Wednesday, 8 April 2009

Preparing for the new Evidence Act

I wrote a few weeks ago about the impending introduction of the new uniform Evidence Act.

One of the problems will be knowing what merely codifies existing law, and what are the significant changes.

For those who want to grapple with this issue, a good starting point is the VLRC material (or the ALRC material).

The Discussion Paper and Final Report discuss significant areas, and also note the small variations between jurisdictions. (There are only a few.)

But the most useful document is Introduction the uniform Evidence Act: Significant Changes, just published by the Judicial College of Victoria.

The College also has flowcharts listed for separate download.

Saturday, 4 April 2009

Advocacy a life-long learning

Contrary to what you might hear from folks who rarely — if ever — venture into the court room, advocacy is a skill constantly refined but never perfected.

That's not just my view — though I firmly subscribe to it.

It's also the considered opinion of Chief Justice John Doyle AC of the South Australian Supreme Court.

It's interesting, reassuring and refreshing to hear him say even those whose sole career is appearing as advocates need to improve, and need to spend a lot of time at it.

I reckon that lends weight to our argument it takes at least a couple of years for any new practitioner to get up to speed in court.

Friday, 3 April 2009

Johnstone v Matheson is good law, says Court of Appeal

On 20 March 2009 the Victorian Court of Appeal refused an appeal request against Johnstone v Matheson [2008] VSC 567.

In November 2005, Senior Constable Scott Matheson charged Peter Johnstone with offences contrary to the Road Safety Act 1986 s 49(1)(b) and (f), alleging Johnstone drove with a blood-alcohol content of 0.091%

Johnstone was found guilty of both charges.

Over objection by the prosecutor, the magistrate dismissed the s 49(1)(f) charge. Relying on expert evidence, she read back the analysis of the s 49(1)(b) charge and then used s 50(1AB) of the Act to not cancel the defendant’s licence.

The DPP appealed on behalf of Matheson; Mr Johnstone cross-appealed.

In Johnstone v Matheson [2008] VSC 567 the DPP succeeded; Mr Johnstone did not.

The Supreme Court held it is not an abuse of process to try both charges together, applying Neill v County Court of Victoria (2003) 40 MVR 265. Nor does a magistrate have discretion to determine which charge should attract punishment. The offence contrary to s 49(1)(f) is the more serious, and if punishment must be imposed on only one charge, it must be the more serious one.

It seems to me that the doctrine against double punishment cannot be used to justify a choice by a sentencing court to dismiss the most serious charge of a group of two or more duly lain, duly prosecuted and duly proven charges where a mandatory penalty is prescribed for the most serious charge. To do so would not be an appropriate means of avoiding double jeopardy or double punishment. Rather, it would inappropriately shield the offender from the penalty prescribed by law for the single most serious offence committed: Johnstone v Matheson at [11] per Cavanough J.

The Victorian practice of the prosecutor withdrawing the s 49(1)(b) charge is not always necessary to avoid double-jeopardy, but it was appropriate in Johnstone's case.

Johnstone applied for leave to appeal.

On 20 March 2009 the Court of Appeal refused that application.


The barrister in this case, Peter Billings, tenaciously urges double-jeopardy and abuse-of-process arguments in s 49(1)(b) and (f) prosecutions.

The High Court held as far back Thompson v Byrne (1999) 169 CLR 141 at [24] it is not an abuse of process to proceed on both charges. The Victorian Court of Appeal endorsed that finding in DPP v Foster [1999] 2 VR 643 at [60].

In Neill v County Court (2003) 40 MVR 265, Mr Billings unsuccessfully argued prosecuting both charges was an abuse of process. The Supreme Court disagreed. Mr Billings also argued for his client that conviction of both offences infringed the prohibition against double-punishment (autrofois convict). Because the appeal was made before the County Court hearing concluded, the Supreme Court couldn't decide the point. But it did agree that double-punishment would occur if the driver was convicted of both charges and the two offences were based on the same facts, and the same acts or omissions of the driver.

And in Johnstone v Matheson [2008] VSC 567 the Supreme Court held the doctrine of double-punishment did not allow a court to avoid convicting on the more serious charge.

In Johnstone the Court didn't decide what should happen if two mandatory-penalty offences were proven (such as 49(1)(b) and (f)), but suggested at [18] there should be:

  • no punishment on the lesser offence, or
  • no penalty on one offence, chosen either by the court, or, arguably, the prosecutor.
I expect that means Mr Billings will continue to press the double-punishment argument for clients facing s 49(1)(b) and (f) charges, and there will be more litigation on the point!

Okay, so what is punishment?

One answer might be for us to seek a 'mere' finding of guilt on the lesser charge, and penalties imposed only for the more serious offence.

But, I think we should expect our opponents to make use of R v Sessions [1998] 2 VR 304; (1997) 95 A Crim R 151. In that case, Eames AJA at 323 considered a finding of guilt was a punishment within the scope of the doctrine of double-punishment. Hayes JA at 311 held that s 51 of the Interpretation of Legislation Act 1984 does not require a verdict of not-guilty on a second charge founded on the same act or omission. Batt JA didn't say anything about it, so there was no discernible ratio on that point in the Court's judgment.

I think Eames AJA's approach is probably the right one. Why?

Consider the current grounds for appeal by a defendant to the County Court. Under s 83 of the Magistrates' Court Act 1989, a person may appeal any sentencing order against that person, defined in s 3 to include any order made under Part 3 of the Sentencing Act 1991. That covers all sentencing orders under s 7 of the Sentencing Act.

That doesn't conclusively tell us if there's a difference or not between a verdict of guilt and imposition of penalty.

But, when the Criminal Procedure Act 2009 commences, there will be no doubt. Section 3 defines conviction:
conviction, in Chapters 6 and 8, includes a finding of guilt by a court, whether or not a conviction is recorded.
Section 254 in Chapter 6 provides that a person convicted — remember, that includes findings of guilt — of an offence by the Magistrates' Court in a criminal proceeding may appeal to the County Court.

So, I think that even if there's doubt now, when the new provisions commence operation it will be indisputable that a mere finding of guilt will be a penalty for the purposes of the double-punishment doctrine.

Refusal of leave creates no precedent

Occasionally, some barristers try to make use of written reasons refusing leave to appeal under s 17A(2) of the Supreme Court Act 1986 (Vic) or s 35 of the Judiciary Act 1903 (Cth).

All that happens in such cases is the applicant says, "Can I please appeal?" and the appeal court says, "No."

That is not a decision or judgment — even though the appeal court might write its reasons for refusing leave. Pedantically, the precedent value of a refusal of leave application is zip. (But, depending on what's written, we might pay attention to what courts of appeal and the High Court say in those reasons.)

That means the binding precedent is the original appeal decision — not the refusal of leave. But, the refusal of leave isn't an endorsement of the original decision either: Blackmore v Linton [1961] VR 374 at 380; Mihaljevic v Longyear (Australia) Pty Ltd (1985) 3 NSWLR 1 at 25; Sir Anthony Mason, 'Where now?' (1975) 49 Australian Law Journal 570 at 575.

Keep an eye out for this. The reasons for refusal might be helpful to a Court, but they have no precedent value.

Changes to warrant search powers

The Justice Legislation Amendment Bill 2009 will amend various search-warrant provisions:

  • Crimes Act s 92 stolen-goods and Drugs, Poisons & Controlled Substances Act s 81 search warrants will be able to specify vehicles, not just premises
  • Any member will be able to execute Drugs, Poisons & Controlled Substances Act search warrants. (The County Court recently held that only the member named in the warrant could execute it.)

The Bill is proposed to commence the day after Royal Assent, or 1 October 2009.

Operator-onus loophole soon to be closed

Only two days ago I posted about the recent judgment of Dolheguy v Becker [2009] VSC 106.

The short version of that case is: a Court can't suspend the licence of the operator of a speeding car (and probably for any operator-onus offence) unless the Prosecution satisfies the Court the operator was the actual driver.

Parliament is already moving to change this: clause 7 of the Road Legislation Amendment Bill 2009 will repeal s 28(6) of the Road Safety Act. The explanatory memorandum expressly says this is intended to overcome Dolheguy v Becker [2009] VSC 106.

Other changes proposed by this Bill:

  • a new Road Safety Act s 50AAK creating an offence of by-passing or disengaging an alcohol interlock and an offence to allow a person subject to an interlock condition to drive a vehicle without an interlock (this will affect employers who tell interlock-drivers to just drive or lose their job!)

  • lowering the threshold for s 51 instant-suspensions from 0.15% to 0.10% in certain cases

  • amending Road Safety Act s 55D(6) in response to a magistrates' dismissing a case last year because current oral fluid tests require licking rather than chewing or sucking as presently specified in the legislation

  • create a new s 61A prescribing drivers' duties following accidents involving vehicles that are not motor vehicles

  • s 73A creates an offence of obstructing, hindering, threatening, abusing or intimidating speed camera operators

  • Chain-of-responsibility obligations that create various offences for employers, operators, schedulers, contractors and consignors who engage truck drivers on conditions that will inevitably oblige them to speed or exceed mass-limits

The Bill is proposed to commence operation the day after Royal Assent, or else 1 October 2010.

Child pornography and honest and reasonable mistake of fact

Under s 67A of the Crimes Act, child pornography means:
a film, photograph, publication or computer game that describes or depicts a person who is, or appears to be, a minor engaging in sexual activity or depicted in an indecent sexual manner or context
The section provides that a minor is:
a person under the age of 18 years.
The age or apparent age of the person is a question of fact: Police v Kennedy (1998) 71 SASR 175.

Last year in R v Clarke (2008) 100 SASR 363; [2008] SASC 100, the Court of Criminal Appeal affirmed Kennedy, and decided the age of the person depicted in child pornography is a strict-liability element.

In Clarke, the accused was one of three people who procured two 14-year-old girls to produce pornography. Clarke honestly and reasonably believed two girls were over 16, the prescribed age for the South Australian provisions. (The trial judge, and the Court of Appeal, both noted the girls not only said they were over 16 but also looked it, though they were in fact under 16.)

Clarke's honest and reasonable belief was no defence to the charge.

[T]here will be cases when the age or appearance of the person involved in the pornographic material is such that there is room for uncertainty as to whether a child is involved. But one can understand that Parliament might enact legislation the effect of which is to punish those who do not realise that they are involving themselves in child pornography, even though they are. The reason for taking that approach would be that the suppression of child pornography is sufficiently important to punish not only risk takers (those who do not have an honest and reasonable belief that a child is not involved), but also those who do have an honest and reasonable belief that a child is not involved. The justification for punishing the latter group would be, on this hypothesis, that the suppression of the production of and trade in child pornography warrants such a stringent approach: R v Clarke at [39] per Doyle CJ

Thursday, 2 April 2009

Stalking intervention orders

For some unknown reason, the Stalking Intervention Orders Act 2008 is not part of the Family Violence Protection Act 2008.

I don't know about you, but I've heard very little about it. In fact, the first I heard of it was when a magistrate mentioned it a few weeks ago. (I'm dumbstruck we haven't heard more about it.)

The legislation is pretty straightforward. Those of us who dealt regularly with applications under the Crimes (Family Violence) Act 1987 will find the new legislation substantially replicates the previous procedure: it allows the Court to grant intervention orders if required to protect victims of stalking, distinct from victims of family violence.

Are there many applications under this legislation? I haven't seen any myself. Perhaps, given the nature of it, very few represented applications are being made. Perhaps a side-effect of a separate Act is reduced stalking applications?

Wednesday, 1 April 2009

Operator-onus offences and licence suspension

Last week in Dolheguy v Becker [2009] VSC 106 the Supreme Court decided a Court was not required to suspend the licence of an owner of a speeding car if it wasn't satisfied he was the actual driver.

Barrister Sean Hardy has already successfully used this judgment at Dandenong.

The facts

On 4 July 2006 a speed camera snapped Mr Becker's car doing 136 km/h in a 100 km/h zone.

Section 66 of the Road Safety Act designates certain offences as owner-onus (later amended to operator-onus offences), including speeding.

On 4 July 2006, section 66 read:

66 Offences detected by a photographic detection device

(1) If —
(a) a prescribed offence occurs; and

(b) the offence is detected by a prescribed detection device or by a prescribed process —
the person who at the time of the occurrence of the offence is the owner of the motor vehicle ... involved in the offence is guilty of an offence as if that person were the driver of the motor vehicle ... at the time of the offence unless the court is satisfied that the motor vehicle ... was a stolen motor vehicle ... or that the number plates displayed on the motor vehicle ... were stolen.


(3) Notwithstanding anything in sub-section (1) ... an owner of a motor vehicle ... is not by virtue of sub-section (1) guilty of an offence if —
(a) before or within 28 days after the service on the owner of a summons in respect of the offence, the owner supplies to an enforcement official in a sworn statement in writing or in a statutory declaration the name and address of the person who was driving the motor vehicle ... at the relevant time; ...

(5) In this section, “owner” means —
(a) the person in whose name the motor vehicle ... is registered at the time of the offence ...

(6) For the avoidance of doubt, the owner of a motor vehicle ... who, by virtue of sub-section (1), is taken to be guilty of an offence is liable to the same penalties and subject to the same consequences to which he or she would have been liable and subject had he or she been the actual driver at the time of the occurrence of the offence.
(Section 66 was later amended, effective from 1 July 2007, but the amended section only applies to offences committed after 1 July 2007.)

Schedule 5 of the Road Safety Act provides that speeding between 35 and 45 km/h over the speed limit requires a minimum of 6 months licence suspension for the driver.

Section 28(1) of the Road Safety Act requires a Court to suspend the licence of a speeding driver for the minimum period of time specified in Schedule 5.

The issue

But...s 28(6) provides:
(6) Subsection (1) does not apply to an offence to which section 66 applies unless the court is satisfied that the person convicted or found guilty of the offence was the actual driver of the motor vehicle at the time of the offence.
Both the Magistrates' and County Court accepted Mr Becker's argument that s 28(6) meant the Court was not required to suspend his licence unless satisfied he was the actual driver.

The prosecution appealed to the Supreme Court.

The prosecution lost!

The reasoning

You'll find it easier to just read what the Supreme Court said, rather than read my paraphrase of it. Ultimately, I think it boils down to this:

The effect of s 28(6) is that where an owner of a vehicle is convicted of a speeding offence on the basis of s 66(1), the owner’s licence cannot be suspended under s 28(1) unless the prosecution establishes that the owner was the actual driver: Dolheguy v Becker [2009] VSC 106 at [23].

As I mentioned above, s 66 was amended. Similar provisions imposing operator-liability are now found in s 84BC of the Act.

I initially thought s 84BC(4) would overcome the effect of Dolheguy v Becker. But after re-reading the decision, I think this provision is substantially the same as the old sub-s 66(1) and (6). And that means the reasoning in Dolheguy v Becker applies to our current cases.


I came across some information a colleague gave me about this topic, many moons ago.

Section 66(6) of the Road Safety Act was inserted by the Transport Legislation (Amendment) Act 2004 s 32.

The explanatory memorandum explains its purpose:

Clause 32 inserts a new section 66(6) in the Roads Safety Act 1986. This is one of the amendments that arises out of the decision referred to in Parson's Case, which is referred to in the notes to clause 27. The new section 66(6) clarifies that the registered operator of a motor vehicle is liable for penalties and other consequences (including demerit points) flowing from offences detected by photographic detection devices and involving a vehicle registered in the operator's name. This reflects the "owner onus" principle, namely, that the registered operator of a vehicle must take full responsibility for a traffic camera, parking or tolling offence involving his or her vehicle unless and until he or she nominates the actual driver.

That case was Roads Corporation v Magistrates' Court; Parsons & Holloway (2004) 42 MVR 105; [2004] VSC 384.

You might find it a little difficult to read. I know I did. Even the presiding judge noted the complexity of the legislative provisions involved.

[38] The legislation and regulations are extremely complex and difficult to understand and apply. The odd anomaly is to be expected. It is difficult to discern and articulate all the underlying purposes and objectives of the legislation. I venture to suggest, however, that the demerit system was intended to discourage drivers from breaching the law but was also intended to punish and remove from the roads those who by their conduct have incurred 12 demerit points in the prescribed period. It is also reasonably clear that various devices have been employed to achieve the efficiencies required because of the sheer volume of potential infringements and court business such as the photographic detection system and the PERIN system. But efficiency is a means to an end, not an end in itself and those efficient systems will on occasions result in injustices. The suspension of licences, in particular, can be a very serious matter for the individuals concerned. Ultimately, however, it is against the actual driver of the vehicle committing the offences under the Act that it is intended to operate...(emphasis added)

So it seems more likely that s 66(6) — and by implication, it's current equivalent in s 84BC — was intended to attribute liability to owners.

But Parsons considered licence suspensions from accrued demerit points or speed-camera fines. Dolheguy v Becker dealt with licence suspension imposed by a court under s 28.

Even though Parsons wasn't cited in Dolheguy v Becker, I don't think it would have made any difference, because s 28(6) is quite specific to court-ordered suspensions. In any event, Parliament intends amending the legislation again to overcome Dolheguy v Becker.