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Sunday, 29 April 2012

Jeffrey v Schubert & Anor [2012] VSC 144: sentencing indications available only where summary jurisdiction applies



On review, Forrest J ruled in Jeffrey v Schubert & Anor [2012] VSC 144 that s 60 of the Criminal Procedure Act 2009 only empowers a magistrate to give a sentencing indication where the Magistrates' Court has jurisdiction. An accused who requests a sentencing indication for indictable offences triable summarily (IOTS) in the Magistrates' Court must first consent to the charges being heard summarily.




In Jeffrey v Schubert, the accused was charged with possessing and trafficking amphetamine. A committal hearing took place before Magistrate Bolger in September 2011. Despite the consent of the prosecution, her Honour remained unconvinced that the circumstances allowed for a sentencing indication to be given at a committal, and refused to give an indication.

A request for a summary hearing of a matter listed in the committal stream must be made in writing: Chief Magistrates' Direction No 3 of 2008. This had not been done. To the contrary, it had been flagged to the magistrate that, should the proposed indication not be successful in resolving the matter, the committal hearing would proceed with the cross-examination of witnesses. If committed to trial, the charges would proceed to the County Court.

In these circumstances it was doubtful that the Magistrates' Court had jurisdiction to give a sentencing indication, even though the charges were of a type that could be heard IOTS. The provisions relating to sentencing indications are found at s 60 of the Criminal Procedure Act 2009.

60. Court may give sentence indication

At any time during a proceeding for a summary offence or an indictable offence that may be heard and determined summarily, the Magistrates' Court may indicate that, if the accused pleads guilty to the charge for the offence at that time, the court would be likely to impose on the accused-

(a) a sentence of imprisonment that commences immediately; or

(b) a sentence of a specified type.

On review the plaintiff (the accused in the committal) sought an order in the nature of mandamus that the magistrate must consider giving him the sentencing indication he had asked for. The Supreme Court determined that the magistrate had been correct in refusing the request for an indication.

Forrest J [at 25 and 26]:

I accept that, on its face, s 60 may permit a sentence indication in the course of a committal hearing where summary jurisdiction has not yet been accepted by the Magistrates’ Court. In this case, the proceeding was in relation to indictable offences which were capable of being “heard and determined summarily” as provided by ss 28 and 29 of the CPA. Notwithstanding this conclusion, I am of the opinion that s 60 was only intended to apply to an indictable offence which could be heard and determined summarily in circumstances where the Magistrates’ Court had in fact the power (at the time of the application for a sentence indication) to determine that offence summarily.

In other words, the constituent parts necessary for a summary hearing in such a case: (a) the relevant offence falls within s 28; (b) a determination by the magistrate to hear the matter summarily; and (c) the consent of the accused, must be present before the sentence indication provisions of s 60 and s 61 are engaged.

An accused who requests a sentencing indication in the Magistrates' Court must, it appears, consent to IOTS charges being heard summarily. This raises a number of procedural issues. For example, when a sentencing indication for an indictable offence triable summarily is requested, it seems a magistrate must first satisfy themselves that the matter can, and is appropriate to, be dealt with summarily. If not, the indication could not be given.

It's also unclear what would occur if an accused sought an indication, received it, and then decided they wanted their jury trial.

Sunday, 22 April 2012

Aytugrul v The Queen [2012] HCA 15: the use of statistics in DNA evidence





Aytugrul v The Queen [2012] HCA 15 was handed down last week. This appeal to the High Court concerns DNA evidence and the ways that expert evidence of this kind can be expressed. All members of the Court held that, in this case, the use of both an exclusion ratio and frequency percentage by prosecution forensic experts was admissible and was not unfair.


In this post I’ve tried - with only some success - to stay away from using phrases like matching samples. Experts in the forensic field will never talk (or at least, should never talk) in terms of samples that match or those two samples are the same. The most that can be said when applying a rigorous scientific method is that, when one sample is compared with another, it cannot be excluded as a possibility that both have the same source.

Such a statement by itself has little probative value. The utility of such an analysis for a decider of fact (if any) only comes about when it can be said with certainty that a large number of other potential samples can be excluded as being from the same source as the particular sample.

For example, in the early days of forensic science one of the only tests that could be done with a blood sample left at a crime scene was to test it for type. The most common type in Australia is type O, which almost half of us have. If it was known that a sample of blood found at a crime scene was O, as was the accused, then that evidence alone lacks much probative force. Tha fact that the accused might be the source of the sample lacks much weight on its own, given that half of the population might be, too.

There are a couple of occasions below where, for simplicity’s sake, I do jump into the vernacular and describe two samples as being the same, etc. But that kind of language does a disservice to the science, and tends to confuse the precise issue that Aytugrul v The Queen is about; whether particular information was fairly or unfairly explained to the jury.

The Trial

The accused was charged with the murder of his former partner. She was stabbed to death. A hair follicle was found on her thumbnail during a post mortem examination. A DNA sample of this hair was compared with the DNA of the accused and experts professed that the accused could not be excluded as its source. There were no witnesses to the crime. The case against the accused relied on a number of pieces of circumstantial evidence.

Two experts were called by the prosecution to give evidence of the likelihood (or unlikelihood, depending on the way one looks at it) of the hair sample belonging to the accused. The sample had been compared with a database of 4,389 others from a variety of sample groups. During evidence-in-chief this was expressed as:

A frequency ratio = this is the hypothetical number of people randomly selected that it would be necessary to compare with before finding another sample which could not be excluded. In this case, it was said that this number was 1600 people.

An exclusion percentage = This is the proportion of the general population (I think they mean everybody on the planet) who can be excluded. This was said to be 99.9%. So based on the number of comparisons actually done, it could be mathematically extrapolated so as to expect that only half of a per cent of all living people would share that DNA profile.

Both of these statements express the same concept in different ways. They state mathematical probabilities, rather than certainties relating to this specific set of facts. For example, it was conceded in cross-examination that in a football stadium crowd of 16,000 there might be no other candidates who could not be excluded at all (no matches) or there might be as many as 100. Stating how frequently an event will occur on average only really becomes dependable as the event reoccurs and sample sizes increase.

The Appeal to the Court of Criminal Appeal

The accused was convicted at trial in New South Wales. The NSW Court of Criminal Appeal upheld the conviction, McClellan CJ dissenting. He found that the presentation of the statistics encouraged a ‘subliminal rounding up’ to a probability of guilt of 100%. Unlike the High Court (which did not refer to it at all), McClellan CJ made a direct connection to the the prosecutor's fallacy (discussed here a while ago), in his finding that the exclusion percentage was inadmissible [at 99]:

To my mind and for the reasons identified in GK and Galli, his Honour should have excluded the exclusion percentages from the evidence, all of which invited a subconscious “rounding-up” to 100. It was not sufficient for his Honour to warn the jury against the potential misuse of the percentages. The exclusion percentage figures were too compelling. To my mind his Honour’s directions would not have eliminated the risk of unfair prejudice to the appellant (GK at 341; see also Mason P at 331). That prejudice substantially outweighed the probative value of the evidence.

Simpson and Fullarton JJ disagreed and the appeal was dismissed. Simpson J also quoted Mason P from GK in her strongly worded judgment [at 196, Fullarton J agreeing on this ground]:

GK is not binding authority that evidence of the kind there under consideration is never admissible; it is a conclusion that, on the facts of that case, either s 135 or s 137 could be invoked in order to exclude the relative chance of paternity evidence. Nor is Galli authority for the proposition. Neither is authority for the proposition that “exclusion percentage” evidence is never admissible, nor that such evidence, though admissible, must inevitably be excluded under either s 135 or s 137.

In GK, Mason P said:

It is not the judicial function to give the accused a fighting chance of gaining an acquittal, as if the trial were a horse race and the judge were a handicapper deciding how much weight to place in the Crown's saddlebags. The admissibility of evidence is not in an inverse ratio to its probative effect.

...

Accordingly, if relevant DNA statistical evidence is tendered through a witness of due expertise then its probative weight cannot itself be a ground for withholding it from the jury. Indeed its very significant probative weight is a factor in favour of admission notwithstanding the capacity of extremely high odds to carry a prejudicial overlay.

The evidence, put as it was, was prejudicial: all Crown evidence is intended to be prejudicial. That is why it is tendered. I have been able to discern nothing that suggests that the evidence before the jury, framed as it was, was unduly or unfairly prejudicial, or confusing or misleading such as to raise for consideration either s 135 or s 137.

Nor am I of the view that there was any deficiency in the way in which the jury was directed in relation to the DNA evidence.

The Appeal to the High Court

The appellant was granted special leave in September 2011.

The High Court described the case that came before it in these terms (French CJ, Hayne, Crennan and Bell JJ [at 2]:

This appeal concerns the admissibility of some evidence led at trial about a DNA analysis. A hair found on the deceased's thumbnail had been subjected to mitochondrial DNA testing. The results of that testing showed two things: first, that the appellant could have been the donor of the hair and, second, how common the DNA profile found in the hair was in the community. This second aspect of the results was expressed in evidence both as a frequency ratio and as an exclusion percentage. The expert who had conducted the test gave evidence to the effect that one in 1,600 people in the general population (which is to say the whole world) would be expected to share the DNA profile that was found in the hair (a frequency ratio) and that 99.9 per cent of people would not be expected to have a DNA profile matching that of the hair (an exclusion percentage).

Objection was taken at trial under both ss 135 and 137. Initial arguments there centred around an insufficient basis for the conclusions, rather than the way they were to be communicated to the jury, but later moved to the way the raw data should be communicated to the jury.

Usually, the prosecutor’s fallacy is said to occur when statistics about the probabilities of comparison of forensic samples becomes confused with an assessment of whether the accused actually committed the crime, as a result of something said by the prosecutor or the judge during the charge to the jury. Here, it wasn't the interpretation given to the evidence by the prosecutor or the judge that was in issue, but the method of expression of the experts themselves, and whether that evidence should have been admitted at all.

The High Court did not agree with McClellan CJ’s dissenting judgment that the exclusionary percentage would subconsciously nudge jurors from a consideration of probabilities into an assumption of guilt.

French CJ, Hayne, Crennan and Bell JJ [at 22]

No proof was attempted, whether at trial or on appeal, of the facts and opinions which were put forward (by reference to the published articles) as underpinning the adoption of some general rule that expressing the results of DNA analysis as an exclusion percentage will always (or usually) convey more to a hearer than the evidence allows regardless of what other evidence is given about frequency ratios or the derivation of exclusion percentages. Yet that was the basis on which it was asserted that a general rule should be established to the effect that evidence of exclusion percentages is always inadmissible. And absent the proof of such facts and opinions (with the provision of a sufficient opportunity for the opposite party to attempt to controvert, both by evidence and argument, the propositions being advanced) a court cannot adopt such a general rule based only on the court's own researches suggesting the existence of a body of skilled opinion that would support it.

The question that was presented for consideration in this matter must be identified with greater specificity than is permitted by general reference to how the human mind can or commonly will deal with statistical information. In this case, the question was whether Ms Pineda's evidence of an exclusion percentage accompanied by both reference to the relevant frequency ratio and an explanation of how the exclusion percentage was derived from the frequency ratio was evidence whose probative value was outweighed by the danger of unfair prejudice (s 137) or was evidence whose probative value was substantially outweighed by the danger that it might be unfairly prejudicial to the defendant or, perhaps, be misleading or confusing (s 135).

No reason is shown for answering either form of those more particular questions in favour of the appellant. The evidence given was clear. It was evidence adverse to the appellant but it was in no sense unfairly prejudicial, or misleading or confusing. The exclusion percentage given was high – 99.9 per cent – but relevant content was given to that figure by the frequency ratios that were stated in evidence. As the trial judge pointed out to the jury, the evidence that was given did not, and was not said to, establish that the mitochondrial DNA profile found in the hair definitely came from the appellant. There was no risk of rounding the figure of 99.9 per cent to the certainty of 100 per cent.

The appeal was dismissed. Heydon J (as is now common) penned his own interesting judgment, but was broadly in agrement with his colleagues.

Conclusion

I don’t envy jurors their role of assigning appropriate weight to forensic evidence, or judges their duty of explaining how they should go about it. If given too little information to work with then people with no knowledge of scientific principles may give too much credence to it; but equally, too much explanation and the expert forensic evidence becomes the centrepiece of any trial, overwhelming the other parts of the evidence that should also be considered.

Tuesday, 17 April 2012

No private parking "fines": Director of Consumer Affairs v Parking Patrols Vic Pty Ltd & Anor [2012] VSC 137

Hat tip to Leanne O'Donnell on twitter for this case that might make you cheer for the underdog, Director of Consumer Affairs Victoria v Parking Patrols Vic Pty Ltd & Anor [2012] VSC 137.

Parking Patrols Pty Ltd was associated with Ace Parking Pty Ltd.

[9] Ace Parking is the operator of 24 car parks in the Melbourne metropolitan area. It takes leases of vacant blocks of land, erects signage and installs parking ticket machines at those sites. The third and fourth defendants, Kevin English and James English, organised the design, form and content of the parking tickets issued from the parking ticket machines operated by Ace Parking. Aside from operating its own car parks, Ace Parking also manages a number of large car parks.

[10] Parking Infringements was established as a separate entity at the instigation of Kevin and James English to protect the income of Ace Parking by patrolling Ace Parking car parks and issuing infringement notices to vehicles parked without a ticket or permit. Kevin and James English were responsible for the design, form and content of the infringement notices issued by the employees of Parking Infringements. In May 2009, Parking Infringements changed its name to Parking Patrols Victoria Pty Ltd.

Parking Patrols Pty Ltd issued put notices on cars in Ace Parking car parks suggesting the owners or drivers had committed "offences" and needed to pay a "fine".

The Director of Consumer Affairs claimed this was misleading and deceptive, and sought various forms of declaratory and injunctive relief, refunds for people who had paid the fines, and public notices about the outcome of the proceeding. The applications weren't opposed, and most if not all of the Director's applications were granted.

I won't go through the judgment in fine detail, mainly because it's an easy read and clearly sets out all the issues and evidence. (And partly because I haven't got the time right now but I wanted to mention this case now!)

This has been an issue for some time — see for example The Age here in March 2011 — and the Consumer Law Action Centre has been working on it for quite a while, and has a useful fact sheet here.

Another interesting take on responding to these private "fines", albeit in a UK context, is here on The Barrister Blog of Tim Kevan. Hat-tip for that one to the anonymous UK magistrate who blogs at The Magistrates' Blog. (I don't know of any other Commonwealth judicial officers active in the blogosphere or on twitter: have any of you come across any?)

Sunday, 15 April 2012

Witnessing affidavits and statutory declarations

In the wake of the brouhaha over police affidavits (causing the state government to rush through legislation to retrospectively validate their search warrant applications, discussed here) it's probably timely for everyone who witnesses documents to reacquaint themselves with the formalities.

I don't know how much time law schools spend on this issue these days, but I'm prepared to bet it's not much - which is probably a mistake, given how much time a junior lawyer spends in the preparation of affidavits, and how important the correct procedure can be.

This brochure from the Department of Justice is an easy read:

Honorary Justice Office - Guidelines for Authorised Witnesses

The most common mistake I frequently see being made (other than a witness failing to legibly state their qualification for receiving affidavits or witnessing statutory declarations) is a corporation purporting to swear an affidavit, rather than having an officer of the corporation swear it on behalf of the company.

Thursday, 12 April 2012

Imitation firearms

The Control of Weapons and Firearms Acts Amendment Bill 2011 passed Parliament last month. It received Assent on 20/3/12. It will take effect on the 1st October 2012, unless proclaimed earlier.

Its Explanatory Memorandum is here. The Second Reading is here.

The Bill describes a new indictable offence in the Control of Weapons Act 1990 prohibiting prohibited persons from possessing, carrying or using imitation firearms, whether or not the firearm is registered. The maximum penalty for this offence will be 1200 penalty units or 10 years imprisonment: s 5AB(2). This is a higher maximum penalty than was previously available, but not the 1800 penalty units or 15 years imprisonment that applied when an imitation firearm was still considered to be a firearm under s 5(1A) of the Firearms Act.

New section 5AA makes it an offence for a person to possess, use or carry a prohibited weapon, other than an imitation firearm, without an exemption or approval. The maximum penalty remains 240 penalty units or 2 years imprisonment. This offence is similar to the existing section 5(1)(e), which is being repealed, but excludes imitation firearms.

New section 5AB creates separate offences relating to the possession, use or carriage of imitation firearms. New section 5AB(1) makes it an offence for a non-prohibited person to possess, use or carry an imitation firearm without an exemption or approval. The maximum penalty remains 240 penalty units or 2 years imprisonment. The offence only applies to nonprohibited persons due to the creation of a separate indictable offence for prohibited persons in new s 5AB(2) Fireams Act 1996.

Crimes Act offences

More than a year ago I pointed out the changes to the Firearms Act 1996 and Control of Weapons Act 1990 that made possession of a replica firearm no longer subject to the same penalties as possession of the real thing.

That post, about the Firearms and Other Amendments Act 2010, is here. The amendments took effect from 1st July 2011.



I should have mentioned that these changes don't have any impact on the firearms offences contained in the Crimes Act 1958.

For example, section 31A of the Crimes Act reads,

31A. Use of firearms in the commission of offences


(1) A person who is found guilty of an indictable offence and who carried-

(a) a firearm (within the meaning of the Firearms Act 1996); or

(b) an imitation firearm (within the meaning of section 29(3)(b))-


when committing the offence is guilty of a further offence and is liable to
level 6 imprisonment (5 years maximum).

(2) Despite anything to the contrary in the Sentencing Act 1991 or in any
other law, a court, in imposing a penalty under subsection (1)-

(a) must direct that the sentence not be served concurrently with any other sentence; and

(b) must not make an order suspending the whole or any part of the sentence.


Importantly, the definition of firearm under (1)(a) is drawn from the Firearms Act, the definition of imitation firearm isn't. Instead, that definition comes from s 29 of the Crimes Act (creating an offence for using a firearm for resisting arrest) and reads (in part),

(3) In this section-

(a) firearm has the same meaning as in the Firearms Act 1996; and

(b) imitation firearm means anything which has the appearance of being a firearm whether or not it is capable of discharging any shot or other missile.


This definition was not altered by the enactment of the Firearms and Other Amendments Act 2010, or the Control of Weapons and Firearms Acts Amendment Act 2011.

Offences under ss 29, 31A and 31B are triable summarily, but only barely. They carry maximum penalties of Level 5 and 6 imprisonment, respectively.

Offences of aggravated burglary and armed robbery also rely upon this Crimes Act definition. Of these two, only the former can be dealt with summarily, and only then if it involves an intention to steal an amount less than $100,000.

The 2010 amendments endorse a more lenient approach to the possession of an imitation firearm when that is the only charge before the court. But when a replica firearm was used in connection with another offence, the penalties remain severe.

Tuesday, 10 April 2012

Dangerous sneezing

Last week (here) Elucubrator digested Dover v Doyle [2012] VSC 117.

For what it's worth, I found nothing nothing surprising in Bell J's finding that an offence under s 56 of the Road Safety Act 1986 must be conscious and voluntary. It hardly seems necessary, let alone desirable, to punish a person for conduct that is literally beyond their control.

His Honour referred in passing [at 37] to Ahadizad v Emerton [2002] ACTSC 20 as an illustration of the principles relating to voluntariness in Jiminez v The Queen (1992) 173 CLR 572 and R v Falconer (1990) 171 CLR 30. The case involved a claim that a bout of sneezing was responsible for a car crash.

Sadly, Victorian law has recently dealt with invented claims of involuntariness. In Ahadizad v Emerton it was common ground that the sneezing was genuine.

Miles CJ [at 2]:

The Magistrate found that the appellant was driving a car south along Boddington Crescent, Kambah at 5:30 am on Thursday 19, October 1999 with the headlights on, at a speed of 60 kilometres per hour. As he passed the Carleton Street shops, the appellant felt an irritation but did not consider it an indication that he would suffer a sneezing attack. Some 350 metres after that, he did suffer a six second sneezing attack, travelling a distance something in excess of 100 metres whilst sneezing and with his eyes mostly closed. By the time the sneezing attack had finished, the appellant's vehicle had mounted the kerb of the incorrect side of the road and had travelled a further 18 metres. The appellant then regained control of his vehicle and attempted to move back to the correct side of the road and in the process collided with an oncoming vehicle which had moved in a similar attempt to avoid collision.


Consistently with the earlier authorities, it was considered that the offence charged (dangerous driving under s 129(1) of the Motor Traffic Act 1936) would have to be proven to be voluntary to be made out. In the ACT, as in other jurisdictions, no specific intent is required to prove driving dangerously: R v Coventry (1938) 59 CLR 633. But unlike in Jiminez, where it was clear that a person who was unconsciousness could not be acting voluntarily, the Court in Ahadizad v Emerton found that the accused's loss of control was not total.

Miles CJ [at 6]:

The Magistrate recognised the severity of the attack in describing it as a "fit". In argument there was some doubt as to how to classify a sneezing attack. It is clear from cases such as Jiminez at 282-283, as indeed from human experience, that once a driver falls asleep the driving thereafter is neither conscious nor voluntary. There is obiter in Hill v Baxter [1958] 1 QB 277 that a loss of control caused by a sudden attack by a swarm of bees is sufficient to render involuntary acts done in mechanistic response to the attack. However all cases depend on the circumstances. The effect of a sneezing attack is not absolute. Even during rapid and severe sneezing one still has a modicum of control. In the present case the degree of sneezing was such that it was open to the Magistrate to find that the appellant could and should have applied the footbrake.

The appellant also contended that the Magistrate's reasoning was based on a false assumption that it is dangerous to continue to drive during a sneezing attack. This contention does not fall within the ground of appeal. However if it were considered, it would fail. What is dangerous is a question of fact. A court may take judicial notice of facts that are so generally known that every ordinary person may be reasonably presumed to be aware of them: Holland v Jones [1917] HCA 26; (1917) 23 CLR 149. Driving and sneezing are each a common experience. It was open to the Magistrate to find that to continue to drive during a sneezing attack is dangerous.

Thursday, 5 April 2012

Geographical jurisdiction always important!

One of my old air force buddies sent me this little gem, highlighting not just the importance of getting the elements of an offence right, but also the geographical jurisdiction.
Dopey policeman tries to arrest shopkeeper in Wales under Australian law

Police chiefs in South Wales were forced to apologise after an over-zealous policeman threatened to arrest a shop owner for selling bongs, mistakenly quoting Australian law to claim that the sale of the smoking pipes was illegal.

The as yet unnamed policemen spotted the bongs for sale in the Savers Xtra store in Bargoed, near Caerphilly in South Wales. Perhaps excited by the potential criminal activity going on in the small Welsh town, the policeman rushed back to the office to (possibly) Google "bongs" and "South Wales law". Armed with a printout of an act stating that the sale of bongs was illegal, the policeman returned to Savers Xtra to warn the shopkeeper to stop selling the smoking pipes or to face arrest.

Sadly for the conscientious cop he had mistaken New South Wales (where selling bongs is illegal) for South Wales (where shops can sell as many bongs as they wish).

Humiliatingly for the policeman a supplier to the store was rather more on the ball and pointed out the mistake. Gwent police have now apologised to the shopkeeper and the bong smokers of Bargoed can breathe a collective sigh of relief.

A police spokesman said "The officer in question was acting in good faith but on this occasion we got it wrong".

The story crops up in a few other sources, including The Telegraph, so seems it's probably true rather than apocryphal.

Perhaps the PC was just having a bad day...

Wednesday, 4 April 2012

Dover v Doyle [2012] VSC 117: knock on the head knocks refusal case on the head

Last week the Supreme Court held that refusing a blood test must be done consciously and voluntarily in order to attract criminal liability.

Dover v Doyle [2012] VSC 117 concerned judicial review of a County Court appeal against a Magistrate's finding.

Background


On 5 December 2007 Deborah Dover hit her head on the road when she was driving. Quite how that happened isn't explained in the judgment. (Perhaps she had an accident?) She was taken to hospital, and a doctor tried to take a sample of her blood for eventual alcohol analysis. She was aggressive and uncooperative, and refused to allow the doctor to take her blood.

She was charged with refusing to permit a blood sample, contrary to s 56(2) of the Road Safety Act.

At the County Court, the requesting doctor gave evidence and apparently said that Mrs Dover behaviour been from a severe head injury. Ms Dover's treating neurologist supported that. (Again, it's not clear if he gave evidence or provided an expert report admitted in evidence.)

The County Court held it was not an element of the offence for a refusal to be a conscious and voluntary act, and so convicted Ms Dover of the offence.

She sought review of that at the Supreme Court. (This is the only mechanism available to an accused person following a County Court appeal. A recent example of trying the other pathway — an appeal under the Criminal Procedure Act — and the lack of success that seems likely is Brown v Loveday [2012] VSCA 57.)

Voluntariness


At [17] – [40] the Court reviewed many of the leading authorities on voluntariness, both generally in the criminal law and in driving offences. I'm not going to cut-and-paste them all here, but they do bear reading: it's a great summary of the cases and principles.

Bell J noted the presumption of voluntariness (citing R v Falconer (1990) 171 CLR 30) and that the accused must meet an evidentiary burden to raise voluntariness as a real issue before the prosecution must prove this as a separate element rather than rely on the presumption.

Bell J summed up his review of the authorities by saying:
[40] On these authorities, it is a basic and fundamental principle of the common law that a person is criminally responsible only for their conscious and voluntary acts. The prosecution must therefore establish beyond reasonable doubt that the act constituting the alleged crime was done in the exercise of the accused’s will to act. As there is an evidentiary presumption of voluntariness, it is not usually necessary for the prosecution to supply express proof of this element. But where the issue is legitimately raised, the prosecution must prove beyond reasonable doubt that the accused’s acts were conscious and voluntary. These general principles apply equally to statutory offences, including driving offences, subject to contrary provision.

Voluntariness an element of refusing?


His Honour then turned to the real issue in this case. I confess I didn't know of any cases on all-fours with this scenario: I'd simply assumed that voluntariness was an element, and when raised had to be proved beyond reasonable doubt by the prosecution. (There's one case of Russell (1993) 70 A Crim R 17 which suggests the possibility — and now that I look that up, Cooper v McKenna; Ex parte Cooper [1960] Qd R 406 and Edwards v Macrae (1991) 14 MVR 193 — but it doesn't really go any further than that.)

The Court then considered s 56, and held nothing there displaced the presumption of legality — the presumption that Parliament does not intend to interfere with common law rights and freedoms except by clear and unequivocal language: Momcilovic v The Queen (2011) 209 A Crim R 1 at [43].
[48] In my view, the provisions of s 56(2) do not expressly abrogate the principle of voluntariness. Nor do the provisions implicitly abrogate that principle. There is nothing in the language of s 56(2), the context of the section or the legislation as a whole or the legislative purpose to suggest unmistakably and unambiguously that the provisions should be interpreted so as to abrogate the principle. In s 56(2), the word ‘allow’ is a verb meaning ‘permit’. The person ‘must allow’ the sample to be taken, which compels them actively to permit the sample to be taken. The active step of allowing, in the sense of permitting, a sample to be taken can only be taken by someone acting consciously and voluntarily. Their intention is not relevant, but their acts must be conscious and voluntary.

The Court held that voluntariness was indeed an element of the offence, and remitted the case back to the County Court for 'hearing and determination according to law'.