Monday, 28 January 2013

Nose for crime or just bad scents? Drug dogs and the search-or-sniff dichotomy

Last year, one of our readers sent me an article about one of two pending appeals in the Supreme Court of the United States about the use of drug-dogs and the admissibility of searches and seizures based on drug-dog indications.

The two appeals are Florida v Jardines and Florida v Harris. An overview of the cases is here, and in the New York Times here.

(Those links will take you to the first-rate Supreme Court of the United States, or SCOTUS blog. I live in hope that one day there will such a resource here in this country to tell us all of appeals lodged in our superior courts, discussing their issues and arguments and tracking their progress. Until then, an excellent alternative is LawGeekDownUnder.)

In essence, both cases consider if the use of police sniffer-dogs contravenes the US Constitution's Fourth Amendment right to privacy and protections from search warrants obtained without probable cause. That broadly — though not precisely — correlates to Charter of Human Rights and Responsibilities Act 2006 s 13. The argument centres on whether an indication of drugs purportedly provided by a drug-detecting dog provides probably cause for search.

The US Supreme Court has touched on this use of sniffer-dogs in United States v Place, 462 US 696 (1983), where it held that the use of sniffer-dog to detect drugs in an airline passenger's baggage was not a search contrary to the Fourth Amendment.

It will be interesting to see how the current US Supreme Court decides these appeals.

The Supreme Court of Canada is also considering the same issue, in two cases I've been watching for the last 12 months as they wend their way through the appeal steps there. The cases are Chehil v The Queen and MacKenzie v The Queen.

Apparently, MacKenzie was stopped for speeding. The police suspected he was in possession of a controlled substance. They conducted a sniff search with a sniffer dog and found marijuana in the boot of his car. The appeal is, apparently, about whether the police had reasonable grounds to suspect MacKenzie had drugs.

Chehil was travelling on a one-way plane ticket from Vancouver to Halifax. He paid cash for the ticket, and had only one relatively new suitcase. The police got a sniffer dog to check it out, and the dog identified narcotics, but also wrongly identified a cooler as containing drugs. When Chehil collected his suitcase from the baggage carousel, the police arrested him for possession of a controlled substance, and then opened the suitcase and found a knapsack containing 3 kg of cocaine. The trial judge found the search infringed Charter ss 7, 8 and 9 and excluded the evidence.

Two recent Canadian cases suggest those appeals are likely to find for exclusion of the searches.

R v A.M., [2008] 1 SCR 569 considered the use of a sniffer-dog at a high school. The principal invited the police to search for drugs, but the police had no knowledge drugs were present and could not have sought a warrant to search for drugs. The dog indicated drugs in a bag in the gymnasium, and the police opened it and found drugs. The Court upheld the accused's acquittal on the grounds the dog-sniff was a search within s 8 of the Charter and should be excluded under s 24(2).

And R v Kang-Brown, [2008] 1 SCR 456 had a similar result. In that case, an RCMP officer saw a bus passenger behaving in a way he considered suspicious, and signalled another officer with a sniffer-dog to approach. The dog indicated drugs; the accused was arrested; his bag searched, and the police found drugs in the bag and on the accused. The Court held the sniff was a search within s 8, and violated s 8.

(As an aside, two other North American cases considering related issues muddy the waters a little.

In R v Gomboc, [2010] 3 SCR 211 the Supreme Court of Canada restored the conviction of an accused who successfully appealed his narcotics cultivation conviction at trial. The police relied in part on information from a digital recording ammeter (DRA) which measured and recorded electricity flowing in to a house, consistent with growing marijuana. Based on that and other information, the police successfully applied for a search warrant. The majority of the Court held that DRA revealed nothing about the intimate or core person activities of the occupants; all it showed was the consumption of electricity. This wasn't the sort of information protected by s 8 of the Charter.

And in R v Tessling, [2004] 3 S.C.R. 432 and Kyllo v United States 533 US 27 (2001) the Canadian and USA Supreme Courts respectively considered the admissibility of the results of infra-red imaging used to identify marijuana crops grown with the aid of high-wattage lamps.

The US Supreme Court held this was a search contrary to the Fourth Amendment; but the Canadian Supreme Court held it was a form of external surveillance and so not a trespassory breach of privacy. That approach was expressly rejected by the US Supreme Court majority, but followed by the dissenters.)

Here in Australia, the law seems to be a little less ambiguous, but, there have been no appellate cases considering the point in Victoria since the commencement of our Charter.

Victoria has no express legislation dealing with the point, unlike NSW's Law Enforcement (Powers and Responsibilities) Act 2002 Part 11, Div 2 and Qld's Police Powers and Responsibilities Act 2000 Chapter 2, Part 3.

But so far, even without express legislative authority for the use of sniffer dogs, it seems that sniffs are not searches under the common law: Darby v DPP (2004) 61 NSWLR 558; Question of Law Reserved (No 3 of 1998) (1998) 71 SASR 223.

If the US or Canadian appeals conclude that dog sniffs are searches — and it seems the Canadian Supreme Court at least will continue with its previous decisions on the point — it should provide fertile grounds for challenging the use of sniffer-dogs in Victoria under our Charter. Stay tuned for when the appeals are decided...

Sunday, 27 January 2013

Dupas v The Queen [2012] VSCA 328: trial judges do not have to assume the evidence presented to them is correct when assessing its probative value

In Dupas v The Queen [2012] VSCA 328 the Victorian Court of Appeal, sitting as a bank of five judges, declined to follow the precedent of R v Shamouil (2006) 66 NSWLR 228, a decision of the NSW Court of Criminal Appeal. In Shamouil, a mid-trial Crown appeal on the exclusion of key prosecution evidence, it was held that the decision to exclude evidence had erred, and was remitted to be reconsidered.

Some subsequent NSW and Commonwealth decisions assert that Shamouil stands for the proposition that, when assessing probative value under s 137 of the Evidence Act 1995 (NSW) a trial judge must assume that the evidence is not only truthful, but also reliable. In Victoria, which uses s 137 of the Evidence Act 2008 (Vic), a number of cases have accepted this approach as correct. But from now on, at least in Victoria, an assessment of the credibility of the evidence will form a part of the assessment of probative value, to be weighed against the risk of prejudicial effect.

Having two different interpretations on identically worded legislation is problematic. I suggest that an appeal to the High Court (but not this case) will be required to settle the issue.

The Law As Previously Understood

When assessing whether the probative value of evidence outweighs its prejudicial effect (the test for admissibility or exclusion under s 137), it is not usually necessary to consider whether the evidence is reliable (in the sense of it being likely or unlikely to be accurate). When this needs to be considered, the test is not whether the trial judge thinks it will be accepted by the jury or if the trial judge thinks that it should be; the test is whether it could properly be accepted by the jury. It's a low threshold test, designed not to subvert the jury's function of deciding the facts.

This is the law as it has been applied (and continues to exist) in NSW and elsewhere, but not in Victoria any longer. The Victorian Court of Appeal declined to follow the line of authority that flowed from the NSW Court of Criminal Appeal in R v Shamouil (2006) 66 NSWLR 228. The High Court said in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 [at 135] that intermediate appellate state courts should follow one another's decisions on the interpretation of national uniform legislation unless convinced that the interpretation is plainly wrong. The Victorian Court of Appeal in Dupas v The Queen [2012] VSCA 328 decided that the NSW Court of Criminal Appeal had misunderstood the common law Christie test, misstated the correct approach under s 137, and led the courts that followed into error. The Court attempted to explain why in some detail (spanning 157 paragraphs). Their decision had five limbs:

  • [From 65] the common law required trial judges to assess the weight of evidence when deciding whether to admit evidence, prior to the statutory reform;
  • [From 147] principles of statutory interpretation favour this interpretation;
  • [From 179] extrinsic material and commentary favours this interpretation (for a variety of reasons);
  • [From 200] the identified exceptions (or 'work arounds') to the rule in Shamouil are narrow and ineffective;
  • [From 212] the question had yet to receive full consideration (after argument) in the Victorian Court of Appeal before the determination of this case.
After consideration of the principles of comity, the Court determined it should not follow a precedent it considers plainly wrong. Implicit in the judgment is the expectation that other jurisdictions will look at the arguments provided and adopt them, in time creating a new uniformity of approach.

Dupas v The Queen

In Dupas' first trial, the appellant unsuccessfully applied to have the identification evidence against him excluded under the old Christie discretion. By the time of his retrial the Evidence Act 2008 was operating, so a similar application was made under s 137. This was also refused. The Court of Appeal [Warren CJ, Maxwell P, Nettle, Redlich and Bongiorno JJA] didn't interfere with Dupas' conviction. It could have avoided a direct collision of competing interpretations by agreeing that some cases do require the trial judge to assess the credibility of evidence, but others don't. Instead, the Court found that a trial judge's assessment of the weight that can appropriately be given to evidence doesn't usurp the jury's function of deciding what weight it will give to it, and is often an integral part of assessing probative value.

The Court seemed to particularly have in mind cases where the prejudicial effect of evidence is that its probative value appears to have a lot of probative force, but actually doesn't. The Court created its own checklist of principles applicable to s 137 [at 63]:
(a) The common law did require the trial judge, in assessing probative value, to evaluate the weight that the jury could rationally attach to the evidence. The contrary conclusion was inconsistent with a continuous line of High Court authority.  
(b) The legislative intention, as disclosed by the language of s 137 and its context, is that the task under s 137 is the same as that at common law.  
(c) The trial judge undertaking the balancing task is only obliged to assume that the jury will accept the evidence to be truthful but is not required to make an assumption that its reliability will be accepted. The phrase ‘taken at its highest’ is more appropriately used in considering a no case submission, when the judge must accept that the jury may find the evidence credible and reliable.          
(d) In order to determine the capacity of the evidence rationally to affect the determination of a fact in issue, the judge is required to make some assessment of the weight that the jury could, acting reasonably, give to that evidence. Where it is contended that the quality or frailties of the evidence would result in the jury attaching more weight to the evidence than it deserved, the trial judge is obliged to assess the extent of the risk. That does not require the trial judge to anticipate the weight that the jury would or will attach to it. The judge is obliged to assess what probative value the jury could assign to the evidence, against which must be balanced the risk that the jury will give the evidence disproportionate weight. 
(e) So to construe s 137 accords with the language of the statute and its context. To construe it otherwise does not. (f) Such a construction does not involve any enlargement of the powers of a trial judge or any encroachment upon the traditional jury function.
These points are clearly intended to expressly refute the statements of law in Spigelman CJ's judgment in Shamouil

R v Shamouil

Spigelman CJ said in Shamouil [at 60, Simpson and Adams JJA agreeing] that,
The preponderant body of authority in this Court is in favour of a restrictive approach to the circumstances in which issues of reliability and credibility are to be taken into account in determining the probative value of evidence for purposes of determining questions of admissibility. There is no reason to change that approach. In my opinion, the critical word in this regard is the word could in the definition of probative value as set out above, namely, “the extent to which the evidence could rationally affect the assessment ...”. The focus on capability draws attention to what it is open for the tribunal of fact to conclude. It does not direct attention to what a tribunal of fact is likely to conclude. Evidence has “probative value”, as defined, if it is capable of supporting a verdict of guilty. This conclusion is reinforced by the test that evidence must “rationally affect” the assessment. As Gaudron J emphasised in Adam, a “test” of ‘rationality’ also directs attention to capability rather than weight. There will be circumstances, as envisaged by Simpson J in Cook, where issues of credibility or reliability are such that it is possible for a court to determine that it would not be open to the jury to conclude that the evidence could rationally affect the assessment of the probability of the existence of the fact in issue.        
In that limited sense McHugh J’s observations in Papakosmas that “considerations of reliability are necessarily involved” have application. To adopt any other approach would be to usurp for a trial judge critical aspects of the traditional role of a jury. In the case of evidence of critical significance, such a ruling by a trial judge would, in substance, be equivalent to directing a verdict of acquittal on the basis that the trial judge was of the view that a verdict of guilty would be unsafe and unsatisfactory. As the High Court said in that different, but not irrelevant, context in Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 at 275, this is not a permissible “basis for enlarging the powers of a trial judge at the expense of the traditional jury function”. In my opinion, the same is true if a trial judge can determine the weight of evidence when applying s 137.
Simpson J said in Cook that [at 43, Ipp JA and Adams J in agreement] when it became necessary for a trial judge to assess the credibility of evidence as part of deciding its probative value, the question was whether it is 'capable of belief by a jury'.


Each court looked at the problem from the opposite end of a conceptual telescope. The NSW Court considered the weight of evidence to be a matter for a jury, with a very small gatekeeping role for the trial judge to keep out evidence that was far too weak or shaky to sustain a conviction. By contrast, the Victorian Court sees a need for a more active trial judge, policing evidence for the potential to mislead or prejudice, and excluding it from the trier of fact's consideration.

The Victorian Court of Appeal certainly did due diligence in the part of its judgement relating to the history of the exercise of the Christie discretion. While I can accept that various commissions and parliaments involved in bringing the UEA into being intended and expected s 137 to work in the same way as the Christie discretion, I doubt that many of the people involved had considered the implications to this level of detail.

One of the weakest aspects of the Court's reasoning is a failure to identify why the common law distinguishes between truthfulness and reliability. There isn't any explanation in the judgment for why this distinction exists. Why is a trial judge better placed to identify the weaknesses of evidence caused by poor lighting, distances, unfamiliar and brief contact with a stranger, etc. in an identification case, than in spotting an untruthful witness answering questions in the witness box?

There was no explanation proffered for the distinction that the Court insisted was both long-standing and important. Dupas says that the assessment of reliability of evidence is a part of every balancing exercise under s 137, but accepts that there will be cases where (un)reliability of evidence isn't a key feature. Shamouil says that a restrictive approach should be taken to a trial judge assessing the weight of evidence, but there will be times when the reliability of evidence presented is so lacking it would be wrong to let it go to the jury. Both agree that it's not a question of the trial judge trying to insert their own opinions. It's about making an objective assessment about what the jury could properly do with the evidence (something trial judges are called upon to make rulings on all the time). These are not as far apart as they first appear.

Perhaps Shamouil is a victim of the desire to sum up a legal principle in two lines or less. (It's a temptation I know well). It's tempting to sum up Shamouil as, 'the trial judge has to assume the evidence is true when assessing its probative value'. But, as the quotes produced from the case make clear, that's not what the NSW Court of Criminal Appeal originally said.

Matters Arising

If other jurisdictions adopt the Victorian Court of Appeal's approach then s 137 will be interpreted uniformly. But if (as seems more likely) some non-Victorian courts continue to follow the NSW Court of Criminal Appeal's earlier decision, the law across jurisdictions will remain uncertain. (Though, as I do continue to rejoice in saying, the law is always certain, even when none know what it is). An appropriate case will need to go to the High Court to settle the issue, but it's not going to be this one.

In Shamouil, Spigelman CJ put forward as one of his reasons that, if the trial judge were to exercise their own assessment of the probative value of evidence, this wouldn't just impact on identification evidencE, or the exercise of this particular discretion. Because of the repeated use of the phrase probative value through the Evidence Act, a trial judge's assessment of the reliability of evidence influences the admissiblity of most kinds of evidence. His Honour said [at 65]:  
This Court should be very slow to conclude that it was the intention of Parliament in enacting the Evidence Act to alter the fundamental relationship between the judge and jury in a criminal trial in the manner suggested. Such a change would occur on each occasion that “probative value” falls to be assessed by the trial judge including: tendency and coincidence evidence (s 97(1)(b), s 98(1)(b), s 101(2)); cross-examination on credit (s 103(1)); the comparative weight with misleading, confusing, or time wasting effects (s 135(b) and (c)); and the comparative weight with unfair prejudice (s 135(a), s 137).
The Judicial College agree, on this point at least. They have significantly edited their Charge Book accordingly over the hiatus, to take into account the Court of Appeal's decision in Dupas.

Monday, 21 January 2013

Changes to the County Court Criminal Procedure Practice Note

These changes come in on Monday 21st January.

The amended note (36 pages) can be found here. Even more helpfully, a Notice to Practitioners (kind of an EM for practice notes) has been made available here.

Most changes are minor procedural tweaks. Perhaps the most significant change is the Criminal Registry's express prohibition on filings by post or facsimile, except where the accused is self-represented. Tiresome arguments about when documents were sent or received are going. I expect this will soon become the norm across jurisdictions.

Sunday, 13 January 2013

School days 2013

Yep, it's that time again.

While the date that your kids go back to school will vary, the dates when speed signage applies on 'School Days' are the same across Victoria.

The relevant gazette for 2013 is Government Gazette S 397 published on 26 November 2012. It contains a table of the declared school days for the coming year:

School Days Period 1 = 29 January 2013 to 28 March 2013
School Days Period 2 = 15 April 2013 to 28 June 2013
School Days Period 3 = 15 July 2013 to 20 September 2013
School Days Period 4 = 7 October 2013 to 20 December 2013

These days are school days unless there is local signage that says otherwise.

I'll leave the 2012 dates up on the TABLE off to one side for a while. Once replaced, old School Day dates for last year (and previous years) will still be available through the SEARCH function.

Sunday, 6 January 2013

Putting in an appearance

The Magistrates' Court Criminal Procedure (Amendment No. 3) Rules 2012 took effect last Tuesday, 1st January 2013.

The amendments specify that it's acceptable for an accused person who is not on bail to receive an adjournment at first mention without the necessity for an appearance at court, provided they:

a) apply for the adjournment as soon as possible, but no later than 3:00pm the day before: and
b) receive confirmation from the Court Registry that the matter will be adjourned administratively.

After first mention, the amendments create a presumption that the accused will attend subsequent mentions, whether or not they intend to request further adjournments.

These Rules formalise the practices that happen now. Still, it's good that they're written down somewhere for all to see. Rule 31D allows the Court to dispense with these presumptions when appropriate, either before or after the mention date.

The new provisions can be found here.