Friday, 31 July 2009

Lap dance causes confusion

Further Edit: You may be interested to learn that this post is one of the most frequently viewed pages on this site. Whether that's a reflection on the readership of this blog, or just to the internet as a whole, is impossible to determine.

Edit: The case referred to has now been posted at AustLII, as Hayes v Surfers Paradise Rock and Roll Cafe [2009] QDC 214.

Another good re-post from Lawyers Weekly this week, suggesting a local authority for what we said here back in April: Wikipedia ain't evidence!

I can't find the case itself, but the article in a Queensland online paper contains enough detail that it might be genuine.

According to the story, a magistrate searching for the definition of lap dance in a licensing matter sought assistance from secondary sources. When the Oxford dictionary proved no help, he obtained a definition on-line. On appeal, the District Court is said to have ruled that the magistrate was wrong to rely upon the definition without allowing the parties to make submissions on the point

It wasn't that the source was considered inherently unreliable, though. "The failure to permit the parties any opportunity ... with respect to the Wiktionary entry as to the meaning of 'lap dance' must be seen as a denial of natural justice," Newton J reportedly said.

"Off the record" admissions

It's not uncommon for a suspect to disclose their involvement in an offence to investigators "off the record", but protest their innocence or make no comment when formally interviewed.

Why someone would do this is difficult to understand. It would appear far more logical for a person to approach their dealings with police with a particular strategy in mind - either to answer all questions truthfully, or to make no comment, or to present a particular version of events - and stick to that strategy throughout. But there are a sufficient number of recorded cases to confirm that these conversations do happen.

Woon v R (1964) 109 CLR 529 is an example of a case where the accused remained undecided which strategy to adopt during the formal interview itself, changing his mind repeatedly and ending up looking guilty and evasive as a result. In R v Dupas [2001] VSCA 109 the accused declined to repeat in the interview what he had said while being driven to a police station.

In Em v The Queen (2007) 232 CLR 67, the accused had indicated that he would make no comment to any questioning that was tape recorded. Several weeks after the formal recorded interview where he made no comment, police were granted warrants to secretly tape-record conversations with the accused. He knew he was talking to police and was advised that what he said could be used in evidence, but wasn't told he was being recorded. The Supreme Court allowed part of this recording to be admitted, a decision the High Court later upheld.

The High Court had earlier decided in R v Swaffield; Pavic v The Queen (1998)192 CLR 159 that courts have a broad discretion to reject evidence on the ground that unfair prejudice would result from its admission into evidence. Likewise, the effect of the impugned conduct of police is one of a number of factors to be considered in deciding whether judicial discretion to refuse to admit evidence will be exercised (though the undesirability of the conduct itself is the subject of separate consideration under the public policy discretion). In Pavic's case, the trial judge admitted the evidence. The High Court upheld that decision.

The case of Carr v Western Australia (2007) 232 CLR 107 is a recent variation on this theme.

The accused denied involvment in an armed robbery when interviewed. However, when later discussing the robbery with police in a holding area of the police station, he said things that clearly implicated himself. The accused was unaware that the area was video- and audio-recorded when he volunteered these statements. He was convicted, and while not disputing the truth of the admissions he made, it was argued on appeal that he made the statements implicating himself to, "frustrate", "tease" and "piss off" the investigators, not expecting the evidence would be used against him.

The High Court rejected the notion that an accused must consent to being videotaped before admissions could be considered voluntary.

Although the Court's reasoning centred around the interpretatation of Western Australian legislation (WA hasn't yet adopted a Uniform Evidence Act), parellels can be drawn between WA laws and those in Victoria. As Keith Chapple SC noted in his summary of the case in the NSW Bar News:

The whole circumstances of the case are a cautionary tale for any counsel offering advice to a suspect who is ‘assisting with enquiries.’ If a client is exercising a right to silence it should be constant when in the company of the police.

Thursday, 30 July 2009

Jury directions report released

The VLRC report into jury directions I posted about a couple of weeks ago was tabled in Parliament yesterday. (There was no mention of video replays in cases of erroneous jury charges. Maybe next time.)

As predicted, the VLRC recommends legislative change that will require the leave of the Court of Appeal before consideration of an appeal founded on jury directions, if the point wasn't raised at the trial.

There are a number of other recommendations for the conduct of jury trials. They include:

  • The development of a document (referred to as an Outline of Charges) produced by the prosecution, approved by the court and to be provided to juries to assist in them in identifying the key areas of dispute in the case;
  • The simplification of evidentiary directions, particularly those in sex offence cases;
  • A general (rather than specific) warning about consciousness of guilt evidence - here referred to as post-offence conduct;
  • Consideration of possible changes to the directions given in relation to propensity (what the new Evidence Act calls tendency evidence);
  • The suggested use of a Jury Guide, a written document prepared by the judge which asks the jury a series of questions, tailored to the specific case and designed to assist them in making the intermediate findings of fact leading to their eventual verdict;
  • The creation of a specialist Public Defenders office similar to the one in NSW.
The VLRC proposes abolishing all the existing common law regarding jury directions, and codifying these rules into one Act.

The Government also intends to release a discussion paper outlining potential reform to the way that jurors are selected before the end of the year.

Wednesday, 29 July 2009

Walker v Walker

Edit: Our statistics show that this post continues to be accessed in far higher numbers than I would have thought when I wrote it. There's obviously interest in how this rule will be applied in the future.

Below I wrote, "Whether the statement then becomes evidence of the truth of its contents or merely clarification of the evidence given then becomes the issue." Since then, having read Papakosmas v R and associated cases, I incline to the view that once admitted the evidence can be used for all sorts of purposes, not just to assess credit, subject to directions the trial judge gives.

I've heard it said that, "under the new Evidence Act 2008 the rule in Walker v Walker is dead."

As a way of summarising a fairly obscure piece of evidentiary trial procedure, that's fine. But if practitioners don't recognise that there are situations when the tender of a document can be forced other than when its production is called for in cross-examination, there might be some red faces in the new year.

Maybe it would be more accurate to say, "The rule in Walker v Walker is dead, but the rule in Hatziparadissis continues to apply".

Walker v Walker

In 1937, the High Court decided an appeal originating in the Magistrates' Court of an application for maintenance by a deserted wife. The ruling of the Court was that a document called for and inspected by opposing counsel during the running of the case became admissible evidence that the magistrate was entitled to rely on for the truth of its contents.

Though it's been accepted as the entrenched position at law, some have railed against the rule in Walker v Walker as being an unfair inhibition on disclosure. If a party were aware of the existence of a document prior to hearing and sought its production from a party through normal pre-hearing disclosure, they would be under no obligation to tender it at trial no matter how relevant or probative it might be. Why then, if a party only becomes aware of the existence of a document whilst cross-examining a witness, should the cross-examiner be prevented from looking at the document for fear of their opponent forcing its tender?

(The other traditional argument, that the forced tender represents a departure from the rigid rules surrounding the proving of documents, wouldn't have much force now. The Evidence Act 2008 abolishes the archaic system of rules contained in the Evidence Act 1958 and allows courts to use common sense when considering issues of accuracy and provenance of documents, particularly in civil proceedings).

The rule in Walker v Walker is rarely invoked, and has never seriously been challenged at criminal appellate level in Victoria. Even so, the Evidence Act 2008 (perhaps as much for consistency across UEA jurisdictions as anything else) contains s 35, which reads:

35. Effect of calling for production of documents

(1) A party is not to be required to tender a document only because the party, whether under this Act or otherwise-

(a) called for the document to be produced to the party; or

(b) inspected it when it was so produced.

(2) The party who produces a document so called for is not entitled to tender it only because the party to whom it was produced, or who inspected it, fails to tender it.

The explanatory memorandum in relation to this section reads:

Section 35 provides that a party who calls for another party's document is not automatically required to tender it. Similarly, the party who produces the document is not automatically entitled to tender it if the calling party does not tender it.

This clause abolishes the rule in Walker v Walker. Under that rule, the party called on to produce a document may require the party who called for and inspected the document to then tender the document. This means that a document that may otherwise be inadmissible could be admitted under this rule. This clause removes the automatic right of either party to tender a document or require the other party to tender a document.

The clause does not, however, preclude the tendering and admission of such a document if it is otherwise relevant and admissible.

R v Harrison

In R v Harrison (1967) VR 72, at the conclusion of an incest trial an accused argued that he had already entered a plea of guilty to the offence the jury had found him guilty of, and had been acquitted of the charge he believed he was contesting. To sort out the confusion, the trial judge recalled the police informant to give evidence and admitted into evidence the original police brief which was marked by him with the charges that guilty pleas had been entered to.

The Court of Appeal ruled that this should not have occurred: "the defence did not call for the documents, did not inspect them or make any use of them, or cross-examine the witness in respect of their contents."

Hatziparridissis v GFC

In the civil case of Hatziparadissis v G F C (Manufacturing) Pty Ltd [1978] VR 181, a psychiatrist was cross-examined at length. He was questioned about notes he had referred to in order to assist his memory in evidence-in-chief, but was also asked questions by the cross-examiner about portions of the documents which he had not referred to.

After the psychiatrist had left the witness box, the party calling him made application that the notes must then be tendered. Although Harris J refused the application, it was on the basis that the witness had already left the witness box (citing the English decision of Senat v Senat (1965) All ER 505 and other sources). Had the application been made during - or at the conclusion - of the witness's evidence, all indications are the Court's ruling would have gone the other way.

The precedent that a party could force the tender of a statement cross-examined on - not called for and inspected, as in Walker's case - was established.

R v Vella

In R v Vella, at a criminal trial a security guard named Yeoman was cross-examined at length about events he claimed to have seen. Segments of the statement he had made the day after the incident were read to him by counsel. On the appeal, Bongiorno JA summarised the cross-examination [at 26]:

26 Prior to commencing cross-examination of Yeoman on his statement defence counsel at the applicant’s trial elicited from him that he had read the statement prior to giving evidence and obtained his assent to the proposition that that reading had served to refresh his memory of the events described in it. Counsel did not explore the extent to which he had done so or any other matters going to his use of the document. However, later in the cross-examination Yeoman qualified his evidence that he had read the whole statement by saying that he had skipped at least one section of it and later still said that in looking at the statement that day ". . . the main things I looked at were times, refreshing my memory on the times, the dates and that sort of stuff." The cross-examiner did not challenge these qualifications, being apparently content to rely upon the general assent he had elicited from the witness at the beginning of his cross-examination.

27 Counsel’s cross-examination of Yeoman covered almost the whole of his statement. It was a cross-examination which put at risk the compulsory tender of that statement once Yeoman qualified his earlier evidence as to his reading of it. To protect the statement from the risk of compulsory tender, cross-examining counsel had to confine his questions to those parts of the document which Yeoman had used to refresh his memory. By not ascertaining, with appropriate precision, the extent of Yeoman’s use of the statement the cross-examiner ventured into dangerous territory. If he did cross examine beyond the areas of the document which Yeoman had used to refresh his memory it became relevant and admissible at the option of the prosecutor, subject to the trial judge’s discretion, within the principles expounded in Senat and Harrison and other authorities dealing with this topic.

The common law referred to overlaps with the provisions at s 36 of the Evidence Act 1958. That provision is being repealed with the introduction of the new Evidence Act. The Court of Appeal found s 36 was not the basis of the admissibility of the parts of a statement not used to refresh memory; the common law rule was.

29 Section 36 of the Evidence Act 1958 is a provision relating to the use that can be made of a witness’s prior out-of-court statement by a cross-examiner particularly for the purpose of contradicting the witness by that statement and, by virtue of the proviso to the section, by the Court itself. Its purpose was to remove a number of inconvenient consequences of the former common law rule derived from The Queen’s Case. The exercise undertaken by the prosecutor in this case was not, in truth, concerned with s. 36 at all. He was invoking the common law rule derived from Gregory v Tavernor[17] referred to by the Full Court in R v Harrison and by Sir Jocelyn Simon in Senat v Senat.

The Court of Appeal concluded:

39 The effect of these cases and, in particular, the High Court cases of Walker and Barnes, is that, at least where a document is compulsorily tendered because it has been called for and inspected, the probative value of the material in that document must be dealt with by the Court as a matter of fact and such weight must be given to it as the circumstances warrant. It is "evidence in the case." It is difficult to distinguish this situation from the situation in which a document is compulsorily tendered not because it has been called for but because a cross-examiner has cross examined on it outside those matters in it which have been used to refresh the witness’s memory. Doubtless, in many cases, such a document will do no more than confirm the evidence of the witness being cross-examined with respect to some or all of that evidence. If that is what it does the proper use of it would be to bolster the witness’s credit in a permissible way.

Being a recent decision of the Court of Appeal, it's likely that R v Vella is the most accurate statement of the existing common law in Victoria on this issue.

Section 45

Section 45 of the Evidence Act 2008 refers to the admissibility of documents used in cross-examination:

45. Production of documents

(1) This section applies if a party is cross-examining or has cross-examined a witness about-

(a) a prior inconsistent statement alleged to have been made by the witness that is recorded in a document; or

(b) a previous representation alleged to have been made by another person that is recorded in a document.

(2) If the court so orders or if another party so requires, the party must produce-

(a) the document; or

(b) such evidence of the contents of the document as is available to the party-

to the court or to that other party.

(3) The court may-

(a) examine a document or evidence that has been so produced; and

(b) give directions as to its use; and

(c) admit it even if it has not been tendered by a party.

(4) Subsection (3) does not permit the court to admit a document or evidence that is not admissible because of Chapter 3.

(5) The mere production of a document to a witness who is being cross-examined does not give rise to a requirement that the cross-examiner tender the document.

Sub-s (5) states that mere production does not give rise to the obligation to tender. In this sense it's not different to the existing law on cross-examination on an inadmissible document. Arguably, the ability to force tender would still arise where cross-examination on the document occurs, and it has not been used to refresh memory.

In my view, this interpretation is consistent with the underlying rationale of the rule in Hatziparadissis, which was to allow a trier of fact the opportunity to review the material on which cross-examination was based. It's not hard to structure questions in a cross-examination (either deliberately or inadvertently) that create a misleading impression of the contents of a document. While such matters can be dealt with by re-examination, it seems a practical and fair approach to allow the Court to inspect the document and use it to place the questions and answers given in their correct context. Whether the statement then becomes evidence of the truth of its contents or merely clarification of the evidence given then becomes the issue.

In states where the UEA has been in operation for some time, the removal of Walker v Walker has not affected the consideration given to Hatziparadissis: Assof v Skalkos [1999] NSWSC 1334.

Tuesday, 28 July 2009

Overpaid judges

The Age today reported that Victorian judicial officers have been overpaid as the result of, funnily enough, bad legal advice.

Magistrates, judges and justices have reportedly been approached and asked to repay the money mistakenly paid to them.

The total over-payment is estimated to be just under half a million dollars.

The sexual context of child pornography

DPP v Annetts considers an important issue in child pornography cases. A case stated was recently placed before the NSW Court of Criminal Appeal that required interpretation of the phrase in a sexual context.

Similar wording is also used in Victorian statute, at s 67A Crimes Act 1958:

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 accused in Annetts' case had been in possession of a video of boys dressing and undressing in a changing room, and was alleged to have made the recording. (If these events had occurred in Victoria, charges under s 41B of the Summary Offence Act 1966 would presumably also have been before the Court).

There were no sex acts on the video. The District Court judge excluded from his consideration a number of factors the prosecution submitted he ought to consider in determining whether the video depicted children in a sexual context [at 5]:
  • the way the photos were taken - they were not taken openly.
  • the concentration, in some of the images, on the genitalia of the young persons filmed.
  • all of the images were of young boys.
  • the camera was disguised and the filming activity was planned and took place over a period of approximately 4 hours.
The prosecution also submitted it was appropriate for the Court to have regard to the reason the recording was made (suggesting it was made for the accused's sexual gratification) as relevant to whether or not the material came within the definition. The District Court rejected these submissions, and dismissed the charge.

The NSW Court of Appeal decided that the appropriate test had not been applied, and the matter was remitted back to the District Court for proper determination.

McClellan CJ [at 10]:
10 In my opinion his Honour was correct to determine that the question which the definition in s 91H raises is objective and is to be answered by considering the content of the material about which complaint has been made. The fact that the images were secretly recorded is not relevant to whether or not the material is child pornography. Furthermore, the reasons which motivated the photographer are not relevant. These matters may inform an understanding of the context in which the film was made but are not relevant to an understanding of whether or not the video depicts boys in a “sexual context.” That question must be answered after considering the content of the film itself.

11 For that reason the content of the images contained in the video is relevant to the issue raised by the statute. The fact that all the images were of young boys and the camera has concentrated on their genitalia are both relevant to the question of whether or not the images depicted are of a person or persons in a “sexual context.” Of course it may be that after consideration of the content of a video, including a video containing a sequence of images of the genitalia of young boys, it could not be concluded that the video depicts boys in a sexual context. The images may have been made for a medical or artistic purpose and are depicted in that context. However, a conclusion that the images depict persons under 16 in “sexual context” may be informed by the number of images, the gestures of those photographed and the portion or portions of the body, including the genitalia, depicted.

12 It follows that the primary judge’s approach was only partly correct. Although the motivation of the photographer and the method he used to film the boys was not relevant all of the content of the images, including that all the images were of young boys, concentrated on their genitalia and were taken over a period of time, and, if this is apparent from the video, were taken in a men’s change room were relevant to the question of whether or not the material depicted a person “in a sexual context”. Whether, when these matters are considered, an offence is proved in the present case is not a matter for this Court.

The test is an objective one and the intent of the maker is irrelevant. Sexual context clearly extends beyond actual depictions of sex, though how far is unclear.

Sunday, 26 July 2009

Street brawling

Further Edit: General deterrence also sometimes takes priority over rehabilitation, even for youthful offenders, in cases of large-scale drug manufacture and cultivation. A recent example is the Court of Appeal's decision in Doan v The Queen [2010] VSCA 258.

Nettle JA [at 17, the other members of the Court agreeing]:

I agree and I wish only to add a brief observation concerning the submission advanced on behalf of the appellant that the judge had erred in the emphasis which his Honour placed on the importance of general deterrence. In my view lest there be any doubt about it, there should be no doubt that in cases involving cultivation of a narcotic plant in not less than a commercial quantity, general deterrence is at the forefront of sentencing considerations. Consequently, as the judge rightly observed, in cases of this kind there is less room to give weight to considerations of such as youth and antecedents that would otherwise be the case. In the result the judge also correctly found in a case of this kind an immediate term of imprisonment should ordinarily be regarded as virtually unavoidable.

In Braslin and Cowen v Tasmania [2010] TASCCA 1, the Court of Appeal identified a number of authorities across jurisdictions making similar observations about the role of youth as mitigation:

Mr Braslin's age

28 Mr Braslin was nearly 20 years old at the time of these offences. As such, in strict terms, he qualifies as a "young offender" so that the principles applicable to such offenders applied to him; see for example Maney v White [2007] TASSC 7 and Spaulding v Lowe 4/1985. However, whilst youthfulness of itself is generally taken to be a mitigating factor, and the rehabilitation of the offender assumes predominant importance, that is not exclusively so, and does not remain true for all cases irrespective of their nature. In R v Tran [2002] VSCA 52; (2002) 4 VR 457 at [14] Callaway JA said:

The rehabilitation of youthful offenders, where practicable, is one of the great objectives of the criminal law, but it is not its only objective. It is not difficult to cite cases where other objectives have had to prevail. It is true that, in the case of a youthful offender, rehabilitation is usually far more important than general deterrence, but the word I have italicised is there to remind us that there are cases where just punishment, general deterrence or other sentencing objectives are at least equally important.

29 Deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence...; R v Phan (1991) 55 A Crim R 128 at 135.

The moderation of the emphasis given to rehabilitation rather than general deterrence and retribution has been acknowledged where the young person "has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence of considerable gravity"; R v AEM [2002] NSWCCA 58 at [97] – [98]; KT v R (2008) 182 A Crim R 571 per McClellan CJ at CL at [25]. In the latter case, McClellan CJ at CL continued:

25 ... In determining whether a young offender has engaged in 'adult behaviour', the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence. Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society.

26 The weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity. [References omitted]

30 Whilst still qualifying as a youthful offender, Mr Braslin was approaching the end of the time for which such a claim can be made. Regard must be had to the nature and circumstances of these offences, particularly the premeditation and the detailed planning involved. The commission of such crimes, which include a crime of strong violence and considerable gravity, indicates the behaviour of an adult. It is true that Mr Braslin has no convictions for any matters of real significance, but it must be said that the frequency and extent of his offending in a short period of time, at the least shows a disregard for the law. For those reasons, factors of deterrence and retribution/denunciation were not overshadowed by issues of youth and rehabilitation, but were entitled to be given considerable weight.

Edit: Another recent example of the courts' willingness to sentence young first-time offenders to immediate imprisonment is found in the South Australian case of Crispin v Police [2009] SASC 210 (see below)

The hot-button issue of the moment is assaults in public, usually by young men, and usually fuelled by alcohol. On the one hand, community concern about this particular type of crime is intense, and the need for general deterrence is obvious. On the other, the youth and (frequently) absence of criminal history of the accused are significant mitigating factors. How does the Court effectively balance these competing interests in arriving at an appropriate sentence? R v Mills (1998) 4 VR 235 is quoted from both ends of the bar table. For the prosecution, the case provides support for the proposition that imprisonment is an appropriate disposition for a serious assault, even where the accused is young and has no previous criminal history (the question then becoming how that imprisonment should be served.) Mills also endorses a number of mitigatory principles:

i. Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.

ii. In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focussing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)

iii. A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s.5(4) of the Sentencing Act.)

(These three points were made by counsel in oral argument in Mills and incorporated into the judgment of Batt JA, and later repeated with approval by Maxwell P in R v Wyley [2009] VSCA 17.) The Court of Appeal said in DPP v Ross that, "[consistency] in sentencing is absolutely fundamental to public confidence in the criminal justice system. It is also a basic requirement of the rule of law.” Despite this, it's impossible to state a general rule of when Mills will influence the penalty for a youthful offender, and when it won't. DPP v Bridle [2007] VSCA 173 and R v Lay [2008] VSCA 120 are assault cases where sentence has been mitigated by the application of Mills. Of course, there have been other cases where youthfulness has been accepted as a factor in mitigation of penalty without the case of Mills being specifically referred to. On the other side of the ledger, in R v Jones [2000] VSCA 204, R v Teichelman [2000] VSCA 224,  R v Johns [2003] VSC 415 , DPP v Lawrence [2004] VSCA 154 and DPP v Simpas & HR [2009] VSCA 40 reference to Mills has not resulted in a lesser sentence on appeal. Why some sentences and not others were reduced by Mills turns on the individual circumstances of each case. In Wyley, Maxwell P rejected the suggestion that there are some categories of cases which attract the Mills considerations and others that do not. He said,

19 In the course of argument, it was contended for the appellant that there were now recognised classes of case to which the principles in Mills were inapplicable. Conversely, it was said, there are certain kinds of case where those principles should be given ‘full application’. With respect, however, I consider that these submissions reflect a misunderstanding of what was said in Mills. There is not some special set of rules applicable to young offenders of which it can be said either that they do not apply at all or, alternatively, that they apply fully. Rather, what Mills did, in my respectful opinion, was to draw attention to the great significance for sentencing of looking to the offender’s future, as well as to the past conduct for which the offender is being sentenced. 20 Mills constantly reminds sentencing courts, and this Court on appeal, that there is great public benefit in the rehabilitation of an offender and in maximising the prospect that the offender will carry on a law-abiding life in the future. But that consideration is not unique to young offenders. Nor is there any one correct answer as to how the balance is to be struck between that consideration and others which may point towards a period, or a longer period, of imprisonment, rather than a non-custodial sentence. Thus understood, the later cases of DPP v Lawrence and R v Nguyen are not to be viewed as ‘excluding the principles in Mills’, but simply as instances of how those principles are to be applied. 21 As counsel properly conceded towards the end of his submissions, there is a role for general deterrence to play in relation to every class of case. In relation to certain classes of case, however, general deterrence may have a particularly important role to play. The present case is of that kind. Violence of this kind, in circumstances of this kind, is so prevalent, that general deterrence is seen to have particular importance. But, again, the role of general deterrence will vary with the circumstances of the case.

Edit: Back in 1975, Bray CJ of the South Australian Supreme Court famously said of youthful offenders in Birch v Fitzgerald (1975) 11 SASR 114 at 116-117,

Nevertheless, there are offences in which, as it seems to me, the deterrent purpose of punishment must take priority. When people act under the influence of liquor, passion, anger or the like so as to constitute themselves a physical danger or potential physical danger to other citizens it may well be that a sentence of imprisonment will be appropriate, even in the case of a first offender of good character, in order to impress on the community at large that such behaviour will not be tolerated ... it may be that the incidence of such violence will be reduced if it is brought hme to those likely to resort to it that if they do they may very well be punching, striking, butting or kicking themselves into gaol.

This passage was reproduced recently in the decision of Anderson J in Crispin v Police [2009] SASC 210.

Many of the cases referred to emphasise a Youth Justice Centre as the appropriate place of incarceration for a youthful offender, if imprisonment is found to be necessary. In some cases the Court will determine a less severe penalty becomes appropriate if the option of YJC is not available (if, for example, the accused is outside the designated age bracket, though still considered youthful). However, where the maximum period for incarceration in YJC is exceeded by the term of imprisonment thought necessary by the Court, adult prison may then become the appropriate sentencing option: R v PP [2002] VSC 578.

Friday, 24 July 2009

English Reports available online

The amount of free legal information available online continues to grow, with UK legal-publisher Justis providing Bailii with the English Reports from 1220 to 1873.

This is a literal treasure-trove of information. The English Reports Reprints take up about 25 - 30 metres of shelf space, and must weigh at least a tonne — literally.

The copies here are already scanned to PDF, in pretty good quality, and most seem to have been subject to optical character recognition (OCR) so the scan is converted to searchable and copyable text.

For example, if you're looking for one of the cannons of English law — an Englishman's home is his castle — sooner (or later) your research will take you to Semayne's Case 5 Coke's Rep. 91a, 77 Eng. Rep. 194 and Entick v Carrington (1765) 2 Wils KB 275; 95 ER 807. Though neither contain the best known version by the British Prime Minister William Pitt, also known as Pitt the Elder:

The poorest man may in his cottage bid defiance to all the force of the crown. It may be frail - its roof may shake - the wind may blow through it - the storm may enter, the rain may enter - but the King of England cannot enter - all his force dares not cross the threshold of the ruined tenement.

Sadly, if you want to read what Brown v Dunne (1893) 6 ER 67 actually says, this database stops 20 years too early. D'oh!

Nevertheless, this is a great resource to add to your bookmarks.