Wednesday, 31 October 2012

JCV manuals updated

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

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

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

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

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

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

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

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

Sunday, 28 October 2012

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

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

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

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

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

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

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

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

Monday, 22 October 2012

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

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

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

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

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

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

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

Mr Novakovic didn't say anything.

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

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

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

He was later charged that:

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

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

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


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


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

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

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

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

The appeal

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

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

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

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

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

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

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

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

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

Some other observations

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, 21 October 2012

Plain language for lawyers

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

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

Sunday, 14 October 2012

Sure thing

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

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

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

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

Section 31 of the Bail Act 1977 says,

31. Indemnifying surety

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

Penalty: 15 penalty units or imprisonment for three months.

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

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

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

Wednesday, 10 October 2012

Where is the value in SACStat?

The Sentencing Advisory Council's new SACStat program (tweeted about by my learned colleague a few days ago) is interesting, colourful and fairly intuitive. Searches of dispositions in the Magistrates' Court are recent (2009 - 2011) and statistically significant (only offences for which at least 50 examples are available will return a result). They are an extension of the Sentencing Snapshots previously compiled by the SAC.

Here's the videos, the text instructions, and the link to the program itself.

But ... who'll use it? And to what end?

For academics, policy makers and journalists (possibly for bloggers; we'll see) it will probably have lots of applications. And it's reassuring that the Powers That Be are at least trying to keep track of this sort of information, and make it publicly available.

For legal practitioners preparing their sentencing submissions, the usefulness of this new resource will be limited. While s 5(2)(b) of the Sentencing Act 1991 does require courts to take into account current sentencing practices, sentencing courts are rarely swayed by raw numbers. In the past I've talked up the Judicial College's Sentencing Manual, which links to short summaries of various types of offending. The SACStats don't go into that level of detail. It's big picture stuff.

Sentencing statistics have been collected and made available in NSW under the JIRS system for years. That system was discussed here back in 2010. But even in a jurisdiction that does not rely on instinctive synthesis, judges are frequently critical of over-reliance on raw data.

In Dodds v R [2007] NSWCCA v R 191, Fullerton J discussed the Court's concerns:

[The sentencing judge] imposed a sentence of imprisonment comprising a non-parole period of 2 years and 1 month dating from 7 December 2007 with a balance of term of 2 years and 2 months.

The challenge to the sentence is that it is manifestly excessive in light of his Honour’s finding that the offence was below the mid-range of objective seriousness. Support for that submission is said to derive from the Judicial Information Research System (JIRS) statistics which reveal that in only nine per cent of sentences for offending against s 112(1) which attracted full-time custody was a non-parole period imposed greater than 2 years and 1 month and only three per cent of sentences attracted a total term of imprisonment greater than or equal to 4 years and 3 months.

The applicant’s counsel frankly conceded that the statistics are a “blunt tool” consistent with this Court having repeatedly cautioned against the utility of referring to the JIRS statistics in assessing the appropriateness of a sentence under review. As Rothman J emphasised in Robertson v R [2007] NSWCCA 270; 177 A Crim R 121 the principal signposts for sentence are the maximum sentence provided for by the Parliament and the general principles of sentencing that apply in the sentencing exercise. His Honour went on to say:

“...The use of statistics as a measure of the appropriateness of the sentence has the effect of creating a self-fulfilling range of sentences, which may bear little relationship to the maximum sentence imposed by the legislature.”

The Crown submitted, correctly in my view, that the inherent limitation on the utility of the statistics is most pronounced in relation to offences which involve a potentially diverse range of criminal conduct as is the case with an offence [of aggravated burglary]. In addition, it is self-evident that the greater number of factors specific to an offender, the smaller the statistical base from which might be identified a range of penalties. That is exemplified in the applicant’s case. There were only four offenders within the applicant’s age range who were also sentenced for a single count following a plea of guilty accompanied by a record of previous conviction of the same type.

In Victoria, which has refused to adopt the mechanical approach to sentencing used elsewhere, the criticism is even more strident.

In Russell v The Queen [2011] VSCA 147, Buchanan JA [beginning at 2] said,

A sentencing judge is required to have regard to, inter alia, current sentencing practices and accordingly will take into account in the instinctive synthesis of relevant sentencing considerations statistics relating to sentences imposed for the offence and the results in comparable cases.

Counsel for the appellant in this case placed statistics at the forefront of his case and subjected a number of other sentencing decisions to a detailed analysis. Counsel pointed to aspects of other cases said to disclose more serious offending than the present case and relied upon lesser sentences in those cases to argue that the judge in the present case erred.

In my opinion, such an approach is misconceived. Cases said to be comparable can do no more than provide a general guide, impression or background. They are not a benchmark that acts as a straightjacket. Further, such an approach runs the risk of adding or subtracting periods of time to reflect aggravating and mitigating factors present or absent in the cases being compared. As Kaye AJA has explained, statistics are an even rougher guide to an appropriate range.

The High Court's observations in Hili v The Queen; Jones v The Queen [2010] HCA 45 (discussed here) were adopted as appropriate to State offences in Hudson v The Queen; DPP v Hudson [2010] VSCA 332 (and, subsequently, in many other cases).

So if the new resource is not particularly useful for preparing submissions (either by counsel for the accused or the prosecution), what is it good for?

I can see SACStats as most useful for advising clients on the merits of a plea or an appeal. Giving clients advice about likely penalties has often been (like the sentencing process itself) more the product of intuition than solid fact. As resources of this kind become increasingly accessible, a lawyer can advise, when asked by a nervous client about the prospect of a particular outcome, that a disposition of that kind has not been given out in years - or is given out 20% of the time, or 50% of the time, or whatever. (Always given the proviso that individual mileage may vary).

It's biggest drawback is that it fails to really differentiate between offenders sentenced for a single offence, and those sentenced for many offences simultaneously. (Unless I'm not using it correctly, which is a strong possibility). If it's to be believed, just less than 5% of people sentenced for not displaying 'L' plates received imprisonment. When I sort the statistics by charge, I see that just over 80% were fined. But what those other charges were, and what sort of history those people had, remains a mystery. Any kind of qualitative analysis is impossible.

Still, coupled with sentencing indications, this kind of information can improve the advice given to clients, and consequently their decisions are more informed - even if the numbers don't cut much ice themselves with the Court of Appeal.

Monday, 8 October 2012

RWS v The Queen [2012] VSCA 249: unauthorised questioners

Section 367 of the Criminal Procedure Act 2009 provides that

367. Use of recorded evidence-in-chief

A witness may give evidence-in-chief (wholly or partly) in the form of an audio or audiovisual recording of the witness answering questions put to him or her by a person prescribed by the regulations for the purposes of this section.

The regulations referred to are the Criminal Procedure Regulations 2009. There, in Part 2 Division 5, r 5 states,

5. Who may ask questions

For the purposes of section 367 of the Act, the following persons are prescribed-

(a) a member of Victoria Police who has successfully completed a training course conducted by Victoria Police on the procedures for making a Division 5 recording and examining a witness;

(b) a person authorised in writing by the Chief Commissioner of Police who has successfully completed a training course conducted by Victoria Police on the procedures for making a Division 5 recording and examining a witness;

(c) if the questions are put to the witness in another State or the Northern Territory, a member of the police force of that State or Territory;

(d) if the questions are put to the witness in a Territory other than the Northern Territory, a member of the Australian Federal Police.

As far as I know, it's not a requirement of Video Audio Recorded Evidence (VARE) law that another person be present during these interviews, such as a social worker or guardian. But it seems common for police investigators to have someone seated next to the witness or nearby while the interview takes place, perhaps to deter allegations of coercion.

This additional person is usually not a person described in r 5. So what happens to their questions, if they become engaged in the discussion between the police investigaor and the witness?

Maxwell P, Harper JA and Beach AJA [at 45] addressed this question in RWS v The Queen,

...the issue raised by this ground concerns what occurred during a period in each of the recordings when the authorised questioner was absent and the ‘independent third person’ remained with the complainant. In each case, there was a conversation between that person and the complainant, not about the matters of sexual complaint but about the doll which the complainant had been holding during her interview. Relevant excerpts of the conversations are set out below:

Interview with S:

Ms L: ... it’s bigger than your little doll.
A: It’s nice and fluffy.
Ms L: It is, isn’t it?
A: Yeah.
Ms L: Have you got fluffy toys at home?
A: No.
Ms L: You haven’t? So haven’t you got any more dolls beside Stephen?
A: I’ve got others.
Ms L: Yeah. What sort?
A: Girls.
Ms L: Oh, yeah. How many have you got at home?
A: Three girls.
Ms L: O.K. And are they - - -
A: She - - -
Ms L: Yeah,
A: She stays in the pusher.

Interview with T

Ms L: What are you going to do this afternoon when you get home?
A: Try and do the puzzles.
Ms L: Oh, O.K. Good.
A: Puzzles.
Ms L: Do you do lots of puzzles? What sort do you do?
A: The one I’m doing now is a popcorn one.

Objection was raised by defence counsel to these portions of the interviews. The judge, after having consulted with another judge of the County Court, ruled that he would not excise these interludes from the recordings which were then already before the jury. It is now said that the relevant portions should have been excluded and that the failure to do so has resulted in a substantial miscarriage of justice, because they were not within the scope of the recording authorised by s 367.

In his written case in response to this ground, senior counsel for the Crown drew attention — properly, in our view — to the need to consider the provisions of the Evidence Act 2008 (Vic) (‘Evidence Act’) which could be said to have governed the admissibility question. (No reference was made to the provisions by trial counsel when he raised his objection). Senior counsel referred to ss 135, 137 and 138 of the Evidence Act. The matter is somewhat further complicated by s 368(3) of the Criminal Procedure Act, which confers a general power on the Court to rule as inadmissible ‘the whole or any part of the contents of a recording.’

In his written case, senior counsel for the Crown conceded that the answers recorded during the exchanges between the independent third person and the respective complainants could be viewed as improperly obtained evidence, within the meaning of s 138(1)(a) of the Evidence Act. It seems to us, however, that this is not a situation to which s 138 of the Evidence Act applies.

Since s 367 of the Criminal Procedure Act speaks of a witness giving evidence-in-chief in the form of a recording, it seems to us that the making of the recording can properly be viewed as being the equivalent of the witness giving evidence in the courtroom. The procedure for evidence-in-chief to be recorded separately in this fashion has been adopted for the assistance and protection of witnesses, and is intended to fulfil that function in a trial which is ordinarily fulfilled by a witness giving viva voce evidence. Section 138, on the other hand, seems to be directed at the obtaining of evidence in some form or another before trial, not at the giving of what are said to be inadmissible answers in the course of evidence-in-chief.

Assuming that to be right, there is no doubt that his Honour had power under s 368(3) of the Criminal Procedure Act to rule part of the recording inadmissible. It was not evidenceinchief in the sense adverted to by s 367 but it was part of the recording. Had a ruling under that section been sought, we think it likely, as senior counsel for the Crown submitted, that the exercise of the discretion would have been informed, if not governed, by the considerations set out in the applicable provisions of the Evidence Act.

According to the submission for the applicant, the admission of the answers given in the interlude periods gave rise to ‘unfair prejudice’ within the meaning of ss 135 and 137. Of course, if s 137 were applicable (because the probative value of the evidence was outweighed by the danger of unfair prejudice), the Court would have been bound to strike the relevant answers from the record (assuming that to have been a feasible way of effecting its non-admission into evidence). Alternatively, and in any event, the Court had power to rule the answers inadmissible if their probative value was substantially outweighed by the danger that the evidence might be unfairly prejudicial, pursuant to s 135(a) of the Evidence Act.

In our view, if the question had been raised and a ruling sought by reference to those considerations, it is almost inevitable that the evidence would have been treated as admissible. So far as probative value is concerned, the answers given in the course of each interlude had real and obvious probative value. This was evidence of a kind which, in our view, was quite properly before the jury, which had to decide the question of the complainants’ mental capacity. As Beach AJA pointed out in argument, in a civil jury trial concerning the extent of impairment of a person suffering from cerebral palsy, it is conventional — and unobjectionable — for those representing the plaintiff to put into evidence a film showing ‘a day in the life’ of the plaintiff. In short, evidence of this kind, that is, evidence of engagement between one or other of the complainants and some third party, could have been led and would have been admissible as relevant to the central issue in the trial.

For that purpose, the answers given in the interludes were evidence of exactly the same character as the evidence which the complainants gave in the course of their authorised VATE interviews. It is also of the same character as the observations by lay witnesses which the Court in Eastwood viewed as relevant and probative. The difference in this case is that the jury was able to view the complainants first hand, rather than having to rely on someone else’s observations.

In fact, it seems unlikely that these exchanges would have added much to what the jury was already aware of, given that each complainant was holding her doll through the formal part of the interview and given that this very matter had been raised with the applicant in the record of interview; namely, that it must be thought strange that a woman in her thirties would carry a doll. So far from it being regarded as irrelevant or extraneous, defence counsel said in his final address to the jury, ‘You can play with dolls but you can also have sex’.

So far as unfair prejudice is concerned, we are unable to see that there was any. As the cases have made clear, evidence which is adverse to an accused is not unfairly prejudicial, although it is doubtless prejudicial: See Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297, 325 [91], Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593, 603 [22], 609 [51]. That, of course, is its purpose. It is only unfair if it is liable to be given weight which is not warranted or if it is liable to confuse or mislead a jury. For the reasons we have given, this evidence had none of those characteristics.

The only matter relied on to support the applicant’s contention as to unfair prejudice was the undoubted fact that the questioner during these interludes was not a person authorised for the purposes of the making of recordings under s 367 of the Criminal Procedure Act. That circumstance does not, by itself, constitute or give rise to unfair prejudice. The fact that an unauthorised person was the questioner said nothing, in our view, about the utility of the evidence. Nor did it make it unfair in a way that it could not have been said to be unfair had the questions come from a police officer.

There may, of course, be circumstances when things said in an interlude of this kind might well be unfairly prejudicial but we need say nothing about those possibilities. Plainly enough, whether there was unfair prejudice would depend on the circumstances and, in particular, on the content of any recorded exchange during such an interlude. For the reasons we have given, that was not this case. For completeness we would add that if, contrary to our view, this issue fell to be considered by reference to s 138, our conclusion would have been the same.
RWS v The Queen doesn't say that questions from unauthorised questioners will always be admissible. (That would totally undercut the operation of s 367). Instead, it confirms that non-compliance with the requirement that questioners belong to one of the categories in r 5 will attract consideration of the usual exclusionary discretions of the Evidence Act.

Saturday, 6 October 2012


I don't usually repost or link to other sites without having much to add, but since this is a road safety message from the South Australian Motor Accident Commission, I don't think anyone will mind. The point of the campaign is obviously to get the pics in front of as many eyeballs as possible, and the effort and artistry that have gone into creating them is amazing.

The picture above isn't a real car, but a combination of 17 people who have been painted up like Sherlock Holmes in Game of Shadows.

The pictures are the work of Emma Hack, and they came from AdelaideNow's website, where there's more information about the campaign.

When the original TAC commercials came out in the late 80s and early 90s they generated a lot of attention for their realism. Now the technique has been adopted by everyone from WorkCover to PoolSafe, their confronting documentary style has lost its impact. While TAC continues with shock tactics, other ad makers have looked elsewhere, including to humour, to get their message across.

Here's an ad from South Australia:

And one of my favourites, from New Zealand:

Thursday, 4 October 2012

The giving of reasons

It’s trite to say that the proper exercise of a court's jurisdiction often (though not always) requires the giving of reasons for its decisions. In Shu Zhang v West Sands Pty Ltd [2010] VSC 36, Byrne J said [at 15]:

It has been said again and again that the duty of a judicial officer is to provide adequate reasons for the orders made. This is particularly the case where the orders are made following a contested trial. This was a relatively long contested trial of substantial claims. What may be adequate reasons in a given case will depend upon the circumstances, having regard to the purposes for the giving of reasons. These purposes are to inform the parties why and how the result was arrived at and to inform any appeal court what were the contentions of the parties, what were the facts as found, what were the principles of law relied upon and how these principles were applied. A further reason is the fact that it is often useful for the judicial officer to set out his or her reasoning process as a discipline to ensure that this process was in fact undertaken and that it was intellectually satisfactory.

In his book The Lost Lawyer, Yale Professor Anthony Kronman savages US judgments that, like the proverbial drunk at a lamppost, rely on case law not for illumination but merely for support (at 347):

These are the qualities one sees most clearly reflected in the style of what has become the model opinion in our federal courts: the long and excessively footnoted decision that moves, in a stiffly mechanical way, through a recitation of the different factors bearing on the case at hand to the generally uniformative conclusion that a balancing of them yields a certain result.

But giving voice to a decision in a way that is both authentic and informative is a much more difficult task than it first appears. Juries, of course, are never called upon to publicly justify their decision-making processes. And often, a judgment can only really make sense to the people who were present through the running of a case. In my view, to require all judicial reasons to make sense to people who have just wandered in for the denouement (or are reading that portion of the transcript in isolation) is artificial, if not impossible.

In Ta v Thompson & Anor [2012] VSC 446 the plaintiff, Mr Ta (who I’ll again refer to as the accused, to avoid the confusion caused by the parties’ repeated changes of position) was convicted of possession of a small quantity of heroin in the Magistrates’ Court after a contested hearing. The accused bore the onus of displacing the presumption created by s 5 of the Drugs, Poisons and Controlled Substances Act 1981, discussed here before.

The matter was reheard de novo in the County Court, and he was convicted by a judge. He then sought judicial review of the judge’s finding, alleging an inadequacy of reasons.

Whelan J [at 19]:

The County Court Judge gave her decision orally immediately after counsels’ submissions. She said:

Right. Now, look, I’ve heard evidence from the appellant about a party and people coming and going and people using his room. He said it was orderly before he ... before the party, and it was not afterwards. Usually ... he said the house was tidy, the whole house was half tidy before the police attended; his own room had not been done. That his evidence is the only evidence that I have; I have no-one there ... anyone to say that it was a party and that people were sleeping all over the place. Simply that I would have to accept his word and in the circumstances, I don’t accept it. And I’m going to find ... I find the charges proved. And I find that he did have knowledge, and therefore I will sentence.

Whelan J summarised the relevant principles about the giving of reasons, and their authorities [beginning at 24]:

A failure to give reasons, or adequate reasons, where there is a duty to do so is an error of law: Massoud [1989] VicRp 2; [1989] VR 8. In Victoria, where the reasons are part of the record, such an error is an error of law on the face of the record: Bloomfield v Haralabakos & Anor [2007] VSC 279.

The extent and detail of the reasons required in a particular case will vary depending upon the nature of the case, the complexity of the issues, and the evidence and the submissions made: Massoud [1989] VicRp 2; [1989] VR 8; Fletcher [2002] VSCA 189; (2002) 6 VR 1; Bloomfield [2007] VSC 279; Wakool Shire Council v Walters [2005] VSCA 216, [35].

In Massoud, Gray J (with whom Fullagar and Tadgell JJ agreed), in a passage more recently quoted and approved by the Court of Appeal [in Intertransport v Donaldson [2005] VSCA 303] said:

The simplicity of the context of the case or the state of the evidence may be such that a mere statement of the judge’s conclusion will sufficiently indicate the basis of a decision.

As to what is usually required, Meagher JA’s observations in Beale v GIO of New South Wales (1997) 48 NSWLR 430 to the effect that a judge should refer to the relevant evidence, make material findings, and explain the reasons for the findings and the application of the law to the facts as found, is often quoted: for example, Fletcher [2002] VSCA 189; (2002) 6 VR 1.

Where factual matters are concerned, the reasons ought not to leave the reader to wonder which of a number of possible routes have been taken to the conclusion expressed: Hunter [2005] VSCA 1.

Reasons in an appropriate case may be adequate, even if they are very short [Bloomfield [2007] VSC 279] and it is not necessary to state what is obvious: Hunter [2005] VSCA 1.

Where there is no right of appeal in relation to factual findings, the requirement for the provision of reasons as to factual findings is less rigorous: Perkins [2000] VSCA 171; (2000) 2 VR 246, 273; Insurance Manufacturers of Australia Pty Ltd v Vandermeer [2007] VSC 28, [15]; Cyndon Chemicals v Ultrawash Holdings [2007] VSC 506, [9]; BR v VOCAT [2009] VSC 152.

This is such a case.

Whelan J found that the reasons given were adequate. The judge had identified the onus and decided that the accused had failed to discharge it. That was enough. Perhaps it's not possible to require a judicial officer to specify with precision why a party has failed to prove something to their satisfaction.

Wednesday, 3 October 2012

Wanted: Chief Magistrate. Legal experience necessary.

The government announced today that it has appointed Chief Magistrate Ian Gray as a judge of the County Court, and State Coroner, with effect from 29 November 2012.

That means there will a vacancy for the Chief's job. Although the job description probably won't include "herding cats", no doubt the successful application will need such dexterity for such a demanding and complex job. Ian Gray has seen the Court in to the internet age, where it was one of the first to start a twitter account and implement a social media policy. It will be interesting to see what the future will hold!

Monitoring the public interest

Andrew McIntosh, the Minister responsible for establishing an anti-corruption commission, recently announced the appointment of Brendan Murphy QC as Victoria's first Public Interest Monitor.

The PIM is appointed under the Public Interest Monitor Act 2011. His role is to appear at the Supreme Court and Administrative Appeals Tribunal when investigative agencies apply for confidential or secret applications, and test the basis for those applications and the material they rely on. Queensland has had a PIM for about 14 or 15 years now, and it seems that process is working well in as a check and balance for applications not heard in the public domain.

The Victorian PIM will have the power to appear at and test applications for:

Currently, all these applications are heard ex parte, and without any opponent or contradictor to test them. The government explains, in part, in the second reading speech and statement of compatibility why it thinks the PIM is necessary.

Anyone who knows Mr Murphy will know that he is one of the most able cross-examiners in the state, and will probably provide a new forensic understanding to what 'testing the evidence' means. There is no doubt he will be a formidable guard to the guards.

The Bar's website linked to an advertisement for deputy PIM's. It didn't have a closing date, but I understand applications have closed, and presumably the government is considering any applications.

I reckon I must be one of the few people at the Bar who has the experience of being cross-examined by Brendan and working with him — I can honestly say I far prefer the latter — and I think he is an absolutely first-rate appointment to such an important role. No doubt the various investigative agencies who he will test will be doubling their efforts to cross every 't' and dot every 'i' in their applications.

The PIM won't be a complete panacea for all accused people. Although he will test the sufficiency of material relied on for the various applications, he won't be concerned with whether that material discloses a defence or raises doubt in any subsequent prosecutions. For that reason, I expect we'll still see applications by accused people for affidavits and other supporting material. And they'll still be dealt with as they currently are. But for these matters at least, I expect we will see an end to 'collateral attacks' about whether sufficiency of grounds to grant an application, as discussed in Ousley v The Queen (1997) 192 CLR 69.

Tuesday, 2 October 2012

New member of the team

You may have noticed our posts were fewer and far between in September. Well, I've been busy ...

Luke Manhattan was born this week. This photo was taken when he was three hours old.

Welcome to the world, little man.