When is a decision not a decision

The pressures of time on appellate judges create incentives for resolving cases quickly and delivering judgments, where possible, at the close of hearing. These ex tempore judgments obviously cannot have the benefit of the same level of reflection as reserved judgments, and can be forgiven for being not as sophisticated in their reasoning. After all, they provide the parties with the speedy and authoritative resolution of the issue they have brought to the court. But DPP v Singh seems to me to take that too far.

One of the innovations of the Criminal Procedure Act 2009 was to introduce interlocutory appeals. As indicated rather loosely in the second reading speech,

An interlocutory appeal essentially brings forward an issue that may otherwise become part of a post-conviction appeal or a DPP reference following an acquittal.

The procedure hinges on an 'interlocutory decision', which is defined as

a decision made by a judge in a proceeding referred to in section 295(1), whether before or during the trial, including a decision to grant or refuse to grant a permanent stay of the proceeding.

This definition is incredibly broad, as the Attorney-General acknowledged and, in a comparison to the equivalent process in NSW, "avoids technical arguments about the nature or description of the decision in question, for example, whether the decision was a ‘judgement’ or ‘order’".

Indeed, on its face, it is hard to conceive of a broader definition. Previously, I had thought that it captured any decision a judge could possibly make in a trial, with the safeguards against it being too broad provided by section 295, which limits interlocutory appeals to appeals against what may be described as significant decisions. It certainly seemed on its face broad enough to capture the decision described in section 241(2)(b):

(2) If
...
(b) at the close of the case for the prosecution, the trial judge decides that there is no case for the accused to answer in respect of a charge on the indictment-
the trial judge may discharge the jury from delivering a verdict on the charge and instead direct that an entry of not guilty be made on the record in respect of that charge.

Note that the section itself describes the process as being that a judge decides that there is no case to answer.

Despite this, the Court of Appeal held in Singh that this decision is not amenable to an interlocutory appeal, saying:

7 The Crown case is that the definition of ‘interlocutory decision’ in combination with the rights of interlocutory appeal conferred by the CPA are sufficiently wide to confer on the Crown a right of appeal in respect of a ruling which, without more, must lead to the acquittal of an accused on a charge to which the ruling refers. But the Crown, in this State, has never had a right of appeal in respect of an acquittal ― at least following a trial on indictment. To construe the definition such that a right of appeal has now been conferred would effect a fundamental change to the criminal justice system. Despite the width of the definition in s 3, there is no indication in the second reading speech or the Explanatory Memorandum accompanying the legislation to suggest that Parliament intended such a change of fundamental principle. That a change of fundamental principle must be expressed in irresistibly clear language is abundantly clear from a consideration of the numerous authorities on the point.

This demand for unmistakably clear language seems bizarre when the Act is read as a whole. The whole structure of the interlocutory appeal process is to ensure that wrong decisions are trial can be challenged on an interlocutory appeal before they result in any definitive legal consequences. To subject the definition of interlocutory decision to a fetter that it doesn't mean a decision to acquit when there is no textual basis in the legislation for retaining that fetter is to take the principle of legality too far. Similarly, the expressio unias argument the court makes at paragraph 9, which seeks to draw significance from the closing words of the definition "including a decision to grant or refuse to grant a permanent stay of the proceeding" is an invitation for unwieldy legislative drafting, as Parliament has already expressly overridden one common law authority which could have limited the scope of interlocutory appeals and now it is invited to expressly overrule another.

In my view, the better solution would have been to impose House v The King style fetters on the review of the decision (or whatever we call the process of engaging s241(2)(b), since Singh implicitly establishes that this decision is not, to use the language of section 3 "a decision") to accept a no case submission. This inevitably involves assessments of fact and degree which an appellate court would not lightly overturn. By avoiding that approach by adopting a strained reading of the legislation which limits the definition by words that are not present on its face, the court is preserving the potential for a judge to make a decision on a no case submission that is plainly wrong and for which the Crown has no remedy. The fact that this has always been the way has little to commend it on a level of policy. It also neglects the significant change the Criminal Procedure Act introduced by taking the final decision to acquit away from the jury and putting it in the hands of the judge. While it would have been a brave jury that rejected a judge's direction to acquit, the law recognised that the jury had this power. With this circuit breaker removed, there is no protection at all against a plainly wrong decision to enter a directed acquittal

Special leave watch: R v Wilson

In a decision quietly released on Tuesday, the High Court refused special leave in Wilson, the case which the Victorian DPP had tried to have heard concurrently with Getachew.

The Court stated:

5. The factual circumstances of this matter differ from those considered in Getachew. In Getachew, the complainant was asleep at the time of penetration, which bore upon the question of consent. By contrast, in this case, there are questions about whether one or more of the complainants was mistaken about the sexual nature of the act of which complaint was made or mistakenly believed that any of the acts of which complaint was made was "for medical or hygienic purposes".
6. Contrary to the submissions of the applicant, we are not persuaded that the directions given by the trial judge about the questions of mistaken belief, the accused's knowledge of the existence of such a mistake or mistakes and the accused's state of mind about consent accorded with what this Court said in Getachew about the proper construction and operation of s 37AA of the Crimes Act. It follows that we are not persuaded that the applicant has sufficient prospects of disturbing the actual orders made by the Court of Appeal in this matter to warrant a grant of special leave. It would therefore not be in the interests of justice in this particular case, or more generally, that there be a grant of special leave to appeal.

The result is unsurprising, as the issue about the operation of s37AA and its interaction with s36 was resolved in Getachew. The most the Crown could really have hoped for would be a technical argument that some of those statements in Getachew were strictly obiter, as the case was resolved on the issue that the directions were unnecessary in light of the failure of the defence to raise an issue of belief in consent. However, that was not enough to carry the day.

King: The High Court and dangerous driving

While a lot of attention was rightly paid yesterday to the significance of the High Court's school chaplain funding case, the court also released its King decision, which has a significant impact on Victorian culpable driving and dangerous driving causing death trials.
The court rejected the Court of Appeal's 5-point test for dangerousness from De Montero v R in favour of classic statements by Barwick CJ in McBride. Ultimately, the court split 3-2 on the disposition of the appeal, due to disagreement over whether the trial judge erred when she attempted to explain the difference between dangerous driving and culpable driving with the following statement:

There are two important differences between the offence of culpable driving causing death, and dangerous driving causing death that reflect the fact that the offence of culpable driving causing death is a more serious offence. First, the Crown must prove beyond reasonable doubt that the accused drove in a way that significantly increased the risk of harming others. There does not have to be a high risk of death or serious injury. That is only a requirement for culpable driving causing death by gross negligence. And secondly, unlike the offence of culpable driving causing death by gross negligence, in relation to the offence of dangerous driving causing death the Crown does not have to satisfy you that the driving is deserving of criminal punishment. The second element will be met as long as you find that the accused drove in a speed or manner that was dangerous to the public.

The view of the majority was that the highlighted passage was not incorrect, but could have confused the jury:

The qualification is that it was unnecessary and possibly confusing for her Honour to direct the jury that, in order to prove the commission of offences against s 319, the Crown did not have to satisfy them that the accused's driving was deserving of criminal punishment.
The common law criterion of criminal negligence as negligence deserving of punishment by the criminal law was instrumental in character. It was designed to impress upon the jury the seriousness of the degree of negligence necessary to support a verdict of guilty. At the same time, as Stephen pointed out, the gravity of the negligence in the particular case was left to the jury to determine "as a matter of degree". The application of that criterion in the Queensland and Western Australian Criminal Codes, effected by the decisions in Scarth and Callaghan, reflected the same instrumental approach to the statutory formula "to use reasonable care and take reasonable precautions". That view was justified by reference to the draftsman's reliance upon the Criminal Code Bill of 1880 and Stephen's intended incorporation in it of the common law criterion. The correctness of the criterion in its application to "gross negligence" under s 318 is not in issue in this appeal although the necessity for, and desirability of, such a direction may be questionable.
In seeking to exclude the common law criterion of criminal negligence from consideration by the jury of verdicts under s 319, the trial judge did not err in law. Properly understood, the direction was correct. Its potential for creating misunderstanding about the seriousness of the offence created by s 319 and the seriousness of the punishment which could be imposed for that offence was plain enough. 

In contrast, the minority was of the view that the highlighted passage was erroneous.

The main point of disagreement of principle between the minority and the majority was the role of negligence in understanding the dangerous driving offence. According to the majority, the Court of Appeal in De Montero erred when it characterised dangerous driving as an offence of criminal negligence that sat below culpable driving. The majority said that criminal negligence is not an element, and that while it might be relevant factually, the jury should be directed to focus on whether the driving was dangerous, and that:

This imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place

The minority held that negligence was inseparable from notions of dangerousness and that while it isn't an element, it cannot be used as a point of distinction between the offences. Bell J said that distinguishing between the two offences required an evaluative judgment concerning the degree of departure from the expected standard of driving.

In the course of the decision, all five judges raised significant questions about the utility of a "deserving criminal punishment" direction as a guide to evaluating the degree of negligence necessary to constitute criminal negligence. While the majority held that use of the phrase in the context of culpable driving was "questionable", the minority expressly rejected it.

This will produce considerable difficulty at a trial level for some time. As a majority of the court did not reject the "deserving criminal punishment" direction, Victorian trial judges will continue to be bound by the earlier judgment of De'Zilwa which held that the direction is required. Hopefully an interlocutory appeal can be brought as a matter of urgency to set aside this aspect of De'Zilwa so that trial judges are no longer required to give this criticised direction.

Victoria to get sentence enhancements

Yesterday, the Victorian Attorney-General, Robert Clark, announced an intention to legislate tougher penalties for assaults on police and emergency services workers. According to the media release, the legislation would operate by imposing a mandatory sentence on top of whatever sentence the court considered appropriate in the circumstances and it would function as a sliding scale, starting at 6 months for assault, 12 months for serious injury offences and 5 years for murder.

This proposed system looks a lot like the "sentence enhancement" system used in America for certain features of offending, such as the use of a firearm. A sentence enhancement approach instantly raises, to my mind, the following questions:

• Given the principle of totality in sentencing, will courts discount the sentence they would otherwise impose so that, when the mandatory penalty applies, the sentence is proportionate to the overall offending?
• How is a court to formulate an appropriate initial sentence while ignoring part of the circumstances of the offence, such as the fact that the attack was on a hospital worker, or a police officer who was performing a public service?
• If the court does not ignore the part of the circumstance of the offence that attracts the sentence enhancement, does this mean that feature is being doubly counted, as it contributes both to the initial sentence and the enhancement?

Surprisingly, the Criminal Bar Association does not see anything radical in this proposal, while the Law Institute thinks it will not be effective as a deterrent (link). Curiously, the Criminal Bar Association compares the proposal with WA's mandatory sentencing laws (s318 of the WA Criminal Code), which only sets a mandatory minimum, rather than prescribing a sentence enhancement. This difference will, I predict, cause the courts significant difficulties in the future. Given what we saw when Sentencing Act 1991 s6AAA was introduced, and all the complaints about how that was an artificial process, this has the potential to attract even greater complaints as it is not a hypothetical exercise, but one that has real effects on the sentence being imposed.

R v Getachew - The High Court brings a little clarity, and a little confusion

R v Getachew [2012] HCA 10 was handed down yesterday and, as expected, the appeal was allowed. The behaviour of the court on the appeal made this aspect of the decision clear from the outset. The real question was how far they would go. In a surprising turn of events, the court overturned the point of principle the Court of Appeal decided in Worsnop but preserved the point of principle decided in Getachew, and allowed the appeal on the narrow Pemble ground. This approach has raised as many questions as it answers.

Well that was unexpected - Bui v DPP (Cth) [2012] HCA 1

The High Court is off to a confounding start to the year with its release of the decision today in Bui v DPP (Cth). This appeal concerned the application of the statutory provisions repealing double jeopardy as a sentencing consideration in appeals in relation to Commonwealth offences. In broad and imprecise terms, the general rule is that ss68, 70 79 and 80 of the Judiciary Act 1903 operate to pick up state procedural law for Commonwealth proceedings, to the extent that it is not inconsistent with any law of the Commonwealth. The provisions also pick up any State-based modifications of the common law.