Tuesday, 29 March 2011

R v Jensen [2011] VSC 80 — murder, relevance and prejudice

R v Jensen [2011] VSC 80 is a trial-ruling, so strictly does not create a precedent.

But it's a neat example of arguments about relevance and prejudice.

The accused was charged with murdering his father, and accused of trying to make it look like suicide. The police found a book called Forensic Clues to Murder at the accused's house. The spine was broken, so that the book opened at a page discussing a homicide case where the victim was shot and the crime was first thought to be suicide.

The Crown argued the book could have indicated to the accused that he could make a murder look like a suicide.

Kyrou Kaye J rejected the submission, and ruled evidence of the book inadmissible. He considered the evidence was tenuous, as there was no evidence the accused had read the book or when he might have read it. But His Honour considered the book would be highly prejudicial, possibly leading the jury to consider the accused was interested in murder, or murder that first appeared to be suicide.

Monday, 28 March 2011

Legislation search tool

Hat tip to Legal Practice Intelligence's twitter stream for this info... is a legislation search tool that finds current government versions of legislation in every state.

It searches only through titles, but makes comparative research pretty easy.

Looking for legislation in other states dealing with criminal procedure? Search under 'justice' for Justices Acts; 'procedure' for procedure acts; etc.

It links instantly to the government sites, saving trouble of even finding them in the first place.

Sunday, 27 March 2011

Probationary drivers and banned vehicles

Edit: At the Melbourne Grand Prix yesterday Toro Rosso driver Jaime Alguersuari collided with first team-mate S├ębastien Buemi and then former No.1 Michael Schumacher early. Schumacher's car was seriously damaged but Alguersuari went on to finish 13th.

The 20 year old Spaniard demonstrates that young drivers and high performance vehicles are a dangerous combination [this video is from the Japanese Grand Prix in his first season back in 2009, at 0.48]:

The rules about probationary drivers and high-powered cars are contained in Part 2 Division 6 of the Road Safety (Drivers) Regulations 2009.

The General Rule

Regulations 56 and 57: the starting point is that a car will be off-limits to a 'P'-plater if it,

(a) has an engine with 8 cylinders or more; or

(b) has an engine that is turbocharged or supercharged (other than a diesel powered vehicle); or

(c) has an engine that has been modified to increase the vehicle's performance (other than a modification made by the manufacturer in the course of the manufacture of the vehicle); or

(d) is declared by the Corporation under subregulation (4)(a) to be a probationary prohibited vehicle for the purposes of this regulation; or

(e) has a modification declared by the Corporation under subregulation (4)(b) to be a high powered modification.

The penalty for driving a banned vehicle is 10 penalty units, but there may also be consequences on insurance claims or associated charges (for example, involving negligence).

Regulatory declarations make the process more complicated than just popping the bonnet or looking at the rego details. Most casual road users aren't going to find their way to Victoria Government Gazette S518 where a list of cars are either exempted or included in the banned list (does anybody know why there is a list of specific registrations that are exempted?), or Victoria Government Gazette S397 that does the same thing.

Search engine

There is a search function on the VicRoads website that advises whether or not a particular car is on the banned list.


Since 2009 there has been a new classification of lower performance turbocharged or supercharged vehicles. Probationary drivers are allowed to drive these but only if they have a specific exemption and carry it with them when driving the car.

The VicRoads website describes these as vehicles with 6 cylinders or less that are:

    * turbocharged or supercharged with a power to weight ratio of less than 100kW per tonne

    * turbocharged or supercharged with a power to weight ratio between 100kW and 125kW per tonne and that is considered to be a family type vehicle (4 seats or more) rather than a sports type vehicle. A family type vehicle is a sedan, station wagon or hatch normally used to carry families/passengers with 4 or more seats and are equipped with child restraint anchorages. A family type vehicle does not include a sports car (two door coupe).

The cars which fit into this category return a response of 'Application Required' on a VicRoads search. The application form is here.

Regulation 57(4)(c) allows VicRoads to authorise a probationary driver to drive a banned vehicle if the nature of that person's occupation, essential activities or family circumstances is such that compliance with the regulation would impose undue hardship on the person or the person's family.

And no special permission is necessary if a probationary driver is using a vehicle in the course of his or her employment and at the request of his or her employer, or in the course of his or her ABN-registered business or to or from the workplace of that business: r 57(2)(a)(i) and (ii).

Wednesday, 23 March 2011

Australian Consumer Law converter

Consumer law isn't a regular feature of criminal cases, but, I reckon this was an interesting find anyway.

Thomson's (Law Book Co) have a free iPad and iPhone app, Australian Consumer Law Converter, which allows the user to view old Trade Practices Act provisions and link to their equivalents in the Australian Consumer Law.

Even if you just want to brush up the old s 52 misleading and deceptive conduct stuff (now in Sch 2, s 18) for your own use when shopping, it's handy!

The app is a good example of the use of tablet devices for legal information. I hope it starts a trend that will continue in the future when new legislation is introduced (like the rewrite of the Vic Crimes Act bubbling away in the background). Imagine if we all had access to something like this electronically when the Criminal Procedure Act was introduced?

Stealing rubbish?

With only 3 major wars overseas, and the aftermath of floods in Victoria and Queensland, and the earthquate and tsunami in Japan to keep the media occupied, I guess yesterday was a slow news day. For a big item was the report that the police might be about to charge a man with stealing a vacuum cleaner from a hard-rubbish collection.

Ultimately, the police announced they wouldn't proceed with charges, but the issue highlighted a little-known area of the law of theft.

Crimes Act 1958 s 72 neatly explains the law on the point:
72. Basic definition of theft

(1) A person steals if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.

(2) A person who steals is guilty of theft; and "thief" shall be construed accordingly.

When dealing with hard rubbish, the first question will be if the property belongs to another person. There can be no theft of property that is truly abandoned, or is not owned by anyone: R v Thurborn [1848] 1 Den 387; (1848) 169 ER 293; Hayes v Fries (1988) 49 SASR 184; 32 A Crim R 394.

However, the evidence in the case must be enough to infer that the owner intended to abandon the property: Moorhouse v Angus & Robertson (No 1) [1981] 1 NSWLR 700.

With rubbish, the law works on the assumption that typically what is intended by the owner is merely an intention to transfer title (or ownership) at some time in the future: Munday v ACT (1998) 146 FLR 17; Williams & Roberts v Phillips (1957) 41 Cr App R 5. Both these cases deal with rubbish. The first, was rubbish at a tip that recycled valuable goods. The second was hard rubbish put into bins for collection by a council, but taken by the dustmen. (What a quaint old term!)

In those cases, though the judgments didn't expressly say so, it seems part of the problem was the original owners weren't known and so couldn't say what their intent was and it was left for the court to infer it.

In today's case, I imagine the police were able to find the original owners and ask them what they intended to do with their property.

The other thing to remember is that many, if not all, local council's can regulate hard rubbish collections. Local Government Act 1989 Part 5 provides for local governments to make local laws — sometimes also called by-laws. My local council is typical, providing under local law 710.3:

710. Collection of other refuse


3. A Person must not, without the authority of Council,
a) remove; or

b) interfere with any such refuse, rubbish or recyclable material which is placed out for collection.

(But, though that might create an offence for scavenging, it isn't necessarily determinative of the question of transfer of title. Arguably its purpose is to bestow title, or at least possession, on the council.)

But the critical issue, as is so often the case with theft allegations, is that of dishonest appropriation.

It's here, in s 73(2), that the offence often stands or falls:

73. Further explanation of theft

(1) ...

(2) A person's appropriation of property belonging to another is not to be
regarded as dishonest—
(a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or

(b) if he appropriates the property in the belief that he would have the other's consent if the other knew of the appropriation and the circumstances of it; or

(c) (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.

Often, a person will rely on either paragraph (a) or (b), or both. In the media article above, it seems the police were satisfied that paragraph (a) would apply, and so they elected not to charge the man. It's not necessary for the belief to be correct: so long as it's honestly held, the defence is establish: McCarthy v Hickey, VSC, 7 Aug 1979.

With apologies to Mick Dundee, I have to say that taking a vacuum cleaner ain't a theft: this is a theft:

Some time between midnight and 1 o'clock in the morning on 30th August 2001 a burglar alarm went off at Whetstone golf club in Leicestershire. It was not the sort of burglar alarm which can be heard in the neighbourhood, but one which connected with the police station, and as a result, police officers arrived at the club to find on cursory examination, that it did not appear that the club house itself had been interfered with. However, on looking around, they found in the car park to the golf club, not too distant from the club house, two men dressed in frogman, or diving suits, and in possession of a sack, it can be described in no other way, of very wet golf balls: R v Rostron & anor [2003] EWCA Crim 2206 at [1].

Although the case must be treated cautiously, because it applies the Ghosh test for dishonesty (used in Commonwealth Code offences, but not Victorian theft charges), it provides a quirky example of when courts will conclude title was not transferred or abandoned, and the accused could not have concluded otherwise.

Tuesday, 22 March 2011

Summary Case Conference Service Charter

The Victoria Police website says that Summary Case Conferencing is now going on at sittings of the Magistrates' Court across the state.

This Summary Case Conference Service Charter commits the police to the following pledges:

  • At all main metropolitan courts an ‘at court’ service will be available between 9.00am and 1.00pm.

  • Between 2.00pm and 4.00pm the Summary Case Conference ('SCC') prosecutor will be contactable by telephone.

  • All main metropolitan courts will provide an exclusive Victoria Legal Aid SCC service between 11.00am and 11.30am to deal with accused who have sought assistance for the first time that day.

  • If unable to to be contacted, the SCC prosecutor will return any communication (in person, phone, e-mail) before 1.00pm the next business day.

  • SCC prosecutors will provide a copy of the preliminary brief to the accused or their legal representative upon request, in areas supported by Brief and Investigation Support Centres.

  • Withdrawals will not be delayed only to obtain informant approval.

I couldn't find any information about which Magistrates' Court locations are now 'supported by Brief and Investigation Support Centres'. A lot of this stuff is probably aspirational. I would be interested to know how much of it reflects what is actually happening at courts.

Monday, 21 March 2011

When or shortly after

Hollingworth J said this in R v McDonald [2011] VSC 241 [at 16 - 18, then 56 and 57],

There was a dispute as to whether some of the representations were made “shortly after” the asserted fact occurred.

The phrase “shortly after” in s 65(2)(b) does not require the same degree of temporal proximity or contemporaneity as the res gestae exception at common law, where the representation was required to be made “in such conditions ... of involvement or pressure as to exclude the possibility of concoction or distortion.” Although the phrase “shortly after” involves more flexibility than the old test, there is still some requirement of temporal proximity.

And it is no longer necessary to exclude the possibility of concoction, for the evidence to be admissible; rather, the court must consider whether the circumstances make it unlikely that the representation is a fabrication.


However, the defence objected on a number of grounds to the italicised words in the following evidence from Truck City workmate, Margaret Goullet:

... notes started to be put on windscreen wipers of Marlene’s car. ... I remember one particular night Marlene finished work and was escorted outside by a truck driver who walked her to her car. This was standard practice for all of us women that worked there. We would always have a truck driver walk us to our cars for safety reasons. On this occasion I remember that Marlene after leaving the restaurant walked back in a short time later and she was visibly very upset. She was crying and was very scared. She held out her hand and showed me a note. The note was a scraggy bit of paper but I have visions of the writing on this piece of paper. The only words I remember that were scribbled on this piece of paper were “Your dead” [sic]. I remember Marlene saying that her hubby was up to his old tricks. This was the only note that I remember seeing although I am aware of other occasions that Marlene talked about receiving them. I recall that on these occasions she would screw up what appeared to be pieces of paper and say the same thing about her husband being responsible. (page 2 of statement)

There was no hearsay involved in Ms Goullet saying that she saw the words “Your dead” on the note. The representation by Ms McDonald that the accused was responsible for the note was made at, or shortly after, the time that she showed Ms Goullet the note. I was satisfied that it was made in circumstances that made it unlikely that the statement was a fabrication and, indeed, made it highly probable that the statement was reliable. The hearsay evidence was therefore admissible under either s 65(2)(b) or (c).

The trial judge did not go on then to examine the statement as a statement of opinion, which it clearly was. The evidence was admitted.

One of the statutory exceptions to the hearsay rule requires a representation to have been made when or shortly after the asserted fact it relates to: s 65(2)(b) of the Evidence Act 2008.

How long is shortly after?

Like as soon as practicable the phrase is difficult to pin down. The accused in Finn v The Queen [2011] VSCA 68 applied for interlocutory appeal to the Court of Appeal, asking for evidence admitted by the trial judge to be excluded. The Court declined to grant Finn's application and consider the question. The trial is short, the Court said, and the issue can be raised after your conviction, if there is one.

The legislation

The relevant part of s 65 reads,

65. Exception - criminal proceedings if maker not available

(1) This section applies in a criminal proceeding if a person who made a
previous representation is not available to give evidence about an asserted

(2) The hearsay rule does not apply to evidence of a previous representation
that is given by a person who saw, heard or otherwise perceived the
representation being made, if the representation-

(a) ... ; or

(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or

(c) ...

Various commentators favour the view that s 65(2)(b) is intended to protect against fabrication rather than general concerns about reliability. The case law is inconsistent.

Victorian cases

Victorian courts since the introduction of the Evidence Act have applied s 65 without having to consider this aspect in detail. In R v Middendorp [2010] VSC 147 statements by the deceased to her mother about domestic violence were admitted. Though the judgment does not make clear how much time elapsed between each incident and the deceased speaking of it, it seems to have occurred within a short period of time. In R v Lubik (Ruling No 1) [2010] VSC 465 evidence of the same kind was held not to be admissible under s 65(2)(b). The witness was vague as to when the relevant information had been communicated. (The evidence was admitted under s 65(2)(c), the trial judge ruling the the representation was made in circumstances that make it highly probable that it was reliable.

In both Easwaralingam v DPP & Anor [2010] VSCA 353 and DPP v Nicholls [2010] VSC 397, which both deal with unavailable witnesses, the timing of the making of the statements was not central to the case.

Interstate authorities

The Full Federal Court in R v Conway [2000] FCA 461 said [at 123] that the use of when implied strict notions of contemporaneity. (I must admit that I think strictly contemporaneous is a contradiction in terms, a bit like firmly undecided). The Court went on to say that the addition of or shortly after expanded the admissibility of evidence beyond what was traditionally allowed under the common law doctrine of res gestae.

The Full Court [Miles, van Doussa and Weinberg JJ] quoted with approval from Sperling J in R v Mankotia [1998] NSWSC 295,

The phrase "shortly after" is not defined. The legislature has chosen not to specify a time. That implies that a normative judgment is to be made dependent on the circumstances of the case. For a judgment to be made, considerations of some kind or other have to taken into account but - as in the case of normative judgments generally - it may be difficult or impossible to articulate in a precise way what they are. I think the predominant factor in the phrase "shortly after" must be the actual time that has elapsed and whether that fits the ordinary usage of the expression "shortly after" in the circumstances of the case. The judgment should, however, be influenced by the policy behind the provision. That is to put a brake on evidence being given of a recollection which may have faded in its accuracy with the passage of time. The judgment may therefore be influenced by the subject matter of the event and by how long the memory of such an event is likely to have remained clear in the mind.

In Williams v The Queen (2000) 119 A Crim R 490 a differently composed Full Federal Court [Whitlam, Madgwick and Weinberg JJ this time] refined what the Court had said 8 months earlier in Conway.

The Full Court said,

46 It seems that the exception set out in s 65(2)(b) was intended to restate and reform the common law res gestae exception to the hearsay rule, ensuring that an overly narrow approach adopted in cases such as R v Bedingfield (1879) 14 CoxCC 341 would be avoided. The terms of s 65(2)(b) indicate that the "approximate ... contemporaneity" approach pre-figured in Ratten v The Queen [1972] AC 378 is to be preferred to the exact contemporaneity apparently required by Vocisano v Vocisano (1974) 130 CLR 267, thus disposing of any ambiguity that may exist at common law. The Australian Law Reform Commission ("ALRC") proposal, which led to the provision, took the case law as a starting point for its considerations:

"The proposal includes an exception for representations made `[when] or shortly after' the events referred to in it. A formula is used which takes up the suggestions of the Privy Council in Ratten's case. It directs attention to the question of the likelihood of fabrication."

47 Thus, it is principally a concern to exclude concocted evidence that informs the meaning of the phrase "shortly after". As noted by Sperling J in R v Mankotia [1998] NSWSC 295 at 10, s 65(2)(b) ought not be regarded as simply importing a test of:

"reliability at large. It is a narrower test... [I]t is the unlikelihood of concoction to which the paragraph is directed. Whether the representor might have been honestly mistaken is immaterial."

48 For these reasons, it would be a mistake, in determining whether a statement has been made "shortly after", to over-emphasise such matters as whether the events in question were "fresh" in the memory of the person making the statement. The rationale for the exception to the hearsay rule contained in s 65(2)(b) is not based only upon the necessity to ensure that the events in question may be easily recalled. Rather that provision is, as a whole, intended to allow evidence that is unlikely to be a fabrication. One condition of this is that the statements be made spontaneously during ("when") or under the proximate pressure of ("shortly after") the occurrence of the asserted fact. In Conway the statement in question was made by a murder victim who said, while observed to be looking "terrible", that she had been drugged and had been "off her face for about three or four hours". The comments of the Court in Conway regarding the meaning of "shortly after" should be understood accordingly. The approach taken in Conway to s 65(2)(b) as a whole is consistent with such a reading of that case.

49 In this case, the statements were not made during the events in question, and, we think, could not be said to have been made "shortly after". Despite being made within a time in which Mr Stewart may be considered to have retained a good recollection of events generally, the lapse of five days takes the representations outside the likely temporal realm of statements that may be considered to be reliable because made spontaneously during, or under the proximate pressure of, events. This time lapse, therefore, takes the representations outside the exception contained within s 65(2)(b). Indeed, it would seem to be an unusual case in which a representation made five days after the occurrence of the asserted fact might be regarded as having been made "soon after" it.

The NSW Court of Criminal Appeal applied the previous cases but came to a different conclusion in R v Harris [2005] NSWCCA 432. Studdert (Grove and Wheally JJ agreeing] said,

38 [The appellant's counsel] submitted that it was not open to the judge in the present case to determine that the statement of the deceased, made as it was some twenty-four hours after the event, was made “shortly after” the event the deceased described. I am not persuaded by that submission.

39 [The appellant's counsel] did not seek to argue that “shortly after” meant “immediately after”. No attempt has been made in the decided cases to prescribe the words “shortly after” by the passing of any defined period of time. Each case has to be considered having regard to its own particular circumstances. For example, as [the appellant's counsel] properly acknowledged in the course of his able argument, a statement made by a person recovering consciousness five days after an event may well be considered to have been made “shortly after” that event.

40 I have come to the conclusion that it was open to the judge in the circumstances of the present case to determine that what the deceased told the police was conveyed “shortly after” the incident he described.


Early decisions appeared to suggest non-contemporaneous evidence would be admitted under the UEA. More recent decisions suggest that something akin to contemporaneity is still required.

If the test was one of general reliability, it's likely that the period of time considered shortly after would be a significant period, perhaps even the days rather than weeks test of Orchard v Spooner (1992) 28 NSWLR 114. But if the timing of the representation must leave a low risk of fabrication, the period of time will have to be much shorter, unless a reason why fabrication could not take place (eg. unconsciousness) is provided.

This isn't a settled issue in Victoria. In rejecting the interlocutory application in Finn, Hansen JA seemed doubtful (without further consideration) of the inclusion of proximate pressure as an essential ingredient of admissibility under s 65(2)(b).

Odgers (in his Uniform Evidence Law) makes the point that the proposition that a witness typically provides more accurate information close to an event may itself rest on a false premise.

Saturday, 19 March 2011

King v The Queen [2011] VSCA 69: expert evidence about drugs

King v The Queen [2011] VSCA 69 is an appeal of conviction and sentence for culpable driving. The conviction was upheld but the sentence was moderated to take into account strong mitigating factors.

The appeal on conviction questioned the appropriateness of certain jury directions. The Court examined them in light of the previous decisions of R v De Montero [2009] VSCA 255 and Guthridge v The Queen [2010] VSCA 132 (each of these links will take you to the previous posts where the cases were considered, as well as the cases themselves). Although the trial directions were found wanting, the conviction itself was upheld.

On sentence it was contended that the sentencing judge erred by finding that the evidence of prosecution witnesses established the level of cannabis found in the applicant’s blood indicated that the applicant’s driving skills were impaired significantly, and that he had a high reading.

Mandie JA [at 30]:

32 The judge said that she accepted the uncontradicted evidence of Dr Odell and Dr Wells. The judge relevantly summarised their evidence as follows. Dr Odell said that the reading of 13 nanograms per millilitre indicated recent usage of cannabis in the last couple of hours and, for reasons that he gave, he said that the level would have been considerably higher at the time of the collision. Dr Odell’s opinion was that there was no evidence from any scientific study that a person could reach a level as high as 13 from passive inhalation of cannabis smoke. Dr Wells in substance agreed with the foregoing. In addition, Dr Wells’ opinion was that there was overwhelming evidence that at the sort of level which was found in the applicant’s blood analysis the range of skills that were required for a safe driver would be impaired and he went on to describe in detail how the whole range of skills involved would be impaired.

The judgment doesn't really explain how the appellant argued that the sentencing judge couldn't reach these findings. Mandie JA [at 40] described them as, 'well justified by the evidence'.

The appellant was re-sentenced to a reduced total effective sentence of six and a half years imprisonment with a non-parole period of three and a half years.