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Wednesday, 27 June 2012

Magistrates' Court website changes

The Magistrates' Court of Victoria has announced it will be overhauling its website. It says,

The redevelopment aims to improve the usability of the site, add features such as RSS feeds, and ultimately improve the on-line service that the Court provides.

The new version should be running by Friday.

A couple of new Practice Directions are also being brought in for the new financial year.

Practice Direction No 4 of 2006, which regulates the conduct of Court 1 at Melbourne Magistrates' Court, is being revoked. It hasn't been followed for a long time. Instead, Practice Direction No 5 of 2012 will take effect on July 1.

Practice Direction No 6 involves gaol orders. It introduces a new form requiring more information than the standard form provided at Schedule 2 of the Corrections Regulations 2009.

Specifically, the Magistrates' Court wants to know why an audio/visual link isn't being used (a reversal of the traditional presumption), and whether the other party is aware of the application for a gaol order.

Unlike Direction No 5, the direction about gaol orders doesn't seem limited to proceedings at Melbourne Magistrates' Court.

Sunday, 24 June 2012

King v The Queen [2012] HCA 24: Dangerous driving does not require negligence


The appellant (who had been convicted of culpable driving) unsuccessfully argued in King v The Queen [2012] HCA 24 that flawed jury directions had deprived him of the opportunity of conviction on a lesser charge, s 319 Crimes Act. Rejecting the argument 3-2, the High Court considered the nature of dangerous driving; its history, purpose, and relationship to other offences where use of a motor vehicle has created actual or potential danger to other road users. The plurality said dangerous driving might involve negligence, but doesn't have to. It's not appropriate to treat dangerousness as a patch between the gross negligence of s 318(2)(b) of the Crimes Act and carelessness under s 65 Road Safety Act. It's not necessary to read into the legislation the requirement of proof of criminal negligence that isn't there. The Victorian Court of Appeal erred in R v De Montero (2009) 25 VR 694 when it said dangerous driving does necessarily involve negligence.


An offence under s 319 of the Crimes Act requires proof of dangerous driving causing death or serious injury. The test for dangerous driving is the same for s 319 as it is for an offence under s 64 of the Road Safety Act, the consequences of the dangerous driving being the difference between the two: R v De Montero (2009) 25 VR 694, referring to the Law Reform Commission of Victoria, Death Caused by Dangerous Driving, Report No 45 (1992) at 31.

Many judgments over the years have purported to set out the appropriate test for dangerousness, some by reference to previous authority, others attempting to coin their own tests. Starke J said in the refusal of leave to appeal to the High Court in R v Coventry (1938) 59 CLR 633 [at 635] that:

"The offence is established if it be proved that the acts of the driver create a danger, real or potential, to the public. Advertence to the danger on the part of the driver is not essential; all that is essential is proof that the acts of the driver constitute danger, real or potential, to the public. But whether such danger exists depends upon all the circumstances of the case ..."

Dangerousness is harder to apply consistently than, say, the test for careless driving. The act of being in a car driving along at a legal speed creates a danger to other road users that wouldn't exist if the driver wasn't there. Driving is an innately dangerous activity. Doing it creates risks that otherwise wouldn't exist, as does airline travel, participating in sport, and eating in certain restaurants.

It would obviously be wrong for a driver to be found guilty of dangerous driving because their mere presence on a road creates a hypothetical danger. If that was possible, every driver would be guilty of the offence all the time. How real, or how much of an increase in potential danger, must an act or omission be to constitute an offence of dangerous driving?

It might seem appropriate to apply the traditional common law test for manslaughter of, 'such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment': Andrews v DPP [1937] UKHL 1. But if that were applied to dangerous driving there would be no significant difference between the offence of culpable driving and the more recent s 319 Crimes Act offence. The offence of culpable driving requires culpability of, 'the same degree as that required to support a charge of manslaughter': R v Shields [1981] VR 717 at 724.

The Victorian Court of Appeal determined what a jury should be told to distinguish culpable driving from dangerous driving causing death in R v De Montero [2009] VSCA 255. The Court there held that a jury should be told,

It must be made clear to the jury, in appropriate language, that before the jury can convict of dangerous driving, it must be satisfied:

1. That the accused was driving in a manner that involved a serious breach of the proper management or control of his vehicle on the roadway such as to merit criminal punishment. It must involve conduct more blameworthy than a mere lack of reasonable care that could render a driver liable to damages in civil law.

2. That the breach must be so serious as to be in reality, and not just speculatively, potentially dangerous to others who, as members of the public, may at the time be upon or in the vicinity of the roadway. (A momentary lack of attention would not be sufficient, of itself, to constitute such driving.)

3. That the manner of driving created a considerable risk of serious injury or death to members of the public.

4. That the risk so created significantly exceeded that which is ordinarily associated with being on or near a highway.(We have replaced the phrase ‘real and appreciable’ which appears in some cases with the word ‘considerable’ which we think will be more readily understood by the jury. The word ‘real’ adds nothing if the risk is considerable.)

5. That in determining whether the manner of driving was ‘dangerous’ the test is an objective one. Would a reasonable driver (We have used the ‘reasonable person’ rather than ‘ordinary person’ because it is employed in the case of culpable driving: R v De’Zilwa [2002] VSCA 158. But we see no difference of substance between the two concepts.) in the circumstances of the accused have realised that the manner of driving involved a breach of the kind discussed in paragraphs 1 and 2, and also gave rise to the risk identified in paragraphs 3 and 4.

Later [at 716],

[The jury] should be told that while dangerous driving necessarily involves criminal negligence, it need not, like culpable driving, be grossly negligent, but must involve a serious breach of the proper management or control of the vehicle on the roadway. Unlike culpable driving, it did not require proof of a higher risk of death or serious injury, but only a considerable risk thereof.

Before De Montero was handed down the trial of Trent King was conducted. His appeal to the Court of Appeal was discussed here in March last year, but that post doesn't discuss the jury directions issue. The appellant was convicted at trial of culpable driving after his jury had been directed that dangerous driving did not require conduct deserving of criminal punishment, and it was implied that neglience wasn't an element of the s 319 offence. The Court of Appeal held the direction was wrong, but that it hadn't lead to a miscarriage of justice. The conviction was upheld and his sentenced reduced.

The plurality in the High Court found that the original direction was not wrong [French CJ, Keiffel and Crennan JJ, at 38]:

Having regard to the ordinary meaning of the word, its context in s 319 and the purpose of s 319, as explained in the Second Reading Speech, negligence is not a necessary element of dangerous driving causing death or serious injury. Negligence may and, in many if not most cases will, underlie dangerous driving. But a person may drive with care and skill and yet drive dangerously. It is not appropriate to treat dangerousness as covering an interval in the range of negligent driving which is of lesser degree than driving which is "grossly negligent" within the meaning of s 318(2)(b) of the Crimes Act. The offence created by s 319 nevertheless takes its place in a coherent hierarchy of offences relating to death or serious injury arising out of motor vehicle accidents. It is not necessary to that coherence that the terms of the section be embellished by reading into them a requirement for proof of some species of criminal negligence.

Heydon J disagreed, this time in general consensus with Bell J. Both dissenters would have quashed the conviction and remitted the matter for re-sentencing.

The decision in this case accords with the decision in R v Bannister [2009] EWCA Crim 1571 (blogged about here way-back-when), where the UK Court of Appeal dealt with a case where the driving was dangerous, but arguably not negligent.


Tuesday, 19 June 2012

A dangerous cocktail

The introduction of Community Correction Orders may (in some cases, at least) actually increase the likelihood of a future term of imprisonment.

Particularly where there are many offences dealt with together or the offences are serious, on a guilty plea many advocates will find themselves suggesting to the bench a 'cocktail' of a CCO and suspended sentence. It's often submitted that this will offer a carrot in the form of rehabilitative programs administered by the CCS, and the stick of a suspended sentence if there is further offending. The submission offers a credible alternative to prison (now ICOs are no longer available), but it's not without its risks.

What is sometimes overlooked is that a contravention of the CCO (whether by further offending or non-compliance) is itself an offence punishable by up to 3 months imprisonment. And where any offence punishable by imprisonment is committed, a contravention of a suspended sentence imposed at the same time naturally follows.

If the contravention is prompted by non-compliance with the CCO, exceptional circumstances will often be hard to find.

Is a machete a sword?

While on the subject of bladed weapons: Is a machete a sword?

According to Wikipedia, a machete is a, 'large cleaver-like cutting tool' and means 'little sledgehammer' in Spanish.

The description for sword given at cl 47 of Schedule 3 of the Control of Weapons Regulations 2011 reads,

"Sword", being a thrusting, striking or cutting weapon with a long blade having 1 or 2 cutting edges and a hilt.

It seems to me like that definition could also apply to a machete.



The Court of Appeal didn't think so in dicta in The Queen v Nguyen [2006] VSCA 39. The Regulations then weren't substantially different to how they are worded now.

Charles JA said [at 20, Warren CJ and Chernov JA expressly agreeing]:

I doubt if machetes are presently covered by any of the paragraphs under the heading “Prohibited Weapons” or “Controlled Weapons” in the regulations. Swords are prohibited weapons, being expressly mentioned in Schedule 2, clause 47. The maximum penalty, however, for an offence of possessing, carrying or using a prohibited weapon, or possessing, carrying or using a controlled weapon, is, in each case, a mere six months’ imprisonment.

The penalties have been increased, to a maximum 1 year of imprisonment for a controlled weapon and 2 years for prohibited weapons. Perhaps the issue of the status of a machete got lost along the way.

Most items on the prohibited list are specifically designed to be used as weapons. Things that could be used to hurt someone but have another, legitimate use are usually found on the controlled list. But I don't see a machete on the controlled list, unless it's considered a really long knife.

Does anyone have a view on this?

Monday, 11 June 2012

DPP (NSW) v Fairbanks [2012] NSWSC 150: out of sight, still in mind

In DPP (NSW) v Fairbanks [2012] NSWSC 150 the respondent claimed (and it was accepted he had) forgotten he was carrying a knife with him while going through airport security. It was argued that as he had no intention of committing the mens rea of the offence, he could not be guilty of it.

The magistrate who heard the case accepted this and dismissed the charge. On the DPP's appeal, the NSW Supreme Court found that the sort of knife he was charged with possession of was the sort he couldn't have anywhere, so the fact it was in his bag rather than at home (where he believed it to be) was no defence. The knife was in his possession either way.


'Forgetting' is a concept that the law struggles with. Where a state of knowledge or mens rea is required, cases often decide that what an ordinary person did once know they will be treated as still knowing at a later time, whether this is actually true or not. Notwithstanding Bowen LJ's famous statement in Edgington v Fitzmaurice (1885) 29 Ch D 459 that, 'the state of a man's mind is as much a fact as the state of his digestion', a claim that someone has forgotten something can rarely be proved or disproved.

In August of last year I wrote about R v Tran [2011] SASFC 85, a case where the South Australian Court of Criminal Appeal held that an accused who forgot where in his house drugs he had hidden drugs was still in possession of them.

The SA Full Court relied on R v Martindale [1986] 84 Cr App R 31 where the House of Lords had said,

Possession does not depend upon the alleged possessor's powers of memory. Nor does possession come and go as memory revives or fails. If it were to do so, a man with a poor memory would be acquitted, he with a good memory would be convicted.

The respondent in DPP v Fairbanks was prosecuted for possession of a knife contrary to the Weapons Prohibition Act 1998 (NSW). The penalties available for such an offence are grave and the legislation is worded so that a person knowingly possessing such a weapon commits the offence. He was acquitted and the charge dismissed. The magistrate found the respondent lacked the necessary state of mind for possession. The DPP appealed.

The knife was described as a flick knife. Schedule 1 of the Act describes a flick knife as, 'A flick knife (or other similar device) that has a blade which opens automatically by gravity or centrifugal force or by any pressure applied to a button, spring or device in or attached to the handle of the knife.' It seems common ground that the object Fairbanks had met the description.


An example of a knife commonly described as a flick knife. I have no way of knowing whether Fairbanks' knife looked like this or not.


Rothman J described the knife's history [beginning at 9]:

Between 2001 and 2009, the knife remained in a drawer at his home. In 2009 he re-discovered the knife during the process of moving house. From that time, it seems, Mr Fairbanks used the knife on camping trips (or on one camping trip), in particular, on a camping trip to Jervis Bay. At the completion of that trip he left the knife in a pocket of his backpack.

On 24 September 2010, Mr Fairbanks was required to travel to the airport and had made arrangements to be picked up and given a lift. The arrangements made to go to the airport were altered at short notice and Mr Fairbanks was required to pack his bags "in a hurry". He placed his laptop computer into the backpack, with the intention of taking it as hand luggage. The knife, it seems unknown to Mr Fairbanks, was still in the backpack from the earlier camping trip.

Mr Fairbanks went through the security checks at the airport and the knife, contained in a pocket of his carry-on backpack, was detected.

There is no issue that a flick knife is a prohibited weapon. Mr Fairbanks cooperated fully with the AFP Officers. When the knife was discovered, and before any questioning by the relevant officers, he volunteered the exclamation:

"I forgot I had it in there. I'm sorry!"

Later, after returning from overseas, when participating in an electronically recorded interview, Mr Fairbanks said:

"I had no knowledge it was on me, in my luggage, or I wouldn't have had it if I did! The knife was in my laptop bag which I use for work. I occasionally use it to cut up an apple."

The appeal proceeded on the basis that these findings by the magistrate were decided correctly.

Rothman J found that, since the offence could be committed in any place (not just a public place) the offence occurred whether the respondent had the knife with him or not. Whether the knife was in his bag or in a drawer at home, he committed an offence by having it. Therefore, it didn't matter where he believed it was, provided he knew he possessed it.

At 43,

An offence of possessing a prohibited weapon under s 7(1) of the Weapons Prohibition Act 1998 requires proof by the prosecutor that the accused knows that he/she possesses the item that is prohibited, but does not require proof that the accused knows the location of the item possessed nor proof that the item is physically on about the accused at the time of the commission of the offence.

This decision may have some relevance to prosecutions for prohibited weapons in this state, and perhaps to guns, drugs and other things that are strictly prohibited. It has less application to controlled weapons because an ordinary knife, if possessed with a lawful excuse, would make out no offence at law. So if a person had it in their bag but believed it was in their kitchen, the outcome would be different.

Wednesday, 6 June 2012

AustLii funding

You've probably noticed that we make extensive use of AustLii here — something that AustLii permits and encourages, in line with its open-access-to-the-law aims. Even though I've mentioned before that the automation means its legislation databases aren't always 100% correct, and so it's advisable to refer to official legislation sources for legal practice, it's still very handy to be able to link straight to material.

In addition, AustLii's free citator, combined with it's iOS App, make it a fantastic legal research tool in addition to the commercial services. (In fact, sometimes it's even better than their search engines, and something I do recommend over the traditional services.)

It costs a little under $1 million in 2011 to run Austlii, and it runs on a shoestring budget and a lot of goodwill. If you find it useful, consider contributing something to keep it freely available. Apparently contributions are tax deductible, so it might help you get something back from your tax return!

Have CCO, might travel?

The Community Based Sentences (Transfer) Bill 2012 was introduced into Parliament today. The legislation proposes amending the Sentencing Act 1991 so that offenders subject to a CCO are able to transfer their sentence interstate where it will be monitored by the equivalent of Corrections Victoria, and for offenders from other jurisdictions to move to Victoria and be monitored by Corrections Victoria here.

Just about every other state in Australia has enacted similar legislation, in some cases quite a few years ago, but Victoria has lagged behind. (Though I believe that Corrections Victoria has had an administrative process to achieve the same results in the absence of legislation. Generally, an offender subject to a CCO is not permitted to leave Victoria, and Corrections won't generally consider granting that permission for the first 3 months of an order or during an intensive compliance period.

The legislation doesn't provide for international transfer — though a person might obtain permission to travel overseas for a period of time — so folks moving overseas for a lengthy time but anticipating an eventual return to Oz either have to defer travel, or apply to either revoke or vary the order.


Sunday, 3 June 2012

iPad setup for court use

If you have or are about to buy an iPad and plan to use it in Court, here's a brief intro to one way you might choose to set it up and get stuff onto it for use in the courtroom.


Last time I tried this, it seems that the video doesn't embed properly in emails sent out by Feedburner. If all you can see is a black box in an email, you can view the video directly in Vimeo here or YouTube here.

If you want to download the video, in iPad-compatible format, you can get it here. (Be warned: it's about 225 MB!)

The cloud services I mention in the video are:

(Referral links earn you extra storage, and me too.)

The two file-transfer programs I recommend are: