Sunday, 8 September 2013

DPP v Dover [2013] VSCA 233: voluntariness confirmed for refusing blood test

Last week the Court of Appeal delivered an easy-to-digest and concise appeal in DPP v Dover [2013] VSCA 233 confirming that a driver must act voluntarily before they can be guilty of refusing a blood test following an accident.

Image courtesy of Ambro /

In April last year I posted about Dover v Doyle [2012] VSC 117, the case where a driver was found not guilty of refusing to allow a blood test following an accident because her actions were not voluntary.

The DPP appealed that decision on two grounds:
  1. The learned judge erred in holding that in order to prove the commission of an offence against s 56(2) of the Act, the prosecution must establish that the person’s omission to allow a doctor or approved health professional to take from that person a sample of that person’s blood for analysis is conscious and voluntary.
  2. The learned judge erred in holding that s 56(2) of the Act creates a strict liability offence.
Maxwell P, Tate JA and Garde AJA unanimously dismissed the Director’s appeal. The judgment helpfully details a bit more of the facts surrounding the alleged offending, as well as the evidence led in the County Court appeal, which helps make it easier to understand why voluntariness was properly raised and was in issue.

On ground 1, Tate JA (delivering the leading judgement) said:

38 In my view, the DPP’s submissions failed to appreciate the force of the presumption that the criminal law only punishes conduct which is voluntary. It is not a presumption which can be easily displaced by examples from non-criminal contexts where ‘allowing’ a situation to occur may occur while one is unconscious. The presumption is a strong one, as made clear by statements made by Gleeson CJ in Edwards v Macrae (1991) 14 MVR 193 at 198 – 9:

[A]lthough parliament may by clear words provide to the contrary, the criminal law only punishes conduct which is voluntary. The strength of that presumption was emphasised by Jordan CJ in R v Turnbull ... In O’Connor Barwick CJ went so far as to say:

‘In Ryan’s Case I attempted a summary statement of the principle that in all crime, including statutory offences, the act charged must have been done voluntarily, i.e. accompanied by the will to do it. I find no need to qualify what I then wrote. I stated the principle without qualification.’

I do not take his Honour to mean that parliament could not, by appropriate language, make it clear that a contrary position was to apply in relation to some offences. However, the passage quoted demonstrates the strength of the presumption.

39 In Edwards v Macrae Gleeson CJ held that the defence of automatism may sometimes be a defence to a charge of driving a motor vehicle while there is present in the person’s blood the concentration of alcohol prescribed by statute.

40 As Bell J recognised, the presumption is fortified by the principle of legality, that being the principle (stated in cases such as Coco v The Queen and Lacey v Attorney-General (Qld) that in the absence of ‘unmistakeable and unambiguous language’, a statutory provision should not be read as expressing a parliamentary intention to abrogate basic rights, freedoms or immunities.

41 In my view, the DPP has been unable to demonstrate that the presumption that the criminal law only punishes conduct which is voluntary has been displaced in the context of s 56(2) of the Act. I agree with Bell J’s observation below that to ‘allow’, in the context of the section, means to ‘permit’, the same meaning attached to ‘allow’ by Phillips JA in Wallin v Curtain (1998) 100 A Crim R 506 and I consider that in the context of s 56(2) it necessarily involves a person acting consciously and voluntarily. The Parliament has not made manifestly clear an intention to override the strong and long-established presumption of voluntariness in relation to criminal offences.

42 The presence of the exception in sub-s (5), which, as mentioned above, provides that a person is deemed to allow the taking of blood if unconscious or unable to communicate, reinforces this point: it is because the person is incapable of conscious or voluntary action that he or she must be deemed to allow the taking of blood in order to avoid any legal consequences which might accrue to the doctor for taking a person’s blood in those circumstances. This subsection provides an exception to the general rule that, as Phillips JA said in Wallin v Curtain, in this context ‘a choice is presented’: the person may, consciously and voluntarily, elect to allow the taking of a blood sample or refuse to allow the doctor to take a sample.

43 I reject the submission that the interpretation proposed by the DPP is necessary in order to fulfil the purposes of the Act. The purposes of the Act, and of Part 5 in particular, can be advanced consistently with an interpretation which is faithful to those presumptions at law that are based on matters of principle. It would be wrong to assume that, when faced with constructional choice, the interpretation to be adopted is one that has as a single objective the furtherance of the purposes of an Act as though the legislation existed in a vacuum, unaffected by the presumptions at common law developed over time.

44 With respect to the legislative history, in my view it cannot be concluded that the legislative amendments, introduced to shift the obligation from doctors to take a blood sample whether or not the person allowed it onto the person to allow the sample to be taken, did not have as a consequence that there may be some circumstances in which no blood sample is taken and yet no offence is committed. This may simply be a consequence of relieving doctors of what must have been perceived to be a disproportionately onerous obligation.

45 In my opinion, Bell J was correct to conclude that voluntariness is an element of the offence created by s 56(2) which, if raised as a fact in issue by the defence, must be established beyond reasonable doubt by the prosecution.

Of course, the caveat that appears in that last paragraph is important: the accused must meet their evidentiary burden to rebut (or at least displace) the presumption of voluntariness, otherwise all of this is irrelevant.

The second ground came about because Bell J said in Dover v Doyle [2012] VSC 117 at [20]:

The question whether Ms Dover’s refusal was intentional does not arise because s 56(2) creates a strict liability offence in the sense that a person who, in the circumstances specified, refuses to allow a sample of blood to be taken commits the offence whether or not they intend to do so. The separate question which is at issue in this case is whether the prosecution must prove the refusal was conscious and voluntary. [Emphasis added.]

In this appeal, Tate JA said the difference between strict and absolute liability offences didn’t matter in this appeal, because it wasn’t part of the argument or reasons for the outcome.

48 ...The DPP urged that an offence of strict liability is one which does not depend on proof of any mens rea or fault element, although the defence of ‘mistake of fact’ is available. By contrast, offences of ‘absolute liability’ are those where the defence of mistake of fact is not available.

49 The complaint of the DPP was, first, that the question of whether the defence of mistake of fact was available to Dover was not in issue before his Honour and it was therefore unnecessary for him to express a conclusion on the matter. Secondly, it was submitted that s 56 is an offence of absolute liability which does not permit a person to escape liability on the basis of a mistaken belief that, for example, he or she had been asked for a sample of bone marrow rather than a sample of blood.

50 I make no finding in respect of the nature of the offence created by s 56(2) as the issue was not properly raised by the circumstances of the case. No attempt was made to rely on a defence of honest and reasonable mistake and nothing turns on Bell J’s observations on this point. [Citations omitted.]

Saturday, 7 September 2013

My instructions are...what are my instructions?

The notion in our legal system of advocates acting on instructions is well accepted.

Lawyers are contractually and ethically obliged to obey their client’s instructions. Indeed, they may not act contrary to their instructions. It is for this reason that generally, an accused person is bound by the way a trial is conducted by their counsel: TPC v TNT (1983) 56 ALR 647 at 662 – 4; R v Birks (1990) 19 NSWLR 677 at 685; R v Wakim [1998] 2 VR 46; R v Brown (2002) 5 VR 463. The corollary of this is that questions or conduct of counsel may be used as evidence of instructions: R v Delgado-Guerra [2002] 2 Qd R 384 at [36].

If their instructions are withdrawn, their retainer is ended and they no longer have any right of appearance: R v IAS (2004) 89 SASR 159; R v Greer (1992) 62 A Crim R 442 at 452.

But similarly, advocates owe an overriding duty to the court to do nothing that would obstruct the administration of justice: D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at 41. This gives rise to the obligations of candour, expeditiousness, and disclosure of relevant law — even if unfavourable to the client’s case. It’s also reflected in the cab-rank principle, which I discussed here in April.

We see this reflected in rules such as rule 16 of the Victorian Bar Rules, and rule 41 of the Australian Bar Association model rules, which say:
A barrister must not act as the mere mouthpiece of the client or of the instructing solicitor and must exercise the forensic judgments called for during the case independently, after appropriate consideration of the client’s and the instructing solicitor’s desires where practicable.

Rule 13.1 of the Professional conduct & practice rules 2005 (Vic) for solicitors is almost identical.

So, if the client says, “I want you to cross-examine the witnesses this way,” or, “I want to call this evidence,” and the advocate considers that they should not do so, it seems there’s a conflict between the duty to the client and to the court.

But, it really depends on what it is a client can actually instruct or direct their lawyer to do.

I challenge you to find in any of the standard texts on advocacy or ethics some discussion on what acting on instructions truly means. I went looking, for this post, and I couldn’t find much. Ysaiah Ross has a little bit in his book Ethics in Law, but not much.

But the English Court of Appeal considered the point a few years ago in R v Ulcay [2008] 1 WLR 1209.

Mr Ulcay and his co-accused were charged with and convicted of people smuggling. Ulcay was represented by two barristers and a solicitor, but they withdrew at the close of the prosecution case. Why? Up till then, Mr Ulcay had admitted that a voice on a large number of telephone intercepts was his, and that the person named on the intercepts as “Eddi” was him, Erdogan Ulcay.

But then Mr Ulcay changed his instructions. After the prosecution closed its case, he now denied he was Eddi, or that the words spoken by Eddi on the intercepts were his words, or that the voice originally admitted to be his voice was his voice. He said he didn’t want to be represented by his current lawyers. They were permitted to withdraw.

Over the next week, two new barristers appeared, Ms Tayo and Mr Aina. Mr Aina asked for a four to six week adjournment. (By then, a week had passed since the prosecution case closed, and so the jury had been spending seven days kicking their collective heels in the jury room while this all went on. You can just imagine how rapt they must have been about that.)

That application was refused. The next day, Ms Tayo and Mr Aina withdrew. Two days after that, two new counsel appeared, and asked for a seven-day adjournment. That too was refused, and the second set of lawyers withdrew. The case continued. Mr Ulcay was unrepresented.

Ulcay was convicted. He appealed, arguing the judge was wrong to allow the original lawyers to withdraw, and then to not allow the adjournment sought by the new lawyers.

The Court of Appeal rejected that argument.
[24] ...the processes designed to ensure the fairness of his trial cannot be manipulated or abused by the defendant so as to derail it, and a trial is not to be stigmatised as unfair when the defendant seeking to derail it is prevented from doing so by robust judicial control. Such a defendant must face the self-inflicted consequences of his own actions.

[25] Mr Aina pointed out that in his ruling on 18th October, the judge did not expressly state that the appellant was seeking to manipulate the process of the court. Indeed he never said so. However we have no hesitation in saying that it is perfectly obvious that this is what the appellant was seeking to do, a conclusion which we would have reached independently of, but which is powerfully fortified by, the factual observations of trial counsel following the appellant’s waiver of privilege. When he was addressing these problems, it was incumbent on the judge to be more reticent. It does not need much imagination to envisage the likely response if he had suggested that the process was being abused or manipulated. It would have formed the basis for an application for a new and separate trial before a new jury and an “unbiased” judge. We shall focus exclusively on the stark realities.

[26] This appellant was provided with competent lawyers at public expense and given ample opportunity for the preparation of his defence. Before trial the issues were carefully addressed by him, and his lawyers, and he was then properly represented by counsel before the jury. It was a constant theme of the pre-trial preparation, and indeed of the discussions in conference while it was in progress, that counsel could only act on the basis of the appellant‘s instructions. For example, counsel made clear that he would not challenge evidence which the defendant accepted was accurate, and the fact that another co-defendant was challenging the same evidence could not justify a challenge on the appellant‘s behalf. All this seemed to be clearly understood by the appellant, at any rate until the close of the prosecution case, when his understanding appears to have broken down.

The Court then turned to what is meant by acting on instructions.
[27] The correct meaning of the phrase “acting on instructions”, as it applies to the professional responsibility of the advocate in any criminal court, is sometimes misunderstood, even by counsel. Neither the client, nor if the advocate is a barrister, his instructing solicitor, is entitled to direct counsel how the case should be conducted. The advocate is not a tinkling echo, or mouthpiece, spouting whatever his client “instructs” him to say. In the forensic process the client‘s ”instructions” encompass whatever the client facing a criminal charge asserts to be the truth about the facts which bring him or her before the court. Those instructions represent the client‘s case, and that is the case which the advocate should advance. In practical terms, that will often mean that prosecution witnesses will be cross-examined on the basis that they are lying or mistaken, or have misunderstand or misinterpreted something said or done by the defendant; however there is almost always some evidence advanced by the prosecution which, on the basis of the client‘s instructions, is not in truth in issue at all, either directly, or indirectly. Some decisions, of course, must be made not by the advocate, but by the defendant personally, for example, and pre-eminently, the plea itself, and in the course of the trial, the decision whether or not to give evidence. The advocate must give his best professional advice, leaving the ultimate decision to the client. It is however always improper for the advocate to seek to challenge evidence which is accepted to be true on the basis of the facts agreed or described by the client, merely because the lay-client, or the professional client, wishes him to do so. He may not accept nor act on such instructions.

The stock-in-trade manner of questioning a client charged with a criminal offence by going through the brief, and saying, “The prosecution says [this]; what do you say about [that]?” is the best way I‘ve seen for getting instructions that meet this definition, and avoid (perhaps well-intentioned) advice about how best to do my job. How have you seen others do it successfully (or not), or how do you do it yourself?

I know some folks often view with some scepticism assertions that, “Those are my instructions.” Heck, sometimes advocates even share that scepticism. We can’t coach witnesses, but we can question and test the version given to us by a witness or potential witness (including an accused). But, their instructions are their instructions, not what we think likely — really, no one cares what we think, just what we submit — and we’re bound by them.

Tim Kevan — writing as BabyBarista — wrote this great piece on judicial doubts about instructions, I have been instructed... I'm almost certain it‘s satire...but you should check it out for yourself.

Wednesday, 4 September 2013

Ending the suspense?

From last Sunday, only Magistrates’ Courts can now imposed suspended sentences of imprisonment, subject to some exceptions. Division 2 of the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013 abolishes suspended sentences in the County and Supreme Courts.

I discussed this in May, and noted the default commencement was 1 December 2013. Since then, the relevant provisions were declared in the Gazette for commencement on 1 September 2013.

There’s no specified commencement date yet for the abolition of suspended sentences in the Magistrates’ Court other than the default date of 1 September 2014.

There are three exceptions to the new regime:

  1. The County Court may impose a suspended sentence when deciding an appeal from the Magistrates’ Court: Sentencing Act 1991 s 27(11) and Criminal Procedure Act 2009 s 256. (The Austlii version of the Sentencing Act isn’t up to date, so that hyperlink will take you to the Victorian legislation website version.)
  2. The County and Supreme Courts may still impose suspended sentences for offences that were committed before 1 September 2013: Sentencing Act 1991 s 149C. (Although that transitional provision doesn’t expressly say anything about the operation of the previous restrictions for serious and significant offences, there’s nothing to suggest those provisions are affected for pre-1 Sep 2013 offending.)
  3. The County and Supreme Court may still impose suspended sentences for serious and significant offences committed before 1 May 2011, by virtue of Sentencing Act 1991 ss 27(2B) and sub-ss 143(6) and (7), and (9) and (10), in conjunction with s 149C. (1 May 2011 was the commencement date of Sentencing Amendment Act 2010 s 12, which introduced the prohibition on suspended sentences for serious or significant offences committed on or from that day.)
I linked to the second reading speeches in my May post, but in case you need them, I’ve also downloaded the relevant parts of Hansard, and extracted just the pages dealing with the Sentencing Amendment (Community Correction Reform) Bill 2011 and Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Bill 2013.

I reckon that the short version of the speeches is that offenders who previously might not have received an immediate jail sentence by receiving a suspended jail sentence might yet still not receive an immediate jail sentence, only now it will be called a community corrections order, and will involve restrictions upon them.

There are two new restriction on imposing suspended sentences:
  1. Section 27(2AB) provides that Magistrates’ Courts can’t impose suspended sentences for proceedings transferred from the County Court back to the Magistrates’s Court, under Criminal Procedure Act 2009 ss 168, 242 or 243. This was intended to overcome the effect of DPP v Batich, when the County Court considered an offender should receive a suspended sentence for a significant offence (recklessly causing serious injury), but because it could not do so, returned the case to the Magistrates’ Court, which could impose a suspended sentence.
  2. Section 27(10) provides that the County and Supreme Courts can’t impose suspended sentences for related summary offences dealt with under Criminal Procedure Act 2009 ss 242 and 243 and Sentencing Act 1991 s 83AM.