Thursday, 13 February 2014

Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2: High Court modifies prosecutors duties at sentencing

“No” to prosecution submissions on sentencing range.

In 2008, the Victorian Court of Appeal decided in R v MacNeil-Brown (2008) 20 VR 677 (discussed here) that when asked, prosecutors were required to submit what the prosecution considered was an available range of sentences to impose on an offender, or if the prosecution thought the court would otherwise fall into error.

Even then, it was a 3-2 decision, and that divergence of views is reflected in daily practice in Victorian courts.

But the High Court put a stop to all that yesterday when it delivered its judgment in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2.

The majority said quite simply:
[23] To the extent to which MacNeil-Brown stands as authority supporting the practice of counsel for the prosecution providing a submission about the bounds of the available range of sentences, the decision should be overruled. The practice to which MacNeil-Brown has given rise should cease. The practice is wrong in principle.

Pasquale Barbaro and Saverio Zirilli pleaded guilty to various offences related to large-scale ecstasy importation and trafficking, after negotiations with the prosecution. Apparently, the prosecution considered that the sentencing range for Barbaro was 32 to 37 years (with a non-parole period of 24 to 28 years), and for Zirilli, 21 to 25 years (with a non-parole period of 16 to 19 years).

But that all came to nought at their sentencing hearing when the sentencing judge said she didn’t want to hear from the prosecution about a sentencing range.

Barbaro received a life sentence (non-parole period of 30 years) and Zirilli received 26 years (with a non-parole period of 18 years).

Both men asked to appeal to the High Court. They had two arguments.

First, plea agreements were made and the cases settled or resolved to pleas, because they expected the prosecution would advise the Court what it thought was the appropriate sentencing range.

Second, they were disadvantaged by not being able to rely on those submissions.

The majority dealt with that pretty swiftly:
[6] The applicants’ arguments depend on two flawed premises. The first is that the prosecution is permitted (or required) to submit to a sentencing judge its view of what are the bounds of the range of sentences which may be imposed on an offender. That premise, in turn, depends on the premise that such a submission is a submission of law. For the reasons which follow, each premise is wrong.
 They then went on to elaborate on that (see in particular [42] – [43]), and to lay down the law about who does what at the sentencing stage of proceedings.
[47] To describe the discussions between the prosecution and lawyers for the applicants as leading to plea agreements (or “settlement” of the matters) cannot obscure three fundamental propositions. First, it is for the prosecution, alone, to decide what charges are to be preferred against an accused person. Second, it is for the accused person, alone, to decide whether to plead guilty to the charges preferred. That decision cannot be made with any foreknowledge of what sentence will be imposed. Neither the prosecution nor the offender’s advisers can do anything more than proffer an opinion as to what might reasonably be expected to happen. Third, and of most immediate importance in these applications, it is for the sentencing judge, alone, to decide what sentence will be imposed.
The applicants’ allegations of unfairness depended upon giving the plea agreements and the prosecution’s expression of opinion about sentencing range relevance and importance that is not consistent with these principles. The prosecution decided what charges would be preferred against the applicants. The applicants decided whether to plead guilty to those charges. They did so in light of whatever advice they had from their own advisers and whatever weight they chose to give to the prosecution’s opinions. But they necessarily did so knowing that it was for the judge, alone, to decide what sentence would be passed upon them. (Citations omitted.)
One of the arguments against this might be that an offender doesn’t have much idea what sentence they might get if they plea to some or all offences, and they’re subject to the judge’s opinion about the proper sentence.

Once response to that is that that’s what happens: judges have the responsibility for making decisions about sentence. It’s a bit like going on a game show and being unsurprised that the announcer might call you at random to “come on down”, or not.

But the other point is in what the High Court said in the quote above: offenders will get advise from their lawyers about the sentence they might expect, but with the caveat that the judge will decide.

The other point to note is that the High Court was only denying a role for the prosecution to submit its views about the range. But it is still open to the prosecution and defence — and probably required as a matter of practice and good advocacy, if not a matter of law — to refer to comparable cases and relevant sentencing statistics.
[40] The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence.
What this means is that the parties will now need to advance only the foundation for the opinion they might have once expressed, rather than the opinion (of the proper sentence length) itself.

One side effect of this might be a much more intense focus on the sentencing facts agreed between the parties, because they will now take on an even greater significance in sentencing proceedings. It could be that some cases run to trial simply because the parties can’t agree on that, or else, there might be an increase in contested sentencing hearings.

Thursday, 5 December 2013

Circle the wagons! They say they’re not guilty!

Agarn & O'Rourke with arrows in their hats
F-Troop's Sgt O’Rourke and Cpl Agarn under defence!

I’ve heard from colleagues that in some summary case conferences at court or contest-mentions they’re facing declarations that the courts won't permit defence by ambush, and that their accused client is required to disclose any defence they wish to advance.

I guess this might arise from the provisions dealing with summary-case conferences and contest-mentions, ss 54 and 55 of the Criminal Procedure Act 2009.

Section 54 provides for a conference between the prosecution and accused to manage the “progression of the case”, including identifying issues in dispute, and for any purpose provided by the Rules of the Court. And the Magistrates’ Court Criminal Procedure Rules 2009 r 21 indeed provide:

21 Summary case conference

The parties to a summary case conference shall engage in meaningful discussion relating to pre-trial disclosure, issues in dispute and the prospects for resolution of charges.

Section 55 requires the parties to provide estimates of time and witness numbers, notice of facilities that might be required, and relevantly to indicate the evidence that party proposes to adduce and to identify the issues in dispute, and anything else for the case management of the proceeding.

Similar provisions apply also to trials in the County and Supreme Courts. Section 179 provides for directions hearings (and applies only for trials, though I see the Magistrates’ Court has recently purported to rely on this provision to conduct yet more special mentions of matters heading to hearing), and s 183 provides for defence responses to the prosecution openings. (At least that provision expressly states the accused is not required to divulge the identity of any witnesses, or if they will testify themself.)

But none of these provisions expressly state that an accused person must divulge their defence prior to a hearing.

And it seems a little, well, odd to suggest that the prosecution — which brings the charge before the court — might somehow be surprised or ambushed by the accused pleading not guilty and then actually being able to point to a flaw in the prosecution case. After all, that’s the whole point of pleading not guilty.

The common law position

An accused is legitimately entitled to put the prosecution to its proofs, and to rely upon any deficiency, without notice to the prosecution.

A criminal trial is the prime example of an adversarial proceeding. Its adversarial character is substantially unrelieved by pre-trial procedures designed to limit the issues of fact in genuine dispute between the Crown and an accused. The issues for trial are ascertained by reference to the indictment and the plea and, subject to statute, the Crown has no right to notice of the issues which an accused proposes actively to contest. The Crown bears the onus of proving the guilt of an accused on every issue apart from insanity and statutory exceptions. The Crown must present the whole of its case foreseeing, so far as it reasonably can, any “defence” which an accused might raise, for the Crown will not be permitted, generally speaking, to adduce further evidence in rebuttal on any issue on which it bears the onus of proof. The Crown obtains no assistance in discharging that onus by pointing to some omission on the part of an accused to facilitate the presentation of the Crown's case or to some difficulty encountered by the Crown in adducing rebuttal evidence which an accused could have alleviated by earlier notice. Even where an accused proposes to raise an alibi, there is no common law duty to give the Crown notice of the alibi. It was necessary to legislate to require notice of an alibi to be given to the Crown before trial, although a failure to give notice of an alibi might result in the Crown being permitted to call evidence in rebuttal if the alibi is first set up during the defence case. In a criminal trial, an accused is entitled to put the Crown to proof of any issue the onus of which rests on the Crown without giving prior notice of the ground on which he intends to contest the issue. If the ground be some matter of fact, an accused is entitled to abstain from giving notice of the ground until a witness is called during the trial to whom the matter of fact can and should be put: Petty v The Queen; Maiden v The Queen (1991) 173 CLR 95 at 108 per Brennan J.

This is a manifestation of the right to silence, closely related to the principle that the prosecution must prove guilt beyond reasonable doubt.

Nevertheless, the right of an accused to refrain from disclosing his defence until an appropriate stage of the trial, the scope of the right of silence and an accused's freedom to abstain, without prejudice to the conduct of his defence, from cross-examining a witness on committal proceedings are questions of such importance to criminal practice and procedure that special leave must be granted…: Petty v The Queen; Maiden v The Queen (1991) 173 CLR 95 at 111 per Brennan J.

It’s also legitimate for the accused to put the prosecution to its proofs, and to see if it metaphorically trips over its own feet. In HML v The Queen (2008) 235 CLR 334 at 353, [9], Gleeson CJ noted, “It is important not to overlook the legitimate opportunism that may be involved in the conduct of a defence under the accusatorial system of trial.”

Do case-management rules alter anything?

Those passages from Petty were applied in R v Ling (1996) 90 A Crim R 376, a decision from the SA Court of Appeal. In that case, the accused was charged with offences and acquitted by the Magistrates’ Court after calling two witnesses not previously known by or disclosed to the prosecution.

The Magistrate held the accused had breached the relevant case management rules, and so was not entitled to his full costs. The accused appealed that decision.

The relevant rule was Rule 26 of the Magistrates’ Court Rules 1992 (SA), which provided:

26.01 Prior to any matter being listed for summary trial the parties must have ascertained the precise matters in issue both as to fact (in detail) and law as to:

(a) fully explore the possibility of disposing of the charge other than by way of trial;

(b) enable the duration of the hearing to be estimated as accurately as possible;

(c) determine what evidence if any may be proved by affidavit;

(d) facilitate the course of the trial,

and shall inform the court as to each of the above.

26.02 To the extent necessary to comply with this rule the parties must confer fully and frankly.

26.03 Prior to a matter being set down for hearing the defence must give notice to the prosecution if evidence of alibi may be called. The notice must give details of the proposed evidence including the name and address of the witnesses.

26.04 Insufficient compliance with this rule must be taken into account on the question of costs.

26.05 To ensure compliance with r 8 and this rule the court may on notice to the parties require that they attend a pretrial conference.

On the appeal, he Full Court of the Supreme Court of South Australia held that case management procedures which on their face required an accused person to disclose their defence could not abrogate such a basic and fundamental principle as the right to silence.

That being so, it is my opinion that r 26 is not to be interpreted as requiring that before a matter is listed for trial, or indeed at any time, the defence disclose its case, nor as requiring that the defence disclose whether evidence will be called and if so from whom and what that evidence is.

I reach that conclusion despite the imperative language used in r 26 and despite the reference in r 26.05 to r 8 which deals with case flow management…

At a first glance r 26 is so expressed as to suggest that it does require such disclosure, but in my opinion it is clear upon reflection that r 26 must be interpreted as operating in the context of the right of silence, and not as displacing it. It certainly does not displace the right of silence in express terms, and in my opinion there is no necessary implication from its nature and terms that it does so.

The rules of all three courts [Magistrates’, District and Supreme] reflect a new emphasis, found also in the rules of many other courts, upon case flow management and upon the obligation of parties to assist the court in the just and efficient determination of the business before it. Courts today accept a responsibility not simply for the just determination of a criminal trial in accordance with traditional criminal procedure, but also for the prompt and efficient disposition of the business of the criminal courts. But while the rules of the courts of this State require the cooperation of the parties to that end, they do not, as I understand them, infringe upon the fundamental right of silence: R v Ling (1996) 90 A Crim R 376 at 380 per Doyle CJ.

Doyle CJ held that to the extent that case management rules purport to abrogate the right to silence, they are invalid in the absence of clear express contrary legislative intention.

If r 26 were to be construed as abrogating the right of silence it would, in my opinion, be invalid as being beyond the rule-making power conferred upon the court. It would not accord with general principle to interpret a power to make rules regulating practice and procedure as empowering a rule of court which abrogated a fundamental common law right. The relationship between matters of procedure and matters of substantive law is, in our system, a complex one. The regulation of procedure may affect substantive law, and so a procedural rule might be valid although it intrudes into the area of substantive law. But I am of the opinion that a power to make procedural rules does not enable a court to entrench upon fundamental common law rights. This conclusion is consistent with the decision of this Court in Taylor v Guttilla (1992) 59 SASR 361 in which case the court held beyond the rule-making power a rule of court which, in civil proceedings, required the production by a party of a medical report notwithstanding the fact that that report was protected by legal professional privilege: R v Ling (1996) 90 A Crimr R 376 at 381.

Doyle CJ understood the consequence of what he was saying, and that it had the potential to modify the efficiency of the case-management system.

But, he had two answers to that.

The first was to discuss the possible statutory modification of the right to silence to allow for Courts to compel disclosure by an accused. (We already have some such modification of the common law, in Criminal Procedure Act ss 50 & 189 (expert witnesses), and 51 & 190 (alibi).)

I have reached these conclusions about the interpretation of r 26 and the scope of the rule-making power conferred upon the Magistrates Court in the full realisation that my approach may be seen as inhibiting the contemporary emphasis upon case flow management and the view, which is steadily gaining wider acceptance, that the public interest in the just and efficient disposition of criminal proceedings may require that courts be given significant controls over the conduct of such proceedings.

It may be that the time has come for some limits to be placed upon the right of silence and for some obligation to be imposed upon the defence to join in the identification of and limiting of issues in criminal proceedings to an extent inconsistent with the maintenance of the right of silence. It is well known that the criminal courts in Australia and in other countries are struggling to cope with the volume of work coming before them. It is equally well known that the length of trials is tending to increase. These matters are a cause for real concern. It is equally well known that the effectiveness of current methods of case flow management is limited because, among other things, under rules such as those that exist in South Australia, the court has no power to require the defence to disclose the nature and extent of the defence case.

The appropriate balance between the responsibility of the court for the efficient conduct of cases before it, and so the width of its powers of case management on the one hand, and the operation of the right of silence on the other hand, is an important issue. It is an issue which, I believe, will have to be faced by the courts and by Parliament in due course. I am not to be taken as suggesting that the right of silence should be abolished. I merely observe that whether it should be limited is an important issue. The right is, to my mind, so fundamental that if it is to be removed that can be done only by Parliament or by statutory authority clearly conferred, and should be done only in the light of a careful consideration of the desirability of the limitation of the right of silence and of the extent of any limitation: R v Ling (1996) 90 A Crim R 376 at 381 - 2 per Doyle CJ.

The second answer was the effect upon costs. In this case the Court was wrong to conclude the accused was disentitled to costs because of non-compliance with the case-management rules. But, it was open to the magistrate to consider the accused's non-disclosure of the witness statements under the general discretion to award costs. (There, under Summary Procedure Act 1921 (SA) s 189, here under Criminal Procedure Act 2009 s 401.)

As to that decision to take the prosecution by surprise, the magistrate remarked that “The tactic was highly successful.” But he went on to say that once the defence had pinned the prosecution down by obtaining particulars, it could have produced the statements. That, to me, seems right. The defence was entitled to take the course which it took, but under the circumstances it seems that it had little or nothing to lose and a reasonable prospect of negotiating a withdrawal if it had been more forthcoming. I consider that a more open approach might have avoided the continuation of the prosecution, as the magistrate appears to have concluded. I accept the magistrate’s view, and that of the single judge, that it was not necessary or appropriate to take surprise to the extent that it was taken. In those circumstances it was appropriate to refuse a full award of costs: R v Ling (1996) 90 A Crim R 376 at 388 – 9 per Doyle CJ.

I expect that means though that when the prosecution particularises its case a certain way, it should be obliged to stick with it, and the court should not ‘descend into the arena’ and try to remedy any apparent defects. R v GAS [1998] 3 VR 862 is an example of the prosecution changing tack late in a trial, resulting in a miscarriage of justice, and Robinson v The Queen (2006) 162 A Crim R 88 and Waters v The Queen [2011] VSCA 415 are others, where Benches either re-cast the prosecution case, or allowed it to be put a different way to that originally advanced. Not only can that potentially cause all sorts of legal problems, practically, an accused is just not going to tip their hand if the result is to allow the prosecution to put a different case to overcome any defects in its prosecution. If that’s allowed to occur, it’s hardly surprising the accused will rely heavily on their rights of challenge and opportunism as endorsed in Ling.

But for the time being, it seems when the accused is asked, “What’s your defence?” that they’re lawfully entitled to say, “Not telling.”

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.