Wednesday, 27 July 2011

Infringements Court and special circumstances

It is always important to act in a timely manner with infringement notices. The legislation creates an assembly line of processes, and once a deadline has been missed it's difficult (but not impossible) to return to an earlier stage.

Once issued, a recipient typically has 28 days to challenge an infringement notice, or 42 days if served by mail: s 14 Infringements Act. If the notice isn't challenged or paid it will likely be lodged and become an enforcement order.

Under s 65 a person issued with an infringement notice that has become an enforcement order can apply to the Magistrates' Court for revocation of that order. This can only occur before they have been arrested, had their property seized or had an attachment of earnings order made. (By then it is too late).

An applicant must first make application to the registrar of the Infringements Court: s 64. If refused (as many are) a person may then appeal that decision under s 68. The registrar must refer the matter to the Magistrates' Court if the request is made within 28 days of notification of the registrar's refusal. The registrar may refer the matter if application is made between 28 days and 3 months of notification. After 3 months, there can be no appeal: s 68(3).

The grounds on which a Court may order revocation are undefined. The case of Fraser v Spencer-Gardner (1990) 12 MVR 215 is sometimes cited as authority for the proposition that an application for revocation must be refused unless the applicant has a valid defence. That's not the case. There is no obstacle to a magistrate granting revocation even if the court is satisfied of an applicant's guilt. The appropriate test is probably one of prejudice to the parties or, slightly more accurately, the balance of convenience.

Once a revocation is granted it is as if a matter is before the court as a charge. The accused can elect to plead guilty to it, or contest it.

Care needs to be taken by an applicant who seeks to rely on special circumstances in their application for revocation. Section 3 of the Infringements Act 2006 states,

special circumstances, in relation to a person means-

(a) a mental or intellectual disability, disorder, disease or illness where the disability, disorder, disease or illness results in the person being unable-
(i) to understand that conduct constitutes an offence; or

(ii) to control conduct that constitutes an offence; or

(b) a serious addiction to drugs, alcohol or a volatile substance within the meaning of section 57 of the Drugs, Poisons and Controlled Substances Act 1981 where the serious addiction results in the person being unable-

(i) to understand that conduct constitutes an offence; or

(ii) to control conduct which constitutes an offence; or

(c) homelessness determined in accordance with the prescribed criteria (if any) where the homelessness results in the person being unable to control conduct which constitutes an offence.

Interpreted literally, these criteria (apart from homelessness, which is defined in the Regulations) are up around the mental impairment mark, a high threshold to meet - and impossible without detailed reports. In practice, it should be readily apparent whether an applicant is experiencing problems that will make it difficult for them to pay their fines.

Further information about infringement proceedings can be found here.

Sunday, 24 July 2011

R v Carpenter [2011] ACTSC 71: Requirements of a valid identification

R v Carpenter [2011] ACTSC 71 involved a series of pre-trial rulings about the admissibility of identification evidence.

Identification evidence means evidence that is—

(a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where—

(i) the offence for which the defendant is being prosecuted was committed; or

(ii) an act connected to that offence was done—

at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time; or

(b) a report (whether oral or in writing) of such an assertion;

Without the eyewitness identification there was almost nothing to implicate the accused in the alleged robbery. The grounds for exclusion were argued as statements of general principle (perhaps to keep options open for trial) an approach which Penfold J found puzzling [at 11 and 12]:

The applicant’s submissions, although filed nearly seven months after the prosecutor filed his statement of facts, barely refers either to that statement of facts or to any of the many affidavits from which that statement has been drawn. The prosecutor has advised that no agreement was able to be reached on the facts, but counsel for the applicant has not identified any particular facts that are in dispute, nor has he offered any evidence to contradict any of the evidence relied on by the prosecutor.

Noting that this application is for the applicant to make out, I do not understand why counsel for the applicant has declined to engage in any contest about the facts if his instructions are that there is evidence for a version of the facts that might be more supportive of the application. Whatever the reason, it presumably also explains why counsel’s submissions are largely uncluttered by reference to any facts relevant to this application. Be that as it may, the application needs to be dealt with, and so, with two exceptions that are discussed ... below, I propose to determine this matter on the basis of the statement of facts filed in November 2009 and the affidavits on which it relies.

It was argued that a refusal to participate in an identification parade could only be made after the suspect was made aware of the consequences of their refusal (including, but not limited to, the fact that the refusal would allow investigators to use picture identification evidence). There isn't any specific reference to that kind of requirement in the Evidence Act.

Penfold J was asked to exclude from evidence the photo array that was put together after the suspect had refused a parade. He considered the Evidence Act 1995 (Cth), which is identical with the Victorian statute. (He was also obliged to consider the Crimes Act 1900 (ACT), which imposes further obligations on investigators).

Penfold J [at 69]:

In the absence of any legislative basis or other authority, I reject counsel’s proposition that a refusal to take part in an identification parade can only be made effectively after a suspect has received legal advice. Counsel’s reliance on the contra proferentum rule seems to me to be both odd and ineffective in relation to legislation relating to criminal investigations rather than contracts and other agreements.

It's possible that an argument directed at Part 3.11 (the discretions) might have been more successful than an attempt to persuade the Court to infer unwritten requirements into Part 3.9 (that deals specfically with identification).

Counsel submitted that all of the elements of a proposed line-up (presumably some other similar looking people to the suspect, willing to participate) needed to be present before it could be refused. That's similar to the arguments in Victoria that led to s 49(1A) being added to the Road Safety Act 1986. Sections 113 to 115 of the Evidence Act are silent on whether a parade needs to be ready to go or not when the invitation is made.

Penfold J rejected this argument as well, at 72:

There is no suggestion in [the ACT legislation] or elsewhere that a valid refusal can only be made after the identification parade has been organised as required by s 233 and is ready to take place. It may well be that a suspect could refuse to take part in an identification parade even at that last minute, but I can see no basis for finding that this is the only point at which an effective refusal can be made. If there is a method of interpreting s 233, 235 or other relevant provisions to this effect, or authority supporting counsel’s submission, he did not see fit to share it with me. Accordingly I reject counsel’s propositions that a particular identification parade must be organised, and that all the details of that parade must be communicated to the suspect, before a suspect can “refuse” to take part in the parade for the purposes of the Evidence Act and Crimes Act provisions.

The Court found that changes in the size and the electronic storage and transmission of the photo of the accused did not mean that the photo that was placed in an array of photos of other women was no longer a photo of the accused.

Penfold J [at 97 - 99]:

To the best of my knowledge (no evidence was offered on the topic), it cannot be said that a digital photograph has a specified set of colour levels when taken, but even if it does, I am satisfied that a photograph taken “in colour” does not cease to be that photograph because it is displayed on a monitor or other device, or printed, in black and white, sepia, faded colours, intensified colours or colours in which the red/blue/yellow levels have been varied. In saying this I do not rule out the possibility that changes in colour levels, or changes to the colour of a specific aspect of the photograph, might affect the fairness of a photo board process, or the probative value of a photo board identification, in particular circumstances.

Similarly a change in pixelation or file size might affect the definition and clarity of a photograph, but it does not turn it into a different photograph; again, the use, in a photo board, of a photograph of a suspect with a distinctly different pixelation or file size from the other photographs used in that photo board might raise questions of fairness or probative value, but would not render the photo board non-compliant on the ground that the photograph of the suspect is not the photograph taken at the required time, or is not a photograph of the suspect at all.

I am satisfied that the image of the applicant did not cease to be a photograph of the applicant taken on the night of her arrest by reason of changes to its colour levels, pixelation or file size.

A ruling was made allowing the evidence to be admitted at trial.

Thursday, 14 July 2011

Cross-examining a witness - right?

Simple questions are the best form of questions to ask in chief or cross. There are exceptions, but they're rare.

Given that, it's funny that English and Australian courtrooms often feature long repetitious stanzas of mixed positives and negatives.


ADVOCATE: You went to the storeroom, didn't you?


ADVOCATE: You didn't go anywhere else, did you?


Listening to this pattern of speech with an ear tuned to the courtroom, it is reasonably certain that the witness intended the answer to the first question to be, 'Yes, I went to the storeroom' and the answer to the second, 'No, I didn't go anywhere else.' Remember that witnesses and jurors do not have such ears.

It is possible (and a witness who realises later they have given an undesirable answer may certainly claim) that the intended answers were actually, 'Yes, I didn't go to the storeroom' and, 'No, I did go somewhere else'.

Here are another couple of examples:

ADVOCATE: It isn't the case that sulfur dioxide will readily ignite, is it?


ADVOCATE: You are unable to determine the source of the fire, aren't you?


The unnecessary mixture of positive and negative is responsible for making each question more complex than it needs to be. There is a common turn of phrase that helpfully minimises the confusion. To repeat the first example,

ADVOCATE: You went to the storeroom. Right?


ADVOCATE: You didn't go anywhere else. Right?


The second question still leaves some room for confusion, but less so. It would be tempting to remove all possibility of mistake and phrase the question as, 'Did you go anywhere else' but that is too open-ended for some styles of cross. The question, 'You went nowhere else. Right?' may be better.

Cross-examination in this form is really stating a proposition and inviting the witness to agree with it. Since that's what is happening there is rarely any point pretending otherwise. It's also possible to remove the question entirely and merely make the statement a question through a rising inflection toward the end of the sentence:

ADVOCATE: Sulfur dioxide will readily ignite?


ADVOCATE: You are unable to determine the source of the fire?


This might be the ideal approach. But without any interrogatory words at all it's likely that this style of question will (at least occasionally) encounter the, 'Is that a question?' response from witness or judge. Use of the single word, 'Right?' is an easy way of turning a proposition into a question (avoiding the useless phrase, "I put it to you .."). Use of the word 'Correct?' serves the same purpose.

No doubt some practitioners use long-winded questions in cross-examination to stall for time to think about what they will ask next. The problem with that approach is that it equally gives the witness the opportunity to consider how best to answer. If the questioning has been well-prepared, the pressure should be on the witness answering the questions and not the advocate asking them.

Monday, 11 July 2011

Medicines replace drugs? New Poisons Standard online

A little while back — when I look, it was waaayyy back in 2009 — I posted about the Poisons Code or Standard for Uniform Scheduling of Drugs and Poisons, and that it was newly-available online.

I needed to check last week if a certain substance was a poison or medicine, or a drug of dependence, and discovered that the Poisons Code has now become the Poisons Standard or Standard for Uniform Scheduling of Medicines and Poisons. It's still freely available online, and the Therapeutic Goods Administration website has been updated to provide even more useful information about the legal framework for Standard, and includes links to State and Territory scheduling decisions.

Sunday, 10 July 2011

Licence restoration

The Magistrates' Court of Victoria has useful online information for someone getting their licence back after losing it for an offence under s 49 of the Road Safety Act 1986. By plugging your details into a tick-and-flick you can go to court knowing what the likely outcome will be.

Some driver education courses apparently stress the importance of counting drinks and leaving adequate time before driving to avoid being over the limit. The wisdom of encouraging intoxicated people to try and perform complex calculations still escapes me.

Another reason the 'how long would you wait before driving?' type of question is useless is that it presumes the information the driver would rely on would be accurate.

This article by Felix Salmon from Reuters suggests otherwise.

Essentially, people like to think of themselves as sophisticates who go to art-house movies, even if in reality they’re much more likely to sit slack-jawed in front of some reality TV show. In the case of wine, they like the idea of buying something grown-up, with a relatively modest amount of alcohol; when it comes to drinking what’s inside, however, the more heat the better. So wine labels consistently show lower alcohol content than what’s inside.

This is especially true in the new world. Out of 43,908 tested new world wines, 24,561 under-reported their alcohol content, with the reds averaging 14.1% alcohol while claiming just 13.6%, and the whites averaging 13.5% while claiming to be 13.1%.

Interestingly, the smaller number of wines which either over-reported their alcohol content or got it exactly right all reported pretty much the same levels of alcohol: 13.1% or 13.2% for whites, and 13.6% or 13.7% for reds. On average, it seems, wine will just say that it’s 13% if it’s white and 13.5% if it’s red, but in reality it’s likely to be higher than that.

The report Salmon quotes from the American Association of Wine Economists can be found here. It reports that Australian wine is, on average, 0.55 percentage points higher than marked. Not a big difference, but in these matters tiny differences can have huge consequences.

It may make you wonder how accurate the labels on beer and spirits are. And does alcohol distribute itself evenly around a beverage, sink to the bottom or float to the top? (The internet consensus seems to be that alcohol rises above most other liquids, but then divides on whether the effect is noticeable once a drink is poured).

So always read the label, but it might not help much. In Victoria the defence of honest and reasonable mistake does not apply to drink-driving offences: Skase v Holmes (Unreported, Supreme Court of Victoria, 11 October 1995, Vincent J)

Wednesday, 6 July 2011

Burqa bathos

The Herald-Sun today ran an article about the NSW push to legislate to compel burqa-wearing women to show their face to police when requested to identify themselves. (Presumably it will also apply to the niqab. This diagram highlights the differences.)

Strangely, we haven't had such a push to combat the evil of helmet-wearing motorcyclists; or a requirement that men remove facial hair if they've grown a beard since their licence photo was taken; or a power to compulsorily remove sunglasses that hide the wearer's eye colour from observation; or a power to require drivers of darkened limousines to fully wind down their windows.

That's probably because the law in this state is broad enough to cope with a person who refuses to identify themself when the police are able to require they do so.

Police have a general power to stop motorists and require their name and address under Road Safety Act 1986 s 59. That power also provides for police to require the person to produce their driver licence or permit. Note the use of the possessive their: not somebody else's licence, but their licence. If a police officer can't see the face of the person who produces the licence, in appropriate circumstances they might not be satisfied the licence is in fact that of the person behind the wheel.

Section 59(5) provides that police can give reasonable directions to carry out the provisions of the Act or regulations. I reckon that could extend to, "Take your helmet off please Sir so I can see your face matches your licence." Or, "Please remove your niqab Ma'am so I can see your face matches your licence."

There's also a similar but less expansive power in s 76 for offences committed against various regulatory offences under the Road Safety Act. It deals with a person who is requested to give his or her name and address — here too the pronouns are used in the possessive sense — and who refuses or fails to, or provides one reasonably suspected of being false.

In any event, if the police can't be certain of who they are dealing with, they aren't in any position to ensure Mr Anonymous' attendance at court and so would be permitted to arrest for the purpose of ascertaining who it is they intend to summon or bail.

There is also a general arrest power in s 458(1) of the Crimes Act 1958, where police can arrest a person for one of four prescribed reasons, one of which is to ensure the appearance of an accused person at Court. An essential element of any criminal charge is that of identity — proving that the accused person at Court is the same person who allegedly performed the conduct that is the subject matter of the charges. Those two issues — ensuring attendance, and establishing identity — are so intertwined that they are frequently blurred, and only sometimes are discrete issues.

That power can also be exercised in conjunction with the power to require a person to state their correct name address — again, note the use of the possessive — in s 456AA of the Crimes Act. An offence against that section could then justify the use of the s 458 arrest power.

In extreme cases, the offence of being disguised with unlawful intent contrary to s 49C of the Summary Offences Act 1966 might even apply. That's probably more likely for the bandit with a motorcycle helmet or balaclava...

It might be argued there's some uncertainty in all of this, and that legislative reform would remove that doubt. I'm not sure we have a major problem with recalcitrant and subversive niqab and burqa wearers in Victoria. (The original case involving Carnita Matthews' was heard in the Local and then District Courts: there are no written judgments we can refer to, just media reports such as this one in the Sydney Morning Herald. I wonder if the investigation would have proceeded similarly for a helmet-wearing motorcyclist?)

If the Parliament does decide to act, I imagine the only legislative amendment that would be required would be in the name-and-address provisions above, providing a power to require a person to remove any article that hides or conceals their features or impedes the ability to visually identify them.

But surely the better option would be to educate drivers about their obligations, and to better educate or at least reassure the police about their use of their existing powers? Oh, and more funding from the government so all police cars have video cameras, as in the Carnita Matthews case. Not only does it act as a check on police excess, it also acts to vindicate them when falsely accused by wrongdoers.

Tuesday, 5 July 2011

Hilder v The Queen [2011] VSCA 192: parity appeals just got harder

It's rarely worth getting too worked up about the obiter comments of a judge agreeing with the rest of the court on a sentencing appeal. But when the judge is the President of the Court of Appeal (acting as the Chief Justice) it may be worth pricking up the ears a bit.

In Hilder, the appellant argued a lack of parity with a co-accused, Sandhu. Although Sandhu was convicted of more serious offences, Lasry AJA approved of the lesser sentence given to him as justified by early admissions to the crimes, cooperation, and an absence of prior convictions. Hilder did not have these things to call on in mitigation.

Maxwell P agreed, but also critiqued the current phraseology applied to parity [beginning at 37]:

As regards the parity ground, I express the hope that the phrase ‘justifiable sense of grievance’ will in due course disappear from the discourse in this area. It is, of course, a phrase of the most impeccable pedigree but, with respect, it seems to me to distract attention from the true nature of the question which must be addressed when the ground of parity is advanced. The question is whether it was reasonably open to the judge in the circumstances of the case to differentiate – or fail to differentiate – between the co-offenders in the way he or she did: Teng v The Queen (2009) 22 VR 706. After all, it is the legality of the judge’s decision, not the offender’s sense of grievance, justified or otherwise, on which attention must be focused.

Expressing the test in this way – ‘was it reasonably open?’ – seems to me to have the advantage not only of placing the parity ground squarely within the analytical framework of sentence appeals but of underlining the difficulty of making good the ground. There is a close analogy with the stringency of the test of manifest excess. For this ground to succeed, it must be shown that the conclusion as to sentence differentials was not reasonably open. As with manifest excess, that should be viewed as a difficult hurdle to surmount, as this Court recently said in Director of Public Prosecutions v Karazisis [2010] VSCA 350, [124]–[128].

39 What I said in R v Stuttard [2006] VSCA 112, [at 26] in relation to manifest excess applies equally to parity. Where a judge has carefully considered all of the relevant sentencing considerations applicable to the respective co-offenders, a ground of parity will rarely succeed. In those circumstances it will be necessary for an appellant to show that, despite the sentencing task having been carefully and conscientiously carried out, nevertheless, the conclusion as to differentiation is so obviously wrong that this Court is constrained to conclude that the sentencing discretion miscarried as a matter of law.

The President has had a decisive policy-setting role in Court of Appeal sentencing judgments (like Verdins and Winch) in recent years. A sentence appeal relying on manifest excess has proven difficult to make good in recent years. It's likely that the same scrutiny will now be applied to justifiable sense of grievance parity cases.

Instead of asking, 'does the appellant have a sense of grievance, and are there reasonable grounds for that?' the correct question is, 'was it reasonably open to the sentencing judge to sentence as they did'. That superficially appears a more onerous test to satisfy.

Sunday, 3 July 2011

Legislation Watch: Justice Legislation Amendment (Protective Services Officers) Bill 2011

The Justice Legislation Amendment (Protective Services Officers) Bill 2011 has been read a second time in the lower house. The speech is here. The Explanatory Memorandum is here and the Statement of Compatibility is here.

The Bill extends to Protective Services Officers a range of powers that were previously only available to sworn police officers. These include:

All of these powers will be conditional on being exercised at a designated place or other place specified in the legislation. The Explanatory Memorandum states [at Clause 4] that, "'Designated places' will be prescribed by regulation". The focus seems to be on railway stations but there's no restriction on what sort of place can be designated. Protective Services Officers currently patrol Parliament House, court buildings and the Shrine of Remembrance.

The additional penalty available to a court for assaulting a police officer under s 31 of the Crimes Act 1958 and s 51 of the Summary Offences Act 1966 will now also apply to Protective Services Officers.

Section 118B(1) of the Police Regulation Act has already been amended by the Police Regulation Amendment (Protective Services Officers) Act 2010 to read,

(1) The Chief Commissioner may, in accordance with the regulations, appoint and promote so many protective services officers as the Governor in Council
thinks necessary for the purposes of providing services for the protection of—

(a) persons holding certain official or public offices;

(b) the general public in certain places;

(c) certain places of public importance.

The restriction to 150 officers at s 118B(1A) has already been repealed.

The Victoria Police website says that police recruits receive 33-weeks training. This compares with a current 8-week training program for Protective Services Officers, according to their current recruiting material. Acting Chief Commissioner Ken Lay has reportedly said this will need to be increased to 12-weeks.

Although the media attention seems to focus on whether or not these officers are armed, the more serious concern may be whether they fully understand and are able to properly exercise their wide array of statutory powers.

The default commencement date of the Justice Legislation Amendment (Protective Services Officers) Bill 2011 is 1 July 2012.