion in requiring less than half of the original surety money to be forfeited. I'd thought that some celebrity supporters had fronted the money, but I don't recognise any of the names referred to in the judgment. It isn't totally clear what submissions were made on their behalf, but it seems like the sureties wanted to explain their position to the Court, at least.

Here, under s 7(4) of our Crown Proceedings Act 1958 (Vic.), a surety can apply to the court to vary or rescind an order that money be paid. This provision most notably came in for consideration when Tony Mokbel's sister-in-law unsuccessfully sought to resist the forfeiture of her property in Mokbel v DPP (Vic) & DPP (Cth) [2006] VSC 487 and Mokbel v DPP (Vic) & DPP (C'th) [2007] VSCA 195.

If the British system is anything like ours, Assange won't be able to pay his supporters back the money later, and everyone would be in strife if he'd agreed to do so.

Section 31 of the Bail Act 1977 says,

31. Indemnifying surety

(1) Any person who indemnifies another person or who agrees with another person to indemnify that other person against any liability which that other person may incur as a surety to secure the attendance in answer to bail and the surrender to custody of a person accused or convicted of or under arrest for an offence he and that other person shall be guilty of an offence.

Penalty: 15 penalty units or imprisonment for three months.

(2) An offence is committed against subsection (1) whether the agreement is made before or after the person to be indemnified becomes a surety and whether or not he becomes a surety and whether the agreement contemplates compensation in money or money's worth.

Incidentally, while looking at the Westminster Magistrates' Court I happened across a picture of its predecessor, the City of Westminster Magistrates' Court. This building, which was built in 1974 and closed its doors for the last time in September of last year, is so fantastically ugly that it's got me thinking about a companion piece to my 2011 post about court buildings. The updated one would feature nothing but court buildings which should be immediately torn down and replaced with something else.

If anyone knows of a likely contender, let me know.