Saturday, 30 November 2013

Impeccably (short) judgments

Anyone who’s ever ground their way through a lengthy appellate judgment will appreciate the sentiments of the English Court of Appeal in Neumans LLP (a firm) v Andronikou & ors [2013] EWCA (Civ) 916.

The case dealt with an argument about money. Neumans, a firm of solicitors, lost their case, and appealed.

It seems the Mummery LJ metaphorically rolled his eyes, gritted his teeth, and eyed the large piles of documents to be considered upon the appeal, before deciding that no more trees need die recording words on paper:

[32] The court below and this court have received detailed submissions from each side on that question. Morgan J commented that counsel's submissions to him “were elaborate and thorough.” So were the submissions in this court. Morgan J said that to do justice to them he needed to explain his reasons at “what had become considerable length.” Does this court need to do the same all over again?

[33] In my judgment, the order made by Morgan J on the basis of 140 paragraphs of exposition and explanation is “dead on” for the reasons given by him. He set out in meticulous detail all the relevant facts, the legal materials, the rival submissions and the reasons for the conclusions reached by him on every point taken by Neumans.

In case any advocate were ever unsure if the adage less is more isn’t popular with the Bench, Mummery LJ made it clear brevity rules.

Lord Wilberforce and appeals from impeccable judgments

[36] What sensible purpose could be served by this court repeating in its judgments detailed discussions of every point raised in the grounds of appeal and the skeleton arguments when they have already been dealt with correctly and in detail in the judgment under appeal? No purpose at all, in my view.

[37] This is a case in which this court is justified in following the excellent lead of Lord Wilberforce in Brumby v Milner (1975) 51 Tax Cases 583. In a one page tax opinion, with which the other members of the Appellate Committee agreed with only minor additions, Lord Wilberforce said that he would not attempt a detailed analysis or refer to such authorities as might, possibly, be relevant, since that had been done to his complete satisfaction by the Court of Appeal affirming the judgment of Walton J. He concluded at p.612 that:

“…to restate the argument in words of my own, even if this were to result in a difference of formulation, would not be productive of advantage, and I am more than content to adopt the single judgment of the Court of Appeal delivered by Lord Russell of Killowen.”

[38] It has been said, more in jest than with justice, that “officials create work for other officials” and that bureaucracies generate work to justify their continued existence. Judges are not officials. The judiciary is not a bureaucracy. Nor is it in the business of earning by churning. The proper administration of justice does not require this court to create work for itself, for other judges, for practitioners and for the public by producing yet another long and complicated judgment only to repeat what has already been fully explained in a sound judgment under appeal. If the judgment in the court below is correct, this court can legitimately adopt and affirm it without any obligation to say the same things over again in different words. The losing party will be told exactly why the appeal was dismissed: there was nothing wrong with the decision appealed or the reasons for it.

[39] I am content to adopt, without reservation, the judgment of Morgan J, to affirm his order and to dismiss the appeal from his decision. Partly out of admiration for the input lavished on the outstanding legal submissions with Appendix (divided, for instance, into 11 Main Parts, then sub-divided into 100 paragraphs with some of them sub-sub-divided into .1, .2 and so on) and partly as an aid to practitioners and courts in future cases, I would propose that this court pieces together a brief summary of the main points, as described at length by Morgan J. It can do so, as in an old style judgment, by setting out short legal propositions relevant to this case and the conclusions reached by applying them in this case. It does not begin to attempt to cover all the law on administration and liquidation expenses. That would not be a proper exercise in a judgment.

[40] One aim is to stem the soaring costs of litigants when their advisers have to spend too long working out what the law is. They may be faced with a multiplicity of separate, complex, discursive and (increasingly, imitating the style of subordinate legislation) cross-referential judicial pronouncements at different levels of decision, or at the same level of decision, but sometimes leading to the same overall result.

It’s probably too extreme to adopt the style quoted by Justice Roslyn Atkinson in her 2002 paper Judgment Writing:

In the US tax court, constituted by Judge Murdoch, it is reputed that a taxpayer testified, “As God is my judge, I do not owe this tax”. Judge Murdoch replied, “He is not, I am; you do”.

In most cases, courts do their best, but sometimes they have a lot to cover. The idea that a Court needs only state enough of the law to decide the case, without trying to cover the field on the relevant law, has a lot going for it. Here‘s to brevity!

Tuesday, 26 November 2013

Halley v Kershaw [2013] VSC 439: sleeping it off or going to drive?

Back in 2010 the Supreme Court considered if the police were justified requiring a preliminary breath test (PBT) from a person they believed was about to drive — at least, until he saw the police. In DPP v Farmer (2010) 56 MVR 137 the Court held that it was the belief of the police that was relevant, and so long as it was reasonably held, the requirement for a PBT was valid.

More recently, in Halley v Kershaw [2013] VSC 439 the Supreme Court considered the slightly different scenario where the person behind the wheel was asleep when the police found him. Clearly, the police considered he had driven there. (And but for becoming a little too tired and emotional, probably would have continued driving.)

Man sleeps in a car
Image courtesy of David Castillo Dominici /

The case turned on a narrow point (as these cases often do).

Acting Sergeant Mark Kershaw testified that on 10 January 2012 he answered a phone call. The caller said a green Commodore sedan was parked in Huntingdale Road, Huntingdale.

Sergeant Kershaw went to check it. He found a green Commodore parked out the front of a shopping strip, in Huntingdale Road. The engine was running. Sean Halley was in the driver’s seat, slouched over the steering wheel and apparently asleep. Sergeant Kershaw knocked on the window. Apparently, it took about seven to ten minutes to rouse Mr Halley, and he then opened the car door.

The car was in ‘park’. The radio was off, and the heater and aircon were off.

Mr Halley said he had not been there for long. He took a preliminary breath test, which indicated alcohol was in his system, and then went to Oakleigh police station. A later evidentiary breath test returned a result of 0.266%

Sergeant Kershaw did not testify if he believed Mr Halley was going to start or drive the car: see [15] and [41].

Was Halley ‘in charge’?

Road Safety Act 1986 s 3AA provides generally when a person is in charge of a motor vehicle:
3AA. Circumstances in which person is to be taken to be in charge of a motor vehicle

(1) Without limiting the circumstances in which a person is in charge of a motor vehicle, the following persons are to be taken to be in charge of a motor vehicle for the purposes of this Act—
(a) a person who is attempting to start or drive the motor vehicle;

(b) a person with respect to whom there are reasonable grounds for the belief that he or she intends to start or drive the motor vehicle;

(c) a commercial driving instructor while the person whom he or she is teaching to drive is driving or in charge of the vehicle;

(d) an accompanying licensed driver while the person whom he or she is sitting beside is driving or in charge of the vehicle.
But that interpretation is then narrowed for offences contrary to Part 5 of the Act (all the drink and drug-driving provisions) by s 48(1)(b):
48. Interpretative provisions

(1) For the purposes of this Part—
(b) a person is not to be taken to be in charge of a motor vehicle unless that person is a person to whom section 3AA(1)(a), (b), (c) or (d) applies.
So, the general words in s 3AA(1) do not apply to cases alleging offending against Part 5 of the Act: at [26] – [35]. When deciding this, at [32], the Court relied on both principles of statutory interpretation, and DPP v Farmer (2010) 56 MVR 137 (at [7], [9] of that judgment).

Halley argued at the no-case-to-answer stage of the case these provisions meant he was asleep, and not in charge of the car, when woken. But the prosecutor submitted, and the magistrate accepted that, the general words in s 3AA(1) could be used, so that even though there was no evidence the informant reasonably believed Mr Halley was intending to start or drive the motor vehicle, Halley was still in charge.

‘In charge’ limited to the four prescribed grounds

The magistrate was wrong to accept this, and did not make any finding (as required) about the belief (if any) of Sergeant Kershaw. At [41] the Court applied DPP v Farmer (2010) 56 MVR 137 to affirm what was required in this case:
  1. The informant should give specific evidence as to the belief which he or she formed in relation to the intention of the defendant to start or drive the vehicle.
  2. In addition, the informant should expressly state the basis upon which he or she formed that belief.
  3. It is not necessary that the informant be satisfied of the particular fact on the balance of probabilities; rather, the informant must establish that he or she held the belief on reasonable grounds.
  4. Such a belief has been described as ‘an inclination of the mind towards assenting to, rather than rejecting, a proposition ...’ In DPP v Farmer, Bell J stated that a ‘belief is something more than suspicion but does not need to approach anything like certainty.’
  5. The belief by the informant must be a belief that the defendant intended to ‘... start the engine or drive off forthwith, or to do so at any point of very close futurity’.
  6. The question is not whether the court itself holds, or agrees with, the belief that the defendant intended to drive or start the vehicle. Rather, the question is whether the informant held such a belief, and whether the informant did so on reasonable grounds. (Citations omitted.)
The conviction was quashed, and unusually, the case was not remitted to the Magistrates’ Court. At [45] – [46], the Court held that even though it could be inferred that Sergeant Kershaw believed in the circumstances that Mr Halley intended to start or drive the car, this would not be enough to prove that element of the offence beyond a reasonable doubt. (Though it would be enough to defeat the no-case-to-answer submission.)