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Tuesday, 6 October 2009

Are you being served?

A charge is the foundation for a summary court's jurisdiction to try an accused person.

The charge must be brought to the accused's notice, by either serving a summons or executing a warrant (or a notice to appear).

Usually, a summons must be served personally as required, though it may be posted in some cases.

But a person who lays a charge always has the option to apply for substituted service when appropriate, under Magistrates' Court Act 1989 s 34(2), or soon, Criminal Procedure Act 2009 s 345, which provides:

345. Order for substituted service

If it appears to a court by sworn evidence, whether oral or by affidavit, that service cannot be promptly effected, the court may make an order for substituted service.

For whatever reason, it's pretty unusual to see substituted service in summary criminal cases. (Well, in my experience anyway.) Part of it might be the general conservatism of the law and prosecuting agencies cautious not to jeopardise prosecutions — especially those that are subject to strict time-limits.

It might also be partly due to the lack of viable alternatives. It's been possible for a decade in Victoria to serve criminal process electronically, under the Electronic Transactions (Victoria) Act 2000 s 8, but validity required consent of the recipient. But, the internet is providing some new options.

Last year Master Harper of the ACT Supreme Court ordered substituted service of a default judgment by Facebook. (But see the comments by Peter Black — from the blog Freedom to differ — and Nick Abrahams.)

In March this year, the New Zealand High Court also permitted service of process using Facebook.

In Help Asteron Life Ltd v Franck [2009] NZHC 450 the NZ High Court granted substituted service on a gmail email address.

And last month slaw.ca reported a Facebook-service order granted by an Alberta court.

(If you've checked the hyperlinks above, you're probably wondering why I'm linking to the web articles and not primary sources: because decisions about service are interlocutory, it's rare to see them dealt with in judgments.)

And The Times Online reports on 1 October 2009 the UK High Court ordered service of an injunction by Twitter!

Will we see criminal courts accept these alternative forms of service in suitable cases?

Not driving; steering

Here in Victoria, the leading case defining the meaning of drive is Tink v Francis [1983] 2 VR 17. That case was decided by the Court of Appeal, and actually considered three separate appeals. The three appeal justices, Young CJ, McInerney and Southwell JJ, gave separate judgments.

In essence, they said that it is a question of fact if a person is driving a car, so earlier cases didn't really provide any definitive test. But, they all agreed that a driver needed to have control over a car's direction and whether it moved or stopped.

Parliament has since inserted s 3AB in the Road Safety Act, which provides:

3AB. Circumstances in which person is to be taken to be driving a motor vehicle

Without limiting the circumstances in which a person is driving a motor vehicle, a person who is steering a motor vehicle which is being towed by another motor vehicle is to be taken to be driving the towed motor vehicle for the purposes of this Act, whether or not the towed motor vehicle has any other means of propulsion and whether or not the person steering it has any control over its means of propulsion.

The South Australian Supreme Court recently considered when a person is driving in Harvey v Police [2009] SASC 302.

In that case, Harvey was the front-seat passenger in a Ford Fiesta. His friend drove a Ford Fiesta to a petrol station, refueled, and went to pay for the petrol. He left the car door open.

Harvey leaned over, with his seat-belt still on, and closed the door. He then turned the ignition key, intending to turn it to accessories so he could turn the radio on. Instead, he turned it one notch too far, to start. The car was in gear, and lurched foward, continued on for about 5 metres (why, doesn't seem to have been explored at the first hearing) and collided with a metal frame at the console-operator's window. Harvey tried to steer the car away from the building, but history records that he was not successful.

Harvey was charged with various driving offences, including driving with more than the prescribe concentration of alcohol in his blood. (He had a BAC of 0.25%! That might have had something to do with the whole episode, including that he didn't try to use the handbrake to stop the car.)

The South Australian Supreme Court considered a number of SA authorities on driving, and drew a distinction between a broader meaning applied in third-party insurance cases, and a narrower meaning applied for criminal cases. Torts lawyers often talk about courts extending or finding liability in certain cases when they know the deep-pockets of insurance companies stand behind the party in a civil proceeding. Most of the reported cases stem from jury trials, so we have no idea what those juries were thinking: but it's probably a fair conclusion. Indeed, the finding of the Supreme Court in this case supports that conclusion.

After canvassing all the authorities, the Supreme Court considered that — for criminal charges at least — intention to drive was not determinitive, but was a relevant consideration. Additionally, because third-party insurance liability schemes now covered passengers in cars (at least in South Australia), courts didn't need to find ways of concluding that someone was driving for people injured by the movement of a car to be entitled to compensation.

That meant it wasn't necessary to give the extended meaning of drive to this case, and Harvey was acquitted of the criminal charges.

This is consistent with Victorian cases such as Woods v Gamble (1991) 13 MVR 153, which hold it's necessary to show a person intends to start or drive a motor vehicle to be guilty of an offence, at least for drink-driving charges.

Monday, 5 October 2009

Licences and international students

The new Road Safety (Driver) Regulations 2009 will take effect on 9 November 2009.

The drafters have made the effort to correct the unwieldly numbering system in the previous regulations (though the (Driver) Regs 1999 had fewer than 50 regulations, the last one in the booklet is numbered Reg 703).

Some steps have also been taken to make the position of driving licences more clear. While they have retained the exception-to-the-exemption-to-the-rule system from the Road Safety (Driver) Regulations 1999, some additional definitions have been provided to clarify the obligations of foreign licence holders.

The Exemption

Section 18 of the Road Safety Act 1986 specifies that all drivers must hold a valid licence. Reg 17 of the Road Safety (Driver) Regulations 2009 provides an exemption to this requirement, provided various requirements are met. Reg 221 of the Road Safety (Driver) Regulations 1999 (which is in very similar terms at new Reg 18) then creates an exception to the exemption to the rule:

18. Exceptions to exemption under regulation 17

(1) A person who holds a driver licence or learner permit referred to in regulation 17 is not exempt, or ceases to be exempt, under that regulation if—

(a) the licence or permit was issued in another jurisdiction or New Zealand and the person has resided in Victoria for a continuous period of 3 months or more; or

(b) the licence or permit was issued in a country other than Australia or New Zealand, and—

(i)the person is the holder of a permanent visa under the Migration Act 1958 of the Commonwealth that was issued when the person was outside Australia and 6 months or more have elapsed since the person arrived in Australia; or

(ii) the person is the holder of a permanent visa under the Migration Act 1958 of the Commonwealth that was issued when the person was in Australia and 6 months or more have elapsed since the visa was issued; or

(c) the person is disqualified from driving a motor vehicle in another jurisdiction or another country; or

(d) the person has had the licence or permit suspended; or

(e) the person has been notified under subregulation (3) that he or she is no longer exempt.

(2) Subregulation (1)(a) does not apply if the person also holds a valid Driver Identification Document issued by the Commonwealth Department of Defence.

The definition of jurisdiction for the purposes of Reg 18(1) is provided at Reg 104 (and is the same in the new Reg 5),

"jurisdiction" means an Australian State or internal Territory;

Why a New South Welshman who stays within our borders for more than 3 months should have to obtain a local licence while a true Welshman does not is not explained in the regulations. Doubtless it has to do with the revenue our nation derives from tourism, business and foreign study, and doing everything possible to make our shores an attractive place for people from overseas to visit.

A person who is not the holder of a permanent visa but does have a valid foreign licence (apart from poor old New Zealand) does not need to obtain a local licence, no matter how long they have resided in Victoria. The VicRoads website states this slightly more clearly than the regulations:

The requirement to change your overseas driver licence to a Victorian driver licence depends on whether your stay in Victoria is permanent or temporary.

If you are in Victoria on a temporary visa, you can drive on your overseas licence (provided it is current and valid) for an indefinite period provided your overseas licence is in English (or you have an English translation or an International Driving Permit).

If you are in Victoria on a permanent visa issued under the Migration Act 1958, you may drive on your overseas licence for three months from the date you first entered Australia or from the time the permanent visa was issued to you (whichever is the later). If you want to continue to drive in Victoria after this time you must hold a valid Victorian driver licence.

Learner Permits

The situation where the holder of an overseas licence is also the holder of a Victorian Learner Permit is more difficult. It has sometimes been said that the holder of a licence or permit is bound by all of the conditions of that licence or permit. While as a general statement that's probably correct, in the case of a Learner Permit I think there's scope to argue that many of the requirements don't apply to a person who holds both a Learner Permit and a valid foreign licence. On my reading of it, the regulations permit the holding of dual authorities (and probably always did).

The relevant provisions are at Regs 213 and 214 (which will become Regs 46 and 47). Both provisions, which require the display of L-plates and the presence of an accompanying driver, apply to a learner driver.

According to the definitions at Reg 104 (and this will remain in new Reg 5):

learner driver means a person who has a learner permit (including an interstate learner permit) and does not have an appropriate driver licence or other permit;

In the new (Driver) Regs a definition of appropriate driver licence or other permit is inserted:

"appropriate licence or permit", for a category of motor vehicle, means a driver licence or learner permit that authorises the holder of the licence or permit to drive a motor vehicle of that category in the jurisdiction or, if issued in another country, the country in which it was issued;

At least arguably, the regulations anticipate a situation where the holder of a Learner Permit is also exempt from holding a licence by virtue of Reg 18. If such a person is considered not to be a learner driver, it follows that regs 213 and 214 do not apply to them.

As I said at the start, this regulatory system is complex. If I were the holder of a foreign licence I wouldn't take the risk; I'd be surrendering my Learner Permit to VicRoads immediately.

The contrary argument (that the holder of a Learner Permit is bound by all the conditions of a learner driver) has been accepted by magistrates in the past. While I don't agree that this is a correct statement of law, that's no guarantee that a court might not do so again.

The final point that needs to be made regards the assertion of an honest and reasonable mistake of fact. If a court finds that an accused is not a learner driver then not obeying the conditions which attach to a learner driver will simply mean no offence has occurred.

However, if the court finds that a holder of a permit is a learner driver, an accused is unlikely to escape the charge although they might have been entirely ignorant of their obligations (or may have even been given the wrong advice by a person in authority). While the belief of the accused may be honest and reasonable it is unlikely to avail an accused of a Proudman v Dayman claim; first, because the offences are arguably of absolute liability (applying the considerations to such offences from Kearon v Grant (1990) 11 MVR 377); and secondly, because the mistake would not be one of fact, but instead a mistake of law: Ostrowski v Palmer.

UKSC blog

I mentioned last month that the new UK Supreme Court hears its first case on 5 October 2009.

The Supreme Court of the United States has a blog run by American lawyers, providing detailed commentary and analysis on cases, and updates readers on pending and newly-filed appeals. (I reckon that our own Supreme Court and High Court are both candidates ripe for something similar. Especially our Supreme Court, because unlike the High Court, it doesn't list upcoming appeals.) That blog, SCOTUSblog referred to the just-launched UKSCblog.

UKSCblog also rated a mention from Times Online Law Central (which now has an everything you wanted to know about the new Supreme Court section), and Canadian blog slaw, also great blogs themselves.

Sunday, 4 October 2009

In the Summertime

Victoria moved to Australian Eastern Daylight Time this morning at 2 am.



The legal mechanism for this process is found in the Summer Time Act 1972.



Under s 3 of the Act, the Governor-in-Council proclaims the start and finish of summer time. Currently, this is found in Government Gazette G35, 30 Aug 2007, p 10. The relevant part provides:

1. Subject to paragraph 2, the period of summer time shall commence at the hour of two o’clock in the morning standard time on the first Sunday in October in each year and end at the hour of two o’clock standard time (three o’clock summer time) in the morning on the first Sunday in April the following year.

2. In the year 2007 the period of summer time shall commence at the hour of two o’clock in the morning standard time on the last Sunday in October, being Sunday 28 October 2007.

Although this probably seems a bit twee, it can be significant in some summary criminal matters, especially those involving the use of breathalysers for drink-drive charges. Those instruments must be manually adjusted to account for daylight saving time. If the police forget to do this, it can affect the statutory three-hour period for demanding breath tests under Road Safety Act 1986 s 49. And in cases that occur on the cusp of a new day, it might also affect the correct date of the offence.

Friday, 2 October 2009

Does jail work?

That's a loaded question bound to get a few responses. It all depends on what we mean by 'work', and what we think jail is supposed to achieve.

One stated aim of jail — and any sentencing option — is to reduce offending. Surprisingly, there's not a lot of research to see if jail achieves this or not.

The Australian Institute of Criminology published a paper last week, The specific deterrent effect of custodial penalties on juvenile reoffending. (One of the authors is Don Weatherburn, Director of the NSW Bureau of Crime Statistics and Research (BOCSAR), and renowned authority on sentencing issues.)

The tentative conclusion is that sending children to jail doesn't produce any noticeable affect on re-offending rates.

The authors were careful not to say anything more than that. No doubt they're well aware that jail, and sentencing generally, is used for other reasons too.

In Victoria, the Children, Youth and Families Act 2005 s 362 provides that the Children's Court may sentence for prescribed purposes — including protecting the community — but not punishment or denunciation.

Cases such as DPP v Ty (No 3) (2007) 18 VR 241 (a 14½-year-old child convicted of murdering an 18-year-old boy by penetrating his skull with the steel tip of an umbrella), and DPP v SJK & GAS [2002] VSCA 131 (an 18 and 16-year-old guilty of manslaughter of a 73-year-old woman in her bedroom) are subject to different sentencing considerations because they are dealt with in the Supreme Court, and hence subject to the sentencing considerations in the Sentencing Act 1991 s 5(1).

Thursday, 1 October 2009

Legislation Watch: Change to Road Safety Act

According to the Law Institute's website, section 10 of the Road Legislation Amendment Act 2009 came into effect today.

This section amends section 51 of the Road Safety Act 1986. The Explantory Memorandum explains the provision,


amends section 51(1) and (1B) of the Road Safety Act 1986 to decrease the current blood and breath alcohol concentration threshold for immediate licence suspension from 015 grams to 010 grams in the case of a person who holds a full driver licence.

The Justice Legislation Further Amendment Act 2009, recently discussed here, also received assent last week.

Dale on bail

Further Edit: In DPP (Cth) v Barbaro & A-G (Vic)(2009) 20 VR 717 the Court observed that there will be circumstances where the actual or antipated delay of a trial is of such magnitude that risks which would, in other circumstances, be regarded as unacceptable may properly be viewed as acceptable.



Pasquale Barbaro applied for bail again in December of last year, arguing the further passage of time had ameliorated the risk previously found. The Supreme Court didn't agree. It was his fourth application in relation to Commonwealth charges and second in regard to state offences. The judgment of Coghlan J can be found here.










Edit: Since Dale was handed down, many practitioners making bail applications are seeking to draw similarities with that case. There is certainly nothing unique about people being diagnosed with clinical depression when facing extended periods in gaol awaiting trial, though whether as severe (or the delay as prolonged) as in Paul Dale's case will be what a court will be primarily interested in.



In Re Eileen Creamer, Whelan J adopted the approach of Lasry J in several respects. In particular, in response to counsel Robert Starry's contention that the Charter of Human Rights and Responsibilities Act 2006 changed the applicable tests for bail, His Honour said,



31 It was submitted on behalf of the applicant that the Charter of Human Rights and Responsibilities Act 2006 has relevantly altered the way in which the Court ought to consider the issue of delay in this context. I would again adopted the approach of Lasry J. In In the matter of Dickson Lasry J said, addressing what Bongiorno J had said in Gray:



“What his Honour’s ruling demonstrates is that the Charter has a significant role to play in emphasising the importance of particular rights, but when it comes to the right to be brought to trial without unreasonable delay, that right remains to be considered within the appropriate or relevant provisions of the Bail Act.”


The application in Re Creamer was refused.






Last week the Court of Appeal gave its reasons for releasing former police detective Paul Dale on bail, in DPP v Dale [2009] VSCA 212.



Previous applications for bail had been unsuccessful; DPP v Dale [2009] VSC 107; re Paul Noel Dale [2009] VSC 332(R).



Interestingly, in the most recent application counsel for the DPP chose to query whether the Court of Appeal was competent to consider an appeal against refusal of bail. It had been decided that no avenue of appeal lay from a refusal of bail in the Trial Division of the Supreme Court in Beljajev's case. But since then a Court of Appeal composed of five justices overturned that historial interpretation, in Fernandez v DPP [2002] VSCA 115. Not surprisingly, the Court in Dale chose to follow the precedent in Fernandez.



Detailed submissions were made about the effect of incarceration on the mental health of the accused. As it had done in R v Benbrika & Ors (Ruling 20) [2008] VSC 80, the Court expressed disquiet over the conditions that high security prisoners are kept in while on remand.