Monday, 11 May 2009

Subpoena of documents

The Chief Magistrate's Practice Direction No 5 of 2005 requires that summonses (or subpoenas) for documents must be raised on the contest-mention date. (This doesn't apply to disclosure required by Schedule 2 Clause 1A of the Magistrates Court Act 1989.)

Sometimes, the material sought is handed over voluntarily. In other cases, after discussion between the parties it's clear the documents sought won't help the accused, and the subpoena isn't pursued.

If a subpoena is issued after contest-mention, the Practice Notice requires that it's returnable at a special-mention before the contested hearing date, unless the Court orders otherwise. This is to avoid time wasting time at the hearing, from preliminary arguments about the release of documents, and then waiting as Counsel inspects the documents while everyone else twiddles their thumbs.

The Criminal Procedure Act 2009 commences operation on 1 October 2009. Sections 41 and 42 will require the prosecution to disclose a slightly greater range of material than at present, and explicitly impose a continuing obligation of disclosure.

Section 363 will permit the prosecution to withhold material when required or permitted by law, but otherwise doesn't derogate from the general disclosure obligations.

These provisions might reduce the use of subpoenas issued by accused people, by encouraging the prosecution to engage in automatic and ongoing disclosure, though s 336 will provide for their use under the new Act.

Wednesday, 6 May 2009


Edit: The 5th edition of Freckelton's Indictable Offences in Victoria is now out. A splash about it cam be found here.

A charge is bad for duplicity if there is more than one offence alleged in the one charge.

The law doesn't allow duplicity because an accused person has the right to know what is alleged against them. A duplicitous charge is not a nullity (though some would like to think so!). The remedy to duplicity is to require the prosecution to elect the charge it wants to proceed with. If the prosecutor refuses to elect then the court has discretion to dismiss the charge: Walsh v Tattersall (1996) 188 CLR 177.

In Rixon v Thompson [2009] VSCA 84, the accused was convicted in the Magistrates' Court of one charge of indecent assault. The prosecution case alleged several incidents. Each incident could have been the subject of its own charge. The accused unsuccessfully appealed to the Supreme Court, and then to the Court of Appeal.

Several points came out of the combined judgment of Maxwell P, Weinberg JA and Kyrou AJA:
  • deciding upon duplicity is not a discretionary decision. Once a court considers a charge duplicitous, the law obliges the court to require the prosecution to elect the charge to proceed
  • the prohibition on duplicity is as strict in the Magistrates' Court as in any other court
  • duplicity isn't decided by considering only if there's unfairness to the accused. Even if the accused is provided a detailed statement specifying the acts alleged, if the charge is 'patently duplicitous', the prosecution must be required to elect
  • but, there are exceptions to the rule against duplicity, among them the single (or composite) transaction analysis outlined by Ashley JA in R v Heaney [2009] VSCA 74

In Heaney's case, a conviction for stabbing was challenged as duplicitous. Heaney was also charged with one count of attempted murder. The evidence alleged two thrusts with the knife. The (differently composed) Court of Appeal rejected counsel's submission that the jury's verdict was bad for duplicity, at [28] - [93].

If you have access to Ian Freckelton's Indictable Offences Victoria, I also recommend his helpful commentary about duplicity and the presentment rules. He covers scenarios (from memory) such as: five punches in quick succession — one assault, or five? A man steals 4 bags of wheat, one at a time, over half an hour — one theft or four? (Sadly, the Fourth Edition is out of print, and the Fifth Edition is still pending.)

To come back to Rixon v Thompson, in the end the Court of Appeal decided the single charge was not duplicitous. On one view, there were multiple discrete offences. Alternatively, there was one continuous criminal episode over several hours. Viewed that way, with the particulars provided to the accused, the Court considered the Heaney exception of 'single transaction analysis' applied. That meant the charge was valid, and Rixon's appeal was dismissed.

Tuesday, 5 May 2009

Federal Magistrates Court to close

The Federal Magistrates Court of Australia is to be abolished under a restructure plan announced by the Commonwealth Attorney-General Rob McClelland today.

The Court was established in 1999 to ease the workloads of the Federal Court and Family Court of Australia. It currently hears the less serious cases in civil litigation, and deals with almost all divorce applications. Due to state courts being vested with Commonwealth jurisdiction, the Federal Magistrates Court rarely hears criminal cases.

The abolition of the Court had been expected for a while, after ongoing criticism about expense, inefficiency and duplication.

Circumstantial evidence

From time to time I come across a quote that expresses a point perfectly, but I know it will never see the light of day again. Even though it is a High Court decision, it's a throwaway remark from a dissenting judge which does nothing but re-state the existing law.

This is the case with the following statement from AK v The State of Western Australia [2008] HCA 8 in the joint judgment of Gleeson CJ and Keiffel J:

Circumstantial evidence is sometimes spoken of as though it were inherently less compelling than direct testimony. Often, especially in identification cases, the truth is the opposite. Undisputed objective circumstances may be more reliable than direct testimony.

In the criminal jurisdiction in particular, we always hunger for an eyewitness. We love to hear a vivid description of events from someone who was there - or watch that same account being cut to ribbons in skilled cross-examination. It makes for a more exciting spectacle than, say, the methodical presentation of phone records.

But it is not always more probative.

The case of Hathaway v The State of NSW is a perfect example. The case, which was a civil suit, essentially boiled down to the conflicting stories of two men. One must have been lying; the other telling the truth. Each had every reason to lie. Both men had been charged with assaulting the other and given evidence against the other at trial. Both had been acquitted as the matter against them had been not proven beyond reasonable doubt. As one of the men was a police officer, both had also given evidence at a Police Integrity Commission inquiry.

On a civil action, a judge sitting alone doesn't have the luxury of retreating into reasonable doubt. She or he has to make a finding on the balance of probabilities, and unlike a jury is required to state the lawful, logical process used to arrive at their conclusion. Some presumptions will run the plaintiff's way, others in the defendant's. The judge is required to make findings that they know will greatly displease one of the parties, and potentially have far-reaching consequences.

Faced with the only relevant witnesses having given and re-given their evidence a number of times, Simpson J was obliged to discard virtually any inference that could be drawn from the presentation of their evidence. Instead, she turned her attention to the objective, undeniable facts of the case and systematically drew from them what inferences she could.

If you have the time, I highly recommend the case. The way it is told makes it a page-turner. While the conclusions Simpson J reaches are uncomfortable, it would be hard to argue that she did not make the correct decision.

Monday, 4 May 2009

Facilities at Melbourne Magistrates' Court

The current Magistrates' Court building in Melbourne opened its doors back in 1995. While it initially looked streamlined and modern in comparison with the other buildings on the corner of William and Lonsdale, like any public building it has now begun to show its age.

Some court users aren't happy about the inside of the building. Summary legal practice has evolved considerably in the last two decades. Laws and procedures can change overnight, but the layout of a building is more difficult to change on-the-fly.

The Law Institute of Victoria recently wrote to the Chief Magistrate about the lack of facilities at Melbourne Magistrates' Court. President Danny Barlow described pre-court conferences regularly occurring in corridors because of the lack of conference rooms.

The Criminal Procedure Act 2009 emphasises pre-court conferences, and in some instances, mandates them. The demand for appropriate space in court buildings will only increase.

Innocent act?

In DPP v Kailahi (2008) 50 MVR 410; [2008] NSWSC 752, the accused was charged with disqualified driving. When the police pulled her over she told them (and the court accepted) she believed she was unlicensed (rather than disqualified).

The magistrate dismissed the charge.

The prosecution appealed.

The Supreme Court ruled the claim of honest and reasonable mistake wasn't available to her.

I've posted about honest and reasonable mistake a number of times in the last couple of weeks. I suppose the point I'm trying to make is the claim is not the get-out-of-jail-free card it's sometimes claimed to be for strict-liability offences.

Proudman v Dayman (1941) 67 CLR 536 tells us that a person accused of a criminal charge should be found not guilty if they honestly and reasonably believed in a state of facts that — had those facts actually existed — would have made their acts innocent when they did the alleged act.

There are hurdles the accused must jump if their claim is to succeed. The evidentiary burden isn't hard to meet (CTM v The Queen). But if the accused fails the threshold legal test, the claim of honest and reasonable mistake inevitably fails.

A claim of honest and reasonable mistake must be:
  • honest
  • reasonable
  • a positive belief
  • in a state of facts
  • which, if true, would make their acts innocent

A claim of honest and reasonable mistake is not truly a defence, though it's often described as one: He Kaw Teh v The Queen (1985) 157 CLR 523. It's really an assertion that at the time of the offence the accused didn't have the required intent. In the case of an offence of strict liability, it's no excuse to prove that an accused lacked the intent to commit the offence charged but instead intended to committing some other offence.

In DPP v Kailahi (2008) 50 MVR 410; [2008] NSWSC 752 Rothman J said:

[8] The only other matter that requires attention is the question of whether there exists an honest and reasonable mistake of fact. That, too, is the subject of discussion in Vlahos and He Kaw Teh. In He Kaw Teh, the High Court clarified that, in statutory offences containing no mental element as an ingredient of the offence, except in the case of absolute liability, honest and reasonable mistake survives as a basis of exculpation. It is, notwithstanding common usage, strictly not a defence. Once raised by the accused upon evidence adduced, it is for the prosecuting authority to dispel any doubt that may have been raised by the evidence that the acts performed were the result of an honest and reasonable mistake.

[9] However, that does not mean that the mere fact that, in this case, the driver was unaware of the disqualification, is sufficient to raise reasonable and honest mistake. Mens rea, if it were to exist, for the offence of driving whilst disqualified, would be satisfied by an intention to do an act prohibited by the legislature. In this case, the prohibition is upon driving if, as a matter of fact, the driver be disqualified.

[10] However, the defence of honest and reasonable mistake applies only in circumstances where, were the facts believed by the accused to be true, the accused would have been guilty of no offence: Bergin v Stack [1953] HCA 53; (1953) 88 CLR 248 (per Fullagar J).

[11] In the instant proceedings, even if the Crown were required to negative honest and reasonable mistake as to the existence of a disqualification, such a requirement would only apply in circumstances where, but for the mistake of fact, Ms Kailahi would be entitled to drive. As Ms Kailahi concedes, and as is clear from the conversation with the police officer, Ms Kailahi was aware that she was unlicensed and not permitted to drive. As a consequence, the “mistake of fact”, if it be one, is a mistake as to which offence was being committed.

[12] In those circumstances, it is unnecessary for the prosecuting authority to negative or preclude the existence of such a mistake, however reasonable or honest it be.

How far does this principle extend? For example, does it stop an accused asserting an honest and reasonable mistake if they were notified of a licence suspension by mail, but had failed to notify VicRoads of a change of residential address? (Itself a minor offence under the Road Rules.)

Time will tell...

Saturday, 2 May 2009

Doli incapax abolished in the UK

The House of Lords last week held in R v JTB [2009] UKHL 20 that s 34 of the Crime and Disorder Act 1998 abolished the defence as well as the presumption of doli incapax.

Doli incapax (Latin for 'incapable of deceit') is the legal doctrine that children can't commit a crime because they don't know the difference between right and wrong, and so can't form the mens rea (or criminal intent) required to prove guilt.

The doctrine can operate in two ways.

First, it can presume that children between specified ages are doli incapax. The common law on this point considered that the prosecution must prove the child knew their acts were 'seriously wrong' to overcome the presumption. That would mean the child was then considered doli capax.

Second, the doctrine may operate as a defence, if the child proved in fact they didn't know right from wrong and so couldn't commit a crime alleged against them. (The meaning of child varies over time and jurisdiction.) The child would not need to rely on the defence unless the prosecution first rebutted the presumption.

After criticism of the doctrine in C (a minor) v DPP [1996] AC 1, the United Kingdom abolished the presumption with s 34 of the Crime and Disorder Act 1998.

The doctrine was accepted around the 18th century. At that time, all offences were indictable and divided only into felonies (punishable by death) and misdemeanours (which weren't punishable by death). There were no strict or absolute liability offences then, and no summary courts. There doesn't seem to be any jurisprudence on doli incapax and offences that don't require a mental element. Does this mean children of any age can commit strict and absolute-liability offences? Perhaps there could have been an argument about this under the common law, but I think legislation removed any possibility of that here.

In Victoria s 344 of the Children, Youth and Families Act 2005 provides that a child under 10 cannot commit a crime. Between 10 - 14, the presumption applies: R v ALH (2003) 6 VR 276.

In ALH the Victorian Court of Appeal also thought there were problems were the doctrine, but unlike the English House of Lords, didn't argue for its abolition. Instead, Victoria adopted a different approach: proving the charge alleged against the child could also prove knowledge it was seriously wrong.

That results in a sliding scale of offence seriousness versus the age of the child. The more serious the offence, the more likely the child knew it was wrong. The older the child, the less serious the offence need be for the child to know it was wrong. The way I think that works in practice is like this...

Consider 10-year-old Timmy. He accidentally kicks his football into the back yard of old Mrs Gruff, the terror of all the kids in the neighbourhood. He knows she'll scold him if he asks to get his ball, so he jumps the back fence to get it. She calls the police, and they find Timmy in the back yard. Potentially, he trespassed in her backyard. Would most 10-year-olds realise going into someone's backyard to get their footy without permission might be a criminal offence? I reckon they probably wouldn't. They might know they should ask for permission first — but that's not the same thing. Rebutting the presumption of doli incapax will be difficult in this example.

Let's imagine Timmy was throwing rocks at and breaking Mrs Gruff's windows. A more serious potential offence. So, it's more likely — even at 10-years — that Timmy knows it's 'seriously wrong' to do it. In that case, rebutting the presumption won't be as difficult, and the nature of the offence itself (assuming it's proved) tends to suggest Timmy knew it was wrong.

And if Timmy instead decided to burn Mrs Gruff's house down, I think most of us would expect him to know that is 'seriously wrong' — a criminal offence.

At the other end of the scale, a 13-year-and-350-days-old child would be far more likely to know that trespassing is a criminal offence or 'seriously wrong'. Though the prosecution would still need to establish that additional element, it would not be as difficult as for 10-year-old Timmy.

Friday, 1 May 2009

Determining proper venue

An issue particular to the summary jurisdiction is proper venue. The term is defined at s 3 of the Magistrates' Court Act 1989.

proper venue —
a) subject to paragraphs (c) and (e), in relation to a criminal proceeding or a class of criminal proceeding, means the mention court that has been nominated by the Chief Magistrate under section 5A for the proceeding or class of proceeding, but in the absence of any such nomination is the mention court that is nearest to—
i) the place where the offence is alleged to have been committed; or
ii) the place of residence of the defendant;

Gahan v Frahm[1999] VSC 410 is one case dealing with proper venue. It decided that if a charge is filed at a venue other than the proper venue, the Court doesn't lack jurisdiction. Similarly, if the accused is summonsed to a venue that isn't the proper venue, the best they can hope for is an adjournment (perhaps with costs) to the proper venue.

When the Criminal Procedure Act 2009 commences operation, ss 6 & 11 will explicitly provide that charges can be filed at any venue, but should be heard at the closest venue to the offence location or accused's address.

Until then, we still need to concern ourselves with the proper venue for filing and hearing charges.

A really useful feature on the recently upgraded Magistrates' Court of Victoria website is the Proper Venue page.

Select any suburb or town in Victoria (by name or postcode) and it'll show you the relevant proper venue the Magistrates' Court. (I haven't found any glitches in the software yet...touch wood.)

I'm not sure if it would be the last word in a dispute about proper venue, but it beats by a mile getting out a copy of the Melway and a ruler.