Thursday, 31 May 2012

Chief Magistrate calls for review of police prosecutors

The Age reported two days ago that Chief Magistrate Ian Gray suggested reviewing police acting as prosecutors in the Magistrates' Court (and presumably also the Children's Court). Assuming he was quoted accurately, what the Chief Magistrate said was genuine independence from investigating police was a problem, and also that police aren't trained or resource adequately to deliver the service required by the Court.

The next day the Police Association responded that the Chief Magistrate should apologise.

This is an issue that crops up every so often, and for similar reasons to the Chief Magistrates', we've seen the introduction of the independent CPS in the UK, and more recently, DPPs in Australia. Victoria led the charge in that regard, under then Attorney-General Jim Kennan. Former DPP Jeremy Rapke QC provides some of this history here.

As recently as the late 90s AIC conferences discussed why it is we ended up with police prosecuting, and whether they should continue to prosecute: check out Dr Chris Corn's paper Police summary prosecutions: the past, present and future and Tony Krone's Police and prosecution.

(I should make clear at this stage, I'm an ex-police prosecutor and so of course that influences my views about the topic.)

A couple of quick observations I think that are worth making: IMHO, it's important to not reduce the discussion to a simple assertion that people with law degrees are going to do the job better and people without are going to struggle. As a broad proposition, there's some merit to that, but it hasn't always been the only pathway to legal practice, and even today, law graduates require further practical legal training before they are admitted to practice (and even then, we all embark on a lifetime of learning and improving). Plus, the harsh truth is that while there are some eye-wateringly über-smart lawyers around, there are also some whom you wouldn't send down the road to buy a pie. The same can be said of some police — and can be said about some people in nearly any occupation — but the point is that a law degree alone is not automatically a guarantee of quality. (If that were the sole determiner, then the obvious solution would be to require them to obtain a law degree. I should add there are quite a few police prosecutors with law degrees or studying law, and a handful who are also admitted to practice.)

What a law degree does provide is a base level of knowledge and skill that should equip a person to operate in the legal system. But that can be gained in other ways — and the Chief Magistrate noted that, saying nothing is wrong with police prosecutors individually.

In fact, if you speak with judicial officers at some venues, they're very happy with the service they get from their police prosecutors. Unsurprisingly, that's mostly at venues where the prosecutors are relatively senior, and there's low turn-over. One thing that some folks in Victoria Police don't understand is that it takes a couple of years working in the courts to truly understand what you're doing, and, that it's a continual process. Everyone else in the legal industry understands there's a difference between a two-month advocate and a twenty-year advocate, and ideally, the police need to train and develop their prosecutors, and then retain them for as long as possible to get the best from them.

Independence and perception of independence is an important consideration. It's not always apparent from the outside, but the police prosecutors do provide some pretty robust advice to other police. So much so, that they're seen as troublemakers by some parts of the police force. Of course, that might not always happen, but I've seen, and heard of, cases where OPP staff decline to follow a course of action because they can't obtain the agreement of the informant, so again it's not automatic that prosecutors from another agency will solve all the problems that might exist now. The police prosecutions division has expressly adopted the OPP guidelines for prosecutions, though you might not know it because its Standing Instructions aren't available on the Victoria Police website. Something like appearing in suits rather than uniform would probably assist the perception of independence.

The perception of structural independence might take something more though. Perhaps a model similar to that in the Northern Territory, where police prosecutors fall under the direction of the OPP might be a solution? (In fact, the Chief Magistrate spent some time in the NT before returning to his current appointment in Victoria, and might have some insight into how well that system works.) I reckon that all of this is in fact symptomatic of a bigger issue about the independence of the police, and a clear view of whether they are 'merely' part of the executive and answerable to the government of the day, or if they have a responsibility independent of the government. Cast your mind back to the departure of the previous Chief Commissioner Simon Overland and the perception in some quarters of politicisation of the police force, and also have a look at the research papers on police-government relations commissioned as part of the Ipperwash Inquiry in Canada.

Last, adequate training and resourcing is obviously a legitimate concern of the Courts. I understand that the prosecutions division is having trouble attracting and retaining staff, partly because there are better financial benefits for operational police doing shift-work. The statistics bear out an increased case load in the Courts, and with the increase in police numbers, everyone expects that to continue. More cases will require more prosecutors, and as the range of charges that Magistrates' Courts can deal with continues to expand — such as common-law offences — they'll require more training and more expertise to deal with them. The OPP has the ability to brief the private bar when required, but the police don't presently have that flexibility, so they need to recruit, train and retain to cover all their work themselves. My guess is that if the Chief Magistrate is seeing systemic problems, either directly, or reported to him in sufficient numbers to be a concern — and the way I read his comments, that is what he's saying — then it suggests something's not quite right.

I don't think his comments are quite the cause for concern the Police Association expresses — note his suggestion of a "halfway house" where the police continue to prosecute but the processes are changed to better achieve structural independence — but it is clearly something that should be discussed. No doubt it won't be cheap for the OPP to take over the role of prosecuting nearly 100,000 cases across the state and establish the infrastructure to do that from Nhil to Swan Hill to Orbost, but the real question has to be if the current system can properly support the courts. I think it can, but what do you reckon?

I now declare thee road and highway: Clarence City Council v Howlin [2012] TASSC 26

Clarence City Council v Howlin [2012] TASSC 26 case caught my eye because it contains a detailed history of the common law about declaring highways. It was a case dealing with subdivision of land, affected by whether a road out the front of land was a highway or a mere carriageway.

I confess I was completely ignorant of the point, because I've only ever had to deal with it in the context of the relevant statutes here in Victoria: Road Safety Act 1986 s 3 (definitions of highway, road and road related area) and section 3(2)(a) (declaration of roads), and nowadays, Road Management Act 2004 s 11.

When I re-read those provisions, I see that the power to declare a road is discretionary, so that there could still well be a role for the common law about dedicating roads. Frankly, I expect nearly any criminal case we care to think about disputing "road" would be decided on a factual basis about whether or not the area was open to the public. But, it could possibly crop up in cases such as those involving roads not open to the public, like on Defence bases or other areas not open to the public. (I mention that example, because after many years pondering I'm still yet to figure out how civil police reckon they can book folks for speeding or driving when disqualified on defense bases, given they're not open to the general public. The Commonwealth Places (Application of Laws) Act 1970 (Cth) can apply either state Road Rules, or the Commonwealth version — National Transport Commission (Road Transport Legislation — Australian Road Rules) Regulations 2006 — can apply, but any way you look at it, road still has an "open to the public" element in the definition.)

Evans J set out the common law test for dedication of a road as a highway:

[10] Both dedication by the owner of land for its use as a highway and use by the public of that land as a highway must occur to create a highway otherwise than by statute, Cubitt v Lady Caroline Maxse (1873) LR 8 CP 704 at 714 and 715 and A-G v Biphosphated Guano Co (1879) 11 Ch D 327 at 340. An intention to dedicate a proposed highway may be insufficient in itself to constitute a dedication if the proposal is abandoned before the highway is built: Healey v Corporation of Batley (1875) LR 19 Eq 375 at 385 to 387 and Tottenham Urban Council v Rowley [1912] 2 Ch 633 at 642 and 643.

[11] It is convenient to go to the law as enunciated in Halsbury's Laws of England, 2nd ed, Vol 16, 1935 for relevant common law principles on the dedication of land as a highway. This edition of Halsbury was current in 1944. The following passages, with citations omitted, are taken from it:

"212 A 'highway' is a way over which all members of the public are entitled to pass and repass; and, conversely, every piece of land which is subject to such public right of passage is a highway or part of a highway. ...
258 Land dedicated by a person legally competent to do so to the public for the purposes of passage becomes a highway when accepted for such purposes by the public; but whether in any particular case there has been a dedication and acceptance is a question of fact and not of law.

259 Dedication necessarily presupposes an intention to dedicate – there must be animus dedicandi. The intention may be openly expressed in words or writing, but, as a rule, it is a matter of inference; and it is for a Court or jury to say whether such intention is to be inferred from the evidence as to the acts and behaviour of the landowner when viewed in the light of all the surrounding circumstances.

260 Acceptance by the public requires no formal act of adoption by any persons or authority, but is to be inferred from public user of the way in question. Even if an express intention to dedicate is proved, it is necessary to prove also that the way has been in fact thrown open to the public and used by them.

The evidence from which Courts or juries are asked to infer both dedication and acceptance is, as a rule, open and unobstructed user by the public for a substantial time.

261 An intention to dedicate land as a highway can only be inferred against a person who was at the material time in a position to make an effective dedication – that is, as a rule, a person who is absolute owner in fee simple and sui juris. When, however, a primâ facie case is proved of an intention to dedicate, express or implied, it lies upon the defendant to show that the state of the title to the land is or was such as to render any such intention inoperative.

271 [T]here is no fixed minimum period [of user] which must be proved in order to justify an inference of dedication, and no fixed maximum period which compels such an inference."

Declarations made under the Road Management Act 2004 aren't declarations for the purpose of the Road Safety Act 1986. I can find many gazette declarations under the former, but not the latter — mind you, that doesn't mean they're not there, just I can't readily find any — and that also might be a reason why the common law could come into play, perhaps say on new estates under construction and not yet officially opened to the public.

Tuesday, 29 May 2012

Grozdanov v The Queen [2012] VSCA 94: the meaning of cultivate

Cultivation is a term that is frequently used when referring to the growing of cannabis plants. In general terms, what amounts to cultivation is a question of fact for a jury. However, there is also the threshold question of whether an act or series of acts is capable of amounting to cultivation at law.

Section 70 of the Drugs, Poisons and Controlled Substances Act 1986 provides an inclusive definition:

cultivate, in relation to a narcotic plant includes—

(a) sow a seed of a narcotic plant; or

(b) plant, grow, tend, nurture or harvest a narcotic plant; or

(c) graft, divide or transplant a narcotic plant.

In Grozdanov v The Queen [2012] VSCA 94 the accused was charged with cultivating a commercial quantity of cannabis. It wasn't really possible to argue that the accused was unaware of the crop. Instead, the defence at trial was that the maintenance of the hydroponic system didn't amount to cultivation.

Neave JA [at 48, Mandie JA and Kyrou AJA agreeing] kept the definition wide, to be assessed case-by-case:

In my opinion, the ongoing maintenance of a hydroponic system which regularly delivers water and nutrients to a growing crop to foster its growth is not an activity associated with an activity listed in s 70, but comes within the words tend or nurture in paragraph (b) of the statutory definition (at least if done on a regular basis). Such an activity is analogous to manually watering a crop or putting nutrients on it. Accordingly, it is unnecessary to extend the meaning of ‘tend’ or ‘nurture’ to cover activities associated with tending or nurturing, in order to include the ongoing maintenance of the hydroponic system.

Because cultivation normally involves an activity which occurs frequently or regularly, one or two visits to premises to repair a hydroponic system would not necessarily amount to ‘cultivating’ a crop growing there, any more than turning on a tap on a hose on a single occasion, knowing that the hose was watering a cannabis crop, could amount to cultivating it. The appellant’s conviction did not require an extension of the definition in s 70 to cover activities associated with the listed activities.

For the purposes of this case, it is unnecessary to define the circumstances in which maintenance of a hydroponic system would fall within or outside the definition of cultivation in the sense of tending or nurturing a crop. As Buss JA said of the meaning of ‘harvest ‘ in the Western Australian Misuse of Drugs Act, whether an activity amounts to cultivation will depend on the facts and circumstances of the particular case.

The Court of Appeal decided that what the accused did could amount to cultivation. A further ground of the appeal argued that the trial judge had usurped the jury's function by effectively directing them that the maintenance of the hydroponic system did constitute cultivation, rather than could constitute cultivation. This ground was made out [at 74], and the conviction on those charges quashed.

Sunday, 27 May 2012

Brandishing the 'Sword of Damocles'

An offender who receives a suspended sentence imposed under s 27 of the Sentencing Act 1991 has to serve the sentence or part sentence held in suspense if he or she is ordered to do so under s 83AR.

Section 83AR(2) reads,

(2) Despite anything to the contrary in subsection (1), if the court finds the offender guilty as mentioned in that subsection it must exercise the power referred to in subsection (1)(a) unless it is of the opinion that it would be unjust to do so because exceptional circumstances have arisen since the order suspending the sentence was made.

When determining whether exceptional circumstances have been made out some magistrates adjourn the hearing back to be heard before the magistrate who suspended the sentence. While the original magistrate might theoretically be in a better position to assess whether new circumstances have arisen since the sentence was suspended, whether there is any real utility in this (given the sheer volume of sentences handed down in the summary jurisdiction) is open to debate.

Having a judicial officer deal with the same offender twice opens the door to another problem. In R v Stevens [1999] VSCA 173 it was advanced as a ground of the appeal that, because the judge who imposed the suspended sentence made comments about the likelihood of it being reimposed, the judge disabled himself from dealing properly with the breach proceeding.

Brooking JA at 7 [Charles and Buchanan JJA in agreement]:

I mention this ground, although it has been, I think, implicitly abandoned, in order to discourage the taking of points of this kind in the future. This is the passage complained of in the last ground:

HIS HONOUR: In effect what I am doing here is I am - through your counsel in effect you have made a promise to me that you will not breach the law in the next two years, and I am making a promise to you, and my promise to you is that if you break your promise I will keep my promise and I will send you to gaol for three months, because that is what you have got hanging over your head. The cell door is open, and if you want to go in it will be up to you; do you understand?

PRISONER: Yes, I do.

HIS HONOUR: And it will close behind you and you will be there for three months.

This is not the first time a warning given by a judge about the consequences of re-offending has been put forward by the offender as disqualifying the judge from dealing with the offender again, and I suppose it will not be the last. Courts have to be realistic. All experienced sentencing judges, when passing a lenient sentence which will be subject to reconsideration if the prisoner fails to do what is required, have had occasion to give a strong warning that leniency cannot be expected if advantage is not taken of the opportunity given. Even in the days of common law bonds, before statutory provisions began to take over the field, judges were telling offenders that they would be severely dealt with if they breached their bond. A carefully drawn admonition mirroring the words of some statute is likely to be less effective. We hope that harsh words will bring home to a prisoner the need to behave, but no reasonable person would say we have abjured the realm of discretion.

Moreover, the provision governing the matter here - s.31(5A) - was in force at the time of the original sentences and it imposes a regime under which the room for discretion is much reduced.

So much for ground 5, which is really an allegation of ostensible bias with regard to a judge who was not invited to disqualify himself.

Section 31(5A) has been repealed and replaced by Part 3C of the Act, but it's in similar terms.

Given the emphatic No on this occasion, it's not an appeal ground with much prospect of success, particularly where no application for disqualification was made.

Sunday, 20 May 2012

Mental illness over-represented?

Edit: The SAC did publish something on their website on 6th July about mental illness in sentencing appeals, but really it was just a one page overview with a link back to the Sentence Appeals in Victoria Statistical Research Report that it had released back in March.

It's possible that the information is in there in tabular form and I can't see it (the report is 154 pages) but a measure of the number of appeals premised on Verdins principles tells us nothing about how frequently the principles are relied on in mitigation at first instance.

This story in the Sunday Age had me looking around the Sentencing Advisory Council's website for information about mental illness and the number of cases it's a factor in.

Apparently some representatives of advocacy groups for people struggling with mental illness have taken exception to the suggestion that mental illness can be a motivating factor in the commission of crime.

I would like to know if anything statistically significant has changed since Verdins' case was decided and the ARC List introduced.

Surprisingly, I couldn't find anything specifically about mental health on the SAC site. (Perhaps it is there - or at the JCV - but I can't find it). There's no shortage of material (like this study by Smith and Trimboli on the BOCSAR website) in public circulation suggesting a strong correlation between mental health issues and repeated involvement with the justice system.

But it appears that little is collectively known about how many Victorian offenders assert that they have a mental illness on their plea, how often this is accepted, and what effect this is having on the sentence they receive.

I predict the SAC will shortly announce a reference into the issue.

BSJ v The Queen [2012] VSCA 93: the real possibility of concoction

Edit: The conflict between NSW and Victorian and Tasmanian law was brought into stark relief in KRI v The Queen [2012] VSCA 186, where Neave JA and King AJA said [at 39]:

In considering whether there was a miscarriage of justice because the evidence lacked significant probative value and thus should not have been admitted as tendency or coincidence evidence under ss 97 and 98 of the Evidence Act 2008, there is an apparent conflict between the approach by this Court in BSJ v The Queen on the one hand, and the view of a five judge bench of the New South Wales Court of Appeal in DSJ v The Queen and the Tasmanian Court of Criminal Appeal in J v Tasmania on the other.

This tension between interpretations of the UEA will continue, for now.

In BSJ v The Queen [2012] VSCA 93 the Court of Appeal considered the Evidence Act 2008's tendency and coincidence provisions in light of an appeal against conviction and sentence in an incest case. The grounds of appeal tested whether evidence should have been treated as cross-admissible, and whether jury directions were adequate.

One issue for particular consideration was whether the prosecution had to exclude the possibility of concoction between complainants before evidence should be cross-admitted. The Court found that there was not a real possibility that the complaints had been concocted, and implied that a real possibility of concoction means more than there was an opportunity for it to happen. The appeal was dismissed.

BSJ was tried and convicted of incest offences in the County Court. The victims were his four stepdaughters and the offences occurred between 2000 and 2008. His appeal against conviction was initially rejected, and he asked for it to be reconsidered by three judges at the time of his appeal against sentence. Several grounds of appeal were proposed.

The Possibility of Concoction

As part of the ground that argued error in allowing the complaints to be used cross-admissibly as coincidence evidence (there was more than one part to this ground; the rest is discussed further below), the appellant argued that the possibility of concoction between complainants had not been excluded.

The Crown initially took the position that the possibility of concoction between complainants (or contamination, as it was also referred to as) was not relevant to the probative value of the evidence. This stance is contrary to the Court’s interlocutory decision in PNJ v DPP 27 VR 146. In obiter remarks (it not being necessary to decide in light of a Crown concession), Maxwell P, Buchanan and Bongiorno JJA, said [at 26]:

After a review of the authorities, the trial judge concluded that he should consider ‘the real possibility of contamination’, in accordance with the recent decision of the New South Wales Court of Criminal Appeal in AE v R [2008] NSWCCA 52. The court there said:

If two or more persons make similar allegations about another in circumstances in which no possibility of joint concoction exists the allegations may possess significant probative value for the reasons that are explained in Hoch v The Queen ... . If the possibility of joint concoction cannot be excluded the evidence does not possess the same probative value since there exists another explanation for the circumstance that each complainant has made like allegations: Bell JA, Holme and Latham JJ at 44.

The written submission for the Crown filed on the application for leave to appeal sought to maintain the position adopted before the trial judge. In the course of discussion with the Court, however, senior counsel for the Crown accepted that the issue of contamination was relevant to the determination of probative value under s 98 EA and that, if the material before the judge disclosed a reasonable possibility of contamination, then that should be taken into account.

With respect, this concession was properly made. It is, in our view, not only appropriate but necessary for a judge to consider whether, on the material before the Court, there can be seen to be such a possibility. Whether and to what extent such a possibility affects the probative value of the evidence relied on will be a matter for the judge to decide. If necessary, a voir dire can be conducted, in order to assess whether the claim of contamination is well-founded.

What makes out a real possibility of concoction? Is this a finding that concoction has possibly occurred, or must the Crown exclude the possibility? Is it like a not far-fetched or fanciful real possibility? Does the existence of a real possibility of concoction rob evidence of all probative value, or only some of it?

The Court of Appeal in BSJ v The Queen avoided the creation of a definitive rule. Sometimes the possibility of concoction (or contamination, as it has also been called) will need to be excluded in order for evidence to retain probative value, and at other times not.

Counsel for the Crown encouraged the Court to assume that the complaints were true when deciding the admissibility of the evidence, supported by authorities that hold that whether evidence should be accepted is a matter for the jury. But the Court rejected this submission. As the Court had earlier decided in PNJ, deciding whether the probative value of tendency and coincidence evidence is undermined by the possibility of concoction is an exception to the general rule, in that the task can properly be undertaken by a trial judge without usurping the function of a jury: Hoch v The Queen (1988) 165 CLR 292, at 302.

The Court did agree with the trial jusge that the evidence could be used cross-admissibly. It held that the exclusion of possibility of concoction didn't mean possible in the sense of 'could not have occurred'. Rather it seemed to interpret a real possibility as a scenario the court should not ignore (perhaps even rising to the level of an evidentiary foundation).

Maxwell P, Buchanan and Hansen JJA [at 26]:

Counsel for the appellant relied upon the decision of the New South Wales Court of Criminal Appeal in AE v R [2008] NSWCCA 52. There, the trial judge had found that there was no possibility of joint concoction by two sisters, who made similar allegations of sexual misconduct by the accused. The Court of Appeal held that the trial judge erred.

The Court said:

The complainants were sisters and were in contact with one another at the time each made her complaint.

Counsel for the respondent submitted that the prosecution had excluded any real possibility of concoction. We think that contention is correct. It was not put to any of the four complainants at the committal that there was any motive to concoct an allegation that the appellant had sexually abused any of them. There was no evidentiary foundation in the depositions for the proposition that any of the complainants had any reason or motive to concoct their allegations. Further, there was nothing in their contact with each other to suggest any such reason or motive. While a denial by a complainant of concoction of an allegation is not necessarily decisive, in the present case counsel for the appellant at trial did not seek to cross-examine any of the complainants on the voir dire with a view to establish that there was a real risk of concoction and, although counsel cross-examined the complainants at the trial as to the question of concoction, he did not raise again the question of cross-admissibility.

We do not consider that AE lays down a general rule that the possibility of concoction exists where the complainants are sisters who are in contact with each other when complaint has been made. The decision depended upon its own facts. In the present case, the trial judge conducted an inquiry into the possibility of concoction and was satisfied by an examination of the evidence of each of the complainants that the possibility had been excluded. Each complainant knew of complaints by her sister, but his Honour was satisfied that ‘they were not apprised of the detail of the complaints, nor did they discuss the detail of their evidence or read each others statements’. We can perceive no error in the trial judge’s approach or his conclusion.

The case of SPA v The Queen [2011] VSCA 306 from late last year (discussed here) didn't bag a mention, though it briefly touched on the same issue.

In R v Robertson (1997) 91 A Crim R 388 the Queensland Court of Appeal contrasted the real chance of concoction with a merely speculative chance.

The Variety of Circumstances

The conduct constituting the offences occurred at different times, in different places, and in a variety of circumstances. It is described in the necessary level of detail between paragraphs 4 and 14. Except for the fact that it was directed at his stepdaughters, was sexually explicit, and implied an interest by the appellant in using his position as stepfather for his own sexual gratification, the offending taken together could not really be said to bear the strikingly similar features often said to strengthen the argument in favour of admissibility (though not essential: NAM v R [2010] VSCA 95, Nettle JA at 26.)

When the evidence was ruled cross-admissible at trial, the jury was directed that evidence could only be used cross-admissibly if the jury found it had likeness to another event. The trial judge instructed the jury members [recounted at 32 of the Court of Appeal judgment]:

Let me illustrate with an example. [KMM] has given evidence that she was washed by the accused man from her early teenage years to at least one occasion when she was 23 or 24. There are similarities in this account with the accounts of the other three sisters, in terms of there being washing or bathing with the accused. However, [KMM] does not describe sexual contact during this washing or bathing so you would not reason that there was a similarity that went beyond the mere fact of washing.

On the other hand, [RMV] and [AAV] both describe sexual conduct in the form of having to wash the accused’s penis in the shower. And [VLV] describes penile penetration in the bath and attempted penetration.

The prosecution argues that there is a similarity in these accounts, in that the accused is using the pretext of bathing or washing to engage in sexual activity. You may use this evidence if you find the accounts are so similar that they cannot be explained by coincidence.

In such a situation you may infer that the only rational explanation for the similarities is that each of the witnesses is telling the truth.

The Court of Appeal (Maxwell P, Buchanan and Hansen JJA) was satisfied that these directions were adequate, and rejected the appeal ground that the directions impermissibly allowed the use of dissimilar events for a coincidence purpose.

The Probative Value v Prejudicial Effect

Tha appellant maintained on the appeal that the prejudicial effect of the evidence was not significantly outweighed by its probative value, and should have been excluded for that reason under s 101.

Maxwell P, Buchanan and Hansen JJA [at 34]:

Counsel for the appellant submitted that, with four sisters testifying that the appellant abused each of them over an extended period of time, there was a very real risk that individual jurors would reason that he must have sexually abused at least one of them and thus, despite directions to the contrary, would have engaged in reasoning that the appellant was the kind of person who was likely to have committed the conduct alleged by the Crown.

Again, the Court of Appeal concluded that the trial judge’s directions had been adequate to ensure that this was not the case.

The appellant had initially been refused leave to appeal the conviction, and had elected for his leave application to be determined by the Court of Appeal together with his sentence appeal. Both were dismissed.

Wednesday, 16 May 2012

Johnson v Buchanan [2012] VSC 195: dog bites man; dog not at fault

We don't get very many appellate decisions on dog bite cases, even though they are (unfortunately) relatively frequent in our Magistrates' Courts.

Johnson v Buchanan [2012] VSC 195 was a judicial review under O56 rather than appeal under Criminal Procedure Act s 272, after a magistrate found a dog owner not guilty of an offence when his dog bit a neighbour's arm. The accused dog owner successfully relied on the statutory defence of trespass under Domestic Animals Act 1994 s 29(9).

The informant applied to review the result on four bases:
  1. the victim was not a trespasser under s 29(9)
  2. if there was a trespass, it was not covered by the defence in that provision
  3. the trespass had not caused the injury
  4. the legislation should have been interpreted beneficially.

In a comprehensive, logical and thorough consideration of those points, Bell J concluded the magistrate was correct in his decision.

His Honour's analysis of trespass and its ordinary legal meaning is very detailed and helpful. He referred to a couple of old chestnut cases — Semayne's Case 5 Coke's Rep. 91a, 77 Eng. Rep. 194 and Entick v Carrington (1765) 2 Wils KB 275; 95 ER 807 — followed by a great many more recent ones, and affirmed the general principle that any entry into another person's property (including airspace) without consent is a trespass, even without any damage caused.

For good measure, His Honour also considered the doctrine of scienter — knowledge by an owner of an animal's propensity to be 'mischievous', a legal euphemism for 'likely to cause injury' — and if the dog's temperament was the cause of the injury, rather than the complainant's trespass. In this case, neither of those vitiated the magistrate's decision.

The application for judicial review was dismissed.

I'm sure this case will get a lot of attention, particularly from local councils. (It's hard to not feel some sympathy for them, because they bear the brunt of the law enforcement role under the Domestic Animals Act — especially since the government's push to ban American pitbull terriers — and often face criticism if they do act and if they don't act, even though they are not primarily law enforcement agencies. Mind you, they do occasionally make some strange decisions.) But I expect it will have even broader application, in any criminal case involving consideration of trespass.

Tuesday, 15 May 2012

Daley v Tasmania [2012] TASCCA 4: designer drug derivatives and analogues

Minor differences at microscopic level can produce substances very similar in effect to prohibited drugs of dependence, but that aren't specifically listed in any of the schedules of the Drugs, Poisons and Controlled Substances Act 1981. Provisions in various state and Commonwealth legislation prohibit these copycats so that their possession and sale is illegal even if a few molecules have been added or removed from a substance's chemical structure.

In Daley v Tasmania [2012] TASCCA 4 the Tasmanian Court of Criminal Appeal rejected the appellants' assertion that the term derivative should be interpreted narrowly. The chemical structure of 4-methylmethcathinone (or mephedrone) was held to be a derivative of methcathinone, even though the prosecution hadn't proved one substance had come from the other. This decision may have relevance to Victorian cases, where the inclusive definition of drug of dependence refers to derivatives, but not analogues as the Commonwealth legislation does.

Uncertainty over the classification of drugs according to their chemical composition is a recurring problem. It arose with the description of cannabis in Hardy v Gillette [1976] VicRp 36; [1976] VR 392, and with hallucinogens in McEwen v R (1998) 99 A Crim R 421 more recently.

In Daley v Tasmania [2012] TASCCA 4 the substance concerned was methcathinone, also known as meow meow. More about this substance, as well as a discussion of the interplay between relevant Victorian and Federal law, can be found in the Drug analogues post from last year.

3-D composition of 4-methyl-methcathinone
Source: Wikipedia

In Tasmania, the Misuse of Drugs Act 2001 (Tas) has a provision at cl 1(c) of Schedule 1 that reads (in part),

(c) a reference to a substance includes —

(i) that substance prepared from natural sources or artificially; and

(ii) every salt, active principle or derivative, including esters and ethers, and every salt of such an active principle or derivative; and

(iii) every alkaloid of the substance and every salt of such an alkaloid; and

(iv) except where the substance is levomethorphan or levorphanol, every stereo-isomer of the substance and every salt of the stereo-isomer; and

(v) a preparation or admixture containing any proportion of the substance.

The term derivative is not further defined there. The term also appears in our Drugs, Poisons and Controlled Substances Act 1981 (Vic) at s 4(d) and e(ii), broadening the definition of drug of dependence.

In Daley v Tasmania [2012] TASCCA 4, the appellants maintained at their trial and again on their appeal that the substance involved, 4-methylmethcathinone, was not a derivative of methcathinone. (The first chemical structure was not listed in the Schedule at the time of the alleged offence; the second was).

It was decided as a preliminary question that it was open to the jury to be satisfied that 4-methylmethcathinone was a derivative of methcathinone: Tasmania v Daley and Shipp [2011] TASSC 43.

Comparisons of chemical structure, reproduced from the judgment of Evans J in Tasmania v Daley and Shipp

Expert evidence was received on the voir dire from both parties about the technical meaning of the term derivative and the chemical composition of the two substances in question, as well as the relationships between other drugs contained in the schedule. It was agreed between experts that the term derivative in modern usage refers to a substance which is produced through a process from a pre-existing substance. An older usage (now commonly referred to as a structural analogue) is where a substance bears a resemblance to another, but is not necessarily the product of a chemical process. Evans J preferred the latter interpretation as more consistent with the purpose of the Act, and concluded [at 20 and 21]:

For these reasons I conclude that the meaning of derivative when used in relation to chemicals encompasses both the concept of a substance made from another and the concept of a substance that is structurally related to another, but that the meaning should be qualified so as to exclude such an association that is no more than theoretical. I conclude that derivative means a substance or compound that can readily be made from another substance or compound, as well as a substance or compound that is closely related structurally to another substance or compound.

The meaning of a term used in legislation to describe a drug as being within a proscribed category is a question of law. Once the meaning is determined, the further question of whether a particular substance falls within that meaning is a question of fact for the jury, Reid v Kerr (1974) 9 SASR 367, Wells J, at 376, and Yager v McQueen (1977) 139 CLR 28, at 33–34, and 44–45. On the evidence before me there is a great degree of similarity between the chemical structures of 4-methylmethcathinone and methcathinone. Accordingly there is simply no issue that the former can be (and indeed is) a derivative of the latter. If there was disagreement about whether 4-methylmethcathinone is closely related structurally to methcathinone, then that issue would need to be determined by a jury.

At the trial subsequently presided over by Crawford CJ, the jury found the substance was a derivative. On the appeal, the Court of Criminal Appeal found that Evans J had decided the legal meaning correctly. (If this case was decided before DPP (C'th) v Coory [2011] VSCA 316 it's possible that the confusion surrounding that sentencing hearing would have been avoided).

The Court referred to the Tasmanian Acts Interpretation Act in adopting an interpretation that promotes the aims of the Act being interpreted, and accepted the older, wider definition of derivative.

Blow, Porter and Wood JJ [at 25]:

In our view, the modern narrow construction urged upon us by counsel for the appellants would not promote the purpose or object of the Act, but the wide old-fashioned construction adopted by Evans J and Crawford CJ does promote the purpose or object of the Act. The long title of the Act is "An Act to prohibit the misuse of drugs and activities associated with the misuse of drugs and for related purposes". As Evans J pointed out in the passage quoted above, the narrow construction could result in the legislation being circumvented by the manufacture of analogues of prohibited drugs that have similar properties but are not prohibited. It is clear, when one considers cl 1(c) as a whole, that Parliament was seeking to promote the objective of prohibiting the misuse of drugs by prohibiting activities not just in relation to the substances enumerated in the relevant schedule, but to all sorts of similar substances, including salts, esters, ethers and derivatives. It follows that a wide interpretation of the word "derivative" would promote the purpose or object of the Act, whereas a narrow construction would not. It is possible that some analogues of some controlled drugs might be harmless but, in our view, that possibility does not detract from that conclusion.

Effectively, the Tasmanian Court of Criminal Appeal applied to the term derivative the meaning that the Commonwealth legislation (and elsewhere) has given to analogue.

In Coory [2011] VSCA 316 the Victorian Court of Appeal commented [at 8 and 46] that it would be desirable for the legislature to adopt the term analogue into the Drugs Act and avoid the confusion. Certain chemicals are prescribed as precursor chemicals, prohibited if possessed in certain quantities and without appropriate licences by s 71D of the Act. The list is found in the Drugs, Poisons and Controlled Substances (Precursor Chemicals) Regulations 2007, and is constantly changing.

Sunday, 13 May 2012

Counting widgets

The Chief Justice of Victoria delivered a speech at the University of Melbourne on 1 May 2012 titled, Courts and Democracy - Just another Government Agency?.

A variation of it was published as an opinion piece, No place for justice on a conveyor belt, in The Age last Thursday. Both built upon a previous theme of her speeches and writings, Does Judicial Independence Matter?

Chief Justice Warren protested, on behalf of the state's judiciary, the evaluation of court processes using a 'widgets per hour' mentality. She said,

In the Justice Department section of the recent state budget a heading appears, ''Dispensing Justice''. There follows a series of ''major outputs'', ''deliverables'' and ''performance measures'' laid down for the courts. The targets were not agreed by the Supreme Court and are misleading and meaningless. They are rejected as inappropriate.

As part of its public accountability, the court sets targets and reports on its performance to Parliament. The court would always be prepared to discuss its performance with government, but targets cannot be set by Treasury. The targets equate the courts with a car factory. If the courts do not meet ''management's'' production-line target they will be penalised. The courts deliver justice and apply the rule of law. They do not ''produce'' cars, widgets or anything else.

The portion of the budget the Chief Justice referred to is found in Chapter 2, here. The performance targets referred to can be found at pages 186 - 190.

The Chief Justice's remarks got a decent run in last week's press, and a number of other judicial leaders, when asked, spoke in support of her observations. Nobody seemed inclined to have a go at Attorney-General Robert Clark. Rather, it seemed like faceless bureaucrats were the problem.

Chief Magistrate Gray said on 3AW,

I saw what she said and I understand exactly what she meant and fundamentally I agree with her. Her point is: courts have got to be efficient, courts have to account for the resources they get like any other institution of the State, but we are doing justice case by case, individual by individual, family by family, etc. That is a profoundly different thing, on our argument, and I agree with it, differently weighed and assessed and counted and evaluated, than making widgets.

I agree with her, the Attorney isn't promoting that view of the world. It's a long-standing debate this - how do we describe and measure what we do as courts? It's a big issue.

(If you want to jump to the interview without listening to the rest of Ross and John's morning show, the interview is around 2/3 of the way through the podcast. The Chief Magistrate's appearance was mainly about promoting Law Week).

The current State government, when in opposition, promised the introduction of a Courts Executive Service to administer the courts. The exact form this body will take has yet to be announced.

Tuesday, 8 May 2012

DPP v FG [2012] VSCA 84: all or nothing?

The Court of Appeal last week decided DPP v FG [2012] VSCA 85, which considered an unusual situation with a highly edited transcript and frequently un-transcribable recording, compounded by the loss of the recording when the appeal was heard.

The original trial dealt with charges alleging sexual offences by the appellant against his natural son. Part of the evidence relied on by the prosecution was an edited recording of a conversation between the family and the appellant. The unedited recording was 56 minutes; edited, it ran for about 7 minutes.

The real practical problems with using the recording and transcript were set out by the Court of Appeal.

[18] The unedited CD-ROM of the family meeting, provided to this court by the Crown at the appellant’s request, records a noisy, emotional, often hostile conversation involving a number of people. The recording is by no means a clear record of what was said. Although the voices identified on the transcript as being those of the appellant and his then wife are usually able to be distinguished from those identified as the complainant’s and his sisters’, this is not always the case. The voices of the appellant and his wife are heavily accented and, on some occasions, are difficult to understand because of their use of idiomatic expressions often used by migrants whose first language is not English. There is much unintelligible but obviously emotional shouting and, almost continuously, more than one person can be heard speaking at the same time. At one point on the recording, there is an unexplained gap of about two minutes. The transcript of the unedited recording runs for 119 pages. On only one of those pages (p 43) does it purport to be a transcript of everything that was said. On every other page of the transcript, there are passages, sometimes lengthy, which, it can be safely inferred, the transcriber was unable to decipher. There are many places in which words attributed to the appellant are not transcribed, often because more strident voices speaking over him make his statements unintelligible.

[19] The transcript of the version of the recording which went to the jury (Ex C for identification) runs for only 18 pages, numbered consecutively. Like the purported transcript of the original, it is hardly a transcript at all, with much text missing altogether...

The prosecutor referred the jury to portions of the transcript, presumably relying on them as implied admissions by a failure to deny allegations put by people of equal standing. (That wasn't expressly mentioned, probably because it wasn't the point of the appeal, so I'm only guessing that it was using the principle from cases like R v Salahattin [1983] VR 521 and Parkes v The Queen [1976] 1 WLR 1251.) Problem was, the Court said, the appellant might well have been denying the allegations: it just wasn't possibly to tell, with all the shouting.

The prosecutor also referred to what he said were apologies by the appellant (again effectively adopting the allegations). But the problem there was that 18 pages of transcript were edited out, and there was no visual indication on the transcript that such a large volume had been left out. It was quite possible that his apologies were for other allegations contained in those missing parts, but not charged as criminal offences.

Although no objection was made at the trial, the Court of Appeal considered that the overall effect of the edited recording and transcript was that the appeal had to be allowed, and a new trial ordered.

[32] The edited tape of the family meeting and its transcript ought not to have been admitted into evidence. Taken overall, its probative value was slight when compared to the prejudice to which the appellant was exposed by its admission. If there were any relevant admissions on that recording, which must be regarded as doubtful, the appellant was entitled to have before the jury not only those admissions but also anything else he had said which might have been exculpatory. On many occasions whilst creating that transcript, the transcriber was unable to record in writing the appellant’s responses, which could be heard but not understood. The prejudice to which the appellant was exposed was materially increased by the way in which the original recording was edited. It was further compounded by the use which the prosecutor made of the recording and its transcript in his final address. His reliance on the alleged apologies of the appellant in the circumstances in which he did was unwarranted on the evidence.

[33] The Crown, in defence of its position, relied upon the failure of defence counsel at trial to seek to exclude the recording and its transcript. Although this point might, normally, be a good one, in this instance, the events which occurred represented such an egregious departure from due process in the conduct of a fair trail that the appellant was exposed to a substantial miscarriage of justice. That no objection to that process was raised before the trial judge cannot preclude this court from acting to obviate the effect of that miscarriage.5 This appeal should be allowed.

The case highlights that a fair presentation of a prosecution case requires tendering all admissible inculpatory and exculpatory evidence amongst out-of-court statements made by an accused, citing Mahmood v WA (2008) 232 CLR 397. (And see also R v Soma (2003) 212 CLR 99 at [31], which raised a similar point.) It seems also to emphasise the care that is required even with edited transcripts settled by agreement between the parties, so that as much as is possible they convey to the finder of fact an accurate sense of the whole conversation, and what the context was of the recording represented by the edited transcript.

The conviction was set aside, and a fresh trial ordered.

Cook v Commissioner of Police [2012] QCA 118: demerit disqualification a matter of law

We've previously discussed the sometimes-fine distinctions between errors of fact and errors of law. (In fact, when I look, we've covered it almost ad nauseam: Fishing for a fact? Ostrowski v Palmer; Mistake of fact or mistake of law? and Mistakes of fact, mistakes of law (revisited) are the main posts on the topic.)

The Queensland Court of Appeal considered the point recently in Cook v Commissioner of Police [2012] QCA 118, and is helpful because it's one of the few Court of Appeal decisions on the defence applying to driver's licences.

Mr Cook's driver licence was suspended due to an accrual of demerit points, similar to the Victorian scheme under s 25 of the Road Safety Act. He claimed at court (first at the Magistrates' Court, and then on an application to appeal, at the District Court) he didn't realise his licence suspension would occur automatically after incurring a further infringement.

He relied, in part, on s 24 of the Criminal Code, which provides:

24 Mistake of fact

(1) A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.

(2) The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.

The Court of Appeal rejected his contention he had made a mistake of fact, deciding that his mistake was one of law. And without explicitly saying so, the Court also seemed to suggest the mistake wasn't reasonably held in any event.

[16] The applicant is correct, in my view, in saying that even in an automatic cancellation case, there may be scope for mistake of fact about whether the underlying events which will give rise to cancellation have occurred. Such a mistake might arise in relation to whether conduct attracting demerit points had in fact occurred; or how the Chief Executive had actually exercised what appears to be a discretion in relation to the recording of points against a traffic history; or whether a choice to be of good behaviour rather than have the licence suspended had successfully been notified to the Chief Executive. The allocation of demerit points, however, is automatic, being legislatively deemed to occur on the day of the offence.


[18] The only mistakes adverted to by the applicant at first instance were a general belief that his licence was not suspended, because he did not appreciate that he had accrued sufficient demerit points for that to occur, and a more specific notion that renewal of his licence meant that his demerit points would be expunged. He did not ascribe any particular belief concerning any element of the offence to his receipt of the SPER letter. The passage on which he relied, set out at [15] above, shows, at the highest, that he had attributed the police officer’s actions to that letter, rather than to the prospect that his accrued demerit points had caused suspension of his licence. The notion that renewal of a licence meant the removal of accrued demerit points was, on any view, a mistake of law. The applicant’s failure to appreciate that his demerit points had reached a point at which his licence could be suspended falls short of a positive mistake. In any event, it turns on a lack of understanding of the legal consequences of the successive offences, of which he was aware, in resulting in an accumulation of points beyond the permitted limit.

Curiously, the decision did suggest that the defence can occur in some circumstances, but I must confess I struggle to see how they might occur, and why they would be mistakes of fact rather than law in any event. There is no 'discretion' for VicRoads to record demerit points, but it could perhaps be argued that it is unfair to the extent of being an abuse of process for it to not record points in a timely manner, relying on National Car Parks Ltd v Baird (Valuation Officer) [2005] 1 All ER 53; [2004] EWCA Civ 967 at [59] – [65] per Dyson LJ. But even that seems limited, given there's now a 12-month window of opportunity for VicRoads to act on points under reg 73(3) of the Road Safety (Drivers) Regulation 2009.

Monday, 7 May 2012

Judge as jury

Following on from yesterday’s post, it’s worth asking: what are the vital aspects of a court?

It’s a question that lawyers and academics have devoted volumes to, but for the purposes of this discussion I’d like to focus on:

    • An independent, disinterested decision-maker; and
    • A somewhat predictable, rules-based approach to decision-making.

When it comes to who will decide the facts, there are two methods typically presented: trial by jury, or trial by judge.

But that’s a false choice. If social engineers sat down today to create a working trial system, they would surely survey the array of available options and seriously consider the viability of an amalgam of the two: trial by one judge sitting as trier of fact, and another sitting as the trier of law. One would have full knowledge of the pleadings and rule on procedural matters, while the other would remain passive and concentrate only on the evidence presented.

The advantages of a two judge system over the traditional trial by jury include: it’s cheaper (always a plus, these days); less court time would be spent with instructions and charges since the ‘fact judge’ would already understand their role; the decider of fact would be less prone to distraction, would be able to provide reasons for their decision, and would be incapable of reaching a ‘hung’ verdict; and the ‘law judge’ would be freed up to take a more active role in proceedings (if they wanted to).

Of course there are also downsides to removing juries from the system, not least of which is even further reduced public participation in our system of justice. But those problems exist now anyway when a judge sits alone as decider of law and fact. The only added problem I can see is, in the event of a matter needing to be adjourned, ensuring the availability of both judges for the next occasion. But even that seems more manageable than trying to coordinate the movements of six or twelve jurors.

What do you think? Do you see other disadvantages to a trial by a judge and a judge-as-jury?

Sunday, 6 May 2012

Into the fray

Some time ago now we blogged about excessive judicial intervention during the running of a case. As we said at the time, it must sometimes be difficult to balance the desirability of properly understanding the evidence given (or simply to resist the urge to jump in and do something properly), as against the importance of maintaining an impartial approach to the proceedings.

The Judicial College has recently updated their Criminal Proceedings Manual to take into account the observations of the Court of Appeal in Buchwald v R [2011] VSCA 445 and Waters v The Queen [2011] VSCA 415, decided just before Christmas last year. It can be found at - Judicial Intervention.

In Buchwald, Hansen JA described questioning of the accused by the trial judge [at 121]:

Counsel for the applicant did not identify particular questions that were objectionable. Rather, he submitted, the vice was the cumulative effect of the questions – in essence, that the judge expressed scepticism, incredulity, highlighted inconsistencies and effectively accused the applicant of recent invention. In combination with the prosecutor’s allegations of recent invention (to which we refer below under ground 2A), the judge’s questioning must have significantly undermined the applicant’s credibility. That was demonstrated, submitted counsel, by the fact that the jury specifically asked to see transcript of the judge’s questions, and then returned a guilty verdict merely 15 minutes later.

Some extracts of the judge's questions are reproduced in the judgment. The Court of Appeal held that the judge did not cross the line and lose his impartiality, despite asking some probing questions.

In Waters, it wasn't the accused but the prosecutor who was cross-examined by the trial judge.

Ashley JA [at 93}:

How did the way in which the Crown finally deployed the evidence against the applicant come about? It must be recognised that it was for the prosecutor to decide how the case should be conducted. The judge could not compel the prosecutor to present the Crown case in a particular way. On the other hand, it was the judge’s intervention, on multiple occasions, which introduced the idea of the Crown ‘refining’ its case, which suggested (albeit that it came to nothing) a different way of looking at the evidence referred to ... above. This involved cross-examination of the prosecutor about the evidentiary possibilities of calls 1888 and 775 – and this in turn led to the prosecutor’s ultimate concession as to the force of his Honour’s persistent analysis – and which, I infer, encouraged the prosecutor thereafter to take the bit between his teeth and further ‘refine’ the Crown case.

Both cases make for interesting reading, as does the summary of relevant principles in the revised Criminal Proceedings Manual.

What none of the materials do, of course, is to provide any definitive guidance on what advocates should do when a judicial officer is seen to be intervening more than it's thought they should ...

Wednesday, 2 May 2012


This story in the paper yesterday caught my attention. It's about a burglar in Germany who has been identified by the distinctive earprint he has allegedly left behind when pressing it against doors to see if anyone is at home.

Like a lot of these internet stories that do the rounds, it contains enough specifics that it might be a true story, or could just be the figment of a lazy journo's imagination. This article quotes Hamburg police spokeswoman Ulrike Sweden about the case. As unlikely as the name sounds, she does exist and does work for the Hamburg Polizei.

Earprint matching is a branch of science that I never knew existed, but there seems to be quite a body of scholarly research about it; from Meijerman, Thean and Maat's Interpretation of Earprints to renowned Dutch expert Cornelis Van Der Lugt's chapter on the subject in Forensic Human Identification. Databases of thousands of earprints have been compiled, and (its proponents say) no two are the same.

Police Inspector Van Der Lugt describes in his potted history of forensic ear comparison that the first recorded use of ear identification evidence in Britain was in 1910. Later, American doctors conducted research into ear comparison as an aid to preventing babies being mixed up in hospitals. Van Der Lugt asserts that an earprint was first used to identify a burglar in Switzerland as far back as 1965.

In 1998, a man in the UK was convicted of murdering an elderly woman in Huddersfield after the prosecution showed that ear prints on a newly washed window could only have been left by him as he listened for signs of movement inside the house, according to the BBC. But he successfully appealed the conviction, and was acquitted at his retrial after the Crown led no evidence.

Some respected experts doubt the reliability of ear comparison, noting that an ear can change shape depending on the temperature or how hard it is being pressed to a surface. The strengths and weaknesses of this kind of evidence were discussed in R v Mark Dallagher [2002] EWCA Crim 1903.