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Tuesday, 28 August 2012

Bright sparks in the Magistrates' Court

Late last year I mentioned the woes a few of my colleagues had encountered about using iPads in our Magistrates' Courts. I understood there was a policy from the Court in development, but there was no word on it till now.

Since then, the Magistrates' Court has taken to twitter itself at @MagCourtVic, and today — hat-tip to @MsLods — the Court released its Electronic Devices Policy, due to take effect on 3 Sep 2012. (I'm still not sure what the foundation is for a court policy, as opposed to a practice direction, and if there's a reason the Court didn't opt for a practice direction, or if it will make any difference to the enforceability of the policy.)

The policy provides:

Upon entering a MCV courtroom, you must not:

  • Use your mobile telephone
  • Take photographs or make audio or video recordings of court proceedings, without permission of the presiding magistrate
  • Use any electronic device where such use constitutes instantaneous publication
  • (for example social media, such as Twitter or live blogging)

The use of laptops and tablet computers is allowed for court and legal business, however these devices cannot be used if the device causes any disruption to the court.

Most of this seems unobjectionable and sensible, but I wonder about the prohibition on tweeting and blogging. Does a blanket prohibition contravene the implied freedom of communication on government and political matters, from Coleman v Power (2004) 220 CLR 1, Lange v ABC (1997) 189 CLR 520 and Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106? Australian courts have considered the issue of live tweeting, but not very often yet. (And lawyers need to be careful to not breach any ethical or professional obligations too.)

The UK Courts now have a policy position on this, permitting live tweeting routinely, though noting likely restrictions or prohibitions in criminal cases. There are several good reasons why this might be necessary. It could be possible for one witness, or observer, to tweet messages to future witnesses about the proceedings, undermining an order-out for witnesses. Or a voir dire ruling on admissibility or privilege would be effectively undermined if the argument was published online. Similarly too, restrictions on identification of witnesses could compromised either deliberately or unwittingly by a courtroom tweeter. There are indeed real problems for allowing carte blanche to social-media junkies in the court room.

At any rate, this policy is a welcome development for our jurisdiction, as is the Magistrates' Court joining the twittersphere.

Monday, 27 August 2012

Lane, beset and Max: public protesting apparently permitted

The Magistrates' Court announced on twitter this week that the DPP decided to not appeal the 23 July 2012 decision dismissing trespass charges against protestors at Max Brenner's chocolate bar in Melbourne from 1 July 2011. (The decision is available on the Magistrates' Court website here.)

So, what's the effect of all this?

Well, the first thing to note is that, pedantically, the decision doesn't create a precedent, because the doctrine of precedent provides that decisions made by courts bind inferior courts in the same hierarchy: Broome v Cassell & Co Ltd [1972] AC 1027 at 1054; Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107.

And after reading the decision, I'm not so sure it's quite the green light that some folks claim, or a sudden recognition of the right to public protest. There are several appellate cases that endorse a right to political protest, albeit subject to limitations, such as Coleman v Power (2004) 220 CLR 1, Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, Melbourne Corporation v Barry (1922) 31 CLR 174, Commissioner of Police v Allen (1984) 14 A Crim R 244, Commissioner of Police (NSW) v Gabriel (2004) 141 A Crim R 566.

Apparently the protest was organised by BDS, targetting the Max Brenner chocolate chain as a supporter of Israel or Isareli interests. (See more on the BDS website here.)

The protest took place at the QV Melbourne, a shopping complex built on the remnants of the old Queen Victoria hospital at the corner of Swanston and Lonsdale Streets.



The police arrested a number of people at the protest, and charged 16.

All were charged with:

  • besetting premises, contrary to Summary Offences Act 1966 s 52(1A); and
  • wilful trespass, contrary to Summary Offences Act 1966 s 9(1)(d)

Eight of those accused were also charged with resisting or assaulting police in the execution of their duty, contrary to Summary Offences Act s 52.

At the close of the prosecution case, all accused submitted they had no case to answer.

The magistrate agreed with that on the besetting and trespass charges, but not for all of the resisting police charges.

Besetting premises


There are surprisingly few reported criminal cases on this offence. Most of the cases seem to be civil ones, and — unsurprisingly — they all dealt with picket lines at industrial disputes. (There's an extremely useful book discussing besetting as a sub-species of the tort of nuisance: Dealing with demonstrations by Roger Douglas, at pp 96 - 98.)

The cases the Magistrates' Court considered were Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383, Animal Liberation (Vic) Inc v Gasser [1991] 1 VR 51 and DPP v Fidler [1992] 1 WLR 91. Douglas' book adds Barloworld Coatings (Aust) Pty Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union [2001] NSWSC 826. For good measure, I reckon R v Commissioner of Police; Ex p North Broken Hill Ltd (1992) 1 Tas R 99, 61 A Crim R 390 — dealing with the Associated Pulp and Paper Mill picket — is probably relevant too.

The gravamen of these cases is that besetting involves notions of physically or forcibly preventing access to premises.

Here, folks were walking in and out of the shop, and apparently past and through the protestors, until the police formed lines across Red Cape Lane, turning back the public from going east in the lane to the shop.

In this case, the Court found on the evidence that the true cause of preventing access to the Max Brenner shop was not the protestors, but rather, the police lines set up to oppose the protestors, at [36] – [40] of the decision.

Wilful trespass


The offence of wilful trespass contrary to Summary Offences Act s 9(1)(d) relevantly provides:

Any person who wilfully trespasses in any public place other than a Scheduled public place and neglects or refuses to leave that place after being warned to do so by the owner occupier or a person authorized by or on behalf of the owner or occupier shall be guilty of an offence.

The police distributed notices purporting to prohibit entry to QV Melbourne for demonstrating, and QV management placed signs around QV Melbourne purporting to prohibit entry to people who intended to demonstrate or obstruct any tenants' premises.

The QV Melbourne site was owned by Commonwealth Management Investments Ltd and Victoria Square QV Investments. It was managed by Colonial First State Property Management Pty Ltd, trading as Colonial First State Global Asset Management.

Even though it was privately owned property, it still had the character of being a public place as defined in s 3.

But...unbeknownst to the police, the property was subject to an agreement between the owners and the Melbourne City Council in accordance with Planning and Environment Act 1987 s 173. That agreement contained a covenant obliging the owners to keep the laneways and QV Square open to the public 24/7.

At [53], the Court held that the effect of the covenant was that QV's owners and managers could not lawfully apply conditions on the entry of members of the public to the site.

Additionally, the Court held that the protestors had a lawful right to protest in accordance with the Charter of Human Rights and Responsibilities Act 2006 ss 15 and 16, and that the nature of the protest did not justify limiting that right under s 7.

Last, at [74], the Court held the prosecution could not establish the protestors could hear the police direction to leave or face arrest, and that the charge failed for that reason too. I'm not so sure about this one, at the no-case state, when it seemed arguable at least that the protestors had a fair inkling what the police were telling them, and the protestors were seemingly making a lot of noise to avoid hearing it. (Wilful deafness?)

Resisting or assaulting police


The Court referred to Crimes Act 1958 ss 458 and 461, emphasising that where police believe it is necessary to arrest someone, and that belief is reasonable, the arrest won't be unlawful (or will still be lawful) even if the suspected person is later found to have not committed the offence.

The Court also considered the use of reasonable force, citing Woodley v Boyd [2001] NSWCA 35, Lindley v Rutter [1981] QV 128 and McIntosh v Webster (1980) 43 FLR 112 — but curiously, not to Crimes Act s 462A. In some instances, the force used by the arresting police was excessive, and as a result some charges of resisting police failed at the no-case stage. (For example, at [93].) On other charges — such as at [98], the Court found there was a case to answer for allegations such as throwing a punch at a police officer, and at [99] for bear-hugging another protestor to prevent arrest, and [100] - [103], struggling to prevent arrest.

Comment


On the facts in this case, it seems difficult to find fault with the Court's findings on the besetting charges. Those charges are probably better suited to ones where the protestors are in control of access points — such as in a traditional picket — and much less likely to succeed as here, where the police have the numbers to physically block access to places. I can imagine why the police would want to stop conflict between protestors and members of the public (or in other scenarios, between rival protestors), but I reckon they would always struggle succeeding with the charge of besetting premises in those situations.

The wilful trespass charge is less certain IMO. There are cases dealing with the right of occupiers or people authorised by occupiers to rescind a licence to enter or remain on property, such as O v Wedd [2000] TASSC 74; Bethune v Heffernan Heelan v Heyward [1986] VR 417, but I don't think they would have helped here because of the covenant on the property. Could the Melbourne City Council have restricted entry, or even the police, given the fundamental public character of the property? Probably not I suspect.

It could be open to the police to rely on the common-law breach of the peace provisions, or the move-on powers in the Summary Offences Act, but they have their own difficulties too, as I mentioned here, and more recently, discussed by Charon QC here (and see the judgment here).

Probably unless and until Parliament sees fit to legislate on this area, we won't know until any particular case is decided at court. Don't hold your breath though: we're still waiting for the IBAC to get off the ground 13 months after it was scheduled to start operation.

Sunday, 26 August 2012

Puttage

I realised some time ago that, no matter what other rules to follow as an advocate, there is only one rule that should apply to everything an advocate says and does in court. I'm certain it's the only important rule for an advocate to obey, even though it's broken by all advocates some of the time, and by some advocates all of the time.

Don't be boring.

Some advocates hate the idea of trying to entertain. Some, perhaps, see themselves as engaged in too serious a business to dwell on the way they deliver the message, rather than concentrating exclusively on the message itself. These advocates will inevitably be less successful. It's self-evident that if nobody is listening to a word you're saying, it makes no difference how brilliant (or true) your words might be.

One of the areas where court proceedings are often at their most boring (and that's saying a lot) is where an advocate feels compelled to put a long, droning series of propositions to their opponent's witness, for fear of being caught out in a breach of Browne v Dunn:

PROSECUTOR: You then took the chocolate bar, didn't you?
ACCUSED: No.

PROSECUTOR: You then left the shop, didn't you?
ACCUSED: No.

PROSECUTOR: You're lying now, aren't you?
ACCUSED: No.

It's an opportunity to present their case theory, I suppose. But it's not going to yield any surprising results, and as an exercise in 'testing the mettle' of a witness it's not very effective. It's not possible to draw many conclusions from a series of predictable denials, and the more protracted the process the less interesting (and useful) it proves to be.

When this formula is delivered well it is merely neutral to the party doing it. When done badly, it looks desperate and inept. Oh, and beginning each and every question with, 'I put it to you ...' doesn't improve matters.

We've discussed this dilemma here before. Iain Morely suggests making the process less self-damaging and more pleasant for everybody by inviting the witness to disagree:

COUNSEL: I suggest you are mistaken in your identification, but you disagree with that, don't you?
ACCUSED: Yes.

As a way of meeting puttage obligations without ruffling anyone's feathers, it could work. It has the advantage of being unusual, so that's good, even though I can see it becoming equally repetitive in the wrong hands.

I was reading an article by the late Brian Donovan QC on the weekend, from the presentation he used to give (prior to his elevation to the bench) to the NSW Bar Practice Course. He suggested a couple of other ways of putting the client's version to a witness, and another reason for doing it (around page 5 of this version):

1. Gentle irony

Donovan warned against the use of heavy sarcasm, which most tribunals find grating (and unprofessional). But, he suggests, beginning puttage statements with a phrase like, 'I don't suppose it could possibly be that ...' can avoid coming across as unpleasant, and makes the flat denial that will likely result seem more unreasonable.

COUNSEL: I don't suppose it could be that she got into the car first?
WITNESS: No.

COUNSEL: I don't suppose that it could be that you didn't see the entire incident?
WITNESS: No.

COUNSEL: I don't suppose, on looking back on this incident, that it's at least possible that you are filling in a few gaps in your memory?
WITNESS: No.

The answers are the same either way, but the gentle way in which the propositions are put may given them a weight they wouldn't have otherwise.

2. Mix it up

There's no rule that every question needs to be delivered using the same sentence construction.

'So and so happened, didn't it?'
'Would you consider this ...'
'Would it be true to say ...'
'Was it the case that ...'

They all do the same job. But like an advocate who says, "Your Honour" at the end of every sentence, the same syntax very quickly becomes a meaningless litany.

Donovan wasn't absolutely against the use of repetitive puttage, but only where it was certain that subsequent witnesses would contradict (hopefully, overwhelmingly) the version of this witness. He also pointed out the persuasive value of a repetition of the account later to be given by defence witnesses (of exactly the sort that R v Christie [1914] AC 545 prohibited).

Any other suggestions for getting around classic, boring puttage?

Thursday, 23 August 2012

The recent history of Browne v Dunn

Edit: For a recent example of an appellate court taking a grim view of a practitioner's failure to uphold their obligations, see the civil case of Baulch v Lyndoch Warnambool [2010] VSCA 30.

AJA Byrne didn't mince words [at 23]:

The conduct of defence counsel in this instance is to be condemned. It was not an inadvertent mistake or a rash decision taken in the heat of forensic contest. It was a deliberate disregard of a fundamental rule of fairness in the conduct of adversarial litigation. Further, the breach in this case was particularly significant as it involved not only a failure to cross-examine the appellant but a failure to cross-examine a number of medical practitioners who supported her case on this point. The failure occurred in circumstances where defence counsel must have known that he had no evidence he could call to contradict the appellant’s assertion.

A new trial was ordered.



An advocate must put to his opponent's witnesses as much of his client's case as the witness is able to comment upon. Failure to do so may entitle a trier of fact to conclude that a particular issue is not in dispute.

The rule in Browne v Dunn (1894) 6 R 67 (HL) arises where a witness puts forward evidence that a previous witness of the other party could have offered evidence on but was not cross-examined on. Because of the sequence of evidence in criminal proceedings, this is typically where a defence witness asserts something not put to a prosecution witness by the accused's counsel.

The rationale for the rule was explored by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 [at 22 and 23]:

There are many reasons why it should be made clear prior to final addresses and by way of cross-examination or otherwise, not only that the evidence of the witness is to be challenged, but also how it is to be challenged. Firstly, it gives the witness the opportunity to deny the challenge on oath, to show his mettle under attack so to speak, although this may often be of little value. Secondly, and far more significantly, it gives the party calling the witness the opportunity to call corroborative evidence which in the absence of such a challenge is unlikely to have been called. Thirdly, it gives the witness the opportunity both to explain or to qualify his own evidence in the light of the contradiction of which warning has been given and also, if he can, to explain or to qualify the other evidence upon which the challenge is to be based.

The traditional remedies for a breach of the rule in Brown v Dunn are to either allow the witness to be recalled (nine out of ten times the allegation simply encounters a strong denial, which doesn't really take the matter any further but at least allows both sides to have been heard on the point), or for the trier of fact to draw an adverse inference from the fact that the matter wasn't properly put to the earlier witness.

It's sometimes said that a third option exists of not permitting a witness to give the evidence in breach. It's an option more likely to be applied in civil cases rather than criminal trials. Browne v Dunn does apply in criminal cases, though its application will necessarily be different: Gleeson CJ in R v Birks (1990) 19 NSWLR 677, later affirmed in MWJ v R [2005] HCA 74.

The view has occasionally been taken that no such power exists in criminal cases. In its original trial jurisdiction, the Supreme Court in R v Allen [1989] VR 736 declined to follow the NSW Court of Appeal's decision in Schneidas (No 2)(1981) 4 A Crim R 101.

McGarvie J [at 737]:

With the greatest respect which I have for all members of the court which made that decision, I am not of the view that it correctly represents the law to be applied in this State. As I put to [the prosecutor] in the course of argument, one starts from the principle that all relevant evidence is admissible. In the case of relevant evidence which is part of the prosecution case, there has developed, particularly during this century from practices which came to be followed universally by judges, a rule that a judge has a discretion to exclude prosecution evidence which would be prejudicial to the accused and which is of relatively small importance to the prosecution case. I am not aware of any practice which has developed, at least in this State, which has resulted in judges excluding evidence sought to be called by the defence which the judge has regarded as unfair to the prosecution to be called, having regard to what was not put in cross-examination.

The way in which the rule which entitles a judge to exclude prosecution evidence developed, indicates, I think, the reason for there being no rule which applies to defence evidence, which corresponds with the rule developed by judges initially suggesting to Crown prosecutors that it would be unfair to the accused to call the evidence. Prosecutors having, as counsel, the obligations that they have to present the prosecution case fairly, invariably complied with the judge's suggestion. In that way, what originated as a form of moral suasion exercised by the judge has developed into a rule of law.

The defence is placed in a different position. Even when counsel appear for the defence, the inherent obligation as counsel is to secure an acquittal by all proper means. It has been open to judges to exercise persuasion whether directly or indirectly on defence counsel to comply with the rule in Browne v Dunn. However, it is unlikely that judges would have felt themselves in a position in a case where an accused person appears for himself to exercise that moral suasion. I say that because Schneidas' Case was a case in which the accused had appeared for himself.

Accordingly, I take the view that unless there is some principle of law which entitles me to exercise a discretion to exclude this evidence, it is admissible even though it is called in breach of the principle of Browne v Dunn. I have the gravest reservations as to whether a trial judge ever has power to exclude on the basis of fairness, evidence which is admissible and is sought to be called by the defence. As I mentioned earlier, usually this problem does not occur because counsel are bound by the rules and ethics which govern counsel and comply with the rule in Browne v Dunn.

The correctness of the decision in Allen can be doubted on two bases; the first, because it is a decison made in the Court's original jurisdiction that doesn't rely on any authority for diverging from the NSW Court of Appeal's ruling on the same issue; and second, even were it correct when decided in 1989 it is certainly not possible to argue now, under s 135 that a court doesn't possess the discretion to exclude evidence which is unfair to any party.

NSW courts continue to treat Schneidas (No 2) as good law, including in R v McCormack (No 3)[2003] NSWSC 645.

The ALRC/VLRC Joint Report observes that s 46 of the UEAs, "mirrors part of the rule in Browne v Dunn, but does not replace it." This provision allows for the recalling of a previous witness but does not provide any other remedies. The Commissions saw no need to add additional ones [at 5.143].

The Joint Report in footnote 172 noted,

In R v Lisiritis [2004] NSWCCA 287, whilst not deciding the point, the New South Wales Court of Criminal Appeal said there was ‘much to commend’ the view that the High Court has implied in decisions such as Azzopardi v The Queen (2001) 205 CLR 50 and Dyers v The Queen (2002) 210 CLR 285 that the rule does not apply to an accused in a criminal trial. However, both these cases concerned the right of the accused not to give evidence, rather than the rule in Browne v Dunn in a strict sense.

Since then, the High Court made specific comments in MWJ v R [2005] HCA 74. Gummow, Kirby and Callinan JJ offered a cautionary tone:

Reliance on the rule in Browne v Dunn can be both misplaced and overstated. If the evidence in the case has not been completed, a party genuinely taken by surprise by reason of a failure on the part of the other to put a relevant matter in cross-examination, can almost always, especially in ordinary civil litigation, mitigate or cure any difficulties so arising by seeking or offering the recall of the witness to enable the matter to be put. In criminal cases, in many jurisdictions, the salutary practice of excusing witnesses temporarily only, and on the understanding that they must make themselves available to be recalled if necessary at any time before a verdict is given, is adopted. There may be some circumstances in which it could be unfair to permit the recalling of a witness, but in general, subject to the obligation of the prosecution not to split its case, and to present or make available all of the relevant evidence to an accused, the course that we have suggested is one that should be able to be adopted on most occasions without injustice.

Tuesday, 21 August 2012

Crime tax

The Offender Levy takes effect in Queensland from today.

Apart from a number of specified exceptions (like Commonwealth offences, and breaches of bail and suspended sentences) all adult offenders in that state will now be obliged to pay an additional amount, separate from their sentence and enforced by the State Penalties Enforcement Registry (effectively, the sheriff). The levy is not a court order and, so the Queensland government maintain, cannot be appealed. It applies whether the offence is proved with or without conviction, but only one levy is applied regardless of the number of charges proved.

The Penalties and Sentences and Other Legislation Amendment Bill 2012 levies an amount of $100 in the Magistrates' Court and $300 for the District and Supreme Courts.

Queensland joins five states and territories that apply a user pays philosophy to criminal justice. In Victoria, s 131 of the Magistrates' Court Act 1989 requires the court to order an offender to pay filing fees if convicted and fined. The amount payable is $45.10 for a single offence, and $71.40 for multiple offences.

New Zealand have a flat $50 Offender Levy, but it applies only to cases in the District and High Courts.

Friday, 17 August 2012

Legislation Watch: Road Safety and Sentencing Acts Amendment Act 2012

The Road Safety and Sentencing Acts Amendment Act 2012 passed the upper house earlier this week, though it's still only to be found here under the Bills for the current Parliamentary session.

The Government's press release says the Act will permit Courts to impose interlock conditions on folks getting their licence back after a drink-driving infringement. (Or "ticket" to us common folk!)

The Government's claim is that the amendments introduced into the Road Safety Act by the Road Legislation (Projects and Road Safety) Act 2006 didn't apply to folks disqualified for drink-driving by a ticket, rather than Court order.

The other big-ticket item in this Act is that it amends the Sentencing Act 1991.

I understand this was in response to a recent appeal of DPP v Tyson Jason Leys; DPP v Dillon Thomas Leys in the Court of Appeal, considering the validity of the community correction order (CCO) provisions in the Sentencing Act. I know the case has been argued, but thought the decision was still pending. It seems though according to the explanatory memorandum that the Court has declared the provision valid.

The argument was that the partial commencement of the provisions in the Sentencing (Communinity Correction Orders) Act 2012 (discussed here in January) was not valid, because of the Interpretation of Legislation Act 1984 s 11(4), which provides:

(4) A reference in an Act to the date of commencement of that Act or another Act or a portion containing 2 or more provisions of that Act or another Act is, if the whole of the Act or portion referred to did not come, or is not to come, into operation on the one day, a reference to the first day on or before which all the provisions of the Act or portion referred to have come, or will have come, into operation.

This Act purports to retrospectively confirm that CCOs imposed since 16 January are valid, despite that provision.

I understand the Act has received Royal Assent and will be gazetted to commence on operation on Saturday morning, though there's nothing in the Gazettes right now to confirm this.

Sunday, 12 August 2012

Decision fatigue

This study from Israel by Danziger, Levam and Avnaim-Pesso has done the rounds since first being published early last year.

The researchers watched the cases of 1125 Israeli parole applicants over 50 sitting days as their cases were dealt with by one of 8 judges. This amounted to 40% of all applications for parole made in Israel over that period, and the study was randomised to remove the influence of factors such as cultural prejudice or administrative procedure.

The parole hearings were conducted during one of three court sessions per day: the opening of court to morning tea; after morning tea to lunch; after lunch to the close of court. The results of the study (if watching this ABC webcast, the relevant portion of Dr Karl's interview starts around the 3:30 mark) showed that across all hearings and judges, applicants began each session with a 65% chance of having their application for release granted, and the likelihood of parole fell as the court session continued, only to return to previous levels after the next break.

This was regardless of the characteristics that might ordinarily be thought to guide the decision-making process, like the seriousness of the crime, length of sentence, or the applicant's personal characteristics.

A reproduction of Figure 1 from 'Extraneous factors in judicial decisions' by Danziger, Levam and Avnaim-Pesso.

The researchers didn't draw firm conclusions about why applications were more likely to be granted by a judge who has recently returned to the bench. They suggested rest, the consumption of food, or improvement in mood as possible explanations. Significantly, when the trends were revealed to judges, lawyers and others who routinely sat in the hearings, they said they were unaware of the predictable pattern of decision-making.

It's easy to assume that the judges were open-minded at the commencement of proceedings, and got more snarky and impatient as things wore on. But it's unlikely that misanthropy was the key motivator. A more probable explanation was that the decision to grant parole requires more consideration than the decision to refuse it. As the sessions wore on, judges chose the simpler and more direct choice available to them.

John Tierney, science columnist writing in The New York Times last year, described the explanation this way:

Decision fatigue helps explain why ordinarily sensible people get angry at colleagues and families, splurge on clothes, buy junk food at the supermarket and can’t resist the dealer’s offer to rustproof their new car. No matter how rational and high-minded you try to be, you can’t make decision after decision without paying a biological price. It’s different from ordinary physical fatigue — you’re not consciously aware of being tired — but you’re low on mental energy. The more choices you make throughout the day, the harder each one becomes for your brain, and eventually it looks for shortcuts, usually in either of two very different ways. One shortcut is to become reckless: to act impulsively instead of expending the energy to first think through the consequences. (Sure, tweet that photo! What could go wrong?) The other shortcut is the ultimate energy saver: do nothing. Instead of agonizing over decisions, avoid any choice. Ducking a decision often creates bigger problems in the long run, but for the moment, it eases the mental strain. You start to resist any change, any potentially risky move — like releasing a prisoner who might commit a crime. So the fatigued judge on a parole board takes the easy way out, and the prisoner keeps doing time.

It may not be news to say that a person's attention is at its sharpest when fresh and drops off as time goes on, but there's not much research done on how this phenomenon influences judicial decisions. Trying to measure the quality of judicial activity has always been fraught. While the number of appeals generated by a court may be one indicator, that is as likely to be dictated by external factors as it is anything the judge has control over.

The researchers concluded their article by saying,

Although our focus has been on expert legal decisions, we suspect the presence of other forms of decision simplification strategies for experts in other important sequential decisions or judgments, such as legislative decisions, medical decisions, financial decisions, and university admissions decisions. Our findings add to the literature that documents how experts are not immune to the influence of extraneous irrelevant information. Indeed, the caricature that justice is what the judge ate for breakfast might be an appropriate caricature for human decisionmaking in general.


Tuesday, 7 August 2012

Legislation Watch: Criminal Procedure and Sentencing Acts Amendment (Victims of Crime) Bill 2012

This Bill makes a couple of minor changes to sentencing procedure. The Second Reading Speech is here, the Explanatory Memorandum is here. Unless proclaimed earlier, it has an automatic commencement date of 31st January 2013.

Clause 4, an amendment to s 60 of the Criminal Procedure Act 2009 which purports to give the Magistrates' Court authority to refuse to give a sentencing indication if it has insufficient information about the effect of the crime on the victim, is not necessary. Courts already posess the ability to refuse to give an indication, and one would have thought that if a judicial officer thought they had insufficient information to base the indication on, they wouldn't give one. Clause 5 does the same for the County and Supreme Courts.

Clause 6 will require a sentencing court to enquire whether application for a compensation order will be made when evidence has been presented that property damage, loss or destruction has occurred as a result of the offence. According to the Explanatory Memorandum, the purpose of the amendment is to, 'promote consideration of compensation orders for property loss and damage in all relevant cases'.

The Bill also amends the Sentencing Act 1991 to allow a court to make a compensation order of its own motion, but only where the accused does not object to the making of the order and has been given the opportunity to be heard.

The EM goes on (at 4),

These amendments do not disturb the clear case principle established at common law. This principle confirms that compensation orders should only be made by the criminal court in clear and simple cases, and that it is a proper exercise of judicial discretion to refuse to make an order where a complicated or extensive enquiry is necessary to establish causation or the extent of the injury or loss (see for example R v Monks [2001] TASSC 41 and Kaplan v Lee-Archer (2007) 15 VR 405).
Neither change will have great impact on the way a sentencing hearing runs.

The Criminal Procedure Amendment Bill 2012 also had its Second Reading in June. It will extend the statutory timeframes for service of a preliminary brief from the current 7 days to 21 days. It also expands the types of offences which will allow VARE evidence under s 366 of the Criminal Procedure Act to be admitted.




Sunday, 5 August 2012

New County Court website

Following in the footsteps of the Magistrates' Court, the County Court has given its website a facelift. It's now to be found here.


I didn't visit the old site often, so it's difficult to know whether changes are substantial or merely cosmetic. I like the simplified page explaining the court's jurisdiction, I like the layout generally, and the search function is certainly quicker than the one it replaced (though, possibly, just as temperamental).

The site has lots of little tidbits of information scattered around. I must be the last person to realise that the Court's building at the corner of William and Lonsdale Streets in the Melbourne CBD is privately owned.