Quis custodiet ipsos custodes?

Community Correction Orders

noreply@blogger.com (Dr Manhattan) — Sun, 15 Jan 2012 18:36:00 +0000

The Sentencing Amendment (Community Correction Reform) Act 2011 substantially takes effect in Victoria today.

Overview

We blogged about the bill here. In summary:

Combined Custody and Treatment Orders, Intensive Correction Orders and Community Based Orders are no longer available as sentencing options in any court. They are replaced by a single flexible order called a Community Correction Order. Unlike the old ICO, a CCO order is not a term of imprisonment.
Orders made prior to 12 January 2012 will remain active until completed or discharged.
A CCO may be imposed for any offence punishable by more than 5 penalty units, but only if the offender consents: s 37. A court must order a pre-sentence report if considering ordering a CCO: s 8A(2), except when making an order for unpaid community work up to 300 hours with no other conditions attached: s 8A(3). (The maximum number of hours that can be awarded is 600 hours: s 48C). A CCO must commence within 3 months of the passing of sentence.
A court may order the production of a pre-sentence drug and alcohol report if the the court is satisfied that the offender had a drug or alcohol dependency that contributed to the offender's criminal behaviour.
The maximum period that a CCO awarded in the Magistrates' Court may run for is 2 years: s 38. For other courts it will be the maximum period of imprisonment allowed.

Conditions of a Community Correction Order

The mandatory generic conditions of a CCO are found at s 45:

45 Terms of a community correction order

(1) The following terms are attached to each community correction order—
(a) the offender must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;

(b) the offender must report to, and receive visits from the Secretary during the period of the order;

(c) the offender must report to the community corrections centre specified in the order within 2 clear working days after the order coming into force;

(d) the offender must notify the Secretary of any change of address or employment within 2 clear working days after the change;

(e) the offender must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary;

(f) the offender must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that the offender complies with the order.

Section 48 gives courts a residual power to award any additional condition they consider appropriate (except conditions relating to compensation, costs or damages). Additional conditions specifically provided for include:

unpaid community work (s 48C);
treatment and rehabilitation (s 48D);
supervision (s 48E);
non-association (s 48F);
residence restriction or exclusion (s 48G);
place or area exclusion (s 48H);
curfew condition (s 48I);
alcohol exclusion(s 48J);
and judicial monitoring (s 48K).

If a CCO of more than six months duration is ordered, the court may impose an intensive compliance period. During this period additional conditions attached to that order can be imposed. These expire at the end of the intensive compliance period, while the remainder of the CCO continues.

Contravention of orders

Contravention of an adjourned undertaking, suspended sentence or community correction order court will now be an offence, punishable by fine.

It's not clear but I suspect parliament's intent in creating additional penalties for contravention without interference to the original order is to encourage Corrections Victoria to bring proceedings against people who are not complying with their orders. The trend in recent years has been to repeal breaches proceedings as discrete offences, and instead make them punishable by a court on application.

Proceedings for contravention are dealt with under Divison 2, ss 83AG to 83AT.

In the case of suspended sentences, courts will now have the option of imposing a separate penalty for contravention, rather than just deciding whether or not to restore the original sentence.

Licence cancellation, suspension and disqualification

As the result of the insertion of a new s 89 into the Sentencing Act, courts will possess a discretion to suspend or disqualify an offender's licence for any offence. It reads:

(1) If a person is found guilty or convicted of any offence the court may—

(a) if the person is the holder of a driver licence or learner permit—

(i) suspend the driver licence or learner permit held by the person for the period of time that the court specifies; or

(ii) cancel the driver licence or learner permit held by the person and disqualify the person from obtaining a further driver licence or learner permit for the period of time that the court specifies; or

(b) if the person is the holder of the equivalent of a driver licence or learner permit issued in another State or a Territory of the Commonwealth or another country, disqualify the person from driving a motor vehicle on a road in Victoria for the period for which the person would have been disqualified from obtaining a driver licence or learner permit, had the person held such a licence or permit; or

(c) in any other case where the person is not the holder of a driver licence or learner permit, disqualify the person from obtaining a driver obtaining a driver licence or learner permit for the period of time that the court specifies.

Sub-section (2) of s 89 clarifies that this does not apply to offences under the Road Safety Act 1986. (It does not need to, since these are already dealt with under that Act's s 28(1)).

The old authorities and arguments about the meaning of in connection with the driving of a motor vehicle won't be relevant for much longer.

If no period is specified, a disqualification is for three months. A court may nominate a day other than the day of sentence for the disqualification to start: s 89AD. The process at the end of the disqualification period for applying for a licence under s 89AF is similar to the system that already exists under the Road Safety Act.

Stumps

noreply@blogger.com (Dr Manhattan) — Tue, 20 Dec 2011 19:00:00 +0000

Well, that's it for regular posting for another year.

If last year is any guide, we'll be trying out some new things during the hiatus. There's lots to be done, with this blog and otherwise. Normal service will resume at the beginning of February.

The best wishes of the season to you and yours.

R v Smith (No 5) [2011] NSWSC 1459: relevant but weak evidence

noreply@blogger.com (Dr Manhattan) — Fri, 16 Dec 2011 23:50:00 +0000

With the end of the year rapidly approaching I'm yet again caught with a pile of interesting (and possibly important) cases sitting in my inbox, and no time to properly digest them.

An example is R v Smith (No 5) [2011] NSWSC 1459. Like many trial court decisions it's useful as an application of the law (made on what Ipp J described as the 'factory floor' of justice) rather than for containing any particular revelations.

The Crown proposed to lead evidence of a podiatrist at trial. He held the expert opinion that shoes left at the scene of the murder could belong to the accused, because of a series of individual biometric factors.

Importantly to this Cinderella story, the Crown sought to rely upon the evidence as establishing that the accused could have been the wearer of the shoes, not that he was. Does this even pass the threshold test of relevance at s 55 of the Evidence Act? Your answer probably depends on your philosophical understanding of a trial.

Buddin J's ruling traverses the applicable principles of admissibilty, as well as offering a look at an evolving branch of forensic science.

Road Safety Amendment (Drinking while Driving) Bill 2011: no more travellers

noreply@blogger.com (Dr Manhattan) — Sat, 10 Dec 2011 22:59:00 +0000

This 'emergency legislation' was rushed through the Victorian parliament in the last few days. Introduced on the 6th December, it was read twice in a day and passed the Upper House two days later. It will take effect immediately after receiving Assent.

The Bill, as it was passed, is here. The Second Reading is here. The Statement of Compatibility is here, and the Explanatory Memorandum here.

The new section 49B of the Road Safety Act 1986 will prohibit the consumption of alcohol by the driver of a motor vehicle.

It will read (in part),

49B Offence to consume intoxicating liquor while driving

(1) A person must not consume intoxicating liquor while the person is driving a motor vehicle or is in charge of a motor vehicle.

Penalty: 10 penalty units.

(2) For the purposes of subsection (1) a person is not taken to be in charge of a motor vehicle unless that person is a person to whom section 3AA(1)(a), (b) or (c) applies.

The reason for the haste is a mystery. Unlike previous events where a precipitating incident has led to a rush for reform, I don't know of any particular incident that has prompted a public outcry about this issue.

During the second reading the A-G's explanation was,

It is inconsistent with the road safety message to the community about drinking and driving that a driver can lawfully consume alcohol while driving a vehicle in Victoria.

The change will mean a significant cultural shift for those accustomed to buying a traveller for the trip home. It might also mean that police officers will have to caution a driver before asking questions intended to eliminate mouth alcohol as the cause of a positive preliminary test result.

RTF or PDF, please

noreply@blogger.com (Dr Manhattan) — Thu, 08 Dec 2011 10:12:00 +0000

Supreme Court Practice Note 9 of 2011 was signed last month. It replaces Practice Notes No 3 of 2004 and No 1 of 2006.

The Note lends increased legitimacy to medium neutral citations and might even help to reduce the amount of unnecessary photocopying that goes on. It also draws attention to the preference for Rich Text Format (RTF) prints from AustLII rather than the direct-from-screen prints sometimes used. (The latter have an AustLII banner prominently at the top of the first page).

The Note includes the instructions on how to produce RTF prints:

1) Click on the link to view the judgment.

2) Choose the “Download” option in the toolbar above the case citation.

3) Click on the “Rich Text Format (RTF)” or “Portable Document Format (PDF)”
hyperlink below the heading “Available Data Formats”.

4) Print the document and provide in this format.

I should also mention the Court's Practice Note 8, which clarifies the status of decisions which have the phrase no point of principle in their headnote. The Note prohibits reference to such cases without leave.

Caen discusses the problems with this direction here. I'd always thought that the catchwords of a headnote didn't form part of the judgment they summarise, and shouldn't be assumed to have been written by the authors of the judgment.

Programming note

noreply@blogger.com (Dr Manhattan) — Tue, 06 Dec 2011 19:10:00 +0000

If you haven't seen it and don't want to buy it, remember to set the DVR this Friday for The Staircase.The first episode is still available from the SBS website here.It's from the same documentary team who did the fly-on-the-wall series Sin City Law.

Australian Crime Commission v Stoddart [2011] HCA 47: No spousal privilege at common law

noreply@blogger.com (Dr Manhattan) — Fri, 02 Dec 2011 22:59:00 +0000

There is no common law privilege against incriminating your spouse.

There never has been, it seems. Centuries ago in Britain a wife was neither competent or compellable to give evidence against her husband due to the legal fiction (derived from the Bible) that man and wife were the one flesh. Even by the time of the establishment of the Australian colonies that position was changing. David Lusty's 2004 article, along with every other textbook dealing with the subject, will need to be revised.

But despite the media interest and some hysteria to the contrary, this won't make the slightest difference to the operation of the law in practice. (Except, perhaps, where coercive investigative powers are in play). Section 18 of the Evidence Act (and before that, s 400 of the Crimes Act) provides a broad discretion to judicial officers to excuse people from giving evidence against their partners because of the potential damage the relationship may suffer. The UEA deals with this as an issue of compellability, not privilege.

(In NSW, s 19 creates an exception in the case of various violent and sexual offences. Those exceptions don't exist here.)

This case, involving the Australian Crime Commission and its use of its inquisitorial powers, has been in the system for a while. It was discussed back here as Stoddart v Boulton [2009] FCA 1108 back when it was an application for injunctive relief before the Federal Court. The decision was reversed by the Full Federal Court, then recently decided as Australian Crime Commission v Stoddart [2011] HCA 47 before the High Court.

Statutory protection for spouses and significant others has existed for so long that it was reasonable to suppose the principle of spousal privilege, like so many others, has its foundation in judicial precedent. But [as Heydon J states unreservedly at 56] there is no case in the legal history books precisely on point, until the very recent decisions in coercive powers cases Callanan v B [2004] QCA 478 and S v Boulton [2006] FCAFC 99 which didn't engage in a thorough historical analysis.

The appellant successfully urged the High Court not to, 'join the dots and lend colour to an apparition that is really nothing more than an historical relic at best'.

French CJ and Gummow J [at 41, Crennan, Keiffel and Bell JJ in agreement]:

In our view, it cannot be said that at the time of the enactment of the Act in 2002 the common law in Australia recognised the privilege asserted by Mrs Stoddart or that it does so now. We agree with the conclusion of Kiefel J in Boulton [2005] 155 A Crim R 152 that in All Saints and the subsequent decisions, in particular Hoskyn and Riddle, the term "compellable" was used to indicate that the witness might be obliged to give evidence in the ordinary sense of the term, not that, in response to particular questions, a privilege might be claimed by the witness.

Heydon J dissented, embarking on his own detailed discussion of the legal history. Finding that not all principles of the common law can be found in ratio decedendi may be controversial to some (certainly the majority of the Court), but his finding that the ACC legislation does not contain the express language or necessary implication from Coco v The Queen (1994) 179 CLR 427 [at 438] is fairly orthodox reasoning.

The dissent is also worth reading for drawing attention to this little gem from Griffiths CJ in Riddle v The King [1911] HCA 33; (1911) 12 CLR 622 [at 629], quoting an unnamed 'distinguished lawyer from England':

The law is always certain although no one may know what it is.

Swearing at the police can still be a crime

noreply@blogger.com (Elucubrator) — Sun, 27 Nov 2011 12:43:00 +0000

For the last week or so the UK media has made a lot of noise about a recent judgment where the Queen's Bench upheld an appeal by Denzel Harvey against his conviction for using threatening, abusive or insulting words within the hearing of a person likely to be caused harassment, alarm or distress, contrary to s 5(1) of the Public Order Act 1986. (It's similar to Summary Offence Act 1966 s 17(1), but has a slightly different element of causing harassment, alarm or distress, rather than threat, abuse or insult.)

Here's one example from the BBC, one from The Mirror and one from The Telegraph.

The case excited a lot of comment on twitter, until folks got their hands on what the judgment actually said rather than what the media reported.

F*** you, bad reporting by @_millymoo highlighted the real problem: the prosecutor hadn't adduced any evidence of harassment, alarm or distress and so failed to establish an element of the offence.

In Harvey v DPP [2011] EWHC Crim B1, the Queen's Bench said:

It is now time to answer the questions posed for the opinion of the court by the justices. In answer to the first question: as part of the reasons for their decision, they were entitled to conclude that the use by the appellant of the expletives I have outlined, a total of three times, amounted to abusive or insulting words or behaviour. But I find that there was no evidence in this case on which they could have concluded that either of the police officers had been caused or was likely to have been caused harassment, alarm or distress as a result of the use of those words.

Notably, the law in the UK doesn't proscribe public swearing alone.

A number of cases establish that expletives such as "fuck" or "fucking" are potentially abusive words, whether the addressee is a police officer or a member of the public. But Parliament has not made it an offence to swear in public as such.

Had the police actually been alarmed or distressed the offence might well have been made out.

Where witnesses have given oral evidence of an incident which forms the basis of a charge under section 5 of the Public Order Act 1986, but have said nothing and been asked nothing about experiencing harassment, alarm or distress, there is no sound basis for the court to reach that conclusion for itself. This is particularly so in the case of police officers because, as Glidewell LJ observed in Orum, they hear such words all too frequently as part of their job. This is not to say that such words are incapable of causing police officers to experience alarm, distress or harassment. It depends, as the court said in Orum and Southard, on the facts; but where a witness has been silent on the point it is wrong to draw inferences.

Running from the police ain't a crime when you ain't arrested

noreply@blogger.com (Elucubrator) — Sun, 27 Nov 2011 11:54:00 +0000

Only recently my colleague discussed the case of a man who fled from police who wanted to speak with him about dinner.

He was charged with resisting the police in their execution of their duty — making life difficult by not hanging around to be investigated. The Magistrates' Court dismissed the charge in Hemingway v Hamilton [2011] VMC 10.

The DPP appealed the decision, and last Friday the Supreme Court upheld the Magistrates' Court decision, in DPP v Hamilton [2011] VSC 598.

Despite some of the media reporting at the time, the case is not a green light for people to run from the police. Kaye J was very careful to identify the narrow scope of the judgment.

[3] At the outset, it is important to note what this appeal is, and is not, about. In particular, this is not a case in which, at any material time, the police either had arrested the respondent, or were in the course of arresting him. Nor, on the facts of this case, was there evidence that the respondent was fleeing from the police, having been informed that the police intended, or were attempting, to arrest him. Further, it was accepted, on appeal, that this is not a case in which the respondent, as a suspect, had refused to provide his name and address in response to a request by a member of the police force, pursuant to s 456AA of the Crimes Act 1958. Rather, on this appeal, the issue which must be determined is whether, on the particular facts of this case as set out in the evidence which was led before the Magistrate, the police had the power to require the respondent, as a suspect, to stop and speak to them, notwithstanding that the police were not then in the course of arresting him. The resolution of that issue is critical to the question whether, at the relevant time, the police were acting “in the execution” of their duties for the purposes of s 52(1) of the [Summary Offences] Act.

After reading the facts, it's probably no great surprise to hear the outcome, and there's not a huge amount of new law in the judgment. But it does remove any doubt about the purpose of Crimes Act 1958 Part III, Division 1, Subdivision 30A — the part often referred to in short-hand as "464".

The DPP argued that because Andrew Hamilton was in custody as defined in s 464(1)(c), he was obliged to remain with the police when they wanted to speak with him.

The provision provides:

(1) For the purposes of this subdivision (that is, subdivision 30A) a person is in custody if he or she is —

(c) in the company of an investigating official and is—

(i) being questioned; or

(ii) to be questioned; or

(iii) otherwise being investigated—

to determine his or her involvement (if any) in the commission of an offence if there is sufficient information in the possession of the investigating official to justify the arrest of that person in respect of that offence.

But Kaye J confirmed the conventional understanding of that provision: its purpose is to provide the same rights and protections to suspects who aren't actually under arrest as for those who are arrested.

[37] Rather, in my view, the correct construction of the provisions of Division 30A is that contended for by Mr Carter. It is clear that the intention of the subdivision was to ensure that suspects, who are undergoing questioning by a police officer, have the same rights and protections as those which are provided, by the subdivision, to suspects who are under lawful arrest. Subdivision 30A constitutes a scheme or code, stipulating a number of basic protections, which are to be assured to a suspect, who is being questioned, whether that suspect is under arrest or not. In particular, subdivision 30A provides, in respect of any suspect who is undergoing questioning by police (whether under arrest or not): that that person be informed of his or her right to remain silent (s 464A(3)); that that person be informed, before questioning, that he or she may communicate with a friend, relative and legal practitioner (s 464C); that such person (where necessary) have an interpreter (s 464D); that if such a person is under the age of 18 years, the questioning not be carried out unless a parent or guardian, or other independent person, is available, and the suspect has been permitted to communicate with that person (s 464E); that, if the person in custody is not a citizen or permanent resident, that person be informed that he or she may communicate or attempt to communicate with the consular office of the country of which the person is a citizen (s 464F); that a recording be made of the giving to the person of the information required by the provisions to which I have just referred (s 464G); and that, where practicable, any confession or admission made by such person be recorded (s 464H). None of those provisions give rise to an implication, let alone a necessary implication, that the police have a right to detain a person, in custody, for questioning, without arresting that person. Rather, it is clear, from the structure of subdivision 30A, that that set of provisions is designed to extend the basic protections, stipulated by subdivision 30A, to persons who are being questioned, notwithstanding that they are not under arrest.

Note this

noreply@blogger.com (Elucubrator) — Sun, 27 Nov 2011 10:56:00 +0000

One of the iPad questions I'm often asked is what I use for note taking. I touched on this briefly in my second post on using the iPad, back in December last year, but there are a few worthy contenders out there all deserving of consideration depending on your needs.

Styluses

Yeah, I know: properly, they're styli. But, don't we have enough Latin in our lives already?

First up, I should say I don't think the iPad is ideally suited to writing notes like we would on a paper pad. It's a digital simulation of something that works fine with pen and paper, so on the iPad we get the drawbacks of the real thing, plus the limitations of the iPad.

If you fit a screen protector to the iPad, the increased friction really makes it hard work for writing on the screen surface. As a result, over time, the soft rubber-type styluses tear. I went through three before I figured out it wasn't due to some sort of defect in the styluses or a problem with the way I was using them.

And the screen doesn't always acknowledge the touch of a capacitive stylus — it can take a surprising amount of pressure to register.

But, it allows me to hold my iPad with one hand, and write with the other; jot things down; draw as well as write (can't do that easily with a typing app); and means I can back up my notes, export them to PDF for filing and archiving, and carry my notes for a long time with no extra bulk.

I haven't found any bricks-and-mortar stores in Melbourne that stock styluses — although I'm told Office Works have some now.

I've bought mine from:

There's also a new Australian site I found as I wrote this post, selling the Dagi stylus.

I've used the PogoSketch, but didn't like it much. It has a spongy tip, and tends to distort with pressure on it while writing.

I've also used the BoxWave, and tend to use that the most. It writes well, but the broad tip takes some getting used to. And the rubbery end can drag a bit at times.

The most recent one I bought is the Jot (which is similar to the Dagi). It has a fine nib that fits into a clear plastic disc on the end to provide enough 'touch' for the screen to recognise it. It makes fine writing and drawing a cinch. The only downside is it requires more writing pressure than the others, and I found it left very fine scratches on my screen with constant use.

There's also a few chunky-style styluses: the AluPen and the Cosmonaut. I haven't used either, but they sound promising.

If you want to buy only one, I reckon the BoxWave — or similar styles — is the way to go. It's useful for general use of the iPad, especially with gloves, as well as writing. The Jot is excellent for note taking but not so good for general purpose stuff.

You might find these couple of reviews helpful too: this one on iMedicalApps, and this one on iPhoneJD.

Note taking apps

There are heaps of note takings apps, but these are the best that I'm aware of.

Paper Desk Lite

The first is Paper Desk Lite. It's free, so you lose nothing by trying it.

You can type in it, and handwrite, and it allows for PDF export to other apps. This is a must-have for me, because I export my notes and archive them with my scanned briefs.

The lite version only allows for a couple of pages. If you want more, you need to buy the full version.

Noteshelf

Noteshelf is a really nice app, with a well thought out user interface (UI). It's a pleasure to look at and use. Selecting pen colours and sizes is quick and easy, and it offers heaps of customisation. (Right now, it's 80% off for Thanksgiving in the USA.)

It has the option of a zoom box — fairly common in note taking apps — with a window at the bottom of the page showing a magnified view of the main page. Anything you write in there is mirrored on the page. It allows for smaller and neater writing, and solves the problem of your writing looking like you used a crayon.

If this had an export to PDF function in other apps such as GoodReader, I'd use this.

Penultimate

Penultimate is another great note taking app, similar many ways to Noteshelf. It doesn't have quite the range of pen colours and thicknesses, and it too doesn't allow for export to PDF.

NoteTaker hd

NoteTaker HD is the app I use. It was one of the first available in the app store, and it did PDF export, so that's why I chose it.

In my view, the UI has become busier and less intuitive over time, but it has a lot of features and can do more than most other note taking apps.

I can write directly on a page or in a zoom box, and re-order individual pages in each note. It also allows for marking up of imported PDFs. I used that with an excel spreadsheet converted to PDF for my car logbook: I just wrote start and finish times and distances in the columns, and there was my logbook, always with me and always backed up. This feature alone can be a big benefit for lawyers, because you can import all sorts of pro-formas that need filling in, and then export the completed document, either in to another app or email.

Handwriting recognition

I hadn't really considered this until a couple of weeks ago when I was presenting about the iPad and was asked about handwriting recognition. If you want typed text I reckon the best way to do it is to type it or, perhaps, dictate it. But not everyone is skilled in the art of ten-fingered-typing or hunt-and-peck-tapping, so there's definitely a need for this.

I found two applications that I reckon are serious contenders for handwriting recognition.

WritePad

WritePad for iPad (watch out you do buy the iPad version as they maker also has iPhone versions)

The handwriting recognition is not bad, and improved when I took the time to delve into the settings and select the forms of letters closest to my handwriting. It's still not perfect, and I found the recognition wait too slow and tedious, and had difficulty figuring out how to continue writing when I filled the zoom box.

It also allows for handwriting and typing, and has a heap of export options in the 'share' menu: printing, exporting to PDF, emailing, sending to Google Docs, twitter, facebook and sharing on WiFi.

For me, the handwriting recognition is too slow and not accurate enough for me to use this regularly.

7notes HD Premium

7notes HD Premium (the 'premium' version is the one with handwriting recognition) works surprisingly well.

It allows for handwriting, handwriting recognition and typing, and uses a zoom box with an auto-advance. I found the handwriting a bit clunky, but the handwriting recognition was really good.

It also has really good sharing options, and exports to PDF. The handwriting recognition is too slow for my liking, though it's pretty accurate, and so too is the typing with the predictive text function. I'd rather just use a quick text editor like PlainText or Quickoffice Pro HD or Documents To go Premium if I want something more sophisticated and akin to a wordprocesor.

But if you need all options in one app, this is the one I'd go for.

Security or security blanket?

noreply@blogger.com (Elucubrator) — Sat, 26 Nov 2011 11:53:00 +0000

Every day at metropolitan court houses in Victoria we see the unedifying sight of police and lawyers being searched before they're permitted inside. (This doesn't occur at some country venues simply because there aren't any security guards employed for this at all venues.)

The basis for this is s 3(3) of the Court Security Act 1980, which provides:

(3) Subject to any limitations or restrictions provided by the rules, an authorized officer may require a
person who wishes to enter the court premises, or is on the court premises—

(a) to submit to a frisk search or a search of any thing in the person's possession;

(b) to submit to a scanning search of his or her person or of any thing in the person's possession;

(c) to surrender to the authorized officer any item that the authorized officer believes on reasonable grounds is a prohibited item.

The irony of this is that sworn police officers are themselves authorized officers under the Court Security Act, and bound to keep the peace and prevent offences against the law. Lawyers are officers of the Supreme Court (which has supervisory jurisdiction over inferior courts), yet they may not enter those courts where they challenge whim and caprice on behalf of their clients unless first subjected to a search seemingly based on merely following orders.

My memory is that when this came in, the police were not routinely screened, and either the Law Institute or Bar (or perhaps both) pointed out that it didn't seem right that officers of the court were screened while police were not. So the solution chosen by the folks then responsible for court security was that all should be screened!

I didn't understand then — and still don't now — why there is a need to routinely scan police or lawyers. Both are supposed to be trustworthy. Because of their training and office, both are afforded special privileges, powers or responsibilities not available to the general public. Both are subject to continuing scrutiny about their suitability to continue their profession, so criminal offending tends to result in job loss. It wouldn't be difficult to permit them entry upon presentation of suitable identification. (Of course, if there were reason to search particular individuals, it should occur.)

I'm not concerned just by the symbolic damage done when these central players in the justice system are treated as suspect by the very courts they serve. It's also the arbitrary nature of the searches and the exercise of powers by authorized officers that rankles. I've had to surrender a penlite torch at some Magistrates' Court venues, and the always at the Supreme Court — presumably in case I shine someone to death. Some require I surrender an umbrella; others don't. (I can see some sense in this one.) A colleague of mine was once required to open his wallet for inspection: I'm not sure how many lawyers have smuggled contraband into courts in the last decade, let alone in their wallet, but I reckon I'm on fairly safe ground speculating the number is pretty low!

Now of course, some might point out that it's possible to use a great many items as weapons. For example, a small torch might be used as a kubotan — one of several prohibited weapons in Victoria.

Heck, even pencils and pens can be used as weapons. But common sense usually prevails, and if there's no indication that a person is going to use an ordinary item as a weapon, the court security guards normally don't worry about them.

Authorized officers can require surrender of prohibited items, defined in Court Security Act 1980 s 2:

prohibited item means—

(a) a firearm; or

(b) an explosive substance; or

(c) an offensive weapon; or

(d) an item that is likely to affect adversely the security, good order or management of the court premises;

Offensive weapons are defined as:

offensive weapon means any article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him for such use;

Trying to dispute their view of what is prohibited is futile, because they won't let you in, relying on section 3(9):

(9) An authorized officer may refuse a person entry to the court premises or remove a person from the court premises if the authorized person believes on reasonable grounds that the person is likely to affect adversely the security, good order or management of the court premises.

And s 2(2) is also relevant, providing:

(2) A reference in this Act to "the security, good order or management of the
court premises" includes—

(a) the safety of all persons who work at or attend the court premises;

(b) the safety and welfare of all persons in custody at the court premises;

(c) the good order or management of legal proceedings or other business conducted at the court premises.

I still reckon that without evidence I intend to use a torch as a weapon, or wreak havoc with the contents of my wallet, there's no justification for surrender or search of such items. These broad interpretative provisions don't seem to bestow power on authorised officers to intervene for reasons other than the security, good order or management of the court premises.

So I was surprised and concerned to hear recently of an instance when a lawyer was told by an authorised officer that the lawyer wasn't allowed to use their iPad while sitting in the body of a court room, and could only use it while at the bar table, and would have to either turn off their iPad or leave until their case was called.

I've heard of similar directions occuring at at least one other venue of the Magistrates' Court, so although this seems isolated, it's not a one-of occurrence either.

I could understand it if someone — anyone — were playing loud music, games or video. (That might well fall within the scope of the court's contempt powers anyway, as interfering with the course of justice and interrupting proceedings: Hancock v Lynch [1988] VR 173.) But quietly reading notes, email, calendar appointments, checking legislation? How does that interfere with the security, good order of management of the premises?

Judicial officers on the other hand have absolute authority about security in the court, extending to jurors, witnesses and even counsel and solicitors in a case: R v Smith [1982] 2 NSWLR 608 at 616 – 7 per Street CJ; Murray v Flack (1983) 6 A Crim R 394; R v Benbrika (No 12) [2007] VSC 524.

So long as a lawyer's use of an iPad — or anything else — interfered with the proceedings, the presiding judicial officer could deal with it. But short of that, I can't see any reasons they would, and more to the point, why authorised officers under the Court Security Act should be concerning themselves with such things. It might be a mild annoyance for some, but I know for me and some other lawyers, it would be equivalent to depriving us of access to our brief, and everything else essential for our practice.

I understand the Magistrates' Court at least is in the process of making a policy on this, and if it does, it probably won't be too long before other courts do too. I hope so, and that in the meanwhile, common sense prevails.

Running from the police is not a crime

noreply@blogger.com (Dr Manhattan) — Tue, 22 Nov 2011 17:03:00 +0000

Not the offence of resisting police, anyway. Thanks to Jeremy Gans for letting me know about this pending appeal.

In Hemingway v Hamilton [2011] VMC 10 it was alleged that the accused had left a restaurant without paying the bill. When the police who arrived indicated to the accused that they wanted to speak to him he took off on foot, and a classic foot chase ensued of the kind that fans of The Bill will be familiar with.

The accused was arrested and charged with an offence under s 52 of the Summary Offences Act 1966 for resisting the officers. Magistrate Garnett dismissed the charge in April, and the DPP appealed.

As I said at the time, there isn’t anything surprising in the magistrate’s original decision, and I think it unlikely to be disturbed on the appeal. While not running from the police might be the right (and sometimes, smart) thing to do, absent a specific obligation the police force don’t own a tractor beam that requires anyone to stop when an officer shouts “Freeze!”

Magistrate Garnett went so far as to hint [at 9] that a different charge would have been successful in the same circumstances,

There has been a number of other of decisions to the effect that the offence of obstructing or hindering the police is committed if the acts of an accused make it more difficult for the police to carry out their duties: However, Mr Hamilton has not been charged with obstructing or hindering the police under s 52(1) of the Act. He has been charged with resisting LSC Hemingway in the execution of his duty.

Perhaps the appeal submits that the magistrate ought to have made the amendment to the cognate charge, pursuant to Thomson v Lee [1935] 360 and Heddich v Dike (1981) 3 A Crim R 139. It’s not clear from the article I read, but it doesn't appear that way.

Kaye J has reserved his decision.

Making the punishment fit the crime

noreply@blogger.com (Dr Manhattan) — Sat, 19 Nov 2011 11:34:00 +0000

Duplicity occurs where one charge alleges more than one offence. Double punishment occurs where two (or more) offences describe the same act. Both are errors in legal drafting that can result from trying to apply neat legal theory to untidy real life events.

Since duplicity and this particular sub-set of double jeopardy involve matters of fact and degree it's not easy to say with confidence when an offender is doubly punished and when they aren't. A review of the case law resists the expression of a general rule. McHugh, Callinan and Hayne JJ said in Pearce v R (1998) 194 CLR 61 [at 40] that the sentencing judge should use common sense. That's not a test likely to be applied consistently.

The High Court was echoing Lord Morris of Borth-y-Gest in DPP v Merriman (1973) AC 584, who said [at 593],

The question arises – what is an offence? If A attacks B and, in doing so, stabs B five times with a knife, has A committed one offence or five? If A in the dwelling house of B steals ten different chattels, some perhaps from one room and some from others, has he committed one offence or several? In many different situations comparable questions could be asked. In my view, such questions when they arise are best answered by applying common sense and by deciding what is fair in the circumstances. No precise formula can usefully be laid down but I consider that clear and helpful guidance was given by Lord Widgery C.J. in a case where it was being considered whether an information was bad for duplicity: see Jemmison v Priddle [1972] 1 Q.B. 489, 495. I agree respectfully with Lord Widgery C.J. that it will often be legitimate to bring a single charge in respect of what might be called one activity even though that activity may involve more than one act. It must, of course, depend upon the circumstances.

Tran v The Queen [2011] VSCA 363 is a recent example. The appellant was sentenced for offences of reckless conduct and assaulting police officers arising from the same incident. On the appeal he argued that R v Sessions [1998] 2 VR 304 stood for the proposition that he should not have received a penalty for each charge.

Nettle JA described the tense events leading to the charges this way [at 7],

The appellant was under surveillance by the Special Operations Group. Police watched the appellant exit a house in St Albans and enter the driver’s seat of a Commodore.

Police vehicles then attempted to intercept the appellant. A white police van pulled up beside the appellant’s car and another police vehicle activated its siren. Hearing the siren, the appellant repeatedly rammed a red sedan parked in front of his car until an avenue of escape was created and then accelerated down the street, colliding forcefully with a green four-wheel drive police vehicle which blocked his escape. Once the appellant’s vehicle was stationary, Operator 55 (a policeman) opened the door and grabbed the appellant’s shoulder shouting, ‘Police, don’t move.’ But the appellant struggled free and reversed rapidly causing the driver’s door to hit Operator 55’s lower left leg. The impact forced Operator 55 backwards until he collided with Operator 78 (another policeman) knocking him to the ground. Operator 55 sustained bruising and swelling of his left lower leg and Operator 78 landed heavily on his right elbow and sustained minor grazing and soreness (Charges 5 and 6, assault police).

The appellant reversed past the white police van, shearing off the door. He continued, hitting another unmarked police vehicle and a power pole guide wire on the nature strip. Then he accelerated forward along the footpath. The green four-wheel drive collided with the appellant’s car as he drove along the footpath, forcing his vehicle into a fence. Operator 96 (another policeman) was struck by the appellant’s vehicle and lifted from the ground into the fence. (Charge 4, reckless conduct endangering life).

The appellant attempted to flee on foot and was tasered. He got back into his car, however, and was tasered again before finally being arrested. Then he was taken to the police station.

It was suggested that it was artificial to draw a distinction between the driving that impacted directly on the police officers and the rest of the driving that placed other (or potential) road users at risk. The argument was ultimately unsuccessful.

Nettle JA [at 20]:

Nor in my view is there anything illusory or artificial about the way in which the Crown drew a distinction between the specific acts of delinquent driving which constituted the assault of Operators 55 and 78 (which is to say, accelerating backwards into Operator 55 as he attempted to arrest the appellant) and the balance of the appellant’s delinquent driving which recklessly endangered the lives of others (by repeatedly ramming the red sedan; accelerating down the street so as to collide forcefully with the green four-wheel drive police vehicle blocking the appellant’s escape; reversing past the white police van, thereby shearing off its door; continuing on and hitting another unmarked police vehicle and a power pole guide wire on the nature strip; and finally accelerating forward along the footpath into a further collision with the green four-wheel drive, hitting Operator 96, and ultimately careering into the fence).

It is true that the Chief Judge referred in his sentencing remarks to ‘the driving’ constituting the offence the subject of Count 4. Perhaps, his Honour could have been more precise in his description of the offence. But, with respect, it is plain what his Honour intended. And, in view of the Plea Opening, there could not have been any doubt about it. It was the Plea Opening which was taken to set forth the facts agreed for the purposes of the plea and there is no reason to doubt that it was that which his Honour intended to encapsulate in the short hand form of expression which he adopted.

The appellant didn't challenge a charge being laid for each of the two police officers involved, even though it was really one act that was said to make out the assault against both. Multiple charges, each alleging a separate victim, have always been permitted as an exception to the general rule: R v WWS [2009] VSCA 125 [at 30].

Considering pending legislation

noreply@blogger.com (Elucubrator) — Sun, 13 Nov 2011 10:39:00 +0000

I just came across this interesting little tidbit about statutory interpretation: in Campbell v Employers Mutual Ltd and Others [2011] 110 SASR 57 the Full Court of the South Australian Supreme Court held that courts can and should take into account enacted legislative amendments that had not yet commenced. The particular references are at [68] – [69], citing New South Wales v Commonwealth (1990) 169 CLR 482 and Queensland v Central Queensland Land Council Aboriginal Corporation (2002) 125 FCR 89 at [60].

At [184], White J said:

I consider that the following propositions should guide this Court in relation to the use to be made of the unproclaimed s 98F(3):

(1) An unproclaimed provision forms part of the statute or amending statute when that statute or amendment was enacted.

(2) Accordingly, although not yet in force, the unproclaimed provision forms part of the statute to be construed and a court can, and should, have regard to it in construing the statute. It would be a curious result if a court could have regard, for example, to extraneous materials to discern the true legislative intention concerning the provisions in a statute, but not to a provision which the legislature itself had enacted at the same time as part of the statutory scheme.

(3) Subject to the propositions which follow, a court should strive to construe the statute, including the unproclaimed provision, as a whole, taking into account the effect which the unproclaimed provision has in the statutory scheme. That does not mean that the court must proceed on the basis of a fiction, that is, on the basis that the unproclaimed provision is in fact in force.

(4) The court should allow for the possibility that the legislature intended that some elements of a statutory scheme should come into operation at different times, and that the scheme should operate differently upon the coming into force of the later provisions. Just as the legislature may intend an amending Act to alter the meaning of a statute, so may it intend provisions enacted at the same time, but to come into operation at a later time, to have that effect; and

(5) Like Waddell J, I consider that it is permissible for the court to take into account that an unproclaimed provision may never be proclaimed and accordingly never be in force.

I can't remember coming across this before (though I don't have my copy of Pearce & Geddes with me right now).

I wonder just how far this principle goes? Clearly, it suggests that new provisions yet to commence can assist with understanding how the legislation is supposed to operate. But does that mean it can make decisions based on what the legislation will be? For example, when Road Safety Act s 30 was amended to remove mandatory jail for a subsequent driving when disqualified offence, would it have been legitimate for a Court to adjourn a case in anticipation of that amendment commencing?

It seems to me that that goes beyond mere interpretation, but after reading the extract above, I'm not sure one way or the other.

Anyone out there know the answer?

Sometimes; I swear...DPP v Marijancevic; DPP v Preece; DPP v Preece [2011] VSCA 355

noreply@blogger.com (Elucubrator) — Sun, 13 Nov 2011 06:09:00 +0000

You probably read the recent news about the bombshell discovery in a County Court trial that the deponent of an affidavit for several search warrants didn't actually swear the affidavit.

The trial judge decided the evidence consequently obtained from the search warrants should not be received in evidence under Evidence Act 2008 s 138. Because the warrant application wasn't sworn as required by Drugs, Poisons and Controlled Substances Act 1981 s 81(1), there was no affidavit as required, and hence the grounds for the warrant weren't met. There are similar provisions for other search warrants, contained in Magistrates' Court Act 1989 s 75(2).

The DPP appealed that decision to the Court of Appeal, arguing that the trial judge should have received the evidence.

The result was delivered last Friday in DPP v Marijancevic; DPP v Preece; DPP v Preece [2011] VSCA 355.

The Director's appeal was refused, but there are a few nuances in the judgment that warrant close reading.

The Court of Appeal set out some of the transcript from the trial, particularly where the deponent admitted to not swearing the affidavit. He went on to say it was the only practice he'd ever seen in Victoria Police; he wasn't aware of training on the topic; and he thought he would be exposed to a possible perjury charge if he lied in the affidavit. (One of the concerns noted by the trial judge and the Court of Appeal was that the failure to swear an affidavit means the purported deponent isn't potentially deterred from fabrication and deceit because they can't be charged with perjury. I'm not sure that's as big a concern as the courts seemed to think. Presumably the police could be charged with attempting to pervert the course of justice — punishable under Crimes Act 1958 s 320 — if they spoke falsely in the search warrant application, sworn or not?)

Now some folks might scoff at the notion that a police officer could genuinely be ignorant of such a fundamental requirement as swearing an affidavit for a search warrant. However, you might be surprised to know that the police manual — VPMP Searches of Properties and VPMG Searches of Properties, for those with access to them — say precisely nothing about the need to actually swear the affidavit. (Presumably that's about to change in a hurry.) And I know that the Victoria Police Reference Guide didn't contain that detail until 2009 — because I put it there. (And that publication was discontinued this year.)

What came out fairly clearly from the police officer's evidence was that he didn't know he was doing the wrong thing: at [25] and [34]. Despite that, the trial judge concluded the police conduct was deliberate and 'of the highest order': at [65] – [84].

It seems that the trial judge adopted submissions for the accused Marijancevic when His Honour made that ruling, and there was some uncertainty about what he meant by 'deliberate'. If he meant no more than 'voluntary' or 'not accidental' (or perhaps 'conscious decision to follow the practice', at [87]), there wouldn't be much problem. But it was argued in the County Court that 'deliberate' meant 'knowingly illegal'. The DPP argued that finding wasn't open to the trial judge.

The appeal failed on that point. Because the appeal was an interlocutory one, concerning a discretionary decision, the applicant had to show that the decision was not open to the trial judge, rather than just that he should have made a different decision: at [13] (citing DPP v MD (2010) 205 A Crim R 349 and House v The King (1936) 55 CLR 499) and [90], [92].

However, there was one ray of hope for the prosecuting authorities in this.

[93] Although we have concluded that the appeal must be dismissed we would not wish it to be thought that the discretion should necessarily be exercised in the same way were the same issues to arise again for consideration in similar circumstances. We have identified error in his Honour’s reasons and expressed our serious reservations as to various findings made by his Honour. It should not be assumed that we would have made like findings or that we would have exercised the discretion in the same way had a finding of inadvertent or careless conduct been made.

It seems the Court of Appeal was careful to say that if the issue of unsworn 'affidavits' for search warrants crop up in other cases, they'll need to be determined on their merits. In particular, if the Courts accept that the police were ignorant rather than criminal in their failure, it might be permissible to receive the evidence despite that problem.

But, the Court of Appeal was also pretty critical of the 'mere' fact of ignorance, and its comments speak pretty powerfully in favour of curial rejection of that.

The practice of not requiring the affidavits in support of warrants to be sworn on oath or affirmed.

[53] We should say something as to the endemic practice employed within certain sections of Victoria Police of not requiring the accuracy and truthfulness of the contents of affidavits in support of warrants to be sworn to on oath or by affirmation.

[54] The importance of making an affidavit in order to obtain a search warrant can hardly be gainsaid. Trials in courts in Victoria and in all other states and territories proceed upon the basis that the evidence that founds the findings of fact, which determine the guilt or innocence of those accused of crimes, is given on oath or by affirmation. Similarly, the reasonable grounds of which a magistrate must be satisfied before he issues a warrant authorising a member of the police force to enter and search land, premises or a vehicle and seize any thing or document and carry it before the Court, can only be established by evidence on oath or by affidavit.

[55] An affidavit is the written form of sworn oral testimony. It is an ancient method of providing evidence in court.[29] Until 1989, whenever police needed to obtain a warrant they were required to physically attend court and give sworn oral evidence before a magistrate as to the facts relied on to support the granting of a warrant. This was a clear and long standing indicator of the significance and gravity of obtaining a warrant. The 1989 Act amended the provision to enable evidence to be given orally on oath or on sworn affidavit.[30] The new alternative methods from 1989 onwards did not justify or contemplate a derogation of standards – the evidence was still required to be sworn.

[56] The fundamental role which oaths and affirmations play in our system of criminal law is readily apparent. The requirements of s 81 of the Act are not a mere technical ancillary to obtaining a search warrant. Just as courts proceed upon the basis of testimony sworn or affirmed, so do magistrates issue search warrants on the basis of testimony sworn or affirmed.

[57] A search warrant authorises an entrance upon property and the seizure of property which would otherwise constitute an unlawful trespass. The common law has jealously guarded private property rights and has upheld the right of property owners to exclude other people and the state. Search warrants, which are obtained ex parte, displace those rights. As the Court said in George v Rockett:

The enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature’s concern to give a measure of protection to [property] interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation. ((1990) 170 CLR 104 at [5])

Similarly, Lockhart J in Crowly v Murphy said:

Notwithstanding that Commonwealth and State legislation governs the law of entry, search and seizure in Australia today, it is necessary to bear in mind the fundamental legal conception of the freedom of the individual in his home or premises. It is the cardinal principle in the light of which the statutory authority for the issue and execution of search warrants is read. Even today, there is no right of common law to enter a person’s home or premises for the purposes of search or seizure without the permission of the owner or occupier, except in the case of a search for stolen goods. Entry without such permission or authority of a valid warrant is to commit a trespass and to render the trespasser liable to damages. ((1981) 52 FLR 123 at 142)

[58] To proffer to a magistrate material which is not sworn or affirmed in order to obtain a search warrant has a tendency to subvert a fundamental principle of our law.

Those are pretty strong words and don't sound very much like acceptance of the practice. It's a pretty safe bet there'll be a lot more argument on this topic for some time.

Legislation Watch: Criminal Procedure Amendment (Double Jeopardy and Other Matters) Bill 2011

noreply@blogger.com (Dr Manhattan) — Sat, 12 Nov 2011 03:59:00 +0000

The Criminal Procedure Amendment (Double Jeopardy and Other Matters) Bill 2011 had its second reading last Wednesday. The speech is here. The Bill itself is here and its Explanatory Memorandum is here.

Double jeopardy

The most attention-getting aspect of the Bill is the proposal to reform double jeopardy. That's the kind that arises from being presented for trial on the same charge twice, not the kind where an accused person falls to be sentenced for the same deed several times. The Bill specifically removes the principle in R v Carroll [2002] HCA 55 that an accused in a murder trial cannot be tried for perjury if doing so revists the correctness of the acquittal.

The Attorney-General said in the Second Reading,

The bill reforms the common law so that a new trial can be allowed in three situations.

The first situation is where there is 'fresh and compelling' evidence against the person (for example, where new DNA evidence links a person to a murder or a person confesses to having committed a murder). The second situation is where the original acquittal was 'tainted' (for example, by the commission by the accused person or another person of an 'administration-of-justice offence' such as bribery of a witness or perjury). The acquittal will be tainted if it is more likely than not that, but for the commission of the administration of justice offence, the accused person would have been convicted in the original trial. The third situation is where there is fresh evidence that the accused person has committed an administration-of-justice offence in respect of an acquittal and the prosecution seeks to bring charges for that offence notwithstanding the acquittal.

The procedures are complex, selective and require the approval of the Court of Appeal. Though there are similar provisions in other jurisdictions and they do occasionally get used, I'm doubtful there will be a secure conviction resulting from a second trial in Victoria in my lifetime.

Some would probably have thought that s 26 of the Charter of Human Rights prevented this kind of thing. That reads,

26. Right not to be tried or punished more than once

A person must not be tried or punished more than once for an offence in
respect of which he or she has already been finally convicted or acquitted in
accordance with law.

That might sound like a definite prohibition. Unlike most Charter rights it doesn't have the wiggle-room of a except on grounds, and in accordance with procedures, established by law or except where reasonably necessary clause. But like all Charter rights the right is subject to the reasonable limitation test under s 7. The various checks-and-balances written into the legislation may make this exception a reasonable limitation.

The Attorney-General wrote in the Statement of Compatibility (at 95),

The primary right engaged by the proposed double jeopardy reforms is the right not to be tried or punished more than once in section 26 of the Charter Act. The proposed exceptions to the double jeopardy rule impose a limitation on the right in section 26 of the charter act but in my view they do so in a way that can be demonstrably justified under section 7(2).

Infringement notices as prior convictions

Clauses 3 and 7 through 12 clarify that an infringement penalty is a prior conviction for the purposes of a sentencing hearing.

Provision of the police brief

Clause 6 inserts new section 53A in the Criminal Procedure Act 2009. This section will set out the documents to be provided by the police informant to the accused or the accused's legal practitioner at the first mention hearing of a matter.

While this might appear to move the court process along more efficiently, the detail of what must actually be provided suggests that the police won't be under much pressure to produce more information than they do already.

Clause 53A(2) reads,

6 Mention hearing

After section 53 of the Criminal Procedure Act 2009 insert—

"53A Documents to be provided by police at first mention hearing

(1) This section applies if the informant is a member of the police force.

(2) At the first mention hearing, the informant must have the following documents available for provision to the accused or the legal 10 practitioner representing the accused—

(a) a copy of the preliminary brief (if prepared);

(b) a copy of the full brief (if prepared);

(c) if neither a preliminary brief nor a full brief has been prepared—

(i) a copy of the charge - sheet in respect of the alleged offence; and

(ii) a statement of the alleged facts on which the charge is based; and

(iii) either—

(A) a copy of the criminal record of the accused that is available at the time of the first mention hearing; or

(B) a statement that the accused has no previous convictions or infringement convictions known at that time.

The accused was already entitled to a copy of the charge sheets under s 27. This new provision is so riddled with exceptions it doesn't go much further than that. If not prepared the document doesn't have to be provided.

Further, and despite the use of the word must, no consequences are provided for a failure to comply. A dismissal of the charge(s) seems unlikely, and costs have always been at the discretion of the court.

The Bill has a forced commencement date of 1 July 2012.

SPA v The Queen [2011] VSCA 306: the possibility of concoction must be real

noreply@blogger.com (Dr Manhattan) — Sun, 06 Nov 2011 08:07:00 +0000

SPA v The Queen is an interlocutory appeal. The Court of Appeal's reasons tend to be brief in these judgments. The Court is anxious to say no more than is necessary than to decide the admissibility question before it, knowing that it will possibly see the matter back before it again after the trial ends.

In SPA the Crown sought the admission of evidence of charged and uncharged sexual acts against the victims, who were family members of the accused. The accused denied the charges, and it was uncontentious that the tendency and coincidence evidence of other acts was relevant. The accused asserted at trial and on the appeal that the evidence was insufficiently probative. Neither court agreed.

A late ground for challenging the admissibility of the evidence was the possibility of concoction. Before the introduction of s 398A of the Crimes Act (repealed when the Evidence Act 2008 came in), and still in some other jurisdictions, the possibility of concoction (witnesses agreeing on a story) needed to be rebutted (in some cases, excluded) before similar fact evidence could be admitted. The extract of the interlocutory judgment referring to concoction [Hansen JA at 11, Weinberg JA and AJA Judd agreeing] is brief:

The applicant raised one further point that was not raised before the judge. That was that concoction or contamination may be considered when considering the probative value of the evidence. Doubtless in principle that is so, but there must be a basis for doing so as distinct from mere speculative suggestion. If it is desired to raise the point it should be done before the judge. To seek to raise the point before this court now for the first time is to short-circuit the ordinary processes. It is apparent from what counsel said that it is a point that he desires to raise and accordingly it should be left to be considered by the trial judge. In that sense the present application may be seen to be somewhat premature.

The fleeting reference affirms the approach taken in NSW under the UEA. As the NSW Court of Appeal said in BP v R; R v BP [2010] NSWCCA 303, [Hodgson JA at 108, Price and Fullarton JJ in agreement],

It is not necessary in criminal cases that the incidents relied on as evidence of the tendency be closely similar to the circumstances of the alleged offence, or that the tendency be a tendency to act in a way (or have a state of mind) that is closely similar to the act or state of mind alleged against the accused; or that there be a striking pattern of similarity between the incidents relied on and what is alleged against the accused: Ford at [38], [125], PWD at [64]-[65]. However, generally the closer and more particular the similarities, the more likely it is that the evidence will have significant probative value.

The possibility of prejudicial effect with which s 101 is concerned is the possibility that the jury will act on the evidence otherwise than by way of its rational effect on the probability of a fact in issue, for example by giving effect to “some irrational, emotional or illogical response” or “giving the evidence more weight than it truly deserves”: R v Suteski (2002) 56 NSWLR 182 at [116]. An assessment must be made whether the probative value of the evidence substantially outweighs any prejudicial effect that the evidence may have: R v Ellis (2003) 58 NSWLR 700 at [94]- [95]. If the evidence passes the s 101 test, it will a fortiori not be excluded under s 137: Ford at [59].

One matter that powerfully affects both the probative value of tendency evidence and the possibility of prejudicial effect is the risk of concoction or contamination of evidence. If the evidence of tendency from different witnesses is reasonably capable of explanation on the basis of concoction, then it will not have the necessary probative value: Hoch v The Queen (1988) 165 CLR 292. However, this will be so only if there is a real chance rather than a merely speculative chance of concoction: R v Colby [1999] NSWCCA 261 at [111], R v OGD (No 2) (2000) 50 NSWLR 433 at [74], [112]. The onus is on the Crown to negate the “real chance” of concoction: OGD at [74], R v F (2002) 129 A Crim R 126 at [48].

Relevant to consideration of concoction are the factors mentioned in Hoch at 297, namely relationship, opportunity and motive. One of these on its own is not sufficient to base a finding of a real possibility of concoction: R v RN [2005] NSWCCA 413 at [15], OGD at [111] – [112].

The trial judge will consider the evidence from this fresh perspective, if it's raised. In order for the possibility of concoction to influence its probative value (assuming it can) there will need to be a foundation laid that establishes concoction may have occurred.

Drug analogues

noreply@blogger.com (Dr Manhattan) — Mon, 31 Oct 2011 08:23:00 +0000

Minor differences at microscopic level can produce substances very similar in effect to drugs of dependence, but that aren't specifically listed in any of the schedules of the Drugs, Poisons and Controlled Substances Act 1981. Provisions in state and Commonwealth legislation prohibit these copycats so that their possession and sale is illegal even if a few molecules have been added or removed from a substance's chemical structure.

In Victoria the Act defines a drug as [at s 4]:

drug of dependence means a substance that is-

(a) a drug-

(i) specified in column 1 of Part 1 of Schedule Eleven; or

(ii) included in a class of drug specified in column 1 of Part 1 of Schedule Eleven; or

(b) any fresh or dried parts of any plant specified in column 1 of Part 2 of Schedule Eleven; or

(ba) prescribed as a drug of dependence in accordance with section 132AA whether specified as included in Part 1, Part 2 or Part 3 of Schedule Eleven; or

(c) a drug-

(i) specified in column 1 of Part 3 of Schedule Eleven; or

(ii) included in a class of drug specified in column 1 of Part 3 of Schedule Eleven- and includes-

(d) any form of a drug specified in column 1 of Part 1 or column 1 of Part 3 of Schedule Eleven, whether natural or synthetic, and the salts, derivatives and isomers of that drug and any salt of those derivatives and isomers; and

(e) any-

(i) drug specified in, or drug included in a class of drug specified in column 1 of Part 1 or column 1 of Part 3 of Schedule Eleven, whether natural or synthetic; or

(ii) salts, derivatives or isomers of a drug specified in column 1 of Part 1 or column 1 of Part 3 of Schedule Eleven; or

(iii) salt of any derivative or isomer mentioned in subparagraph (ii)- contained in or mixed with another substance; end user declaration means a declaration required for the purposes of section 80J, 80L or 80M, as the case requires;

The Act doesn't provide a definition of what the terms salts, derivatives and isomers mean.

The Commonwealth Criminal Code refers to drug copycats as analogues. The definition of analogue is found at s 314.1(2) for controlled drugs and s 314.4(2) in the case of border controlled drugs.

(Please note that, although I've linked to the Code on AustLII, I don't recommend opening it unless you really need to. AustLII's automated bots are incapable of handling the Commonwealth parliament's predelicition for placing enormous schedules - often bigger than the Acts they're attached to - like the Criminal Code and Australian Consumer Law in the back of their Acts. To access one provision in a schedule at AustLII it's necessary to download the lot. If you're after a more printer-friendly version, use ComLaw).

The definition of analogue for both categories of drug is extensive. Sub-section 314.1(2) reads,

(2) A substance is a controlled drug if the substance (the drug analogue ) is, in relation to a controlled drug listed in subsection (1) (or a stereoisomer, a structural isomer (with the same constituent groups) or an alkaloid of such a controlled drug):

(a) a stereoisomer; or

(b) a structural isomer having the same constituent groups; or

(c) an alkaloid; or

(d) a structural modification obtained by the addition of one or more of the following groups:

(i) alkoxy, cyclic diether, acyl, acyloxy, mono-amino or dialkylamino groups with up to 6 carbon atoms in any alkyl residue;

(ii) alkyl, alkenyl or alkynyl groups with up to 6 carbon atoms in the group, where the group is attached to oxygen (for example, an ester or an ether group), nitrogen, sulphur or carbon;

(iii) halogen, hydroxy, nitro or amino groups
; or

(e) a structural modification obtained in one or more of the following ways:

(i) by the replacement of up to 2 carbocyclic or heterocyclic ring structures with different carbocyclic or heterocyclic ring structures;
(ii) by the addition of hydrogen atoms to one or more unsaturated bonds;

(iii) by the replacement of one or more of the groups specified in paragraph (d) with another such group or groups;

(iv) by the conversion of a carboxyl or an ester group into an amide group; or

(f) otherwise a homologue, analogue, chemical derivative or substance substantially similar in chemical structure;

however obtained, except where the drug analogue is separately listed in subsection (1).

It might be that the Commonwealth legislation is just more specific than the Victorian provision, but the general consensus is that the term analogue covers more than salts, derivatives and isomers.

In DPP (Cth) v Coory the substance was methylmethcathinone. The accused was charged with importation of a border controlled drug under s 314.4 of the Criminal Code, and pled guilty.

Methcathinone (also known as miao miao) is a substance which is thought to simulate the effects of MDMA or amphetamine. It's specifically prohibited in Victoria by its inclusion in Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 and s 314.4(1)(95) of the Criminal Code. Methylmethcathinone isn't specifically mentioned in either the state or Commonwealth schedules, but has a similar chemical structure to methcathinone.

In Victoria it's settled that all drugs of dependence are treated on sentence as being equally harmful. If parliament intended different drugs of dependence to attract different penalties, the reasoning goes, parliament would have allocated different penalties to them, rather then putting them all in the one penalty section: R v Adams (2008) 234 CLR 143; R v Pidoto & O'Dea (2006) 14 VR 269, both referred to here. Though this rationale might fly in the face of experience, the High Court approved it on the basis that if this wasn't the law then sentencing hearings would bog down in non-justiciable arguments about whether amphetamine is more dangerous than heroin, cocaine use more prevalent than ecstacy use, etc.

Among the sentencing judge's remarks was a comment that the harm caused by methylmethcathinone is unclear. While both factually correct and made in the context of condemning the accused's behaviour, on the DPP appeal the Crown asserted that this comment reflected the judge engaging in an assessment of the harm caused by a particular drug of dependence.

Harper JA [at 27]:

27 The argument in its favour is based in part upon references in her Honour’s reasons for sentence to the similarity, in some respects, of 4-MMC to other designer stimulants. Her Honour also referred to its use as an alternative for amphetamine related drugs and MDMA (or ‘ecstasy’). Then the judge said:

In terms of the harm your offending caused or could have caused, [it] is unclear what harm the drug 4-MMC causes. Fortunately, the authorities detected you and your offending was stopped. Due to the vigilance of customs officials, this clearly stopped further amounts of these drugs getting into the community. The custom’s vigilance, of course, comes at the expense and inconvenience of the Australian community as a whole.

The appellant submits that error is revealed by the references to other designer stimulants, to the use of 4-MMC as an alternative for both amphetamines and ecstasy, and to the harm caused by 4-MMC. I agree with these submissions. The Director points, correctly, to authorities which establish that, in sentencing for drug offences, it is impermissible to apply ‘a judicially constructed harm-based gradation of penalties’. I depart from him, however, when he goes on to submit that the sentencing judge drew an inference favourable to the respondent from the absence of any specific evidence of harm caused by 4-MMC.

The appellant submits that the drawing of such an inference is evidenced by her Honour’s observation in her reasons for sentence that it was not clear what harm the drug caused or could cause. So far as I can see, however, there is (apart from the impugned passage) nothing in those reasons for sentence to suggests that she took into account as a mitigating factor any notion that the relative harm suffered by consumers of 4-MMC, and the general public which must share the cost of its use, was less than for other illicit drugs. Indeed, during the course of argument on the plea, her Honour made it quite clear that she was aware that, in her words, ‘an illicit drug is an illicit drug, it doesn’t matter whether it is heroin or marijuana.’

Both Redlich JA [at 8] and Harper JA [at 46] remarked on the desirability of removing the doubt surrounding the status of 4-MMC as a drug of dependence under the Victorian Act, by an appropriate amendment to the Drugs, Poisons and Controlled Substances Act 1981 to make drug copycat legislation work the same way at state and federal level.

Edit: Parliament haven't yet signalled any intention to act on this advice, but a couple of months ago they did pass the Drugs, Poisons and Controlled Substances Amendment (Drugs of Dependence) Bill 2011. This bill allows the addition of new substances to the schedule through regulation, rather than legislative change.

Legislation Watch: Sentencing Amendment (Community Correction Reform) Bill 2011

noreply@blogger.com (Dr Manhattan) — Sun, 30 Oct 2011 05:14:00 +0000

Intensive Correction Management Orders (ICMOs, discussed here) are going to go, without ever having been. In their place will be Community Corrections Orders (CCOs), for most purposes exactly the same thing.

In September the Attorney-General said,

Using new powers under the CCO, courts may require offenders to pay a bond that will be forfeited if the offender fails to comply with their order. Courts may also impose up to 600 hours of community work, curfews and no-go zones, conditions on where an offender may live, prohibitions on contact with specified persons such as associates of the offender, victims, witnesses or their families, and exclusions from licensed premises. Courts will be able to apply these conditions in a way that addresses the circumstances of the offence and the offender, in order to reduce the likelihood of further offending or protect those affected by the crime.

Courts will be able to use the new CCO to ensure that those who have committed serious crimes will no longer walk out of court free to continue their criminal behaviour with no restrictions or penalties. Courts may use the place or area exclusion to prevent offenders from going to a particular site or an area such as the CBD. Courts may also use the curfew condition to require that an offender stay at home for up to 12 hours a day to stop them going out at night or other times and engaging in further criminal behaviour.

Under the alcohol exclusion condition, courts will have the power to ban offenders from entering or consuming alcohol in licensed premises. Offenders will be completely banned from going to nightclubs, pubs, bars, restaurants, cafes and function centres. Offenders will be able to access other types of licensed premises. However, they will not be allowed to enter the bar area and will not be allowed to drink alcohol anywhere in the premises. If they do, they will be in contravention of their order.

Judges and magistrates will also be empowered to actively monitor an offender's compliance with their order through a judicial monitoring condition. Courts will have a broad discretion to manage offenders as they see fit -- for example, by requiring offenders to return to court for monitoring at regular intervals or just once. The judicial monitoring condition will allow courts to keep close watch over offenders' progress in completing the requirements of their order. Courts will be able to request progress updates from the offender, Corrections Victoria, prosecuting agencies, and other appropriate persons.

Courts will retain their existing powers to order supervision of the offender by Corrections Victoria, order treatment and rehabilitation such as drug or alcohol treatment, or programs that target particular offending behaviour and reduce the risk of reoffending.

This legislation passed the Assembly and made its way through the Council this week. The Bill will repeal combined custody and treatment orders, intensive correction orders and community-based orders, introduce a new community correction order, amend the Sentencing Amendment Act 2010 and make minor and consequential amendments to other Acts.

The Bill itself is here, the Explanatory Memorandum here and Statement of Compatibility here. The Second Reading Speech was read in September, and can be found here.

The legislation is a continuation of the government agenda discussed here. Parts of the Sentencing Amendment Act 2010 and Justice Legislation Amendment Act 2010 will be repealed without ever having come into effect.

Although the government has repeatedly stated its intention to abolish home detention, the curfew and no-go provisions of a CCO make comparisons inevitable. It might be more accurate to say that home detention is being removed as a 'jail' option and made a 'community-based' alternative.

It will be interesting to see whether magistrates adopt their new 'monitoring' function. Historically judicial officers have been reluctant to impose orders that require their ongoing supervision. It's likely that some magistrates will continue to rely on Corrections Victoria to track an offender's progress post-sentence, whilst others will take to direct supervision with enthusiasm.

Most of the provisions have a forced commencement date of 30 June 2013.

I should also briefly mention the Justice Legislation Further Amendment Bill 2011. Folllowing the vast increase in powers to be given to Protective Services Officers, this legislation will amend the Criminal Procedure Act to allow police prosecutors to represent them in their matters before the Magistrates' Court.

Legislation Watch: Bonged off

noreply@blogger.com (Dr Manhattan) — Sun, 23 Oct 2011 08:06:00 +0000

The Drugs, Poisons and Controlled Substances Amendment (Prohibition of Display and Sale of Cannabis Water Pipes) Act was assented to last week. The Explanatory Memorandum is here, and the Second Reading is here.

It will come into effect on 1 January 2012. My flip through the legislation suggests that it looks a lot like the Drugs, Poisons and Controlled Substances Amendment (Prohibition of Display and Sale of Bongs) Bill 2010 that failed to pass in the last session of parliament. Both aimed to prohibit display of cannabis smoking tools in retail outlets and markets.

Section 80U will make it an offence to display a bong or a component of a bong in a retail outlet. Possession of one will not be illegal per se, except for those engaged in a commercial activity: s 80W.

The last time the law was proposed it was going to be a defence for the accused to prove that the bong, or the component of a bong, was designed primarily to be used for a purpose other than administering a drug of dependence. That's gone. Instead the prosecution will have to prove that the device is capable or intended to be used for the purpose of introducing cannabis fumes into the body. The definition of cannabis water pipe does provide some scope for argument about what a particular device was made or intended for.

Most of the offence sections specify a maximum penalty of 60 penalty units for a natural person, and 300 for a corporation.

Bongs are already sold under the legal fiction that they are used for smoking tobacco. The situation is further complicated by the existence of hookahs, a device which in every way resembles a bong but will now be given a specific exemption under s 80T.

cannabis water pipe means a device—

(a) capable of being used or intended to be used for the purposes of introducing into the body of a person cannabis or other drugs of dependence by the drawing of smoke or fumes resulting from heating or burning the cannabis or other drug through water or another liquid in the device, commonly known as a "bong"; or

(b) that is intended to be used as a device referred to in paragraph (a) but is not capable of being so used because it needs adjustment, modification or addition —

but does not include a hookah;

hookah means a fully assembled device—

(a) used for smoking a substance consisting of tobacco, molasses, fruit, herbs or flavouring, whether the substance contains all or any combination of them, by the drawing of smoke or fumes resulting from heating or burning the substance in the device through water or another liquid in the device; and

(b) that has one or more openings and one or more flexible hoses, each with a mouthpiece through which the smoke or fumes are drawn;

There's no information about what constitutes adjustment, modification or addition. Presumably it means something more than filling the thing with water. Does selling a bong in its component parts get around the prohibition? Apparently not, as sale of a bong kit or bong component is also prohibited: s 80T.

As someone who has enjoyed the occasional shisha in Sydney Road, I'm pleased to see that hookahs are not being outlawed. Only an outlet which displays more than 3 hookahs will be committing an offence: s 80X. But I don't see how you can tell them apart in a practical sense.

Green v The Queen [2011] VSCA 311: just punishment, specific deterrence and Verdins

noreply@blogger.com (Dr Manhattan) — Tue, 18 Oct 2011 06:46:00 +0000

This is another post about Verdins. In that case, Maxwell P, Buchanan and Vincent JJA laid out six principles [at 32]:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.

5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.

The Court of Appeal helpfully provided a numbered list of limbs of the Verdins doctrine. They aren't conceptually difficult. A major theme of the original decision was that those with mental conditions may have reduced moral culpability, diminishing their suitability as vehicles for general deterrence. It's tempting to try to distil the essence of the case still further into a 'mental condition = mitigation' equation (and many practitioners do), but that isn't accurate.

I've written about Verdins' case before here, here, here and here.

Green is the latest in a long series of cases where the Court considers itself obliged to revisit the original decision, adding little but repeating what was said there. The appellant here committed two 'carjackings' on consecutive days while armed with a meat cleaver (a different cleaver each time, it seems). He was easily identified as the culprit and pled guilty to the crimes.

Although the appellant had an extensive history of institutionalisation, with a long history of paranoid schizophrenia, assessment by a forensic psychiatrist rendered an opinion that a defence of mental impairment was not available as he possessed the necessary insight and self-control to be considered 'sane' at the time of the offences.

Maxwell P [at 19]:

The submission for the appellant was that, because of the link between [the appellant’s] mental illness and the offending, just punishment ‘was of little significance for sentencing purposes’. This submission misunderstands, however, the first of the principles summarised in Verdins, as follows:

The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

Other things being equal, a reduction in moral culpability will ordinarily mean that ‘the punishment that is just in all the circumstances’ will be less than it would have been had there been no such reduction. But the assessment of moral culpability is only one aspect of the Court’s task of determining a ‘just punishment’. As the judge correctly pointed out on the plea, the determination of ‘just punishment’ must be based on a consideration of all relevant sentencing principles.

...

For similar reasons, his Honour was correct to conclude that specific deterrence remained a relevant consideration notwithstanding the reduction in moral culpability.

The principle of specific deterrence is premised on the assumption that an appropriate punishment will operate to deter an offender from repeating the same or similar conduct in the future. Whether and to what extent that assumption is applicable to a person whose mental functioning was impaired at the time of the offending will depend on the circumstances. As Steytler J explained in Payne v The Queen:

[I]n a case in which the mental illness contributed to the commission of the offence, the importance of personal deterrence may, depending upon the nature and effect of the illness, be lessened. The whole notion of personal deterrence assumes some rational analysis or reasoning in the course of comparing the likely gains from the crime against the prospect, and likely severity, of punishment. Where the illness affects the person’s ability to make that very analysis, there is no justification for affording the consideration of personal deterrence the same measure of significance as it might have in the case of a well person, although there may then be a greater need to protect the public.

In the present case, specific deterrence still had real significance. On the uncontested evidence, the appellant had been fully aware of what he was doing and that it was wrong. Although his decision-making was, on the evidence, impaired to some extent by his chronic illness, the evidence showed that he had been able to act in a logical and purposeful way, first in planning and then in carrying out the armed robberies. It was appropriate to treat as one of the purposes of this sentence the deterring of [the appellant] from engaging in similar conduct in the future.

The conclusions of this case are, really, self-evident. A just punishment is the one appropriate in the circumstances. It might be that the appellant's counsel was thinking of just desserts, the Old Testament notion of bad things being made to happen to bad people, but I don't know that s 5(1)(a) of the Sentencing Act is so limited.

It's easy to see how giving a person with a mental condition a sentence more severe than is appropriate in order to send a message to others is wrong. But an unjust sentence is also a failure of the sentencing process, and so is one that fails to adequately address a need for specific deterrence.

Sentencing not to deter claims of innocence

noreply@blogger.com (Elucubrator) — Sun, 16 Oct 2011 13:31:00 +0000

In R v Kumar [2011] NSWCCA 139 the New South Wales Court of Criminal Appeal allowed Rajendra Kumar's appeal application. The applicant was found guilty of accessing and possessing child pornography, receiving 5 years jail with a 3 year non-parole period for accessing child pornography, and 3 years jail with a 2 year non-parole period for possessing child pornography.

The trial judge considered it necessary to impose a sentence that would deter others from similar conduct and from making false claims that they did not engage in it when they did (but not as punishment for pleading not guilty).

In NSW, the purposes of sentencing are set out in Crimes (Sentencing Procedure Act) 1999 s 3A, which is pretty similar to Victoria's Sentencing Act 1991 s 5(1). Unsurprisingly, both Acts don't say anything about deterring accused people from pleading not guilty when they will be — perhaps even unbeknownst to them or anyone else — found guilty of criminal offences in the future. That would probably undermine the practical effect of the presumption of innocence, both at common law and Charter of Human Rights and Responsibilities Act 2006 s 25(1).

[21] His Honour concluded with the following passage, which I set out again for convenience of reference:
"The sentences which I impose as will be seen give greater weight to general deterrence, the need to deter others from engaging in this conduct and particularly the need to deter others from making false claims that they did not engage in it when they did, and of course the principles of retribution fixing an appropriate sentence for the seriousness of the offences". [Emphasis added.]

[22] In this Court, the Crown prosecutor conceded that, if the sentencing judge expressed the view "that the conduct of the defence at trial was an aggravating feature which increased the sentence, then he would have fallen into serious error". In my view, although the sentencing judge referred to the conduct of the defence, the false claims which he was concerned to deter were of the type made by the applicant after he was convicted. His Honour had agreed during submissions that the defence conducted at the trial was not aggravating but rather deprived him of various mitigating circumstances and commented that the applicant had "defended the case as he [was] entitled to". The reference to the course of the defence simply gave a context for the evidence which his Honour discussed. However, in my respectful view, the sentencing judge plainly regarded the "claims" made to the psychologist and the probation officer as being in a quite different category which, it appears his Honour thought, were required to be refuted by reference to the evidence at trial.

[23] It seems to me that, in determining Ground 1, it makes no difference in point of principle whether it could be said that the applicant was punished additionally because of the defence he ran at trial or his subsequent claims of innocence in which he blamed his daughter. The fact is that, in this case, sentencing error as explained in paragraph [22] has been made out. Whilst the continuation of the applicant's claims of innocence were relevant to the subjective factors of remorse, contrition and rehabilitation, they were in no sense aggravating features of the offences. The need to deter others from making "false claims" of innocence is not and never has been a function of sentencing. It cannot be an element of general deterrence: that function of sentencing is directed to deterring the commission by others of the offence in question. And, because it is not an offence, it cannot be justified by the need to prevent such false claims by the offender being made in the future.

The Court of Appeal noted in any event that at trial the applicant hadn't tried to blame his daughter for the pornography on his computer. That claim came out 'only' from the psychological reports. Though his views about his subsequently-proved offending were relevant to remorse, contrition and rehabilitation, a lack of remorse shown by a refusal to admit guilt did not, on its own, show the applicant was more likely to reoffend in the future.

After considering the factors in this case, the Court allowed the appeal and reduced Kumar's sentence to 3 years with a 2 year non-parole period for the accessing offence, and 2 years with 1 year 6 months non-parole period for the possession offence.

Aggravated burglary

noreply@blogger.com (Dr Manhattan) — Mon, 10 Oct 2011 06:10:00 +0000

Aggravated burglary is capable of being dealt with summarily (provided the accused consents to jurisdiction) because of Schedule 2 of the Criminal Procedure Act 2009.

If it wasn't specifically included at clause 4 the offence wouldn't be triable summarily, because the 25 year maximum sentence far exceeds the limit allowed the Magistrates' Court of Victoria by s 28.

Not all types of aggravated burglary can be dealt with summarily, though. Schedule 2 clause 4.7 provides,

4.7 Offences under section 77 of the Crimes Act 1958 (aggravated burglary), if the offence involves an intent to steal property the amount or value of which does not in the judgment of the court exceed $100 000.

A similarly worded provision relating to simple burglary is found just above it at sub-clause 4.6. Consequently, an aggravated burglary where the burglar has an intention to steal may be dealt with summarily, but a burglary where they have the intention to assault or damage cannot: DPP v Vergios [2004] VSC 97.

The two circumstances of aggravation provided in the Act are,

a) at the time has with him or her any firearm or imitation firearm, any offensive weapon or any explosive or imitation explosive; and

(b) at the time of entering the building or the part of the building a person was then present in the building or part of the building and he or she knew that a person was then so present or was reckless as to whether or not a person was then so present.

In DPP v Woodward [2006] VSC 299 a magistrate dismissed a charge of aggravated burglary because, although it was admitted that the accused was carrying a pocket knife with him at the time of the burglary, he considered it did not meet the definition of an offensive weapon. On judicial review Cavanough J found that there was no error on the face of the record, but stressed [at 47] that his finding was not conclusive on the point. There is more judicial consideration of the status of pocket knives in R v Pope [2000] VSCA 108, referring to Wilson v Kuhl; Ryan v Kuhl [1979] VR 315 which involved a carving knife.

It's not necessary for the burglar to have originally acquired the item with the intention of using it offensively, provided such an intention existed at the time of the burglary: R v Nguyen [1997] 1 VR 551.

UK authorities (considering legislation similar to our own) favour the view that the time when being armed falls to be considered is at the time of theft rather than the time of entry. An intruder who arms himself with a weapon after entry is guilty of aggravated burglary: R v O'Leary (1986) 82 Cr App R 341. The offender entered the house unarmed but picked up a kitchen knife once inside and used it to force the occupier to hand over property. Similarly, where a burglar brandished a screwdriver he had brought with him when surprised by residents it was considered a weapon, although originally intended as a tool to gain entry: R v Kelly(1993) 97 Cr App R 245.

DPP v Giannoukas [2011] VSCA 296: "glassing means jail", but not always

noreply@blogger.com (Dr Manhattan) — Sun, 09 Oct 2011 09:27:00 +0000

The other day I mentioned in passing an attempt by the DPP to persuade the Court of Appeal to prioritise general deterrence above current sentencing practices for the offence of recklessly causing serious injury under s 17 of the Crimes Act. The case was Winch v The Queen [2010] VSCA 141, and we discussed it here last year.

The only really clear message that emerged from Winch was that striking someone with a glass cup or bottle (with all the potential for injury that involves) should not be considered less serious than assaults with other kinds of weapons. What the circumstances lack in preparation, the Court said, they make up for by how commonly it occurs. There was an acknowledgment that the majority of sentences handed out amount to only a small proportion of the maximum penalty provided by parliament, but despite some tough language the judgment didn't go further than saying an immediate prison term will ordinarily be appropriate.

Maxwell P and Redlich JA [at 53]:

[I]in a glassing case (where the offender is being sentenced for RCSI) the full suspension of a custodial sentence will not ordinarily be an available sentencing option. The objective gravity of the offence will usually require a term of immediate imprisonment. This approach is necessary, in our view, if the courts are to give appropriate effect to the maximum penalty -- which marks out the sentencing parameters -- and to general deterrence, and to recognise the objective seriousness of ‘glassing’ as an instance of RCSI.

Glassing cases should, in our view, be treated as being in the same category as other RSCI offences which involve the use of a dangerous weapon likely to produce serious injury. There is no warrant for placing these cases in a lower category of seriousness where an immediate custodial sentence is not ordinarily required.

It follows, in our view, that sentencing judges should not regard themselves as constrained to follow the course disclosed by the glassing cases to which we have referred. Those advising clients in the future whether or not to plead guilty to RCSI in a glassing case should ensure that no assumption is made about the availability of a suspended sentence.

White v The Queen [2010] VSCA 261 confirmed that the Court of Appeal didn't intend to increase the usual tariff for RCSI offences. Buchanan and Neave JJA considered a case where the appellant had struck his brother-in-law a blow to the head with an iron bar after a domestic dispute. The appellant admitted being present but denied striking the blow, and took the matter to trial in the Supreme Court, where he was found guilty by jury of the RCSI charge. He was sentenced to seven years imprisonment, with a minimum of four to be served.

The appeal asserted that the sentence was outside the range of current sentencing practices; only 5 of 505 sentences for that offence had, in recent years, exceeded 7 years. It was acknowledged that 88% of such charges are dealt with in the Magistrates' Court, where the sentence available is statutorily limited to 2 years. The Court quoted Ashley, Redlich and Kellam JJA in DPP v Maynard [2009] VSCA 129 when they said [at 35] that statistics, by themselves, do not establish a sentencing practice.

It's notable Winch was quoted in that case [at 42] in support of the penalty being reduced, not affirmed.

The facts in Giannoukis occurred in the typical context of a fight between young men in a club. The evidence disclosed the respondent was less culpable than might usually be expected, but he did flee the scene and the injury was significant. The sentencing judge awarded a suspended sentence, which the DPP appealed. Certain factual findings of the sentencing judge about the circumstances of the offence were unsuccessfully challenged. The term of imprisonment was increased on the appeal, but was suspended.

Neave JA reviewed the cases of Trowsdale v The Queen [2011] VSCA 81, Ellis v The Queen [2011] VSCA 296, DPP v Gerrard [2011] VSCA 200 and DPP v Aslan [2010] VSC 518. Her Honour's analysis [33 - 41] conveniently summarises recent developments regarding the offence.

The potted history ends with a quote from Whelan J in Aslan where it was said [at 21],

The Court of Appeal has recently made it very clear that the seriousness and prevalence of this type of offence mean that general deterrence and, where necessary, specific deterrence must be given primacy in the sentencing synthesis. General deterrence is very important here. At the risk of oversimplification, the courts must strive to send this message: glassing means jail.

Neave JA added [at 24],

There is no doubt that the imposition of a suspended sentence requires two distinct steps. As Kirby J said in Dinsdale v The Queen (2000) 202 CLR 321:

The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise. It follows that imposition of a suspended term of imprisonment should not be imposed as a ‘soft option’ when the court with the responsibility of sentencing is ‘not quite certain what to do’.

Neave JA found Giannoukas had strong mitigating factors that warranted the suspension of his sentence. Courts may need to send the message that glassing will mean jail, as Whelan J said, but that doesn't mean imprisonment will always be the appropriate penalty.

Getting AROUND

noreply@blogger.com (Dr Manhattan) — Tue, 04 Oct 2011 17:39:00 +0000

Hat tip to Lauren K at Legal Research Rescue, a useful (if occasional) source of information about new techniques for legal research. We've referred to her site here before, but not for a while. It has many quick tips to help the non-tech savvy find what they are looking for, like this simple one about Google.

Google is okay for rapidly getting to all kinds of information, including law. But, like all search engines, it's inclined to produce too many results or none (that you want, at least).

While there are a seemingless endless number of ways of trimming the number of relevant responses to a navigable figure, I've found Lauren's suggestion of using AROUND(*) increases the chances of finding what I'm looking for when all of the results are off-topic.

Entering,

negligent AROUND(5) criminal

will get you sites with negligent within 5 words to either side of the word criminal. And of course you can choose the proximity of words closer in or further out, or add extra AROUNDs, depending on the number of responses you're getting.