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Sunday, 5 May 2013

Get a room, or get a cell? R v Vaiciulevicius [2013] EWCA Crim 153

R v Vaiciulevicius [2013] EWCA Crim 153 was an appeal against sentence for an offence of outraging public decency, which is one of the four types of public nuisance I discussed here.

When the case is added to Bailii’s database, it should be accessible at this link, but until then, I’ve put a PDF here.

The Court of Appeal stated the facts this way at [2]:


On a Sunday afternoon in early September 2012 the appellant and a woman, both heavily intoxicated, had consensual sexual intercourse in a public park. They had made no attempt to conceal their activity and were visible to other persons in the park including, unsurprisingly, young children who were playing there. They had removed their lower clothing. They stopped only when spoken to by police officers. When later interviewed the applicant admitted the offence and said that he was disgusted by his own behaviour.

Because the offence is a common-law offence, there is little guidance to the Courts for an appropriate sentencing range. The Court considered similar offences, but then said:


[11.] The aggravating features of the present offence are obvious. It was committed in public, with a complete disregard for the shock or distress that it was likely to cause anyone who witnessed it. The presence nearby of young children was a serious aggravating feature. Whether or not the applicant specifically noted their proximity, it was readily foreseeable that they would be playing in the park on a Sunday afternoon. The applicant’s intoxication was a further aggravating feature. So too were his previous convictions, albeit for different types of offence, and the fact that he had so recently
been released from prison.

[12.] For all those reasons, and notwithstanding that this was the first time that the applicant had committed an offence of this nature, the judge was, in our view, entitled to view this case as a serious one.

[13.] We cannot accept Mr Magee’s submission that a sentence of immediate imprisonment was wrong in principle. In our judgment, the learned judge was entitled to conclude that this offence passed the custody threshold and that only an immediate sentence of imprisonment would suffice.

The Court substituted the original 6 month jail sentence with 3 months instead! Seems to be a bit of a puritan overkill to me. Of course no one wants to see folks demonstrating their mojo at the local park, but it does seem a bit disproportionate to the harm. Seems then the message is definitely, “Get a room, or you’ll get a room all right.”



DPP v Batich [2013] VSCA 53 — summary determination of charges

DPP v Batich [2013] VSCA 53 considered a County Court case where the sentencing judge held he should refer an offence of glassing, charged as recklessly causing serious injury, back to the Magistrates' Court.

Some indictable offences can be determined summarily, that is, before a court of summary jurisdiction, or before a trial court on indictment (Our UK colleagues refer to such offences as either-way offences).

There are two pathways to summary determination.

The first and most common way is where the accused applies for (and is granted) a summary hearing at the Magistrates’ Court, under Criminal Procedure Act 2009 ss 28 and 29. (These provisions are pretty similar to the UK guidelines found in Practice Direction (Criminal Proceedings: Consolidation) [2002] 1 WLR 2870 available here.)

The second, and far less common, is where the accused applies for and is granted a transfer of the charge from a trial court back to the Magistrates’ Court for summary determination, under Criminal Procedure Act 2009 s 168. (The two sections are dopplegängers.)

The trial judge used that section to remit the offence to the Magistrates’ Court.

Initially, the judge had canvassed the possibility of imposing a suspended sentence, but was reminded that it was no longer possible for a significant offence because of Sentencing Act 1991 s 27(2B). He also considered a community corrections order (CCO) and youth justice centre (YJC) order. He was aware that the Court of Appeal said in Winch that ordinarily, glassing cases would attract a jail sentence.


The DPP unsuccessfully reviewed that decision, first in the Supreme Court — see DPP v Batich [2012] VSC 524, and then to the Court of Appeal, asking:

1. In making the order transferring the charge in Indictment B13063849 to be transferred to the Magistrates’ Court at Melbourne to be heard and determined summarily:

A. Did his Honour make the order for an improper purpose, namely, to circumvent the operation of S.27(2B) of the Sentencing Act 1991, which prohibited him from imposing a suspended sentence in respect of a charge of recklessly cause (sic) serious injury, which required the imposition of a custodial sentence, the determination of which he was seized of in the proceedings before him?

B. Did his Honour in making the order take into account an irrelevant consideration, namely that he had no jurisdiction to pass a suspended sentence in respect of the charge of recklessly causing serious injury, where a custodial sentence was called for, the determination of which he was seized of in the proceedings before him?

C. Has his Honour refused to exercise his jurisdiction to sentence the Respondent?

2. Is his Honour’s order an abuse of process of the County Court?
The Court of Appeal held that the answers to every question should be 'no'.

At [31] – [44], it rejected the argument that the entire range of sentences that open in this case had to be available to the Magistrates’ Court, but did accept transfer would not be appropriate if only the very bottom of the acceptable sentencing range fell within the Magistrates’ Court jurisdiction. (The Magistrates’ Court may only impose up to two years’ jail on any single offence, and five years’ jail in aggregate.)

Further, in this case, the youth of the offender, the relevance of possible self-defence (at least as a mitigatory consideration, rather than a defence to the charge), lack of criminal history, good prospects of rehabilitation and vulnerability if sentence to adult jail, meant the County Court could properly distinguish the cases relied on by the DPP in arguing that only an immediate jail sentence of more than two years was appropriate.

Although Criminal Procedure Act 2009 s 168(3) meant the Magistrates’ Court couldn't send the charge back to the County Court — no curial ping-pong here — equally, the remitter didn't bind the Magistrates' Court. It could conclude a wholly suspended sentence was appropriate; but equally, it could also conclude that a partial or full jail sentence was necessary, albeit up to no more than 2 years.

Next week, I'll discuss the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Bill 2013, which proposes removing the County Court's ability to remit a significant offence to the Magistrates' Court. (It doesn't say anything about serious offences, because none of them are triable summarily.)

Despite this, I think Batich will remain an important criminal case because:

  • it highlights at [46] the point raised in Winch (and other glassing cases) that, "[T]he statements in Winch do not lay down a mandatory minimum sentence, rather in that case the court made a statement of principle. Each case will need to be considered individually albeit within the context of current sentencing practices"; and
  • it provides the first judicial consideration of s 29 and 168 considerations for summary determination, clarifying the importance of available range of sentence.
Batich is consistent with Hansford v Judge Neesham [1995] 2 VR 233 — which, interestingly enough, wasn't mentioned in Batich —but arguably goes one step further it expressly stating it’s not necessary for all of the proper sentencing range to fall within the jurisdictional limits of the Magistrates’ Court. It perhaps overturns the effect of Scrofani v Duke, SC V, 25 Sep 1991, Ashley J, which upheld a refusal of summary jurisdiction though recognising that the appropriate sentence might fall within that open to the Magistrates’ Court.

The only uncertainty I can see that might arise from Batich is where the Court of Appeal said that transfer (and arguably by implication, first-instance granting of summary jurisdiction) is not appropriate if only the very bottom of the proper sentencing range falls within the Magistrates' Court jurisdiction. The potential for disagreement over what is the ‘very bottom’ of a sentencning range might lead to argument over what is appropriate for summary jurisdiction, though most cases tend to be clearly in or out.

Thursday, 2 May 2013

R v Chaouk [2013] VSCA 99: no funding for instructors means trials likely to be unfair

Edit: Austlii now has R v Chaouk online.



Today in R v Chaouk [2013] VSCA 99, the Court of Appeal rejected an application by the DPP to appeal Justice Lasry's decision in February to stay a murder trial until VLA agreed to fund an instructing solicitor.

The original decision was R v Chaouk [2013] VSC 48. That decision was affirmed about a week later by Justice T Forrest in MK v Legal Aid [2013] VSC 49.

Today's Court of Appeal decision is not yet on Austlii — I expect it will probably be posted tomorrow — but till then you can download R v Chaouk [2013] VSCA 99 here.

Arguably, as a refusal of leave, this creates no precedent and so the single-judge decision remains valid: Blackmore v Linton [1961] VR 374 at 380; Mihaljevic v Longyear (Australia) Pty Ltd (1985) 3 NSWLR 1 at 25; Sir Anthony Mason, 'Where now?' (1975) 49 Australian Law Journal 570 at 575.

In any event, the Court said at [17]:


In case it matters, however, we should say that, even if the Crown were permitted to advance that point for the first time on appeal, we are not at all persuaded that the judge was in error in finding that, in the circumstances of this case, a fair trial necessitated the attendance of the defence instructing solicitor at trial for each day of the trial.

And later at [31]:


For the reasons already stated, we do not consider that the judge proceeded upon wrong principle. To the contrary, his Honour’s perception of relevant law appears to us to be right. Nor do we consider that the judge took into account irrelevant considerations or failed to have regard to any relevant considerations in the course of his reasoning process. To the contrary, his Honour’s survey of the facts and relevant considerations, and in particular his Honour’s analysis of the critical importance of the role of instructing solicitor in the course of a criminal trial for a serious indictable offence, present to us as compelling. His Honour was bound to make a judgment of fact and degree. His conclusion was plainly open to him. Indeed, so far from his conclusion being so plainly unjust as to imply that his Honour must have failed properly to exercise his discretion, we find it difficult to imagine on the particular facts of this case that his Honour could properly have come to any other conclusion.

In the short term, this means the trial against Chaouk won't proceed unless VLA modifies its current grants policy, or the State government provides additional funding, or both.

The Law Institute issued a media release calling on the government to increase legal aid funding to prevent further stays, but The Age quotes Attorney-General Robert Clark as rejecting this.

Wednesday, 24 April 2013

Advocacy Teaching Blog

I noticed the other day that one reader was following the Advocacy Teaching Blog. I hadn't seen it before, and I'm not sure how long it's been going, but there's already a wealth of information there.

It's administered by Assoc Prof Chris Behan (Southern Illinois University School of Law), Prof Charles H. Rose III (Stetson University College of Law), and Assoc Prof Hugh Selby (Australian National University).

Although some of the articles have a focus on North American practice that might not directly apply in the Australian context, there are enough similarities for most of them to be good.

For example, a random post I looked at on control of witnesses suggested a couple of good key phrases for calming down a recalcitrant witness who won't answer questions as asked. (One of the things I liked about this were the examples, similar to Mauet & McCrimmon's Fundamentals of Trial Technique, which tells readers how to go about the task, with specific examples of questions, rather than just what they want to achieve.)

And there's an Agony Aunt section for asking questions of the hive-mind at work on this blog!

And another advocacy resource I came across is a YouTube channel set up by the National Institute of Trial Advocacy. NITA was responsible for the Irving Younger videos at Boulder, Colorado, that probably many of us have seen once or twice over the years. None of these free videos I've seen so far are quite so entertaining, but they're interesting nonetheless.

Monday, 22 April 2013

Justice Legislation Amendment Bill 2013: donations again available for undertakings

Parliament introduced the Justice Legislation Amendment Bill 2013 last week.

Part 6 of the Bill introduces perhaps the most significant amendment. It will overcome the effect of the decision in Brittain v Mansour [2013] VSC 50. That was the case which held charitable donations and the like were not valid as special conditions of adjourned undertakings imposed under ss 72 and 75 of the Sentencing Act 1991. )I discussed the case in my post here.)

The Bill proposes two sets of changes to overcome Mansour.

First, amending ss 70, 72 and 75, expressly permitting for donations to be set as special conditions to adjourned undertakings, whether with or without conviction.

Second, inserting a new section 149A that simply says, "Schedule 4 has effect." This seems to be a new-ish trend from Parliamentary Counsel to add in validating provisions in legislation.

Schedule 4 is intended to validate any previous adjourned undertakings (and CCOs too, for good measure) which had a donation special condition. Knowing now what we do about the validity of judgments which might have been subject to error — discussed in DPP v Edwards here — it's perhaps not needed, but for the sake of avoding doubt, they've added it. It seems the most likely purpose is to prevent appeals by other bodies that might want the money to go to them, rather than charities, as happened in Mansour.

The Bill has progressed to second-reading stage in the Legislative Assembly, with resumption of debate scheduled for the next sitting on 7 May. After it's passed there, it moves on to the Legislative Council. Both Houses are sitting 7 - 9 and 28 - 30 May, so my guess is the Bill won't receive Assent until June some time.

Thursday, 4 April 2013

Thomson Reuters ProView

For many months now I've been meaning to do a short screen cast reviewing ProView on the iPad, as a follow-on from my review last year about LexisNexis's eBooks on Bluefire Reader. (Sadly, nothing's improved there, and they're still not as satisfactory as they could be.)

Easter provided a brief opportunity, so here's my short review of ProView.

In short, if you have a choice where the content is much the same from Thomson Reuters or LexisNexis, then there really is no choice. ProView wins hands down, and is without doubt the iPad app of choice for legal ebooks.

Wednesday, 3 April 2013

Independent Bar an endangered species?

A significant debate seems to be occurring in the UK at the moment, though from 12,000 miles away it's hard to quite know what it's all really about or how it might finish, and whether it might have any effect here in Australia.

But, if the concerns are legitimate — and there are enough informed participants who say they are concerned to suggest there's merit to that concern — then the independent Bar might be about to disappear from the UK legal landscape

What's so important about an independent Bar?


When I went looking for a nice pithy explanation of this, I struggled to find one from all the places you'd expect to find one. Lots of Bars from across the Commonwealth explain what barristers do, and how they do it, and how they operate, but there aren't very many descriptions of why an independent Bar is a good thing.

The main reason is that the independent Bar is independent, and subject to the cab-rank rule. The two are related and depend on each other. An advocate is supposed to fearlessly protect their client's interests, even to the advocate's detriment, so long as they don't breach their overriding duty to the Court.

And lest barristers chose to only represent the easier and more pleasant client, they are obliged to provide that independent representation for any brief offered in their area of practise at their usual fee if they are free.

At his swearing in, at (1952) 85 CLR xi, Dixon CJ said about the independence of the Bar:

But because it is the duty of the barrister to stand between the subject and the Crown, and between the rich and the poor, the powerful and the weak, it is necessary that, while the Bar occupies an essential part in the administration of justice, the barrister should be completely independent and work entirely as an individual, drawing on his own resources of learning, ability and intelligence, and owing allegiance to none.

Ysiah Ross in Ethics in law cites Erskine, quoted by Lord Pearce in Rondel v Worsley [1969] 1 AC 191 at 275:

From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arrainged in the court where he daily sits to practise, from that moment the liberties of England are at an end.

And at 227, Lord Reid said:
Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client's case.

The cab-rank rule is intended to protect the independence required of the Bar, removing the need to justify or defend representing what might seem apparently unreasonable or apparently hopeless cases, and instead guaranteeing representation for everyone at law.

There are a few other reasons why solicitors might value an independent bar, though maybe some won't agree with some of my suggestions (or maybe, any of them):

  • especially for smaller practices, it allows solicitors to retain clients and have them represented in Court when the solicitor can't be everywhere at once
  • barristers might have expertise or experience in an area of law the solicitor doesn't possess
  • the solicitor might not feel capable of, or comfortable with, appearing in court for a particular case
  • the solicitor might want an independent opinion or advice, say perhaps if a client isn't very receptive to the advice they're provided
  • it might be cheaper for the client to brief a barrister. For example, the daily rate of a junior barrister might be less than a day's fee calculated on an hourly rate for a senior partner waiting all day at court, or spending several hours settling an advice

I discussed the cab-rank rule, and its importance, on twitter last week with a solicitor who thought that the cab-rank rule is often ignored by members of the Bar. I can't say I've seen it, but then, I can only really speak for my own practice. I've prosecuted and defended; represented people with lengthy criminal pedigrees, and police officers and professionals with no previous court appearances; I've taken legal aid briefs and declined others because I'm already briefed. I hope my experience is typical, because otherwise, the future of the independent Bar is in strife. What do you think? Is it typical, or are barristers declining briefs in the hope of better paying or easier cases?

Recent UK developments


Meanwhile, in the UK, the independent Bar seems under threat from present plans by the Attorney-General.

The direst prediction is the death of the Bar, and most solicitors firms, in two years.

The Criminal Bar Assocation is not quite as dire, but still remains very concerned about the government's plans.

The dispute centres on two things: the Quality Assurance Scheme for Advocates (QASA) and Best Value Tendering (BVT).

The two are apparently claimed to be separate, but QASA ratings will be linked to the ability to perform correspondingly rated legal work under BVT. So, despite the government's claims, it seems the two go hand-in-glove. There's nothing official out on BVT yet, with a consultation paper due for release in April, and commencement of BVT scheduled for June. (Which is odd, unless the 'consultation' is more window-dressing, and the thing is intended to happen regardless of what the legal industry says.)

One contentious part of the proposal is that judges will assess advocates. The potential for problems is obvious, because a 'fearless independent' advocate might well get up the left nostril of the Bench.

But even then, though a judge can be trusted to judge, they won't be completely trusted to assess advocates! That important task will pass to people employed by a legal regulator, and they will assess the judge's assessment, and decide if the advocate is up to scratch. So the fearless advocate now has two people (or perhaps more) to satiate, which may or may not conflict with their obligation to do the best for their client.

Lord Justice Alan Moses recently observed in his brilliant critique of QASA, "Do we really want a generation of criminal trial advocates who go into the court with the intention of pleasing the judge?"

He continues, "The obligations of independence may clash with the judge’s ideas of what the case requires. Everyone thinks they can run someone else’s case better than their own…judges are not immune from that self-deception, and the Court of Appeal and the Supreme Court live by the belief that they can." I think most advocates have experienced this phenomenon at some stage. (One of my colleagues describes this phenomenon in the Magistrates' Court, where the Bench doesn't have access to depositions, as the tendency of the one person in the court who does not hold the brief and who knows the least about the case feeling the most qualified to proffer opinions to everyone else about how the case should run.)

In situations like this the independent advocate comes to the fore. Lord Justice Moses again, "The advocate’s job may well be to insist that that is not the case, even when the judge who has missed the point persists in his belief that it is he, and only he, who has spotted it.The advocate’s job may be not only to clash with the judge’s ideas but even to clash with the judge." (Not to mention, does the current generation of judges want to add to its workload, and provide a potential further ground of appeal if an unsuccessful litigant claims the judge was distracted from their function by the additional role of assessing advocates before the Court?)

Recently, but no doubt entirely coincidentally, the Legal Services Board released a report into the cab-rank rule (executive summary here). The very short form of that report is because it's more of a principle than a rule, and doesn't seem to have ever been enforced, it should be abolished! (If charge or enforcement rates were the true measure of the utility of a rule, there are any number of criminal laws that might be abolished, like insider trading, or misconduct in public office.)

A recent response to that report was published on the Bar Standards Board website, here, where three barristers critiqued the LSB report, and another response by Sir Sydney Kentridge QC was published by the Bar Council here. (I confess I'd never heard of Sir Sydney, but turns out he's something of a rock star of the UK bar. BBC4 interviewed him just this week; you can listen to the show here.)

The importance of this is not only in a detailed look at the cab-rank rule and how it ensures the Bar remains independent, but that the same arguments might be argued here, given our governments predilections for importing all sorts of ideas from overseas. I reckon the significance of this is that without the cab-rank rule, there is no real difference between solicitor advocates and barristers. There are some fine solicitor advocates around, so it can't be advocacy skills alone that are the difference. (Indeed, since the UK abolished the right exclusive right of audience for barristers in the higher courts, and created a class of solicitor titled the Higher Court Advocates, the similarities have increased, and the differences disappeared.)

The players in the dispute


To make sense of who these bodies are and what they do, here's a brief overview of the players.

The Legal Services Board is the overall legal regulator in the UK. But it doesn't directly regulate lawyers. Oh no, that's done by no less than ten different regulatory agencies. (As an outside observer, I wonder why the cost-cutting doesn't commence with reducing the number of regulators...)

The regulator that supervises barristers is the Bar Council. It delegates that regulatory function to the Bar Standards Board, which is described as something independent, but shows in the Bar Council's organisational chart as a division of the Bar.

There is also a Criminal Bar Association, which has been busily advocating firm opposition to QASA and BVT.

The BSB says the whole thing is coming, one way or another, and that the CBA is silly to oppose it. (If you're a fan of Douglas Adams, you might think it sounds rather like the justification for building bypasses...) Meanwhile, the CBA is marshalling its resources, and the Bar Council has just weighed in with Sir Sydney's response.

You can watch developments at the various sites above, or on twitter with the hashtag #NoToQASA.

Tuesday, 2 April 2013

Private contractors responsible for contracted State obligations?

R v Applied Language Solutions [2013] EWCA Crim 326 is a recent costs decision from the UK Court of Appeal considered the obligations of a private contractor to provide court interpreters.

But more than that, in this age of contracting various functions traditionally performed directly by the government, it suggested that private contractors who willingly assume State obligations might be answerable for their discharge of those functions much as the State might, albeit only to the degree provided for in the terms of the contract.

Applied Language Solutions agreed to provide interpreters for criminal court cases. In a particular case, for reasons that don't seem to be explained in great detail, an interpreter was booked but not told personally of a revised time for a case, and the case was adjourned. (It turned out the interpreter was in fact in the court house at the correct time and available, but not in the required court room.)

The court made a costs order against Applied Language Solutions. That required a finding of serious misconduct by Applied Language Solutions, within the terms of the Prosecution of Offences Act 1958 c 23, s 19B . It appealed.

On appeal, the Court of Appeal held:

  • It is clear that the provision of an interpreter for a witness or a defendant in a criminal case is an obligation of the State which is regarded as an integral part of its obligations to provide a fair and just system of criminal justice, at [13].
  • If a private company takes on the discharge of an obligation of the State, it assumes the responsibility to do so in accordance with the terms it has agreed, at [14].
  • The conduct of the appellant was to be considered in the light of the responsibility to discharge the State's obligation to provide an interpreter in criminal proceedings; a simple failure by the interpreter to attend was a failure for which the appellant was responsible, at [35].
  • In the present case, as in the earlier case before this court, there was no evidence that the failure was anything other than an isolated failure, at [39].
  • In the present case, there was no serious misconduct on the evidence before the judge, at [44].
When concluding there was no serious misconduct in this case, and so quashing the costs order, the Court said:

41. We have reached that conclusion in the light of the following:
i) Courts have to alter times not to suit judges but to suit advocates and witnesses in cases to ensure that trials which are in progress proceed on time. Judge Kelson plainly altered the timing of the case to accommodate counsel so as not to interfere with the progress of a part heard trial. In such a case it is essential that the strict obligations under the agreement are complied with by the appellant.
ii) The Crown Prosecution Service and, on many occasions, those instructed on behalf of the defence are paid out of the public purse. If a case cannot proceed then this has an effect on funds available to the CPS and to the Legal Services Commission who fund much of the defence work. The CPS lawyer and the defence lawyer will have lost the time that they could otherwise have spent. The loss to the public purse is real.
iii) Having efficient systems and good and reliable interpreters is expensive. A contractor cannot be allowed to maximise its profit or reduce its loss in the context of court proceedings by not having in place the best systems and the best interpreters. It cannot transfer its costs of failing to do so to the CPS or the defence.
iv) As the appellant is providing an integral part of the State's obligations, then it must discharge that obligation for the reasons we have set out.
v) Taking, therefore, this wider public interest into account, a court is entitled to view successive non-attendance of an individual interpreter or successive failures in systems as amounting to serious misconduct, thus rendering the appellant liable for the costs thereby incurred to the CPS and the defence.
It's pretty rare in my experience for interpreters to not attend courts here when booked. (The problem can sometimes be availability, but I've always found that once confirmed, they attend as and when required.)

But I wonder if the bigger issue from this case is the fact that the contractor was liable to meet the State's obligations in the same manner the State would have been. If this were the case here, it would seem that contractors can be held to account by the Courts when they don't provide State services, as long as those services are within the terms of their contract. Would this overcome claims of commercial-in-confidence 'privilege'?