Sunday, 30 September 2012

Changes to VLA eligibility

Victoria Legal Aid have been reviewing their grants procedure recently. We wrote about some changes back here.

From tomorrow, people charged in the Magistrates’ Court with traffic offences under the Road Safety Act 1986 will only be eligible for a grant of legal assistance if they have a psychiatric or intellectual disability or an acquired brain injury, and a conviction is likely to result in a term of imprisonment, either immediate or suspended.

When I read that advice on the VLA website, I assumed that those considerations were intended as an or rather than an and. That is, a person would be eligible for a grant of aid if they had serious mental health issues, or they were at risk of imprisonment. But I've since clarified that the criteria requires both: a grant of aid will only be available where a term of imprisonment is likely and the accused suffers from substantiated mental health issues. This is regardless of whether the accused intends to plead guilty or not guilty.

The criteria won't be satisfied by a person simply saying they have such an issue. Only people who are receiving services from an approved mental health service under the Mental Health Act 1986 or is an eligible person registered under the Disability Act 2006 may receive a grant. Where a lawyer suspects that a person may have an undiagnosed condition, they'll be advised to go and seek assessment and treatment.

VLA Duty Solicitors will continue to assist some people who are ineligible for a grant of aid, but their time will be limited. So, for example, if an accused comes before the court facing multiple counts of driving while suspended or disqualified in contravention of a suspended sentence for the same offence, no grant of aid will be available unless that person has a mental health issue. A duty lawyer might make the exceptional circumstances argument on their behalf, but with a very limited opportunity to prepare it.

The most severe penalty I'm aware of in the Road Safety Act is for the offence at s 61 of leaving the scene of an accident where a person has been killed or seriously injured. The penalty is a maximum ten years in prison. In the Magistrates' Court the maximum penalty would be limited to two years, and it's likely that the most serious examples of that offence wouldn't be dealt with summarily.

Will this policy decision lead to more Victorians being imprisoned? Only time will tell.

Tuesday, 25 September 2012

Graphic images

This graph was just released by the Sentencing Advisory Council. It shows the sentences being handed out in the Magistrates' Court, broken down by proportion.

No prizes for guessing why suspended sentences are down - the mandatory imprisonment requirement for driving while suspended or disqualified took effect in May 2011, exactly the point where the brown line takes its biggest dip.

These sentencing orders add up to around 35% of dispositions in the Magistrates' Court. It doesn't include orders made against licences, or fines ( which are by far the most common sentencing order).

The SAC have also released statistics showing Victoria's position compared with other states in imprisonment and community correction rates. The figures show Victoria near to the lowest in both categories.

Sunday, 23 September 2012

Walford v DPP [2012] NSWCA 290: identification or recognition evidence

Section 114 of the Evidence Act requires that identification evidence adduced by the prosecutor be rejected unless certain preconditions are met. The offer of a parade must be rejected, or else it must have been not reasonable (in the opinion of the court deciding whether or not to admit the evidence) for one to be conducted. When assessing the reasonableness of conducting a parade, the time at which the identification was made must be precisely identified. If it occurs out-of-court and at, or near, the time of the offence alleged it will often simply not be possible for a parade to have been conducted prior to the identification, making the test for admissibility easy to satisfy : Walford v DPP [2012] NSWCA 290.

The Background

This case was heard at first instance at the Local Court at Dubbo. It was dismissed, and the DPP appealed the case to the NSW Supreme Court, where Davies J determined that the presiding magistrate had incorrectly decided to reject the identification evidence, and returned the matter to Dubbo: DPP (NSW) v Walford [2011] NSWSC 759.

The accused appealed Davies J’s decision, and the matter went before the NSW Court of Appeal. Though their reasoning differed (Basten and Hoeben JJA each set out their own path but arrived at the same conclusion, while Beazley JA declined to choose between them) there was a consensus that the matter had been incorrectly decided at first instance, and Davies J had been correct to reverse the dismissal of the charges. Leave was granted but the appeal dismissed, and the matter returned to Local Court to be dealt with according to law.

The Facts

Aaran Walford (who I’ll sometimes refer to as the accused person here, though the roles of the parties kept changing as the matter progressed through the court hierarchy) had an interim Apprehended Violence Order prohibiting him from having contact with the complainant, and from coming within a specified distance of her address. The AVO had been granted because of an incident occurring at a mutual friend’s house in December 2009. The two didn't know one another prior to that incident, and had not seen each other since (except at court, perhaps) until the complainant reported to police that she had seen him outside her home in March 2010.

The complainant didn't look at photographs or a parade of people. She simply told the police that she had seen Aaran Walford outside her apartment on the night. He denied the offence.

The alleged breach of the AVO came before the Dubbo Local Court for contested hearing in January 2011. The defence had squarely nominated identification as the issue in dispute. Objection was taken to the complainant’s identification of the accused as the man who had been outside her apartment block on the night alleged in the charge. After hearing the evidence on the voir dire, the magistrate refused to admit the complainant's identification of the accused, and the charges failed.

The Law

Identification evidence is an assertion by a person to the effect that an accused person was or looks like a person who was at a place relevant to a crime, based on what the person making the assertion saw or heard at that time. But the evidence of that identification is not (necessarily) the act of identification.

The DPP had successfully argued in the appeal before Davies J that there was no obligation for the complainant to look at a parade or photographs as a precondition to the admissibility of her evidence. This was because, it was accepted, the identification occurred at the time of the complainant looking out of her window and seeing the accused. Since it would plainly not be reasonable for the complainant to look at a parade prior to that (there would have been no reason to, because prior to her seeing him in March 2010 there was nothing to be investigated) the exception at s 114(2) was clearly engaged.

Hoeben JA [at 49]:

Davies J rejected the applicant's interpretation. He did so on three bases:

(1) An important consideration was the time at which any identification of the applicant was made. The evidence of the complainant was that the person who approached the apartment block was the applicant. His Honour concluded that such an assertion amounted to an identification by the complainant of the applicant. That assertion was made to the police on 25 March 2010 and having been made at that time, i.e. at or about the time of the commission of the offence, it was an inescapable conclusion that it would not have been reasonable to have held an identification parade.

(2) A literal reading of the words "before the identification was made" was supported by the remainder of the section. That the "identification" was not referring simply to the identification given in evidence at the hearing, was supported by s 114(3)(c)(ii) which expressly envisaged that the identification could be made out of court and at about the time of the commission of the offence.

(3) A number of decisions supported the construction of the section put forward by the DPP. Those cases were DPP v Donald and Anor [1999] NSWSC 949 (Bell J), R v Thomason [1999] ACTSC 112 (Miles CJ) and R v D [2008] ACTSC 82 (Penfold J). There was only one decision which expressly adopted the applicant's interpretation, R v Taylor [2008] ACTSC 52 (Rares J). Davies J declined to follow the approach in Taylor on the basis that it involved a misreading of s 114.

Hoeben JA [at 55] held that the act of identification doesn't take place at the time the evidence is given at Court, but rather occurs at the time of the witness forming the view of who the person is. (In the facts of this case, of seeing the man at the window). The reasonableness of the holding of a parade is assessed from that point in time, and not subsequently. The accused’s counsel had argued that if the identification was not held to be the time of the witness giving the evidence in court, it would obviate the need for parades and photo identifications in many cases, defeating the purpose of Part 3.9. This argument was not accepted.

Basten JA's approach was slightly different. His Honour found there was an alternative basis on which the evidence was admissible. If the complainant's statement in court was that the man in the dock was the man at her flat on the night of the charge, then his Honour held that to be an identification to which s 114 required an identification parade. But if her evidence was that the man at the flat was the man who'd previously assaulted her, and against whom she had an intervention order, then that identification occurred on the night of the charge and no prior opportunity for a parade existed. Basten JA held that this ambiguity was not resolved in the Local Court, and had not been properly addressed on the first appeal.


Basten and Hoeben JJA's approaches are not very far apart. Basten JA places more emphasis on whether what is being given is a dock identification or evidence of prior recognition. Perhaps it is an extension of the same argument. But both justices agree that pin-pointing the time at which the identification takes place is the key, and that this isn't always when the evidence of that identification is given.

This decision clarifies the existence of a pathway to the admission of what the common law sometimes referred to as recognition evidence. When a witness approaches the police and tells them that, “I just saw Joe Bloggs steal my car.” then they may ask the complainant and suspect to cooperate with a parade (and probably should, if they want to lend weight to their witness's identification). But I don't think they are required to do so, as a prerequisite to the admissibility of the evidence. (Under Part 3.9, at least - exclusion under ss 135 and 137 would be a separate issue). The time at which the identification occurred (the witnessing of the person stealing the car) has already been and gone; and it’s clear that there was no opportunity for a parade or photo identification to be conducted prior to that point.

Odgers alludes to this possibility in his Uniform Evidence Law [at 1.3.9560] when he wrote,

"The matters listed in s 114(3) may well allow the police to avoid holding an identification parade in such cases as where the identifying witness 'recognised" the defendant when the crime was committed, where identification is not seriously in issue, where the crime involved is relatively minor, or where it is practically difficult to conduct a proper parade. Thus, for example, it would not have been reasonable to hold a parade in a case where the identification occurred a few minutes after the commission of the offence and before the police had begun an investigation."

The last part is reference to situations where the witness sees the accused again after the alleged offence. But the principle applies equally if a witness sees somebody they had recognised as knowing from before the incident in question.

Sunday, 16 September 2012

DPP v Blango [2012] VSC 384: no right to see the reading

In DPP v Blango [2012] VSC 384 the respondent was charged with refusing to accompany a police officer for a breath test under s 49(1)(e) of the Road Safety Act 1986. In the Magistrates' Court hearing it was common ground that the driver had refused to go unless he was shown the reading of the preliminary roadside test, and it was also agreed that the officer had refused that request.

The magistrate hearing the case dismissed the charge, finding that there had been no intent of refusal. On the DPP's appeal, Macauley J found that there was no legislative (or other) requirement for the preliminary reading to be shown to the respondent, and so no reason for the magistrate to conclude other than that the respondent possessed an intention to refuse to accompany the officer for a further test. The case was found proven instanter.

The most common reason for a police officer to form the opinion that a driver's breath contains alcohol (a prerequisite for a valid requirement to accompany for a further test under s 55) is the result of a preliminary breath test. This device doesn't just tell its operator whether alcohol is present, but also presents a figure of how much is present.

It's not surprising that a driver who has just been tested and produced such a reading would like to know what that reading is. But nothing in the Road Safety Act 1986 requires the police officer to tell them, and a refusal to share that information doesn't invalidate a requirement that the driver accompany the police officer to another place for an evidentiary breath test.

In DPP v Blango [2012] VSC 384 the driver, Mr Blango, insisted on being told the PBT reading, as a precondition to accompanying the officer to a police station for an evidentiary test. Magistrate Spencer ruled that, in these circumstances, Mr Blango had not intended to refuse a requirement under s 55.

The DPP appealed on behalf of the police informant, under s 272 Criminal Procedure Act 2009. In days gone by this would have been done by application for judicial review, but the avenue for a prosecution appeal on a point of law exists in the Criminal Procedure Act and it seems the Office of Public Prosecutions now intends to use it. The appeal grounds certainly have an administrative law flavour about them [at 13]:

The Director’s grounds of appeal were that the magistrate

  • Failed to apply the relevant objective test for refusal as laid down in Hrysikos v Mansfield.
  • Took into account an irrelevant matter, namely Mr Blango’s subjective beliefs as to the law.
  • Took into account an irrelevant matter, namely Mr Blango’s suspicion of police.
  • Treated Mr Blango’s reasons for unwillingness to comply as evidence to support a conclusion that he had not refused.
In Hyrsikos v Mansfield (2002) 5 VR 485 the Court of Appeal had explained that a number of actions were capable of constituting refusal. Ormiston JA said,
The word “refuses” must be taken to carry with it an element of mental intent, albeit judged objectively for the purposes of an offence such as the present. The simplest way of proving a refusal would be if the subject driver said “I refuse etc” or some equivalent words, with or without expletives, connoting an unwillingness to comply. Alternatively, the prosecution might ask a court to infer that a driver has refused to comply by proving facts from which that inference may be drawn, ie by proof of the circumstantial case from which the only inference is that the driver is refusing to comply, albeit he or she is not expressly saying so. A driver who immediately turns and runs away, a driver who jumps the back fence of a police station, a driver who forcibly pushes open the door of a mobile testing unit and runs off without explanation would each be persons against whom the necessary inference could be drawn.

The Supreme Court determined that Magistrate Spencer's doubt about Mr Blango's refusal was not open to her. A number of precedents establish that an agreement to accompany, made conditional upon an event to which that party has no right, can still constitute refusal. The respondent's refusal to accompany the police until after he was satisfied of the preliminary reading was such a refusal. At the conclusion of the judgment, Macauley J said [beginning at 20]:
The only reasonable inference available from the accepted fact that, after four requests, Mr Blango was being argumentative with police, asserting a mistaken view of the law and wanting to see the reading, as a condition of complying with the informant’s requirement, was that he refused to comply with that requirement.

It follows that I accept that the magistrate erred in law. The nature of that error is that her Honour wrongly treated Mr Blango’s particular reasons for not being willing to comply as supporting the inference that he had not refused to comply. In so doing, her Honour either failed to apply an objective test for assessing refusal as required by Hrysikos, or took into account irrelevant matters, or both.


In those circumstances I uphold the appellant’s appeal. Because, as I have shown, there was only one inference reasonably open on the facts as found, namely that Mr Blango had refused to comply in contravention of s 49(1)(e) of the Act, as a matter of law he must be found guilty of the offence as charged.
Remarks [at 18] leave the door open for argument that, prior to a flat refusal, a request for further information might not be treated as a refusal. But that was not this case. Further, Rowntree v Police (SA) [2006] SASC 51; (2006) 45 MVR 361 was referred to, in support of the comment in passing [at 16] that it might unwise for a police officer to inform a driver of the result of their preliminary test. In that case, Bleby J had said [at 15]:
Evidence of the result of an alcotest instrument is not conclusive evidence of [an offence under the relevant legislation]. Evidence of the result of a properly conducted breath test is. The result of an alcotest, being a less reliable instrument, can only be a guide which in this case justified the requirement for a breath test. Disclosure of the reading was not necessary and could generate in the mind of the person tested uncertainty or confusion if it did not match the result of the breath analysis, which must be disclosed or if it was in fact below the prescribed concentration. It may be that a reading close to but just below the prescribed concentration would indicate that the prescribed concentration may be present. If the alcotest instrument in fact indicated a concentration above that prescribed, the requirement of subsection (2b) was satisfied.

Saturday, 15 September 2012

The same, but different

Last week the Commonwealth government announced a change of name for the Federal Magistrates Court. At a date yet to be decided, the Court will become known as the Federal Circuit Court of Australia, and FMs will now be referred to as judges.

At various times through the last few years it looked like the Court would be shut down and its members appointed as judges of the Federal Court. At other times it seemed that the government had abandoned its ideas for reform and the Court would return to business as usual. This decision is a compromise between the extremes.

For my part, I'm glad to see the name go, and along with it the confusion over where the apostrophe is supposed to be. The Chief Justice of the Federal Court, Michael Black, spoke in support of a new name as soon as it was created in 1999. And the current name is misleading; the Federal Magistrates Court could hardly be said to operate as a court of summary jurisdiction.