quis custodiet ipsos custodes

Flesh out argument but bare bones preferred

noreply@blogger.com (Kyle McDonald) — Mon, 13 May 2013 12:42:00 +0000

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

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

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

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

Theodor Geisel — better known as Dr Seuss — wrote a great little piece on the importance of brevity.

It has often been said
there’s so much to be read,
you never can cram
all those words in your head.

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

That’s why my belief is
the briefer the brief is,
the greater the sigh
of the reader’s relief is.

It is possible that somewhere, just maybe, some reader of legal writing agrees with these sentiments.

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

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

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

Moore-Bick & Aikens LJJ strike back in style against prolixity in skeleton arguments (§§25-30 bailii.org/ew/cases/EWCA/…). Via @paulebowen
— Greg Callus (@Greg_Callus) May 7, 2013

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

At the end of his judgement, His Honour was moved to add a postscript.

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

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

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

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

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

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

30. That sanction against prolix pleaders and submission authors may not be available today, but failure to comply with the letter of the Practice Direction on written submissions and the failure to heed the need for brevity in pleadings may well lead to strict adverse costs orders.

For good measure, Mr. Justice David Richards weighed in with:

31. I also agree.

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

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

Criminal trial funding restored, but Legal Aid still needs help

noreply@blogger.com (Kyle McDonald) — Mon, 13 May 2013 08:42:00 +0000

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

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

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

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

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

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

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

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

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

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

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

noreply@blogger.com (Kyle McDonald) — Tue, 07 May 2013 01:00:00 +0000

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

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

The Bill proposes a timetable for the complete abolition of suspended sentences:

1 December 2013 — all suspended sentences in higher courts (County and Supreme Courts)
1 December 2014 — all suspended sentences in summary courts (Magistrates’ and Children’s Courts)

These are the default times, and can be proclaimed to commence earlier.

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

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

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

The government recognises that jailing an offender is the most serious punishment available. There must be a flexible and practical approach to community-based sentencing that can be tailored to suit the very wide range of offending which, while serious, does not warrant a sentence of imprisonment. This approach is embodied in the reforms introduced in this bill, to which I will now turn.

New approach to community-based sentencing in Victoria

Community-based sentences are an important part of the sentencing spectrum. They provide courts with a way to intervene in the lives of offenders who deserve more than a fine, but should not be sent to prison. A community-based sentence allows an offender to remain in the community. Offenders are able to maintain their employment, live at home and draw on the support of their family and friends.

At the same time, offenders are subject to certain obligations — for example, they may have to report to Corrections Victoria, undertake unpaid community work or complete programs that address the reasons for their criminal conduct.

The existing range of community-based sentences does not provide courts with sufficient flexibility to directly target the offender and the offence. The combined custody treatment order (CCTO), for example, is rarely used by the courts and intensive correction orders are generally considered an inflexible option.

The Sentencing Advisory Council, in the Suspended Sentences — Final Report — Part 2, noted that the overuse of suspended sentences in Victoria is at least partly due to the failings of intermediate sentencing orders.

The new CCO introduced in this bill will replace these orders with a single comprehensive and highly flexible order. The bill draws on several recommendations made by the council in its final report to create a new intermediate order.

Specifically, the CCO will replace the combined custody treatment order, intensive correction order (ICO), the intensive correction management order (which has not come into effect) and the community-based order (CBO). From the commencement of this bill, these orders will no longer be available to courts in sentencing offenders. Existing orders will continue until their end date. After that time, if an offender is convicted of breaching one of the abolished orders, the court will resentence the offender under the new sentencing framework.

A CCO sits between imprisonment and fines in the sentencing hierarchy. The CCO will be available for any offence punishable by more than five penalty units.

The CCO will also provide an alternative sentencing option for offenders who are at risk of being sent to jail. These offenders may not yet deserve a jail sentence but should be subject to significant restrictions and supervision if they are going to live with the rest of the community. The broad range of new powers under the CCO will allow courts wide flexibility to tailor their response to address the needs of offenders and set appropriate punishments.

Instead of using the legal fictions of imposing a term of imprisonment that is suspended or served at home, the courts will now openly sentence offenders to jail or, where appropriate, use the CCO to openly sentence the offender to a community-based sentence. Unlike the CCTO and ICO, which are technically sentences of imprisonment, the CCO is a community-based sentence. There is no legal fiction involved. The CCO can be combined with a jail sentence, but it will not pretend to be one. The CCO is a transparent sentence that can be understood by everyone in the community: Parliament of Victoria, Parliamentary Debates, Legislative Assembly, 15 Sep 2011, 3291 – 3295 (Attorney-General, Robert Clark).

The Attorney-General continued this theme in the second reading speech for the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Bill 2013.

As I have said before in this place, suspended sentences are a legal fiction that pretends offenders are serving a term of imprisonment when in fact they are living freely in the community, not subject to any restrictions, community service obligations or reporting requirements. Offenders effectively walk away unpunished and often then go on to commit further crimes: Parliament of Victoria, Parliamentary Debates, Legislative Assembly, 17 Apr 2013, 1259 – 1261 (Attorney-General, Robert Clark)

Because CCOs can now operate up to a period of time equivalent to the maximum sentence for an offence, some of the previous shortcomings of intermediate sentencing orders falls away. In some cases, a CBO or ICO might have been appropriate, but only if it ran for longer than the prescribed periods that were available.

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

It is important to retain a number of distinct sentencing orders to provide well-defined ‘rungs’ in the penal ladder, and to affirm that a sentence of immediate imprisonment is a sentence of last resort reserved for the most serious offences, and for offenders at high risk of reoffending.

As I understand it, the point of abolishing suspended sentences and replacing them partly with CCOs is in answer the mental gymnastics required by s 27(3) of the Sentencing Act 1991.

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

(3) A court must not impose a suspended sentence of imprisonment unless the sentence of imprisonment, if unsuspended, would be appropriate in the circumstances having regard to the provisions of this Act.

At first blush, it seems odd to hold that it’s appropriate to send an offender to jail after considering and rejecting every other option in the sentencing hierarchy, as required by sub-ss 5(3) and (4), and then turn to s 27(1A) and conclude that it’s not appropriate to send the offender to jail. Whatever your thoughts about that apparent tension and if it can be resolved, the current Government seems to have decided to do away with it entirely.

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

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

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

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

noreply@blogger.com (Kyle McDonald) — Sun, 05 May 2013 04:00:00 +0000

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

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

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

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

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

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

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

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

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

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

noreply@blogger.com (Kyle McDonald) — Sat, 04 May 2013 14:30:00 +0000

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

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

There are two pathways to summary determination.

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

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

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

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

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

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

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

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

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

2. Is his Honour’s order an abuse of process of the County Court?

The Court of Appeal held that the answers to every question should be 'no'.

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

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

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

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

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

it highlights at [46] the point raised in Winch (and other glassing cases) that, "[T]he statements in Winch do not lay down a mandatory minimum sentence, rather in that case the court made a statement of principle. Each case will need to be considered individually albeit within the context of current sentencing practices"; and
it provides the first judicial consideration of s 29 and 168 considerations for summary determination, clarifying the importance of available range of sentence.

Batich is consistent with Hansford v Judge Neesham [1995] 2 VR 233 — which, interestingly enough, wasn't mentioned in Batich —but arguably goes one step further it expressly stating it’s not necessary for all of the proper sentencing range to fall within the jurisdictional limits of the Magistrates’ Court. It perhaps overturns the effect of Scrofani v Duke, SC V, 25 Sep 1991, Ashley J, which upheld a refusal of summary jurisdiction though recognising that the appropriate sentence might fall within that open to the Magistrates’ Court.

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

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

noreply@blogger.com (Kyle McDonald) — Thu, 02 May 2013 12:41:00 +0000

Edit: Austlii now has R v Chaouk online.

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

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

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

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

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

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

And later at [31]:

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

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

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

Advocacy Teaching Blog

noreply@blogger.com (Kyle McDonald) — Tue, 23 Apr 2013 20:00:00 +0000

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

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

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

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

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

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

Justice Legislation Amendment Bill 2013: donations again available for undertakings

noreply@blogger.com (Kyle McDonald) — Mon, 22 Apr 2013 11:54:00 +0000

Parliament introduced the Justice Legislation Amendment Bill 2013 last week.

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

The Bill proposes two sets of changes to overcome Mansour.

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

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

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

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

Thomson Reuters ProView

noreply@blogger.com (Kyle McDonald) — Thu, 04 Apr 2013 04:46:00 +0000

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

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

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

Independent Bar an endangered species?

noreply@blogger.com (Kyle McDonald) — Wed, 03 Apr 2013 02:00:00 +0000

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

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

What's so important about an independent Bar?

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

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

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

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

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

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

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

And at 227, Lord Reid said:

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

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

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

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

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

Recent UK developments

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

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

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

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

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

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

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

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

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

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

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

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

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

The players in the dispute

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

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

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

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

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

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

Private contractors responsible for contracted State obligations?

noreply@blogger.com (Kyle McDonald) — Tue, 02 Apr 2013 12:50:00 +0000

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

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

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

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

On appeal, the Court of Appeal held:

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

When concluding there was no serious misconduct in this case, and so quashing the costs order, the Court said:

41. We have reached that conclusion in the light of the following:

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

It's pretty rare in my experience for interpreters to not attend courts here when booked. (The problem can sometimes be availability, but I've always found that once confirmed, they attend as and when required.)

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

Case theory: what happened; why?

noreply@blogger.com (Kyle McDonald) — Sun, 31 Mar 2013 08:00:00 +0000

The Australian Bar Association runs occasional advocacy training through the Advocacy Training Council, offering courses on essential and advanced trial advocacy, as well as appellate advocacy.

In February, the blog of Derwent & Tamar Chambers in Tasmania (worth a follow) linked to a paper on case theory prepared by Justice Kenneth Martin from the WA Supreme Court as part of the ATC Advanced Trial Advocacy Course. It's well worth a read.

Case theory is a fairly recent concept in the history of advocacy, but good advocates have been doing it forever. For example, in 1895 Oscar Wilde sued the Marquess of Queensberry for libel. Lord Queensberry's barrister, Edward Carson, had assembled many facts necessary to defend the suit. Wilde portrayed Lord Queensberry as a brute beguiled by lies; Carson countered in his closing address to the jury, "Lord Queensberry, in dealing with Mr Oscar Wilde, has been influenced by one hope alone — that of saving his son." At the closing, Wilde sought to withdraw his suit so comprehensively had Carson rebutted Wilde's case, but Carson pushed for a verdict, and the jury returned a verdict of not guilty. Whatever your thoughts about the whole case, it was a demonstration of both detailed preparation and good case theory by Carson for the defendant.

But there still aren't a lot of freely available resources about case theory; what it is and how to develop it.

So, what is case theory? I like to think of it as, 'What happened, and why?'

If you can answer that, there's your case theory. A prosecution or plaintiff's case theory must put forward a positive explanation of what occurred, and why, consistent with the evidence in the case. A defence case theory might be one that completely contradicts the prosecution case theory — throwing up a stark choice for the tribunal of fact — or might be an alternative case theory that suggests doubt. (Or, the defence might not advance any case theory, and simply say to the prosecution or plaintiff, 'Prove it.') Case theory isn't just motive, though it will often incorporate a motive, or suggest a motive that logically follows from the case theory.

A good example provided by Lee Stuesser in An Introduction to Advocacy is from Plomp v The Queen (1963) 110 CLR 234 at 241 - 3, per Dixon CJ:

It was proved that Plomp had formed a liaison with another woman whom he had promised to marry, that he had represented himself as a widower and that he was continuing the liaison. In the circumstances, proved by apparently credible evidence, it was open to conclude that Plomp had the strongest reasons to be rid of his wife. It is unnecessary to traverse all the circumstances in detail...

In the present case it appears to me that if the jury weighed all the circumstances they might reasonably conclude that it would put an incredible strain on human experience if Plomp's evident desire to get rid of his wife at that particular juncture, presaged as it was by his talk and actions, were fulfilled by her completely fortuitous death although a good swimmer and in circumstances which ought not to have involved any danger to her.

Stuesser writes, 'In Plomp the prosecution's theory would be, "Mr Plomp found another woman. He wanted to get rid of his wife. He chose murder."'

Another example is the notorious case of DPP v Stonehouse [1978] AC 55. Shortly before his disappearance, John Stonehouse took out life insurance policies totalling £125,000, and payable to his wife on his death. His wife was ignorant of his plans. From the headnote:

In 1974, John Thomson Stonehouse ("the accused") was a well-known public figure in this country. A Member of Parliament and a Privy Councillor, he had held a number of ministerial posts in the Government during the six years up to 1970. Thereafter he became active in business through a company. Export Promotion and Consultancy Services Ltd., which he controlled.

By the summer of 1974, his personal finances were in a disastrous state. He decided to fake his death by drowning and to start life afresh under a new identity with money dishonestly obtained and clandestinely transferred to his chosen country of refuge, Australia [where he was living with his mistress Sheila Buckley]. He carried out this plan, but was discovered living in Australia under his false identity some five weeks after his pretended death by drowning. He was extradited and stood his trial at the Old Bailey on an indictment charging him with 16 complete offences of dishonesty and forgery and five offences of attempting to obtain property by deception.

The case theory there would be: Stonehouse was going broke, and wanted money to start anew with his mistress. He faked his own death to defraud his insurers to get that money.

The benefit of a case theory is that it provides a sense of direction and purpose for the advocate. It guides questions. Justice Martin notes in his paper that when we have to think on our feet, and wonder, 'What question do I ask this witness?", the case theory will give us the answer.

Similarly, if your opponent makes unguarded or careless objections to the relevance of questions, that provides a legitimate opportunity explain our case theory in order to show the relevance. This is why silly objections on the grounds of relevance can be so damaging to your own case, and manna from heaven for your opponent.

So not only does the case theory need to be consistent with the admissible evidence — after all, it must have a proper foundation, and can't simply be made up like a script writer creates a screenplay — it also needs to be consistent with human knowledge and experience. Otherwise, the fact-finder will simply reject the case theory, probably with egging on from the opposition advocate. Both examples above demonstrate good case theories that meet these requirements.

If you want to read more about this essential aspect of advocacy, you can find some in the Australian Advocacy Institute's advocacy manual, and a more expansive treatment in chapter 1 of Lee Stuesser's An Introduction to Advocacy.

Blowback: consequences from legal aid cuts

noreply@blogger.com (Kyle McDonald) — Sat, 30 Mar 2013 06:26:00 +0000

Recent events in Afghanistan and Iraq brought the intelligence communities' phrase 'blowback' to public consciousness.

At its most basic, it's about unintended consequences; often ones that the actor actual intended to avoid, and yet by their actions, brought about.

Recent legal aid cuts in Victoria might be a case in point.

The UK has also recently gone through a round of austerity cuts, purportedly in the attempt to save money.

A recent Court of Appeal judgment has eloquently demonstrated how such savings can be illusory and undermined as litigation is left to unrepresented parties without the aid of lawyers. (Shoutout to @The CBA for the tweet about this case.)

1. This judgment will make depressing reading. It concerns a dispute between two intelligent and not unsuccessful businessmen who, after years of successful collaboration, have fallen out with each other and this and other litigation has ensued with a vengeance. Being without or having run out of funds to pay for legal representation, they have become resolute litigators and they litigated in person. Some unlucky judge had to cope with the problems that inevitably arise in the management of a case like this. Here the short straw was drawn by His Honour Judge Anthony Thornton QC. He struggled manfully, patiently, politely, carefully and conscientiously. Many may not have done so. It is, therefore, hugely unfortunate that the appeal is launched essentially on the ground that the judge allowed himself to become distracted and so wrongly conducted the trial on the written information he had without allowing the defendants to call live evidence. The appeal is based upon that alleged procedural impropriety.

2. What I find so depressing is that the case highlights the difficulties increasingly encountered by the judiciary at all levels when dealing with litigants in person. Two problems in particular are revealed. The first is how to bring order to the chaos which litigants in person invariably – and wholly understandably – manage to create in putting forward their claims and defences. Judges should not have to micro-manage cases, coaxing and cajoling the parties to focus on the issues that need to be resolved. Judge Thornton did a brilliant job in that regard yet, as this case shows, that can be disproportionately time-consuming. It may be saving the Legal Services Commission which no longer offers legal aid for this kind of litigation but saving expenditure in one public department in this instance simply increases it in the courts. The expense of three judges of the Court of Appeal dealing with this kind of appeal is enormous. The consequences by way of delay of other appeals which need to be heard are unquantifiable. The appeal would certainly never have occurred if the litigants had been represented. With more and more self-represented litigants, this problem is not going to go away. We may have to accept that we live in austere times, but as I come to the end of eighteen years service in this court, I shall not refrain from expressing my conviction that justice will be ill served indeed by this emasculation of legal aid: Wright v Michael Wright Supplies Ltd & Anor [2013] EWCA Civ 234 per Sir Alan Ward.

The real answer lies in the government properly funding legal aid. We can only hope it won't take the court system grinding to a halt and miscarriages of justice before the government recognises that.

MacDonald v The County Court & Ors [2013] VSC 109: doesn't measure up

noreply@blogger.com (Dr Manhattan) — Sat, 23 Mar 2013 05:09:00 +0000

It would appear that resort to the National Measurement Act 1960 (Cth), called as a kind of evidence to the contrary to an allegation of speeding, has had its day. To my knowledge the argument has never been accepted, and it doesn't look like it will be. Perhaps someone may breathe new life into it (and individual accused drivers will continue to raise it) but there is a mounting body of law now saying that the one thing has got nothing to do with the other.

For those unfamiliar with it, the National Measurement Act 1960 (Cth) is a piece of legislation which has as its stated purposes,

(1) The objects of this Act are:

(a) to establish a national system of units and standards of measurement of physical quantities; and

(b) to provide for the uniform use of those uniform units and standards of measurement throughout Australia; and

(c) to co-ordinate the operation of the national system of measurement; and

(d) to bring about the use of the metric system of measurement in Australia as the sole system of measurement of physical quantities; and

(e) to provide for a national system of trade measurement;

The Act doesn't have anything to say about road safety cameras, and isn't aimed at regulating law enforcement activities. Even so, it's occasionally argued by self-represented accused that some kind of conflict between this Commonwealth Act and State law exists, enlivening s 109 of the Constitution and invalidating or displacing specific legislation like the Road Safety Act 1986.

Such arguments have been rejected repeatedly by appellate courts, both here and interstate where similar statutory schemes operate. I've written before about the flaws in approach that often characterises these attempted defences.

Some judgments dissect these 'pillars of justice' arguments in great detail, while others simply declare them devoid of merit and move on. I found the approach taken by Emerton J in MacDonald v The County Court & Ors [2013] VSC 109 to be a concise yet comprehensive exploration of the argument.

The case trod a well-worn path from the Magistrates' Court to a hearing de novo in the County Court, and from there by way of application for judicial review under O 56 before Emerton J in the Supreme Court. Her Honour said [at 25, then skipping to 27]:

Mr Macdonald contends that the speed cameras that were used to take the photos and record the speed of the vehicles in question did not comply with the requirements of the National Measurement Act and that, in the absence of approval and the provision of the certificate under by the National Measurement Act and National Measurement Regulations 1999 (Cth), the speed cameras were illegal. Mr Macdonald referred to the requirements of ss 19A, 19AAA and 19AAB of the National Measurement Act and asserted that the prosecution had failed to produce certificates establishing that the speed cameras had been verified in accordance with the requirements of Reg 18 of the Regulations.

Although I was not taken to it by Mr Macdonald, I have had regard to the National Measurement Act as in force in April 2008, when the speed cameras photographed and recorded the speed of the vehicles in question.

...

The system of verification of utility meters used for trade is contained in Part VA of the Act. However, it was common ground that a speed camera is not a utility meter for the purposes of Part VA. Rather, Mr Macdonald relied on Part VI, which contains the provisions that he referred to. These provisions – ss 19A, 19AAA and 19AB – do not require the doing of anything. Rather, they provide for the making of regulations, specifically for or in relation to the examination, approval and verification of ‘patterns’ of measuring instruments, for the issuing of certificates in respect of the approval and verification of patterns of measuring instruments and for the reception in evidence of documents purporting to be such certificates.

It is therefore necessary to have regard to the Regulations (as in force in April 2008). Although Mr Macdonald referred to regulations 18 and 80A, they do not appear to me to be relevant to the argument that he apparently seeks to make. Part VI of the Regulations deals with patterns of measuring instruments. Regulation 58 provides that an application may be made for approval of the pattern of a measuring instrument and then sets out the procedure by which that is undertaken. Regulation 60 provides that on application under Regulation 58, the approving authority may approve the pattern of a measuring instrument by certifying that the instrument is suitable for use for trade or as a legal measuring instrument. If the pattern of the measuring instrument is approved, the approving authority must issue a certificate of approval to the applicant. Regulation 63 sets out the form of the certificate of approval. Regulation 64 and Division 3 of Part VI deal with the circumstances in which an approval may be withdrawn or cancelled.

Part IV of the Regulations deals with the certification of individual measuring instruments. Regulation 36 provides that an application may be made for certification of a measuring instrument, and Regulation 37 provides that, upon application under Regulation 36, the certifying authority may examine the measuring instrument and may certify the measuring instrument. For a measuring instrument to be certified, it must have an approved pattern and bear a mark that identifies the particular instrument.

The relevant regulations are therefore largely permissive in character. A person may apply for approval or certification of a pattern or of an individual measuring instrument, but it is not mandatory.

Having regard to the Regulations, I can find no requirement that speed camera types or individual speed cameras be certified, verified, calibrated or otherwise approved under the National Measurement Act or the Regulations. Mr Macdonald could not point to any specific requirement in the National Measurement Act or the Regulations that speed cameras be approved, verified or certified either individually or more generally as to pattern. He argued, instead, that it was the general ‘tenor’ of the National Measurement Act that they be approved, verified or certified.

I do not accept this submission. In my view, the County Court was not prevented from finding the charges proven in the absence of approval, verification or certification under the National Measurement Act of either the pattern of the speed cameras or the individual speed cameras, as there was no such requirement.

It follows that the constitutional issue raised by Mr Macdonald based on the alleged inconsistencies between the Road Safety Act and the National Measurement Act and Regulations does not arise.

(Some of the sections Emerton J referred to (operating at the time of the offence in 2008) have since been repealed and replaced with similar provisions.)

There were other issues raised, relating to natural justice, rental agreements and the operation of the Magna Carta, but they were also found to lack substance.

The application was dismissed.

Pedantry Corner

noreply@blogger.com (Dr Manhattan) — Thu, 21 Mar 2013 03:01:00 +0000

I try not to let small things bother me, and occasionally I'm successful.

Before anyone asks what I mean by pedantry, I adopt the standard Oxford dictionary definition:

n. excessive concern with minor details and rules.

So don't bother to comment that I'm being petty, or that the rising tide of illiteracy is against me, or (God forbid) point out my own mistakes. If we have a deal, I shall try to make sure that my visits to Pedantry Corner are rare, and brief.

A frequent source of irritation to me is the way that uninterested and disinterested are considered synonyms. They are not. And unlike words which mean fundamentally the same thing (often a legacy of Britain's Norman and Saxon heritage, and liberally scattered through legal terminology, such as will and testament; aid and abet; null and void), each of these words performs a valuable service in our language.

The magistrate was uninterested means s/he's bored.

The magistrate was disinterested means an application relating to apprehended bias is unlikely to succeed.

So while you can direct me to a dozen dictionaries and websites that now attach both meanings to disinterest, they shouldn't be promoting the confusion. And I frequently have this discussion with lawyers, for whom language is their lifeblood, who can't distinguish between the two.

What does Browne v Dunn require?

noreply@blogger.com (Dr Manhattan) — Wed, 20 Mar 2013 19:00:00 +0000

Both sides of any legal dispute, civil and criminal, must comply with the rule in Browne v Dunn (1894) 6 R 67 at hearing.

But few legal minds agree precisely on the level of detail that proper puttage must go to, or even how to go about it. And, of course, with the infinite number of circumstances that the rule can be applied to, what is found to be compliant in one case may be inadequate in another case that bears a strong likeness.

Obeying the rule does not, as some advocates think, require the laborious and tiresome putting of every shred of their case to every witness, usually hoping that their position will acquire some strength by repetition that it lacks on its own. Neither the tribunal of fact, nor the party's prospects of success, are assisted by that. But nor is a scant, "I put it to you my client acted in self defence," (or similar generality) likely to satisfy counsel's obligations.

I like to apply the "What?" test. If matters have been properly put to witnesses, the evidence of your witnesses (or your submissions) should not cause anyone's head to whip around and their lips to mouth the word, "What?". If your actions prompt that level of surprise in the courtroom, chances are good that there will shortly be a submission that the rule in Browne v Dunn has been breached.

Because of the burden of proof in criminal cases and the order in which evidence is called, the rule is more often transgressed by defence advocates than by prosecutors. In leading the prosecution case, by their opening (if there was one) and by the evidence-in-chief of its witnesses, the case for the prosecution should be clear before the first defence witness is called.

But it can still happen that a prosecutor breaches the rule. Where the breach occurs in a closing address (particularly in front of a jury), such a breach can be costly to all concerned. In Smith v The Queen [2012] VSCA 187, after a 33 day conspiracy to defraud trial in the County Court, the conviction was quashed on appeal because (amongst other things), the prosecutor relied upon inferences of consciousness of guilt which had not properly been put to the accused.

Where an accused gives evidence and is cross-examined, a failure by the prosecutor to put the allegation in detail squarely to the accused will not automatically be taken to be acceptance of the accuracy of their evidence. There are a couple of reasons for this. The information or indictment already places the accused on notice as to what the prosecution allege to have occurred. The accused is present for the evidence of prosecution witnesses. And, quite often, their own counsel will have put the allegation to them (sometimes directly, sometimes indirectly, sometimes both). In these circumstances, the obligation to put everyone on notice about the issues in dispute (referred to by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 [at 22 and 23]) has already been discharged before the prosecutor opens their mouth.

A good demonstration of this can be found in Vo v The Queen [2013] NTCCA 4. Though the appellant's conviction was quashed for other reasons, the NT Court of Criminal Appeal rejected the ground that asserted the failure by the prosecutor to cross-examine the accused on important points implied an acceptance by the prosecution of the accuracy of her account.

Mildren ACJ, Kelly and Blokland JJ [at 25]:

Counsel for the appellant submitted, however, that in deciding whether the jury was right to reject the appellant’s unchallenged evidence as to the nature of her belief, the jury was entitled to take into account that the prosecutor had failed to comply with the well-known rule in Browne v Dunn. We were referred to a number of authorities which discuss the rule in Browne v Dunn. It is not necessary to refer to them all. It is sufficient to refer to the well-known judgment of Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation, where his Honour referred to the fact that Lord Herschell LC conceded that there was no obligation to raise a matter in cross-examination in circumstances where it is perfectly clear that the witness has had full notice beforehand that there is an intention to impeach the credibility of the story which the witness is telling.

At pages 22 to 23, his Honour went on to say:

"A challenge made to the evidence of a witness in the course of a final address may take place in various ways. The opposing party may ask the tribunal of fact simply to disbelieve that evidence; if he has led evidence in direct contradiction of the evidence of that witness, he may then ask the tribunal of fact to accept the evidence of his own witnesses in preference to that of the witness in question; or he may point to other evidence in the case, led by either party, which tends either to contradict the evidence of that witness or to destroy his credit. There are many reasons why it should be made clear, prior to final addresses and by way of cross-examination or otherwise, not only that the evidence of the witness is to be challenged but also how it is to be challenged. Firstly, it gives the witness the opportunity to deny the challenge on oath, to show his mettle under attack (so to speak), although this may often be of little value. Secondly, and far more significantly, it gives the party calling the witness the opportunity to call corroborative evidence which in the absence of such a challenge is unlikely to have been called. Thirdly, it gives the witness the opportunity both to explain or to qualify his own evidence in the light of the contradiction of which warning has been given and also, if he can, to explain or to qualify the other evidence upon which the challenge is to be based.”

In this case, it was perfectly obvious right from the start that the Crown intended to rely upon the presumption contained in the Criminal Code. Although there was no direct challenge to the appellant’s evidence concerning her state of knowledge, she was thoroughly cross-examined about the circumstances under which she became to be in possession of the drugs prior to the time that they were seized at Darwin airport, as well as her behaviour at the airport when she was spoken to by customs officers. The effect of the cross-examination was to undermine her credit as a witness. We think that, in these circumstances, the prosecutor did not breach the rule in Browne v Dunn and that she did all that was required of her.

The reference to Lord Herschell LC concerns Browne v Dunn itself. (It's a case that almost all lawyers have heard of, but only a few have read. Unfortunately, while it's available by all of the usual subscription services, I don't have a free copy to link to). In it, the Lord Chancellor said,

I can quite understand a case in which a story told by a witness may have been of so incredible and romancing a character that the most effective cross-examination would be to ask him to leave the witness box.

While this may be true, it would probably be far more prudent to ask a few questions first.

A victim's place

noreply@blogger.com (Dr Manhattan) — Sat, 16 Mar 2013 05:25:00 +0000

Shepherd & Anor v Kell & Anor [2013] VSC 24 was an application under s 85B of the Sentencing Act 1991 for a compensation order against two men convicted of manslaughter. The application was made by the victim's parents, who are recognised as victims of the crime themselves by the definition provided at s 3 of the Act:

victim, in relation to an offence, means a person who, or body that, has suffered injury, loss or damage (including grief, distress, trauma or other significant adverse effect) as a direct result of the offence, whether or not that injury, loss or damage was reasonably foreseeable by the offender;

In granting the application, Lasry J drew upon the affidavits of the victims to make the following observations [at 16], which should give everyone connected with the justice system pause for thought:

It is important for me to note that the experience of Mr and Mrs Shepherd in the justice system has not been satisfactory. In his victim impact statement Mr Shepherd said:

I felt disappointed in the justice system and how it caters for people like Maureen and I and the situation we found ourselves in. I think there should be a little room next to the court with one way glass where you can sit and listen to the proceedings. A place where you can react with tears and anger and overwhelming grief if you have to when you hear the evidence presented. Instead, there I was in the court room having to be a robot again. I was told not to show any reaction to who was there and what I heard. I was so anxious about doing the right thing I didn’t want to upset the proceedings with any emotional outburst which I really felt like showing. I felt like screaming out every time the defence questioned a witness challenging the truth. Having to keep all my emotions inside has taken its toll on me.

Observations like this should be acknowledged by those of us in the criminal justice system and governments and courts should consider the way in which the experience of people such as Mr and Mrs Shepherd can be made more comfortable than it is at the moment.

The costs involved in installing private galleries and one-way glass in courtrooms would be prohibitive. But reading of this man's experience did cause me to wonder why better use isn't made of remote witness facilities already in existence at every Victorian court. It wouldn't be possible for the facilities to be used for this purpose when they are required for a witness giving evidence in a trial, but there are many more occasions during trials and sentencing hearings when a victim and their loved ones could watch proceedings without having to maintain the unnatural, stoic demeanour that their presence in the body of the court demands.

The cost would be minimal. The signal would be transmitted one-way rather than both ways. And it could benefit the court and the administration of justice, as it might minimise the potential for disruption to proceedings caused by someone in the gallery becoming distressed or disruptive, or needing to absent themselves from the hearing urgently. Not every victim would use it, but no doubt some would.

Perhaps this already does happen and I'm just not aware of it. (Someone post a comment about it, if that's the case.)

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

noreply@blogger.com (Dr Manhattan) — Wed, 27 Feb 2013 19:20:00 +0000

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

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

At issue in Monis v The Queen [2013] HCA 4 was the validity of s 471.12 of the Criminal Code. That states:

471.12 Using a postal or similar service to menace, harass or cause offence

A person is guilty of an offence if:

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

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

Penalty: Imprisonment for 2 years.

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

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

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

French CJ noted at [61]:

The now settled questions to be asked when a law is said to have infringed the implied limitation [to impose a burden on the freedom of communication on matters of government or political concern] are:

1. Does the law effectively burden freedom of communication about government or political matters in its terms, operation or effect?

2. If the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 of the Constitution for submitting a proposed amendment to the Constitution to the informed decision of the people?

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

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

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

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

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

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

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

noreply@blogger.com (Kyle McDonald) — Wed, 20 Feb 2013 13:03:00 +0000

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

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

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

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

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

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

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

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

Adjourned undertakings and special conditions

Sentencing Act s 75 provides:

75. Release on adjournment without conviction

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

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

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

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

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

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

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

(a) by order of the court; or

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

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

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

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

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

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

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

14 Section 3 of the Magistrates’ Court Act 1989 states that a ‘fine’:

includes any penalties, forfeitures, sums of money and costs ordered to be paid by the person fined.

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

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

57. Payment of penalties

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

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

(3) For the purposes of this section—

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

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

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

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

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

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

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

Consequences

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

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

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

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

...

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

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

Dogged investigator

noreply@blogger.com (Dr Manhattan) — Mon, 18 Feb 2013 06:14:00 +0000

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

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

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

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

Instructors at trial

noreply@blogger.com (Dr Manhattan) — Sun, 17 Feb 2013 11:58:00 +0000

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

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

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

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

LIV President Reynah Tang wrote on his blog that,

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

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

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

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

Lasry J [at 46]

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

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

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

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

On its website VLA said,

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

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

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

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

You can read VLA's full response here.

Functus officio: DPP v Edwards [2012] VSCA 293

noreply@blogger.com (Kyle McDonald) — Wed, 13 Feb 2013 19:30:00 +0000

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

When is a court functus officio?

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

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

Dissent

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

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

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

...

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

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

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

Warren CJ provided four reasons in support of this:

This corresponds with the common law on administrative tribunals, which are similar to inferior courts.
At common law, a party can disregard an order in excess of jurisdiction made by an inferior court, and not be liable to contempt. If the parties can disregard the invalid order, the Court should be able to as well.
This is consistent with the position that decisions of inferior courts — in this case, the County Court — made beyond jurisdiction, are invalid, whereas decisions of superior courts are always valid until set aside.
Brattoli is on point.

Her Honour also noted that nothing in the Criminal Procedure Act, Sentencing Act or County Court Act modified the common law position.

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

Majority

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

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

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

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

The problem with functus officio versus void orders

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

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

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

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

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

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

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

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

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

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

In conclusion, the majority said:

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

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

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

The end result

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

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

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

Finishing what you started

noreply@blogger.com (Dr Manhattan) — Wed, 13 Feb 2013 10:12:00 +0000

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

DPP v Zecevic

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

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

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

Mason CJ [at 654]:

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

Wilson, Dawson and Toohey JJ [at 663]:

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

And they continued later [at 664]:

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

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

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

Neither Deane J nor Gaudron J specifically addressed the issue.

One Lump or Two?

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

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

10.4 Self-defence

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

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

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

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

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

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

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

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

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

(a) to protect property; or

(b) to prevent criminal trespass; or

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

(4) This section does not apply if:

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

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

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

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

Massey v R

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

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

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

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

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

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

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

Anandan v R

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

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

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

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

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

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

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

noreply@blogger.com (Dr Manhattan) — Thu, 07 Feb 2013 10:11:00 +0000

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

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

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

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

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

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

What do you think?

New police pursuits offence

noreply@blogger.com (Kyle McDonald) — Thu, 07 Feb 2013 08:30:00 +0000

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

The new provision provides:

319AA. Dangerous or negligent driving while pursued by police

(1) A person must not drive a motor vehicle dangerously or negligently if he or she knows, or ought reasonably to know, that—

(a) he or she has been given a direction to stop the vehicle by a member of the police force; and

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

Penalty: 3 years imprisonment.

(2) For the purposes of subsection (1)—

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

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

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

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

(3) In this section—

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

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

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

At 605 [38], the Court said,

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

.

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

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

In McBride at 50 [14]:

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

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

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

In Andrews, Lord Atkin said at 538:

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

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

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

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