Wednesday, 11 August 2010

Tardy accused is still entitled to bail

GP v The Queen [2010] VSCA 142 saw the Court of Appeal dealing with another Criminal Procedure Act interlocutory appeal.

The accused was committed for trial on 21 counts of obtaining and attempting to obtain property by deception. From 21 July 2009 until 31 May 2010, and despite several directions hearings and adjournments, he didn't retain any lawyers, though it seems he told the court he could get money to fund his defence. In common parlance, a case of 'gunna'...

On 19 April, the judge told the accused if he didn't get his act together she'd consider an application by the Crown to revoke bail.

On 23 April, not much had changed. The prosecutor applied to revoke GP's bail, and the judge granted that application.

GP applied for the judge to recuse herself. She declined; hence the appeal. GP v The Queen tells us now, at [47], that decision is an interlocutory one that may be subject to the process under s 295 of the Criminal Procedure Act 2009.

The Court of Appeal also considered the bail revocation. At [59], Ashley JA said:

[59] I next consider — and indeed it was correctly conceded by senior counsel for the Crown — that there was no basis for the judge revoking the applicant's bail. The reasons which her Honour gave were quite outside legislative warrant, and gave what her Honour did the appearance of punishing the applicant for transgressing directions which in some respects were themselves beyond power. The circumstance that, as it appears, another County Court judge had earlier threatened the applicant with such a course did not transform what was otherwise beyond power into a lawful act. The judge's statement of what needed to be done before a fresh grant of bail would be considered was misconceived. It built upon the illegality of what was being done by the judge's order.

Bongiorno JA endorsed that observation, and added comments on the role of the prosecutor.

[64] I agree with Ashley JA and add only the following comments concerning the position taken by the Crown in this matter before the primary judge. The function of a Crown prosecutor is to act as Minister of Justice. It is not the function of a Crown prosecutor merely to act as might some counsel in an ordinary inter partes proceeding, taking every point regardless of its merit. It is the function of a Crown prosecutor, by appropriate argument to assist a Court not to fall into appealable error. In this case the prosecutor fell short in the discharge of these duties.

[65] On 23 April she seized upon the judge's earlier suggestion that bail might be revoked without any apparent consideration of whether there were any grounds for such revocation. There were of course no such grounds.

[66] The application for revocation was made using the arguments suggested by the judge and included reference to conduct of the accused's brother-in-law in giving evidence before the Court. These arguments were insufficient in any sense to justify an application for revocation of bail. Further, when the judge said she would not consider bail for the applicant until he had complied with her wishes as to the preparation for trial, the prosecutor remained mute, complicit in a situation where a citizen had been unlawfully deprived of his liberty by having his bail revoked and would continue to be deprived of his liberty until the judge's wishes were met.

[67] The prosecutor should have politely but firmly pointed out to her Honour the illegality of the course she was following and urged her to reconsider the matter. That was the prosecutor's duty. The criminal justice system depends upon prosecutors discharging their obligations to the Court fearlessly. Had the prosecutor done so in this case it may have been unnecessary for this Court to intervene in the applicant's trial as it has had to do.

Two things come out of this loud and clear.

The first is about the proper function of bail. Dr Manhattan mentioned last week the proposed tinkering with the Bail Act. (It falls a long way short of the VLRC recommendations to overhaul bail legislation in Victoria, but I suspect there's more to come and this is just a stop-gap.) If there were any doubt, it's now unarguable that case-management isn't a relevant consideration in bail decision-making.

The second is, once again, the Courts' expectation of advocates — and prosecutors in particular — to hold firm, no matter the view from the Bench, in helping a Court avoid appealable error.

Sunday, 8 August 2010

Legislation Watch: Firearms and Other Amendments Act 2010

Edit: The Act received Assent on 7/9/10. If not proclaimed earlier it will come into effect on 1/7/11.

As the law currently stands if it looks like a gun, it is a gun. This will change when the Firearms and Other Amendments Act 2010 comes in.

The bill is here. The Explanatory Memorandum can be found here and the Statement of Compatibility is here. In the Second Reading speech Justin Madden said,

The change in the regulation of imitations firearms results from a national agreement between all of the states and the commonwealth. Ultimately, all jurisdictions will regulate imitation firearms, based on the definition that this bill inserts into the Control of Weapons Act 1990.

The Control of Weapons Act will be amended to include the following definition of imitation firearm:

Imitation firearm is defined as a device, the appearance of which could reasonably be mistaken for that of an operable firearm, but which is not designed or adapted to discharge shot or a bullet or other missile by the expansion of gases produced in the device by the ignition of strongly combustible materials or by compressed air or other gases, whether stored in the device in pressurised containers or produced in the device by mechanical means and is not capable of being made to do so.

The new definition of firearm will be the same in the Control of Weapons Act and Firearms Act, and will read:

firearm means any device, whether or not assembled or in parts and whether or not operable or complete or temporarily or permanently inoperable or incomplete-

(a) which is designed or adapted to discharge shot or a bullet or othermissile by the expansion of gases produced in the device by the ignition of strongly combustible materials or by compressed air or other gases, whether stored in the device in pressurised containers or produced in the device by mechanical means; and

(b) whether or not operable or complete or temporarily or permanently inoperable or incomplete.

The phrase which has the appearance of such a device will be removed.

An imitation firearm will become a prohibited weapon at s 5 of the Control of Weapons Act. The maximum penalty for possession or dealing with a prohibited weapon is 480 penalty units or 4 years imprisonment.

Once passed the amendments will come into effect on 1 July 2011, unless enacted earlier.

Friday, 6 August 2010

Going postal

The NSW Supreme Court discussed the operation of s 160 of the Evidence Act 1995 (NSW) in Gabriel Hotels Pty Ltd v Corlita Pty Ltd [2010] NSWSC 826.

That section is the same as our own s 160, and reads,

160. Postal articles

(1) It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted.

(2) This section does not apply if-

(a) the proceeding relates to a contract; and

(b) all the parties to the proceeding are parties to the contract; and

(c) subsection (1) is inconsistent with a term of the contract.

(3) In this section, working day means a day that is not-

(a) a Saturday or a Sunday; or

(b) a public holiday or a bank holiday in the place to which the postal article was addressed.

We discussed this section here last year. I said then that I thought that this presumption would be a very weak one, and Gabriel Hotels tends to shows this prediction to be correct.

A brochure from Australia Post setting out standard delivery timeframes was found to be sufficient to rebut the presumption in this case.

Monday, 2 August 2010

Smith v The Queen [2010] VSCA 192; the impact of forgiveness on sentence

Smith v The Queen [2010] VSCA 192 reaffirmed that a victim's forgiveness can be a relevant consideration in sentencing, but should be treated cautiously.

Evidence of forgiveness by the victim may indicate that the consequences of the offence on the victim have not been long-term or debilitating, thereby affording some mitigation: R v Skura [2004] VSCA 53. AJA Smith said in Skura [at 48] that '[w]here the offence occurs in a domestic situation, the attitude of the victim may be relevant to the question of rehabilitation'.

I mentioned in a post a couple of days ago that the case of DPP v Walden [2003] VSCA 139 left undecided whether material in a VIS - specifically evidence of the forgiveness of the victim - could be used in mitigation.

In Smith the accused faced charges of recklessly causing injury to his partner, and attempting to pervert the course of justice by endeavouring to persuade her to withdraw the complaint. The accused pled guilty, but on the appeal argued that the submissions by his counsel about his reconciliation with the victim were not given appropriate weight on the plea.

The Court found that wasn't true in this case and dismissed the appeal. Beach AJA [at 8]:

8 In my view, the sentencing judge was not bound to give any weight to the unsupported assertions that were made below concerning Ms Rodriguez’s attitude to the prosecution. As was said by Neave JA in R v Hester, even in cases where there is evidence of forgiveness of the victim of domestic violence, this evidence should be treated with extreme caution.

In cases of domestic violence the victim may be particularly susceptible to the offender's influence. Eames JA said in R v Wise [2004] VSCA 88 [at 36]:

36 The support offered to the appellant by his victim is also a significant factor when assessing his prospects of rehabilitation. It is, of course, an unfortunate fact that victims of violent, drunken partners, to their own cost, often seek to forgive their partner and to resume a dangerous relationship. The courts must offer protection even when the potential victims deny its need, but the forgiveness of an offender by a victim of crime and the positive effect that has on prospects of rehabilitation is not an irrelevant factor in sentencing. In this case the victim appears to have been a vulnerable person in many ways, not least because of her youth, and it is understandable that His Honour apparently saw the protection of the community, including [the complainant], as being a more important consideration on sentencing than her desire to resume cohabitation with the appellant.

Bongiorno J went further in R v Melten [2001] VSC 184 [at 21]:

Whilst it is important that reliable information as to the effects of a crime upon a victim should be placed before a sentencing court, it must be borne in mind that the sentencing process is one in which the Judge must balance the interests of the State against those of the offender. Whilst it is entirely appropriate, and indeed required, that the Court take into account the effects of a crime upon a victim it must be vigilant to ensure that the views of a victim as to what might or might not be an appropriate sentence in a particular case do not intrude upon the sentencing process. Were they to do so the process would be distorted so that the perpetrators of crime would be dealt with, in part at least, according to whether the victim was prepared to extend or withhold mercy as the case may be. A moment's reflection demonstrates that the victim of a crime is the worst possible judge of what is fair and just treatment of an offender. This is so whether the victim's inclination is to forgive or to urge the Court to exact vengeance.

Sunday, 1 August 2010

Legislation Watch: the Bail Amendment Bill 2010

The new Bail Bill has arrived.

It's not a whole new Act, but a revamp of the existing one. Once passed, it will commence on 1 January 2011 unless proclaimed earlier. The Bail Amendment Bill 2010 is partially based on the recommendations of the VLRC's Final Report released in 2007. That report had 157 recommendation for change. This amending legislation addresses 40 of them. The remaining recommendations are still being considered.

The Explanatory Memorandum can be read here. The Second Reading Speech is here, and the Statement of Compatibility here.

So what's going to change with the Bail Act 1977 and what will stay the same for now?

'Show Cause' and 'Unacceptable Risk'?

The two primary tests that can lead to a refusal of bail in the summary jurisdiction remain as they are for now. Watch this space - a discussion of the proposed changes is in the works and will be posted soon.

Bail conditions

The distinction between general and special conditions is to be abolished. The amendments expressly provide that bail conditions may only be imposed when necessary, and only to reduce the likelihood that the accused will:

fail to attend court

commit an offence while on bail

endanger the safety or welfare of members of the public

interfere with witnesses or otherwise obstruct the course of justice.

If requiring a deposit the court must have regard to the accused's ability to pay.


The court, when considering a surety, must also consider the ability of the surety to pay. The amendments create a new procedure for objection to a surety. Where an objection is raised the suitability of the surety is to be determined by a magistrate or judge. The provision is deliberately silent on who may raise the objection in order to allow objections to be raised by anyone involved in the proceeding — including the registrar, the police informant or prosecutor or the court.

The power of arrest for sureties is to be abolished, in recognition of the fact that this power is never used and this function would be better performed by the police.

Further bail applications, revocation applications and variation applications

A subsequent application from the refusal of bail by a bail justice has been made easier under the amendments. There are no other substantive changes to the operation of s 18.

Charter of Human Rights

The amendments insert reference to the Charter of Human Rights and Responsibilities Act 2006 and specific references to 7(2), 12, 21, 23 and 25.

Bail justices

The bill establishes five year fixed terms for bail justices, with the ability for re-appointment. The Secretary of the Department of Justice is granted new powers to train, supervise and monitor bail justices in the performance of their duties.

Debate will continue on 12 August.

Wednesday, 28 July 2010

Documents that lie about themselves

The offences at 83A of the Crimes Act 1958 can be committed in a variety of different ways, though the most common forms allege either the making of a false document or the use of a false document.

Charges of making and using a false document are distinct and punishment on both is not double jeopardy: R v Frugniet [1999] VSCA 59 [at 90]. (Hat-tip to the anonymous contributor from the Double Jeopardy post for pointing that out.)

A common misconception concerns when a document is properly considered false. The offences created at s 83A were called forgery prior to 1988. Typical examples include fake bank notes, bogus identity papers, dodgy transactables, and the like. A document that merely has false information on it (eg. a loan application where the applicant has deliberately overstated their earnings, etc.) may be the subject of a charge under s 81 or 82 of the Crimes Act but it's not a false document.

Winneke P in R v Ceylan [2002] VSCA 53 [in 4]:

The sub-sections of s.83A of the Crimes Act are not easy to construe or apply and require close attention to detail in the manner of presentation of charges alleging offences against them. The essence of the crime of "making a false document" contrary to s.83A(1) is not simply that the document is false in the sense that it contains material untruths about past facts; rather its essence is to be found in the fact that the document "tells a lie about itself" in the sense that it purports to be something which it is not (that is, not "an authentic document"). Thus, the gravamen of the offence is to be found in sub-s.(6) which sets out the various ways in which a document can be "made false" for the purposes of the offence, and which marks the offence out from related offences such as "false accounting" (s.83) and "obtaining financial advantage by deception"(s.82).

Giving a document the appearance of having been created or added to by one person when this was done by another person can 'lie about the nature of a document'. In the case of a will, contract or similar document this would probably fall within the ambit of s 83A.

The identity crime provisions that came in last year duplicate and expand existing forgery offences. They are found at Division 2AA of the Crimes Act (between ss 192A and 192E) and significantly overlap with s 83A.

The contents of Victim Impact Statements

Edit: Events in the Supreme Court last week show that there will be stumbles during attempts to involve victims in the sentencing process. Perhaps some of the flexibility recommended by the Court of Appeal in Hester's case might have helped.

Last Friday's post about cutting-and-pasting interviews got me thinking about Victim Impact Statements, another document tendered by the prosecution which can sometimes become controverisal.

Gillard J in R v Medini [2002] VSC 12 [at 12]:

In 1994, legislation was introduced into this State which provided for a victim impact statement to be prepared by a victim and submitted to the Court to assist in determining the appropriate sentence. This had the effect of facilitating what, in the past, had been a difficulty, namely, placing before the Court credible evidence of the effect of the criminal conduct upon a victim. Often in the past, assertions were made from the Bar table and the Court was more often than not left to its own devices to draw inferences from the circumstances of the offence as to the likely impact on the victim. Now a procedure is available to enable evidence in proper form to be placed before the Court. Sections 95A - E of the Sentencing Act 1991 make provision for use of the statements.

Victim Impact Statements offer parties to a sentencing hearing an alternative to calling the witness for the (often confronting) experience of giving evidence. The prosecution benefit from a readily-available method of putting the consequences of the offender's crimes before the court.

R v Medini [2002] VSC 12 [at 52]:

The impact statements assist the Court in a number of ways. Often in the sentencing process, the focus tends to be on the prisoner, and the impact statement is a timely reminder that the Court should not overlook the effect of the criminal conduct on the victim.

The accused also benefits in avoiding being seen to cause further distress to the victim of their offending, as they might if they cross-examine the witness rigorously. The last thing an accused wants is to appear demeaning to their victim at the exact moment the appropriate sentence is being considered.

Preparation of a VIS

Because of the reduced amount of control the prosecution have over the production of a VIS (as opposed to a witness's statement or plea document) there sometimes is material contained in a VIS that is inappropriate. Vincent JA observed in DPP v DJK [2003] DPP v DJK [at 17]:

The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made.

It seems contradictory to me to say on the one hand that VISs contain valuable information that a court should have regard to, but on the other hand a court should not enquire into the accuracy of the information contained in them. This paradox is also reflected in the legislation about VISs at Division 1A Part 6 Sentencing Act 1991.

Section 95B reads:

95B. Contents of victim impact statement

(1) A victim impact statement contains particulars of the impact of the
offence on the victim and of any injury, loss or damage suffered by the victim
as a direct result of the offence.

(2) The court may rule as inadmissible the whole or any part of a victim
impact statement, including the whole or any part of a medical report attached
to it.

The Act desn't provide any further guidance as to what the term direct result should be interpreted to mean. (Given the endless legal arguments that can be had about causation this seems to be an open invitation to inconsistency). Perhaps more importantly, the Act provides no further clarification of the bases on which a court may rule parts of a VIS inadmissible.

Under s 4(2) of the Evidence Act, the rules of evidence of that Act do not apply to sentencing unless one of the parties asks for the rules to be applied and the court deems it appropriate. Does that mean, absent such a request, that the common law rules of evidence apply to sentencing hearings, or that no evidentiary rules apply at all? Sentencing hearings seem to exist in a kind of limbo where the rules of evidence may be applied either selectively or not at all. Victim Impact Statements have developed out of this gray area.

Nettle JA in R v Swift [2007] VSCA 52 [at 7, Vincent JA and Habersberger AJA also agreeing]:

7 Hitherto, counsel appearing before sentencing judges have tended not to say a great deal about the admissibility of the contents of victim impact statements. In effect, they have left it to sentencing judges to work out which parts of a statement are admissible and may be relied upon. Such an approach is to some extent contrary to mainstream criminal practice, where the taking of objections tends to be punctilious. But it has considerable advantages, in the context of a plea, which are likely to appeal to both sides. It also accords with the observations of Charles JA in R v Dowlan [1998] 1 VR 123 and of Vincent JA in DPP v DJK that it would be destructive of the purpose of victim impact statements if their reception in evidence were surrounded and confined by the sorts of procedural rules which are applicable to the treatment of witness statements in commercial cases.

8 Of course, it remains incumbent on counsel for a prisoner on a plea to take objection to those parts of material known to be before the judge which counsel wishes to have treated as inadmissible against the prisoner. Otherwise, as Murphy J said in R v Halden (1983) 9 A Crim R 30 (in another but related context), if it does not appear that a sentencing judge has necessarily relied upon material to which objection might successfully have been taken, counsel cannot hope to succeed in a submission on appeal that the judge in fact relied upon inadmissible material. Furthermore, if objection is taken on a matter of substance to any part of a victim impact statement which is inadmissible, the judge should either rule it inadmissible or make it clear during the plea or in his sentencing reasons that no reliance would be or was being placed on that part of the statement. But, under the existing practice, there is no reason why a judge should not make full use of relevant material in a victim impact statement, including material which goes beyond the ambit of s 95B , so long as the judge first makes plain to counsel that he or she intends to adopt that course and counsel does not object: R v Raimondi [1999] VSCA 101 at [15], per Tadgell JA and at [35], per Callaway JA, in diss, but not in principle; R v Wilhelm [2005] VSCA 192 at [12].

9 As at present advised, I see no reason to alter the existing practice. It provides advantages and a degree of flexibility of which strict adherence to the rules of evidence would not permit. From the victim’s perspective, it has the advantage of avoiding the need for a court appearance and, in favour of the offender, it allows the sentencing process to be completed more quickly and without the same degree of concentration on victim impact that the attendance of the victim may produce. Provided the judge makes plain his or her intention to make use of inadmissible material in the statement, the offender has the choice of either allowing the judge to adopt that course or alternatively of objecting to the use of the inadmissible material and requiring the victim to be called to give evidence of it. There is also the further protection, as the court has stated more than once before, that victim impact statements are not to be used to produce a sentence which is unfair; and articulate or emotional statements should not be used to justify a sentence which is not just in all the circumstances.

The Court in Swift dismissed the notion that the prosecution is responsible for the production of the VIS and should supervise its production and edit its contents:

6 The appellant’s argument implies that a victim impact statement is to be equated to Crown evidence and, consequently, that the Crown has a responsibility to put the statement in admissible form. That is not the case. The purpose of a victim impact statement is to give the victim of crime the opportunity to place before the court his or her own statement of the impact of the crime on him or her and his or her family and to ensure that the sentencing judge is informed of the victim’s concerns. Moreover, since victims of crime are usually lay persons with little understanding of the rules of evidence, and who are likely to be emotional about the subject of their statements, it is to be expected that they may include inadmissible material.

Case Law

Case law on the issue is scattered, revealing no strong pattern of principle as to whether material should be ruled inadmissible, admitted but given little weight, or admitted for some purposes but not others. It's probably fair to describe precedents as turning largely on their own facts.

A claim that an assault had led to cancer was discounted in R v White [2004] VSC 428. The disapproval of the victim's family in the reduction of the charge from murder to manslaughter was likewise held to be inadmissible in R v Curtain [2007] VSC 309. In DPP v Walden [2003] VSCA 139 the forgiveness of the victim was argued to be inadmisssible by the DPP, and the Court left the issue for another day. The experience of a rape victim during the termination of her pregnancy was held to be relevant and admissible, even though some aspects of the experience were not the direct responsibility of the offender: GEM v The Queen [2010] VSCA 168.

One recurring theme is that overly emotive material must not be allowed to sway the court into awarding a more severe sentence than is appropriate in the circumstances.

R v Hester [2007] VSCA 298:

The reception of a victim impact statement into evidence on the plea is to be approached by the sentencing judge with a degree of flexibility, subject to the overriding concern that, in justice to the offender, the judge must be alert to avoid placing reliance on inadmissible matter.

Recent Changes

Section 95F permits the reading aloud of victim impact statements by the prosecutor as part of the sentencing hearing. The Justice Legislation Amendment (Victims of Crime Assistance and Other Matters) Act expands this to allow victims of crime to read their own statements.

The legislation amends the existing provisions in the Sentencing Act 1991 and Children, Youth & Families Act 2005 to allow victims of crime to read aloud their own statements, rather than having the prosecutor do this. The explanatory memorandum describes the intent of the amendments as recognising, "the importance of victims, including family members and others who suffered as a direct result of the offence, having a voice to express the impact of the offence to the court if they so wish."

The new amendments repeat that only portions of statements deemed admissible by the sentencing court will be allowed to be read.

Monday, 26 July 2010

Salt v Godenzi & Anor: the final days of proper venue?

With the introduction of the Criminal Procedure Act 2009 the phrase proper venue is soon to become obsolete.

The phrase comes with several decades of jurisprudence attached to it. The new Act deliberately avoids using it in s 11.

One of the last cases that will consider it is Salt v Godenzi & Anor [2010] VSC 259. The accused attempted to rely upon a typographical error in the charge-sheet (a failure to nominate the suburb of the court) but the argument was rejected in each of the three jurisdictions it was argued.

After brief analysis of Project Blue Sky v The ABA (1998) 194 CLR 355, Sinclair v The Magistrates Court of Victoria at Ringwood [1998] VSC 170 and s 50 of the Magistrates' Court Act 1989 (as it then was) Beach J found,

24 In my view, s 50 of the Magistrates’ Court Act is the answer to the plaintiff’s argument. Section 50 prohibits a court from allowing an objection to a summons on account of any defect or error in it in substance or in form. In this case, the plaintiff sought to persuade the Court below to allow an objection to the summons “on account of ... [a] defect or error in it in substance”. There were five appearances at the Frankston Magistrates’ Court. The plaintiff was aware that the Frankston Magistrates’ Court was the venue for the proceeding and he attended with counsel on the day the charges were listed for hearing. The plaintiff then initiated an appeal from the orders of the Magistrate and again attended with counsel for the hearing of the appeal. The very purpose of s 50 is to prevent an argument of the kind put by the plaintiff in this case.

His Honour continued,

27 In further support of the argument that s 50 of the Magistrates’ Court Act had no application in this case, I was referred to six additional authorities: Woolworths (Victoria) Limited v Marsh (Unreported, Ormiston J delivered 12 June 1986), Goodey v Clarke [2002] VSC 246, Green v Philippines Consulate General [1971] VR 12, John L. Pty Ltd v The Attorney General for the State of New South Wales (1987) 163 CLR 508, Flanagan v Remick [2001] VSC 507 and Ex parte Lovell; re Buckley (1938) 38 SR (NSW) 153. However, none of these cases are of assistance to the plaintiff. All of these cases concern the laying of charges or informations which were found to be defective. There is no suggestion that the charges laid in the present case were in any way defective. The plaintiff’s complaint concerns the terms and content of the summons. The proceeding was commenced in the Magistrates’ Court by the filing of the charges. It was then necessary for a summons to be issued to answer the charges. The considerations concerning the filing of defective charges do not have the same application as those in relation to a defective summons. Nothing in the authorities relied upon by the plaintiff cuts across the plain reading and application of s 50 of the Magistrates’ Court Act in this case.

The application for review was dismissed.