Monday, 31 August 2009

Summary time limits in the Children's Court

With the arrival of the Criminal Procedure Act 2009, the time limit for the filing of a charge against a child for a summary offence will fall from twelve months to six.

The relevant provision can be found at s 376 of the Criminal Procedure Act. This section inserts a new Part 5.1A into the Children, Youth and Families Act 2005. Charges can be laid after the six month time limit only if the accused consents (after having received legal advice) or the Court exercises its discretion under s 344C.

Although this change might appear to have the potential to influence many cases, in reality the impact will be small. The change applies only to summary offences. Most summary offences that bring children under the law's watchful eye can be expiated by way of infringement notice these days.

If a notice has been issued but not paid, the Victoria Police and many other enforcement agencies register their unpaid fines under the Children and Young Persons Infringement Notice System (CAYPINS). The CAYPINS procedure is set out at Schedule 3 of the Children, Youth and Families Act 2005 . It's distinct from the traditional charge and summons procedure, and is modelled on the enforcement processes of the Infringements Court (formerly called the PERIN Court).

Where the offence is not able to be expiated by payment of a penalty notice or instructions are given to contest the charge, care must be taken if drawing the prosecution's attention to the expiry of the time limit for the initiation of process. Many summary offences have an indictable equivalent, either in statute or common law.

For example, charges of marking graffiti under s 5 of the Graffiti Prevention Act 2007 are commonplace. In most cases, where the elements of this offence can be made out, an indictable charge of damaging or destroying property under s 197 of the Crimes Act 1958 could also be proven. Similarly, if an offence of common assault under s 23 of the Summary Offences Act 1966 is statute-barred, all of the ingredients for an indictable common law assault would typically be present.

Though a court might refuse an application to lay additional charges during the running of a contested hearing (say, at the no case submission stage of proceedings), this is by no means certain. Leaving abuse of process arguments to one side, it's possible that taking exception to the timeframe could leave an accused facing more serious charges than they started out with.

Friday, 28 August 2009

Evidence Act & Criminal Procedure Act start announced

The long-awaited commencement dates for the Evidence Act 2008 and Criminal Procedure Act 2009 are out.

The latest edition of the Bar's In Brief says the new acts will start on 1 January 2010.

The Criminal Procedure Amendment (Consequential and Transitional Provisions) Bill 2009 and the Statute Law Amendment (Evidence Consequential Provisions) Bill 2009 will be introduced in the Spring session of Parliament (sitting dates are here), and are planned to also commence operation on 1 Jan 2010. Still no detail, but obviously these will contain the various transitional and implementation provisions.

I also expect we'll see a new act similar to the Evidence (Audio and Video Visual Links) Act 1998 (NSW) to replace the Evidence Act 1958 Part 2A provisions — unless, of course, that portion of the existing Evidence Act is not repealed by the new Bills.

Magistrates are human, too

While this statement of fact shouldn't qualify as newsworthy, some appellate court decisions make it appear as though sentencing is a task better suited to a computer than a person. So it's worth taking note of a case which finds that not every expression of emotion from the bench results in prejudice to the accused.

In Pitt v Police [2009] SASC 244, the accused pled guilty to a charge of dangerous driving causing injury. The driver had flipped her car whilst travelling too quickly on a dirt road. The impact caused her passenger to miscarry her pregnancy.

A photograph of the stillborn baby was tendered to the sentencing court.

9. The Magistrate, having looked at the photograph, according to the material contained in the affidavits I have read, then became somewhat emotional and left the bench. When he returned, he commented that his sister had recently given birth to a stillborn child, but that the photograph that he just viewed would have no bearing on the sentence he imposed.

The accused was sentenced, and subsequently appealled. It was submitted that the magistrate ought to have recused themselves on the ground of apprehended bias. The Supreme Court rejected the argument.

Strictly speaking, the tender of the photograph of the stillborn child was unnecessary; however, it is perfectly understandable why the Magistrate, in a small country court, with the families of both sides present, determined to accept it in the context of those proceedings.

After explaining in open court that the photograph would have no bearing on any penalty he imposed, the Magistrate did not again refer to that photograph in the course of his sentencing remarks. The Magistrate was entitled, indeed, it seems to me he was obliged, to allow the prosecutor to furnish the court with the victim impact statement setting out the impact of the appellant’s offending on the victim and her family.

Viewed in that way, the receipt of the photograph was doing no more than acknowledging that the victim’s loss of her unborn child had caused untold devastation and grief and was a part of the consequences of the appellant’s conduct. In my view, there is nothing else to indicate that the Magistrate gave undue weight to this aspect of the victim impact statement.

The basis upon which the appellant now argues that the Magistrate ought to have disqualified himself arises out of the events which occurred after he received the photograph. After leaving the bench for ten minutes or so, the Magistrate returned and announced to the court, unfortunately in the absence of the appellant still, that he had had a life experience of a similar nature. I agree with the submission of counsel for the respondent, by itself, that is not sufficient to give rise to any apprehension of bias.

The test of apprehended bias is well established. A judicial officer is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.

In R v Goodall [2007] VSCA 63; (2006) 169 A Crim R 440, in a different context, Neaves JA commented that just because a person has had a particular life experience does not mean that that person cannot serve on a jury in a trial which concerned that matter to which the life experience the juror had was directly relevant.

In my view, an equally robust approach ought to be applied to the case of judicial officers called upon to impose a sentence related to circumstances in which he or she may have personally had experienced. It is unreasonable to expect that at times judicial officers may not become affected in some way as a result of the presentation of facts on which they are required to pass sentence.

In my view, that is simply to recognise that judicial officers, like any other human being, are ordinary human beings who at times may have reactions of distress or revulsion at some of the material before them.

The penalty was adjusted downwards, but for other reasons.

Thursday, 27 August 2009

Free Evidence Act resources

Barrister and lecturer Andrew Palmer was commissioned to prepare a number of summaries of the Evidence Act 2008 for the Department of Justice and Judicial College.

While the one page summaries will be useful to refer to once the new rules are up and running, an overview of all the changes is provided in the Ready Reckoner. It provides a section-by-section rundown of new provisions, and a potted summary of how they differ from the existing law. In its online form, it has numerous links to source material at AustLII and elsewhere.

Of course, a 37-page spreadsheet is never going to do justice to all of the nuances of the new legislation. But if you're just turning your mind to the changes, it's a sensible place to start.

Wednesday, 26 August 2009

High Court bags court trying teabagging

In April I posted Teabagging begs questions of constitutional validity for courts, based on an article on Skepticlawyer that caught my eye.

The High Court today delivered that decision, in Lane v Morrison [2009] HCA 29.

Mr Lane was a member of the Royal Australian Navy. He was accused of teabagging a superior officer, and charged with assault. His case was to be tried by the Australian Military Court.

In a 7-0 judgment, the High Court decided the Australia Military Court is invalid because it does not comply with the legislative limits Chapter III of the Constitution imposes on the Commonwealth Parliament when creating Courts.

I discussed the relevance of constitutional validity in my earlier post, so I won't re-hash it here.

The other useful information in this case is its discussion of the features (and functions) of a Court, and the various different legal meanings of a court — ranging from a place to play tennis, to a body dispensing justice.

The judgment also discusses what a court of record is, and what that means. (The two main features of a court of record are: power to punish for contempt of the court; and an archive, record or register of its proceedings.) I know it's often believed that the Magistrates' Court is not a court of record because some folks believe that to be synonymous with 'a court that records and publishes its judgments'.

On that reasoning neither the County nor Magistrates' or Children's Courts would be courts of record.

In fact they are courts of record. County Court Act 1958 s 35 states that the County Court is a court of record and has a contempt power in s 54, and s 21 provides for a register. Magistrates' Court Act 1989 s 18 provides for a register, and ss 133 and 134 provide for contempt powers. And the Children, Youth and Families Act 2005 has a register and the same powers to deal with contempt as the Magistrates' Court by virtue of s 528.

Tuesday, 25 August 2009

Hinneberg v Brannaghan: unlawful entry to dwellings for a breath test

The case of Hinneberg v Brannaghan [2009] VSC 356 discusses the admissibility of evidence in drink-driving cases.

The live issue was if the informant Senior Constable James Brannaghan had permission to enter a house, where he asked Mervyn Hinneberg to provide a preliminary breath sample. Senior Constable Brannaghan claimed an occupier of the house, Ms Lahogue, gave him permission to enter. She denied that at the Court hearing.

Section 48(4) of the Road Safety Act 1986 provides:

(4) For the avoidance of doubt it is declared that nothing in this Part requires a person who is in a dwelling to allow a member of the police force or an officer of the Corporation to enter that dwelling without a warrant.

The Chief Magistrate heard the case in the first instance. He wasn't satisfied that Ms Lahogue gave Senior Constable Brannaghan permission to enter her house. But he decided he would admit the evidence of the breath anaylsis certificate in the exercise of discretion under Bunning v Cross.

The Supreme Court ruled that the Chief Magistrate resolved both issues incorrectly.

[12] In my opinion the Chief Magistrate applied an erroneous test in assessing the conflict between the evidence of Brannaghan and that of Ms Lahogue. The Chief Magistrate took the view, accepting submissions made to him on behalf of the defence that were not contradicted by the police prosecutor, that the onus was on the prosecution to prove that an invitation was issued to Brannaghan by Ms Lahogue to enter the house, and to prove it beyond reasonable doubt. However it is now common ground or virtually common ground that that was not the appropriate test, and that in fact the onus was on the defence to establish, on the balance of probabilities, the facts on which the defence relied in order to justify the exclusion of the evidence on the Bunning v Cross discretionary ground. Mr Tehan QC sought for a time to support the Chief Magistrate’s contrary approach by reliance on Liberato v Queen, but the relevant statements in that case relate to the obligation of the Crown to satisfy the court, beyond reasonable doubt, that the elements or ingredients of the offence have been made out. The position is quite different in relation to a submission that admissible evidence should be excluded as a matter of discretion on fairness or public policy grounds. I think that, in the end, Mr Tehan QC did not seriously contest that proposition.

The correct test for receiving the evidence was on the balance of probabilities. Cavanough J found that failing to apply the correct test tainted the Chief Magistrate's decision to receive the certificate in evidence. Once he decided Senior Constable Brannaghan couldn't prove Ms Lahogue said he could go in her house, he should have considered the five specific factors in Bunning v Cross at 78 – 80:

  1. Was the breach of the law deliberate or inadvertent?
  2. Does the illegality affect the cogency of the evidence?
  3. How easy was it to comply with the law?
  4. What is the nature of the offence charged?
  5. Was the legislation intended to restrict or expand police interference with the liberty of the subject?

[17] So, although the analysis that I would apply is perhaps not completely in line with the submissions of either side, it seems to me that this is a case where it would be wrong to let the decision stand. The decision seems to have been arrived at from a fundamentally unsound original basis, namely the application of the beyond reasonable doubt test to the evidence in question. The application of that test was inapposite in the circumstances and it is not so surprising that it has led to the failure of the Chief Magistrate to make the findings that needed to be made in relation to the Bunning v Cross principles.

The case was remitted to the Magistrates' Court for a fresh hearing.

Which jurisdiction?

I reckon cases that span jurisdictions are interesting. The law is confronted with them more and more often as technology and transport cuts across borders with greater ease.

Common law courts struggled with such cases. The basic premise under the common law was "all crime is local" and jurisdiction over a crime lay with the country where the crime was committed: Macleod v Attorney-General (NSW) [1891] AC 455 at 458.

But what happened when the acts comprising a crime occurred in one country, but the criminal intention took place in another? At various times courts used a terminatory or initiatory theory of jurisdiction, deciding that crimes occurred where an offence finished or started.

In Board of Trade v Owen [1957] AC 602 the House of Lords concluded that a conspiracy formed in England to commit a crime in Germany was not a crime in England.

But in Treacy v DPP [1971] AC 537 the Lords decided that a man who sent a blackmail demand by letter posted in England to Germany committed the offence in the UK.

In Thompson v The Queen [1989] 169 CLR 1, the High Court considered a murder that happened near the ACT-NSW border. It said if the question of locality was in dispute, it must be proved on the balance of probabilities.

Earlier in Ward v The Queen (1980) 142 CLR 308, the High Court considered if a murder on the Murray occurred in Victoria or New South Wales. The deadly shot was fired in Victoria (from the top of the riverbank); the victim was at the water's edge on the Victorian side of the river.

The border of NSW was the River Murray (its south side) — and the Court held that it ended at the top of the water-retaining land-contour. Or, simply, the top of the river bank. So, Ward's victim died in NSW. The High Court considered the terminatory theory of crime determined jurisdiction. And that meant his murder conviction in the Victorian Supreme Court was set aside! (The NSW Lands Department has very useful publications on this, and there's some general information on borders in the GeoScience Australia website too.)

The High Court later moved to a more pragmatic view in Lipohar v The Queen (1999) 200 CLR 485. That case dealt with a cross-border conspiracy focusing on a property in Melbourne, with the conspirators in South Australia, Queensland and Malaysia!

The result was that the High Court decided there is a single unified Common Law of Australia, and the common-law offence of conspiracy could occur in and be tried in any jurisdiction so long as there was a real connection between the State and offence. That meant the trial in South Australia was valid. (Similarly, the offence could have been tried in Victorian or Queensland, but that was a choice for the investigating and prosecuting authorities. A trial in any one state would entitled the accused to a plea of autrefois acquit or autrefois convict if later charged in another state.)

Lipohar considered a common law offence, but I think courts are likely to take a similar approach for statutory offences too. (We know that stalking can cross borders: see DPP v Sutcliffe [2001] VSC 43.)

Applying this sort of reasoning, offences such as breaching intervention orders or using carriage services to menace or harass probably also occur in multiple places. (Consider a breach of an intervention order alleged by proscribed telephone calls when the caller is in Dandenong and the recipient in Frankston. Where does the offence occur?)

(Jurisdiction for offences on aircraft flying to or from or within Australia are dealt with by the Crimes (Aviation) Act 1991 (Cth). Offences at sea are covered by the Crimes at Sea Act 1999 - logically enough.)

A practical issue for investigators in all of these examples is to understand which law to apply. It's not an issue that courts have dealt with very often, and so there's been little curial guidance for investigators.

Last week the Supreme Court held in Wallce v Debs [2009] VSC 355 that an investigation in Victoria by non-Victorian police for offences that occurred outside Victoria (and would presumably be prosecuted outside Victoria) did not fall within the scope of Victorian investigation law.

That particular case concerned Crimes Act 1958 s 464B (questioning a person for a different offence to the one they're held in custody for). But I imagine the same reasoning would apply for the other provisions of Part 3, Div 1, sub-div 30A.

Put simply, if Victorian police go to, say, Queensland to interview a person and want to present that evidence in a Victorian court, they need to comply with Victorian investigation law.

If Queensland police come to Victoria to interview a person and want to present that evidence in a Queensland court, they need to comply with Queensland investigation law.

But they will also need to observe local substantive legislative requirements about gaining access to suspects (such as arrest and time in custody, or access when already in custody) and so require the assistance of local colleagues.

An extreme example might be R v Thomas (2006) 14 VR 475, where Jack Thomas was interrogated in Pakistan by Australian Federal Police members purportedly in accordance with Australian domestic law. That appeal was on different issues — mainly voluntariness of admissions — but seemed to accept an interview to be used in an Australian court would be conducted in accordance with Australian laws, though it took place in Pakistan.

The Standing Committee of Attorneys-General is continuing its focus on cross-border investigations (started back in 2003 and appearing in Victorian law in the Crimes (Assumed Identities) Act 2004 and Crimes (Controlled Operations) Act 2004). So we might yet see more legislation on this topic in the future.

Monday, 24 August 2009

More reform on the way

With the focus on the impending commencement of the Evidence Act 2008 and Criminal Procedure Act 2009, it's easy to forget about other pending reforms for the Victorian criminal justice system.

A lot of plans are flagged in the Justice Statement 1 and Justice Statement 2.

One big legislative change will be a new bail act, discussed by VLRC. In simple terms, the offence-specific focus — with anomalies such as requiring remand for murder, but not for manslaughter — will be replaced by considering two issues: will an accused person answer a grant of bail, and do they pose an unacceptable risk to the community if released on bail.

Another change is a review of the Crimes Act.

This should result in new provisions for investigation powers and procedures — perhaps along the lines of Queensland's Police Powers and Responsibilities Act or NSW's Law Enforcement (Powers and Responsiblities) Act. It should also see the introduction of a Criminal Code, or something similar (see Justice Statement 2 at page 14 -15). The Model Criminal Code Officers Committee has worked quietly away for over a decade now, drafting a model criminal code envisaged to provide a national criminal law in the same way we having national road rules and are moving to national evidence laws. Much of this work has been adopted in the Commonwealth Criminal Code. (The Standing Committee of Attorney's General website has a draft Model Criminal Code on its website — complete with confidential draft stamped on the front cover. Does that mean it's not supposed to be online?)

The last big mooted change is a new Courts Act, to provide one legislative instrument to cover the Supreme, County and Magistrates' Courts (see Justice Statement 2 at p 49).

It seems this work is about to kick off, because the Department of Justice recently advertised for policy officers to work on the proposed Courts Act.