Digital contempt

Before the Magistrates' Court started recording proceedings following Practice Direction 1 of 1999, the Victorian Supreme Court considered a few cases about tape-recording court proceedings.

The cases weren't definitive. Nguyen v Magistrates' Court of Victoria [1994] 1 VR 88 held that recording without the knowledge and permission of the presiding magistrate was a contempt of court. Later in Stefanovski v Murphy [1996] 2 VR 442, the Court of Appeal doubted that it was a contempt, but seemed to accept a magistrate could permit or refuse tape-recording under its general directions power in s 136 of the Magistrates' Court Act 1989. Still later in Tran v Magistrates’ Court of Victoria [1998] 4 VR 294 the Court of Appeal simply considered it was a discretionary decision for the presiding magistrate.

Today, a visitor to a Magistrates' Court will see notices of an order issued by the Chief Magistrate prohibiting recording of proceedings using mobile phones. The direction doesn't seem to be a practice direction issued pursuant to s 16A of the Magistrates' Court Act, so presumably is founded on s 136.

In Prothonotary of the Supreme Court of New South Wales v Rakete [2010] NSWSC 665 the NSW Supreme Court sentenced Te Rana Rakete for filming with a digital camera a witness giving evidence in a trial, after finding him guilty of the offence in Prothonotary of the Supreme Court of New South Wales v Rakete [2010] NSWSC 5.

The contempt was established because filming without the Court's permission risked interfering with the administration of justice — in the sense that it could disrupt the court hearing and smooth and efficient running of the trial. There was no evidence in this case that the filming was to intimidate the witness who was recorded, or later use that recording for some form of retribution.

[17] I have already found that the defendant‘s conduct had the tendency to interfere with the administration of justice, in terms of potentially interrupting the concentration and focus of jurors and diverting their attention from their task: [2010] NSWSC 5 at [43]. I also found that the activities of an unknown person seeking to record the evidence of a witness also had the tendency to interfere with the administration of justice in terms of at least distracting, if not actually frightening and intimidating, a witness of the presumed fortitude of Mr Campton, let alone a hypothetical witness of “ordinary” fortitude: [44]. The plaintiff has quite properly conceded that the seriousness of the contempt was not aggravated by any evidence that showed that the witness or any juror in fact saw the defendant using the camera or that he or she was in fact distracted, frightened or intimidated by what occurred: Prothonotary of the Supreme Court of New South Wales v Rakete [2010] NSWSC 665 at [17].

It seems no matter what the legal foundation is for the standing order in Victoria's Magistrates' Court prohibiting recording proceedings, the common law criminalises that conduct and justifies prominent warnings in the Court's precincts.

Jurors not allowed to do research

It's a traditional common law directive (now given a 'gloss' at s 78A of the Juries Act 2000) that jurors are not to make their own enquiries about the case they are required to decide.



The rationale is easy to follow. Evidence that goes into the jury room without the knowledge of the court hasn't had the benefit of being tested. It might be inadmissible, or prejudicial, or capable of an explanation by one of the parties, who didn't think to present the explanation because it didn't know that the jury had received that information. Jurors are repeatedly told in the course of their service that they must make their findings solely on the evidence presented to them.



The prohibition on research most often relates to the facts of the case, and there are numerous examples of individual jurors (or more rarely, entire juries) being discharged after contact between juror and party, either before or during a case.



In rarer examples, jurors have been discovered conducting their own research into the case. Notoriously in R v Young [1995] QB 324, a retrial was ordered after it was discovered that some of the jurors in a double-murder trial had used a oiuja board in an attempt to contact the victims.



(Fortunately for Henry Fonda, the judge never found out what he'd been up to):









In Martin v The Queen [2010] VSCA 152 the Court of Appeal was confronted with a different problem. After the verdict of the jury had been given (guilty, obviously, given that it was the accused who appealed) the judge's tipstaff found 7 pages of material downloaded from the internet, discarded in the jury room. The pages concerned the legal definition of the phrase beyond reasonable doubt (a phrase which the High Court has notoriously admonished trial judges not to attempt to define for a jury, even should they ask). It raised the question, should a jury be prevented from conducting its own legal research?



The question didn't really get answered, as the Court felt that to consider the impact that the material may have had on deliberations would either amount to baseless speculation, or else intrude into the confidential workings of the jury room. Ashley JA referred to R v Chatzidimitriou (2000) 1 VR 493 where a trial judge allowed a jury access to a standard English dictionary to assist them in deciding the meaning of the phrase.

73 The question which I posed in the preceding paragraph needs to be considered, in my opinion, in the context of the standard of proof direction; not in the context of a general enquiry about the permissibility or otherwise of jurors researching the legal principles applicable to the case before them. The authorities make it very plain that it is for the jurors to give meaning to the critical phrase. The fact that a judge may not elaborate upon its meaning, except in particular circumstances, does not mean that jurors may not consider what meaning to give it.

The Court of Appeal advised trial judges to tell jurors that s 78A extends to searching legal dictionaries (though the Court did not actually find that this was the case). If such a direction had been given in this case it would have been easier for the Court to find that an irregularity had occurred (the jury would have been in breach of the trial judge's specific instruction). But, of course, this provides no assistance to jurors in determining what the phrase should mean.



For some observers Martin's case no doubt adds to Vincent J's criticism of the insistence in Australian law that beyond reasonable doubt not be further defined. (He described it as 'ridiculous' [at page 40] in his report to Parliament regarding the conviction of Farah Jama by flawed DNA evidence). If jurors are left to search the internet for the meaning of terms which are central to their decisions, there's a strong suggestion that jurors are not being properly assisted in their task. It may, but then again may not, run contrary to the current popular opinion that holds that most jury charges are overly long, needlessly complex and full of irrelevent material.



Against this backdrop, the state government has coincidentally announced plans to widen the jury pool to include people who are currently excluded from service. Last Tuesday, Rob Hulls announced that lawyers, judicial officers, police officers and Members of Parliament will be able to serve on juries sooner after leaving their office or practice under reforms to Victoria’s jury system.



The prohibition of people intimately involved in the day-to-day operation of the courts traditionally doesn't just stem from a concern that they won't be able to shed any previous bias to one side of the adversarial system or the other to perform their role as a juror. There was also a concern that other jurors might be inappropriately swayed by a juror with intimate knowledge of the justice system and not go about reaching their own verdict independently.



Given the lack of guidance being provided outside the jury room, it's interesting (and, in some cases, perhaps worrying) to think about the potential influence that a retired judge, police officer or practitioner might have.

Coulson v The Queen [2010] VSCA 146: the Crown's obligation to call experts

The Crown may not refuse to call an expert witnesses it has sought advice from, selecting only those opinions that support their case for tactical reasons, any more than they may refuse to call a witness just because their testimony fails to accord with the prosecution case.



Ashley JA [at 17, agreeing with Neave and Harper JJA]:

17 Even if there had been a significant difference in the opinions of [the two witnesses], in my opinion it does not follow that the Crown was able to pick and choose which witness it called, leaving it to the accused to take up the challenge of calling the other witness. That does not seem to me to accord with the Crown’s obligation of fairly adducing relevant evidence, or with the onus of proof resting on the Crown. No doubt a criminal trial is an adversary proceeding, but that does not mean that it should become a tennis match in which the Crown is able, in effect, to put on the other side of the net a witness whose opinion it has obtained, whose expertise and impartiality are not in issue, but whom it is disinclined to call.

The police informant in Coulson had originally sought an opinion from an independent expert in sleepwalking (sonambulism) to assess the credibility of an explanation put forward by the accused in interview.



The Crown subsequently sought an opinion from another expert and it was he who was named as a witness on the presentment. In pre-trial discussions the defence raised the desirability of the first expert conducting the assessments of the accused he had originally suggested. This was done, but at trial the Crown refused to call the first expert. The Court of Appeal allowed the appeal, ruling that the accused had been deprived of a chance fairly open to him of being acquitted.



Neave and Harper JJA:

61 In our opinion, the calling of [the expert witness) by the Crown was necessary for the presentation in this proceeding of the whole picture. He was appropriately qualified, having practised for 17 years before the appellant’s trial as a specialist in disorders that adversely affect sleep. His evidence was admissible. He was also available. Moreover, his first point of contact with this prosecution came not through the appellant but through the informant who, because of the suggestion that the appellant might be a sleepwalker, thought that (the expert's] expertise might assist the authorities in their investigation into the complainant’s allegations. [The expert] agreed to review the police brief of evidence, with a view to assessing whether the events as there depicted could (as he put it from the witness box) ‘possibly have been related to sleepwalking’.

Under ss 42 and 416 of the Criminal Procedure Act 2009 the prosecution are obviously obliged to disclose this sort of material regardless of whether they intend to rely on it or not. But the obligation goes beyond mere disclosure to an obligation that, (as it was put in Whitehorn v Queen (1983) 152 CLR 657) 'all available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based'.

Double jeopardy 2

Edit: Another example of how uncertain the operation of double jeopardy can be is found in Pollard v The Queen [2010] VSCA 156. There, sentences were handed down for offences of negligently causing serious injury (s 24 Crimes Act 1958) and failing to render assistance at the scene of an accident s 61(b) of the Road Safety Act 1986. The trial judge commented that leaving the scene was an aggravating feature of the first offence.



The Court of Appeal found otherwise, saying the real test was whether the appellant had been punished for a third time. The Court ruled the two offences were different, both conceptually and legally. The brief treatment of the double jeopardy issue in Pollard [between 17 - 30] seems similar to the test Habeas Corpus posits below.

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A couple of weeks ago I posted something on the subject of double jeopardy. It kicked off one of the most lively discussions we've had here in recent times.



I think one of the reasons for this is that there's probably no single 'right' solution to double jeopardy issues. When offences overlap and when they are discrete is probably in the eye of the beholder, and it's impossible to predict with precision which way an appellate court will fall



Site regular Habeas Corpus weighed into the debate but found that his contribution to the discussion was longer than our 'comments' box would allow. Anyone else who has this problem should send us an e-mail.



With permission, I've done a little nip/tuck on what HC sent to me, and here it is:

You said that you doubt that one act can give rise to two separate penalties. The "one act = once crime" rule is not the law in Victoria. I would have to read the High Court’s decision in Pearce again, but I doubt that is a correct statement anywhere in Australia. Even if it is, R v Sessions [1998] 2 VR 304 is the case which interprets where double jeopardy fits in Victorian law.



The facts in Sessions’ case are unpleasant, but it is important to talk about them to understand the decision the court made in that case. During the course of a rape, the insertion of an object caused a rupture inside the victim. Consequently the accused was charged and found guilty of both recklessly causing injury and sexual assault. It is important to recognize that these offences both rose from exactly the same act (the forceful penetration). For the court, this made it different from an incident where, for example, to subdue his victim a rapist punches her in the face. That could be viewed as both an aggravating feature of the rape and an independent offence in its own right. The sentencing court would mitigate punishment to avoid punishing the offender for the same act twice, but both offences could be proven in compliance with s 51 Sentencing Act.



Sessions is not like that example. Sessions is like the hypothetical example of the person who is charged with both aggravated burglary and burglary. There is no single point of difference that distinguished the charges between the court. Justice Hayne said at page 16 of the judgment,

“But where, as here, the act for which the applicant was to be sentenced on count 1 was the same act as he was to be sentenced for on count 2 and there was no fact or matter that should be taken to account in sentencing on one count that would not be taken to account in sentencing on the other count it was, in my view, oppressive and unfair to punish him twice. The conviction on count 2 should be quashed.”

The common law didn’t used to allow an aggravating matter to be taken into account on sentence if it could have been the subject of its own charge. In R v Newman and Turnbull [1997] 1 VR 146 this was accepted as the case, as a matter of fairness, where the offence was discrete. But in Sessions, Justice Hayne found that overlapping offences are not discrete so don’t offend the principle.



The question that should be asked (in my view) is if either offence can be proved without the other offence being proved. If the answer is ‘no’, it would obviously be wrong to punish the offender twice. If both offences can be proved independently of the other – even if they share some common elements – then both charges can attract a penalty.

I don't agree with every single point but I think HC outlines a reasonable and practical test for whether a sentence amounts to double punishment.

Devil's Advocate

Learning advocacy can be a complex thing. I used to always say it was like watching Tiger Woods (at least, until his fall from grace) — when you see someone good at it, it looks really easy and effortless. Then when you try it, you're all thumbs and fumbles.

Like any skill, practice is the best thing. But, the advocate's role can be fairly solitary too. Few benches have the time to coach advocates before them — not to mention that in an adversarial environment, it's not really appropriate for them to try! — and the opposition is usually keen to convince you your approach is all wrong, with varying degrees of politeness and enthusiasm!

So reading how other good advocates go about their job is often a good way to improve. I bought a few more advocacy books this year to add to my collection, including The Devil's Advocate
by English barrister Iain Morley QC.

I really like it. It's a more modern (and I think, relevant) read than Richard Du Cann's The Art of the Advocate.

Iain Morley states his opinion on things clearly and forcefully — and then confidently makes the point in his opening pages that we won't agree with everything you read, and that's a good thing. (About the only thing I really disagree with is in his chapter on cross-examination. He states the rule made famous by Irving Younger of never asking a question you don't know the answer to. True enough, he also starts with Younger's caveats: it's a rule for new and inexperienced advocates, and one that can be broken when you know you're breaking it and you know why. But I still disagree with it. I like Max Perry's approach on this in his book Hampel on Advocacy. Max divides questions and answers into three: those you will get, might or might not get, and definitely won't get. They also correspond to some extent to how much damage an adverse answer may or may not do to your case. Definitely won't get questions and answers are for puttage under the rule in Browne v Dunn. Will get questions and answers are generally ones that won't hurt if an unexpected answer pops up, and will generally make the witness look shifty if they don't provide. Might get questions and answers are the tricky ones, where a calculated risk can be taken depending on what's at stake and if you know what you're doing.)

The written and visual asyndeton style features throughout the book, and conveys a real sense of being crisp, direct and succinct — and Iain writes that he writes like he speaks when he teaches advocacy. I like it.

Here's a couple of examples, posted with Iain's permission.

Have a look at these pages on the quality of being irresistible. (Something we all probably aspire to, for various reasons and purposes...)

It's not just what he writes that is good: it's the way he sets it out too.








This last one is Iain's suggestion for dealing with Brown v Dunne. I haven't heard this suggestion before...but I like it. It quickly deals with the point without embarking on a pointless argument.

I reckon this is a good read, and worth adding to your collection.

Legislation Watch: intervention orders, VIS and public order offences

Edit: The Personal Safety Intervention Orders Act 2010 received Royal Assent on 7/9/10.



If not proclaimed earlier, it will come into effect on 1 January 2012. Part 13 Division 1 s 186 of the Act will repeal the Stalking Intervention Orders Act 2008, but ss 187 - 191 preserves applications and orders made under the repealed legislation.

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Two current pieces of legislation that will amend the operation of existing Acts are discussed below. One of them has already passed into law, and the other is likely to do so soon.

Justice Legislation Amendment Act (Victims of Crime Assistance and Other Matters) Act 2010

This is omnibus legislation intended to accomplish a variety of different aims. The Act has already received Royal Assent but most of the significant amendments haven't been proclaimed yet. These include:



• Amending the Sentencing Act 1991 and Children, Youth and Families Act 2005 to put into effect some of the recommendations from a government report, A Victim's Voice: Victim Impact Statements in Victoria.



The definition of victim in both Acts has been broadened to include those indirectly affected by crime. The type of material that can be included in a VIS has been expanded, and a qualified right has been inserted for the victim of a crime to have their statement read aloud as part of the sentencing hearing.



• Judicial Registrars will be permitted to sit as delegates of the Victims Of Crime Assistance Tribunal. New provisions allow for financial compensation for reasonable safety-related expenses.



• Changes to the Family Violence Protection Act 2008. Amongst a number of changes to police procedures, s 55 will require a court to consider the practicality of obtaining oral evidence if considering excluding the Family Violence Safety Notice document itself as evidence under s 65.



Amendments also create the opportunity for children who are to be the subject of an intervention order to be assessed by clinicians, to establish the conditions that may be appropriate in particular cases.



• Many changes to the Liquor Control Reform Act 1998 including doubling the infringement amount for being drunk or quarrelsome, extending the duration of banning notices, and increasing the statutory maximum penalty for various public order offences under the Summary Offences Act 1966, including public drunkeness.



The Explanatory Memorandum can be found here.

Personal Safety Intervention Orders Bill 2010

When the Crimes (Family Violence) Act 1987 was repealed in 2008 it was replaced by two acts: the Family Violence Protection Act 2008 and the Stalking Intervention Orders Act 2008.



The Act concerning family violence had been the subject of extensive community consultation and debate. It's fair to say that the Act which related to stalking had not received the same level of scrutiny. The Stalking Intervention Orders Act 2008 was a stop-gap designed to allow the statutory separation of the two types of intervention orders.



It will be replaced by the Personal Safety Intervention Orders Act 2010. The Bill hasn't had its second reading but seems assured to pass, though possibly with amendments. It will be enacted at latest by 1 January 2012, but is likely to come into effect far sooner than that.



The Stalking Intervention Orders Act 2008 was troubled by being required to deal with two very different kind of non-family violence situations. Some complaints concerned the kind of obsessive predatory behaviour which had given rise to the creation of the criminal offence of stalking found at s 21A of the Crimes Act 1958. It was also called upon to deal with the kinds of repetitive neighbourhood disputes which, in the past, have been dealt with under the common law under binding-over orders or the tort of private nuisance.



The Explanatory Memorandum to the Bill explains [at page 5]:

Under the Stalking Intervention Orders Act 2008 the only ground for an intervention order was stalking. As such, it became a "catch all" provision for other types of behaviour that, although they came within a broad reading of the definition of stalking, were not necessarily pursuit-type stalking. It is intended that only pursuit-type stalking will be covered by the term "stalking" under this Bill.

A new category of conduct called prohibited behaviour will describe the non-stalking behaviour that may provide a basis for an order. This is described at s 5 as:



• assault;

• sexual assault;

• harassment;

• property damage or interference;

• making a serious threat.



Section 47 will provide that courts can inform themselves as they see fit when determining an application, regardless of the normal rules of evidence. This is in similar terms to a provision in the Family Violence Prevention Act 2008.

Representative counts and current sentencing practices

Last year the Court of Appeal decided the appeal against sentence of DPP v CPD [2009] VSCA 114. That case considered an appeal against sentence for sex offences against children, but provided useful statements of general principle with broader application in all sentencing matters. It's just been reported in the Victorian Reports at (2009) 22 VR 533 (which is what put me on to it) — suggesting the law reporters think it's kind of important too!

Representative counts

At [38] – [43], the Court said that representative counts are relevant at sentencing for two reasons.

First, a representative count prevents an accused person submitting in mitigation that the offence was isolated or out of character incident — but is not itself an aggravating factor (citing DPP v McMaster (2008) 19 VR 191 at [42] – [49]).

Second, the sentencing court must consider the accused’s behaviour demonstrated by the representative count to place the offending in its full context — or consider the full picture — and give appropriate weight to culpability, specific deterrence and rehabilitation: DPP v CPD (2009) 22 VR 533 at [38].

Current sentencing practices

Sentencing Act 1991 s 5(2)(a) and (b) provide:

(2) In sentencing an offender a court must have
regard to —

(a) the maximum penalty prescribed for the offence; and

(b) current sentencing practices;

This appeal considered how to resolve the tension that might arise if the prescribed maximum for an offence varies from current sentencing practices — especially if the maximum has been increased by Parliament.

At [77] in its joint judgment, the Court declared that current sentencing practices means the approach currently adopted by sentencing judges when sentencing for the particular offence. That involves considering relevant sentencing statistics for the offence (echoes of MacNeil-Brown) and sentencing decisions in comparable cases.

The Court then referred to DPP v OJA (2007) 172 A Crim R 181 at [29]–[32], where Nettle JA said (my paraphrase) current sentencing practices:

1. Prohibit identifying aggravating increments and mitigating decrements above a mathematical norm (which would offend the Markarian proscription of two-step sentencing). But some [sexual] offences are more serious than others and there is a need for at least some degree of comparison.
2. Having regard to current sentencing practices doesn’t mean manifest excess and inadequacy are capped and collared by the highest and lowest sentences for previous similar offences. A sentence may properly rise above or fall below the greatest and lowest sentences previously imposed.
3. Sentencing Act 1991 s 5(2)(b) requires courts to have regard to current sentencing practices. That doesn’t preclude increases or decreases in the level of sentences for particular kinds of offences. Over time, views may change about the length of sentence which should be imposed in particular cases and, when that occurs, the notions of manifest excessiveness and manifest inadequacy will be affected. It is possible that previous sentences were simply too low.

In short: sentencers should consider relevant sentencing statistics and previous cases, but sentencing ranges are not carved in stone, and can change as prescribed maximums change and as sentencing standards change too.

I expect that in practice this means sentencers will look ever more for assistance from advocates to provide relevant statistics and cases for their consideration to help avoid appeals on sentence.

Bubble trouble

Edit: Contempt proceedings in Victorian courts are (fortunately) rare. One past instance is Anissa Pty Ltd v Parsons [1999] VSC 430.



Cummins J's decision is interesting for the story it tells and the law it applies.

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A magistrate has imposed one month's imprisonment for contempt of court to an accused who blew and popped a chewing-gum bubble at him.







Magistrate Rod Crisp described the bubble-popping as an act 'calculated' to demonstrate disrespect for the court, the Age reports today.



The contemnor had been seeking an adjournment of unrelated matters at Moorabbin Magistrates' Court. He pled guilty to contempt in the face of the court soon after, and was sentenced immediately.



He was released by the Supreme Court last night pending an appeal.