Thursday, 28 February 2013

Monis v The Queen; Droudis v The Queen [2013] HCA 4: offensive post is not protected speech

You may not write to the parent of an Australian serviceman, who lost his life in the service of his country, and compare him to a pig and dirty animal. You may not call him a a murderer of civilians, and Adolph Hitler not inferior to him in moral merit. You may not refer to the deceased serviceman's body as 'contaminated' or the 'dirty body of a pig'. A person who does these things will attract criminal punishment under the Commonwealth Criminal Code for such sentiments, when they are expressed directly to the deceased's loved ones. These communications are not protected under the implied right to political speech found in Lange v ABC (1997) 189 CLR 520.

It's by a 3-3 split that the High Court decided that these are correct statements of law. (Though Heydon J, in his now-characteristic contrarian fashion, was really seizing on the opportunity to take a swipe at the defects of Lange.) The High Court ordered the appeals of the two men convicted of this behaviour dismissed.

At issue in Monis v The Queen [2013] HCA 4 was the validity of s 471.12 of the Criminal Code. That states:
471.12 Using a postal or similar service to menace, harass or cause offence

A person is guilty of an offence if:

(a) the person uses a postal or similar service; and

(b) the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

Penalty: Imprisonment for 2 years.

The two accused were charged under the offensive limb of the section, for sending letters to deceased soldiers' families. That section doesn't have any direct equivalent under State law, though the prohibition of offensive conduct that occurs in public places is fairly common. Offences under s 464.14 are often charged, as alternatives or in combination with stalking charges, where offensive communication occurs over a telephone.

The two men were convicted at trial, and their convictions upheld by the NSW Court of Criminal Appeal.

The appeal to the High Court didn't allege error in their specific cases; ambitiously, it was argued that the offence itself was invalid, for offending the implied constitutional right to political expression, first voiced in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 and Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106.

French CJ noted at [61]:

The now settled questions to be asked when a law is said to have infringed the implied limitation [to impose a burden on the freedom of communication on matters of government or political concern] are:
1. Does the law effectively burden freedom of communication about government or political matters in its terms, operation or effect? 
2. If the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 of the Constitution for submitting a proposed amendment to the Constitution to the informed decision of the people?

French CJ and Hayne J agreed that s 471.12 did infringe the implied limitation, and that it was not compatible with representative and responsible government. They would have allowed the appeal.

Heydon J went out on his own, severely criticising the implied limitation as 'unsatisfactory' and 'mysterious'. In pointed comments he noted that no attempt was made to argue that the cases establishing the implied limitation were wrong, and ripe for overruling. Clearly, he would relish the chance to deal with that argument. But, he conceded in the absence of overruling the implied limitation cases, the present state of the law required the result found by Hayne J (and also therefore by French CJ), and so he would have allowed the appeal.

On other thing about Heydon J's decision is that, in a nice touch not often able to be displayed in appellate reasons, he poetically acknowledged the strong feelings in the background to this case, and the loss felt by the parents of service members killed on active duty. It bears reading if for no other reading than to remember the human lives affected by the decisions of courts. I suspect Heydon J found no pleasure in reaching the conclusions he did, and was concerned (at the level of human empathy, rather than legal analysis) of their affect on the families who received the impugned letters.

In a joint judgment, Crennan, Kiefel and Bell JJ took the contrary view. They considered that s 471.12 does not impermissibly burden the implied freedom of communication about government or political matters. They considered the appeals should be dismissed, so that the original convictions would stand.

The end result? Three saying the appeal succeeded; three saying the appeal failed. (I have no idea why there were 'only' six justices deciding this case, rather than the usual 5 or 7, which would have at least provided a majority one way or the other.)

Section 23(2)(a) of the Judiciary Act 1903 (Cth) provides that where the High Court is evenly divided in its opinion the lower court's decision is affirmed. The appeal was dismissed, but because of the way that occurred, there is no ratio in this case because there's no majority decision, let alone majority reason for a decision: Re Tyler; Ex Parte Foley (1994) 181 CLR 18. It seems a wasted opportunity when the highest appeal court in the land is unable to provide any authoritative determination of the law, and the resulting decision is authority only for what it decided.

Thursday, 21 February 2013

The law giveth; and the law taketh away: Brittain v Mansour [2013] VSC 50

On 30 August 2011 Ellie Mansour pleaded guilty to one charge of selling unsuitable food, contrary to the Food Act 1984 s 12(2).

The Magistrates' Court sitting at Melbourne imposed on Mr Mansour an adjourned undertaking without conviction, in accordance with Sentencing Act 1991 s 75, with a special condition that he pay $2500 to St Vincent de Paul's food van service.

The City of Melbourne, which employed the informant, sought judicial review of the sentence to the Supreme Court on two points.

First, could the Magistrates' Court imposed a special condition that Mr Mansour make a payment to St Vincent de Paul?

Second, should any penalty ordered have been made payable to the City of Melbourne?

You might wonder at this stage why on earth this review was launched? Like many cases, it was about money.

Specifically, about where money paid by an offender should go.

In Brittain v Mansour [2013] VSC 50 the City of Melbourne argued — successfully, as it turned out — that any money to be paid by an offender under a Food Act prosecution must be paid to the City of Melbourne, and not to a third party.

Adjourned undertakings and special conditions

Sentencing Act s 75 provides:

75. Release on adjournment without conviction

(1) A court, on being satisfied that a person is guilty of an offence, may (without recording a conviction) adjourn the proceeding for a period of up to 60 months and release the offender on the offender giving an undertaking with conditions attached.

(2) An undertaking under subsection (1) must have as conditions—

(a) that the offender attends before the court if called on to do so during the period of the adjournment and, if the court so specifies, at the time to which the further hearing is adjourned; and

(b) that the offender is of good behaviour during the period of the adjournment; and

(c) that the offender observes any special conditions imposed by the court.

(3) Subject to Division 2 of Part 3BA, a court may attach a justice plan condition that the offender participate in the services specified in a justice plan for a period of up to 2 years specified by the court or the period of the adjournment, whichever is the shorter.

(4) An offender who has given an undertaking under subsection (1) may be called on to attend before the court—

(a) by order of the court; or

(b) by notice issued by the proper officer of the court.

(5) An order or notice under subsection (4) must be served on the offender not less than 4 days before the time specified in it for the attendance.

(6) If at the time to which the further hearing of a proceeding is adjourned the court is satisfied that the offender has observed the conditions of the undertaking, it must dismiss the charge without any further hearing of the proceeding.

At [19], Dixon J noted that special condition is not defined in the Sentencing Act, and the provision neither precludes or authorises a financial payment in favour of a third party.

At [13] - [14], His Honour also noted two statutory definitions of a fine:

13 Section 3 of the Sentencing Act 1991 defines a ‘fine’ as:

the sum of money payable by an offender under an order of a court made on the offender being convicted or found guilty of an offence and includes costs but does not include money payable by way of restitution or compensation or any costs of or incidental to an application for restitution or compensation payable by an offender under an order of a court

14 Section 3 of the Magistrates’ Court Act 1989 states that a ‘fine’:
includes any penalties, forfeitures, sums of money and costs ordered to be paid by the person fined.

At [22], the Court referred to Sentencing Act s 59, which provided that any fine must be paid into consolidated revenue if no other way of appropriating or applying it was prescribed in law. Section 59 was repealed by the Courts and Sentencing Legislation Amendment Act 2012 s 44 with effect from 16 July 2012, and re-enacted (according to the ex-mem) as Sentencing Act s 66C on the same day by s 53 of that amending act.

For a Food Act prosecution, there is another way prescribed in law of appropriating or applying a fine. Section 57 of the Food Act provides:

57. Payment of penalties

(1) Where an offence against this Act has been prosecuted by the council, all penalties recovered in relation to the offence shall be paid into the municipal fund of that council.

(2) If an infringement notice has been issued by a council under this Act, the infringement penalty recovered in relation to the notice is payable to the municipal fund of the council.

(3) For the purposes of this section—

(a) an offence prosecuted by an authorized officer of a council is taken to have been prosecuted by the council; and

(b) an infringement notice issued by an authorized officer of a council is taken to have been issued by the council.

Is a special condition to pay money a 'fine'?

At [29] ff, Dixon J considered the arguments by the parties (with PILCH appearing as a friend of the court, or amicus curiae), before ultimately concluding that an order to pay money, other than compensation or restitution, as part of an adjourned undertaking is indeed a 'fine'.

50 Bearing these considerations in mind, special conditions imposed in an undertaking on an offender being released under s 75 must be consistent with the purposes of making an order under Part 3B Division 2. I have set out above the provisions of s 70 which states these purposes. The condition that the offender pay $2,500 to St Vincent de Paul is not directed to achieving any of the five purposes that are there set out. It was not contended that the payment required was nominal and it is a payment that appears to be within the range that would be considered for a fine. The sentencing purposes dictated by s 70 of the Act for adjournments as sentences would not ordinarily permit the imposition of a monetary payment as a special condition, because it will be, in substance, the imposition of a fine, a punishment that is not nominal or a display of mercy. As I have said, a purpose of the special condition was as a penalty or punishment. The limitations on the power to impose special conditions in undertakings are found in s 70 of the Act and, in this instance, those limitations have been exceeded.

51 A fine may be imposed without a conviction being recorded. A sentencing court’s decision that a punishment is appropriate that imposes some financial consequence, but without the consequences of a conviction, can be achieved. That appears to be the intention in this case. Once the sentencing court determines that imposing some financial consequence is an appropriate purpose for the sentence, that purpose cannot be achieved by a dismissal, discharge, or adjournment. The requirement for a monetary payment as a special condition effectively imposes a fine or a form of monetary impost of a kind that the Act requires to be imposed as a fine. Applying s 5(7), the court must impose a fine in accordance with Part 3B Division 1 of the Act.

52 A money payment for a charitable purpose, and, specifically, a financial contribution to the court fund are not identified in the section, or elsewhere in the Act, as purposes for which an order may be made under the sub-division. Payments of that type, unlike payments in restitution or of compensation, are not excluded from the definition of a fine. The legislature has not seen fit to empower a sentencing court, where it is a Magistrates’ Court, to impose obligations to make monetary payments under a special condition in an undertaking to provide funds for the Magistrates’ Court’s court fund or such community based charities as a magistrate may wish to support. The legislature could have achieved that objective by extending the excluded purposes for monetary payments from the definition of a fine, beyond restitution or compensation, to make clear that such payments are not fines. It has not done so. The language of the statute makes clear the legislative intention.


The twittersphere has been a-tweet with discussion of this case since it was delivered yesterday, and it made the mainstream news earlier today, such as this article in The Age; this article in the Herald-Sun; and this one in The Australian.

Dixon J was well aware of the possible consequences, but also pointed out where the remedy lies: Parliament.

26 I have evidence from Mr Brittain of three occasions in 2010 when offenders found guilty of breaches of the Food Act made payments to charitable organisations[6] totalling $70,000. I have evidence from Mr Brittain of eight occasions between 2007 and 2011 of payments totalling $339,500 imposed by different magistrates for statutory offences. Information provided from the Lighthouse Foundation suggests that between August 2011 and June 2012, it received $6,500 from the court fund and $17,800 from ‘court directed’ payments. This evidence, which is not based on a proper statistical sample or a survey, does not reveal the frequency with which special conditions requiring a payment to the court fund or a charity are imposed on offenders or the total sums that may be involved.

27 The printed form used by magistrates to acknowledge an undertaking includes a box that can be ticked and a clause that can be completed to provide for such a condition. I suspect that many hundreds of thousands, possibly millions, of dollars are contributed annually to the court fund and charities by offenders released on adjournment without conviction. I believe dispositions of summary offences in this manner are a common practice of long standing. The court fund is distributed to not-for-profit organisations that provide charitable or community services for the benefit of Victorians in need or at a disadvantage within local communities. It is often the case that a charity expressly nominated by a magistrate to receive the payment provides relief from the disadvantages that flow from the offending conduct. As will become apparent, negative and possibly unintended consequences, for beneficiaries of the court fund and charities, may follow if the construction of the Sentencing Act contended for by Mr Brittain is correct.


56 Having regard to the history and significance of the court fund and the support provided by local courts to their communities, it may be that the absence of power to impose on an offender a monetary payment obligation to a charity as a condition of release on adjournment to be of good behaviour is an unintended consequence of reforms to sentencing, but that is a matter for others.

I think most advocates will agree that some form of payment to a charity is — or was — a routine special condition imposed as part of adjourned undertaking. This case will undoubtedly affect many charities that benefitted from those payments. It seems any payments imposed as part of an undertaking will now have to go into consolidated revenue, unless legislation directs it to some particular place or prosecuting authority. And really, those payments will have to be characterised as fines, otherwise the order will be in jeopardy of being declared ultra vires. Of course, it will still be possible to impose undertakings with other special conditions — except perhaps for corporate offenders, that can't really do anything other than pay money, given their ethereal nature — but I think we will see a reduction in undertakings as sentence outcomes for the immediate future.

Monday, 18 February 2013

Dogged investigator

The first post I did for this blog was on the subject of tracker dogs giving evidence in court - or more accurately, their handlers.

That's all the justification I need to jump on board this story doing the rounds, thanks to the Daily Mail.

When prosecutors in Britain requested a statement be taken from an officer named Peach, his West Midlands Police colleagues decided to provide one, notwithstanding that Peach is a 4-year old German Shepherd.

The matter is currently the subject of 'internal investigation'.

Sunday, 17 February 2013

Instructors at trial

Edit: The judgment referred to below can now be found on AustLII (suitably redacted), as MK v Victoria Legal Aid [2013] VSC 49.

On Monday the Supreme Court will rule on an application in a murder trial for an order directing Victoria Legal Aid to,

provide legal representation to the accused necessary for the accused to receive a fair trial, including the attendance at court of an instructing solicitor for the duration of his trial. In the alternative, should that not be available, it’s sought that the trial of the accused be stayed until such time as the accused be provided with legal representation necessary for his fair trial, or further order.

At issue is the new VLA funding model, discussed back here and here in December. Fees for the appearance of instructing solicitors are limited to two half-days of the trial only. This has been criticised by the Law Institute before, and they briefed their own counsel to intervene pro bono on Friday.

LIV President Reynah Tang wrote on his blog that,

We believe that the case is important because having a solicitor to assist a barrister in a trial is not a luxury, but fundamental to a fair and just outcome.

If solicitors are not present throughout trials, delays and stays are inevitable, which will extend the length and expense involved in running trials and impact on the administration of justice. Mr Meredith advised the Court that the length of the instant trial might double as a result of the absence of an instructing solicitor. Further, there is an issue of "equality of arms" and its impact on the perceptions of juries, as the prosecution would continue to have an instructing solicitor and an informant to assist.

Reynah Tang says the amicus appearance included a submission that s 197 of the Criminal Procedure Act 2009 contemplates representation by both a solicitor and barrister at trial. That's a long bow, in my view. If that interpretation was given to s 197, without any express words to that effect, it would create widespread uncertainty, where consistency was the original aim. What should happen when a trial judge thinks that counsel is not up to the task? And how trivial does a charge need to be before an instructor isn't required?

Lasry J considered the applicability of s 197 in a similar case on Friday; R v Chaouk [2013] VSC 48. His Honour found that neither s 197(2) or (3) applied when temporarily staying a trial due to the absence of an instructing solicitor. The source of the Court's power to stay the trial came from a judge's inherent jurisdiction to prevent an unfair trial.

Lasry J [at 46]

In my opinion the absence of a solicitor in this case means that [counsel] is without a valuable resource. His workload is increased as he will also be required to do the “administrative” work and the making of arrangements. More importantly, and in the context of this increased workload, he will be required to make forensic decisions without the assistance of a solicitor, informed of the law and abreast of the evidence.

Such circumstances, in my opinion, substantially increase the likelihood of errors being made or important matters being overlooked by counsel – a risk that will not confront the prosecution. I am therefore of the view that in the circumstances as they are at present, the trial of the accused is likely to be unfair in the sense that it carries a risk of improper conviction.

I order that the further hearing of this trial be adjourned to a date to be fixed and that the trial not commence until counsel for the accused has the assistance of his instructing solicitor on a day to day basis for the duration of the trial.

The Crown remained silent on the adjournment application in Chaouk so will presumably not challenge it, and VLA's appeal rights are found in s 197, which Lasry J said wasn't applicable in these circumstances.

On its website VLA said,

In his decision this morning, Justice Lasry clearly stated that this trial was not complex.

However, he still adjourned the trial because he believes the Victorian taxpayer should have to pay for not only a solicitor to prepare the case for trial and a barrister to represent the accused during the trial but also for the instructing solicitor to sit through the trial.

In other Australian states, including South Australia, Western Australia, Tasmania and the Northern Territory, this trial would currently be going ahead. Barristers routinely run trials for accused without instructing solicitors, especially for non complex matters.

We are concerned that Justice Lasry’s decision will delay this matter, when it is ready to proceed because the accused has legal representation. We are keen for this case to proceed to avoid lengthy delays in the court system.

You can read VLA's full response here.

Thursday, 14 February 2013

Functus officio: DPP v Edwards [2012] VSCA 293

Functus officio is a latin phrase that translates as 'having discharged an office'.

In the law, it's closely related to the doctrine of res judicata, which refers to a matter decided or adjudicated by a competent court and so conclusive between the parties to the matter.

The difference between the two, if there is one, is not often clear. I guess that functus officio might be used more for some discrete decision that occurs within a legal dispute, rather than the ultimate resolution of the case, but I reckon most folks involved in the justice system could think of many examples to shoot down such an imprecise attempt at a definition. Anyway...

edit: One of my colleagues helpfully pointed out the logical and simple distinction. Had I but spent more time looking...

In essence, res judicata refers to the dispute between the parties, and the rule that once decided, it can't be re-litigated.

Functus officio refers to the court, tribunal or office discharging or completing its role in the matter so that it can't re-enter the fray.

Last last year the Court of Appeal considered the issue in DPP v Edwards [2012] VSCA 293.

Mr Edwards was sentenced by the County Court for recklessly causing a serious injury. We discussed a while back the changes which meant the County Court may not impose a suspended sentence for that offence, though the Magistrates' Court may.

The sentencing judge wasn't made aware of that, and so purported to impose a wholly suspended jail sentence on Mr Edwards.

A few weeks down the road, someone realised the problem, and ultimately, the County Court purported to re-sentence Mr Edwards to a community corrections order.

The Court relied upon Criminal Procedure Act 2009 s 412, which provides:

412. Power to amend when there is a defect or error

For the purpose of correcting any defect or error in substance or in form, a court may amend any summons, warrant, plea, judgment or order.

(That provision is similar to, but reads a bit broader, than Sentencing Act 1991 s 104A, also known as 'the slip rule'. We discussed the slip rule back here, and barrister Paul Duggan has just today published a new post on his blog, "Tripping up on the slip rule." Check it out.)

The DPP appealed the second sentence. The main point ultimately considered on the appeal centred on the validity of the second sentence.

One of the reasons the Court of Appeal seemed to be interested in dealing with that issue was because of its own previous decision in R v Brattoli [1971] VR 446, and its apparent conflict with R v Billington [1980] VR 265.

In Brattoli, the County Court first imposed a sentence that it could not properly impose, and then later purported to re-sentence the prisoner. (Well, pedantically, the second time was a sentence, rather than re-sentence.) The Court of Appeal said that was okay, because the original sentence was wholly invalid with the consequence the County Court had not at law imposed any sentence. So the second sentence was valid, and then exhausted or spent the sentencing power of the County Court.

(I know of one other case that dealt with a similar issue: Nollen v Police (2000) 78 SASR 421. That concerned a sentence imposed by a magistrate, later held to be beyond the jurisdiction of the Magistrates' Court and so unenforceable.)

In Billington, the Court of Appeal held that the trigger for the functus officio doctrine was when an order passed into "The Record". There are a few cases that deal with that, mostly suggesting it's when a judge's associate notes the order on the indictment (now presentment) or whatever the initiating process is, and the judge signs it. (I don't know of any cases that consider this point in the Magistrates' Court, especially now that most orders are recorded in CourtLink, the Court's computer system, rather than a paper register as seems contemplated by s 18 of the Magistrates' Court Act 1989.)

When is a court functus officio?

The practical problem that arises from these cases is that the functus officio rule tells us that once a court makes a decision, that's it, it's finished. Unless someone appeals, the decision stands.

But if the Court is not functus officio, the decision can be revisited.


In Edwards, Warren CJ nominated the divide as one between decisions of inferior and superior courts:

[15] The general position with respect to the finality of sentencing orders is clear. Once a court has made a sentencing order and the order has passed into the court’s records, the court is functus officio. The court cannot reconsider the matter, recall the original order and make a new order. This general position is supported by a long line of authority.

[16] This general position is subject to some qualifications, of which three are presently relevant. First, the court may have inherent or implied power to correct some kinds of errors in its orders (the ‘slip rule’). Secondly, statute may confer on the court additional power to vary a sentencing order. For example, statute may expand the court’s power to correct an error in the original order beyond the type of errors that can be corrected under the court’s inherent or implied power to correct errors. Statute may also confer power to vary a sentencing order in other circumstances. Thirdly, if the original sentencing order was made in excess of jurisdiction, it may lack sufficient legal effect to trigger the application of the functus officio doctrine. The existence of this third category is controversial.


[19] ...authority reveals a fundamental distinction between orders made by superior courts and orders made by inferior courts. Superior court orders are valid and effective until set aside, even if made in excess of jurisdiction. Generally, inferior cour orders are not.

What's a superior compared to inferior court? A quick and dirty ostensive definition is that all the state Supreme Courts and Courts of Appeal, the Federal Court and the High Court are superior courts. For a more expansive discussion, check out Enid Campbell, 'Inferior and superior courts and courts of record' (1997) 6 Journal of Judicial Administration 249. Some of the features of superior courts are: they posses supervisory jurisdiction exercised through prerogative remedies; their decisions are usually valid unless set aside, and so their jurisdiction is presumed to be valid; and they possess inherent jurisdiction. (Remember, inferior courts possess an implied rather than inherent jurisdiction — see Grassby v The Queen (1989) 168 CLR 1 — though some of the older cases don't make that distinction clear.)

The upshot of this is that if an inferior court makes an order in excess of its jurisdiction, that decision does not trigger the functus officio doctrine: Edwards at [68].

Warren CJ provided four reasons in support of this:

  1. This corresponds with the common law on administrative tribunals, which are similar to inferior courts.
  2. At common law, a party can disregard an order in excess of jurisdiction made by an inferior court, and not be liable to contempt. If the parties can disregard the invalid order, the Court should be able to as well.
  3. This is consistent with the position that decisions of inferior courts — in this case, the County Court — made beyond jurisdiction, are invalid, whereas decisions of superior courts are always valid until set aside.
  4. Brattoli is on point.
Her Honour also noted that nothing in the Criminal Procedure Act, Sentencing Act or County Court Act modified the common law position.

Her Honour considered that for all these reasons, the sentencing function remained "undischarged" and the County Court was not functus officio, at [98].


Weinberg JA and Williams AJA gave a joint judgment that took a different approach.

They too agreed that the first issue to consider was if the County Court was functus officio. At [177] – [206] they analysed a raft of cases, and said the answer was — the lawyers' favourite — "it depends". They adopted the reasoning of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 and subsequent cases, that the validity of a decision, of an inferior tribunal or court, made in excess of jurisdiction is determined by considering the legislation that provides the power to make the decision.

That meant in this case analysing County Court Act 1958 s 36A. Its wording and operation did not suggest that Parliament intended County Court orders to be void. So too, the existence of Sentencing Act 1991 s 104A and Criminal Procedure Act 2009 s 412 suggested that County Court orders should be considered valid and only perhaps voidable rather than void, if in excess of jurisdiction. Otherwise, what would be the need for those sections?

Their Honours held that on considering the source of the decision making power or powers available to the County Court, the Court was functus officio. Further, if Brattoli had ever been good law – and they doubted it had — it wasn't now.

The problem with functus officio versus void orders

When I read Warren CJ's decision, the first thing I wondered — as I had when I first read Brattoli and Nollen — was what happens when an inferior court imposes a sentence that is in excess of jurisdiction. If a magistrate purports to jail someone for an offence they can't impose jail for, or cancel a driver licence without power, is the offender free to just ignore that order? Who decides the order is invalid? The police? Lawyers? Offenders?

It seems to me there must be some certainty about those orders if we're not to have anarchy.

Their Honours dealt with that, providing (IMHO) compelling policy reasons why the doctrine of functus officio should be held to apply to decisions of inferior courts, even if made in excess of jurisdiction, until remedied on appeal.

[223] In DPP v TY (2009) 24 VR 705, 712, Maxwell P, Ashley and Neave JJA said that:

It is necessary that a court order imposing sentence be — and be treated as — valid and enforceable unless and until it is set aside (whether after a successful conviction appeal or after a successful sentence appeal). ... The status of court orders — at least those of superior courts — is quite different in this respect from that of administrative decisions.

[224] While their Honours did distinguish between inferior and superior courts (and so this statement of principle cannot be taken to have determined the effect of County Court orders made without jurisdiction), the case adverts to the strange consequences that would arise if a sentence infected by judicial error were to have no effect in law at all.

[225] Those consequences were specifically anticipated by Simpson J in Swansson (2007) 69 NSWLR 406, 432, where her Honour said:

In practical terms, of course, a person convicted (and imprisoned) as a consequence of a criminal proceeding that is a nullity is not able (even though entitled to do so) to disregard the order. But it might be useful to consider what would ensue if that person escaped from imprisonment. On the authority of Attorney-General (NSW) v Mayas and United Telecasters Sydney, he/she could not be convicted of escaping lawful custody.

[226] Any analysis requiring the result that a conviction for escaping lawful custody should be set aside on that basis would bring the law into disrepute.

[227] It would be somewhat odd to think that a judge of an inferior court had far greater powers to correct an error that he or she has made in sentencing an offender than a judge of a superior court of record.

In conclusion, the majority said:

[228] It is well established that intermediate appellate courts can hear appeals from ‘null’ convictions. At least to some degree, therefore, it can confidently be said that sentences passed in excess of jurisdiction are not, for all purposes, to be regarded as being without legal effect.

[229] In the absence of legislation, such as the provisions of the County Court Act 1958, the Sentencing Act 1991 and the Criminal Procedure Act 2009 to which we have referred, it would be plausible to suggest that a sentence imposed without power should be viewed as a nullity and without legal effect. Bhardwaj suggests, however, that labels such as ‘nullity’, or ‘void’, do not answer the true question as to the effects of a sentence imposed without power, which is one of statutory construction.

[230] In Victoria, having regard to the provisions of s 36A(2) of the County Court Act 1958, and the other provisions previously mentioned, a judge of the County Court is functus officio with regard to a sentence entered into the record of the court, even though it is affected by jurisdictional error. That conclusion flows from the weight of recent authority, including, in particular, the tenor of several recent High Court decisions. It also represents sound policy.

The end result

Their Honours went on to expressly overrule Brattoli. They noted that the County Court was functus officio following the first sentencing, and that the correct remedy was an appeal or to seek a writ of certiorari. The second sentence was invalid, because the Court was functus officio at the time.

Last, s 412 of the Criminal Procedure Act was not so broad as to cure all defects, and certainly could not overcome the effect of the functus officio doctrine.

This case is one of those text-book examples of how the common law gradually develops over time, and the courts refine the doctrinal approach to issues. Jettisoning Brattoli and the dual-stream of void-voidable decisions of inferior-superior courts, with the real chance for uncertainty, seems to be a much more logical result. It seems any order of any court will now be treated as valid and binding unless and until varied on appeal or review.

Wednesday, 13 February 2013

Finishing what you started

In Massey v R [2013] ACTCA 5 the appellant, convicted of murder in a street stabbing, contended that it was a misdirection for a trial judge to tell a jury that she could not rely on self-defence if she had been the original aggressor and her aggression had not ceased. Support for this was said to be drawn from obiter statements from Anandan v The Queen [2011] VSCA 413. The ACT Court of Appeal concluded that the directions to the jury on the issue were appropriate. A person confronted by the threat of violence need not wait until the threat matures into the actual use of force before taking steps to defend themselves. It follows that, where the accused is initially 'spoiling for a fight' this is something that the tribunal of fact will consider when deciding whether the accused did what they reasonably believed to be necessary in self-defence.

DPP v Zecevic

Generally, a person cannot claim self-defence in a fight they start. Some event must occur (ie. be found by the tribunal of fact to have occurred, or be left in doubt as to whether such an event occurred or not) to have turned the original aggressor into someone defending themselves, and vice versa. This is because it would be all too easy for an accused to say, "I did start the fight, but then once we got into it I started to lose the fight, and it was necessary for me to kill my opponent or else I genuinely feared they would do the same to me." This cannot be the law.

Support for this proposition emerges from DPP v Zecevic (1987) 162 CLR 645. Since the High Court was aiming to definitively set out the test for self-defence in this country (and has been accepted as such ever since), it's hard to think of weightier authority.

Here is what the High Court said about the issue, in the order that the judgments were reported:

Mason CJ [at 654]:

In the result I now consider that we should accept that the joint judgment of Wilson, Dawson and Toohey JJ correctly states the law of self-defence.

Wilson, Dawson and Toohey JJ [at 663]:

Where an accused raising a plea of self-defence was the original aggressor and induced or provoked the assault against which he claims the right to defend himself, it will be for the jury to consider whether the original aggression had ceased so as to have enabled the accused to form a belief, upon reasonable grounds, that his actions were necessary in self-defence. For this purpose, it will be relevant to consider the extent to which the accused declined further conflict and quit the use of force or retreated from it, these being matters which may bear upon the nature of the occasion and the use which the accused made of it.

And they continued later [at 664]:

The whole of the surrounding circumstances are to be taken into account and where an accused person has created the situation in which force might lawfully be applied to apprehend him or cause him to desist - where, eg. he is engaged in criminal behaviour of a violent kind - then the only reasonable view of his resistance to that force will be that he is acting, not in self-defence, but as an aggressor in pursuit of his original design. A person may not create a continuing situation of emergency and provoke a lawful attack upon himself and yet claim upon reasonable grounds the right to defend himself against that attack.

Brennan J used some dramatic examples to illustrate the point (at 666):

Self-defence is not a charter to kill or assault those who have a duty or have a right to apply force to the accused. In the days of capital punishment, a condemned man could not have killed the hangman in self-defence. A person who is being lawfully arrested is not entitled to defend himself by using force to resist the arrest, even if he be innocent of the offence for which he is being arrested. A prisoner escaping from a gaol cannot justify or excuse shooting a warder though he believes on reasonable grounds that the warder was trying to shoot him and that it was necessary to shoot back to avoid being killed. A man who threatens deadly force to a person who attempts to rape his wife or child cannot be killed with impunity by the would-be rapist, even if he believes on reasonable grounds that he will otherwise be killed. The lawful application of force, even deadly force, does not confer on the person to whom it is applied any legal authority, justification or excuse to resist it.

Neither Deane J nor Gaudron J specifically addressed the issue.

One Lump or Two?

The emphasis in these sorts of cases has been on breaking an incident into two (or more) sub-events. If the accused was the initial aggressor but then there has been a minor break in proceedings, and the 'fight' resumes, the accused may then lay claim to self-defence. If the incident is one of continued aggression by the accused from go-to-whoah, there is little likelihood of a jury determining self-defence.

In Code states, self-defence is spelled out in terms similar to these (this example is lifted from the Commonwealth Criminal Code):

10.4 Self-defence

(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in self-defence.

(2) A person carries out conduct in self-defence if and only if he or she believes the conduct is necessary:

(a) to defend himself or herself or another person; or

(b) to prevent or terminate the unlawful imprisonment of himself or herself or another person; or

(c) to protect property from unlawful appropriation, destruction, damage or interference; or

(d) to prevent criminal trespass to any land or premises; or

(e) to remove from any land or premises a person who is committing criminal trespass;

and the conduct is a reasonable response in the circumstances as he or she perceives them.

(3) This section does not apply if the person uses force that involves the intentional infliction of death or really serious injury:

(a) to protect property; or

(b) to prevent criminal trespass; or

(c) to remove a person who is committing criminal trespass.

(4) This section does not apply if:

(a) the person is responding to lawful conduct; and

(b) he or she knew that the conduct was lawful.

However, conduct is not lawful merely because the person carrying it out is not criminally responsible for it.

(Victoria, which is a bit of a half-way house - codifying some principles in relation to murder but leaving others in common law - reproduces (4)(a) and (b) in s 9AF of the Crimes Act 1958.)

Massey v R

In Massey v R [2012] ACTCA 5, an ACT case, it was argued that various errors had occurred that should vitiate the conviction. Ambitiously, the appellant asserted that willingness to fight was not continuing aggression.

Unsurprisingly, the Court of Appeal applied Zecevic. Higgins CJ [Refshauge CJ and Rares J agreeing] at 102:

The appellant argued that an original aggressor was entitled to act in self-defence even though his or her “original aggression” had not ended. She also contended that a person willingly engaged in a fight can act in self-defence.

His Honour correctly directed the jury to consider whether the appellant’s original aggression had ceased at the time she stabbed the deceased so as to enable her to form the belief, based on reasonable grounds, that her actions were necessary in self-defence: Zecevic at 663. Here, the initial phase of the confrontation involved either the appellant being seen as the initial aggressor or as a willing participant in the interaction she had with the deceased prior to the stabbing. The factual question was whether that aggression by the appellant (and willing participation in a fight is also aggression) had ceased before she decided to stab the deceased.

In R v Nguyen (1995) 36 NSWLR 397 at 407 Priestley JA, with whom Smart and Ireland JJ agreed, said that self-defence, as a justification or excuse, for killing had a starting point of a person who, not wanting to fight, was attacked or threatened with attack in a way that lead him or her to believe that self-defence was necessary to protect him or her from harm. He continued:

Such situations do not include those where what is going on is a fight which the fighters have willingly joined in, whether to carry on or settle a quarrel, or for some other reason. Once such a fight is under way, the person who has, ex hypothesi, got into it for reasons other than self-defence, may often, because of the nature of fighting, be suddenly faced with injury or death, and to prevent that, self-defence in one sense will be necessary, which may lead to the injury or death of the opponent. That sort of self-defence, if it ends in the killing of the opponent, is not the sort of self-defence that the Crown must negative in showing (when the issue arises) that the killing has been unlawful. The last sentence may need qualification in some circumstances, as for example, if a fight is going on according to broadly understood conventions intended to prevent serious harm and one fighter suddenly breaks the conventions by producing a lethal weapon. That kind of possible qualification does not arise in the present case. (emphasis added)

Nor did the need for such a qualification arise at the trial here. Here, there was a wide variety of accounts about the course of the altercation and whether it, indeed, had two phases, as the appellant suggested. The trial judge, accordingly, was concerned to ensure that, through his directions, the jury understood that they needed to consider whether the prosecution had proved, beyond reasonable doubt, that at the point in time and the stage of the fight, when she stabbed the deceased, the appellant did not act in self-defence. His Honour emphasised that the prosecution had to prove beyond reasonable doubt that the appellant’s aggression had not ended at the time of the stabbing. He directed the jury that the issue was whether the appellant had ended her aggression, and was defending herself against a new attack at the time she stabbed the deceased.

Anandan v R

The appellant had bolstered her argument using Anandan v The Queen. But interstate courts of appeal aren't shying away from saying when they think the Victorian Court of Appeal is in error, it seems.

Higgins CJ [at 95, Refshauge ACJ and Rares J agreeing] repeated the contentious quote from the plurality in Zecevic:

Their Honours then addressed one particular evidentiary matter relevant to the answer to the question of self-defence, noting that in the Code States this matter was treated as raising a question of law, saying (at 663):

Where an accused person raising a plea of self-defence was the original aggressor and induced or provoked the assault against which he claims the right to defend himself, it will be for the jury to consider whether the original aggression had ceased so as to have enabled the accused to form a belief, upon reasonable grounds, that his actions were necessary in self-defence. For this purpose, it will be relevant to consider the extent to which the accused declined further conflict and quit the use of force or retreated from it, these being matters which may bear upon the nature of the occasion and the use which the accused made of it. Indeed, even in circumstances in which the accused was not the original aggressor, retreat in the face of a threat of violence before resort to force may be relevant to the belief of the accused or the reasonableness of the grounds upon which the accused based his belief. There is, however, no longer any rule that the accused must have retreated as far as possible before attempting to defend himself. It is a circumstance to be considered with all the others in determining whether the accused believed upon reasonable grounds that what he did was necessary in self-defence: Howe (1958) 100 CLR at 462–464 per Dixon CJ; Viro (1978) 141 CLR at 115–116 per Gibbs J. (emphasis added)

In Anandan v The Queen [2011] VSCA 413 at [18] Nettle JA said that in this paragraph, Wilson, Dawson and Toohey JJ spoke of a person being the “original aggressor” only in the sense of aggression involving the use of force, not other aggressive behaviour. Coghlan AJA, with whom Lasry AJA agreed on this aspect (at [93]), found that the summing up there created difficulty for the jury in evaluating what the trial judge had meant by her qualification that self-defence was not available to the accused there “unless their original aggression had ended”: Anandan v The Queen at [71]–[81]. Coghlan AJA appeared to accept that the initial aggression could consist of aggressive behaviour, such as occurred there, being the taking of two chairs from a table in a pub occupied by the victim and his friend. He held that the judge there needed to explain what she meant, in the factual context, by the impugned expression.

To the extent that Nettle JA held that the original aggression had to involve the use of force, we are of opinion that his Honour was wrong. A person confronted by the threat of violence need not wait until the threat matures into the actual use of force before taking steps to defend himself or herself. For example, a person confronted by another who, after saying that “I am going to kill you”, then reaches into his pocket, may well apprehend that the hand in the pocket will not be looking for a handkerchief but rather will be searching for a weapon. It is the threat of violence, not its actuality, that is necessary, although very often both will be perceived by the accused. Wilson, Dawson and Toohey JJ explained that the use of deadly force, if justifiable or excusable as self-defence, requires a threat that the user perceives calls for that response: Zecevic 162 CLR at 662. Indeed, as they explained in the first emphasised portion of their reasons quoted in [94] above, the original aggression can induce or provoke the assault from which the accused will claim the right to act in self-defence arises, even though no physical force occurred in the inducement or provocation.

Thursday, 7 February 2013

'Good morning', or no 'good morning'?

I was spectating in court late last year when practitioners at both ends of the bar table copped it from the bench for having the temerity to say 'good morning' when making their appearances.

His Honour did not immediately reply to the greetings of both counsel. After a prolonged silence, the magistrate stared directly ahead and said,

"I will remind all practitioners with business before the Court this morning of what Justice Palmer said in Wilson v Department of Human Services [2010] NSWCA 1489 about unnecessary familiarity in the courtroom. It is inappropriate in our adversarial system to commence submissions with anything other than, 'May it please the Court'. Now ... "

The magistrate was an unfamiliar one (to me, anyway, and I assume to the practitioners involved) but the issue was obviously a sore point with him, if his immediate knowledge of the citation of Wilson's case was any indication. I hadn't read the case before, or even heard of it. (My more learned colleague has since referred me to this excellent discussion of the case, from then-president of the Bar Association of Queensland, RJ Douglas SC.)

In my view, that case turns on its own facts, and is more directed towards the appropriateness (or otherwise) of theatrics by counsel to win the tribunal of fact over to their side. The judgment was - as has been pointed out - more critical of disingenuous greetings directed at the opposing side's witnesses. The reference to greeting the bench was in the context of when one side does and the other doesn't.

In any event, I see the occasional greeting or exchange of pleasantries as a harmless part of normal human interaction, especially in summary or pre-trial matters when the days can be long.

What do you think?

New police pursuits offence

Crimes Act 1958 s 319AA commenced operation on 20 December 2012, creating new police-pursuit offences with more significant penalties than those found in Road Safety Act 1986 s 64A. It was inserted by the pithily-named Justice Legislation Amendment (Family Violence and Other Matters) Act 2012 s 32.

The new provision provides:
319AA. Dangerous or negligent driving while pursued by police

(1) A person must not drive a motor vehicle dangerously or negligently if he or she knows, or ought reasonably to know, that—
(a) he or she has been given a direction to stop the vehicle by a member of the police force; and

(b) a member of the police force is pursuing the vehicle.

Penalty: 3 years imprisonment.

(2) For the purposes of subsection (1)—
(a) a person drives a motor vehicle dangerously if he or she drives the vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case; and

(b) a person drives a motor vehicle negligently if he or she fails unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances of the case; and

(c) a member of the police force may be pursuing a motor vehicle even if not travelling at the same speed as the vehicle; and

(d) it is irrelevant that the police pursuit is suspended or terminated before the motor vehicle being pursued stops.

(3) In this section—
direction to stop has the same meaning as it has in section 64A(5) of the Road Safety Act 1986;
motor vehicle does not include a vessel.

In addition to the more severe sentencing options, there are also longer licence cancellation and disqualification provisions added to Sentencing Act 1991 s 89(1AA), starting at 12 months, in contrast to 6 months for the vanilla pursuit offence.

Following the High Court's decision in King v The Queen (2012) 245 CLR 588 at [44] (see our post on that case here), the distinction between dangerous and negligent driving is stark.

At 605 [38], the Court said,

The ordinary meaning of “dangerous” is “[f]raught with or causing danger; involving risk; perilous; azardous; unsafe”. It describes, when applied to driving, a manner or speed of driving which gives rise to a risk to others, including motorists, cyclists, pedestrians and the driver’s own passengers.

The Court went on at 609 [46] to endorse the test for dangerousness in Jiminez and McBride. In Jiminez at 579 [13], the High Court said:

For the driving to be dangerous for the purposes of s 52A [the NSW provision under consideration then] there must be some feature which is identified not as want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less that due care and attention.

In McBride at 50 [14]:

This concept is in sharp contrast to the concept of negligence. The concept with which the section deals requires some serious breach of the proper conduct of a vehicle upon the highway, so serious as to be in reality and not speculatively, potentially dangerous to others. This does not involve a mere breach of duty however grave, to a particular person, having significance only if damage is caused thereby.

Negligent driving is similar to civil negligence — in the sense that it requires establishing the elements of negligence: duty of care, breach, and harm resulting from that breach — but further requires that the negligence is of a degree deserving of punishment by the criminal law: King v The Queen (2012) 245 CLR 588 at [22] – [34], [44] – [45].

I've always found the House of Lords' decision in Andrews v DPP [1937] AC 576 helpful when understanding what criminal negligence is. (That case was cited with approval by the High Court in King v The Queen at [25].)

In Andrews, Lord Atkin said at 538:

Probably of all the epithets that can be applied "reckless" most nearly covers the case. It is difficult to visualize a case of death caused by reckless driving in the connotation of that term in ordinary speech which would not justify a conviction for manslaughter: but it is probably not all-embracing, for "reckless" suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it and yet shown such a high degree of negligence in the means adopted to avoid the risk as would justify a conviction. If the principle of Bateman's case is observed it will appear that the law of manslaughter has not changed by the introduction of motor vehicles on the road. Death caused by their negligent driving, though unhappily much more frequent, is to be treated in law as death caused by any other form of negligence: and juries should be directed accordingly.

These tests are contained in s 319AA(2), albeit differently expressed, and it's pretty clear from King v The Queen that the High Court will insist on Courts following the words of the statute.

Very few pursuits are likely to involve driving that is not allegedly dangerous or negligent (or both). The exception might be a low-speed pursuit in something like a tractor or golf-buggy. Which offence will prevail remains to be seen, especially given the High Court noted in King v The Queen at 609 [46] that, "It may be that in many if not most cases dangerous driving is a manifestation of negligence in the sense of carelessness."

The second reading speech and explanatory memorandum suggest that the main motive of the new offence was to create an indictable offence — with all the arrest and entry powers that accompany that — and increase the penalties available to the Courts to act as a deterrent. (Despite the likelihood that a person fleeing the police is more focussed on escaping, rather than consequences, even thought they might be motivated by escaping the consequences of their driving.)