Wednesday, 28 August 2013

Ain’t this felon high enough? Coffen v Goodhart [2013] NSWSC 1018

According to the Supreme Court of NSW, a magistrate’s order to determine the height of a suspected ATM thief doesn’t measure up against s 24(1) of the Crimes (Forensic Procedures) Act 2000 (NSW).

In Coffen v Goodhart [2013] NSWSC 1018, the Court considered just how high the hurdle was to order a non-intimate forensic examination of Marco Coffen.

A non-intimate forensic examination is defined in s 3(1) of the Act as:

(a) an external examination of a part of a person's body, other than the person's private parts, that requires touching of the body or removal of clothing,

(b) the carrying out on a person of a self-administered buccal swab,

(c) the taking from a person of a sample of the person's hair, other than pubic hair,

(d) the taking from a person of a sample (such as a nail clipping) of the person's nails or of matter from under the person's nails,

(e) the taking from a person of a sample of any matter, by swab or washing, from any external part of the person's body, other than the person's private parts,

(f) the taking from a person of a sample of any matter, by vacuum suction, scraping or lifting by tape, from any external part of the person's body, other than the person's private parts,

(g) the taking from a person of the person's hand print, finger print, foot print or toe print,

(h) the taking of a photograph of a part of a person's body, other than the person's private parts,

(i) the taking from a person of an impression or cast of a wound from a part of the person's body, other than the person's private parts,

(j) the taking of a person's physical measurements (whether or not involving marking) for biomechanical analysis of an external part of the person's body, other than the person's private parts.

The parties agreed that paragraph (a) was the only relevant part of the definition.

The Court held that assessing Mr Coffen’s height wasn’t examination of part of his body, and that measuring wasn’t an examination but a calculation or assessment against a metric standard. Mr Coffen’s appeal was allowed.

Presumably the decision left the prosecution feeling a bit down, but it seems it’s not appealing to a higher authority.

Tuesday, 27 August 2013

Veiled contempt?

According to the Daily Mail, last week a UK judge ordered an accused Muslim woman to remove her veil in Court before he (the judge) would accept her plea.

Can the court order that? Is it a contempt of court for her to refuse?

I started writing this post a few weeks ago when a similar thing apparently happened in a Queensland court, though it seems the Queensland case didn’t actually go as far.

In the Queensland case the Courier Mail reported that a Queensland magistrate queried if it was appropriate for a Muslim woman to wear a niqab in court. (The report incorrectly refers to her wearing a burqa; I’ve previously linked to this graphic showing types of Islamic womens’ attire.) The Courier Mail report seems something of a beatup, as SBS discussed. As I read it, the magistrate didn’t do anything more than wonder out loud; no one asked the accused to remove her head dress; nor did anyone suggest she ought to so she could be identified.

In any event, how can a Court identify an accused person? I’ve seen judicial officers ask an accused person, “Are you Jane Doe?”, and Jane Doe answer, “Yes.”

But really, what does that establish? It could be anybody standing in Court. (And indeed, when you consider cases such as DPP v Velevski (1994) 20 MVR 426 — where Michael Velevski falsely used the name of and was charged and (originally) convicted as his brother Pita Velevski, and Pearcey v Chianta (1987) 6 MVR 10 — where Danillo Chianta allegedly gave his brother’s name, Alexander Chianta, to the police — it probably does happen.) So too, asking a woman to remove her headdress is unlikely to establish her identity, unless the Bench knows her.

I don’t know if the Court could compel an accused person to remove a veil. Might it be a contempt of court to refuse such a direction?

A NSW magistrate recently declared she considered an accused man’s refusal to stand when she entered the Court was a contempt of court, but ultimately did not punish the accused for it. It seems in that case that the Court’s focus was more on the disrespect shown by the accused, as tending to undermine the authority of the proceedings. That is one of the ways contempt of court might occur.

But contempt of court goes further than ‘mere’ disrespect or criticism of the court. Contempt of court comprising conduct ‘scandalising the court’ must be so severe or defamatory of a judge or court that it’s likely to interfere with the administration of justice by seriously lowering the authority of the court.

For example, in Lewis v Ogden (1984) 153 CLR 682, a barrister was charged by a judge with contempt contrary to (the now repealed) s 54A of the County Court Act 1958. That section created an offence of wilfully insulting a judge. The barrister — courageously or foolishly, depending on your perspective — had a crack at the judge during closing addresses, suggesting pretty strongly the judge had taken an adverse view of his client’s case and offered those opinions to the jury. The judge charged the barrister with contempt. The High Court said the barrister was countering possible adverse comments that might be made by the judge in his charge to the jury, and so there was a legitimate point to his address. Ultimately, it held that the final address was, “[D]iscourteous, perhaps offensive, and deserving of rebuke by His Honour, but in our view it could not be said to constitute contempt.” It also observed that a court’s contempt power is rarely, if ever, used to protect the personal dignity of a judge. However, an advocate calling a magistrate a cretin whilst the court is sitting is — in addition to not being good advocacy — sufficient insult to the authority of the court to constitute contempt: Attorney-General v Lovitt [2003] QSC 279. Unsurprisingly, publishing books alleging judicial officers are corrupt can constitute contempt by scandalising the court: R v Hoser and Kotabi Pty Ltd [2001] VSC 443 and Hoser & Kotabi Pty Ltd v The Queen [2003] VSCA 194. In contrast, a lawyer, out of court, calling a judge a wanker when learning of the effect of an order of the court, was held not to be a contempt: see Saltalamacchia v Parsons [2000] VSCA 83, generally affirming Anissa Pty Ltd v Parsons (on application of the Prothonotary of the Supreme Court of Victoria) [1999] VSC 430. In a similar vein, a submission of bias made by counsel of a judicial officer cannot, without more, constitute a contempt; but if made in an insulting or disrespectful manner, or not for a genuine concern of bias, it would be a contempt: Magistrates’ Court at Prahran v Murphy [1997] 2 VR 186 at 209. (You can also find a good discussion of contempt by scandalising the court at  “Does the ‘Offence’ of Contempt by Scandalising the Court Have a Valid Place in the Law of Modern Day Australia?” (2003) 8 Deakin Law Review 113.

Another way of committing a contempt of court is by disobeying a proper order of the court.
Archbold notes examples such as refusing to leave when hindering or interupting proceedings; persisting with adducing evidence ruled irrelevant or acting offensively to the court, and removing documents from the court when ordered not to do so.

Some astounding examples of this are throwing a bag of excrement at a juror, baring buttocks at the trial judge, offensive language, continuing malevolence and wilful disruptiveness: DPP v Paisley [2002] VSC 594; DPP v Sonnet [2002] VSC 596; DPP v Wenitong [2002] VSC 595; and DPP v Johnson [2002] VSC 597.

However, those acts of disobedience all share the theme of potentially or actually interfering with the administration of justice, rather than just contumaciousness.

So what then of a defiant witness who refuses to remove her niqab or burqa? (Or, a person who refused to remove a motor cycle helmet, or a balaclava, or even a hat or sunglasses?)

If the mere sight of the person’s face would truly leave a court none the wiser about the identity particulars of the person in the dock, or court, I wonder if the court order would be a ‘proper’ one?

In the UK report at the top of my post, the Daily Mail reports that the accused’s female counsel offered to identify the accused, or suggested that a female police officer or prison guard to do so. Although practical suggestions, those people wouldn’t necessarily be in any better position to say who the accused was either. (I don’t think I’ve ever had the occasion to request ID from my clients, so in reality, I take them at face value — pun intended — when they tell me they are the person named in the charge before the court.)

The Canadian Supreme Court recently grappled with the issue of witnesses wearing a veil when testifying, in R v NS [2012] 3 SCR 726.

In that case, NS alleged her uncle and cousin sexually assaulted her. She wanted to testify at a preliminary enquiry — I guess that’s the Canadian equivalent of a committal hearing? — wearing her niqab, which hid her face but left her eyes visible.

The judge ordered that she remove her niqab. That decision raised questions about freedom of religion and the right to a fair trial under the Canadian Charter of Rights. (The equivalent provisions her are Charter 14 and 24.) The fair-trial aspect relates to the right an accused person has to confront their accuser, and to the ability of the finder of fact to assess the witness’s credibility by gauging their demeanour.

The majority held at [9] that the Courts should determine if a witness be required to remove a religious garment by considering four questions:

  1. Would requiring the witness to remove the niqab while testifying interfere with her religious freedom?
  2. Would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness?
  3. Is there a way to accommodate both rights and avoid the conflict between them?
  4. If no accommodation is possible, do the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so?

The majority then explained these points in detail, and directed that the case return before the preliminary enquiry judge to use these points to decide if the witness should remove her niqab.

A good critique of the judgment is available on The Court blog, Peeling back the Court’s decision in R v NS. (Well worth a read.) One of the points  Stephanie Voudouris makes there is that the common law’s view of the utility of demeanour in deciding credibility and reliability of witnesses isn’t borne out by psychological research. There was an article on this a few years ago, Who is telling the truth? Psychology, common sense and the law (2006) 80 ALJ 655. I think I’ve seen reference to more recent articles on the point, but I can’t lay my hands on them right now.

R v NS doesn’t really tell us the answer to what might happen with an accused person required to remove a niqab or burqa, but does show some of the considerations that will come in to play in Victorian courts. (I expect those human rights considerations will get a mention in the UK case, because of its Human Rights Act.) So long as an accused person has an absolute right to maintain their silence in a criminal hearing — so no question of assessing their demeanour will come into play — and, if a Court could see their face it would be none the wiser about who they actually are, I think the answer will be that there is no power to compel them to remove a veil.

To me, the real question that crops up is what is a court to do if faced with any accused person, and there is a real question about the identity details of the person in the court room asserting to be the accused or offender? When the accused pleads not guilty, it’s up to the prosecution to prove that element beyond a reasonable doubt.

But when the accused pleads guilty, it’s a different story. The general rule is that a guilty plea is a formal admission of every element of an offence: DPP v Drucker (1997) 98 A Crim R 142 at 147; R v Henry [1917] VLR 525; R v Rimmer [1972] 1 WLR 268 at 271; De Kruiff v Smith [1971] VR 761; R v Broadbent [1964] VR 733; R v Tonks [1963] VR 121.

In Maxwell v The Queen (1996) 184 CLR 501 at 510 – 11 the High Court said that when a court doubts that a guilty plea is not genuine, is must obtain either an unequivocal plea or direct that a plea of not guilty be entered. Although that was in a different context, I guess that the same reasoning would apply if a court considered it was being hoodwinked. The effect of rejecting the plea and entering a plea of not guilty would be to oblige the prosecution to then prove beyond reasonable doubt who the person standing in the court actually is, and that would overcome the problem facing the court.

What do you think?

Sunday, 25 August 2013

High Court Oz Blog

When I wrote yesterday’s post, I knew there was another site I wanted to mention...

The University of Melbourne recently launched the loftily-titled blog Opinions on High. (You can read the announcement here.)

For many years, the leading blog discussing the workings and decisions of the superior appellate court of a particular country has been that of the Supreme Court of the USA, SCOTUSblog. Not far behind is the Supreme Court of Canada, simply called The Court. And New Zealand’s Supreme Court has the NZSCblog, while more recently, the new UK Supreme Court got UKSCblog.

Jeremy Gans, who occasionally offers insightful comments here, is one of the contributors. He tells me they hope to post about special leave applications and results, and dates of appeals and judgments when they have the information available. It should be an extremely helpful resource for anyone interested in High Court proceedings. (Also, don’t overlook Law Geek Down Under blog as an excellent alert for pending High Court judgments and analysis of new decisions.)

All of these blogs offer RSS — really simple syndication — which will push updates to an RSS client, rather than you having to remember to check the sites for updates. Since Google killed Google Reader, its free RSS service, a number of new services have sprung up. Probably the best one now is Feedly, which offers web-based, iOS and Android clients, and a sync service across all your devices. But, if you read your RSS feeds on the iPad, I still reckon the best app is Mr Reader. You can see some of Don McAllister’s screencast about it on ScreenCastsOnline here.

Saturday, 24 August 2013


This short post is an update on a few recent-ish information sources I want to share.

A couple of weeks ago I attended the LIV criminal law conference, and participated as member of a panel discussing social media and the law. I mentioned there that the LIV had a good social media presence, with the Institute’s incumbent president tweeting from @LIVPresident, as well as the Law Institute Journal from @theLIJ, and a President’s blog.

And I had to say that in contrast, the Bar didn’t have much of a social media presence. Happily, that’s all changed.

About then, the Bar’s president opened an account, and just last week the Bar launched a whole raft of social media, accessible on its website here.

So, the VicBar now has its own twitter account @VictorianBar, and a blog at (Although keeping up with twitter can sometimes be like trying to sip from a fire hose, it’s a great source of information. I find I get more useful material than there any other single location: it’s like your own individually curated information stream. If you’re not on twitter, I really recommend you dive in.)

The idea is for the Bar to offer a platform for itself, and for barristers who don’t have a blog and might want to make an occasional post. It’s not quite as expansive as the American Bar Association’s social media pages — which are just staggering in their scope! — but it has the potential to work in a similar way, where bloggers either cross-post, re-post or post particular contributions every so often, on top of the regular or in-house contributors.

Victorian Bar News has also undergone a revamp, and is available in a flipbook format as well as PDF. The latest edition is a really good read, and the new format looks very schmick indeed

In a similar vein, the Criminal Bar Assocation has revamped its website and changed to a blog format. I used to get some great info from their site in the past, but in recent times more stuff has come by email. Hopefully the new format will make it easier for information to go online too.

Meanwhile, our northern brethren in Queensland recently launched the free weekly email service, the Queensland Law Report. It lists new legislation, major appeals listed and decided, digests recent significant cases, publishes public notices, and other general information useful for the legal industry.

Last, one of my twitter followings led me to a UK website, the Advocate’s Gateway. It has a number of toolkits aimed at advocates dealing with vulnerable witnesses in courts, and links to other resources and training. I think we’re likely to see something similar here in the future, but unless or until that happens, this is a great help.

Monday, 5 August 2013

I certify that I tested...nothing! Alcohol & drug-driving tests in the spotlight

A recent case in the County Court has set the cat amongst the pigeons, after highlighting that some alcohol and drug-driving tests weren’t done by the person named on a certificate of analysis tendered by the prosecution.

The case was Warren v Wesselman, an appeal at the County Court at Shepparton in May 2013, before Judge Lacava. As best as I know there was no written decision. It dealt with a drink-driving prosecution relying on a blood-test under Road Safety Act 1986 s 57.

The appellant Warren was charged with exceeding the prescribed concentration of alcohol, contrary to s 49(1)(b) and (g) of the Act.

The certificate of analysis under s 57(4) used a standard wording found (at least, up till now) on many such certificates:

I, [name of properly qualified analyst] of the Victorian Institute of Forensic medicine, an approved analyst under Section 57(4) of the Road Safety Act 1986, hereby certify that for this sample received at VIFM, I am responsible for the analysis conducted on [date] using gas chromatography and this sample was found to contain not less that [amount] gm of alcohol per 100 millilitres of blood. ([amount] per centum).
Section 57(1) provides two ways a person can be a properly qualified analyst:

57. Evidentiary provisions-blood tests

(1) In this section—

(a) properly qualified analyst means-

(i) an approved analyst; or

(ii) a person who is considered by the presiding judge, a coroner, or the Magistrates’ Court to have scientific qualifications, training and experience that qualifies him or her to carry out the analysis and to express an opinion as to the facts and matters contained in a certificate under subsection (4) or (4A), as the case requires; and


(b) approved analyst means a person who has been approved by Order of the Governor in Council published in the Government Gazette as a properly qualified analyst for the purposes of this section; and

The scientists who work at the Victorian Institute for Forensic Medicine and who do the testing, but are not approved analysts, certainly have the scientific qualifications to carry out the analyses they perform.  (If you don’t believe me, try suggesting otherwise to them in cross-examination, and let me know how that goes.) They go through some fairly rigorous in-house training and testing before they are eventually recommended for gazettal as approved analysts. Until that occurs, they are not permitted to sign certificates of analysis expressing an opinion about the facts and matters contained in such certificates.

That raises the question if their training and experience is sufficient for a Court to consider them a properly qualified analyst? If the VIFM doesn’t consider them sufficiently trained and qualified to express such opinions, should the Court? And, practically, how could the Court ever make that determination without ever hearing from the scientist? (Remember, the whole certificate process is intended to avoid the need for scientists to attend court.)

But apparently in Warren v Wesselman there was no dispute that the person who signed the certificate was indeed a properly qualified analyst, as defined in s 57(1), because they were an approved analyst.

The problem in the case was, the person who did the actual testing of the blood sample was somebody else, and not the person who signed the certificate!

This is a problem when the prosecution relies on the certificate of analysis to prove the concentration of alcohol alleged in the blood of the accused motorist. (And, aside from a smattering of cases, that’s every case.)

Section 57(2) provides for certain offences, including drink-driving, that:

...without affecting the admissibility of any evidence which might be given apart from the provisions of this section, evidence may be given of the taking, after that person drove or was in charge of a motor vehicle, of a sample of blood from that person by a registered medical practitioner or an approved health professional, of the analysis of that sample of blood by a properly qualified analyst within twelve months after it was taken, of the presence of alcohol or any other drug and, if alcohol is present, of the concentration of alcohol expressed in grams per 100 millilitres of blood found by that analyst to be present in that sample of blood at the time of analysis and, if a drug is present, evidence may be given by a properly qualified expert of the usual effect of that drug on behaviour when consumed or used (including its effect on a person’s ability to drive properly).

Section 57(4) provides for evidence of that analysis and result by a certificate which is conclusive unless set aside, usually by application under s 57(7):

A certificate containing the prescribed particulars purporting to be signed by an approved analyst as to the concentration of alcohol expressed in grams per 100 millilitres of blood found in any sample of blood analysed by the analyst is admissible in evidence in any proceedings referred to in subsection (2) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
 The prescribed particulars are set out in Road Safety (General) Regulations 2009 reg 13:

13. Certificate under section 57(4)

A certificate under section 57(4) of the Act must, in addition to a statement as to the concentration of alcohol found in the sample of blood, contain the following particulars—

(a) a statement by the analyst that he or she is an approved analyst within the meaning of section 57 of the Act; and

(b) a statement as to the method of analysis used; and

(c) the name and signature of the analyst; and

(d) the date on which the analysis was conducted; and

(e) a description of the contents of the identification label referred to in regulation 11(1)(d) attached to the container in which the blood sample is placed.
The effect of all of these provisions clearly indicates that the analyst who signs the certificate must be the analyst who conducts the analysis referred to in s 57(2). If not, the document the prosecution relies on will not be a ‘Certificate of Analysis’ within the meaning of s 57(4) and so inadmissible.

Similar provisions apply also for drug testing of saliva under s 55E and s 57B.

The other problem I reckon might arise in these cases is the limited purposes authorising taking samples for alcohol or drug testing.

For blood samples taken after a person is taken to hospital, s 56(6) provides that evidence of taking the person’s blood or analysis of the blood may not be used as evidence in any legal proceedings except for the purpose of s 57 or under the Transport Accident Act. That is, if the sample is taken for analysis by a properly qualified analyst, it’s for the purpose of s 57, but not otherwise. The sample couldn’t be taken for the purpose of sending it to Gribbles Pathology for example, any more than (arguably) it couldn’t be sent to a scientist at VIFM who isn’t a properly qualified analyst.

That argument is stronger for oral fluid samples that lead to drug testing, because the power to require a person to provide a saliva sample under s 55E(2) is ultimately only for analysis by a properly qualified analyst, and no other.

To my knowledge, since this appeal, the police have been identifying affected cases and quite properly advising accused people or their lawyers. However, it’s probably prudent to enquire after cases that might be affected, just in case.

I haven’t seen any certificates of analysis signed since this appeal, but I expect the wording won’t change, just that the identity of the signatory will now be that of the testing scientist.

Monday, 13 May 2013

Flesh out argument but bare bones preferred

One of the guiding principles of advocacy is: BE BRIEF.

But, sometimes, just occasionally, some lawyers aren’t brief, even if briefed to be brief. (Who knew?)

I think sometimes, it’s the fear of missing something. We all live in fear of losing a case on a point that we could have covered, but deliberately didn’t cover in the belief it wasn’t necessary.

(Personally, I like at least drafting some sort of written outline of my submissions, because it often helps me sort my thoughts into a more logical — or at least, less illogical — order and see what is needed and what can be culled.)

Theodor Geisel — better known as Dr Seuss — wrote a great little piece on the importance of brevity.
It has often been said
there’s so much to be read,
you never can cram
all those words in your head.

So the writer who breeds
more words than he needs
is making a chore
for the reader who reads.

That’s why my belief is
the briefer the brief is,
the greater the sigh
of the reader’s relief is.
It is possible that somewhere, just maybe, some reader of legal writing agrees with these sentiments.

You might scoff, and say, “No! Surely not!”

But, there are at least three judges in the UK Court of Appeal who quite possibly do agree.

Hat-tip to Paul Bowen QC (@paulebowen). His tweet led me to the recent case of Standard Bank Plc v Via Mat International Ltd & Anor [2013] EWCA Civ 490.

There, Lord Justice Moore-Bick wrote the lead judgment allowing an appeal against granting summary judgment.

At the end of his judgement, His Honour was moved to add a postscript.
25. Before leaving this matter I wish to say something about the skeleton arguments in this case. Although there were two applications before the judge, they were complementary and in substance this was a relatively straightforward application for summary judgment. The hearing before the judge was completed within a day, as was the hearing of the appeal and although a large amount of evidence was filed, it proved possible as a result of co-operation between the parties to produce a single core bundle of moderate length which included all the important documents. In those circumstances it is a matter of concern that the skeleton arguments produced for the appeal run to a total of 116 pages, of which by far the greater part (93 pages in all) is made up of the appellant’s skeleton and supplementary skeleton arguments.

26. In the opening paragraphs of his judgment in Khader v Aziz [2010] EWCA Civ 716, [2010] 1 W.L.R. 2673 Sir Anthony May PQBD sounded a clear warning about the risks to our tradition of oral advocacy posed by excessively long skeleton arguments. He did so following complaints of a similar nature voiced by the members of this court in Tombstone Limited v Raja [2008] EWCA Civ 1444, [2009] 1 WLR 1143 and Midgulf International Limited v Groupe Chimique Tunisien [2010] EWCA Civ 66, [2010] 2 Lloyd’s Rep. 543. I expressly associated myself with the President’s remarks, pointing out that the purpose of skeleton arguments is to inform the court of the essential elements of the parties’ submissions and thereby enable it to understand the issues and arguments arising on the appeal. I also expressed the view that the best way in which to alleviate the increasingly onerous burden imposed by unduly long and complex skeleton arguments is for the court to be far more willing than it has been in the past to disallow all or part of the costs of any skeleton that fails to serve that essential purpose.

27. It is important that both practitioners and their clients understand that skeleton arguments are not intended to serve as vehicles for extended advocacy and that in general a short, concise skeleton is both more helpful to the court and more likely to be persuasive than a longer document which seeks to develop every point which the advocate would wish to make in oral argument. In this context I wish to draw attention to the provisions of Practice Directions 52A and 52C, both of which apply to proceedings in this court. Each of those Practice Directions contains important provisions relating to the nature and content of skeleton arguments. Practice Direction 52C, in particular, contains specific provisions governing their length and presentation. The court will expect the requirements of both Practice Directions to be rigorously observed. Failure to comply with them is likely to be penalised in costs.

Just in case anyone missed it, Lord Justice Aikens added to the complaint about prolixity.

29. I would, however, like specifically to endorse all Moore-Bick LJ has said in his postscript. Overlong pleadings and written submissions — the true “skeleton argument” of bye-gone days no longer exists — which are manufactured by parties and their lawyers have become the bane of commercial litigation in England and Wales. This prolixity only adds unnecessary costs; it does nothing to clarify and simplify the issues or to shorten proceedings, which aims should be the objectives of both pleadings and written submissions. I recognise that this is not a new problem. In a reported case, Mylward v Weldon (1596) Tothill 102, 21 ER 136, [1595] ECHR Ch 1, it is stated that in 1595 the son of a litigant (the report does not say whether the miscreant was a barrister) produced a pleading (a replication, ie. reply) of “six score sheets of paper” which the Lord Keeper deemed could have been “well contrived” in 16 sheets. The Lord Keeper (Egerton) ordered that the miscreant be imprisoned in the Fleet until he paid a fine of £10 (a huge sum) to Her Majesty and 20 nobles to the defendant. In addition the Lord Keeper ordered:

“...that the Warden of the Fleet shall take the said Richard Mylward...and shall bring him into Westminster Hall on Saturday next, about ten of the clock in the forenoon and then and there shall cut a hole in the myddest of the same engrossed replication…and put the said Richard’s head through the same hole and so let the same replication hang about his shoulders with the written side outward; and then, the same so hanging, shall lead the same Richard, bare headed and bare faced, round about Westminster Hall, whilst the Courts are sitting and shall shew him at the bar of every of the three Courts within the Hall and shall then take him back to the Fleet...”.

30. That sanction against prolix pleaders and submission authors may not be available today, but failure to comply with the letter of the Practice Direction on written submissions and the failure to heed the need for brevity in pleadings may well lead to strict adverse costs orders.
For good measure, Mr. Justice David Richards weighed in with:
31. I also agree.

Skeleton arguments are intended to be written outlines of the main points a party relies on in its application or case, and used as an aid to oral argument, in contrast to written submissions used as an alternative to oral argument. There are several examples in the Advocacy manual used by the Bar Professional Training Course in the UK, and it seems they’re close to the type of submissions we commonly see in Australia, though point-form appears acceptable as well as fully-fledged prose.

For an alternative view on skeleton arguments, and an insight into advocacy practice in the UK, check out Michael Reed at Working Theory.

Criminal trial funding restored, but Legal Aid still needs help

Following the Court of Appeal’s decision in Chaouk — discussed here — Victoria Legal Aid last week announced that it was restoring funding for solicitors when required in criminal trials.

It’s certainly welcome news, and will prevent what looked like an impending logjam in quite a few trials.

But it hasn’t really addressed the chronic underfunding by the State Government, which is apparent from the latest budget. The Age today reported that VLA is still likely to lose somewhere between $3.1 – $10 million for this financial year, and that the budget papers show the Government expects VLA to provide 4000-odd fewer grants of aid this year. (Gotta admit, I can’t see that in the stuff I can find, but then, I’m no expert at reading budget papers.)

But, there’s no doubt the increase in police will result in more offences detected and prosecuted — what criminologists terms net widening — which will result in more cases coming to our courts. Unless we have a sudden change in the economic composition of accused people in this State, many of them will be unrepresented if they can’t receive legal aid.

While some might say that’s okay — it’s not, really — cases involving self-represented accused typically take a lot longer to resolve and certainly require more work from judicial officers to ensure those people understand their rights and the processes. Ask any prosecutor if they’d prefer to bo opposed to a lawyer who knows what they’re doing or an unrepresented accused, and I can guarantee the answer you’ll get. (I daresay a fair few Benches would feel the same way.) Occasionally, cases simply don’t get resolved until the accused can get a lawyer, which is precisely what’s happening in the UK now as the government there tries to decimate legal aid to ‘save’ £220 million out of an annual £2 billion budget. (See here and here for some examples.)

There are some real doubts about whether the changes will in fact save any money, and concerns about the propriety of having the same firms that run the privatised prisons systems also holding the contracts for the law firms that advise accused people to plead guilty or not guilty — for surely there couldn't be a conflict of interest there?

Though things aren’t quite as grim here as in the UK — at least, not yet — there’s still a desparate need to fund legal aid so that the whole system can cope with the inevitable increase in accused people coming before the courts. If nothing else, that’s a simple case of arithmetic that the government must confront. There is also that quaint little thing called justice, which is arguably as good a reason — if not better — for properly funding legal aid. A new blog called the Barrister’s Wife provides some good examples of what can happen otherwise, as does The Justice Gap.

The return to legally aiding trials is a good thing, but the Government needs to increase funding, as the Bar and LIV said last week.

The other long-term issue I reckon needs looking at is an evaluation of why we need instructing solicitors. I don’t say that to be controversial or to suggest getting rid of them. Far from it. But, a couple of commentors in my post about the decision in Chaouk queried how trials are funded in other jurisdictions. I don’t profess to have any significant experience in other jurisdictions, but I reckon it’s at least worth looking at. I wonder too how other common-law jurisdictions cope. For example, what happens in Canada, and India, and the UK (despite its funding problems)? What about the USA, where they have a fused profession but specialist trial attorneys? Do they truly work with only one trial advocate, or do they too consider it necessary for more than one advocate?

 It might be that there are significant differences that mean comparisons are meaningless. Or perhaps it might be that the system in Victoria is currently so complex that instructors are vital in all circumstances. Either way, it’s a question worth asking and answer worth discovering.

Tuesday, 7 May 2013

Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Bill 2013

The Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Bill 2013 was introduced last month.

The explanatory memorandum is available here; the second reading speech here; and the Charter statement of compatibility here.

The Bill proposes a timetable for the complete abolition of suspended sentences:
  • 1 December 2013 — all suspended sentences in higher courts (County and Supreme Courts)
  • 1 December 2014 — all suspended sentences in summary courts (Magistrates’ and Children’s Courts)
These are the default times, and can be proclaimed to commence earlier.

The complete removal of suspended sentences is perhaps not quite as restrictive as first seemed the case.

On close reading, it seems that community correction orders (CCOs) are intended as a substitute for suspended sentences — or indeed any intermediate sentencing option other that immediate jail.

When the Attorney-General commenced the abolition of suspended sentences and introduced CCOs in the Sentencing Amendment (Community Correction Reform) Bill 2011, he spent some time  In the Second Reading speech, the Attorney-General spent some time explaining this.

The government recognises that jailing an offender is the most serious punishment available. There must be a flexible and practical approach to community-based sentencing that can be tailored to suit the very wide range of offending which, while serious, does not warrant a sentence of imprisonment. This approach is embodied in the reforms introduced in this bill, to which I will now turn.
New approach to community-based sentencing in Victoria
Community-based sentences are an important part of the sentencing spectrum. They provide courts with a way to intervene in the lives of offenders who deserve more than a fine, but should not be sent to prison. A community-based sentence allows an offender to remain in the community. Offenders are able to maintain their employment, live at home and draw on the support of their family and friends.
At the same time, offenders are subject to certain obligations — for example, they may have to report to Corrections Victoria, undertake unpaid community work or complete programs that address the reasons for their criminal conduct.
The existing range of community-based sentences does not provide courts with sufficient flexibility to directly target the offender and the offence. The combined custody treatment order (CCTO), for example, is rarely used by the courts and intensive correction orders are generally considered an inflexible option.
The Sentencing Advisory Council, in the Suspended Sentences — Final Report — Part 2, noted that the overuse of suspended sentences in Victoria is at least partly due to the failings of intermediate sentencing orders.
The new CCO introduced in this bill will replace these orders with a single comprehensive and highly flexible order. The bill draws on several recommendations made by the council in its final report to create a new intermediate order.
Specifically, the CCO will replace the combined custody treatment order, intensive correction order (ICO), the intensive correction management order (which has not come into effect) and the community-based order (CBO). From the commencement of this bill, these orders will no longer be available to courts in sentencing offenders. Existing orders will continue until their end date. After that time, if an offender is convicted of breaching one of the abolished orders, the court will resentence the offender under the new sentencing framework.
A CCO sits between imprisonment and fines in the sentencing hierarchy. The CCO will be available for any offence punishable by more than five penalty units.
The CCO will also provide an alternative sentencing option for offenders who are at risk of being sent to jail. These offenders may not yet deserve a jail sentence but should be subject to significant restrictions and supervision if they are going to live with the rest of the community. The broad range of new powers under the CCO will allow courts wide flexibility to tailor their response to address the needs of offenders and set appropriate punishments.
Instead of using the legal fictions of imposing a term of imprisonment that is suspended or served at home, the courts will now openly sentence offenders to jail or, where appropriate, use the CCO to openly sentence the offender to a community-based sentence. Unlike the CCTO and ICO, which are technically sentences of imprisonment, the CCO is a community-based sentence. There is no legal fiction involved. The CCO can be combined with a jail sentence, but it will not pretend to be one. The CCO is a transparent sentence that can be understood by everyone in the community: Parliament of Victoria, Parliamentary Debates, Legislative Assembly, 15 Sep 2011, 3291 – 3295 (Attorney-General, Robert Clark).
The Attorney-General continued this theme in the second reading speech for the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Bill 2013.
As I have said before in this place, suspended sentences are a legal fiction that pretends offenders are serving a term of imprisonment when in fact they are living freely in the community, not subject to any restrictions, community service obligations or reporting requirements. Offenders effectively walk away unpunished and often then go on to commit further crimes: Parliament of Victoria, Parliamentary Debates, Legislative Assembly, 17 Apr 2013, 1259 – 1261 (Attorney-General, Robert Clark)
Because CCOs can now operate up to a period of time equivalent to the maximum sentence for an offence, some of the previous shortcomings of intermediate sentencing orders falls away. In some cases, a CBO or ICO might have been appropriate, but only if it ran for longer than the prescribed periods that were available.

Of course, sometimes an offence is just so serious, that jail is the only realistic option. The Sentencing Advisory Council noted that on p xxiv of the Suspended Sentences — Final Report — Part 2, writing:

It is important to retain a number of distinct sentencing orders to provide well-defined ‘rungs’ in the penal ladder, and to affirm that a sentence of immediate imprisonment is a sentence of last resort reserved for the most serious offences, and for offenders at high risk of reoffending.
As I understand it, the point of abolishing suspended sentences and replacing them partly with CCOs is in answer the mental gymnastics required by s 27(3) of the Sentencing Act 1991.

Section 27 provides for suspended sentences, but imposes this restriction on a sentencing court:

(3) A court must not impose a suspended sentence of imprisonment unless the sentence of imprisonment, if unsuspended, would be appropriate in the circumstances having regard to the provisions of this Act.
At first blush, it seems odd to hold that it’s appropriate to send an offender to jail after considering and rejecting every other option in the sentencing hierarchy, as required by sub-ss 5(3) and (4), and then turn to s 27(1A) and conclude that it’s not appropriate to send the offender to jail. Whatever your thoughts about that apparent tension and if it can be resolved, the current Government seems to have decided to do away with it entirely.

I guess it will take a while for the sentencing jurisprudence to fully incorporate all these changes and reach a settled view. I haven’t yet heard of CCOs being imposed for years — certainly not beyond the old three-year upper limit available in the County and Supreme Courts for the previous community based orders (CBOs). But no doubt there will be cases where lengthy CCOs will be appropriate.

I think of the result as being that if an offender does not go out the back door of the courthouse after sentencing and instead remains in the community, then there will be some intrusive interference in their life on a regular basis, so that they will feel the sting of the penalty on a day-to-day basis while they metaphorically break bluestone. In some cases, that’s probably a far more onerous sentence than a suspended sentence ever was.

And, with effect from 1 May 2013, section 48JA of the Sentencing Act 1991 commenced operation (introduced by the Sentencing Amendment (Community Correction Reform) Act 2011 s 58 and amended before its commencement by Courts and Sentencing Legislation Amendment Act 2012 s 71).
This provision permits a sentencing court to impose a bond condition on a CCO, where the offender has to stump up some cold hard cash as a measure of their sincerity about complying with the order. The court can specify some or all of that money that the offender will forfeit to consolidated revenue in the event they don’t comply with the order.