Saturday, 30 November 2013

Impeccably (short) judgments

Anyone who’s ever ground their way through a lengthy appellate judgment will appreciate the sentiments of the English Court of Appeal in Neumans LLP (a firm) v Andronikou & ors [2013] EWCA (Civ) 916.

The case dealt with an argument about money. Neumans, a firm of solicitors, lost their case, and appealed.

It seems the Mummery LJ metaphorically rolled his eyes, gritted his teeth, and eyed the large piles of documents to be considered upon the appeal, before deciding that no more trees need die recording words on paper:

[32] The court below and this court have received detailed submissions from each side on that question. Morgan J commented that counsel's submissions to him “were elaborate and thorough.” So were the submissions in this court. Morgan J said that to do justice to them he needed to explain his reasons at “what had become considerable length.” Does this court need to do the same all over again?

[33] In my judgment, the order made by Morgan J on the basis of 140 paragraphs of exposition and explanation is “dead on” for the reasons given by him. He set out in meticulous detail all the relevant facts, the legal materials, the rival submissions and the reasons for the conclusions reached by him on every point taken by Neumans.

In case any advocate were ever unsure if the adage less is more isn’t popular with the Bench, Mummery LJ made it clear brevity rules.

Lord Wilberforce and appeals from impeccable judgments

[36] What sensible purpose could be served by this court repeating in its judgments detailed discussions of every point raised in the grounds of appeal and the skeleton arguments when they have already been dealt with correctly and in detail in the judgment under appeal? No purpose at all, in my view.

[37] This is a case in which this court is justified in following the excellent lead of Lord Wilberforce in Brumby v Milner (1975) 51 Tax Cases 583. In a one page tax opinion, with which the other members of the Appellate Committee agreed with only minor additions, Lord Wilberforce said that he would not attempt a detailed analysis or refer to such authorities as might, possibly, be relevant, since that had been done to his complete satisfaction by the Court of Appeal affirming the judgment of Walton J. He concluded at p.612 that:

“…to restate the argument in words of my own, even if this were to result in a difference of formulation, would not be productive of advantage, and I am more than content to adopt the single judgment of the Court of Appeal delivered by Lord Russell of Killowen.”

[38] It has been said, more in jest than with justice, that “officials create work for other officials” and that bureaucracies generate work to justify their continued existence. Judges are not officials. The judiciary is not a bureaucracy. Nor is it in the business of earning by churning. The proper administration of justice does not require this court to create work for itself, for other judges, for practitioners and for the public by producing yet another long and complicated judgment only to repeat what has already been fully explained in a sound judgment under appeal. If the judgment in the court below is correct, this court can legitimately adopt and affirm it without any obligation to say the same things over again in different words. The losing party will be told exactly why the appeal was dismissed: there was nothing wrong with the decision appealed or the reasons for it.

[39] I am content to adopt, without reservation, the judgment of Morgan J, to affirm his order and to dismiss the appeal from his decision. Partly out of admiration for the input lavished on the outstanding legal submissions with Appendix (divided, for instance, into 11 Main Parts, then sub-divided into 100 paragraphs with some of them sub-sub-divided into .1, .2 and so on) and partly as an aid to practitioners and courts in future cases, I would propose that this court pieces together a brief summary of the main points, as described at length by Morgan J. It can do so, as in an old style judgment, by setting out short legal propositions relevant to this case and the conclusions reached by applying them in this case. It does not begin to attempt to cover all the law on administration and liquidation expenses. That would not be a proper exercise in a judgment.

[40] One aim is to stem the soaring costs of litigants when their advisers have to spend too long working out what the law is. They may be faced with a multiplicity of separate, complex, discursive and (increasingly, imitating the style of subordinate legislation) cross-referential judicial pronouncements at different levels of decision, or at the same level of decision, but sometimes leading to the same overall result.

It’s probably too extreme to adopt the style quoted by Justice Roslyn Atkinson in her 2002 paper Judgment Writing:

In the US tax court, constituted by Judge Murdoch, it is reputed that a taxpayer testified, “As God is my judge, I do not owe this tax”. Judge Murdoch replied, “He is not, I am; you do”.

In most cases, courts do their best, but sometimes they have a lot to cover. The idea that a Court needs only state enough of the law to decide the case, without trying to cover the field on the relevant law, has a lot going for it. Here‘s to brevity!

Tuesday, 26 November 2013

Halley v Kershaw [2013] VSC 439: sleeping it off or going to drive?

Back in 2010 the Supreme Court considered if the police were justified requiring a preliminary breath test (PBT) from a person they believed was about to drive — at least, until he saw the police. In DPP v Farmer (2010) 56 MVR 137 the Court held that it was the belief of the police that was relevant, and so long as it was reasonably held, the requirement for a PBT was valid.

More recently, in Halley v Kershaw [2013] VSC 439 the Supreme Court considered the slightly different scenario where the person behind the wheel was asleep when the police found him. Clearly, the police considered he had driven there. (And but for becoming a little too tired and emotional, probably would have continued driving.)

Man sleeps in a car
Image courtesy of David Castillo Dominici /

The case turned on a narrow point (as these cases often do).

Acting Sergeant Mark Kershaw testified that on 10 January 2012 he answered a phone call. The caller said a green Commodore sedan was parked in Huntingdale Road, Huntingdale.

Sergeant Kershaw went to check it. He found a green Commodore parked out the front of a shopping strip, in Huntingdale Road. The engine was running. Sean Halley was in the driver’s seat, slouched over the steering wheel and apparently asleep. Sergeant Kershaw knocked on the window. Apparently, it took about seven to ten minutes to rouse Mr Halley, and he then opened the car door.

The car was in ‘park’. The radio was off, and the heater and aircon were off.

Mr Halley said he had not been there for long. He took a preliminary breath test, which indicated alcohol was in his system, and then went to Oakleigh police station. A later evidentiary breath test returned a result of 0.266%

Sergeant Kershaw did not testify if he believed Mr Halley was going to start or drive the car: see [15] and [41].

Was Halley ‘in charge’?

Road Safety Act 1986 s 3AA provides generally when a person is in charge of a motor vehicle:
3AA. Circumstances in which person is to be taken to be in charge of a motor vehicle

(1) Without limiting the circumstances in which a person is in charge of a motor vehicle, the following persons are to be taken to be in charge of a motor vehicle for the purposes of this Act—
(a) a person who is attempting to start or drive the motor vehicle;

(b) a person with respect to whom there are reasonable grounds for the belief that he or she intends to start or drive the motor vehicle;

(c) a commercial driving instructor while the person whom he or she is teaching to drive is driving or in charge of the vehicle;

(d) an accompanying licensed driver while the person whom he or she is sitting beside is driving or in charge of the vehicle.
But that interpretation is then narrowed for offences contrary to Part 5 of the Act (all the drink and drug-driving provisions) by s 48(1)(b):
48. Interpretative provisions

(1) For the purposes of this Part—
(b) a person is not to be taken to be in charge of a motor vehicle unless that person is a person to whom section 3AA(1)(a), (b), (c) or (d) applies.
So, the general words in s 3AA(1) do not apply to cases alleging offending against Part 5 of the Act: at [26] – [35]. When deciding this, at [32], the Court relied on both principles of statutory interpretation, and DPP v Farmer (2010) 56 MVR 137 (at [7], [9] of that judgment).

Halley argued at the no-case-to-answer stage of the case these provisions meant he was asleep, and not in charge of the car, when woken. But the prosecutor submitted, and the magistrate accepted that, the general words in s 3AA(1) could be used, so that even though there was no evidence the informant reasonably believed Mr Halley was intending to start or drive the motor vehicle, Halley was still in charge.

‘In charge’ limited to the four prescribed grounds

The magistrate was wrong to accept this, and did not make any finding (as required) about the belief (if any) of Sergeant Kershaw. At [41] the Court applied DPP v Farmer (2010) 56 MVR 137 to affirm what was required in this case:
  1. The informant should give specific evidence as to the belief which he or she formed in relation to the intention of the defendant to start or drive the vehicle.
  2. In addition, the informant should expressly state the basis upon which he or she formed that belief.
  3. It is not necessary that the informant be satisfied of the particular fact on the balance of probabilities; rather, the informant must establish that he or she held the belief on reasonable grounds.
  4. Such a belief has been described as ‘an inclination of the mind towards assenting to, rather than rejecting, a proposition ...’ In DPP v Farmer, Bell J stated that a ‘belief is something more than suspicion but does not need to approach anything like certainty.’
  5. The belief by the informant must be a belief that the defendant intended to ‘... start the engine or drive off forthwith, or to do so at any point of very close futurity’.
  6. The question is not whether the court itself holds, or agrees with, the belief that the defendant intended to drive or start the vehicle. Rather, the question is whether the informant held such a belief, and whether the informant did so on reasonable grounds. (Citations omitted.)
The conviction was quashed, and unusually, the case was not remitted to the Magistrates’ Court. At [45] – [46], the Court held that even though it could be inferred that Sergeant Kershaw believed in the circumstances that Mr Halley intended to start or drive the car, this would not be enough to prove that element of the offence beyond a reasonable doubt. (Though it would be enough to defeat the no-case-to-answer submission.)

Monday, 14 October 2013

Police discretion, diversion and choices to prosecute

Image courtesy of mrpuen /

Blogger and tweeter @fchralph posted an article a few months ago about the criminal diversion program we have in Victoria, which now operates under Criminal Procedure Act 2009 s 59.

He suggested one shortcoming is that it relies on police discretion. And, that sometimes that can be subject to whim and caprice.

The solution, according to @fchralph? Get rid of police consent to diversion!

It’s not that easy though. I reckon the current legal position is that it’s not possible — or at least, lawful — without police consent.

The underlying law is not well understood. I was going to say, “Even by the police,” but in my experience, it’s more accurate to say, “Especially by the police.”

Discretion to investigate or police

Police are the gatekeepers to the criminal justice system.

They have the choice whether to act on crime, whether reported to them or perceived by them. No one bats an eyelid if a police officer stops a motorist going over the speed limit by a few kilometres an hour, or a pedestrian crossing against a red light, and sends that person on their way with a warning.

But if a police officer does’t act on a serious offence that comes to their notice, that’s usually not justified, and might even constitute misconduct in public office. (I plan to do a post on that in the near future.)

That’s all to do with the discretion police have to act, or not, when they identify alleged criminal offending.

There’s a bit of law on it, mainly from two areas: demonstrations or other public-order policing; and negligence claims brought by victims or families of victims affected by alleged police inaction.

Unsurprisingly, there are no cases (at least, that I can find) where an offender complains the police did not take action against them.

The starting point is that police exercise an original, not delegated, authority to exercise their common law and statutory powers. One of the most well known statements of this is in R v Commissioner of the Metropolitan Police; Ex parte Blackburn [1968] 2 QB 118. In that case Mr Blackburn was unhappy that the Commissioner of the Met decided not to enforce certain gaming laws, and sought a writ of mandamus ordering the police to enforce the law. At 136, Lord Denning MR said:

I hold it to be the duty of the Commissioner of Police of the Metropolis, as it is  of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or no suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought. But in all these things he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone. That appears sufficiently from Fisher v Oldham Corporation [1930] 2 KB 364 and Attorney-General for New South Wales v Perpetual Trustee Co Ltd [1955] AC 457.

Although the chief officers of police are answerable to the law, there are many fields in which they have a discretion with which the law will not interfere. For instance, it is for the Commissioner of Police of the Metropolis, or the chief constable, as the case may be, to decide in any particular case whether inquiries should be pursued, or whether an arrest should be made, or a prosecution brought. It must be for him to decide on the disposition of his force and the concentration of his resources on any particular crime or area. No court can or should give him direction on such a matter. He can also make policy decisions and give effect to them, as, for instance, was often done when prosecutions were not brought for attempted suicide. But there are some policy decisions with which, I think, the courts in a case can, if necessary, interfere. Suppose a chief constable were to issue a directive to his men that no person should be prosecuted for stealing any goods less than £100 in value. I should have thought that the court could countermand it. He would be failing in his duty to enforce the law.

In Hinchcliffe v Commissioner of the AFP (2001) 118 FCR 308, the Federal Court applied ex parte Blackburn when considering an application for a writ of mandamus to compel the AFP to investigate a complaint. At 320 Kenny J said:

I accept that where a member of the AFP receives a complaint from a member of the public, the member discharges his or her duty to enforce the law if:

(1) he or she gives due and proper consideration to the question whether and in what way an initial inquiry into the complaint should be made; and

(2) he or she acts appropriately upon the view which he or she has formed. A range of matters may be pertinent to the member's consideration of the complaint, depending on the circumstances.

In Scott v Northern Territory [2003] FCA 658 Madgwick J considered if police decisions to investigate were subject to judicial review, and applied Hinchcliffe in concluding they could be.

[70] It is true that the courts should respect the importance, subtleties, and intricacies of the processes of investigating and prosecuting crimes and should not be quick to intervene. Nevertheless, police officers, like other public officers, are not above the law. They are, in my opinion, expected and legally required to act “according to law and not humour”. While they have a large discretion about the extent, if any, to which they investigate or re-investigate alleged crimes, they must certainly exercise this discretion honestly, in good faith and without caprice. There may well be other limitations on their discretion. I see no reason why, in a proper case, a court ought not intervene to see that police duties, including of investigation, are carried out lawfully. Appropriate exercise of the court's discretion can well prevent any undue disruption of the orderly and proper work of police officers or of the process of vindication of the criminal law.

[73] … I have difficulty seeing why, if a court will go as far as Kenny J (as it seems to me rightly) did, the court should not, in a proper case, go further. It ought not be seen as only “policy decisions” that, while preserving real respect for the proper authorities’ capacity to manage a police force, the courts might investigate. Australian experience of the last 20 or 30 years does not support the proposition that all is necessarily well in every police force in the country. Citizens in my view are entitled to look to the courts for assistance in having police do their duty in considering whether to make further inquiries. Different considerations may apply once prosecutions have been launched in a court, but obviously different questions and a different and now well-known framework of legal analysis, founded on preventing court processes being used as a means of injustice, are then involved: see Jago v District Court(1989) 168 CLR 23 and many subsequent cases.

[75] There is, however, as it seems to me, nothing unlawful in a police officer bona fide determining, where there is some proper material to support the view, that one or more crucial witnesses are unlikely to be believed by a jury, and on that account to cease an inquiry. It must happen frequently in police work. In the case of a very serious crime, such as the various applicants allege here, one would usually expect that such a determination would not be made without interviewing the witness(es) concerned. Nevertheless, unusual circumstances may exist such that a police officer might reasonably come to the view that the matter is not worth investigating further or taking to court.

In O’Malley v Keelty (2005) 148 FCR 170, Mr O'Malley complained that his phone had been tapped for years, and asked the AFP to investigate. The AFP concluded there was no evidence of this, and that in any event, assuming such offences had actually occurred the breach would have been relatively minor with a likely low penalty, and so was a low priority for investigation. The Court declined to order further investigation. At 179 - 180 Madgwick J said:

Organising and assigning priorities in a modern police force are patently complex, difficult, and likely politically controversial matters. Courts should exercise very considerable restraint before intervening in such an area. But a court should in proper cases act to ensure that police forces and their commanders are not, in their dealings with complainants, beyond the necessity to deal lawfully and not according to whim with the concerns of citizens, no matter how humble.

Nevertheless, a court cannot and should not compel a police force to investigate every breach of the law. There are many mysteries in this world. Some of them involve possible commissions of crime. It is not, however, the responsibility of police officers to investigate all of them. Indeed, the role of the police is not to investigate whether, at large, there has been a breach of the law. Rather, their duty is to investigate whether there has been a breach of the law for which an identifiable person might be convicted if prosecuted.

…it is clear that a reasonable and honest police officer might consider the matter to be of such low priority as to warrant the devotion of no further resources to it.

(It’s worth noting that at the end of that case, the Court prohibited Mr O’Malley from commencing any further legal proceedings on this topic unless the application was settled by a lawyer who certified that the proceedings were reasonably and properly taken, or if a judge gave leave for him to do so.)

We also see the original powers doctrine affirming the broad discretion of the police to decide how they will police demonstrations and other public-order events: Wright v McQualter (1970) 17 FLR 305; R v Chief Constable of Devon and Cornwall; Ex parte Central Electricity Generating Board [1982] QB 458; Commissioner of Tasmania Police; Ex parte North Broken Hill Ltd (1992) 61 A Crim R 390; R v Chief Constable of Sussex [1999] 2 AC 418.

The original powers doctrine is reflected also in the employment status of police (see Joseph Carabetta ‘Employment status of the police in Australia’ (2003) 27 Melbourne University Law Review 1; Enever v The King (1906) 3 CLR 969), and in the rule that a power of arrest based on reasonable grounds to suspect (or believe) can’t be exercised by mere order and requires a police officer to personally suspect (or believe) the person arrested committed the relevant offence: O’Hara v Chief Constable of Royal Ulster Constabulary [1997] AC 286.)

The same reasoning has been consistently applied by the Courts to declare police are not liable in negligence to victims of crime or their families, because the conduct of investigations is for the policy and discretion of the police: Hill v Chief Constable of West Yorkshire [1989] 1 AC 53Sullivan v Moody (2001) 207 CLR 562Brooks v Commissioner of the Police of the Metropolis [2005] 1 WLR 1495. (The police are also generally not liable because they don’t owe a duty of care to individual members of the public who might suffer from a criminal’s activities, except where their failure to apprehend or act creates an additional exception risk, such as in Batchelor v Tasmania (2005) 13 Tas R 403.

This broad discretion is the basis for police to caution or warn people for offences, rather than prosecute.

Prosecutorial discretion

Following on from this, the prosecution — which is typically conducted by the police in the Magistrates’ Court — has an absolute discretion to determine which charges it will lay and proceed with. (In summary criminal proceedings, police officers file charges in their personal capacity as a constable, not in the name of Victoria Police, the State of Victoria, or the Crown: Kirsch v Dolman (2001) 123 A Crim R 331 at 336 – 7; Munday v Gill (1930) 44 CLR 38 at 86; Perkins v County Court (2000) 2 VR 246 at [32].)

Prosecutorial discretion is not generally susceptible to judicial review, mainly for policy reasons. In Likiardopoulos v The Queen (2012) 217 A Crim R 539 at [2], French CJ suggested several of those reasons:

  1. To maintain the both the reality and perception of judicial impartiality;
  2. Maintain the separation of powers between executive decisions to commence prosecutions, and judicial power to hear and determine criminal proceedings;
  3. It is not the function of Courts to conduct such reviews, and they are often not resourced or experienced in so doing.

Similarly, the decision to lay or proceed with charges is not amenable to judicial review: Barton v The Queen (1980) 147 CLR 75; Maxwell v The Queen (1996) 184 CLR 501 at 534; R v McCready (1985) 20 A Crim R 32 at 39; Chow v DPP (1992) 28 NSWLR 593; Davy v The Queen (2011) 207 A Crim R 266 at [22].

Just last week, the High Court referred to these principles when it pithily stated in Magaming v The Queen [2013] HCA 40 at [20]:
It is well established that it is for the prosecuting authorities, not the courts, to decide who is to be prosecuted and for what offences.

The effect of these discretions

This means that police officers have an independent and individual discretion to determine which offences they investigate, and what charges they lay. As a matter of law, they cannot be directed how to exercise that discretion because … well, because it’s a discretion.

In practice, Victoria Police provides policy and other directions to police officers about how they should proceed. That’s not necessarily a bad thing, because it promotes some consistency and reduces the potential for caprice and whim. (As a matter of law, individual police could refuse to toe the line, but the Chief Commissioner might have something to say about paying any costs incurred as a result…)

Similarly, although judicial officers might express their views about which charges should and should not be brought, they cannot compel the prosecution to lay or withdraw particular charges.

Once an offence is before the Court, it is obliged to hear and determine the case.

So when magistrates have jurisdiction to hear a case, and it’s properly before them, it is their duty to deal with it. They have no power to remit the case for hearing to a court outside their jurisdiction: Ex parte Punch (1915) 32 WN (NSW)

So too, magistrates have no right to decline to exercise jurisdiction. If they have jurisdiction they are bound to exercise it: Ex parte Mylecharane (1898) 19 LR (NSW) 7; 14 WN (NSW) 125.

This means, unless the prosecution consents, the Court is obliged at law to consider and determine the charge.

So generally, any diversionary system needs whoever brings the charge to agree to it. This was certainly the position with the diversion program before it receives the statutory basis it now has. It also applies to the Ropes program in the Children’s Court.

The reason these programs require police consent is because as a matter of law, the prosecution is entitled to insist that the courts adjudicate the charge. Consent to jurisdiction is a formal way of the prosecution waiving that legal right, and freeing the Court to take a different pathway.

Exercising discretion

I know that sometimes lawyers complain about the police declining to exercise their discretion. It’s easy to forget how often the police do exercise discretion though. In any given year, the average police officer probably observes many hundreds of acts that might constitute criminal offences. Only some might result in them doing something. Sometimes, they informally warn a person; other times, they use the discretionary powers I’ve been discussing and use the various formalised policy cautioning programs; or, they might compile a brief, yet recommend no prosecution because it’s not in the public interest, or a relatively minor offence that doesn’t justify the public expense of a court hearing.

That’s not to say that discretion is always exercises when it should be, or appropriately. I’ve known police who actively avoided dealing with offences they should have acted upon. I’ve known police to decline to exercise their discretion based purely on emotion. I suspect that education would go a long way to addressing that, but ultimately, when people have the power to decided things, other people won’t always agree with them.

In the unjustifiable cases, I think there might be a remedy. Earlier, I said that prosecuting decisions are not amenable to review. But there’s no authority on a police decision to recommend or refuse diversion. It could be that it’s reviewable under the Administrative Law Act 1978. If you look at the meaning of ‘decision’ and ‘tribunal’ in s 2, it seems at least arguable that a police decision about diversion is open to review if the decision maker took into account irrelevant considerations, or failed to take into account relevant decisions.

Understanding something about the diversion program probably helps when considering if a diversion recommendation should be made (and accepted by the courts).

Diversion commenced as an informal pilot scheme in 1997, introduced by Deputy Chief Magistrate Robert Kumar. Its purpose was to divert first-time offenders out of the formal justice system;to provide restoration to victims, and;to rehabilitate offenders within the community. (I’m sure there used to be guidelines for the scheme that incorporated these purposes, available in police internal documents as well as industry publications like Nash’s Victorian Courts ... but, I can’t find them any more. The best I can find about these initial purposes is in the Springvale Monash Legal Centre’s discussion paper and the Court Diversion Program Evaluation overview and final report on the criminal justice diversion scheme.)

In any event, my memory is that the old guidelines used to expressly say that diversion was only appropriate for “minor offences”, in contrast to the current scheme’s legislative provisions in Criminal Procedure Act 2009 s 59 and the Court’s eligibility guidelines. The only appellate Victorian considering diversion is Rumbiak v Hough [2004] VSC 95, dealing with s 128A of the Magistrates’ Court Act 1989. That essentially endorsed the necessity to comply with the statutory provisions, and also accepted that a magistrate’s decision to grant or refuse diversion might be subject to judicial review. (The position in the UK seems to be the same, with judicial review of cautions and refusal to withdraw them in two cases: R v Metropolitan Police, Ex parte Thompson [1997] 1 WLR 1519 and  Lee v Chief Constable of Essex Police [2012] EWHC 283 (Admin). (Hat tip to Dan Bunting on the UK criminal law blog for those cases.)

Similar South Australian provisions were considered in Crockford v Adelaide Maigstrates Court (2008) 100 SASR 195 at [82] – [86]; HT v Police (2005) 91 SASR 329 at [36], [41] – [42], where the Supreme Court held that the Magistrates’ Court couldn’t be bound by non-statutory guidelines when exercising its discretion to grant or refuse diversion. When diversion is considered and granted general deterrence is not typically the dominant consideration: Miller v Burgoyne (2004) 150 A Crim R 7 at [42].

The United Kingdom has a similar system of cautions (though tweeters will know there’s been some recent outrage over their use there), with detailed guidance for prosecutors on the CPS website, and the Ministry of Justice.

Another good consideration a colleague of mine helpfully suggested was the real scope for the prosecution to have significant influence over the result from diversion. Police informants usually recommend program conditions, and the courts often act on those recommendations. It’s not always the case that the police have the same degree of influence for charges that proceed to determination.


In short, the prosecution can decide what charges it wants to bring before a court, and if it wants a decision or not. The court can only decide what is before it, and must do that, unless the prosecution consents to something else.

In other words, it’s a system of checks and balances.

It’s not always perfect, but there are some remedies if the police don’t want to consider diversion, or the courts don’t properly consider a recommendation. More often than not though, reasonable minds might differ about the proper outcome, which is where a bit of negotiation and persuasion is often the best way, rather than recourse to strict legal remedies.

Sunday, 8 September 2013

DPP v Dover [2013] VSCA 233: voluntariness confirmed for refusing blood test

Last week the Court of Appeal delivered an easy-to-digest and concise appeal in DPP v Dover [2013] VSCA 233 confirming that a driver must act voluntarily before they can be guilty of refusing a blood test following an accident.

Image courtesy of Ambro /

In April last year I posted about Dover v Doyle [2012] VSC 117, the case where a driver was found not guilty of refusing to allow a blood test following an accident because her actions were not voluntary.

The DPP appealed that decision on two grounds:
  1. The learned judge erred in holding that in order to prove the commission of an offence against s 56(2) of the Act, the prosecution must establish that the person’s omission to allow a doctor or approved health professional to take from that person a sample of that person’s blood for analysis is conscious and voluntary.
  2. The learned judge erred in holding that s 56(2) of the Act creates a strict liability offence.
Maxwell P, Tate JA and Garde AJA unanimously dismissed the Director’s appeal. The judgment helpfully details a bit more of the facts surrounding the alleged offending, as well as the evidence led in the County Court appeal, which helps make it easier to understand why voluntariness was properly raised and was in issue.

On ground 1, Tate JA (delivering the leading judgement) said:

38 In my view, the DPP’s submissions failed to appreciate the force of the presumption that the criminal law only punishes conduct which is voluntary. It is not a presumption which can be easily displaced by examples from non-criminal contexts where ‘allowing’ a situation to occur may occur while one is unconscious. The presumption is a strong one, as made clear by statements made by Gleeson CJ in Edwards v Macrae (1991) 14 MVR 193 at 198 – 9:

[A]lthough parliament may by clear words provide to the contrary, the criminal law only punishes conduct which is voluntary. The strength of that presumption was emphasised by Jordan CJ in R v Turnbull ... In O’Connor Barwick CJ went so far as to say:

‘In Ryan’s Case I attempted a summary statement of the principle that in all crime, including statutory offences, the act charged must have been done voluntarily, i.e. accompanied by the will to do it. I find no need to qualify what I then wrote. I stated the principle without qualification.’

I do not take his Honour to mean that parliament could not, by appropriate language, make it clear that a contrary position was to apply in relation to some offences. However, the passage quoted demonstrates the strength of the presumption.

39 In Edwards v Macrae Gleeson CJ held that the defence of automatism may sometimes be a defence to a charge of driving a motor vehicle while there is present in the person’s blood the concentration of alcohol prescribed by statute.

40 As Bell J recognised, the presumption is fortified by the principle of legality, that being the principle (stated in cases such as Coco v The Queen and Lacey v Attorney-General (Qld) that in the absence of ‘unmistakeable and unambiguous language’, a statutory provision should not be read as expressing a parliamentary intention to abrogate basic rights, freedoms or immunities.

41 In my view, the DPP has been unable to demonstrate that the presumption that the criminal law only punishes conduct which is voluntary has been displaced in the context of s 56(2) of the Act. I agree with Bell J’s observation below that to ‘allow’, in the context of the section, means to ‘permit’, the same meaning attached to ‘allow’ by Phillips JA in Wallin v Curtain (1998) 100 A Crim R 506 and I consider that in the context of s 56(2) it necessarily involves a person acting consciously and voluntarily. The Parliament has not made manifestly clear an intention to override the strong and long-established presumption of voluntariness in relation to criminal offences.

42 The presence of the exception in sub-s (5), which, as mentioned above, provides that a person is deemed to allow the taking of blood if unconscious or unable to communicate, reinforces this point: it is because the person is incapable of conscious or voluntary action that he or she must be deemed to allow the taking of blood in order to avoid any legal consequences which might accrue to the doctor for taking a person’s blood in those circumstances. This subsection provides an exception to the general rule that, as Phillips JA said in Wallin v Curtain, in this context ‘a choice is presented’: the person may, consciously and voluntarily, elect to allow the taking of a blood sample or refuse to allow the doctor to take a sample.

43 I reject the submission that the interpretation proposed by the DPP is necessary in order to fulfil the purposes of the Act. The purposes of the Act, and of Part 5 in particular, can be advanced consistently with an interpretation which is faithful to those presumptions at law that are based on matters of principle. It would be wrong to assume that, when faced with constructional choice, the interpretation to be adopted is one that has as a single objective the furtherance of the purposes of an Act as though the legislation existed in a vacuum, unaffected by the presumptions at common law developed over time.

44 With respect to the legislative history, in my view it cannot be concluded that the legislative amendments, introduced to shift the obligation from doctors to take a blood sample whether or not the person allowed it onto the person to allow the sample to be taken, did not have as a consequence that there may be some circumstances in which no blood sample is taken and yet no offence is committed. This may simply be a consequence of relieving doctors of what must have been perceived to be a disproportionately onerous obligation.

45 In my opinion, Bell J was correct to conclude that voluntariness is an element of the offence created by s 56(2) which, if raised as a fact in issue by the defence, must be established beyond reasonable doubt by the prosecution.

Of course, the caveat that appears in that last paragraph is important: the accused must meet their evidentiary burden to rebut (or at least displace) the presumption of voluntariness, otherwise all of this is irrelevant.

The second ground came about because Bell J said in Dover v Doyle [2012] VSC 117 at [20]:

The question whether Ms Dover’s refusal was intentional does not arise because s 56(2) creates a strict liability offence in the sense that a person who, in the circumstances specified, refuses to allow a sample of blood to be taken commits the offence whether or not they intend to do so. The separate question which is at issue in this case is whether the prosecution must prove the refusal was conscious and voluntary. [Emphasis added.]

In this appeal, Tate JA said the difference between strict and absolute liability offences didn’t matter in this appeal, because it wasn’t part of the argument or reasons for the outcome.

48 ...The DPP urged that an offence of strict liability is one which does not depend on proof of any mens rea or fault element, although the defence of ‘mistake of fact’ is available. By contrast, offences of ‘absolute liability’ are those where the defence of mistake of fact is not available.

49 The complaint of the DPP was, first, that the question of whether the defence of mistake of fact was available to Dover was not in issue before his Honour and it was therefore unnecessary for him to express a conclusion on the matter. Secondly, it was submitted that s 56 is an offence of absolute liability which does not permit a person to escape liability on the basis of a mistaken belief that, for example, he or she had been asked for a sample of bone marrow rather than a sample of blood.

50 I make no finding in respect of the nature of the offence created by s 56(2) as the issue was not properly raised by the circumstances of the case. No attempt was made to rely on a defence of honest and reasonable mistake and nothing turns on Bell J’s observations on this point. [Citations omitted.]

Saturday, 7 September 2013

My instructions are...what are my instructions?

The notion in our legal system of advocates acting on instructions is well accepted.

Lawyers are contractually and ethically obliged to obey their client’s instructions. Indeed, they may not act contrary to their instructions. It is for this reason that generally, an accused person is bound by the way a trial is conducted by their counsel: TPC v TNT (1983) 56 ALR 647 at 662 – 4; R v Birks (1990) 19 NSWLR 677 at 685; R v Wakim [1998] 2 VR 46; R v Brown (2002) 5 VR 463. The corollary of this is that questions or conduct of counsel may be used as evidence of instructions: R v Delgado-Guerra [2002] 2 Qd R 384 at [36].

If their instructions are withdrawn, their retainer is ended and they no longer have any right of appearance: R v IAS (2004) 89 SASR 159; R v Greer (1992) 62 A Crim R 442 at 452.

But similarly, advocates owe an overriding duty to the court to do nothing that would obstruct the administration of justice: D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at 41. This gives rise to the obligations of candour, expeditiousness, and disclosure of relevant law — even if unfavourable to the client’s case. It’s also reflected in the cab-rank principle, which I discussed here in April.

We see this reflected in rules such as rule 16 of the Victorian Bar Rules, and rule 41 of the Australian Bar Association model rules, which say:
A barrister must not act as the mere mouthpiece of the client or of the instructing solicitor and must exercise the forensic judgments called for during the case independently, after appropriate consideration of the client’s and the instructing solicitor’s desires where practicable.

Rule 13.1 of the Professional conduct & practice rules 2005 (Vic) for solicitors is almost identical.

So, if the client says, “I want you to cross-examine the witnesses this way,” or, “I want to call this evidence,” and the advocate considers that they should not do so, it seems there’s a conflict between the duty to the client and to the court.

But, it really depends on what it is a client can actually instruct or direct their lawyer to do.

I challenge you to find in any of the standard texts on advocacy or ethics some discussion on what acting on instructions truly means. I went looking, for this post, and I couldn’t find much. Ysaiah Ross has a little bit in his book Ethics in Law, but not much.

But the English Court of Appeal considered the point a few years ago in R v Ulcay [2008] 1 WLR 1209.

Mr Ulcay and his co-accused were charged with and convicted of people smuggling. Ulcay was represented by two barristers and a solicitor, but they withdrew at the close of the prosecution case. Why? Up till then, Mr Ulcay had admitted that a voice on a large number of telephone intercepts was his, and that the person named on the intercepts as “Eddi” was him, Erdogan Ulcay.

But then Mr Ulcay changed his instructions. After the prosecution closed its case, he now denied he was Eddi, or that the words spoken by Eddi on the intercepts were his words, or that the voice originally admitted to be his voice was his voice. He said he didn’t want to be represented by his current lawyers. They were permitted to withdraw.

Over the next week, two new barristers appeared, Ms Tayo and Mr Aina. Mr Aina asked for a four to six week adjournment. (By then, a week had passed since the prosecution case closed, and so the jury had been spending seven days kicking their collective heels in the jury room while this all went on. You can just imagine how rapt they must have been about that.)

That application was refused. The next day, Ms Tayo and Mr Aina withdrew. Two days after that, two new counsel appeared, and asked for a seven-day adjournment. That too was refused, and the second set of lawyers withdrew. The case continued. Mr Ulcay was unrepresented.

Ulcay was convicted. He appealed, arguing the judge was wrong to allow the original lawyers to withdraw, and then to not allow the adjournment sought by the new lawyers.

The Court of Appeal rejected that argument.
[24] ...the processes designed to ensure the fairness of his trial cannot be manipulated or abused by the defendant so as to derail it, and a trial is not to be stigmatised as unfair when the defendant seeking to derail it is prevented from doing so by robust judicial control. Such a defendant must face the self-inflicted consequences of his own actions.

[25] Mr Aina pointed out that in his ruling on 18th October, the judge did not expressly state that the appellant was seeking to manipulate the process of the court. Indeed he never said so. However we have no hesitation in saying that it is perfectly obvious that this is what the appellant was seeking to do, a conclusion which we would have reached independently of, but which is powerfully fortified by, the factual observations of trial counsel following the appellant’s waiver of privilege. When he was addressing these problems, it was incumbent on the judge to be more reticent. It does not need much imagination to envisage the likely response if he had suggested that the process was being abused or manipulated. It would have formed the basis for an application for a new and separate trial before a new jury and an “unbiased” judge. We shall focus exclusively on the stark realities.

[26] This appellant was provided with competent lawyers at public expense and given ample opportunity for the preparation of his defence. Before trial the issues were carefully addressed by him, and his lawyers, and he was then properly represented by counsel before the jury. It was a constant theme of the pre-trial preparation, and indeed of the discussions in conference while it was in progress, that counsel could only act on the basis of the appellant‘s instructions. For example, counsel made clear that he would not challenge evidence which the defendant accepted was accurate, and the fact that another co-defendant was challenging the same evidence could not justify a challenge on the appellant‘s behalf. All this seemed to be clearly understood by the appellant, at any rate until the close of the prosecution case, when his understanding appears to have broken down.

The Court then turned to what is meant by acting on instructions.
[27] The correct meaning of the phrase “acting on instructions”, as it applies to the professional responsibility of the advocate in any criminal court, is sometimes misunderstood, even by counsel. Neither the client, nor if the advocate is a barrister, his instructing solicitor, is entitled to direct counsel how the case should be conducted. The advocate is not a tinkling echo, or mouthpiece, spouting whatever his client “instructs” him to say. In the forensic process the client‘s ”instructions” encompass whatever the client facing a criminal charge asserts to be the truth about the facts which bring him or her before the court. Those instructions represent the client‘s case, and that is the case which the advocate should advance. In practical terms, that will often mean that prosecution witnesses will be cross-examined on the basis that they are lying or mistaken, or have misunderstand or misinterpreted something said or done by the defendant; however there is almost always some evidence advanced by the prosecution which, on the basis of the client‘s instructions, is not in truth in issue at all, either directly, or indirectly. Some decisions, of course, must be made not by the advocate, but by the defendant personally, for example, and pre-eminently, the plea itself, and in the course of the trial, the decision whether or not to give evidence. The advocate must give his best professional advice, leaving the ultimate decision to the client. It is however always improper for the advocate to seek to challenge evidence which is accepted to be true on the basis of the facts agreed or described by the client, merely because the lay-client, or the professional client, wishes him to do so. He may not accept nor act on such instructions.

The stock-in-trade manner of questioning a client charged with a criminal offence by going through the brief, and saying, “The prosecution says [this]; what do you say about [that]?” is the best way I‘ve seen for getting instructions that meet this definition, and avoid (perhaps well-intentioned) advice about how best to do my job. How have you seen others do it successfully (or not), or how do you do it yourself?

I know some folks often view with some scepticism assertions that, “Those are my instructions.” Heck, sometimes advocates even share that scepticism. We can’t coach witnesses, but we can question and test the version given to us by a witness or potential witness (including an accused). But, their instructions are their instructions, not what we think likely — really, no one cares what we think, just what we submit — and we’re bound by them.

Tim Kevan — writing as BabyBarista — wrote this great piece on judicial doubts about instructions, I have been instructed... I'm almost certain it‘s satire...but you should check it out for yourself.

Wednesday, 4 September 2013

Ending the suspense?

From last Sunday, only Magistrates’ Courts can now imposed suspended sentences of imprisonment, subject to some exceptions. Division 2 of the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013 abolishes suspended sentences in the County and Supreme Courts.

I discussed this in May, and noted the default commencement was 1 December 2013. Since then, the relevant provisions were declared in the Gazette for commencement on 1 September 2013.

There’s no specified commencement date yet for the abolition of suspended sentences in the Magistrates’ Court other than the default date of 1 September 2014.

There are three exceptions to the new regime:

  1. The County Court may impose a suspended sentence when deciding an appeal from the Magistrates’ Court: Sentencing Act 1991 s 27(11) and Criminal Procedure Act 2009 s 256. (The Austlii version of the Sentencing Act isn’t up to date, so that hyperlink will take you to the Victorian legislation website version.)
  2. The County and Supreme Courts may still impose suspended sentences for offences that were committed before 1 September 2013: Sentencing Act 1991 s 149C. (Although that transitional provision doesn’t expressly say anything about the operation of the previous restrictions for serious and significant offences, there’s nothing to suggest those provisions are affected for pre-1 Sep 2013 offending.)
  3. The County and Supreme Court may still impose suspended sentences for serious and significant offences committed before 1 May 2011, by virtue of Sentencing Act 1991 ss 27(2B) and sub-ss 143(6) and (7), and (9) and (10), in conjunction with s 149C. (1 May 2011 was the commencement date of Sentencing Amendment Act 2010 s 12, which introduced the prohibition on suspended sentences for serious or significant offences committed on or from that day.)
I linked to the second reading speeches in my May post, but in case you need them, I’ve also downloaded the relevant parts of Hansard, and extracted just the pages dealing with the Sentencing Amendment (Community Correction Reform) Bill 2011 and Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Bill 2013.

I reckon that the short version of the speeches is that offenders who previously might not have received an immediate jail sentence by receiving a suspended jail sentence might yet still not receive an immediate jail sentence, only now it will be called a community corrections order, and will involve restrictions upon them.

There are two new restriction on imposing suspended sentences:
  1. Section 27(2AB) provides that Magistrates’ Courts can’t impose suspended sentences for proceedings transferred from the County Court back to the Magistrates’s Court, under Criminal Procedure Act 2009 ss 168, 242 or 243. This was intended to overcome the effect of DPP v Batich, when the County Court considered an offender should receive a suspended sentence for a significant offence (recklessly causing serious injury), but because it could not do so, returned the case to the Magistrates’ Court, which could impose a suspended sentence.
  2. Section 27(10) provides that the County and Supreme Courts can’t impose suspended sentences for related summary offences dealt with under Criminal Procedure Act 2009 ss 242 and 243 and Sentencing Act 1991 s 83AM.

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?