Wednesday, October 27, 2010

Recklessness and indifference

The law recognises a significant difference between intention and recklessness. An intention involves an actual desire to achieve an outcome, while recklessness involves an awareness that conduct is likely to produce a certain result. The High Court's classic judgment in Crabbe v R (1985) 156 CLR 464 states that:

Thursday, October 21, 2010

Appeals without precedent

Yesterday was a busy day for the Court of Appeal. Ashley and Weinberg JJA handed down 4 separate sentence appeal decisions, all of which contained the following peculiar catchword
Appeal decision without precedent value
The decisions were all highly fact-based, though Dow v R [2010] VSCA 274 and Sharkey v R [2010] VSCA 273 both adverted to the issue of how declarations of guilty plea discount can be used as a ground of appeal.

Not all laws are equal

As most lawyers are aware, manslaughter by an unlawful and dangerous act is a common law offence that occurs, in broad terms, when a person unintentionally causes the death of another by an unlawful act which a reasonable person in the position of the accused would have realised would expose another person to an appreciable risk of serious injury. Courts have, however, expressed various views on what is an 'unlawful act' for this purpose. In particular, before a dedicated offence of culpable driving existed, there was debate on whether the multiplicity of driving offences in various road safety acts and regulations could constitute an unlawful act.

The high point in Australia for excluding driving offences from the unlawful act doctrine appears to be R v Rau [1972] Tas SR 59, where Burbury CJ states:

Tuesday, October 12, 2010

The human cost of appeals and the limits of judicial review

Last week, Justice Ross handed down his decision in Priest v West, the first Victorian Supreme Court decision reviewing a coroner's decision on the application of s57 of the Coroners Act 2008. That provision, which is closely modelled on s128 of the Uniform Evidence Act, preserves the privilege against self-incrimination in coronial inquests, but allows coroners to override the privilege while providing the witness with a certificate that guarantees use immunity and derivative use immunity to the evidence.

Wednesday, October 6, 2010

Adjournments and alternatives

Four days before a scheduled hearing to give evidence as primary prosecution witness in a road rage incident, Ms Venner was admitted to hospital for emergency surgery. Dutifully, she notified the informant that she would not be available, who then, one day before the hearing, notified the defendant that the police would apply for an adjournment and, in the alternative, would apply under s65 of the Evidence Act for the court to receive her police statement. These are the facts underlying DPP v Easwaralingam.

Surprisingly in those circumstances, the defendant opposed both applications, the Magistrate knocking back the adjournment application because