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Sunday, 30 December 2012

Foster v Harris [2012] VSC 637: technical challenges to speeding offences

The appeal in Foster v Harris [2012] VSC 637 considered technical arguments about a speeding charge. It was handed down just before Christmas.

There were two broad issues:

1) did the charge information contain sufficient information; and
2) did the certificate of testing of the prescribed device comply with the regulations, making it admissible.

The magistrate determined both questions in favour of the prosecution, and Williams J found that both points had been decided correctly.

The charge wording

The speed limit applicable to the appellant at the time of the offence was in a school zone, a length of road which has a speed limit of 40 km/h during certain periods, but another speed limit the rest of the time. These limits only apply on certain proclaimed days of the year.

The charge information made no reference to the time of day when the offence was said to have occurred. It was common ground that if the offence had occurred when the school zone limit was not in operation the appellant wouldn't have been speeding.

The Court applied Ciorra v Cole [2004] VSC 416. In that case, Redlich J distinguished between the legal elements of the offence, the essential factual ingredients which must be stated, and particulars required for its proof and for the preparation of the defence. The speed limit is an essential element. The way in which the speed limit is set is a matter which must be proved, but is not a matter that must be expressed in the charge information. By analogy, the time of day when an offence occurs in a school zone is also a factual ingredient and not a charge element.

Williams J [at 17]:

The respondent reminds the Court of Charles JA’s direction in DPP Reference No 2 of 2001 4 VR 55, 68 [40]. that ‘a charge should be interpreted in the manner a reasonable defendant would understand it, giving reasonable consideration to the words of the charge, in their context’. His Honour also affirmed the necessity to strive to give a charge the meaning intended by the draftsman: Smith v Van Maanen (1991) 14 MVR 365.

It is clear from the statement of the charge before me that Ms Foster was alleged to have driven on 9 September 2010 in Prince Street, Myrtleford, at a speed greater than the speed-limit of 40 km per hour applicable to her, in contravention of r 20. Unlike the situation in Woolworths (Victoria) Ltd v Fred Marsh (Unreported, Supreme Court of Victoria, Ormiston J, 12 June 1986), there is no uncertainty as to the offence charged. Nor is the offence created by r 20 ambulatory in nature.

Ciorra and Kirtley establish that the two essential ingredients of the charged offence to be included in the charge are the alleged facts that the vehicle was driven by the appellant and that she drove it over the speed-limit applicable to her on that particular section of Prince Street. It was not necessary to include in the charge express reference to the factual basis on which the applicable speed-limit was to be determined, such as that she was driving on a declared school day or during the period referred to on the school zone sign. Such matters, and other relevant requirements of the Rules might have been the subject of requests of particulars of the alleged applicability of the 40 km per hour speed-limit to the appellant.

The certificate of testing

Under s 79 of the Road Safety Act 1986, evidence of a measurement of speed obtained by use of a speed detector was admissible and, absent evidence to the contrary, could constitute proof of speed, provided that the speed detector had been tested and sealed within the previous twelve months.

The certificate that had been tendered in the Magistrates' Court identified that the detector had been tested by a testing officer. It was argued that the certificate was ambiguous and insufficient to prove that the person who signed the certificate was a testing officer as defined by r 5 of the Road Safety (General) Regulations 2009. This argument was also rejected.

Friday, 21 December 2012

NSW limits challenges to speed cameras

The NSW Court of Appeal recently considered a case dealing with a challenge to a speed camera prosecution in the Burwood Local Court, Roads and Maritime Services v Addario [2012] NSWCA 412. The NSW equivalent to VicRoads used to be called the RTA (Roads and Traffic Authority). Turns out it recently changed name.

The judgment doesn't show up on Austlii yet, so I've linked to it on JADE.

It's an easy read. Mr Addario was charged with speeding, based on a photo taken by a speed camera.

In NSW, the relevant legislation presumes that the speed camera is evidence is correct and prima facie evidence of what it shows, unless sufficient evidence is adduced to raise doubt about it.

This is fairly similar throughout Australia, and particularly to Victoria's scheme, which I discussed in this post in May 2010.

But one thing is different in NSW.

Section 73A of Road Transport (Safety and Traffic Management) Act 1999.

That restricts contradiction of or challenge to the accuracy, reliability or correct or proper operation of speed cameras, to evidence adduced by a person who has relevant specialised knowledge (based wholly or substantially on the person's training, study or experience).

(At a wild guess, I'd say it's probably no accident that this provision is very similar to the expert-evidence rule in the Evidence Act.)

At the Local Court Mr Addario tendered two receipts for fuel he apparently bought. The times on those two receipts placed him at a nearby fuel station just before and just after the time on the photo. It seems that argument was that if the receipts were accurate, he couldn't have been driving past the speed camera at the time alleged. Kind of alibi for cars...a point raised by Campbell JA at [46] ff.

The appeal judgment doesn't note if it was possible for Mr Addario to buy fuel, drive past the speed camera moments later, and then return to the petrol station and buy more fuel several minutes later. Given the camera was only 200 metres down the road and all...

The Court of Appeal upheld the RMS appeal. (The case won't go back to the Local Court as the appellant expressly said it didn't want to re-prosecute Mr Addario: it just wanted to clarify the law on this point. It even agreed to pay Mr Addario's costs!)

In ruling in favour of the RMS, the Court held that s 73A was not an admissibility provision. Rather, it governed the use that could be made of admissible evidence. Mr Addario's evidence was admissible, but because it wasn't evidence by a person with relevant specialised knowledge, it didn't contradict or challenge the prima facie provisions concerning the speed camera. So, the prosecution didn't need to lead any further evidence about the proper operation of the camera.

But — and this is the useful bit for our jurisdiction — the admissible evidence was something the magistrate had to weigh up when considering if the prosecution had proved its case beyond a reasonable doubt. After all, the prima facie provisions weren't conclusive.

But, whether the magistrate would ultimately be satisfied the accused's evidence raised a reasonable doubt was another matter.

Thursday, 20 December 2012

Anti-corruption bodies set to start 1 Jan 2013?

I mentioned back in October that Brendan Murphy QC was appointed as the newly-created public interest monitor.

Last week the Victorian government appointed the head of its new IBAC, Stephen O'Bryan SC, and the Victorian Inspector, Robin Brett QC, who will oversee the IBAC.

One recent opinion article in The Age cast doubt on the likely effectiveness of IBAC. I confess I haven't read the legislation in any detail, but the gist of that article is that IBAC will be nobbled because it isn't specifically empowered to investigate misconduct in public office. But, on my very perfunctory reading, the new definition of corrupt conduct to be inserted into the IBAC legislation is so broad that it would probably catch conduct that would fall under the heading of misconduct in public office. No doubt that will be fertile ground for consideration at some stage...

On Wednesday, the government appointed two full-time deputy public interest monitors to assist the current PIM, Janine Gleeson and Joanne Smith. (I only know this because until Wednesday, I was sharing chambers with Janine, and now it's all rather quiet and lonely there. Intriguingly, the media release isn't available on the government's media release website. Maybe that's because this is all cloak-and-dagger stuff...)

Apparently the PIM is slated to start operation on 1 January 2013, so I guess that the other two new agencies are also intended to commence operating on the same day. I also guess that would mean the OPI would stop operating on the same day, but I haven't seen anything about that one way or the other. Does anyone else know?

Thursday, 13 December 2012

Reserve judgment

The Courts Legislation Amendment (Reserve Judicial Officers) Bill 2012 will abolish the offices of acting judges and acting magistrates and create the offices of reserve judge and reserve magistrate. The bill was introduced to Parliament on Wednesday.

The Introductory Print is here and the Explanatory Memorandum here.

On my reading of it, these reforms are unlikely to attract Kable issues. The changes are more to terminology than substance and court users are unlikely to notice the difference. There is a further shift in policy toward retired judicial officers returning to the bench, rather than the temporary appointment of practitioners that has occurred in the past.

Only former judicial officers of equivalent Victorian or interstate courts will be eligible for appointment as reserve judges or magistrates. The terms of their appointment are subject to the Judicial Salaries Act 2004 and Constitution Act 1975. Terms of appointment run for 5 years, and reserve judges and magistrates can only be removed from office by the same procedure applying to other judicial officers.

The absence of any restriction on the number of judicial officers that can be appointed on these 5-year limited terms may cause some concern. But as the High Court said in Forge v ASIC, just looking at the number of appointments doesn't determine whether the appointment of temporary judicial officers threatens the impartiality and independence of a court.

Gummow Hayne and Crennan JJ [at 49]:

If it is accepted that some acting appointments may lawfully be made under [the impugned legislation], a quantitative criterion for marking the boundary of permissible appointments would treat the circumstances seen by the appointing authority as warranting the appointment of an acting judge as wholly irrelevant to the inquiry about validity. It would assume that the external observer considering the independence and impartiality of the court as a whole should, or would, ignore why it had been thought necessary to appoint those who had been appointed to act as judges. Thus the necessity presented by sickness, absence for other sufficient cause, or the embarrassment of a judge or judges in one or more particular cases would be treated as irrelevant; all that would matter is how many have been appointed. And that, in turn, presents the question: how would the particular number or proportion of acting judges that would compromise the institutional integrity of the court be fixed? That is a question to which none but an arbitrary answer can be given. Rather than pursue the illusion that some numerical boundary can be set, it is more profitable to give due attention to the considerations that would have to inform any attempt to fix such a boundary: the fact and appearance of judicial independence and impartiality.

Most provisions will go into effect after its Assent, but that date is not yet known. There is no forced commencement date.

Tuesday, 4 December 2012

Guilty plea must be expressly acknowledged

In the ACT, Crimes (Sentencing) Act 2005 s 35 deals with the requirement to take a guilty plea into account.

Here, Sentencing Act 1991 s 5(2)(e) provides that a sentencing court must have regard to a guilty plea.

Section 6AAA requires a sentencing court to announce the sentence it would have imposed but for a guilty plea, but because of s 103, a sentence is probably still valid if a court doesn't comply with s 6AAA.

In Thompson v The Queen [2012] ACTCA 35, the ACT Court of Appeal discussed the need for a sentencing court to expressly articulate that it took a guilty plea into account when determining an appropriate sentence.

The Court noted:

[12] ...A court is obliged to have regard to the plea of guilty. It is not the fact that the court must necessarily impose a lesser penalty as a result, but it must have regard to the plea.

[11] In R v Thompson (2000) 49 NSWLR 383, Spigelman CJ said (at 395; [52]):

The absence of any reference to actual consideration of the guilty plea in the course of sentencing should, as a general rule, in the light of the obligation of sentencing judges to give reasons for their decision, lead to an inference that the plea was not given weight. This conclusion is significantly influenced by the express statutory obligations. The position may not be the same with respect to other matters which are required to be taken into account, either at common law or by reason of a general scheme listing relevant considerations...

That NSW case — R v Thompson — was also cited by Kaye J in R v Flaherty (No 2) (2008) 19 VR 305. (In Flaherty, His Honour observed that the s 6AAA declaration was a bit academic, because it required imagining that the offender didn't plea guilty and choosing from a range of options that might have otherwise reflected the course of the case.)

I don't know of an express Victorian authority on the point, but it seems that while mere non-compliance with s 6AAA won't invalidate a sentence, a failure to advert at all to a plea of guilty may well mean the sentence is open to challenge on appeal.

Monday, 3 December 2012

A call to arms

I'm on my way home from the Law Institute of Victoria meeting discussed here on Thursday. Properly described, it was an Extraordinary Meeting of the LIV's Criminal Law Section.

Lawyers came from far and wide to express their concerns. The meeting tonight was Standing Room Only. Many asserted their staunchly-held belief VLA is moving in the wrong direction, and still more were irked by the lack of consultation. It was said that redrafted eligibility criteria will be finalised by 12th December 2012.

Many possible responses by the Law Institute were suggested. The one which will definitely occur is a rally outside the County Court, next Tuesday 11th December.

Some speakers complained about VLA's recent Public Defender initiatives, arguing they came at the expense of the more mundane but important work that Legal Aid does routinely. There is a real worry that people who need help won't get it under the new rules. Criticism was made of VLA's decision to grant aid in the matter of Magee v Delaney [2012] VSC 407 earlier this year.

Kyrou J summarised what that case was about in the first paragraph of his judgement, rejecting the appeal [at 1]:

Kyle Magee was charged with the offence of damaging property under s 197(1) of the Crimes Act 1958 and the offence of possessing materials for the purpose of damaging property under s 199(a)(i) of that Act. He did not dispute that he intentionally committed the physical elements of those offences by painting over an advertisement in a bus shelter with white paint and by possessing a bucket of paint and a paintbrush for the purpose of painting over more advertisements. However, Mr Magee sought to escape criminal liability by contending that his acts engaged the right to freedom of expression in s 15(2) of the Charter of Human Rights and Responsibilities Act 2006 (‘Victorian Charter’), and that the exercise of that right in furtherance of his philosophical opposition to advertising constituted a ‘lawful excuse’ for the purposes of ss 197(1) and 199(a)(i) of the Crimes Act.

VLA reported a $3.1 million deficit for the 2011-2012 financial year. They are under pressure to ensure that this year's figures are better. The general feeling in the room was that VLA had better scrutinise its priorities more carefully.

Anyone who was at the meeting tonight (or just has a strong feeling about Legal Aid) is welcome to leave their own comment.

Unfortunately our 'Recent Comments' gadget was down when I posted about this issue last Thursday. The gadget is still down and awaiting a replacement, but you can read the comments attached to any post by clicking on the red link in the gray bar directly below the post. I have reposted Hugh de Kretser's comment from last week.

Sunday, 2 December 2012

BA v The Queen [2012] VSCA 285: adducing evidence of a witness's bad character

The UEA represents only a partial codification of the rules of evidence. Knowing whether the Evidence Act 2008 covers the field on a topic, or just introduces an alternative statutory pathway to the admission or exclusion of evidence, isn't easy. The stated intention of the ALRC or VLRC is helpful, but not the final word on the issue.

BA v The Queen [2012] VSCA 285 represents as clear a judicial conclusion as you are likely to find. While dismissing the appeal, Buchanan JA [at 21, Maxwell P and Osborn JA agreed] said briefly:

The fourth ground of appeal is that the trial judge erred in holding that a witness could not give evidence as to the general reputation for veracity of the complainant.

At common law evidence is admissible to impeach the veracity of a witness. The rule is stated by Archbold in these terms:

In order to impeach the credit of a witness for veracity, witnesses may be called by the other side to prove that his general reputation is such that they would not believe him upon his oath: Archbold, Criminal Pleading Evidence and Practice 2009, [8-153]. See R v BDX [2009] VSCA 28.

Counsel for the appellant, relying upon these authorities, sought to lead evidence from the complainant’s mother as to whether she believed the complainant’s allegations against the appellant, that the complainant frequently lied and that she would not believe the complainant on her oath.

The trial judge ruled that Part 3.7 of the Evidence Act 2009 [sic] (‘the Act’) ousted the common law rule and the evidence was not admissible.

Section 102 of the Act provides that credibility evidence about a witness is not admissible. Section 101A defines credibility evidence as evidence that is relevant only because it affects the credibility of a witness or is relevant because it affects the assessment of the credibility of a witness and for some other purpose for which it cannot be used because of a provision in the Act relating to hearsay or opinion. That provision, which the Act describes as ‘the credibility rule’, is succeeded by three sections containing detailed exceptions to the rule. It was not disputed that none of the exceptions applied in the present case.

In my opinion, it is apparent that Part 3.7 of the Act covers the field by establishing a general rule subject to a number of limited exceptions. To revert to the common law would effectively abrogate the statutory rule.

(Those statutory exceptions are mostly found in ss 103 and 106. They didn't apply in this case.)

BA makes it unlikely that trials of the sort considered in R v BDX [2009] VSCA 28 will make a resurgence. It makes sense not to retain the common law in this area - just as, if common law rules still applied to identification evidence, the more restrictive requirements on the prosecution found in Part 3.9 would be made redundant.

Going by the description of the facts provided in the judgment, this was not a case where the complainant's mother - at the time of the alleged offences, the appellant's partner - had any direct knowledge of the incidents in question, or where her evidence on a substantial issue might have contradicted the evidence of the complainant, as in Best v The Queen [2012] VSCA 277. Asking the relative of the complainant in an incest case whether they believe the allegations seems unhelpful, at best (even if it escapes the threshold test at s 55 because of s 55(2)(a)).