Swear it's fixed

Late last year we discussed the case of DPP v Marijancevic [2011] VSCA 355, where the wheels spectacularly fell off the criminal justice wagon when it came to light some police weren't swearing affidavits for search warrants as required. That decision was delivered on 11 November 2011: the date is significant when you read the legislative amendments discussed below, as they relate to purported affidavits signed before 12 November 2011.

Apparently the problem was big. Really big. According to The Age and The Herald-Sun, thousands of cases were at risk of dismissal because of this problem.

Today, the Government rushed through emergency legislation, passing the Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 in the Legislative Assembly. The Act isn't yet online — it has to pass the Legislative Council, which is sitting on 29 Feb, and receive Royal Assent — but the Bill is available here.

It will amend the Evidence (Miscellaneous Provisions) Act 1958, inserting two new sections.

Section 165 attempts to remedy the problems created with affidavits that weren't sworn.

165 Validation of certain acts and documents

(1) If an affidavit signed before 12 November 2011 by a person and by a person duly authorised to administer oaths contains words indicating that the first person states that the affidavit is made on oath or affirmation—

(a) it is not, and was not at any time, necessary that—

(i) the oath or affirmation be made orally; or

(ii) the first person signed the affidavit in the presence of the person duly authorised to administer oaths; or

(iii) the person duly authorised to administer oaths signed the affidavit in the presence of the first person; or

(iv) if the first person signed the affidavit in the presence of a person duly authorised to administer oaths, the person so authorised observed the person signing the affidavit; or

(v) the affidavit contained the statement required by section 126; and

(b) the words indicating that the first person states that the affidavit was made on oath or affirmation are and are taken always to have been effective by way of oath or affirmation even if anything referred to in paragraph (a)(i) to (v) was not done or did not occur.

(2) A warrant, an order, a summons or other process issued or made by a court or a judicial officer in reliance, directly or indirectly, on an affidavit referred to in subsection (1) is not invalid only by reason of the fact that, but for subsection (1), the affidavit would not have been duly sworn or affirmed.

(3) For the purposes of the prosecution of an alleged offence, the fact that, but for subsection (1), an affidavit would not have been duly sworn or affirmed is to be disregarded in determining whether evidence obtained in reliance, directly or indirectly, on that affidavit ought to be admitted.

(4) Subject to subsection (3), this section does not limit a discretion of a court—

(a) to exclude evidence in a criminal proceeding; or

(b) to stay a criminal proceeding in the interests of justice.

(5) This section does not affect the rights of the parties in—

(a) the proceedings known as Director of Public Prosecutions (Vic.) v. Marijancevic (No. 264 of 2011), Director of Public Prosecutions (Vic.) v. Preece (No. 263 of 2011) and Director of Public Prosecutions (Vic.) v. Preece (No. 265 of 2011) in the Supreme Court of Victoria, Court of Appeal; or

(b) any other proceeding in which a court, before the day on which the Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 receives the Royal Assent, has made a ruling on the validity of—

(i) an affidavit referred to in subsection (1); or
(ii) a warrant, an order, a summons or a process issued or made in reliance, directly or indirectly, on an affidavit referred to in subsection (1); or

(c) any other proceeding in which a court, before the day on which the Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 receives the Royal Assent, has made a ruling on the admissibility of evidence obtained under a warrant, an order, a summons or other process issued or made in reliance, directly or indirectly, on an affidavit that, but for subsection (1), would not have been duly sworn or affirmed.

(6) In this section affidavit includes a document purporting to be an affidavit.

This section seems to cover everything that might make an affidavit deficient, aside from the mention of the absence of the use of a holy book for swearing an affidavit. Section 103 of the Evidence (Miscellaneous Provisions) Act 1958 provides that there is no need to actually use a religious text when making on oath. (Or to even have any religious beliefs!)

Section 126B creates an offence for purportedly swearing an affidavit.

126B Miscellaneous False or misleading statement as to swearing etc. of affidavit

(1) Subject to subsection (2), a person must not make a false or misleading statement as to—

(a) the circumstances in which an affidavit or a document purporting to be an affidavit was sworn or affirmed; or

(b) whether or not an affidavit or a document purporting to be an affidavit was sworn or affirmed—

knowing that the statement is false or misleading.

Penalty: 10 penalty units.

(2) This section applies—

(a) only in relation to a statement made on or after the commencement of section 4 of the Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012; and

(b) whether the affidavit or the document purporting to be an affidavit was sworn or affirmed before, on or after that commencement.

Oral evidence on sentencing

Witnesses give evidence on oath in sentencing hearings quite commonly in the higher courts. It virtually never happens in the Magistrates' Court.

One reason for this (it might be suggested) is the time constraints of the summary jurisdiction. I don't think that's why. Magistrates often go to great lengths to learn more about an offender when deciding their sentence. More likely the reason it's rarely done is because it's rarely done; what was a habit has now become a tradition, verging on a rule.

(Another reason might be that with the lower number of cases and more serious offending involved in the higher courts, the prosecution is more prepared to challenge assertions favourable to an offender.)

It's true that preparing a witness to give evidence is time-consuming, and sometimes difficult. But oral evidence can frequently be more effective than even the most well-crafted written reference. It's the human touch.

Nonetheless, it’s usual — especially in summary courts — for assertions by an accused to be received without insistence on formal proof.

Authority for this practice is found in R v Storey [1998] 1 VR 359 at 371 – 2:

We have spoken of ‘proof’. Ordinarily, much of what is relied on in sentencing is not the subject of evidence given on the plea. Judges have always relied heavily on what is asserted from the bar table and we see no reason why that practice should not continue. We are not to be taken as suggesting any departure from current practices on sentencing hearings. As we have said, judges can, and commonly do, act in such hearings on matters that are not proved by evidence that would be admissible at trial. There will, however, be cases, we venture to suggest relatively few cases, in which there will be significant disputes of fact that can be resolved only by the ca11ing of appropriate evidence. But that is to stop well short of adopting the procedure by way of so-called ‘Newton hearing’ that has been adopted in England and Wales. The procedures for hearing pleas in this State have not been shown to be wanting, and while we readily accept that “Nothing gives a bigger sense of injustice to a convicted man than false statements being made about him after the verdict” we do not accept that present procedures are deficient in this respect: R v Storey [1998] 1 VR 359 at 371 – 2.

So, what happens in those cases when there are disputes of fact at sentence?

It was settled in R v Storey, and is now given statutory force at s 141 of the Evidence Act 2008, that the standard of proof for an accused in a criminal hearing (including on a plea, if the rules of evidence have been imposed) is on the balance of probabilities.

When the prosecution objects to or disputes assertions favourable to the accused, they need to be proved by admissible evidence.

What I have said is not to deny that the sentencing judge should be fully informed, or that desirable practices as they have developed should not continue. In practice sentencing proceedings are conducted with a degree of informality. Unnecessary insistence on the strict rules of evidence is in no one's interests in sentencing proceedings, and the customary co-operation between the Crown and the offender and making of admissions by the offender should so far as possible be insisted upon. But if there is good reason for objection to evidence in sentencing proceedings the objection when taken must be resolved and, apart from statute, must be resolved by application of the rules of evidence. In the absence of a direction pursuant to s 4 of the Evidence Act, the law of evidence unaffected by that Act applies: Bourchas (2002) 133 A Crim R 413 at [61].

The typical formulation of this is that when a sentencer proposes to take into account matters favourable to an offender, those matters need only be proved on the balance of probabilities; when the sentencer wishes to take in account matters adverse to the offender, they need be proved beyond reasonable doubt.

But the court is not bound to accept the view of events most favourable to the accused unless they can be disproven by the prosecution. For example, in a drug conspiracy case it was put at the sentence hearing that the offenders had abandoned their conspiracy, based on answers in their record of interview. The Victorian Court of Appeal gave that submission short shrift.

If the applicants had been serious in their contention that the project had been abandoned they could have given sworn evidence to that effect before the sentencing judge. It is remarkable how seldom accused persons are prepared to go into the witness box to lend verisimilitude to the sometimes bald and unconvincing assertions which counsel make on their behalf: R v Raptis, Lilimbakis and Sinclair (1988) 36 A Crim R 362 at 366 per Young CJ, O'Bryan and Tadgell JJ.

A lawyer is, on occasion, given instructions that strain credulity. One wonders if those instructions would be pressed so firmly by the client if it was the client, and not their advocate, who would have to explain their story to the court. But then, that's the raison d'être for advocates: to act as a buffer between their client and the Bench, and to articulate those matters the client might not be able to adequately articulate themself.

But it's not all one way. Occasionally, prosecutors will insist that a Prosecution Opening (or in the Magistrates' Court, the police summary) represents the One True Version of the Truth, and that if the offender wants to put anything different, they must give or call evidence.

This occurred in Ashton v The Queen [2010] VSCA 329 at [12] – [23]. Counsel for the offender told the Court the offender disputed one of the facts contained in the Prosecution Opening. She submitted that if the disputed fact were accepted it was an aggravating feature, and hence for the prosecution to prove beyond a reasonable doubt.

The sentencing judge said ‘... if you want to assert something that is to the benefit of your client apparently and is inconsistent with the Crown case you are going to have to call evidence on it’ (quoted at [13] of the judgment).

After further discussion, the prosecutor stated the Crown intended to proceed on the Opening provided, and submitted that the offender ought to give evidence if he wanted to put anything different.

On appeal, the Court of Appeal held this was not the proper way to use a Prosecution Opening.

[20] ...The critical issue is that the judge accepted the disputed fact as established, and relied on the fact as a matter adverse to the appellant. The difficulty is that, as counsel made plain from the outset, the fact was disputed. In those circumstances, if the Crown wished to persist with that allegation of fact, it was for the Crown to call evidence sufficient to satisfy the sentencing judge of the fact beyond reasonable doubt.

[21] ...

[22] ...In my view, the judge erred by approaching the matter in that way. The starting point is that, as conventionally occurs, the Crown opening constitutes an agreed factual basis upon which a judge passes sentence: R v LJF [2009] VSCA 134 at [3]. However, in this case a fact in the opening being disputed, it was for the Crown to call the victims to give evidence in substantiation of the fact, which effectively meant providing the appellant’s counsel with the opportunity to cross-examine them. By taking the course that he did, the judge denied the appellant that opportunity, and acted upon facts that were not before him.

Offending on bail

Section 16(3C) of the Sentencing Act 1991 creates a presumption that imprisonment imposed for offences committed on bail will be served cumulatively, unless the sentencing court directs otherwise.

The Full Court (McInerey and Crockett JJ, Gillard J agreeing) said in R v Gray [1977] VicRp 27; [1977] VR 225:

As to the circumstance that offences were committed whilst the applicant was on bail, it is, we think, permissible for a sentencing judge to take this into account at least to the extent of assessing the prospects of the applicant's reformation. The circumstance that an applicant has committed offences while on bail is, of course, a circumstance justifying a court in making an order for revocation of that bail--see R v Hill, [1967] VicRp 59; [1967] VR 556. Bail is granted on the supposition that the applicant will answer to his bail and is most certainly not granted to enable the offender to commit further offences whilst on bail. Indeed, it has often been said that the commission of offences whilst on bail is an abuse of the privilege of bail. Whether or not bail is to be regarded as a privilege or as a right need not here be determined, though the weight of history is, we consider, in favour of the first view. The real point is that the commission of offences whilst on bail indicates contempt for or disregard of the system of law under which bail was granted to the offender; it suggests that the offender has small regard for the law and little intention of obeying its commands.

Furthermore, it may be said that the person who commits an offence on bail has abused or betrayed the confidence reposed in him by the tribunal which granted him bail. The fact that a crime has involved a breach of confidence or trust, e.g. by a solicitor or bank manager or member of the police force, has always been regarded as a matter relevant to the question of sentence--cp. R v Wright (No.2), [1968] VicRp 17; [1968] VR 174, at p. 181. Prima facie the quantum of sentence is dependent on the circumstances of the commission of the crime and its immediate consequences, and should not be increased by reference to events occurring after the offence has been committed. But just as conduct subsequent to the commission of the offence which indicates a clear intention to reform is a matter which the offender is entitled to have taken into account in his favour, so also conduct tending in the other direction, i.e. showing that the offender is unlikely to reform, or has at least not yet reformed, is a matter relevant to the sentencing discretion, if or in so far as it suggests that to extend clemency would serve no useful purpose or that leniency likely to be abused.

It follows, we consider, that the sentencing judge was entitled to take into account the fact that all the offences except those the subject of counts 1 and 2 were committed whilst the applicant was on bail or on probation. What weight the sentencing judge was to assign to that circumstance was a matter for him. But whether he was entitled to increase the sentence which he would otherwise have awarded by reference to the circumstance that the applicant was on probation or on bail is a matter which we find unnecessary to decide on this application. It must not be overlooked that breach of a recognizance for bail exposes the accused to proceedings under s5 of the Crown Proceedings Act 1958 (as amended by Acts Nos.7900 and 8124) with the possibility of imprisonment if the amount of the recognizance be not paid--cp. Re Baker, [1971] VicRp 87; [1971] VR 717; Re Condon, [1973] VicRp 40; [1973] VR 427. However, it must be borne in mind that such consequences follow not from commission of an offence whilst on bail but from the failure to answer to bail.

I'd always assumed that the mere fact that the offender was on bail at the time of offending is not an aggravating feature itself; rather it's a matter to be considered when looking at other factors particular to the offender such as remorse, prospects for rehabilitation and so on.

The Judicial College's Sentencing Manual points to a case of Basso & Frazzetto (1999) 108 A Crim R 392 that says otherwise.

In that case Chernov JA said (Batt and Charles JJA agreeing) at 21:

The approach by this Court, albeit often unstated in terms, has been to regard the commission of an offence whilst the offender is on bail as an aggravating factor. In R. v. Storey [1998] 1 V.R.359, for example, this Court considered, inter alia, the issues of the onus and standard of proof in sentencing. Winneke, P., Brooking and Hayne, JJ.A. and Southwell, A.J.A. recognised, at 365, that the fact that the offence was committed whilst the offender was on bail, could be described as a "circumstance of the offender". At 366, however, their Honours rejected the utility of drawing a distinction between circumstances of the offender and those of the offence as a basis for "recognising proof of facts which bear upon sentence". A relevant distinction, they said at 369, was between circumstances adverse to the offender (aggravating factors) and circumstances in favour of the offender (mitigating factors). It would follow that since the fact of the commission of an offence during the period of bail is against the interests of the offender for sentencing purposes, it is to be treated as an aggravating factor.

The quality of your argument is not improved by its duration

We haven't done a post about oral advocacy for a while.

It's a shame, because advocacy is - or should be - an essential part of legal practice, in one form or another. I guess it's hard (nay, impossible) to say something about it that hasn't already been said. By someone else. Better.

So, putting aside any expectation of being fresh and original, here's a reminder of the importance of keeping things brief.

The Elucubrator pointed to a number of well known speeches as examples of effective advocacy in one of our earlier posts. John F. Kennedy was one example given:

ask not what your country can do for you;
ask what you can do for your country.

That post was about syntax, but what struck me about each example was how the speaker kept the point they were trying to make short and simple. This was reinforced for me recently when I stumbled across the Wiki fact that Kennedy's inaugural address (probably the most famous inaugural in presidential history) was the fourth shortest in history, running for less than 14 minutes.

(And for those curious, the longest was an hour-and-forty-five-minute speech delivered by William Henry Harrison in a blizzard in 1841. He died of pnuemonia a month later, which might explain why later presidents have kept things shorter).

It's well known that Lincoln's Gettysburg Address was spoken in just over two minutes. Martin Luther King's I have a dream speech on the steps of the Lincoln Memorial in 1963 was 17-minutes long.

If you have a point worth making, it's rarely worth surrounding with many others that aren't.

VRs and VLRs easier to find

AustLII have revamped their site over the hiatus, with changes big and small.

One new feature I've noticed to Victorian Law Resources is new tabs for the Victorian Law Reports (1875 - 1956) and Victorian Reports (1953 - 1996).

They don't have the headnotes but it's still useful to have these report series arranged in their original order. The VLRs are presented in searchable text format.

DPP v Novakovic: new drink-drive appeal?

Down at Geelong on Friday I heard about a new case that seems likely to head to the Supreme Court: DPP v Novakovic. Apparently it's listed before the Supreme Court on 16 February 2012 to set down the questions of law, and timetable for filing materials before it is set for hearing.

As I understand it (based on a short precis from my source) it concerns a motorist required to accompany the police to a police station and remain for a blood test, based on a requirement under s 55(9A). Apparently, the dismissed charge described an offence of refusing a blood test, rather than refusing a requirement to accompany or remain.

It seems the prosecution relied on Uren v Neale (2009) 196 A Crim R 415, particularly at [124]. (See our post about that case here.)

In relation to charge one, when one looks at the whole of the evidence and the context in which the initial statement was made by Ms Neale I think it is clear, beyond argument, that Mr Uren must have understood that he was being required to provide a blood sample. He had done his best, the Magistrate appears to have concluded, to avoid giving a breath sample. The provision of a blood sample was the next logical step well known to most members of the community. The words uttered by Ms Neale, in the light of the aborted breath test, must have alerted Mr Uren to that fact that the next step was for the police to seek a blood sample, and further that this was the requirement being made of him. Common sense would have told him this as well. His initial answer, I readily infer, (despite the conflated nature of Ms Neale’s requirement), was given on the basis that he understood that there was a requirement that he provide a blood sample. In my view he knew that he was required to take a blood sample and he refused.

In that case, the Supreme Court held that the offence of refusing a blood test was made out when the evidence was Uren was asked to remain for the purpose of a blood test. The offence of refusing to remain was not established, because the police had not told him how long he had to remain. (Affirmed in DPP v Piscopo (2011) 59 MVR 200.)

I guess the debate will centre around that finding in Uren v Neale — and, perhaps, if it's correct that courts can presume most members of the community know that blood tests follow breath-test attempts or infer that in some circumstances? — and the requirement for a s 49(1)(e) charge to identify the particular requirement relied upon under s 55: DPP v Kypri (2011) 207 A Crim R 566 at [12]; DPP v Greelish (2002) 4 VR 220 at [12] – [16], [25].

Stay tuned...

DPP v Serbest [2012] VSC 35: choice to refuse is no defence

DPP v Serbest [2012] VSC 35 is the latest drink-driving appeal dealing with an offence of refusing to accompany police for a breath test, contrary to Road Safety Act s 49(1)(e).

Serbest considered if the police need to formally require a motorist to accompany them, and if the motorist needs to understand they arerequired to accompany the police. It was the third and last of several appeals resulting in adjournments for other prosecutions. The other two were Kypri, and Piscopo (with Rukandin).

The Court of Appeal decision in DPP v Kypri (2011) 207 A Crim R 566 largely dealt with the need to identify the relevant requirement made under s 55 in a charge contrary to s 49(1)(e). (See our post here.)

And in DPP v Piscopo (2011) 59 MVR 200 and DPP v Rukandin (2011) 59 MVR 222 (discussed in our post here), the Court of Appeal decided that a requirement to accompany and a requirement to remain are distinct and separate requirements under s 55. Only a requirement to remain must specify the purpose and duration of that requirement, and that will only occur when a motorist is at the place where they should remain — typically, a police station or booze-bus.

The facts

At 3:40 AM on 6 December 2009, Constable Michael Howard and Sergeant Bell stopped Erhan Serbest as he drove along the Nepean Highway at Moorabin. He took a preliminary breath test. It showed he had alcohol in his system. Constable Howard spoke with Mr Serbest (at [4]):

THE ACCUSED: ‘Am I over?’

THE INFORMANT: ‘The test indicates your breath contains alcohol.’

THE ACCUSED: ‘What police station?’

THE INFORMANT: ‘Moorabbin Police Station’, and he motioned up the road.

THE ACCUSED: ‘Do I have to?’

THE INFORMANT: ‘You are not under arrest but the decision is yours. There is important information I need to give to you if you don’t.’

THE ACCUSED: ‘I don’t want to.’

THE INFORMANT: ‘If you fail to accompany me for a breath test you will commit an offence which if you are found guilty carries a fine and imprisonment and two years loss of licence.’

THE ACCUSED: ‘No I don’t want to.’

Constable Howard then read from proforma notes, which the Supreme Court observed at [5], "set out what must be said to a person who has failed a preliminary breath test, and how a request to accompany the police officer to the police station must be worded." Unfortunately, those words aren't contained in the judgment, so it's not very helpful when determining why those words turned out to be okay.

At the appeal, the DPP argued it was at this stage that the offence of refusing to accompany the police was complete.

The police went back to their car to check Serbest's licence. He walked over and spoke with them, and they told him — incorrectly, as it later turned out — that his licence was suspended and so his permissible alcohol concentration was .00. This conversation was recorded, and showed that Serbest refused to attend the police station because he was told he couldn't have any alcohol in his system.

Serbest testified that he didn't remember being told the consequences of refusing to accompany the police. He said:

They gave me a choice, it’s up to you. I didn’t think I had to do it if I didn’t blow over. I asked if I have to I’ll go, I thought it was relating to my licence suspension.

The Magistrate held that the prosecution must prove that the accused understood he had to accompany, and the potential consequences of non-compliance, at [13] – [14]. The accused thought he had a choice, and so chose not to accompany the police. Because he was not required — in the sense of obliged, compelled or mandated — to accompany the police, the Magistrate dismissed the charge.

The appeal

Mr Serbest didn't attend the appeal, so the only submissions were from the DPP.

The Court reviewed most of the main authorities in this area, noting that in DPP v Foster (1999) 2 VR 643 at [29] the Winneke P noted police powers under s 55 are facilitative not obligatory. And in Sanzaro v County Court of Victoria (2004) 42 MVR 279 at [11], the Court held that a demand wasn't necessary; a request would suffice; and all that was needed was for the intent of the police and the obligation on the motorist to be clear.

In Serbest at [35], the Court identified the Magistrate's error in holding the prosecution had to prove Serbest understood he had to accompany the police. In fact, he had a choice, even if it was one of the caught-between-a-rock-and-a-hard-place kind.

As the officer told the accused, he had a choice. That is, there was no compulsion on him to comply with the requirement of the police officer to accompany him to the police station. Obviously, there were consequences and, indeed, serious consequences if the accused failed to comply with the requirement of the police officer. The accused was clearly told of these consequences. The learned Magistrate proceeded on the assumption that the police were required to prove that the accused understood that he had to go to the police station. That is made clear when she says, ‘The informant has asked the accused but has then not expressed to him that it is a requirement that he accompany’.

The driver's subjective state of mind about whether they must accompany the police is not relevant.

Comments

I'm surprised that DPP v Vaa (2005) 42 MVR 511 wasn't mentioned in this case. That dealt with a refuse PBT charge contrary to s 49(1)(c), and held the prosecution didn't need to prove the driver was aware of the consequences of a refusal. Though it dealt with a different offence section, the reasoning there seems to have some relevance in this case. (Coincidentally, that case too came from Dandenong Magistrates' Court.)

It's not clear from the judgment when in fact the offence was complete. Was it after the first conversation, or the second? Even if it was the second, it probably didn't matter if Serbest thought he could have some alcohol in his system: once there was a requirement in the terms described in Sanzaro, and Serbest understood that much, the offence was complete if he didn't comply with the requirement.

But there might then also have been a possibility of raising a defence like that in DPP v Moore (2003) 6 VR 430, where the police dissuaded the driver from taking a blood test that would confirm or cast doubt on a breath test, and so the court had discretion to exclude evidence of the breath test. Though the bow would have been a bit longer in this case, the police view about the prescribed concentration of alcohol might have had some bearing on this.

The case was remitted to Dandenong Magistrates' Court for determination according to law.

The definition of injury

The definition of injury provided at s 15 of the Crimes Act 1958 reads,

injury includes unconsciousness, hysteria, pain and any substantial impairment of bodily function;

It's an inclusive definition. We know that those things referred to are injuries, but we don't know what isn't. Is giving someone a disease (other than one referred to in s 19A) an injury? Maybe. Is a mental illness? I don't know. There is no requirement that an injury be construed ejustem generis with the statutory list.

The meaning of serious injury at s 15 is equally vague.

serious injury includes-

(a) a combination of injuries; and

(b) the destruction, other than in the course of a medical procedure, of the foetus of a pregnant woman, whether or not the woman suffers any other harm;

Reference to the old statute books (and interstate and overseas authorities) about the division of assaults into felonies and misdemeanours, bodily and grievous bodily harm, etc. may be of some assistance. Probably not. The Court said in R v Rhodes (1984) 14 A Crim R 124 [Brooking J at 12, Young CJ and Crockett J in agreement]:

Once the jury has been given the usual short definition of grievous bodily harm, it is not the practice, and would indeed be unwise (Director of Public Prosecutions v Smith [1961] AC 290 at p.335) to attempt a more elaborate exposition of the meaning of that phrase. The law gives only very general assistance to juries in this regard. While some injuries are manifestly too slight and some injuries clearly sufficient to answer the legal test, there remains an infinite variety of situations in which a jury might reasonably take either view. R v Weeding is, in this respect, no more than a judgment on its own facts. The question is one of fact and no principle of law emerges from Weeding that can be used as a fetter in later cases, other than the obvious principle that a finding of fact cannot stand where there is insufficient evidence to support it.

In R v Welsh and Flynn (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, 16/10/1987, Crockett, King and Tadgell JJ) the Court said, [Crockett J at 10, the other learned judges agreeing],

There is no exclusive definition of the word "serious" in the Act. It was left to the jury to determine as a matter of fact what injury or injuries in combination might properly be categorised as being serious having regard to the fact that the word "serious" is an ordinary English word, the meaning of which must be taken as well understood by the members of the jury. This accordingly required that it be left to the jury to determine as a fact whether the injuries as it found them to have been should have been properly treated as "serious" injuries.

There must, of course, be a stage in which it would be impossible having regard to the ordinary meaning to be given to the word, for any tribunal of fact to find that an injury proved to have occurred could be classified as serious. If the stage were reached where it could not be so categorised then, of course, there would be insufficient evidence for the jury to make a finding of an injury as being serious in such an instance. In that case, it would be for the Judge to remove the matter from the jury's consideration.

And later,

A determination whether a given injury or series of injuries can be categorised as 'serious injuries' in terms of s 16 of the Crimes Act will no doubt involve a value judgment. That judgment will in turn involve comparison between the injury or injuries in question alleged to be serious and an injury or injuries which would, according to ordinary human experience, be commonly regarded as slight, superficial or trifling and therefore falling short of being 'serious injury'.

School days 2012

The relevant gazette for 2012 is Government Gazette S 393, published on 2 December 2011. It contains a table of the declared school days for the coming year:

School Days Period 1 = 30 January 2012 to 30 March 2012
School Days Period 2 = 16 April 2012 to 29 June 2012
School Days Period 3 = 16 July 2012 to 21 September 2012
School Days Period 4 = 18 October 2012 to 21 December 2012

These days are school days unless there is local signage that says otherwise.

This information has been added to the TABLE menu on the right.

Judicial College's CCO info

The Judicial College has produced an information package about Community Correction Orders.

Chapter 14 of the Sentencing Manual explains the new regime. Their summary of the changes is here.

They've also got a quiz, divided into parts A and B.

Edit: The Sentencing Advisory Council's take on the changes can be found here.

Many happy returns

Welcome one and all for another year.

While we've been gone Novak Djokovic strode away with another piece of silverware. Community Correction Orders were introduced. Sydney suburbs were peppered with gang bullets. And sadly, Magistrate Maurie Gurvich passed away. We belatedly pay our respects to the memory of a conscientious and dedicated judicial character.

We've taken the opportunity to recharge our batteries and clean the coffee machine. Some bugs that have been bothering us about this site have been removed - but, rest assured, we didn't get to them all, or even most.

It's good to be back.