Sunday, 31 March 2013

Case theory: what happened; why?

The Australian Bar Association runs occasional advocacy training through the Advocacy Training Council, offering courses on essential and advanced trial advocacy, as well as appellate advocacy.

In February, the blog of Derwent & Tamar Chambers in Tasmania (worth a follow) linked to a paper on case theory prepared by Justice Kenneth Martin from the WA Supreme Court as part of the ATC Advanced Trial Advocacy Course. It's well worth a read.

Case theory is a fairly recent concept in the history of advocacy, but good advocates have been doing it forever. For example, in 1895 Oscar Wilde sued the Marquess of Queensberry for libel. Lord Queensberry's barrister, Edward Carson, had assembled many facts necessary to defend the suit. Wilde portrayed Lord Queensberry as a brute beguiled by lies; Carson countered in his closing address to the jury, "Lord Queensberry, in dealing with Mr Oscar Wilde, has been influenced by one hope alone — that of saving his son." At the closing, Wilde sought to withdraw his suit so comprehensively had Carson rebutted Wilde's case, but Carson pushed for a verdict, and the jury returned a verdict of not guilty. Whatever your thoughts about the whole case, it was a demonstration of both detailed preparation and good case theory by Carson for the defendant.

But there still aren't a lot of freely available resources about case theory; what it is and how to develop it.

So, what is case theory? I like to think of it as, 'What happened, and why?'

If you can answer that, there's your case theory. A prosecution or plaintiff's case theory must put forward a positive explanation of what occurred, and why, consistent with the evidence in the case. A defence case theory might be one that completely contradicts the prosecution case theory — throwing up a stark choice for the tribunal of fact — or might be an alternative case theory that suggests doubt. (Or, the defence might not advance any case theory, and simply say to the prosecution or plaintiff, 'Prove it.') Case theory isn't just motive, though it will often incorporate a motive, or suggest a motive that logically follows from the case theory.

A good example provided by Lee Stuesser in An Introduction to Advocacy is from Plomp v The Queen (1963) 110 CLR 234 at 241 - 3, per Dixon CJ:
It was proved that Plomp had formed a liaison with another woman whom he had promised to marry, that he had represented himself as a widower and that he was continuing the liaison. In the circumstances, proved by apparently credible evidence, it was open to conclude that Plomp had the strongest reasons to be rid of his wife. It is unnecessary to traverse all the circumstances in detail...

In the present case it appears to me that if the jury weighed all the circumstances they might reasonably conclude that it would put an incredible strain on human experience if Plomp's evident desire to get rid of his wife at that particular juncture, presaged as it was by his talk and actions, were fulfilled by her completely fortuitous death although a good swimmer and in circumstances which ought not to have involved any danger to her.

Stuesser writes, 'In Plomp the prosecution's theory would be, "Mr Plomp found another woman. He wanted to get rid of his wife. He chose murder."'

Another example is the notorious case of DPP v Stonehouse [1978] AC 55. Shortly before his disappearance, John Stonehouse took out life insurance policies totalling £125,000, and payable to his wife on his death. His wife was ignorant of his plans. From the headnote:
In 1974, John Thomson Stonehouse ("the accused") was a well-known public figure in this country. A Member of Parliament and a Privy Councillor, he had held a number of ministerial posts in the Government during the six years up to 1970. Thereafter he became active in business through a company. Export Promotion and Consultancy Services Ltd., which he controlled.

By the summer of 1974, his personal finances were in a disastrous state. He decided to fake his death by drowning and to start life afresh under a new identity with money dishonestly obtained and clandestinely transferred to his chosen country of refuge, Australia [where he was living with his mistress Sheila Buckley]. He carried out this plan, but was discovered living in Australia under his false identity some five weeks after his pretended death by drowning. He was extradited and stood his trial at the Old Bailey on an indictment charging him with 16 complete offences of dishonesty and forgery and five offences of attempting to obtain property by deception.

The case theory there would be: Stonehouse was going broke, and wanted money to start anew with his mistress. He faked his own death to defraud his insurers to get that money.

The benefit of a case theory is that it provides a sense of direction and purpose for the advocate. It guides questions. Justice Martin notes in his paper that when we have to think on our feet, and wonder, 'What question do I ask this witness?", the case theory will give us the answer.

Similarly, if your opponent makes unguarded or careless objections to the relevance of questions, that provides a legitimate opportunity explain our case theory in order to show the relevance. This is why silly objections on the grounds of relevance can be so damaging to your own case, and manna from heaven for your opponent.

So not only does the case theory need to be consistent with the admissible evidence — after all, it must have a proper foundation, and can't simply be made up like a script writer creates a screenplay — it also needs to be consistent with human knowledge and experience. Otherwise, the fact-finder will simply reject the case theory, probably with egging on from the opposition advocate. Both examples above demonstrate good case theories that meet these requirements.

If you want to read more about this essential aspect of advocacy, you can find some in the Australian Advocacy Institute's advocacy manual, and a more expansive treatment in chapter 1 of Lee Stuesser's An Introduction to Advocacy.

Saturday, 30 March 2013

Blowback: consequences from legal aid cuts

Recent events in Afghanistan and Iraq brought the intelligence communities' phrase 'blowback' to public consciousness.

At its most basic, it's about unintended consequences; often ones that the actor actual intended to avoid, and yet by their actions, brought about.

Recent legal aid cuts in Victoria might be a case in point.

The UK has also recently gone through a round of austerity cuts, purportedly in the attempt to save money.

A recent Court of Appeal judgment has eloquently demonstrated how such savings can be illusory and undermined as litigation is left to unrepresented parties without the aid of lawyers. (Shoutout to @The CBA for the tweet about this case.)

1. This judgment will make depressing reading. It concerns a dispute between two intelligent and not unsuccessful businessmen who, after years of successful collaboration, have fallen out with each other and this and other litigation has ensued with a vengeance. Being without or having run out of funds to pay for legal representation, they have become resolute litigators and they litigated in person. Some unlucky judge had to cope with the problems that inevitably arise in the management of a case like this. Here the short straw was drawn by His Honour Judge Anthony Thornton QC. He struggled manfully, patiently, politely, carefully and conscientiously. Many may not have done so. It is, therefore, hugely unfortunate that the appeal is launched essentially on the ground that the judge allowed himself to become distracted and so wrongly conducted the trial on the written information he had without allowing the defendants to call live evidence. The appeal is based upon that alleged procedural impropriety.

2. What I find so depressing is that the case highlights the difficulties increasingly encountered by the judiciary at all levels when dealing with litigants in person. Two problems in particular are revealed. The first is how to bring order to the chaos which litigants in person invariably – and wholly understandably – manage to create in putting forward their claims and defences. Judges should not have to micro-manage cases, coaxing and cajoling the parties to focus on the issues that need to be resolved. Judge Thornton did a brilliant job in that regard yet, as this case shows, that can be disproportionately time-consuming. It may be saving the Legal Services Commission which no longer offers legal aid for this kind of litigation but saving expenditure in one public department in this instance simply increases it in the courts. The expense of three judges of the Court of Appeal dealing with this kind of appeal is enormous. The consequences by way of delay of other appeals which need to be heard are unquantifiable. The appeal would certainly never have occurred if the litigants had been represented. With more and more self-represented litigants, this problem is not going to go away. We may have to accept that we live in austere times, but as I come to the end of eighteen years service in this court, I shall not refrain from expressing my conviction that justice will be ill served indeed by this emasculation of legal aid: Wright v Michael Wright Supplies Ltd & Anor [2013] EWCA Civ 234 per Sir Alan Ward.

The real answer lies in the government properly funding legal aid. We can only hope it won't take the court system grinding to a halt and miscarriages of justice before the government recognises that.

Saturday, 23 March 2013

MacDonald v The County Court & Ors [2013] VSC 109: doesn't measure up

It would appear that resort to the National Measurement Act 1960 (Cth), called as a kind of evidence to the contrary to an allegation of speeding, has had its day. To my knowledge the argument has never been accepted, and it doesn't look like it will be. Perhaps someone may breathe new life into it (and individual accused drivers will continue to raise it) but there is a mounting body of law now saying that the one thing has got nothing to do with the other.

For those unfamiliar with it, the National Measurement Act 1960 (Cth) is a piece of legislation which has as its stated purposes,

(1) The objects of this Act are:

(a) to establish a national system of units and standards of measurement of physical quantities; and

(b) to provide for the uniform use of those uniform units and standards of measurement throughout Australia; and

(c) to co-ordinate the operation of the national system of measurement; and

(d) to bring about the use of the metric system of measurement in Australia as the sole system of measurement of physical quantities; and

(e) to provide for a national system of trade measurement;

The Act doesn't have anything to say about road safety cameras, and isn't aimed at regulating law enforcement activities. Even so, it's occasionally argued by self-represented accused that some kind of conflict between this Commonwealth Act and State law exists, enlivening s 109 of the Constitution and invalidating or displacing specific legislation like the Road Safety Act 1986.

Such arguments have been rejected repeatedly by appellate courts, both here and interstate where similar statutory schemes operate. I've written before about the flaws in approach that often characterises these attempted defences.

Some judgments dissect these 'pillars of justice' arguments in great detail, while others simply declare them devoid of merit and move on. I found the approach taken by Emerton J in MacDonald v The County Court & Ors [2013] VSC 109 to be a concise yet comprehensive exploration of the argument.

The case trod a well-worn path from the Magistrates' Court to a hearing de novo in the County Court, and from there by way of application for judicial review under O 56 before Emerton J in the Supreme Court. Her Honour said [at 25, then skipping to 27]:

Mr Macdonald contends that the speed cameras that were used to take the photos and record the speed of the vehicles in question did not comply with the requirements of the National Measurement Act and that, in the absence of approval and the provision of the certificate under by the National Measurement Act and National Measurement Regulations 1999 (Cth), the speed cameras were illegal. Mr Macdonald referred to the requirements of ss 19A, 19AAA and 19AAB of the National Measurement Act and asserted that the prosecution had failed to produce certificates establishing that the speed cameras had been verified in accordance with the requirements of Reg 18 of the Regulations.

Although I was not taken to it by Mr Macdonald, I have had regard to the National Measurement Act as in force in April 2008, when the speed cameras photographed and recorded the speed of the vehicles in question.


The system of verification of utility meters used for trade is contained in Part VA of the Act. However, it was common ground that a speed camera is not a utility meter for the purposes of Part VA. Rather, Mr Macdonald relied on Part VI, which contains the provisions that he referred to. These provisions – ss 19A, 19AAA and 19AB – do not require the doing of anything. Rather, they provide for the making of regulations, specifically for or in relation to the examination, approval and verification of ‘patterns’ of measuring instruments, for the issuing of certificates in respect of the approval and verification of patterns of measuring instruments and for the reception in evidence of documents purporting to be such certificates.

It is therefore necessary to have regard to the Regulations (as in force in April 2008). Although Mr Macdonald referred to regulations 18 and 80A, they do not appear to me to be relevant to the argument that he apparently seeks to make. Part VI of the Regulations deals with patterns of measuring instruments. Regulation 58 provides that an application may be made for approval of the pattern of a measuring instrument and then sets out the procedure by which that is undertaken. Regulation 60 provides that on application under Regulation 58, the approving authority may approve the pattern of a measuring instrument by certifying that the instrument is suitable for use for trade or as a legal measuring instrument. If the pattern of the measuring instrument is approved, the approving authority must issue a certificate of approval to the applicant. Regulation 63 sets out the form of the certificate of approval. Regulation 64 and Division 3 of Part VI deal with the circumstances in which an approval may be withdrawn or cancelled.

Part IV of the Regulations deals with the certification of individual measuring instruments. Regulation 36 provides that an application may be made for certification of a measuring instrument, and Regulation 37 provides that, upon application under Regulation 36, the certifying authority may examine the measuring instrument and may certify the measuring instrument. For a measuring instrument to be certified, it must have an approved pattern and bear a mark that identifies the particular instrument.

The relevant regulations are therefore largely permissive in character. A person may apply for approval or certification of a pattern or of an individual measuring instrument, but it is not mandatory.

Having regard to the Regulations, I can find no requirement that speed camera types or individual speed cameras be certified, verified, calibrated or otherwise approved under the National Measurement Act or the Regulations. Mr Macdonald could not point to any specific requirement in the National Measurement Act or the Regulations that speed cameras be approved, verified or certified either individually or more generally as to pattern. He argued, instead, that it was the general ‘tenor’ of the National Measurement Act that they be approved, verified or certified.

I do not accept this submission. In my view, the County Court was not prevented from finding the charges proven in the absence of approval, verification or certification under the National Measurement Act of either the pattern of the speed cameras or the individual speed cameras, as there was no such requirement.

It follows that the constitutional issue raised by Mr Macdonald based on the alleged inconsistencies between the Road Safety Act and the National Measurement Act and Regulations does not arise.

(Some of the sections Emerton J referred to (operating at the time of the offence in 2008) have since been repealed and replaced with similar provisions.)

There were other issues raised, relating to natural justice, rental agreements and the operation of the Magna Carta, but they were also found to lack substance.

The application was dismissed.

Thursday, 21 March 2013

Pedantry Corner

I try not to let small things bother me, and occasionally I'm successful.

Before anyone asks what I mean by pedantry, I adopt the standard Oxford dictionary definition:

n. excessive concern with minor details and rules.

So don't bother to comment that I'm being petty, or that the rising tide of illiteracy is against me, or (God forbid) point out my own mistakes. If we have a deal, I shall try to make sure that my visits to Pedantry Corner are rare, and brief.

A frequent source of irritation to me is the way that uninterested and disinterested are considered synonyms. They are not. And unlike words which mean fundamentally the same thing (often a legacy of Britain's Norman and Saxon heritage, and liberally scattered through legal terminology, such as will and testament; aid and abet; null and void), each of these words performs a valuable service in our language.

The magistrate was uninterested means s/he's bored.

The magistrate was disinterested means an application relating to apprehended bias is unlikely to succeed.

So while you can direct me to a dozen dictionaries and websites that now attach both meanings to disinterest, they shouldn't be promoting the confusion. And I frequently have this discussion with lawyers, for whom language is their lifeblood, who can't distinguish between the two.

What does Browne v Dunn require?

Both sides of any legal dispute, civil and criminal, must comply with the rule in Browne v Dunn (1894) 6 R 67 at hearing.

But few legal minds agree precisely on the level of detail that proper puttage must go to, or even how to go about it. And, of course, with the infinite number of circumstances that the rule can be applied to, what is found to be compliant in one case may be inadequate in another case that bears a strong likeness.

Obeying the rule does not, as some advocates think, require the laborious and tiresome putting of every shred of their case to every witness, usually hoping that their position will acquire some strength by repetition that it lacks on its own. Neither the tribunal of fact, nor the party's prospects of success, are assisted by that. But nor is a scant, "I put it to you my client acted in self defence," (or similar generality) likely to satisfy counsel's obligations.

I like to apply the "What?" test. If matters have been properly put to witnesses, the evidence of your witnesses (or your submissions) should not cause anyone's head to whip around and their lips to mouth the word, "What?". If your actions prompt that level of surprise in the courtroom, chances are good that there will shortly be a submission that the rule in Browne v Dunn has been breached.

Because of the burden of proof in criminal cases and the order in which evidence is called, the rule is more often transgressed by defence advocates than by prosecutors. In leading the prosecution case, by their opening (if there was one) and by the evidence-in-chief of its witnesses, the case for the prosecution should be clear before the first defence witness is called.

But it can still happen that a prosecutor breaches the rule. Where the breach occurs in a closing address (particularly in front of a jury), such a breach can be costly to all concerned. In Smith v The Queen [2012] VSCA 187, after a 33 day conspiracy to defraud trial in the County Court, the conviction was quashed on appeal because (amongst other things), the prosecutor relied upon inferences of consciousness of guilt which had not properly been put to the accused.

Where an accused gives evidence and is cross-examined, a failure by the prosecutor to put the allegation in detail squarely to the accused will not automatically be taken to be acceptance of the accuracy of their evidence. There are a couple of reasons for this. The information or indictment already places the accused on notice as to what the prosecution allege to have occurred. The accused is present for the evidence of prosecution witnesses. And, quite often, their own counsel will have put the allegation to them (sometimes directly, sometimes indirectly, sometimes both). In these circumstances, the obligation to put everyone on notice about the issues in dispute (referred to by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 [at 22 and 23]) has already been discharged before the prosecutor opens their mouth.

A good demonstration of this can be found in Vo v The Queen [2013] NTCCA 4. Though the appellant's conviction was quashed for other reasons, the NT Court of Criminal Appeal rejected the ground that asserted the failure by the prosecutor to cross-examine the accused on important points implied an acceptance by the prosecution of the accuracy of her account.

Mildren ACJ, Kelly and Blokland JJ [at 25]:

Counsel for the appellant submitted, however, that in deciding whether the jury was right to reject the appellant’s unchallenged evidence as to the nature of her belief, the jury was entitled to take into account that the prosecutor had failed to comply with the well-known rule in Browne v Dunn. We were referred to a number of authorities which discuss the rule in Browne v Dunn. It is not necessary to refer to them all. It is sufficient to refer to the well-known judgment of Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation, where his Honour referred to the fact that Lord Herschell LC conceded that there was no obligation to raise a matter in cross-examination in circumstances where it is perfectly clear that the witness has had full notice beforehand that there is an intention to impeach the credibility of the story which the witness is telling.

At pages 22 to 23, his Honour went on to say:

"A challenge made to the evidence of a witness in the course of a final address may take place in various ways. The opposing party may ask the tribunal of fact simply to disbelieve that evidence; if he has led evidence in direct contradiction of the evidence of that witness, he may then ask the tribunal of fact to accept the evidence of his own witnesses in preference to that of the witness in question; or he may point to other evidence in the case, led by either party, which tends either to contradict the evidence of that witness or to destroy his credit. 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.”

In this case, it was perfectly obvious right from the start that the Crown intended to rely upon the presumption contained in the Criminal Code. Although there was no direct challenge to the appellant’s evidence concerning her state of knowledge, she was thoroughly cross-examined about the circumstances under which she became to be in possession of the drugs prior to the time that they were seized at Darwin airport, as well as her behaviour at the airport when she was spoken to by customs officers. The effect of the cross-examination was to undermine her credit as a witness. We think that, in these circumstances, the prosecutor did not breach the rule in Browne v Dunn and that she did all that was required of her.

The reference to Lord Herschell LC concerns Browne v Dunn itself. (It's a case that almost all lawyers have heard of, but only a few have read. Unfortunately, while it's available by all of the usual subscription services, I don't have a free copy to link to). In it, the Lord Chancellor said,

I can quite understand a case in which a story told by a witness may have been of so incredible and romancing a character that the most effective cross-examination would be to ask him to leave the witness box.

While this may be true, it would probably be far more prudent to ask a few questions first.

Saturday, 16 March 2013

A victim's place

Shepherd & Anor v Kell & Anor [2013] VSC 24 was an application under s 85B of the Sentencing Act 1991 for a compensation order against two men convicted of manslaughter. The application was made by the victim's parents, who are recognised as victims of the crime themselves by the definition provided at s 3 of the Act:

victim, in relation to an offence, means a person who, or body that, has suffered injury, loss or damage (including grief, distress, trauma or other significant adverse effect) as a direct result of the offence, whether or not that injury, loss or damage was reasonably foreseeable by the offender;

In granting the application, Lasry J drew upon the affidavits of the victims to make the following observations [at 16], which should give everyone connected with the justice system pause for thought:

It is important for me to note that the experience of Mr and Mrs Shepherd in the justice system has not been satisfactory. In his victim impact statement Mr Shepherd said:

I felt disappointed in the justice system and how it caters for people like Maureen and I and the situation we found ourselves in. I think there should be a little room next to the court with one way glass where you can sit and listen to the proceedings. A place where you can react with tears and anger and overwhelming grief if you have to when you hear the evidence presented. Instead, there I was in the court room having to be a robot again. I was told not to show any reaction to who was there and what I heard. I was so anxious about doing the right thing I didn’t want to upset the proceedings with any emotional outburst which I really felt like showing. I felt like screaming out every time the defence questioned a witness challenging the truth. Having to keep all my emotions inside has taken its toll on me.

Observations like this should be acknowledged by those of us in the criminal justice system and governments and courts should consider the way in which the experience of people such as Mr and Mrs Shepherd can be made more comfortable than it is at the moment.

The costs involved in installing private galleries and one-way glass in courtrooms would be prohibitive. But reading of this man's experience did cause me to wonder why better use isn't made of remote witness facilities already in existence at every Victorian court. It wouldn't be possible for the facilities to be used for this purpose when they are required for a witness giving evidence in a trial, but there are many more occasions during trials and sentencing hearings when a victim and their loved ones could watch proceedings without having to maintain the unnatural, stoic demeanour that their presence in the body of the court demands.

The cost would be minimal. The signal would be transmitted one-way rather than both ways. And it could benefit the court and the administration of justice, as it might minimise the potential for disruption to proceedings caused by someone in the gallery becoming distressed or disruptive, or needing to absent themselves from the hearing urgently. Not every victim would use it, but no doubt some would.

Perhaps this already does happen and I'm just not aware of it. (Someone post a comment about it, if that's the case.)