Thursday, 29 November 2012

VLA funding

Today the Law Institute sent out invitations to a meeting on Monday to discuss the further tightening of eligibility criteria for Legal Aid assistance.

The LIV have been told that the following proposals are currently before the VLA Board for consideration:

    1. That the eligibility threshold for summary crime be raised so that only those cases which carry an immediate term of imprisonment as the likely outcome will be aided

    2. That the fees payable to instructing solicitors will be limited to two half days per trial

    3. That grants of aid payable in youth crime matters will be cut

Each time I hear of another round of these proposals I'm reminded of the economic concept of externality - the generation of an external cost borne by a party who was not involved as either a buyer or seller of the goods or services causing the cost or benefit. While improvement to VLA's bottom line might seem superficially attractive, I wonder what the longer-term consequences of these decisions will be to the court system generally, and to our community as a whole.

I will be at the meeting on Monday. I'll let you know how it goes.

Tuesday, 27 November 2012

New Chief Magistrate

Back in October I mentioned that the current Chief Magistrate Ian Gray is to be appointed to the County Court with effect from 29 November 2012.

The Attorney-General announced today that Peter Lauritsen will be the next Chief Magistrate from 29 November 2012.

I mentioned in my earlier post that the new Chief Magistrate would need to be adept at herding cats. What with trying to keep a veritable throng of court users satisfied (if not happy), ranging from accused people and self-represented litigants, to the Law Institute, Victorian Bar, solicitors, and lawyers, and various prosecuting and support agencies, the Chief Magistrate has a varied and at times demanding constituency. I wish him well in his new job.

Wednesday, 21 November 2012

Vehicle forfeiture provisions invalid?

The new-ish Chief Justice of South Australia recently delivered an interesting judgment about the SA vehicle forfeiture provisions, Bell v Police [2012] SASC 188. Because of the similarities with Victorian legislation, the case is bound to receive consideration here.

In short, Kourakis CJ considered those provisions — found in the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) s 12 — and held they are invalid because they require a court to act inconsistently with the judicial integrity implication from Kable v DPP (1996) 189 CLR 51.

As an aside, this is a really easy-to-read judgment, because His Honour set out in the first 10 paragraphs — two-and-a-bit pages — what the appeal was about, and which of the two arguments for the appellant he accepted and rejected. That means when you read it, you already know the structure and the significance of his analysis. It's really nice to see for such a complex area. It's a style of writing journalists call inverted pyramid structure. The great thing about seeing this is a judgment is that when judges do it, it leads the way for advocates every where to follow. IMHO that can only be a Good Thing! (Bryan Garner says much the same thing in many of his texts on written advocacy.)

The legislation

Two provisions to note from the SA legislation are s 4 and s 12.

Section 4 provides:

4—Powers under Act in addition to other penalties

(1) A power exercisable under this Act is exercisable in addition to any other penalty that may be imposed on a person in relation to a prescribed offence.

(2) However, a court must, in imposing another penalty on a person in relation to a prescribed offence, have regard to any exercise of powers under this Act.

Section 12 of the SA legislation provides:
12—Court order for impounding or forfeiture on conviction of prescribed offence

(1) Subject to section 13, if this Part applies to a conviction for a prescribed offence, the court that records the conviction must, on the application of the prosecution

(a) order that the motor vehicle specified in the application is forfeited to the Crown if—

(i) the offence is a forfeiture offence; or

(ii) the convicted person has been found guilty of or expiated at least 1 other prescribed offence committed or allegedly committed within 12 months of the date of the offence; or

(iii) the convicted person has been found guilty of or expiated at least 2 other prescribed offences committed or allegedly committed within 10 years of the date of the offence;

(b) order that the motor vehicle specified in the application be impounded by the relevant authority for a period not exceeding 6 months if—

(i) the convicted person has been found guilty of or expiated 1 other prescribed offence committed or allegedly committed within 10 years of the date of the offence; and

(ii) paragraph (a) does not apply.

(1a) If the court makes an order under subsection (1), it must also order that the convicted person pay to the relevant authority fees calculated in accordance with the regulations in relation to the forfeiture or impounding of the motor vehicle.

This is roughly equivalent to Road Safety Act 1986 (Vic) s 84T. The difference is that s 84T says a court may order forfeiture of a car, subject to s 85Z. The difference is important.

Section 85Z purports to limit a Court's discretion to order forfeiture, and I suspect it was probably intended to operate in much the same way as the SA legislation. But, on a careful reading, what is seems to actually do is restrict a Court's discretion to not order forfeiture, but only when it does so on the basis of exceptional hardship. (I discussed that exception in May 2011 here.)

So, if a Court declined to order forfeiture on the ground that the punishment would be be more severe than is necessary to achieve the purposes of sentencing as set down in s 5(3) of the Sentencing Act, Road Safety Act s 85Z says absolutely nothing about that. Nor does the second reading speech or explanatory memorandum for the amendments that introduced s 85Z. I think this view is supported by s 84D, which provides:

84D. This Part does not affect other penalties

The impoundment, immobilisation or forfeiture of a motor vehicle under this Part arising out of the commission of a relevant offence is in addition to, and does not limit or otherwise affect, any penalty that may be imposed on the person for the relevant offence other than under this Part.

The reason I say this is important is because it is the mandatory nature of vehicle forfeiture that resulted in the SA Supreme Court holding that those provisions were invalid. If the Victorian provisions are mandatory, then they are probably invalid too.

Now, if your eyes are already glazing over getting your head around all these different sections, don't forget our aidé memoire for the vehicle impoundment provisions available here.

Prospective or retrospective operation?

The appellant was ordered to forfeit his car to The Man after he was found guilty on 10 January 2011 of drink-driving on 4 December 2010. The drink-driving offence — or 'confiscation offence' — was prescribed as a forfeiture offence from 16 December 2007, when the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 commenced operation.

The appellant argued the legislation was retrospective for two reasons. First, because the qualifying offences weren't qualifying offences when he committed them.

A person is liable to forfeiture when they commit a qualifying offence and have been found guilty or expiated two other prescribed offences — termed 'qualifying offences' by Kourakis CJ — within ten years of the confiscation offence.

This seems simple enough, but the legislation doesn't say the ten years must run before the confiscation offence.

If it only operates historically — if only qualifying offences committed before the confiscation offence can be considered — it won't operate retrospectively, according to Kourakis CJ.

Even if the qualifying offence wasn't prescribed as a qualifying offence when the person committed the offence.

That's because the person isn't liable to forfeiture of their car until they commit the confiscation offence. The legal effect of the qualifying offences isn't changed until then, so there isn't any retrospective operation: [25] – [32].

The second argument by the appellant was that because qualifying offences could potentially be relied on after the confiscation offence, even though they might not have been prescribed as qualifying offences when they were committed (and, for that matter, when the forfeiture offence was committed too), the legislation breached the prohibition against retrospectivity.

The Court dealt with that by referring to s 10, which provides that a person is taken to have been found guilty of or to have expiated a prescribed offence if the person has been found guilty of or expiated an offence that is a prescribed offence (as defined) at the time the application is made.

(I reckon that means all these provisions can only operate as you and I would expect: the driver must have two 'relevant priors' that pre-date the confiscation offence. Only then can the prosecution make a forfeiture application. If that's right, it shoots down the whole application-up-to-ten-years-after-the-event concern the Court had in this case.)

One point neatly resolved in this case is the query I posed in my earlier post: what's the position for a driver who committed relevant offences that weren't relevant offences at the time of offending? At [36] - [43], the Court listed four reasons why it was enough if the offences were prescribed — 'relevant offences' in the Victorian nomenclature — at the time of the application at Court. (I won't rehash them here; you can read them for yourself if you need to.)

Double punishment?

At [44] – [48] the Court dealt with the appellant's alternative argument that forfeiture amounted to double-punishment, additional to the sentence he received for the confiscation offence.

His Honour held the forfeiture didn't offend the prohibition on double-punishment.

The forfeiture order can only be made upon the offender’s conviction for the confiscation offence and it is with respect to that offence that forfeiture is imposed as a penalty. It is a well established sentencing principle that, all other things being equal, an offender with an antecedent criminal history, will receive a more severe penalty for a particular offence, than a first offender. The greater penalty is not an additional punishment for the other offences but reflects the heightened need for personal deterrence. So too for forfeiture imposed under the Forfeiture Act, the commission of the qualifying offences is a reason for making the forfeiture order, but it is made on conviction of the subsequently committed confiscation offence. The distinction is subtle, but is one of substance and not just semantics: at [45].

Maybe I missed something, but to me, the distinction is so subtle that it's non-existent. If a Court sentences someone for the confiscation offence, and takes into account their antecedent history and decides the offender deserves a bigger whack than someone with no history, and then on some later date, following an application from the prosecution, confiscates the driver's car, how can that be anything but a further punishment? Indeed, at [44], His Honour even noted, "The confiscation of an asset of such relative importance is undoubtedly a severe penalty. It is also a symbolic penalty. The primary effect of a forfeiture order is plainly punitive and for that reason it also operates as a general and personal deterrent." Sounds like a duck; walks like a duck...

His Honour did hold that forfeiture orders made based on qualifying offences committed in the future would amount to double-punishment. (I'm not convinced that can occur, given the operation of s 10 discussed above.) In any event, His Honour considered that Parliament indicated it intended to abrogate the rule against double-punishment. That might be so, but I don't understand how Parliament could lawfully do so. Section 50 of the Acts Interpretation Act 1950 (SA) — almost identical to s 51 of the Interpretation of Legislation Act 1984 (Vic) — expressly provides that a person is not liable to double-punishment. And s 4(2) of the SA forfeiture legislation seems to accept that, stating, that a court must, in imposing another penalty (emphasis added) on a person in relation to a prescribed offence, have regard to any exercise of powers under this Act.

I argue that forfeiture does amount to additional punishment. The way that a court can avoid infringing the prohibition against double-punishment is to impose a sentence for a confiscation offence contemporaneously with the forfeiture application, so that it's part and parcel of the overall instinctive synthesis. Contrast this with things such as sex offender registration and monitoring in Victoria, where s 5 of the Sentencing Act expressly prevents a court from considering the consequences of those ancillary orders.

Judicial integrity

In Kable v DPP (NSW) 1996) 189 CLR 51 the High Court considered the validity of State courts. Though State courts are subject to State Constitutions, because they can exercise federal power under s 39 of the Judiciary Act 1903, they must conform with prescribed requirements for judicial institutions in Chapter III of the Constitution of Australia. In Momcilovic, the High Court referred to the Kable principle as the repugnancy doctrine. Whatever you call it, the basis idea is that courts can't be legislatively compelled to make decisions that have the effect of just rubber-stamping executive decisions. For example, legislation was invalid when it required a court to make a control order for people only because they were bikies, with no judicial consideration of their guilt or risk they posed: South Australia v Totani (2010) 242 CLR 1.

The appellant succeeded on this point, with the Court accepting that the confiscation provisions offended the judicial integrity principle from Kable.

[75] In my respectful opinion, the above cited passages show that at the core of the judicial integrity implication lies a requirement that there be a rational connection between the adjudicative function invested in the court and the powers it must, or may, exercise. Legislation conferring a jurisdiction or power on a court will only be compatible with the judicial integrity implication if the orders which the court must, or may, make have a rational connection to findings of fact, and judgments on those facts, which the court itself has made.


[78] Questions of incompatibility with the judicial integrity implication loom larger when the legislative scheme, instead of proscribing specified conduct and providing for penalties or other orders in the case of breach, authorises, in prescribed circumstances, executive and judicial action to derogate from the otherwise lawful freedom of action, or property rights, of individuals.[49] It is also one thing for Parliament to provide a statutorily prescribed mandatory penalty for criminal conduct and quite another for it to allow the executive to nominate in its application to the Court an additional penalty of its choosing which a court must impose to depend on the selection...

[81] The scheme adopted by the Forfeiture Act has four core elements which together are incompatible with the judicial integrity implication. First, it disguises an executive decision to extract a forfeiture as an application to a court and by so doing largely immunises the decision from judicial review. Secondly, the Forfeiture Act denies that court any substantive judicial function with respect to that application by mandating the order it must make so as to ensure that the executive’s decision is given effect. Thirdly, it secures for an essentially executive order the immunity from collateral attack which only judicial orders enjoy. Fourthly, the object of the scheme is to require courts to impose a penalty selected by the prosecution in addition to the penalty they have already imposed in the exercise of the sentencing power.


[83] I acknowledge the dispensing power conferred by s 13 of the Forfeiture Act. However the scope of the power is limited, in the case of defendants, to cases of “severe financial or physical hardship”. The forfeiture of a motor vehicle would cause substantial financial hardship to most defendants. Something much more than the hardship which forfeiture would ordinarily cause must be shown. In the generality of cases no dispensation can be given. In any event the judicial power to exempt a defendant in a particular case on hardship grounds does not meet the constitutional objection to the nature of the primary power and the manner of its exercise.

In essence, the vice here is that the prosecution chooses if and when it will make a forfeiture application. Once made, the court is compelled to make the order if the offender comes within the scope of the legislation. There is no adjudication for the court to perform; it simply must make the order, unless some very narrow exceptions apply.

So long as this legislation is said to be mandatory or obligatory, I think it's likely to fall foul of the repugnancy doctrine.

For good measure, another Constitutional argument that might crop up is the prohibition on acquisition of property except on just terms, in s 51(xxxi) of the Constitution. I'm no Constitutional lawyer, and I haven't looked into the point in any detail, but I wonder if there's a difference between a penalty — where the court can require an offender to give up a fungible asset in the form of money — and forfeiture of a lawfully owned and specified chattel that is not necessarily associated with the offence that founds the forfeiture?

Apparently the South Australian Attorney-General is appealing this judgment, so it might be overturned on appeal, or else there is no doubt the government will try to amend the legislation.

Monday, 19 November 2012

Sentencing discounts

The Criminal Law (Sentencing) (Guilty Pleas) Amendment Bill 2012 (SA) caught my eye today. This bill recently passed the South Australian Parliament, and amends the Criminal Law (Sentencing) Act 1988 (SA).

The legislation encourages sentencing discounts for early pleas of guilty, and provides proportional limits on the discounts that can be offered, depending on when the plea is entered. It implies a 40% discount may be available at first mention of a matter, and then up to a 30% discount at any other time prior to contested hearing.

The new s 10B will read:

10B — Reduction of sentences for guilty plea in Magistrates Court etc

(1) This section applies —

(a) if the sentencing court is the Magistrates Court; or

(b) if the sentencing court is sentencing in relation to a matter dealt with as a summary offence; or

(c) in any other circumstances prescribed by the regulations.

(2) Subject to this section, if a defendant has pleaded guilty to an offence or offences —

(a) not more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences — the sentencing court may reduce the sentence that it would otherwise have imposed by up to 40%;

(b) more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences but —

(i) if a date has been set for a trial for the offence or offences — not less than 4 weeks before that day; or

(ii) in any other case — before the commencement of the trial for the offence or offences,

the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;

(c) less than 4 weeks before the day set for trial for the offence or offences, and if the defendant satisfies the sentencing court that he or she could not reasonably have pleaded guilty at an earlier stage in the proceedings because of circumstances outside of his or her control — the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;

(d) in circumstances other than those referred to in a preceding paragraph — the sentencing court may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed by up to 10%.

(3) If —

(a) the maximum reduction available under subsection (2)(a) does not apply in relation to a defendant's plea of guilty because the defendant did not plead guilty within the relevant period; and

(b) the court is satisfied that the only reason that the defendant did not plead guilty within the relevant period was because —

(i) the court did not sit during that period; or

(ii) the court did not sit during that period at a place where the defendant could reasonably have been expected to attend; or

(iii) the court was, because of reasons outside of the control of the defendant, unable to hear the defendant's matter during that period,

the court may nevertheless reduce the sentence that it would otherwise have imposed as if the defendant had pleaded guilty during the relevant period.

(4) In determining the percentage by which a sentence for an offence is to be reduced in respect of a guilty plea made within a particular period, a court must have regard to such of the following as may be relevant:

(a) whether the reduction of the defendant's sentence by the percentage contemplated would be so disproportionate to the seriousness of the offence, or so inappropriate in the case of that particular defendant, that it would shock the public conscience;

(b) the stage in the proceedings for the offence at which the defendant first indicated his or her intention to plead guilty (including whether it would, in the opinion of the court, have been reasonable to expect the defendant to have done so at an earlier stage in the proceedings);

(c) the circumstances surrounding the plea;

(d) in the case where the defendant has been charged with more than 1 offence—whether the defendant pleaded guilty to all of the offences;

(e) whether or not the defendant was made aware of any relevant matter that would have enabled the defendant to plead guilty at an earlier stage in the proceedings,

and may have regard to any other factor or principle the court thinks relevant.

Section 10C creates a similar provision for trial courts, but the discounts are smaller and the time periods slightly longer.

These provisions don't break new ground for South Australian courts, but represent tinkering with the existing system designed to encourage early pleas. Other states have them, too. When these 'transparent and understandable' discounts were first proposed in SA Parliament earlier this year, they provided for stricter discount limits, and were criticised from some quarters for reducing the discretionary powers of the judiciary and reducing the incentive for offenders to plead guilty. The proportional limits were increased.

But 30% or 40% of what? Sentencing practices vary so widely that what may be one magistrate's substantial discount on a plea may still be a harsher penalty than what would be awarded by a different magistrate after a contest. Nobody has found a solution to that issue yet.

Thursday, 15 November 2012

Legislation Watch: Justice Legislation Amendment (Family Violence and Other Matters) Bill 2012

Police Pursuit Amendments

Today the Victorian government announced their intention to create a new offence for drivers who avoid stopping their car when the police want them to.

The proposed offence is contained in the Justice Legislation Amendment (Family Violence and Other Matters) Bill 2012. The Explanatory Memorandum for it can be found here. A forced commencement date of 1 Jul 2013 is proposed.

The new offence is intended to be inserted into the Crimes Act 1958, and provides:

319AA Dangerous or negligent driving while pursued by police

(1) A person must not drive a motor vehicle dangerously or negligently if he or she knows, or ought reasonably to know, that—

(a) he or she has been given a direction to stop the vehicle by a member of the police force; and

(b) a member of the police force is pursuing the vehicle.
Penalty: 3 years imprisonment.

(2) For the purposes of subsection (1)—

(a) a person drives a motor vehicle dangerously if he or she drives the vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case; and

(b) a person drives a motor vehicle negligently if he or she fails unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances of the case; and

(c) a member of the police force may be pursuing a motor vehicle even if not travelling at the same speed as the vehicle; and

(d) it is irrelevant that the police pursuit is suspended or terminated before the motor vehicle being pursued stops.

Offences for failing to stop while being chased by the police already exist in the Road Safety Act at s 64A and, to a lesser extent, at Rule 304 of the Road Rules. This new offence is also punishable by a minimum licence disqualification of 12 months, and the impoundment of the vehicle as a Tier 1 offence under s 84C(1).

Whatever the merits of the legislation, the announcement couldn't be more timely, with another pursuit ending in injury (this time to occupants of both cars) this afternoon.

Family Violence Amendments

The Bill also proposes the introduction of new indictable offences for contravention of Family Violence Safety Notices and intervention orders.

37A Contravention of notice intending to cause harm or fear for safety

(1) In this section—

mental harm includes—

(a) psychological harm; and

(b) suicidal thoughts.
(2) A person who—

(a) has been served with a family violence safety notice; and

(b) has had an explanation of the notice given to him or her in accordance with section 35—
must not contravene the notice intending to cause, or knowing that his or her conduct will probably cause—

(c) physical or mental harm to the protected person, including self-harm; or

(d) apprehension or fear in the protected person for his or her own safety or that of any other person.
Penalty: Level 6 imprisonment (5 years maximum) or a level 6 fine (600 penalty units maximum) or both.

At s 123A it's proposed to introduce a new indictable offence for contravention of an intervention order, also making it punishable by a maximum 5 years imprisonment. Like the police chase offence, these new offences reproduce offences already in existence, with minor additional evidentiary requirements but a significantly bigger maximum penalty.

When the offence of breaching an intervention order existed at s 22 of the Crimes (Family Violence) Act 1987 it was punishable (at least in theory) by a maximum penalty of five years imprisonment. But since it was a summary offence, s 113A of the Sentencing Act 1991 limited the maximum penalty that could be imposed by any court to 2 years. (An anomaly discussed by Chernov JA in R v Duncan [2007] VSCA 137, at 13). Consequently, when the Family Violence Protection Act 2008 was enacted it appeared to cut in half the maximum penalty for that type of offence even if, in reality, it had no real effect.

The Bill also proposes a new offence for persistent and repeated breaches of safety notices and intervention orders:

125A Persistent contravention of notices and orders

(1) A person must not persistently contravene a family violence safety notice or a family violence intervention order.

Penalty: Level 6 imprisonment (5 years maximum) or a level 6 fine 20 (600 penalty units maximum) or both.

(2) To prove an offence against subsection (1) it is necessary to prove that—
(a) the accused engaged in conduct that 25 would constitute an offence against section 37 or 123; and

(b) on at least 2 other occasions within a period of 28 days immediately preceding the conduct referred to in 30 paragraph (a), the accused engaged in conduct that would constitute an offence against section 37 or 123 in relation to—

(i) the same protected person; or

(ii) the same family violence safety notice or family violence intervention order (whether an interim order or a final order), whether or not in relation to the same protected person; or

(iii) a family violence safety notice and a family violence intervention order (whether an interim order or a final order) made on the family violence safety notice as an application, whether or not in relation to the same protected person; and
(c) on each of the occasions referred to in paragraphs (a) and (b) the accused knew or ought to have known that the conduct constituted a contravention of the family violence safety notice or family violence intervention order (as the case requires).

(3) In a proceeding for an offence against subsection (1), a defence available under section 37(3) or 123(3) is a defence to an allegation that the accused engaged in conduct that would constitute an offence against section 37 or 123 (as the case requires).

(4) If on the trial of a person charged with an offence against subsection (1) the jury are not satisfied that he or she is guilty of the offence charged but are satisfied that the accused engaged in conduct during that period which constitutes an offence against section 37 or 123, the jury must acquit the accused of the offence charged but may find him or her guilty of that other offence and he or she is liable to punishment accordingly.
Sub-section (4) is an extension of the powers of a trial court under s 239 of the Criminal Procedure Act 2009. In the Magistrates' Court it will presumably still be necessary for the prosecution to lay both this new charge, and each individual charge said to make up the persistent behaviour, if they wish to rely on it as an alternative.

All of these new indictable offences are triable summarily, by virtue of s 28(1)(b)(iii) of the Criminal Procedure Act 2009.

The final point to note is that clause 4 intends to extend the maximum duration of Safety Notices from the current 72 hours (3 days) to 120 hours (5 days).

Thursday, 8 November 2012

Westlaw AU

Recently my Legal Online subscription was 'migrated' over to Thomson Reuter's new Westlaw AU interface.

(Not to be confused with Westlaw Australia, a case law tab found in Westlaw International, which is a clunky resource mostly useful for Canadian, EU, Hong Kong, US and UK cases).

I delayed it for as long as possible, wanting to put off losing another set of bookmarks and having to learn a new set of navigation tools.

The updated Westlaw AU looks neater than the old layout. They aren't afraid of a little blank space. It no longer overwhelms with too much information on one screen, which was my biggest issue with the old interface. And it's much faster.

The content remains the same so far as I can tell but, like with a car, it's the engine that drives the experience. WAU's primary commercial competitor, LexisNexis AU has also improved in recent times, but its search engine continues to offer either too many responses to my search queries, or none. Further refining my searches will eventually get to what I want, but only if I know what I'm looking for and I keep at it.

I'm open to the possibility that it's me that's the problem. But that's kind of my point - Westlaw AU gives me what I'm looking for without putting up the fight.

Tuesday, 6 November 2012

Legislation Watch: Road Safety Amendment (Operator Onus) Bill 2012

This legislation is about to pass the Assembly, and will take effect once it's proclaimed. It has a forced commencement date of 1 July 2014.

The Statement of Compatibility is here, the Explanatory Memorandum is here, and the Second Reading is here.

Clause 4 will insert a new s 84BA into the Road Safety Act 1986, which will read,

84BA Purpose of this Part

(1) The purpose of this Part is to establish an "operator onus" system for certain offences involving motor vehicles or trailers.

(2) The "operator onus" system applies to offences where the identity of the person driving, or in charge of, the motor vehicle or trailer is not established at the time the offence is committed.

(3) The system is based on the principle that, in the circumstances referred to in subsection (2), the person who was the operator of the motor vehicle or trailer at the time of the offence should be held responsible for the motor vehicle or trailer and should be liable for the offence.

(4) However, a person will not be held liable for an offence if the person, where permitted, establishes that, at the time of the offence, the person was not responsible for the motor vehicle or trailer and either—

(a) provides information sufficient to identify and locate the person driving or in charge of the motor vehicle or trailer at the time of the offence; or

(b) explains why the person cannot with reasonable diligence ascertain the identity of the person who was driving or in charge of the motor vehicle or trailer at the time of the offence.

The basic operator onus system currently in operation will be retained, but further amendments are intended to discourage corporations from failing to nominate the driver when a vehicle registered to them is detected by an automatic detection device like a speed camera or red light camera. If the same company fails to nominate a driver three times in the same year it can be prosecuted under a new offence created at s 84BEA, which will carry a maximum penalty of 120 penalty units.

The bill also extends the time for the laying of a charge for giving false or misleading information in a nomination, from the current 12 months to 2 years.

Monday, 5 November 2012

Driving a motor vehicle

Last week I wrote about an unrepresented appellant who challenged a fundamental principle of sentencing in the County Court. While I've previously warned of the serious disadvantage that unrepresented litigants place themselves at, they do occasionally bring a fresh perspective to issues that normally get taken for granted. This doesn't always work out for the appellant but it does, at least, clarify the law for everyone else.

A classic example is the case of George Tsolacis and his challenges to his convictions for offences against s 59 of the Road Safety Act 1986. Tsolacis drove home from work in the early hours of 15 June 1991. As he parked his car and got out he was approached by the police informant, who had been following him. The policeman asked for Tsolacis' licence and details, which he refused to supply.

Winneke P [Hayne and Kenny JJA agreed] in Tsolacis v Kelly [1997] VSC 34, at 2:

On 24 September 1991 [Constable] Kelly laid information against the appellant charging him with two offences against s 59(1)(a) of the Road Safety Act 1986. Relevant the sub-section provides as follows:

"(1) The driver or person in charge of a motor vehicle on a highway has the
following duties-

(a) to stop the motor vehicle, produce for inspection his or her driver
licence document or permit document and state his or her name and
address if requested or signalled to do so by-

(i) a member of the police force ..."
Sub-section (2) of the same section prescribes the penalties for failure to comply with the relevant requests outlined in sub-s 1.

The extent of the powers reposed in police officers by this section is not made abundantly clear by its terms.

The appellant has consistently maintained that he was not in breach of the duty prescribed by the sub-section because, at the time when the request was made, he was not "the driver of a motor vehicle on a highway". It has been, for him, I might say, a protracted and expensive campaign.

After conviction in the Magistrates' Court, the appellant unsuccessfully pursued an appeal to the Supreme Court on the point, then to the Court of Appeal. Through the litigation the appellant insisted, with some persuasive force, that at the time that his licence and details were requested his journey had been completed, and so none of the obligations created by s 59 applied to him.

Winneke P [at 4]:

As His Honour noted, there is no definition in the Act of what persons are taken to be "the driver of the motor vehicle on a highway" for the purposes of raising the duties contemplated by s 59 or, for that matter, for the purposes of other sections in this Act giving rise to similar duties. (See, for example, s 46.) But any sensible construction of the words of the whole of s 59 must, in my view, lead to the conclusion that the "driver" contemplated by the section comprehends a person in the circumstances in which the evidence discloses the appellant to have been in this case."

(Section 46 has been repealed since this case was decided in 1997).

The wording of the legislation would make it seem plausible that the obligations under s 59 only apply while the driving is actually going on. But successive courts interpreted the legislation purposively. The obligations in s 59 apply at any time proximate to, and not remotely from, the driving.

Winneke P [at 4]:

In each case that will be a question of fact. If the narrow construction of the sub-section were to be accepted, the administration and execution of the purposes of the Act by police could be wholly frustrated simply by the driver stopping the vehicle, turning off the ignition and alighting. It is clear from the perusal of the whole of the Act that such a construction was not intended.