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Tuesday, 28 February 2012

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.

6 comments:

Jeremy Gans said...

The Bill's just passed the Legislative Council, so the 'fix' is now a Royal Assent away. Interestingly, although Mokbel has reportedly just lost his guilty plea application, the fact that Whelan ruled on the validity of the affidavits in his case before the Royal Assent means that the Bill will never apply to his prosecution (i.e. in the event that he appeals the refusal): see s165(5)(b)(i). Nice of Whelan to help out an ill man in that way!

But as for the other 6000 cases that might be affected, I am not sure the 'fix' is perfect. The drafters of the Bill made a very strange decision: to commence the new s. 165 on 12 November 2011 (see s. 2(2)). That's a very weird thing to do if your intention is to fix a problem that occurred from 1989 or so. Absent any transitional provision or language, orthodox statutory interpretation (i.e. against retrospective operation) would confine the operation of new section 165 to events after 12/11/11.

Now, that isn't a problem for s165(1), which changes the ground rules for affidavits. That sub-section is full of transitional language making it clear that the change in ground rules extends into the past all the way to the Big Bang. But s165(2), which purports to validate warrants and the like made on the basis of dud affidavits, has no transitional language (such as 'whether made before commencement or after'). So, an orthodox reading is that it only validates warrants 'issued or made by a court or a judicial officer' after the commencement on 12/11/11. That means that the s165(2) only provide post-12/11/11 protection from pre 12/11/11 warrants. That's presumably not what the drafters intended. Perhaps s35(a) of the Interpretation of Legislation Act will save the day, but the HCA ruled in Lacey that these sorts of provisions can't trump common law presumptions.

The limited effect of s165(2) doesn't necessarily mean that the Bill has no effect on pre-12/11/11 warrants. Section 165(1), by retrospectively changing the ground rules for all pre 12/1/11 warrants may have the effect of validating those warrants on its own. But that depends on whether the changed ground rules has effect in court processes (including warrant granting) prior to commencement of s165(1). Again, an orthodox reading is that the changed reality only applies in post-12/11/11 court proceedings, so warrants invalidly issued before 12/11/11 remain invalid.

The Bill still probably avoids a lot of problems caused by pre-12/11/11 warrants, because it clearly applies in court proceedings after 12/11/11 (including, expressly, in admissibility hearings after today or whenever the Bill gets Royal Assent.) So, it may well be difficult from now on to prove to a court that a warrant was invalid due to a (then) dodgy pre-12/11/11 affidavit, as sections 165(1) and 165(3) now require future courts to pretend that the affidavit was never dodgy. Maybe that's good enough to achieve the Bill's purposes, but it is difficult, indirect and smacks of forcing the courts to participate in a legal fiction (which is an especially bad idea when there's talk of a Kable challenge.) Expressly providing that the s165(2) warrant validation provision applies to past warrants, etc, or commencing it from 1989, would have been much more sensible.

Jeremy Gans said...

Sorry, in the third para of my comment, ' post-12/11/11 protection from pre 12/11/11 warrants' should have been 'post-12/11/11 protection from (dodgy) pre-12/11/11 affidavits'.

Jeremy Gans said...

Well, that's confusing. I did a lengthy comment, which the above comment is a slight correction to. Where is it? Maybe it was too long...

Jeremy Gans said...

Oh well, too long for me to retype anyway. The short of it: there ought to be a further provision stating that s165(2) applies to all warrants, etc, whether they were 'issued or made by a court or judicial officer' before or after the commencement of s165.

Elucubrator said...

Sorry Jeremy: Google's spam-trap got a bit over enthusiastic. Oh the irony that one of our most prolific commentators is treated so!

Should be sorted now.

Royal Assent granted yesterday, in Gazette S58.

thealtogether_thealtogether said...

our nation's political shenanigans I do declare, surpathest all understanding.