Thursday, 22 July 2010

Brain v The Queen [2010] VSCA 172: cutting and pasting the interview

Section 89 of the Evidence Act prevents evidence of silence being used to infer guilt. If evidence can only serve that purpose it is not admissible.

(As Jeremy Gans commented on my related post last year, this includes silence by any person, not just the accused, in response to an investigating official. It's possible to think of some instances where these prohibitions might lead to some odd results).

The Judicial College has recently published a new chapter discussing silence in response to people in authority. It doesn't (yet) refer to Brain's case which was handed down earlier this month.

Brain v The Queen

In Brain v The Queen, the appeal concerned the admissibility of answers in the record of interview. They had been objected to but allowed at trial. The accused's answers frequently referred to a desire not to answer the question or not to incriminate himself. The appeal ground contended that these answers were irrelevant and prejudicial, and ought to have been excluded.

Coghlan AJA [at 11, with Weinberg and Mandie JJA in agreement]:

11 The matter can best be illustrated by considering some of the questions and answers in the record of interview:

139: Yeah. Can you describe how he did it and what he did and - - -?

No, I’d rather not do that. I don’t want to incriminate myself, but he started laying his hands on me, physically.

140: I’m asking you to describe what he did to you, and that - - -?

No, well, that’s hay my - - -

141: That’s what you’re telling me. You’re telling me he assaulted you.


142: Yeah?

That’s as far as I’m prepared to say, because he was speaking to ‘em. Like he had spoken to you guys three times, you know, just prior and said, “Don’t worry about it,” and while he was speaking to the ambulance I said, “You don’t have to do this,” and he started physically assaulting me.

143: Was he still on the phone then, at the time, was he?


144: Or had he hung up?

No, no. He was still on the phone.

145: Okay, was he throwing punches at you, was he throwing things at you? That’s what I’m asking you to describe, if you can, how he was assaulting you.

Well, he was physically assaulting me, and I don’t want to go any further than – than what I’m saying, but he was laying his hands on me - - -

146: Yeah.

In a violent manner.

147: Well, the reason we’re here now is that an allegation has been made of assault by you, upon him which we’re investigating.


148: Okay. So he told us that an assault took place in which case – in – where – whereby he was injured and the injuries were committed by yourself, what would you say to that?

That’s what that – I – I don’t wish to answer that.

The Court of Appeal noted (as the trial judge had also) that counsel at trial hadn't objected to every instance where the accused had stated a desire not to answer, but only where it was not tactically advantageous to the defence case to allow the answer. The Court also noted that the accused had not given evidence at his trial and that some parts of the record of interview that were not objected to laid the foundation for the accused's assertion of self-defence.

Coghlan AJA [at 17]:

17 There are numerous other examples of questions and answers to which no objection was taken, although these included expressions which, viewed in isolation, might have suggested an unwillingness to comment. It is fair to say that the defence position was that the applicant wanted those parts of the record of interview which supported a defence of self-defence to be included, whether or not they contained expressions such as ‘no comment’, or ‘I do not wish to incriminate myself’. However, where those expressions were not specifically linked to self-defence, or otherwise advantageous to the applicant, it was sought to have the record of interview edited, and the answers excluded.

18 The Crown submitted that, having regard to the overall position taken by the applicant to the record of interview, there was no reason why the impugned questions and answers should be excluded. Although the prosecutor referred to cases such as Woon v The Queen, R v McNamara and R v Barrett, all of which deal with ‘selectivity’ as rendering ‘no comment’ style answers relevant and admissible, he did not rely upon that doctrine, or any notion of ‘consciousness of guilt’ in support of their admissibility.

19 Ultimately, the position taken by the Crown in relation to the impugned questions and answers was a simple one. It was submitted that the record of interview, as a whole, could only be intelligible if those questions and answers were admitted.

The Court of Appeal found this simpler line of argument compelling. Leave to appeal was refused. The Court was satisfied that appropriate directions had overcome any prejudice to the accused.

AJA Coghlan [in 29]:

The only reason why the trial judge permitted the ‘no comment’ answers to be led was because, otherwise, the record of interview would have produced a disjointed and misleading impression. Counsel who appeared for the applicant at trial wanted, selectively, by what could be described as a ‘cut and paste’ approach, to have only those ‘no comment’ answers that were linked in some way to the applicant’s defence admitted, but not others. Plainly, he took the view that otherwise the applicant’s defence would not have been before the jury at all. It should be noted that the applicant did not give evidence at the trial, so his defence had to depend largely upon what might be elicited from the complainant in cross-examination, and those answers the applicant gave regarding self-defence in the record of interview.

30 As a general rule, ‘no comment’ type answers are regarded as irrelevant, and potentially prejudicial. For that reason, they are normally excluded. However, the question of admissibility must, in the end, depend upon the particular circumstances of the case.

Monday, 19 July 2010

Summary Case Conferences

Edit: The Judicial College has published some information about summary case conferencing in its Criminal Procedure Manual at 3.3.

VLA have started a Summary Procedure Bulletin on their website. The intention seems to be to keep court users informed of the progressive roll-out of the scheme. This one talks about the establishment of Brief Integration Service Centres (BISCs) at Cragieburn and Moorabbin.

Chief Magistrate's Direction No 3 of 2010 comes into effect today.

It replaces Direction No 6 of 2009, discussed here last year. Like No 6, the new direction doesn't offer much in the way of detail, leaving the process to vary from one Magistrates' Court location to the next. There's more information contained in the Best Practice Guide to the Criminal Procedure Act, discussed here.

The new direction suggests that contest mention hearings will be retained as part of summary procedure. (There had been a suggestion from some quarters that formal contest mention hearings had become irrelevant since the introduction of summary case conferencing).

Thursday, 15 July 2010

JCV updates

The Judicial College has updated its Charge Book.

Changes bring the manual further into line with the provisions of the Evidence Act 2008. They include:

New Chapters

4.15.1 - Silence in Response to People in Authority – Bench Notes and a Charge

4.15.2 - Silence in Response to Equal Parties – Bench Notes and a Charge


4.1 - The Accused as a Witness - UEA revisions

4.11.1 - Prosecution Failure to Call or Question Witnesses – UEA revisions (* draft material subject to further revision*)

4.11.2 - Defence Failure to Call Witnesses – UEA revisions (* draft material subject to further revision*)

4.11.3 - Failure to Challenge Evidence (Browne v Dunn) – UEA revisions

4.14.1 - Previous Representations – Further revisions to Bench Notes

Magistrates' Court Bench Book

Speaking of bench books, I predicted last year that a Victorian Magistrates' Court Bench Book (probably available in electronic form from the JCV) was just around the corner.

It's sorely needed. Any expectation that judicial officers sitting in the summary jurisdiction can have knowledge of the many orders, applications and actions that the Magistrates' Court deals with ready to go at a moment's notice is unrealistic.

The UK's Magistrates' Court Bench Book is one way of consolidating some frequently required material. The NSW Judicial Commission have recently released their version to the public. A particularly helpful feature for all practitioners there is the Specific Penalties and Orders area where the penalties for the most common offences dealt with in the Local Court (there are hundreds of them) are laid out in tables.

Chief Magistrate Ian Gray gave his support to providing material that increases consistency between magistrates, including a Bench Book, last year. The idea hasn't been mentioned recently but its time has surely come.

Tuesday, 13 July 2010

Getting credit at the sentencing bank

Edit: In Karpinski v The Queen [2011] VSCA 94, Weinberg JA voiced a concern over the way R v Renzella [1997] 2 VR 88 is now being applied [at 7]:

Any accused who has been wrongly imprisoned is, of course, the victim of a grave injustice. It does not follow, however, that it is society’s duty to ameliorate that injustice by giving the accused credit for the time spent in custody when he is sentenced at a later time for entirely unrelated offending.

s 18 Sentencing Act 1991 requires pre-sentence detention to be reckoned in calculating the appropriate term of imprisonment to be awarded.

Time in custody for more than one reason (for example, awaiting trial while also serving a sentence for something else) can also be reckoned as time served. (When s 18 of the Sentencing Act did not allow for this, the common law still did: R v Renzalla [1998] 2 VR 88). Even when 'doubly warranted' a sentencing court can take some or all of that period of incarceration into account.

The use of custody that's wholly unconnected to the offences which the accused is being sentenced for is less clear. Callaway JA said in R v Kotsmann [1999] 2 VR 123 [at 137],

There can be no question of a person on remand who is subsequently acquitted acquiring a kind of bank balance on which to draw in relation to subsequent offences unconnected with the reason for custody ...

It wouldn't be a good look if a person who had been charged and acquitted, but who had spent 18 months awaiting their trial, were able to cash in on their 'credit'. They'd probably be foolish if they didn't take advantage of the 'debt' owed them by the State and commit some free crimes.

The weight of authority favours the existence of a discretion to take into account unrelated time in custody, depending on the circumstances of the case. The exercise is not mathematical, or confined to a strict ratio: Maxwell P and Weinberg JA in their joint judgment of Warwick v R [2010] VSCA 166 [at 10]. And the Court in Warwick's case suggested this discretion could change in the future [at 18 and 19]:

It does seem to us, as we raised in the course of argument, that there may be a question for investigation as to the basis on which detention of that kind is thought to be relevant when the person comes to be sentenced for quite unrelated matters. In so saying, we recognise that there is obvious injustice where a person has served a term of imprisonment which he or she should not have served. In other jurisdictions, that injustice is addressed by formal procedures for compensation for such periods. No such system exists in this State.

The question which may require investigation is whether a form of judicial compensation, by way of sentence discounts in relation to other matters, is the appropriate way to deal with this species of injustice. As we have said, the law in Victoria as it stands is that it is properly dealt with in that way. As Weinberg JA pointed out, however, the logic of this approach would seem to be that ‘unjust’ imprisonment should always stand to a person's credit, however long after the event it is sought to be called in aid. As we say, that is a question for another day.

Thursday, 8 July 2010

Prohibited persons and section 189 applications

To own a gun or be able to use one in the state of Victoria you need a licence (or be the holder of a relevant exemption). Under the Firearms Act 1996 you can't get a licence or legally acquire a firearm if you are a prohibited person.

Lots of situations can make a person prohibited. In this post I want to focus on s 3(c) which provides a prohibited person is,

(c) a person who is subject to-

(i) a final order under the Family Violence Protection Act 2008 that does not include conditions cancelling or revoking a licence, permit or authority under this Act, or an order of a corresponding nature made in another State or a Territory; or

(ia) a final order under the Family Violence Protection Act 2008 that does include conditions cancelling or revoking a licence, permit or authority under this Act, or an order of a corresponding nature made in another State or a Territory; or

(ib) a final order under the Stalking Intervention Orders Act 2008 that does not cancel or suspend a licence, permit or authority under this Act, or an order of a corresponding nature made in another State or a Territory; or

(ic) a final order under the Stalking Intervention Orders Act 2008 that does cancel or suspend a licence, permit or authority under this Act, or an order of a corresponding nature made in another State or a Territory;

A prohibition continues 5 years after the expiry of the order, and the consequences that flow from prohibited person status can be severe. The statutory maximum penalties for prohibited people found guilty of possessing firearms are, on average, about twice those for non-prohibited persons. A prohibited person can't be involved in the management of a firearms business. The exemptions from holding a firearms licence that apply to soldiers, police officers and others do not apply to prohibited persons.

Section 189 of the Firearms Act allows an application to be made to the Magistrates' Court for a person to be declared to be a non-prohibited person, either absolutely or for limited purposes. After the application is lodged, notice is served on the Chief Commissioner of Police (in reality a police agency called the Licensing Services Division) that decides whether or not the application to be deemed non-prohibited will be opposed.

Although applicants are allowed (and well-advised) to be represented by a legal practitioner in the Magistrates' Court hearing, many appear to elect not to. Case law on the proper operation of s 189 is rare (particularly when compared with the NSW jurisdiction, where these sorts of decisions are determined by the Administrative Decisions Tribunal).

The Victoria Police have recently put up some extra information on their website about the way the system works.

Has anyone out there had experience of this process?

Monday, 5 July 2010

iPad a great tool for court

I'm a big fan of technology...when it makes life easier — especially in the courtroom or some other aspect of advocacy.

I bought an iPad with a pretty good idea of what it can and can't do, and in the month I've had it, I've found it to be a fantastic tool for use at Court.

It's a great way to access email and the internet, and the fact that it's always on and small enough to carry in my hand like a notepad makes it more convenient that using a laptop for that. The calendar on the iPad is a big improvement on the iPhone calendar, and makes it easy to instantly see what's in my schedule.

And with applications like PressReader, I can carry several newspapers with me, along with podcasts from the Law Report.

The other great use is to reduce the amount of paper but increase the amount of information I can take with me. I scan my briefs to PDF, OCR and bookmark them, and then load them on the iPad. I sure appreciated that on the weekend when I took home a 400-page brief in digital form rather than hard-copy!

And the ability to carry acts and cases is great. And if something pops up at Court, I can search for and download a lot of what I might need!

There are a few applications available on the iPad for viewing PDFs. The best ones are iAnnotate or GoodReader.

iAnnotate allows annotations on the iPad, but — as far as I know — they don't sync back to the file on your computer. Have a look at this blog post from the prosecutor's office in Wise County Virginia, to get an idea of how to use iAnnotate.

Right now, GoodReader doesn't provide for annotations to PDFs on the iPad — like highlighting text or notes in the margins — but I emailed the developers and they say bi-directional annotation support is coming soon. I look forward to that, because right now any annotations I make in Adobe Acrobat aren't visible on the file on the iPad.

This is what GoodReader looks like on the iPad.

Combined with DropBox — a must-have utility — this gives me access to all my files, and the ability to download them on to the iPad.

When I open a file — say, the Criminal Procedure Act 2009 — I get exactly the same as the printed copy, but without the bulk. Yes, there are times when hardcopy is more useful. For example, I'd take my hardcopy Road Safety Act to a contested hearing. But I can't physically carry 20 different hard-copy acts and regulations on every occasion I go to court, unlike the electronic versions on the iPad.

Criminal Procedure Act on the iPad

I can access LexisNexisAU on the iPad's browser, Safari.

LNAU on the iPad

I think LexisNexis uses flash to drive its website...and the iPad can't use flash. So, downloading PDF versions of cases from LexisNexisAU doesn't work on the iPad. Best I can get it to do is to display the first page.

Thompson LawBook on the other hand works really well with the iPad. There's no find function on Safari on the iPad (CTRL + F on a PC or ⌘ + F on a Mac), so I use FindStuff to search for a word in a webpage. Or, you might want to try Find in a page, though it's case-sensitive which sometimes restricts its utility.

FirstPoint on the iPad

And PDF copies of cases download quite nicely on the iPad. All I need to do is to insert a G at the start of the URL, and the PDF will download into GoodReader, available for viewing at any time — even if I'm off-line.

Navigation on big documents really requires bookmarks. When they're available — like in Victorian legislation — it's easy to drill down through Chapters, Parts, Divisions, sub-divisions, and sections.

Bookmarks in PDF on iPad

Sadly, the publishers of Commonwealth legislation don't put this in their PDF versions of legislation. (I suspect it's to do with the styles they use in their documents and their conversion settings.) Until they match the great work of Victoria's Parliamentary Counsel, the only solution is to manually add bookmarks. I find that easier on a computer using Adobe Acrobat. Though it can be done in GoodReader on the iPad, it's tedious to say the least on something as big as the Commonwealth Criminal Code!

The iPad isn't a complete replacement for a laptop at Court though. I can use QuickOffice to view and edit MS Office docs, but I still use NoteBook for notes and outlines and TimeLine3D on my laptop. My own view is that the iPad is great for content consumption, but not as good for content creation.

But it's pretty good for what I want it for. I've already had one occasion when I downloaded legislation in the courtroom, anticipating a query from the Bench, and then handed up the iPad to allow the magistrate to read the legislation! And I don't think that will be novel for very long: last week I was told that magistrates' have been provided with an iPad as part of their book allowance. I don't know if that is accurate, and if it means they all get one automatically, or can choose to get one if they want. But keep your eyes peeled for some iPad spotting!

Thursday, 1 July 2010

Penalty units in 2010/11

The value of a penalty unit increases today, 1 July 2010.

The value of a penalty unit for the coming financial year will be $119.45, up from $116.82. This was published in Victoria Government Gazette G 10 on 11 March 2010.

The value of a fee unit will also increase to $11.95, up from $11.69.