Friday, 11 September 2009

Cross-border questioning

Dr Manhattan posted earlier this week about Wallace v Debs & Anor [2009] VSC 355, dealing with an application made by Victorian police on behalf of NSW police to interview a suspect already in custody.

A comment there gave me the idea of discussing the status of various investigators who aren't from Victoria.

Crimes Act 1958 Part 3, Div 1, Subdiv 30A (section 464 on) prescribes investigation processes for investigating officials.

Investigating officials means Victorian investigating officials: R v Frugtniet [1999] 2 VR 297. If interstate police come here to interview a suspect, they need to comply with the legislative and evidentiary procedures for admissibility of interviews in their home jurisdiction. (But of course, there will also be local requirements for gaining access to a suspect.)

A West Australian police officer is not an investigating official under these Victorian provisions (R v Weston, FC V, 05/08/1992), and nor is a Queensland police officer (R v Bartlett, FC V, 14/09/1994. Similarly, an Australian Federal Police officer is not an investigating official: R v Gionfriddo [2000] VSCA 152; R v Frugtniet [1999] 2 VR 297. National Crime Authority operatives are also not investigating officials: WF1 v National Crime Authority (1993) 44 FCR 524; WF1 v National Crime Authority (1993) 44 FCR 533. That probably means Australian Crime Commission operatives (which replaced the National Crime Authority in 2003) wouldn't be considered investigating officials too.

When police want to interview a person interstate, they have several options.

If the person is under sentence, they can be transferred interstate under the Transfer of Prisoners Act 1983 (Cth). But that won't ordinarily apply for investigation purposes, only trials of charges.

A person under restraint as defined in the Service and Execution of Process Act 1992 (Cth) can be extradited under Part 5 of that Act, but (logically enough) only if they are not in prison.

Or, the police can cross the border and attempt to interview the suspect, as the NSW police tried in Wallace v Debs & Anor [2009] VSC 355. That's probably the most practical option (aside from waiting to see if the person eventually returns to the jurisdiction where they're wanted).

Thursday, 10 September 2009

Have conviction, will travel?

In March I posted about a mooted Spent Convictions Bill.

I reckon the significance of conviction or non-conviction court results is no longer as great as it once was. It's common for insurance companies to enquire about findings of guilt for relevant crimes, or even merely being charged. So too some employers ask for or even require criminal history checks that might record findings of guilt.

And various statutory provisions take effect following findings of guilt whether a court records a conviction or not. (Recording demerit points for driving offences is one minor example.)

Nevertheless, folks understandably prefer a court not records a conviction against their name.

One reason I've often heard raised is about the possibility of a conviction restricting future travel, especially to the USA.

I'm not sure of the exact answer to that, but from what I can find, I don't think it's as big an issue as is sometimes suggested.

The US State Department runs with advice for travellers to the USA.

Visitor visas are granted to 'aliens' who are eligible to receive a visa.

An alien is ineligible for a visitor visa under the Immigration and Nationality Act 8USC1182(a)(2) provides for ineligibility on criminal and related grounds.

(2) Criminal and related grounds

(A) Conviction of certain crimes
(i) In general Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of—
(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or
(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21),
is inadmissible.

(ii) Exception Clause (i)(I) shall not apply to an alien who committed only one crime if—
(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or
(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).
(B) Multiple criminal convictions

Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more is inadmissible.

(C) Controlled substance traffickers

Any alien who the consular officer or the Attorney General knows or has reason to believe—
(i) is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 802 of title 21), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so; or
(ii) is the spouse, son, or daughter of an alien inadmissible under clause (i), has, within the previous 5 years, obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity,
is inadmissible.

(D) Prostitution and commercialized vice

Any alien who—

(i) is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status,
(ii) directly or indirectly procures or attempts to procure, or (within 10 years of the date of application for a visa, admission, or adjustment of status) procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution, or receives or (within such 10-year period) received, in whole or in part, the proceeds of prostitution, or
(iii) is coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution,
is inadmissible.


So, this seems to exclude entry to people convicted of offences of moral turpitude (a broad term meaning conduct considered contrary to community standards of justice, honesty or good morals), drug users, people convicted of 2 or more offences of any type and imprisoned for 5 or more years, drug traffickers, and prostitutes and vice-related offenders.

edit And, following on from Dr Manhattan's comment below, it is indeed the case that the meaning of conviction for aliens includes a finding of guilt: see 8USC1101(a)(48). That states:

(A) The term "conviction" means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—
(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.
(B) Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.

Which means for the purpose of obtaining a visa to enter the USA, the distinction between conviction and non-conviction for prescribed offences is effectively meaningless.

Wednesday, 9 September 2009

Road Rules 2009 available

The Road Rules 2009 are now available on the Victorian Legislation Website.

The cumbersome method of publishing them in the Government Gazette, and incorporating them in Victorian law under the Road Safety (Road Rules) Regulations 1999 will go the way of the dodo. The new Rules are simply Statutory Rule 94/2009.

That means the confusing system of looking for amendments in the Schedule to the enabling regulations will also go, and the Rules themselves will simply be amended as required.

Vic Roads has a website outlining the changes, and says the new Rules commence operation on 9 November 2009.

You might remember that in June Dr Manhattan flagged the various new road safety regulations due to commence later this year. The Road Safety (Drivers) Regulations 2009 are also now available; the others should be available soon.

Crime and punishment in Las Vegas

I don't often recommend TV shows, but Sin City Law is a worthy exception to the rule. Made by the same documentary team responsible for Murder on a Sunday Morning and the The Staircase, it offers a fly-on-the wall view of the legal system in Las Vegas, Nevada.

Tonight's episode, Bourbon Strip, is part 2 of a trial of an elderly man accused of stabbing a friend to death in a drunken rage.

The access that the show's producers have been given is incredible. The stories are as compelling as any Law & Order or CSI but with the added impact of knowing that what you're watching actually happened.

It's on tonight at 8:30 on ABC2.

Sunday, 6 September 2009

464B applications

When the police want to speak to someone they suspect has committed a crime, they generally either arrest them or invite them in for an interview. When that person is already being held in custody for something else, an application before the Magistrates' Court needs to be made first.

Section 464B of the Crimes Act 1958 provides:

(1) An investigating official may apply to the Magistrates' Court or, if the application is in respect of a child, the Children's Court for an order that a person-

(a) who is-

(i) held in a prison or police gaol; or

(ii) a forensic resident or a security resident within the meaning of the Disability Act 2006; or

(iii) a forensic patient or a security patient within the meaning of the Mental Health Act 1986; or

(iv) detained under section 93 of the Sentencing Act 1991 in an approved mental health service within the meaning of the Mental Health Act 1986 as an involuntary patient or security patient within the meaning of that Act; and

(b) reasonably suspected of having committed an offence (being, in the case of an application in respect of a child, an indictable offence) other than the offence for which he or she is being held-

be delivered into the custody of the investigating official for the purpose of questioning or investigation in respect of the first-mentioned offence.

Case law on the interpretation of this section is not common. Although s 464B (4C) obliges Victoria Legal Aid to provide unrepresented suspects with legal representation, in practice these applications are rarely objected to and rarely refused. In many cases, it's advantageous for the person in custody to have an allegation against them resolved during their imprisonment so that any penalty which might result can be dealt with concurrently.

In Wallace v Debs & Anor [2009] VSC 355, the Supreme Court considered what was meant by offence under s 464B(1)(b).

Victoria Police Detective Jason Wallace applied in October 2008 to interview Bendali Debs about the murder of a woman in Sydney in 1995. Debs is currently serving multiple life sentences in Victoria for murder. The application was refused, the magistrate determining that offence in the context of s 464B(1)(b) of the Crimes Act refers only to Victorian offences, and has no extra-territorial application.

The police appealed to the Supreme Court. Pagone J found that the magistrate had interpreted the provision correctly. The offence reasonably suspected must be an offence which a court in Victoria would have jurisdiction to hear.

[8] Finally I should deal with one argument put against this construction; namely, that the provision would be unworkable if it required establishing Victorian jurisdiction before it could be invoked. In my view, this concern is unfounded. The section may readily be invoked whenever it is "reasonably suspected" that the person to be investigated has committed an offence contrary to the laws of the state of Victoria. In other words, it is sufficient to invoke the provision that the investigating officer has a suspicion capable of being described as reasonable. The investigating officer does not first have to establish that the offence was against the state. Rather, all that the investigating officer need do is that which is routinely done when embarking upon any investigation about the possibility of an offence having been committed in Victoria against Victorian law. The construction adopted by the learned magistrate, which I think to be correct, only excludes from operation of the section that narrow class of cases, of which this is one, where it is conceded that the offence has nothing at all to do with Victoria except the presence in Victoria of the person sought to be interviewed. In this case it is properly conceded on behalf of the investigating officer that the investigation to be undertaken is not for the purposes of investigating a Victorian offence but, solely, to enable the police force of another state to investigate a possible offence against the laws of that other state. That limitation is narrow and, it seems, has not otherwise been provided for. The only conclusion by the learned magistrate concerning that issue, with which I also agree, is that there is no justification to assume that section 464B was intended to cover a situation that has not previously been thought necessary to have been covered. Accordingly, I dismiss the application.

I don't think this means the s 464B(1)(b) offence must always occur in Victoria. As we discussed here a couple of weeks ago, there are a number of different ways that offences that occur (at least partially) outside Victoria can constitute a crime here.

The difference between this case and the High Court decision of Lipohar v The Queen is that here it was conceded that there was no real connection at all between the state of Victoria and the alleged offence, other than the suspect currently being imprisoned here.

Thursday, 3 September 2009

R v Fitchett: not guilty by reason of mental impairment

A couple of months ago I posted about the tragic circumstances in R v Fitchett [2009] VSCA 150.

The case raised some issues to do with the application of the Crimes (Mental Impairment and Fitness to be Tried) Act 1997. Most importantly, the case affirmed that a jury should be told what the potential effects of a finding of not guilty by reason of mental impairment will be (specifically, the ability of the County and Supreme Courts to make custodial and non-custodial supervision orders).

The requirement that the jury be advised of the possible consequences of their verdict is required by s 22(2) and is thought to minimise the risk that a jury would consider that a not guilty finding would result in a potentially dangerous person being released into the community.

New sample jury directions and Bench Notes for the higher courts are available in the Judicial College of Victoria's Criminal Charge Book.

This doesn't change anything in the summary jurisdiction. By virtue of s 5 of the Act, if the Magistrates' Court finds a person not guilty by reason of mental impairment the charge must be dismissed, and no sentencing alternatives arise.

Wednesday, 2 September 2009

Cyclists beware!

According to Victoria Government Gazette S 289, s 19 of the Road Legislation Amendment Act 2009 came into effect last Thursday.

This is the provision that creates an offence for road users (other than motor vehicles and wheel-chairs) to use their vehicle carelessly. Translation = cyclists.

I'd thought this provision had been in for a while, but according to the Explanatory Memorandum it was held back until the Road Safety (General) Regulations 1999 (which themselves will have to be repealed by December) were amended to prevent infringements being issued for this offence.

Yes, that's right. Due to the operation of the Road Safety (General) Amendment (Careless Driving) Regulations 2009, if you are a full licence holder and charged with careless driving in a car you'll receive a fine. But if you're on a bicycle, whether you're a full licence holder or not, you go to court.

The penalty will be a maximum of six penalty units for a first offence, and twelve penalty units for a subsequent offence.

Tuesday, 1 September 2009

The latest whiteboards

A couple of years ago electronic whiteboards that print were the in thing.

They were expensive, they were cumbersome to move around and they were difficult to operate. I'm guessing that they were as hard to repair as a modern photocopier, but nobody ever found that out because nobody got enough use out of one to need to fix it.

On the right side of the page you'll find an American outfit called TechnoEsq.Com on our blogroll. They take corporate technology and market it to lawyers. The latest thing they're reviewing is a product called PaperShow, which brings together a gizmo pen, some interactive paper and any TV or computer screen.

The article on their website explains how useful this could be in the courtroom. When a witness is in the witness box, everyone wants to be able to see what they're drawing while they're doing it, not later. A real whiteboard is good for this, but you don't end up with a permanent record of their sketch. A piece of paper gives you a permanent record, but you only end up with one copy and it's not easy to work out what each part of it is supposed to be unless it's been carefully labelled.

I can't see everyone rushing out to buy this gadget, but it's something that will become a common feature of courtrooms in the future.