tag:blogger.com,1999:blog-62772139440385355572024-03-14T20:32:29.025+11:00Caen's CornerSome not-so-brief thoughts by a Melbourne lawyer with an interest in criminal law and associated fieldsCaenhttp://www.blogger.com/profile/09430270444333226982noreply@blogger.comBlogger57125tag:blogger.com,1999:blog-6277213944038535557.post-29588649339301555842012-07-31T07:00:00.002+10:002012-07-31T13:00:11.442+10:00When is a decision not a decisionThe pressures of time on appellate judges create incentives for resolving cases quickly and delivering judgments, where possible, at the close of hearing. These <i>ex tempore</i> 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 <a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2012/167.html">DPP v Singh</a> seems to me to take that too far.<br />
<br />
One of the innovations of the Criminal Procedure Act 2009 was to introduce interlocutory appeals. As indicated rather loosely in the second reading speech,<br />
<blockquote class="tr_bq">
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.</blockquote>
The procedure hinges on an 'interlocutory decision', which is defined as<br />
<blockquote class="tr_bq">
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.</blockquote>
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’".<br />
<br />
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 <a href="http://www.austlii.edu.au/au/legis/vic/consol_act/cpa2009188/s241.html">section 241(2)(b)</a>:<br />
<blockquote class="tr_bq">
(2) If<br />
...<br />
(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-<br />
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.</blockquote>
Note that the section itself describes the process as being that a judge <i>decides</i> that there is no case to answer.<br />
<br />
Despite this, the Court of Appeal held in <i>Singh </i>that this decision is not amenable to an interlocutory appeal, saying:<br />
<blockquote class="tr_bq">
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. </blockquote>
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. <br />
<br />
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 acquittalCaenhttp://www.blogger.com/profile/09430270444333226982noreply@blogger.com3tag:blogger.com,1999:blog-6277213944038535557.post-53345076852958487092012-06-22T06:54:00.002+10:002012-06-22T06:54:35.425+10:00Special leave watch: R v WilsonIn a decision quietly released on Tuesday, the High Court refused special leave in <em><a href="http://www.austlii.edu.au/au/cases/cth/HCASL/2012/82.html">Wilson</a></em>, the case which the Victorian DPP had tried to have heard concurrently with <em><a href="http://www.austlii.edu.au/au/cases/cth/HCA/2012/10.html">Getachew</a></em>.<br />
<br />
The Court stated:<br />
<ol>
<li style="margin-bottom: 0pt; margin-top: 0pt; text-indent: 0pt;" value="5">The factual circumstances of this matter differ from those considered in <i>Getachew</i>. In <i>Getachew</i>, 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". </li>
<li style="margin-bottom: 0pt; margin-top: 0pt; text-indent: 0pt;" value="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 <i>Getachew</i> about the proper construction and operation of s 37AA of the <i>Crimes Act</i>. 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. </li>
</ol>
<div style="margin-bottom: 0pt; margin-top: 0pt; text-indent: 0pt;">
The result is unsurprising, as the issue about the operation of s37AA and its interaction with s36 was resolved in <em>Getachew</em>. The most the Crown could really have hoped for would be a technical argument that some of those statements in <em>Getachew</em> were strictly <em>obiter</em>, 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.</div>Caenhttp://www.blogger.com/profile/09430270444333226982noreply@blogger.com4tag:blogger.com,1999:blog-6277213944038535557.post-78374357591007050942012-06-21T06:57:00.000+10:002012-06-21T06:57:13.353+10:00King: The High Court and dangerous drivingWhile a lot of attention was rightly paid yesterday to the significance of the High Court's <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2012/23.html">school chaplain funding case,</a> the court also released its <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2012/24.html">King</a> decision, which has a significant impact on Victorian culpable driving and dangerous driving causing death trials.<br />
The court rejected the Court of Appeal's 5-point test for dangerousness from <a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2009/255.html"><em>De Montero v R</em></a><em> </em>in favour of classic statements by Barwick CJ in <a href="http://www.austlii.edu.au/au/cases/cth/HCA/1966/22.html"><em>McBride.</em></a><em> </em>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:<br />
<blockquote class="tr_bq">
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.<em> 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.</em> 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.</blockquote>
The view of the majority was that the highlighted passage was not incorrect, but could have confused the jury:<br />
<blockquote class="tr_bq">
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. <br />
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 <i>Scarth </i>and <i>Callaghan</i>, 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<i> </i>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.<br />
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. </blockquote>
In contrast, the minority was of the view that the highlighted passage was erroneous.<br />
<br />
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 <em>De Montero</em> 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:<br />
<blockquote class="tr_bq">
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</blockquote>
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.<br />
<br />
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.<br />
<br />
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 <em><a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2002/158.html">De'Zilwa</a></em> 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 <em>De'Zilwa</em> so that trial judges are no longer required to give this criticised direction.<span id="goog_665900557"></span><a href="http://www.blogger.com/"></a><span id="goog_665900558"></span>Caenhttp://www.blogger.com/profile/09430270444333226982noreply@blogger.com4tag:blogger.com,1999:blog-6277213944038535557.post-84125661940343908422012-04-27T06:17:00.001+10:002012-04-27T06:17:28.474+10:00Victoria to get sentence enhancementsYesterday, 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.<br />
<br />
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:<br />
<ul>
<li>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?</li>
<li>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? </li>
<li>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?</li>
</ul>
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 (<a href="http://www.theage.com.au/victoria/laws-wont-deter-attacks-on-police-20120426-1xo1p.html">link</a>). 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 <em>Sentencing Act 1991 </em>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.Caenhttp://www.blogger.com/profile/09430270444333226982noreply@blogger.com0tag:blogger.com,1999:blog-6277213944038535557.post-42428137873904738892012-03-29T06:57:00.000+11:002012-03-29T06:57:38.903+11:00R v Getachew - The High Court brings a little clarity, and a little confusion<a href="http://www.austlii.edu.au/au/cases/cth/HCA/2012/10.html"><em>R v Getachew</em> [2012] HCA 10</a> 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 <em>Worsnop </em>but preserved the point of principle decided in <em>Getachew,</em> and allowed the appeal on the narrow <em>Pemble</em> ground. This approach has raised as many questions as it answers.<br />
<br />
<br />
<br />
<a name='more'></a><br />
The court emphasises early on the fundamental proposition that the exercise is one of statutory interpretation and that must start and end with the words of the statute. The court rejected the Court of Appeal's reliance on common law authorities to explain the meaning of the element "while aware that the complainant was not or might not be consenting". Section 38 does not codify the common law of rape, but sets out in statutory language the elements of the offence. <br />
<br />
The core to understanding the decision is at paragraphs [26] - [28].<br />
<br />
<br />
<ol><li style="margin-bottom: 0pt; margin-top: 0pt; text-indent: 0pt;" value="26">Reference to an accused holding the belief that the complainant was consenting invites close attention to what was the accused's state of mind. It was said in the Explanatory Memorandum accompanying the Bill for the 2007 Act that "belief in consent and awareness of the possibility of an absence of consent are not mutually exclusive". So much may be accepted if "belief in consent" is treated as encompassing a state of mind where the accused accepts that it is possible that the complainant might not be consenting. Whether such a state of mind is properly described as a "belief in consent" need not be explored. On the face of it, evidence of a state of mind that did <i>not </i>exclude the possibility that the complainant might not be consenting appears not to engage at all with, let alone negate, the central statutory requirement that the accused was aware that the complainant was not or might not be consenting. </li>
<li style="margin-bottom: 0pt; margin-top: 0pt; text-indent: 0pt;" value="27">For present purposes, it is enough to notice that, if an accused asserted, or gave evidence at trial, that he or she thought or "believed" the complainant was consenting, the prosecution may yet demonstrate to the requisite standard either that the accused was aware that the complainant might not be consenting or that the asserted belief was not held. It is to be recalled that, since the 2007 Act, the fault element of rape has been identified as the accused being aware that the complainant was not or might not be consenting or the accused not giving any thought to whether the complainant was not or might not be consenting. The reference to an accused's awareness that the complainant <i>might not be </i>consenting is, of course, important. An accused's belief that the complainant <i>may </i>have been consenting, even <i>probably was </i>consenting, is no answer to a charge of rape. It is no answer because each of those forms of belief demonstrates that the accused was aware that the complainant might not be consenting or, at least, did not turn his or her mind to whether the complainant might not be consenting. </li>
<li style="margin-bottom: 0pt; margin-top: 0pt; text-indent: 0pt;" value="28">One further and important observation must be made about s 37AA. Section 37AA(b)(i) dealt with the case of a proceeding in which the jury find that a circumstance specified in s 36 (such as the complainant being asleep) existed in relation to the complainant. Section 37AA required the judge to direct the jury to consider whether the accused's asserted belief that the complainant was consenting was reasonable having regard to "whether the accused was aware that that circumstance existed in relation to the complainant", "whether the accused took any steps to ascertain whether the complainant was consenting or might not be consenting, and if so, the nature of those steps" and "any other relevant matters". But neither s 37AA nor any other relevant provision of the Crimes Act required that an accused who asserted a belief in consent nonetheless <i>must </i>be taken to have been aware that the complainant was not or might not be consenting if the accused was aware that the relevant s 36 circumstance – here, the complainant being asleep – did exist or might exist. If evidence was led or an assertion was made that the accused <i>believed </i>that the complainant was consenting, demonstration that the accused knew that the complainant was or might be asleep did not require the conclusion that the accused was aware that the complainant was not or might not be consenting. In such a case, s 37AA required the judge to direct the jury to take account of the asserted belief of the accused in deciding whether the accused was aware that the complainant was not or might not be consenting.</li>
</ol><div style="margin-bottom: 0pt; margin-top: 0pt; text-indent: 0pt;">In this passage, the court dispenses with the fallacy that belief and awareness are synonymous, but preserves the bizarre proposition that a person can be aware that a s36 circumstance existed or might have existed and yet be acquitted on the basis of a lack of awareness of non-consent or possible non-consent. The silver lining is that the High Court also makes it clear that directions in accordance with s37AA can only be given where the precondition for the operation of the section is met, and that where that precondition is not met, the directions envisaged by the section must not be given. This leads the court to decide the appeal on the narrow, <em>Pemble</em>, ground. However, how they reach that conclusion will be a source of continued confusion. At paragraphs [34] - [35] they say:</div><ol><div style="margin-bottom: 0pt; margin-top: 0pt; text-indent: 0pt;">
<li style="margin-bottom: 0pt; margin-top: 0pt; text-indent: 0pt;" value="34">In the present case the complainant did not consent to the sexual act if, as she asserted, she was asleep when penetrated. Because there was no evidence led at trial and no assertion made that the accused believed that the complainant was consenting, demonstration beyond reasonable doubt (1) that the complainant was asleep at the time of penetration and (2) that the accused was aware that the complainant was then asleep or might then have been asleep would, without more, demonstrate in this case that the accused was aware that the complainant was not or might not be consenting to the sexual act. </li>
<li style="margin-bottom: 0pt; margin-top: 0pt; text-indent: 0pt;">Only if it had been asserted or evidence had been led at the trial that the accused believed that the complainant consented to the penetration would any further question about the accused's belief as to consent arise. For absent such an assertion or such evidence, demonstration that the accused knew that the complainant was or might be asleep necessarily demonstrated that he was aware that she might not be consenting. No other possibility was open. That is, absent an assertion or evidence that the accused believed that the complainant had in fact consented to the act of penetration, there was no other possibility – that the accused may have positively believed that the complainant <i>was </i>in fact consenting – open and raised for consideration by the evidence. The jury were not required to exclude a possibility of that kind before returning a verdict of guilt. </li>
</div></ol><div style="margin-bottom: 0pt; margin-top: 0pt; text-indent: 0pt;">The only way these passages can be reconciled with paragraphs [26] - [28] is to say, as the Court of Appeal did in <em>Neal</em>, that due to the language of s37AA, Parliament has stated that where evidence is led or an assertion made regarding a belief in consent, then awareness of a s36 circumstance is relevant but not determinative. In the absence of such evidence or assertion, the operation of logic, common sense and s36 mean that in other cases, proof of awareness of a s36 circumstance is sufficient to prove awareness of non-consent.</div><div style="margin-bottom: 0pt; margin-top: 0pt; text-indent: 0pt;"><br />
</div><div style="margin-bottom: 0pt; margin-top: 0pt; text-indent: 0pt;">This approach leaves the law in a unsatisfactory state. Trial judges and jurors are given no assistance here on how a belief in consent could co-exist with awareness of a s36 circumstance. The High Court also provides little or no guidance on the operation of the phrase "evidence is led or an assertion made". What is required to trigger s37AA? Is an argument from counsel sufficient? What if the argument is run that the primary defence is that the events never happened, but the defence assert that the Crown cannot prove awareness? And what if some weak evidence is led from the complainant that maybe, somehow, the defendant might have thought the complainant was consenting? Is that enough? Or does the High Court mean that s37AA is only triggered if the accused gives evidence of a belief, or counsel makes the assertion of belief on instructions? If that last approach is the correct one, then the ability of defence counsel to simultaneously run inconsistent defences is substantially reduced.</div><div style="margin-bottom: 0pt; margin-top: 0pt; text-indent: 0pt;"><br />
</div><div style="margin-bottom: 0pt; margin-top: 0pt; text-indent: 0pt;">While I had hoped that <em>Getachew</em> would simplify the law in this area and prevent the need for remedial legislation, it now seems that further legislation will be necessary to clarify this area of the law. And I fear that such new legislation will restart this process of uncertainty.</div>Caenhttp://www.blogger.com/profile/09430270444333226982noreply@blogger.com8tag:blogger.com,1999:blog-6277213944038535557.post-70778990524482235322012-02-09T18:59:00.001+11:002012-02-10T07:04:01.931+11:00Well that was unexpected - Bui v DPP (Cth) [2012] HCA 1The High Court is off to a confounding start to the year with its release of the decision today in <em>Bui v DPP (Cth)</em>. 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, <strike>70</strike> 79 and 80 of the <em>Judiciary Act 1903</em> 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.<br />
<br />
<a name='more'></a>In <em>Bui</em>, the appellant sought to argue that the language of <em>Crimes Act 1913</em> s16A operated to exclude the Victorian provisions overturning sentencing double jeopardy, as s16A requires judges to impose a sentence 'that is of a severity appropriate in all the circumstances of the offence' and to take into account the 'mental condition' of the offender. The argument ran that these general terms were apt to incorporate the common law principle that an appellate court must take into account the distress and anxiety caused by standing for sentence a second time, and that the Victorian provisions prohibiting this consideration were inconsistent with obligation. The court rejected this argument in a most unexpected manner.<br />
<blockquote class="tr_bq"><div style="margin-bottom: 0pt; margin-top: 0pt; text-indent: 0pt;">Section 16A applies of its own force to the sentencing of persons convicted of offences against Commonwealth laws. In <i>Johnson v The Queen</i> and in <i>Hili v The Queen</i> it was observed that, on its proper construction, s 16A accommodates the application of some common law principles of sentencing. The section has been held to accommodate principles of general deterrence, proportionality, and totality. It is able to accommodate some judicially-developed sentencing principles where such principles give relevant content to the statutory expression in s 16A(1) "of a severity appropriate in all the circumstances of the offence", as well as expressions such as "the need to ensure that the person is adequately punished for the offence", which appears in s 16A(2)(k).</div><div style="margin-bottom: 0pt; margin-top: 0pt; text-indent: 0pt;">Section 16A does not accommodate the "principle" which the appellant seeks to introduce. The appellant submitted that this principle was one of the "other matters" which "the court must take into account" in determining sentence and that it was a matter that operated as an automatic "discount" on the sentence that would otherwise be imposed. Application of an automatic discount would not be consistent with the requirement of s 16A(1) that a sentence be appropriate in its severity in all the circumstances of the case. And to read s 16A in the manner submitted by the appellant would be to gloss the text impermissibly by introducing a notion for which there is no textual foundation. It would go well beyond giving relevant content to any of the expressions found in the section.</div><div style="margin-bottom: 0pt; margin-top: 0pt; text-indent: 0pt;">Moreover, the terms of s 16A, in particular those of sub-s (2), are addressed to matters affecting sentencing which are to be applied by all courts exercising federal jurisdiction upon sentencing. Those terms draw no distinction between the matters to be taken into account by a sentencing court at first instance or by a court on appeal. It has nothing to say about particular matters which an appeal court alone may take into account when considering re-sentencing. No warrant is therefore provided for interpreting s 16A as encompassing concepts addressed only to an appellate court, such as notions derived from the rule against double jeopardy.</div></blockquote>And in case you missed just what the court meant, they reiterated it in the penultimate paragraph:<br />
<blockquote class="tr_bq">The "principle" of double jeopardy relied upon by the appellant is not accommodated by the sentencing provisions of s 16A. No question of picking up the Victorian provisions arises. There is no need to resort to the Victorian provisions because the judge-made rule does not apply in the context of s 16A.</blockquote><div style="margin-bottom: 0pt; margin-top: 0pt; text-indent: 0pt;">Wow. Rather than hold that Victorian law successfully ousted the judge made rule and was picked up for Commonwealth proceedings, the court went further and said that, as a matter of statutory construction, Commonwealth law does not (and hence never has) accommodate the judge-made rule. This means, on my brief search, that the following cases were all wrongly decided:</div><div style="margin-bottom: 0pt; margin-top: 0pt; text-indent: 0pt;"></div><ul><li>DPP (Cth) v D'Alessandro (2010) 26 VR 477</li>
<li>DPP (Cth) v Moroney [2009] VSC 584</li>
<li>DPP (Cth) v Hizhnikov [2008] VSCA 269</li>
<li>DPP (Cth) v Vestic [2008] VSCA 12</li>
<li>DPP (Cth) v Jackson [2000] VSCA 247</li>
</ul>There may well be others, but those were the ones I could quickly find, and they all involve decisions where the court declined to intervene, or adjusted its approach, due to the operation of the double jeopardy principle. That the point had not arisen previously is, I believe, a reflection of how well-embedded the double jeopardy principle is within Australian jurisprudence. It is not until there is a substantial change to the law, which an offender challenges, that the law is clarified to establish that the common assumption about the application of this principle is rejected. One thing this decision does exemplify (apart from the difficult of predicting the High Court) is the need to pay close attention to statutory language. This is a point courts, especially the High Court, has repeatedly made - Lawyers need to resist the temptation to assume that common law principles developed in one context apply in a different statutory context.Caenhttp://www.blogger.com/profile/09430270444333226982noreply@blogger.com4tag:blogger.com,1999:blog-6277213944038535557.post-24843656087542969932011-12-20T08:31:00.001+11:002011-12-20T08:31:40.214+11:00Using a house to killLegal historians and those with an interest in confiscation law are familiar with the <a href="http://en.wikipedia.org/wiki/Deodand">deodand</a> - The principle of forfeiting the instrument of a murder to the State. The modern successor to the deodand in Victoria is the definition of 'tainted property' in section 3(1) of the <em><a href="http://www.austlii.edu.au/au/legis/vic/consol_act/ca1997137/">Confiscation Act 1997</a></em>, which includes property that:<br />
<blockquote class="tr_bq">(a) was used, or was intended by the accused to be used in, or in connection with, the commission of the offence</blockquote>In one of the flurry of decisions from the Court of Appeal last week, the court considered when house in which a murder was committed would be caught under this definition.<br />
<br />
<a name='more'></a>In <a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2011/436.html"><em>Chalmers v R </em>[2011] VSCA 436</a>, the appellant brought an appeal against conviction, sentence and a forfeiture order following his conviction of murdering his wife in their family home. The conviction and sentence appeals were dismissed, though the forfeiture appeal succeeded in part. As part of the decision, the court needed to interpret the phrase 'used ... in connection with the commission of the offence' from section 3(1). The Court summarised the following principles that emerge from the authorities:<br />
<blockquote class="tr_bq">1. The word ‘used’ should be given its ordinary meaning of ‘employed, or made use of, for a particular end or purpose’. <br />
2. The statutory phrase is of wide scope. The inclusion of the words ‘in connection with’ was plainly intended to extend the scope of the definition of ‘tainted property’ beyond circumstances where the property could be said to have been ‘used in the commission of’ the offence. <br />
3. Whether there is a connection between the use of the property and the commission of the crime is a question of fact and degree. It is not necessary for it to be established that there was a ‘substantial’ connection, or that the crime could not have been committed without using the property <br />
4. The nature, extent and significance of the use of the property in connection with the commission of the crime will be matters which go to the Court’s discretion whether or not to order forfeiture of the property.</blockquote><div style="border-bottom: medium none; border-left: medium none; border-right: medium none; border-top: medium none;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjyxHdBsIwEVpgzvzEXBhUjzZtX2SDBCM58KAkiCglBUeKIu_hoe3czUNGFT71k0Z1lNWkMUe8Aq9GQZ7MIl9_JtMyH-UCrFccVcALk3DXzfCnFcRGAZIhOkIMAfpxLzt-taKC0PmIpkze9/s1600/house-falls-on-witch.jpg" imageanchor="1" style="clear: right; cssfloat: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="204" oda="true" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjyxHdBsIwEVpgzvzEXBhUjzZtX2SDBCM58KAkiCglBUeKIu_hoe3czUNGFT71k0Z1lNWkMUe8Aq9GQZ7MIl9_JtMyH-UCrFccVcALk3DXzfCnFcRGAZIhOkIMAfpxLzt-taKC0PmIpkze9/s320/house-falls-on-witch.jpg" width="320" /></a>The court then turned to consider the question of when a house can be 'used in connection with the commission of the offence'. This is not limited to the Wizard of Oz style usage of houses to kill the wicked witch of the east. Instead, as the court explains:</div><br />
<blockquote class="tr_bq">89 At one end of the spectrum are cases where the property is deployed in an instrumental sense to commit the offence. An obvious example is the weapon that is used to inflict an injury. Land can be used to cause death or injury, such as where a domestic pool is used to drown the victim. Another example is where a beam in a ceiling of a house is used to support a rope for the purpose of hanging the victim. A further example is where the victim is thrown off a second floor balcony. These are examples of cases where an attribute or feature of the property is actively used in the commission of the offence. <br />
90 At the other end of the spectrum are cases where the property is merely the passive location at which the offence is committed. An example is where a discussion takes place in the offender’s home which constitutes a conspiracy to commit an offence at another location. Another example is where, during dinner in the family home, a domestic dispute erupts spontaneously which leads to one person reaching across the table and assaulting another person. These are examples of cases where an offence is committed at the property (the home) but there is no relevant connection between the use of the property and the commission of the offence. </blockquote>In the circumstances of <em>Chalmer</em>, the court held that the house was merely the venue in which the crime was committed, but was not used in any instrumental sense, and so set aside the forfeiture order over the house. While the prospect is amusing, I don't think anyone will have success arguing that their house is just the passive venue in which hydroponic cannabis cultivation takes place, rather than being used in connection with the cultivation. If such an argument were successful, I expect we would see a rapid legislative response to close the 'loophole'.Caenhttp://www.blogger.com/profile/09430270444333226982noreply@blogger.com0tag:blogger.com,1999:blog-6277213944038535557.post-78457734794472727572011-12-19T22:28:00.000+11:002011-12-19T22:28:31.816+11:00The continued unhappy state of the law of consentThe High Court has listed the appeal hearing in R v Getachew for the <a href="http://www.hcourt.gov.au/assets/registry/business-lists/28-02-12BL.pdf">end of February</a> and the outline of submissions for both the DPP and the accused are now available on the <a href="http://www.hcourt.gov.au/cases/case-m139/2011">High Court website</a>. It looks like the DPP is using the occasion to take a shot at the earlier authority of Worsnop, as it argues that the Victorian Court of Appeal has misstated the law with its focus on belief in consent, rather than the statutory language of knew that the complainant was not or might not be consenting.<br />
<br />
Despite that development, the Court of Appeal is still handing down decisions dependent on the line of authority developed in Worsnop. The latest is <a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2011/437.html"><em>GBD v R </em>[2011] VSCA 437</a>, a decision which highlights the absurdity of the current state of the law in this area. In a strongly worded judgment, Harper JA said of the principal offender that he<br />
<blockquote class="tr_bq">abandoned any concept of decency he might otherwise have had. The appellant was some distance behind; but his conduct was nevertheless such that nobody with any sense of responsibility to others would have engaged in it. The conduct of both men was abhorrent to all notions of civilised behaviour.</blockquote>The principal offender plied two young girls of 13 and 14 with significant quantities of speed before engaging in extensive sexual conduct with them. GBD was a friend of the principal offender and was invited to join in this behaviour. The issues at trial concerned his belief in the age of the girls and his belief in consent. Ashley JA granted leave for the appellant to make a <em>Worsnop</em> argument, and the Crown, consistent with the state of the law as it stands under <em>Worsnop</em> initially conceded the point. At the leave hearing, Tom Gyorffy SC, fresh from writing the DPP's submissions to the High Court for <em>Getachew,</em> sought to withdraw that concession and argue that <em>Worsnop </em>was wrongly decided. Sadly, this point received only the following treatment:<br />
<br />
<blockquote class="tr_bq">After hearing argument, the Court refused the application.</blockquote>It is disappointing that such a significant issue is dismissed in such a summary fashion. <br />
<br />
On the substantive issue of whether to allow the appeal, Harper JA stated:<br />
<blockquote>Section 36 of the Crimes Act 1958 provides that, for the purposes of those subdivisions of the Act which deal with rape and indecent assault, incest, sexual offences against children and sexual offences against persons with a cognitive impairment, consent means free agreement. Furthermore, the section goes on to provide that circumstances in which a person does not freely agree to an act include those in which the person is so affected by drugs as to be incapable of freely agreeing. Emphasis is given to the importance of these provisions by s 37A, which sets out the objects of the relevant subdivisions. These are (a) to uphold the fundamental right of every person to make decisions about his or her sexual behaviour, and to chose not to engage in sexual activity; and (b) to protect children, and those with cognitive impairments, from sexual exploitation. <br />
26 Those objectives were trashed on 13 December 2008. That is strong language, but it is used deliberately. To groom two girls, a mere 14 and 13 years of age respectively, with alcohol and drugs, to then take them to a private home and, in the laundry of that house, inject them with more drugs, and then to indulge with them in a wide variety of sexual acts over an extended period, is exploitation of the worst kind. It is no excuse that they were thought to be a little older. They were strangers. The law should strongly discourage any adult in those circumstances from taking risks. <br />
27 Y has been punished for his part in this affair. The gravity of the appellant’s misconduct was considerably less. On the other hand, the appellant knew something of the episode in the laundry, and either knew of the general nature of the activities being indulged in by Y, or deliberately shut his eyes to them. There being no evidence to the contrary, it was open to her Honour to find for sentencing purposes – indeed, the conclusion was inevitable – that he knew that the drugs were administered to the complainants for the purpose of inducing their consent to whatever acts, however gross, he and (more especially) his co-offender, were minded to subject them. <br />
28 It was in these circumstances that he, on his own admission, digitally penetrated the vagina of one of the two victims. The jury might well have concluded that she did not give her free consent. Anyone with a normal capacity for insight would have known for a certainty that this was so. Even assuming that the appellant was not endowed with the usual capacities of humankind, and believed that she was consenting, he must have known that she might not be giving her free consent to that act; that was the point of what must have been significant expenditure on the acquisition of speed, and of her subsequently being injected, by the appellant’s friend and to the appellant’s knowledge, with methylamphetamine. Nevertheless, on the authority of Worsnop, the law cannot, so long as the Crown fails to prove the absence of his belief in her consent, convict him. Accordingly, the appeal must on this ground be allowed and the conviction on count 19 must be quashed. But, in my opinion, the gap in the law which was identified in Worsnop cries out for the remedial intervention of the legislature.</blockquote>As far as I am concerned, paragraph 28 perfectly demonstrates how appellate authority in this area has gone wrong. Despite <a href="http://www.austlii.edu.au/au/legis/vic/consol_act/ca195882/s36.html">section 36</a><a href="http://www.austlii.edu.au/au/legis/vic/consol_act/ca195882/s38.html">section 38,</a> introduces an unjustified limitation on the efficacy of the definition of consent in section 36 and effectively introduces a fifth element of disproof of belief in consent which is not found anywhere in the language of the offence, and is barely discernible in the language of <a href="http://www.austlii.edu.au/au/legis/vic/consol_act/ca195882/s37aa.html">section 37AA</a>. As Harper JA says, this is a matter that cries out for intervention. Time will tell whether the respite from this unsatisfactory state of the law comes from the High Court or the Victorian Parliament.Caenhttp://www.blogger.com/profile/09430270444333226982noreply@blogger.com1tag:blogger.com,1999:blog-6277213944038535557.post-71115849468050877202011-11-16T08:09:00.000+11:002011-11-16T08:09:50.572+11:00Court formalises the meaning of 'no point of principle'The Court of Appeal has now formalised the status of the 'no point of principle' (NPP) catchword. Practice Note 8 of 2011 states:<br />
<span style="font-size: small;"><blockquote class="tr_bq"><div align="justify"><span style="font-size: small;">The criminal appeal reforms currently being implemented by the Court of Appeal are designed to promote the efficient disposition of criminal appeals and to maximise the effective utilisation of judicial resources. To further these objectives, the Court wishes to discourage unnecessary citation of prior decisions of the Court. </span></div></blockquote><blockquote class="tr_bq">The following practice will be adopted with effect immediately. When a bench of the Court considers that its reasons for judgment in a criminal appeal contain no new point of principle, the catchwords on the cover sheet will include the words ‘No point of principle’. </blockquote><blockquote class="tr_bq">A judgment thus classified may not be cited in a subsequent appeal without the leave of the bench hearing that appeal. </blockquote>This practice note formalises the point the Court of Appeal has been making for most of this year, that there are some decisions which are just not that important and so practitioners shouldn't need to trawl through countless cases for rare statements of principle. It will be important to see how the profession reacts to this practice note. Will it be thought that a diligent and professional solicitor or barrister can simply ignore any case marked NPP and still fulfilling their obligation to stay up to date in the law? Will counsel appearing on a sentencing plea refer to cases marked NPP when attempting to ascertain current sentencing practices and thread the needle between the court's denunciation of raw sentencing statistics and the court's denunciation of direct case comparisons? And what process will the Court of Appeal apply when deciding whether a case raises no point of principle? As I've written previously, there have been at least two occasions where a case marked NPP or "without precedent" appears to develop the established law.<br />
<br />
Despite these concerns, the practice note does constitute an important step in stemming the tide that threatens to overwhelm both the court and the profession, and it is to be hoped that it will be effective in that goal.</span>Caenhttp://www.blogger.com/profile/09430270444333226982noreply@blogger.com1tag:blogger.com,1999:blog-6277213944038535557.post-81635903382196544722011-10-27T08:22:00.000+11:002011-10-27T08:22:52.953+11:00Don't mention the elephantBack in <a href="http://www.austlii.edu.au/au/cases/cth/HCA/1991/38.html">1991</a>, the High Court stated that:<br />
<blockquote class="tr_bq">in examining the evidence of a witness in a criminal trial – including the evidence of the accused – the jury is entitled to consider whether some particular interest or purpose of the witness will be served or promoted in giving evidence in the proceedings. But to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person.</blockquote>These two sentences seem to set down a proposition that while the jury are entitled to consider whether some interest of the accused would be served by giving the evidence he has (such as, you know, securing an acquittal), it is an error of law for the judge to tell the jury that. Yesterday, the High Court reiterated that prohibition.<br />
<br />
<a name='more'></a><br />
In <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2011/44.html"><em>Hargraves & Stoten v R </em>[2011] HCA 44</a>, the majority (Heydon J delivered a separate judgment) held that:<br />
<blockquote class="tr_bq">Inviting a jury to test the evidence given by an accused according to the interest that the accused has in the outcome of the trial, or suggesting that the accused's evidence should be scrutinised more carefully than the evidence of other witnesses, deflects the jury from recognising and applying the requisite onus and standard of proof. It is for the prosecution to prove its case, not for the accused to establish any contrary proposition. The instructions which a trial judge gives to a jury must not, whether by way of legal direction or judicial comment on the facts, deflect the jury from its fundamental task of deciding whether the prosecution has proved the elements of the charged offence beyond reasonable doubt.</blockquote><br />
The Court explained that the 1991 decision, <em>Robinson</em>, did not so much lay down a new rule, but manifested a particular application of a general principle that the judge's directions must not undermine the onus and standard of proof or divert the jury from its task. That said, the court dismissed the appeal on the basis that the particular directions given in this case did not contravene that prohibition. Instead, the court held that the judge's directions that a witness' interest was one matter the jury could consider when assessing the evidence would have been seen to relate to a particular witness, which the defence argued was giving evidence to further some particular interest. <br />
<br />
Heydon J, in a separate judgment concurring in the result, held that given the decision that the judge's directions did not contravene the principle from <em>Robinson</em>, it was not a suitable case for re-examining that principle, and (consistent with his statements in the course of argument), continued to express doubt about the basis for the <em>Robinson</em> principle.<br />
<br />
As <a href="http://www.summarycrime.com/2011/10/law-of-unintended-consequences.html">Dr Manhatten</a> recently pointed out, a defence argument of 'Well, he would say that, wouldn't he" in relation to a prosecution witness has a chance of rebounding on the defendant. It seems to me to be an unsatisfactory state of the law when the court maintains that such a reasoning process is valid even in relation to an accused's evidence, but must not be mentioned for fear that it would divert the jury. <br />
<br />
The problem with the reasoning process is that it doesn't lead you to any useful conclusion. Whether innocent or guilty, of course an accused is likely to seek to minimise his involvement in the offending. The problem is that this doesn't help you decide which motivation is operating. This issue also has overtones of the historical reasons for denying the accused the right to give evidence in his own trial - that the evidence would have no probative value because of course the accused is going to give an exculpatory account. The suggested solution, which is what the trial judge in <em>Robinson</em> had adopted, and was found to be in error for doing, was to say that the evidence needed to be subjected to special scrutiny. So that the argument ceases to be an analytic tool for determining where the truth lies, but a basis for being cautious because of the obvious possibility that the evidence is from a guilty accused trying to secure an unjust acquittal. <br />
<br />
Fortunately, the notion that accused who is in fact guilty is giving false evidence to secure an acquittal is so obvious that there is another good reason to prohibit the direction. That is, it insults the intelligence of the jury to tell them something so obvious. This avoids the contorted logic involved in saying that the direction diverts the jury from its proper task, but the judge is entitled to use the same reasoning of its own motion. A rule that is effectively "don't mention the elephant / war". Unfortunately, I don't think I'll see "so obvious it would insult the jury to mention it" adopted as the basis for prohibiting jury instructions any time soon.Caenhttp://www.blogger.com/profile/09430270444333226982noreply@blogger.com1tag:blogger.com,1999:blog-6277213944038535557.post-16235763742261189192011-10-21T07:53:00.000+11:002011-10-21T07:53:32.677+11:00The safety of taxis and the media beat-upThe Director of Public Transport has recently had his latest loss in the long-running battle to stop the anonymised XFJ from obtaining a taxi licence. The <a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2011/302.html">Court of Appeal</a> handed down its decision last week and, like the two previous decisions, found that the Director could not use concerns over public confidence as a basis for refusing a taxi licence to a person who, 18 years ago, was found not guilty of murder due to insanity. The Court of Appeal has included a good summary of the history of the matter and its decision at the start of its judgment, which substantially reduces what I need to say about the case. My interest, instead, is on the media reaction to the decision.<br />
<br />
<a name='more'></a>The decision makes it clear (and the media reporting on the case generally overlooks) that according to standards of technical competence and passenger safety, XFJ is a safe person to drive a taxi. This decision is not based on some lingering doubts about the possibility of XFJ having another mental breakdown, or the risk of recidivism of murderers (which, as the <a href="http://www.aic.gov.au/en/publications/current%20series/tandi/1-20/tandi03/view%20paper.aspx">AIC has noted</a>, is among of the lowest of all offences). As Maxwell P notes in his conclusion at [71]-[73]:<br />
<blockquote>71 Much of the reporting which surrounded the Tribunal’s decision, and Ross J’s dismissal of the Director’s appeal, carried headlines of the ‘Killer allowed to drive taxis’ and ‘Wife-killer cabbie’ variety. Misleading publicity of that kind is not conducive to public confidence in the industry. <br />
72 It is to be hoped that the Director will now be able to inform the public that the decision to accredit XFJ is perfectly consistent with the Act. As both the Director and the Tribunal found, he is technically competent, and in good health, and he is capable of meeting reasonable community expectations by complying with the standards of service specified in the public care objective. <br />
73 There is no other matter which renders him unsuitable. The killing of his wife occurred long ago, and was attributable to a mental illness which is not expected to recur. XFJ has been symptom-free for more than 15 years. Finally, and most importantly, <em>there is no risk to passenger safety in any taxi which he drives, <u>as the Director himself decided more than three years ago</u>. (emphasis added)</em></blockquote>Harper JA also weighs in on the media beat-up angle at [83]:<br />
<blockquote>It may be that perceptions of community expectations about, and the need to maintain community confidence in, the taxi driver accreditation system, will be coloured by fear generated by media headlines. Headlines designed to attract the public’s interest rather than the public benefit might reasonably be expected to follow the success of the respondent’s application. Such headlines, if they occur, will improperly play upon the fear of mental illness and its consequences. But a decision maker’s apprehension of misleading headlines should never stand in the way of decisions otherwise properly reached.</blockquote>Predictably, the <span style="background-color: yellow;">Herald</span> Sun in the days following the decision continued with the "killer cabbie" line. See, for example, <a href="http://www.heraldsun.com.au/news/more-news/outcry-over-killer-cabbies-reprieve/story-fn7x8me2-1226164408510">here</a> and <a href="http://www.heraldsun.com.au/news/more-news/huge-bill-in-bid-to-stop-killer-cabbie/story-fn7x8me2-1226167100215">here</a>. More disappointingly, ABC's <a href="http://www.abc.net.au/rn/lawreport/stories/2011/3341465.htm#transcript">Law Report</a> contained an interview with Paul Mees, a senior lecturer in transport planning at RMIT. He makes the argument that:<br />
<blockquote><strong>Damien Carrick:</strong> But Paul Mees, I understand that the medical evidence is pretty clear that this guy does not present a risk to the community if he drives taxis. Shouldn't that be enough? <br />
<strong>Paul Mees:</strong> Well, I haven't, of course, seen the medical evidence. I've only read the court's characterisation of it, and if their characterisation of the Act is any guide then it sounds as if they treated it as being very emphatic. But, I'm not a psychiatrist, but I think that when psychiatrists are being straight with you they will admit that they're not infallible in being able to predict people's behaviour, and I don't think any qualifications of that kind have come through in the judgment. Although I note that the mental impairment was depression. Depression is not something like the measles, where once you get it you're kind of cured of it and immune to it for the rest of your life, so I don't know that it's quite right to say that there is no conceivable basis on which any member of the public would be entitled to feel concerned or less confident about a taxi driving system which felt that an acquittal on the grounds of mental impairment for murder was a completely irrelevant consideration. <br />
<strong>Damien Carrick: </strong>Yes, I guess, though, that all we can do as a society is look at what the evidence tells us. And if we have pretty reputable, highly reputable I understand, psychiatrists saying, 'The risk is not there,' and you have the authorities accepting that the risk is not there...<br />
<strong>Paul Mees:</strong> I don't think any psychiatrist can say that. All they can tell you is that the risk is small. But I think that's why we have statutory one strike and you're out provisions in all manner of areas, including, in fact, in this very legislation. And I think a provision that would've applied to this case if it had been drafted more correctly, so I'm not completely convinced that a psychiatrist can in fact give us complete confidence. Now, I should say, if we were talking about a parole board hearing or something like that, where we're talking about the individual's civil liberties, I think we err on the side of the individual's liberties, but a taxi driving licence is a privilege, not a fundamental human right</blockquote>Now, I must say that Damian CarrickXFJ's lawyer who put his case well. My frustration was that the format did not readily allow Paul Mees' argument to be rebutted, as it is essentially an argument that public confidence in the transport system requires a test of absolute certainty and that <u>any</u> risk of recurrence (and possibly even a misguided perception of a risk of recurrence) is enough to put public safety at risk and so should disqualify the applicant. There are a few problems with this argument. One, it doesn't engage with the evidence in this case. The best medical evidence, and the Director of Public Transport's own views, were that XFJ <strong>does not</strong> pose a risk to the public. That point needs to be made abundantly clear - This was a case where everyone concerned, including the Director of Public Transport, accepted that XFJ was safe. The only issue was whether he was a suitable person, due to the risk of public perceptions if he was granted a licence. Two, it creates an unrealistic standard. If you accept the argument that psychiatrists cannot say 100% that serious mental illness will never recur, you would also have to accept that psychiatrists cannot say 100% for <u>anyone</u> that serious mental illness will never <u>occur</u>, and on that sort of test, no one is fit to drive a taxi because who knows, something might happen. Three, it is an argument that stigmatises mental illness. If XFJ had, 18 years ago, been acquitted of culpable driving after killing his wife due to experiencing a seizure while driving, would we be having the same debate? If the evidence established that, now that he was properly medicated, a seizure was very unlikely to reoccur, would we say that a person who was not guilty of killing his wife due to a medical condition 18 years ago that is now properly treated is not a suitable person to drive a taxi? What if he killed his wife while sleepwalking and was acquitted on the basis of automatism? A lot of the anxiety about XFJ's case seems to arise from fear of mental illness and the community is not well served when that fear is uncritically reflected and amplified in media outlets. <br />
<br />
This case shows a surprisingly awareness of the public perceptions angle to the case and engages with those issues. Sadly, that awareness and engagement does not protect against inflammatory reporting. But it does give those of us who wish to defend the decision ready references to point to that indicate the court didn't overlook the issue, it just refused to be swayed by prejudice. And, as <a href="http://www.theage.com.au/victoria/cabbie-given-permission-to-drive-after-killing-20111011-1li93.html">The Age</a> showed in its reporting, it makes for a powerful statement, when you take the time to consider what the case is actually about, to say that this wasn't a case about public safety. It was just about perceptions and whether those perceptions should influence the Director of Public Transport's decision.Caenhttp://www.blogger.com/profile/09430270444333226982noreply@blogger.com0tag:blogger.com,1999:blog-6277213944038535557.post-33629058018510720322011-10-20T08:11:00.000+11:002011-10-20T08:11:02.965+11:00Lessons from non-precedential appealsI've blogged previously about the Court of Appeal's innovative use of catchwords to declare that a case raises no point of principle (see <a href="http://caenscorner.blogspot.com/2010/10/appeals-without-precedent.html">here</a> and <a href="http://caenscorner.blogspot.com/2010/11/corporate-identity-statutory.html">here</a>). Recently, Ashley and Weinberg JJA released another batch of decisions with the "no point of principle" catchword. One of them, however, arguably does raise a (minor) point of principle and so raises the question of how later courts should treat it. In <a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2011/314.html"><em>Harper v R </em>[2011] VSCA 314</a>, the offender was a Thai national who attempted to smuggle over 100g of heroin into Australia, concealed in body cavities. During the sentencing remarks, the judge stated:<br />
<blockquote><blockquote><a href="" name="Heading96"></a><a href="" name="Heading97"></a>By resorting to internal concealment of the drugs, you made detection of the offence even more difficult. This is an aggravating feature of your crime. </blockquote></blockquote>Although there was no ground of specific error, Ashley JA at [22] took the time to comment that:<br />
<blockquote>Counsel for the Crown did not submit today that this was a correct statement of principle. In my opinion, it was not. It is at the heart of the particular offence that detection of the drugs will be made as difficult as possible. So to say does not mean that what I regard as a manifestly excessive sentence is to be explained by the judge’s particular observation. Rather, I take the opportunity to indicate my opinion that the observation was unsound.</blockquote>Bearing in mind what the Court said in <a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2010/313.html"><em>Ciantar & Rose</em></a><em>, </em>should judges give any weight to this statement, or should they treat it as wholly irrelevant? Is there a difference between a case that raises "no point of principle" and one that is "without precedent value"? Indeed, if there is a later case where a judge again treats the manner of concealment as an aggravating factor for importation, would the court reprimand counsel for referring to <em>Harper</em> in an argument that this constituted specific error? These are a couple of questions that are thrown up when, despite declaring that a case raises no point of principle, the court makes statements on important general issues, such as whether or not something is an aggravating factor.Caenhttp://www.blogger.com/profile/09430270444333226982noreply@blogger.com0tag:blogger.com,1999:blog-6277213944038535557.post-16174533393613230352011-10-06T08:34:00.000+11:002011-10-06T08:34:16.424+11:00Baseline sentencing and the High Court's implacable opposition to two-stage sentencingThe Sentencing Advisory Council currently has a reference from the Attorney-General regarding <a href="http://sentencingcouncil.vic.gov.au/page/our-work/projects/baseline-sentences">baseline sentences</a>. The parameters of the government's idea of baseline sentences are spelt out in 5 bullet points:<br />
<blockquote><br />
<li>Baseline sentences will apply for serious offences as defined in the <em>Sentencing Act 1991</em> and for additional offences such as arson, recklessly causing serious injury, aggravated burglary and major drug trafficking. </li><br />
<li>Baseline sentences will provide the starting point for the court in determining the minimum sentence (i.e., non-parole period) to be imposed in cases where a baseline sentence applies, and will indicate the sentence that the parliament expects will be the median or mid-point of minimum sentences imposed for cases involving that offence. </li><br />
<li>In determining the non-parole period to be served by the offender, the court will be required to start from the baseline minimum sentence before applying aggravating or mitigating factors that would alter the non-parole period up or down from the baseline. </li><br />
<li>Where a baseline sentence applies, the appropriateness of a non-parole period is to be assessed on appeal primarily by reference to the applicable baseline sentence, rather than by reference to current sentencing practice. </li><br />
<li>The baseline sentencing regime is to operate so that, over time, the Court of Appeal will be able to determine whether or not the median levels of minimum sentences being handed down are in fact aligned with the baseline sentences specified by parliament and, if not, to require changes accordingly in sentencing practices. </li><br />
</blockquote>Following yesterday's High Court decision in <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2011/39.html"><em>Muldrock v R </em>[2011] HCA 39</a>, one model the council presumably won't be looking to emulate is the New South Wales approach to standard non-parole periods. <br />
<a name='more'></a>The relevant parts of that regime are section 54A(2):<br />
<blockquote>For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division.</blockquote>And 54B(2):<br />
<blockquote>When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.</blockquote>There are also various procedural provisions that require the court to state its reasons for departing from the standard non-parole period and limit the factors the court may consider when deciding to do so (though in practice, the limitation seems largely ineffective, since it incorporates the entirety of the common law principles of sentencing).<br />
<br />
Under the previous NSW approach to those provisions, a court was required to ask itself:<br />
<blockquote>Are there reasons for not imposing the standard non-parole period?</blockquote>The High Court, seemingly at the urging of the DPP, has now held that is wrong: <em>Muldrock</em> at [25]. The High Court instead held that the standard non-parole periods must be considered solely by reference to the objective circumstances of the offence and do not take into account aggravating or mitigating factors personal to the offender. But when determining the appropriate sentence, the court stated at [28] that:<br />
<blockquote><div style="margin-bottom: 0pt; margin-top: 0pt; text-indent: 0pt;">Nothing in the amendments introduced by the Amending Act requires or permits the court to engage in a two-stage approach to the sentencing of offenders for Div 1A offences, commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period. </div></blockquote>Standard non-parole periods then form another yardstick which, like the maximum penalty, serve to guide the sentencing judge's decision making process, but do not allow the court to use the standard period as a 'starting point' which the court adds to or subtracts from.<br />
<br />
This decision will surely be influential in the design of Victoria's baseline sentencing scheme. If the Attorney-General intends to press ahead with the scheme he has previously outlined, then he will need some form of legislative language that makes the baseline sentence the starting point. Given that <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2011/170.html?stem=0&synonyms=0&query="two%20stage"">Victorian judges</a> have strongly adopted the <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2005/25.html">High Court's preference</a> for the intuitive synthesis model of sentencing, and <a href="http://www.austlii.edu.au/au/cases/vic/VSC/2008/270.html">staunch opposition</a> to anything that resembles two-stage sentencing, this process will likely attract opposition from the very people who are expected to implement it. The clearest of clear language will be required to ensure it works as the Attorney-General has envisioned, and does not turn into one more factor to take into the sentencing matrix.Caenhttp://www.blogger.com/profile/09430270444333226982noreply@blogger.com1tag:blogger.com,1999:blog-6277213944038535557.post-26597398797680593152011-10-05T08:18:00.000+11:002011-10-05T08:18:20.347+11:00Special leave report: R v GetachewAs Jeremy Gans mentioned in the comments to the <a href="http://caenscorner.blogspot.com/2011/09/new-proviso-just-like-old-one.html">previous post</a>, the High Court has granted special leave to appeal <em><a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2011/164.html">Getachew v R</a></em>. The transcript is available <a href="http://www.austlii.edu.au/au/other/HCATrans/2011/275.html">here</a>. It is fascinating reading, starting with this exchange immediately after counsel make their appearances:<br />
<blockquote>HEYDON J: Mr Boyce, I think it might be convenient if we hear from you first.<br />
MR BOYCE: Thank you. Your Honours, it is submitted in this case that special leave should be refused because the applicant’s grounds have no point of principle worthy of a grant of special leave.<br />
HEYDON J: I agree with that, but it does seem an extraordinary judgment by the Court of Appeal.</blockquote>Chris Boyce did his best to defend the decision, stating that it was a natural extension of the principle from <em>R v Worsnop</em> and consistent with authority in Victoria, but Heydon and Bell JJ weren't convinced. Bell J also made some remarks that could cast doubt on the reasoning that underlie <em>Worsnop</em>, as she questioned whether an odd-on belief that a person is awake and hence consenting could rebut a mens rea of "aware that the person is not consenting or <em>might not </em>be consenting" (emphasis added). She did, however, qualify her remarks and indicated that they were not concerned with the correctness of <em>Worsnop</em>. Ultimately, the High Court granted special leave for the DPP to appeal the decision, without calling on the DPP to make any submissions.<br />
<br />
It looks like the Crown will be running two grounds on the appeal. The first concerned the need for s37AA and s37AAA directions at all in the circumstances, when the accused's defence is that he wasn't there, and hence consent or awareness of consent were not real issues. This invites the court to further explain <em>Pemble</em> and the opening words to s37AAA on when the direction is necessary. The second argument is that the judge's original direction was entirely correct. I've written about my views on the second point previously, <a href="http://caenscorner.blogspot.com/2011/06/when-possibility-of-consent-is-or-is.html">here</a>.<br />
<br />
In the circumstances, I'd think that the Court of Appeal would need to hold any further appeals that raise this issue in reserve until the High Court hands down its judgment, as otherwise there could be a long string of cases ordering retrials in circumstances where the High Court later decides that the reasoning underlying the decisions is erroneous. More difficult is to know what happens to <em><a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2011/162.html">Roberts</a></em> and <em><a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2011/172.html">Neal</a></em>, since they relate to the same point, but weren't the subject of the special leave application. The retrial in <em>Neal </em>can probably stand on its own feet, but <em>Roberts</em> is far more similar to <em>Getachew</em> and, if <em>Getachew</em> is overturned, that should logically take the retrial order in <em>Roberts </em>with it<em>.</em> Maybe the Crown will seek the join the matters later in some way?Caenhttp://www.blogger.com/profile/09430270444333226982noreply@blogger.com4tag:blogger.com,1999:blog-6277213944038535557.post-63769079044306317922011-09-29T08:10:00.000+10:002011-09-29T08:10:17.439+10:00The new proviso - Just like the old oneOne of the reforms introduced by the <em>Criminal Procedure Act 2009</em> was a change to the structure of what had previously been standard form criminal appeal grounds. The old statute required an appellant on a conviction appeal to establish one of three things:<br />
<ul><li>That the verdict was unreasonable or unsupported by evidence;</li>
<li>That there was a wrong decision on a question of law; or</li>
<li>That on any other basis there was a miscarriage of justice.</li>
</ul>These three grounds were then qualified by the proviso that the appeal would not be allowed if the prosecution showed that there was no substantial miscarriage of justice. Under the new Act, the proviso was folded into the substantive appeal grounds, so that the court must allow the appeal if and only if:<br />
<blockquote>(a) the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or <br />
(b) as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or <br />
(c) for any other reason there has been a substantial miscarriage of justice. </blockquote><br />
<a name='more'></a>At the time this reform was introduced, there was uncertainty about how the changed appeal grounds would operate. <a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2011/285.html"><em>Sibanda v R </em>[2011] VSCA 285</a> has now confirmed that the change did not affect the law's previous understanding of what the 'substantial miscarriage of justice' test meant. That is, in accordance with <em>Weiss</em>, the court must make its own independent assessment of the evidence and decide whether, having due regard for the limitations of proceeding on the record, it was proven beyond reasonable doubt that the accused was guilty. In <em>Sibanda</em>, Sifris AJA, with Nettle JA specifically concurring on this point, held: <br />
<blockquote>64 It was submitted by the applicant that the use of the words ‘substantial miscarriage’ in sub-ss 1(b) and (c), and the absence of those words in sub-s 1(a), indicates that a different test is imposed by sub-ss 1(b) and (c). The applicant submitted that unlike sub-s 1(a), where the test or task of an appellate court is set out in Weiss at paragraph 41, the test should depart from that stated in Weiss and be one of materiality, in the sense of an error or irregularity depriving the applicant or appellant of a fair or real chance at acquittal. <br />
65 I reject the submission. The effect of the amendment was to reverse the onus and simplify the appeal grounds. There is nothing in the language, context or structure of the section or in the explanatory memorandum to indicate that a different test is to be applied. A change in the onus and simplification of the appeal grounds does not indicate any substantive change to the test or the approach to be taken by the appellate court. For the reasons given, the applicant has not discharged the onus.</blockquote>At first glance, this makes a lot of sense, as there is nothing to indicate that Parliament intended to move away from the <em>Weiss </em>test. However, given the focus on the <em>Weiss </em>approach of showing whether the court is <em>satisfied</em> in the guilt of the accused, a shift in the onus of proof has significant practical implications. Obviously, the accused cannot be required to show that his or her guilt was proven beyond reasonable doubt, because that makes no sense. Is the accused required to show that the court cannot be satisfied of his guilt beyond reasonable doubt? If so, the difference between that test and the test for a verdict being unreasonable is narrowed substantially. It also means that, applied strictly, any specific error in the trial is potentially relevant only in two ways. Either it demonstrates a fundamental irregularity in the <em>Wilde</em> sense, or it becomes a factor that means the court must place less weight on the jury's verdict as a consideration in determining how to approach matters of credit and the like. I expect that while <em>Sibanda</em> is the first substantive word on this subject, it isn't the last.<br />
<br />
Sadly, despite the extensive analysis the court engaged in in <em>Sibanda</em> on the application the proviso, another bench dealing with a similar issue two days later in <a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2011/293.html"><em>LA v R </em>[2011] VSCA 293</a> managed to pass over the issue and, if the headnote is correct, mess up the transitional provisions of the <em>Criminal Procedure Act</em> and so apply the old test. In <em>LA</em>, the date of sentence was 30 March 2010. According to clause 10 of Schedule 4 of the <em>Criminal Procedure Act</em>, the appeal provisions of that Act apply when a person is <u>sentenced</u> on or after the commencement date of the Act, which was 1 January 2010, almost 3 months before <em>LA</em> was sentenced. So, despite both cases involving a clear conflict of evidence of the complainant and accused, both cases really boiling down to whether the complainant consented (erroneous belief in consent in the circumstances outlined by the complainant being unlikely), the court in <em>LA </em>dismissed the issue of the proviso with minimal analysis while using the wrong Act. This is the sort of error that one expects that, if t had been committed by an inferior court, would lead to a successful appeal. Responsibility for this lies as much with the Crown as with the court, which appears to have failed to emphasise the new test (and may ever have referred to the wrong provisions!) and failed to analyse the trends in the cases since <em>Worsnop</em> on how a misdirection on the fourth element of rape should influence the application of the proviso and extrapolate on how that influences the new appeal grounds.<br />
<br />
In concluding, it is interesting to note Neave JA's observation in <em>Sibanda:</em> <br />
<blockquote>the decision in Worsnop v The Queen and the cases following it, demonstrate the need for legislative change to clarify and simplify the required mens rea for rape. The current provisions have failed to implement the recommendations made by the Victorian Law Reform Commission, which were intended to ensure that a person who sexually penetrates another person, whilst being aware that the latter is not or might not be consenting to penetration, is guilty of rape. </blockquote>Given that Neave JA was chair of the VLRC when it made those recommendations, she is likely frustrated with how the law has developed in this area and how ineffective the legislative provisions have been. One hopes for a legislative solution, though with it now being over a year since <em>Worsnop</em>, that seems increasingly less likely.Caenhttp://www.blogger.com/profile/09430270444333226982noreply@blogger.com2tag:blogger.com,1999:blog-6277213944038535557.post-60147296348033341032011-09-11T20:53:00.002+10:002011-09-11T20:54:41.396+10:00Special leave update - September 2011Before wading through the 273 pages of <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2011/34.html">Momcilovic,</a> it's worth having a brief look at the latest additions to the High Court's workload. Back on the 2nd of September, the High Court granted special leave in four criminal cases - 3 from Victoria and 1 from New South Wales. <br />
<br />
<br />
<a name='more'></a><strong><a href="http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2010/272.html">Aytugrul v R [2010] NSWCCA 272</a> </strong><br />
This case concerns the ways in which a witness can permissibly express DNA evidence. Traditionally, once you get past the threshold of whether or not the accused <em>could</em> be responsible for a particular piece of forensic material, experts will express a view, based on statistics about population genetics, of the likelihood that a random member of the population unrelated to the accused would have the same profile. Because of the rarity of any given profile, these statements quickly move into the millions or billions to one. In Aytugrul, the New South Wales Court of Criminal Appeal considered whether, even though the following propositions are all mathematically and logically equivalent, it was permissible to express statistical information about DNA evidence in all of the following forms:<br />
<blockquote>1. 1 in 1000 people would be expected to have the DNA profile found in the hair specimen.<br />
2. 999 out of 1000 people would not be expected to have the DNA profile found in the hair specimen <br />
3. 0.1% of people would be expected to have the DNA profile found in the hair specimen.<br />
4. 99.9% of people in Australia would not be expected to have the DNA profile found in the hair specimen.<br />
5. 21,000 people in Australia would be expected to have the DNA profile found in the hair specimen.<br />
6. 20,979,000 people in Australia would not be expected to have the DNA profile found in the hair specimen.</blockquote>McClelland CJ at CL (dissenting) held that formulation 4 was impermissible, due to the potential subliminal impact on jurors. In contrast, Simpson and Fullerton JJ held that provided the statements are all logically equivalent, experts can express the statistical information in any of the 6 forms. The High Court <a href="http://www.austlii.edu.au/au/other/HCATrans/2011/238.html">granted leave</a> solely on the ground of appeal regarding the expression of DNA evidence, and not on any other grounds of appeal, such as whether the conviction was unsafe or unsatisfactory.<br />
<br />
<strong><a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2011/61.html">DPP (Cth) v Bui [2011] VSCA 61</a></strong><br />
This is the High Court's first opportunity to consider the provisions that have made their way into the appeal provisions in Victoria, NSW, Western Australia, Tasmania and the Northern Territory abolishing the sentencing principle of double jeopardy on Crown appeals. This case concerns whether those provisions are picked up by <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ja1903112/s68.html">s68 of the Judiciary Act 1903</a> when the case involves a Commonwealth appeal. There has been some division within state appellate courts, with <a href="http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2010/194.html">NSW</a>, <a href="http://www.austlii.edu.au/au/cases/wa/WASCA/2010/170.html">WA</a> and Victoria all stating that the provisions are picked up, with <a href="http://www.austlii.edu.au/au/cases/tas/TASSC/2009/107.html">Tasmania</a> taking the view that State provisions abolishing sentencing double jeopardy are inconsistent (and hence invalid to the extent of the inconsistency) with the requirement in the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ca191482/s16a.html">Commonwealth sentencing provisions</a> that a court imposing sentence impose one of appropriate severity in all the circumstances. The alternative basis for invalidity, and the one being run on the appeal, is that the requirement in s16A(2)(m) to take into account, among other things, the mental condition of the offender, includes the presumed distress of standing for sentence a second time that underlies the principle of sentencing double jeopardy (<em>DPP (Cth) v De La Rosa</em> per Basten JA).<br />
<br />
Given the difference that exists between appellate courts and the importance of the consistent operation of these new statutory provisions, it seems unsurprising that the court <a href="http://www.austlii.edu.au/au/other/HCATrans/2011/244.html">granted special leave</a>. The Crown attempted to show that this wasn't a suitable vehicle, but wasn't successful. Surprisingly, the Crown didn't run the more ambitious argument that the case didn't have sufficient prospects of success.<br />
<br />
<strong><a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2011/69.html">King v R [2011] VSCA 69</a></strong><br />
<em>King</em> concerns two linked issues - The application of the proviso and the possible extension of the <em><a href="http://www.austlii.edu.au/au/cases/cth/HCA/2003/64.html">Gillard</a></em> principle that failure to correctly direct on a lesser alternative offence can deprive an accused of a chance of acquittal of the more serious offence, which the accused <em>was</em> convicted of, as juries do not approach the issue of competing possible convictions entirely logically. <em>King</em> was a culpable driving case where the judge gave erroneous directions on the alternative offence of dangerous driving (like so many cases, the trial was held prior to <a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2009/255.html"><em>De Montero</em></a><em>, </em>which set out the appropriate direction for dangerous driving). Unlike several other appeals that have arisen since <em>De Montero</em>, the Court of Appeal held that there was no miscarriage of justice, as the jury convicted of culpable driving, and could only have convicted of dangerous driving if they acquitted of culpable driving.<br />
<br />
Interestingly, on the <a href="http://www.austlii.edu.au/au/other/HCATrans/2011/249.html">leave hearing</a>, Bell J makes the following observation:<br />
<blockquote><strong>BELL J:</strong> That being the case, it does rather seem as though the Court of Appeal might have taken the view that the thrust of the remarks in <i>Gilbert</i> were not applicable in a case such as this. What do you say about that? Why would not the reasoning apply equally?</blockquote>It remains to be seen whether this only concerns the principle that juries do not approach the question of competing possible verdicts entirely logically, or whether it will flow over into the related question of when a judge needs to leave an alternative offence to the jury. In Victoria, a series of cases have held that the threshold for leaving alternative verdicts is lower in relation to murder and manslaughter than for all other offences (see, most recently, <em><a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2010/42.html">Nous</a></em>).<br />
<br />
<strong><a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2011/23.html">Baiada Poultry v R [2010] VSCA 23</a></strong><br />
<em>may </em>consider, rather than a matter the jury must be satisfied in relation to beyond reasonable doubt, in order to establish the Crown case. The Court of Appeal split 2-1 (Neave JA and Kyrou AJA, with Nettle JA against) holding that despite the error, there was no substantial miscarriage of justice. The <a href="http://www.austlii.edu.au/au/other/HCATrans/2011/251.html">High Court</a> appeal looks like it will re-examine the nature of an appellate court's task when applying the proviso, and the use that a court can make of the jury's verdict in circumstances where it was misdirected in this way.<br />
<br />
This appeal concerns the law as it existed prior to the <em><a href="http://www.austlii.edu.au/au/legis/vic/consol_act/cpa2009188/s276.html">Criminal Procedure Act 2009</a></em>, and so the outcome will predominantly be relevant to other jurisdictions, as Victoria has now incorporated the proviso into the test for allowing an appeal, which now requires an appellant to establish a <em>substantial miscarriage of justice</em>. The operation of this new provision is just starting to kick in, with the first appeal decision where the court considered the point, <em><a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2011/273.html">Finn</a></em>, handed down last week.Caenhttp://www.blogger.com/profile/09430270444333226982noreply@blogger.com0tag:blogger.com,1999:blog-6277213944038535557.post-67285258142436519812011-08-19T18:13:00.000+10:002011-08-19T18:13:28.211+10:00One wrong leads to another<span lang="" style="font-family: inherit;">One sentencing principle that regularly makes an appearance in appellate judgments is that of parity, which states that it is appealable error where the sentences between co-offenders are so different (or not different enough) as to create a "justifiable sense of grievance". Where all co-offenders are sentenced at the one time, parity arguments seem to me to have particular potency, as it indicates that a single judge has failed to adopt a consistent approach to sentencing co-offenders, or alternatively, has failed to recognise the significant differences between the sentences that are appropriate for different co-offenders. But parity is not only relevant when all co-offenders are sentenced at once. It applies equally, though with more difficulty, when several co-offenders are sentenced by separate judges.<br />
<br />
Recently though, courts have grappled with the question of how to deal with a parity ground of appeal when the comparison sentence is inadequate and the offender received an appropriate disposition. Can an offender be said to have a justifiable sense of grievance for not receiving a manifestly inadequate sentence, such as the one his co-offender received? Regrettably, the answer is yes.</span><br />
<span style="font-family: inherit;"><br />
</span><br />
<span style="font-family: inherit;"><a name='more'></a></span><a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2011/238.html"><span style="font-family: inherit;"><em>Jacobs & Ross v R</em> [2011] VSCA 238</span></a><span style="font-family: inherit;"> concerned a particularly vicious assault following an incident at the Loft nightclub. The primary attackers each received head sentences of 5 years and non-parole periods of 3 years for intentionally causing serious injury. The two co-offenders, one of whom assisted with the initial attack and then stopped when the victim fell to the ground, and the other stopped a friend of the victim from assisting, were sentenced on the basis of aiding and abetting and received sentences of two and a half years wholly suspended for three years and three years imprisonment with 12 month non-parole period respectively. Those offenders who received sentences of 5 years imprisonment appealed on the basis of parity, with Hansen JA (Harper JA concurring) holding:</span><br />
<blockquote><span style="font-family: inherit;">As I have said, I regard the sentences imposed on the appellants as appropriate. The difficulty is that, unfortunately, Pettingill and Young received sentences that were lenient to the point of being manifestly inadequate, particularly in the case of Pettingill. The result is that the disparity between those sentences and the appellants’ sentences is excessive, indeed disproportionate to their respective degrees of culpability and individual circumstances. It follows that the appellants’ sentences should be reduced, but only to the extent necessary to remedy the unjustified disparity. It would not, I consider, be correct to reduce the appellants’ sentences to the level of Young’s sentence for to do so may compound the error in a way which would be unacceptable to the public conscience</span></blockquote><span lang=""><span style="font-family: inherit;">The issue of manifestly inadequate sentences for co-offenders has also been considered from the perspective of Crown appeals in New South Wales. In </span><a href="http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2010/313.html"><span style="font-family: inherit;"><i>R v Green & Quinn</i> [2010] NSWCCA 313</span></a><span style="font-family: inherit;">, a five-member bench of the New South Wales Court of Criminal Appeal held, 3-2, that the fact that a co-offender received a manifestly inadequate sentence which the Crown did not appeal was not a valid reason for refusing to intervene to correct the manifestly inadequate sentences which it did appeal. Hulme J conducted an extensive analysis of all previous NSW decisions on this issue. However, for reasons of space, I think that McClelland CJ at CL best encapsulates the relevant principle:</span></span><span lang="EN-AU"><span style="font-family: inherit;"> </span></span><span lang="" style="font-family: inherit;">The High Court has allowed an appeal from <i>Green & Quinn</i>, though it is unclear what the basis for the decision is, as reasons have not yet been published. The case was complicated by the need to invoke the slip rule, because the formal orders did not match the orders proposed by Hulme J in one part of his judgment. Unitl the reasons for decision are published, we can only speculate on whether the court will provide some clarity to this issue. </span><span style="font-family: inherit;"></span><br />
<blockquote><span lang="EN-AU"><span style="font-family: inherit;">It follows that I am of the opinion that the decision in <i>R v McIvor </i></span></span><a href="http://www.blogger.com/cgi-bin/LawCite?cit=%5b2002%5d%20NSWCCA%20490"><u><span style="color: blue;"><span style="color: blue;"><span lang="EN-AU" style="font-family: inherit;">[2002] NSWCCA 490</span></span></span></u></a><span style="font-family: inherit;">. It must be remembered that the community has an interest in the sentencing of offenders and is entitled to expect that a just sentence will be imposed on all offenders. Where one offender has received a sentence which is so inadequate as to be erroneous the community is entitled to expect that the sentence of a co-offender when reconsidered by this Court will not be fixed by using the sentence imposed by error as the appropriate comparator.<span lang="EN-AU"></span></span></blockquote><span lang=""><span style="font-family: inherit;">What is most worrying about jurisprudence in this area is the risk that it will encourage the Crown to bring defensive appeals against inadequate sentences on co-offenders, to protect against the risk that a court will otherwise lower appropriate sentences to conform to those inadequate penalties. This would be inconsistent with the various of </span><a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2010/350.html"><span style="font-family: inherit;">authorities</span></a><span style="font-family: inherit;"> that state that Crown appeals should be "rare and exceptional". More generally, this line of authority regarding the interaction between parity and manifestly inadequate sentences provides a strong reason why all co-offenders should be sentenced by the same judge. The question then becomes how to balance that against the need to ensure timely justice.</span></span>Caenhttp://www.blogger.com/profile/09430270444333226982noreply@blogger.com0tag:blogger.com,1999:blog-6277213944038535557.post-23265201231119116962011-08-10T08:51:00.000+10:002011-08-10T08:51:12.480+10:00Heeman, Pato and Grixti - Three recent sentencing decisionsJustices Harper and Hansen have recently released a spate of sentence appeal decisions, three of which warrant special attention.<br />
<br />
<a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2011/220.html">Grixti v R [2011] VSCA 220</a><br />
Grixti started as an appeal against sentence for a cannabis cultivation, but turned into an appeal against sentence on the basis of double punishment, as the offender was sentenced (following a plea of guilty) for both cultivating cannabis and possessing the product of that cultivation. The problem arose because the prosecution double-counted some harvested cannabis from earlier planets as both part of the cultivation (along with 39.75kg found at the time of arrest) and separately providing the basis for a charge of possession (which weighed 5.43kg - Somehow the plea was conducted on a total amount of 45.42kg, whereas the sum of those two values is 45.18 - It is not clear where the additional 240g came from). Prosecution and defence solicitors really need to be careful when negotiating pleas of guilty to avoid this kind of thing. It clogs up the appellate system and really is a basic error. While the prosecution ran an argument on the appeal that the possession related to distinct cannabis, this was hampered by the statement on the plea that "the dried cannabis the subject of count 3 ‘was harvested material from the crop’." The court held:<br />
<blockquote>That is reasonably to be taken as a concession that the cannabis the subject of count 3 was harvested from the plants the subject of count 1 during the cultivation period of 1 April to 14 July alleged in count 1. By his plea and conviction on count 1, the appellant admitted cultivating cannabis in the relevant period, including the cannabis which he harvested that became the subject of count 3. The total weight of the cannabis cultivated was 45.42 kilograms, which included the 5.43 kilograms of dried cannabis the subject of count 3. There was no suggestion that any of the cannabis recovered, whether as living plants or dried cannabis, was cultivated outside the period charged in count 1.</blockquote> Where there are distinct factual bases, the prosecution will need to be careful to clearly articulate that basis. In this case, I suspect the prosecution meant to submit the dried cannabis came from an earlier crop, which is couldn't establish beyond reasonable doubt, whereas the cultivation charge related only to the cannabis currently being grown. However, the difference in weights made this argument more difficult to follow, and the 5.67kg difference between the plant weight and the factual basis of the cultivation charge made the limits of the cultivation charge hard to identify.<br />
<br />
<a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2011/221.html">Heeman v R [2011] VSCA 221</a><br />
Heeman is a case about parity between co-offenders (or, strictly, maintaining appropriate levels of disparity between co-offenders based on differences in circumstances). The Court decided that:<br />
<blockquote>In my opinion the arguments put forward on behalf of the appellant do demonstrate that her position was such as to warrant a greater difference in the sentences which were imposed upon each, but in the particular circumstances of this case, I think that the difference can be appropriately represented by a reduction in the appellant’s non-parole period from 20 months to 19 months. I propose, therefore, to allow the appeal to the extent that the non-parole period should be reduced as I have indicated; but the total effective sentence remain at three years and three months.</blockquote>Really? Decisions like this undermine the statements about preserving a sentencing judge's discretion, the existence of a range of correct sentences, and the need to avoid tinkering. After cases like this, you have to wonder whether there should really be only one ground of appeal against sentence - That it was outside the range reasonably open to the judge, and everything else is just an explanation for why that happened.<br />
<br />
<a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2011/223.html">Pato v R [2011] VSCA 223</a><br />
Pato concerns the application of the <em><a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2007/102.html">Verdins</a></em> principles. The offence involved serious, alcohol-fueled violence against the offender's de facto partner. The offender relied on a psychiatric report which disclosed longstanding depression, extensive alcohol use and poor anger management. The offender's counsel relied on the <em>Verdins </em>principles to moderate the sentence and the judge held that:<br />
<blockquote>Mr Pato, you had consumed large quantities of alcohol on this night and, to put it bluntly, you lost it. Mr Pato, having found that you were suffering severe depression I propose to moderate the sentence that I otherwise may have imposed, that is in accordance with <i>Verdins</i>.</blockquote>This was the extent of any discussion of <em>Verdins</em>. The Court of Appeal held that this was insufficient and that the judge needed to do more to explain how the <em>Verdins</em> principles were relevant:<br />
<blockquote>The difficulty is that the judge needed to go further and explain how the appellant’s impaired mental functioning was relevant to the particular factors in Verdins. Unfortunately he merely quoted passages from the report and stated that, having found the appellant was suffering severe depression, he proposed to ‘modify’ the sentence that he otherwise may have imposed, in accordance with Verdins. There was thus no indication as to which of the six factors in Verdins were relevant and the relative weight they received.</blockquote>In a system of intuitive synthesis, explaining with any precision how the six different factors identified in <em>Verdins</em> actually impacts on the sentence is always going to be a difficult process, though it is likely that the court was looking for some sort of quantification, even if that quantification was vague by saying that the judge was moderating the sentence "somewhat", "slightly" or "significantly".<br />
<br />
Importantly, the Court of Appeal explicitly noted the new statutory provisions on sentence appeals; <em><a href="http://www.austlii.edu.au/au/legis/vic/consol_act/cpa2009188/s281.html">s281</a></em> of the <em><a href="http://www.austlii.edu.au/au/legis/vic/consol_act/cpa2009188/">Criminal Procedure Act 2009</a>, </em>which requires identification of error and satisfaction that a different sentence should be imposed. While this provision was, according to the explanatory material, meant to codify existing practice, it is interesting to see the court explicitly note the new provisions and the need to consider the two questions separately.Caenhttp://www.blogger.com/profile/09430270444333226982noreply@blogger.com0tag:blogger.com,1999:blog-6277213944038535557.post-20808785416898322972011-07-28T08:21:00.000+10:002011-07-28T08:21:55.226+10:00Conservation of criticism<span lang=""> Last year, Carolyn Burnside attracted <a href="http://www.heraldsun.com.au/news/victoria/i-was-innocent-but-went-to-jail/story-e6frf7kx-1225980137461">heavy criticism</a> for inadequate pre-trial disclosure in a case where a complainant had previously made untrue statements in an earlier trial regarding another accused. Yesterday, the Court of Appeal released an <a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2011/215.html">addendum</a> to its earlier decision after Ms Burnside contacted the court stating that she had not disclosed the material due to a belief that others had already done so. According to the addendum, another barrister made a note in the Crown case file, indicating that the material had been disclosed, though the barrister who previously held the brief now has no recollection of the matter. Ultimately, the court reiterates that the trial prosecutor, Ms Burnside, should have realised that the material had not been disclosed. The court concluded:</span><span style="font-family: Times New Roman;"><span lang="EN-AU"><blockquote><span style="font-family: Times New Roman;"><span lang="EN-AU">39 The Chief Crown Prosecutor advised the Court that the Crown accepted the proposition that in circumstances where, for any reason, a prosecutor returns a brief to prosecute in a trial and the brief is subsequently delivered to another member of counsel, the duty of disclosure arises for consideration and discharge again by the new prosecutor. It is the personal responsibility of that prosecutor to ensure that that duty has been discharged prior to the commencement of the trial and as and when any further occasion calling for its exercise arises. This Court endorses the Crown’s position as expressed by the Chief Crown Prosecutor. <br />
40 Finally, the ground of appeal upon which the Appellant was successful was, understandably, added, by amendment, at a very late stage. The Senior Crown Prosecutor who conducted the appeal for the Crown was, clearly, insufficiently instructed as to the added ground. He ought to have sought an adjournment (to which in the circumstances, the Crown would have been entitled) to obtain full instructions as to the events which gave rise to the added ground of appeal. <br />
41 In the circumstances it is appropriate that the criticism directed at the trial prosecutor in the Court’s judgment be tempered to take account of the matters to which reference has been made in this addendum.</span></span></blockquote></span><span style="font-size: small;"><span lang="">This statement, which tempers the criticism of Burnside and shifts it to counsel on the appeal, should perhaps be termed 'conservation of criticism', in the theory that new facts can only shift the balance of criticism in a given situation, and neither increase or reduce the level of criticism. Then again, perhaps there are some principles of physics that simply can't be translated to a legal context.</span></span></span>Caenhttp://www.blogger.com/profile/09430270444333226982noreply@blogger.com0tag:blogger.com,1999:blog-6277213944038535557.post-7010553104254025912011-06-27T07:19:00.001+10:002011-06-27T07:24:25.097+10:00Special leave watch: R v GuarigliaI've <a href="http://caenscorner.blogspot.com/2010/12/encouragement-or-coercion.html">previously blogged</a> about <a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2010/343.html">R v Guariglia [2010] VSCA 343</a>, critical of the majority's decision to allow the appeal and its reasoning. It seems that the DPP was also unhappy with the decision, as the Crown recently sought special leave to appeal the decision (<a href="http://www.austlii.edu.au/au/other/HCATrans/2011/162.html">transcript here</a>). Regretably, the High Court knocked back the application, holding that it was not a suitable vehicle and there were insufficient prospects of success. <br />
<br />
On reading the transcript, there don't appear to be many indications of what the High Court thinks about the general issues in the case. The questions that were asked involved:<br />
<ul><li>an indication of scepticism about any practice of the judge referring to the strength of Crown case;</li>
<li>a recognition that the issue relates to the free choice of plea;</li>
<li>an inquiry whether this was a test case;</li>
<li>an inquiry about the current status of the accused and whether he was serving time on other matters.</li>
</ul>I must say that the DPP's argument that this was all about case management in criminal trials is a bit of a reach. I suspect that it was necessary to formulate the case that way in order to meet the general importance requirement for special leave. It did, however, invite the view that the trial judge's purpose was to pressure the accused to plead guilty, so as to get rid of the proceeding. And that view of the trial judge's actions plays into the position taken by the majority from the Court of Appeal that judicial statements about discounts on a guilty plea and the strength of the Crown case deprive a person of a free choice of plea. <br />
<br />
Encouraging guilty pleas certainly is a way to economically resolve the business of the court and, to that extent, could be part of good case management. But where do you draw the line between proper case management and improper pressure to forfeit the right to put the prosecution to its proof? The difficulties I see with <em>Guariglia</em> are not the sort of "big picture" issues that would attract special leave. Instead, they relate to the court's presumption that the plea was involuntary despite the evidence that the accused was represented by competent counsel and was well able to protect his interests (as shown in his insistence that the Crown drop forfeiture proceedings against his car in exchange for the plea of guilty).<br />
<br />
The long term effect of <em>Guariglia</em> are hard to predict. If the County Court adopts a cautious approach to the issues raised by the case, then judicial statements about the guilty plea discount will disappear from case management hearings, along with any preliminary thoughts about the strength of the Crown case. An intermediate step would be to continue to refer to guilty plea discounts, but omit any statements about the Crown case. In each case, the combined effect of the Court of Appeal's decision and the refusal of special leave will likely leave County Court judges more cautious about making any statements that might sway the accused's decisions regarding the plea.Caenhttp://www.blogger.com/profile/09430270444333226982noreply@blogger.com0tag:blogger.com,1999:blog-6277213944038535557.post-71218831880034530792011-06-14T07:56:00.001+10:002011-06-14T08:03:32.000+10:00When the possibility of consent is (or is not) enough<span lang=""><span style="font-family: inherit;">Since 1991, s36 of the Crimes Act has contained an expanded statutory definition of the circumstances in which a person is deemed not to consent to sexual intercourse. Many of these are common sense propositions and indeed, I've wondered from time to time why it is that Parliament needs to tell us, for example, that a person who submits to intercourse under duress, is taken not to consent. But it is there and courts need to make sense of it.<br />
<br />
In </span><a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2011/164.html"><span style="font-family: inherit;"><i>Getachew v R </i>[2011] VSCA 164</span></a><span style="font-family: inherit;">, the court curtailed the operation of s36, by effectively confining its operation to the factual question of whether a person is consenting, and not the allied question of whether the accused was aware the complainant was not or might not be consenting.</span></span><br />
<br />
<span style="font-family: inherit;"></span><br />
<span style="font-family: inherit;"><a name='more'></a>According to the complainant in <i>Getachew</i>, she and the accused were sharing a bed and she rebuffed his sexual advances several times. She then went to sleep and awoke to find that the accused had anally penetrated her. The accused gave a no-comment record of interview and remained silent at trial. The main argument at the trial was whether or not the accused had actually penetrated the complainant. The trial judge directed the jury that, on the question of awareness of non-consent:</span><blockquote><span style="font-family: inherit;">This element will be satisfied if the prosecution can prove beyond reasonable doubt that the applicant was aware that the complainant was either asleep or unconscious or so affected by alcohol as to be incapable of freely agreeing <i>or aware that she might be in one of those states</i>. This element will also be satisfied if the prosecution can prove on any other basis arising from the evidence, that the accused was aware the complainant was or might not be consenting or freely agreeing to the sexual penetration (emphasis added).</span></blockquote><br />
<span lang="EN-AU"></span><span lang="" style="font-family: inherit;">On the appeal, the appellant argued that this direction "conflated the complainant's lack of consent with mens rea". The appellant further argued that the legislation allowed the possibility of an honestly held but unreasonable belief in consent and that:</span><span lang="EN-AU"> <blockquote><span lang="EN-AU" style="font-family: inherit;">The legislature contemplated, so it was said, the possibility that the prosecution might fail to prove the mental element of the offence of rape even though a belief and consent on the part of the accused was unreasonable <i>because the accused was aware that the complainant might be asleep </i>(emphasis added).<br />
Counsel said that it was open to the jury to be persuaded beyond reasonable doubt that the applicant thought the complainant might be asleep and yet think it reasonably possible that the applicant positively believed that the complainant was awake.</span></blockquote>The Court of Appeal (Buchanan and Bongiorno JJA and Lasry AJA) accepted this argument, Buchanan JA holding:<br />
<blockquote><span style="font-family: inherit;">I think that the trial judge erred in his instructions as to the element of mens rea in telling the jury that the requirement to prove mens rea was met if the jury concluded that the applicant was aware that the complainant might be asleep. The jury could be satisfied that the applicant was aware of this possibility but at the same time think that it was a reasonable possibility that the applicant believed the complainant was awake</span><br />
<span style="font-family: inherit;">...</span><br />
<span style="font-family: inherit;">The jury may have concluded that there was no protest by the complainant because she was asleep. Equally, if they had been properly instructed, the jury may have concluded that the applicant thought that the complainant might have fallen asleep but accepted that it was a reasonable possibility that the applicant believed that she had finally consented.</span></blockquote>Bongiorno JA in a short concurring judgment noted that while there was no evidence of the accused's belief (and so s37AA of the <i>Crimes Act 1958</i> did not apply), it was incumbent on the prosecution to prove the mental element:<br />
<blockquote><span style="font-family: inherit;">The Crown had to prove that the accused was aware at the time of penetration that the complainant was not consenting or might not be consenting to that act. </span></blockquote><span style="font-family: inherit;">Lasry AJA also found that the direction was erroneous, but would have applied the proviso and dismissed the appeal, as he considered that, based on the facts and the issues raised in the case, a correct direction would have made no difference to the outcome.</span><br />
<br />
<span style="font-family: inherit;"><strong>Discussion</strong></span><br />
<span style="font-family: inherit;">This decision adopts a very narrow view of the operation of s36. It claims that an accused can be aware of the existence of a s36 factor, or the possible existence of a s36 factor, and yet hold a belief in the contrary state of affairs. There are two, strangely inconsistent, problems I see with this decision. <br />
<br />
First (and this court cannot be blamed for this), it continues the fallacy from </span><a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2010/188.html"><span style="font-family: inherit;"><i>Worsnop v R </i>[2010] VSCA 188</span></a><span style="font-family: inherit;"> at [34]-[35] that a belief in consent necessarily excludes the possibility of an awareness that the complainant might not be consenting. As a matter of ordinary logic, belief and awareness are different things, and a person can believe one thing while being aware that they might be wrong. There are a scale of adjectives associated with belief, ranging from optimistic hope at one end to certainty at the other. The current approach of the law has the virtue of simplicity by only requiring a jury to ask "what did the accused believe", without also asking "was that belief sufficiently strong to rationally exclude the possibility of mistake". As long as the statutory definition of rape includes a state of mind equivalent to recklessness (aware that the complainant might not be consenting), it seems to me that belief for this purpose could only be a sufficiently strong belief that could be described as "certain".<br />
<br />
Secondly, <i>Getachew</i> asserts, inconsistently with <i>Wornsop</i>, that the jury could be satisfied that the accused was aware the complainant was or might have been asleep while still accepting the reasonable possibility that the accused believed that the complainant was consenting. This then introduces a disjunction between belief and awareness (which I am </span><a href="http://caenscorner.blogspot.com/2010/10/recklessness-and-indifference.html"><span style="font-family: inherit;">critical</span></a><span style="font-family: inherit;"> of <i>Worsnop</i> for failing to do), but places belief as the dominant state of mind. In my view, this gives insufficient weight to the possibility of the prosecution proving rape on the basis that the accused was aware that the complainant <i>might not</i> be consenting. The only way this can be reconciled is if the court accepts counsel's implicit argument that using s36 at the stage of assessing mens rea is to conflate two discrete issues. But this means that a complainant can be found not to consent for the purpose of the factual question of consent by relying on s36, an accused can be aware that, for the purpose the factual question, the complainant is not (or might not be) consenting, due to an awareness of that s36 factor (or awareness of the possible existence of a s36 factor), and yet hold the inconsistent (and arguably irrational) belief that the person was consenting. At its extreme, this would allow a person who obtains consent due to duress to say that he was aware the complainant was only consenting due to duress, but thought that was enough anyway. That surely cannot be the correct operation of s36. <br />
<br />
Hopefully this decision will prompt a legislative response, which can also address the difficulties created by <i>Worsnop</i>. This could restore so-called "communicative model" of consent and hopefully implement it in a way that is abundantly clear within the legislative text.</span></span>Caenhttp://www.blogger.com/profile/09430270444333226982noreply@blogger.com4tag:blogger.com,1999:blog-6277213944038535557.post-21662594946993580472011-05-11T18:16:00.000+10:002011-05-11T18:16:06.785+10:00Tendency, relevance and the legacy of the common lawThe Supreme Court has recently released a number of rulings in an attempted murder trial from last year - DPP v Hills, NC, Cooper and RAC. Ruling No 6 concerns the operation of the UEA and warrants close consideration. The case alleged by the prosecution was that a group of four people went to the vicitm's house, abducted her, drove her to the Maribyrnong River and attempted to drown her. They desisted when they believed that another car was approaching. The Crown case relied in part on the evidence of one co-offender, Meulenbrock, who agreed to give evidence against the other co-offenders.<br />
<br />
<a name='more'></a><strong>Ruling No 6</strong><br />
In <a href="http://www.austlii.edu.au/au/cases/vic/VSC/2010/486.html">Ruling No 6 [2010] VSC 486</a>, one of the accused, Hill, sought to cross-examine Meulenbrock concerning past violent acts involving Meulenbrock and the other accused. The purpose of this was to show that Hill was not involved on that earlier occasion and so was less likely to involved with whatever violent acts her co-accused engaged in on this occasion.<br />
<br />
Counsel for Hill sought to characterise this as relationship evidence and restrictions on admitting tendency evidence in s97 of the UEA. The other defendants objected on the ground that the evidence was impermissible tendency evidence, was irrelevant, went to a collateral issue and was unfairly prejudicial.<br />
Kaye J rejected the accused's application to lead the evidence. First, he accepts that the evidence is not tendency evidence:<br />
<blockquote>21 It is well established that evidence of prior criminal conduct, by an accused, is not relevant to establish, generally, a propensity to violence by that accused. Rather, in order to qualify as tendency evidence under s 97 it needs to be demonstrated that there is a relevant degree of similarity between the previous conduct and the events with which the court is concerned; see GBF v The Queen. There is no striking or other similarity between the manner in which the assault of 25 November occurred, and the manner in which the offences at 9 December were carried out. That is, the previous event of 25 November does not disclose any modus operandi, nor was it attended by any particular hallmark, which it relevantly shares with the incident of 9 December. Furthermore, the incident of 25 November was but one single event. In general, the courts are slow to accept that offending, or conduct, on one occasion, is significantly probative of a fact, for the purposes of s 97(1), unless there are significant or remarkable similarities between the previous incident and the incident in question.</blockquote>The judge then considered whether the evidence was otherwise relevant to a fact in issue, holding:<br />
<blockquote>26 It is not put on behalf of Karen Hills that the three young people were parties in some type of conspiracy, existing exclusively themselves, to commit violent criminal offences. Rather what is sought to be put to Ms Meulenbrock is that in the course of their friendly relationship, the three young people, from time to time, violently assaulted other persons. In my view, it has not been demonstrated, in any way, how such evidence could rationally affect the probabilities of the case between the Crown and Karen Hills. It would seem that it is sought to be demonstrated that there was a relationship between Meulenbrock and the two co-accused, to the exclusion of a relationship with Karen Hills, which involved them in criminal activity. If that is the basis upon which it is put that the evidence is relevant, then that basis is patently flawed. Clearly, the fact that Karen Hills did not participate in the events of 25 November 2008 could not, rationally, affect the probabilities as to whether she was involved in the events of 9 December 2008. As Mr Horgan correctly submitted, any line of reasoning that, because Karen Hills was not present at the incident of 25 November 2008 (or at any other such prior incident) involving Meulenbrock, NC and Cooper, it is less likely that she was present at the events of 9 December 2008, would be a plain non sequitur. Such reasoning would be patently illogical.</blockquote><blockquote>27 Indeed, on analysis, it would seem that, notwithstanding the protestations of Ms Randazzo to the contrary, what is sought to be elicited, from that evidence, is the existence of a relationship between the three persons in which, from time to time, they were prone to indulge in violent criminal activity together, but without the involvement, or participation, of an adult. Viewed in that light, the evidence is impermissible tendency evidence which, Ms Randazzo correctly conceded, is not admissible.</blockquote><strong>Discussion</strong><br />
Several points should be made about this ruling. First, on the facts, it seems plainly sensible that the evidence not be admitted. The reasoning relied on by the accused Hill is tenuous at best and involves the introduction of a form of cut-throat defence that is likely to distract the jury more than the probative value of the evidence warrants. That said, the ruling takes an approach to the question of relevance that appears different to the intention of the drafters of the UEA and the main textbooks on the question. <br />
<br />
In the drafting of the UEA, the ALRC sought to separate out the questions of <a href="http://www.austlii.edu.au/au/other/alrc/publications/reports/26/Ch_30.html">logical and legal relevance</a> that had infused the common law and introduce a binary test of relevance - Evidence either can rationally affect the probability of a fact in issue or it cannot. How much it does so is a matter to be considered at the discretionary exclusion stage. Paragraph 21 (extracted above) appears to confuse logical relevance and legal admissibility. <br />
<br />
In my view, the evidence sought to be adduced is logically capable of demonstrating a general tendency towards violence. As a matter of common understanding, a person who has assaulted 5 people in 5 different circumstances is a violent person. No similarity between the 5 assaults (type of victim, weapon used, circumstances of the assault, etc) is necessary before one may draw the conclusion that the person in question has a tendency towards violence. Degree of similarity is a matter that was important to the common law of similar fact evidence (e.g. <a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2004/12.html"><em>R v Papamitrou</em></a><em> </em>(2004) 7 VR 375), and continues to be relevant under the UEA when measuring whether the evidence has significant probative value <a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2010/88.html"><em>(PNJ v R </em>[2010] VSCA 88</a>)<em>.</em> But it is not a matter that affects the question of <em>logical relevance. </em>Logical relevance recognises that a tendency to commit particular types of acts may be significantly probative of whether a person committed that kind of act on another occasion (see, e.g. <a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2010/135.html">GBF v R [2010] VSCA 135</a> at [26]). The difficulty arises because Kaye J seeks to ask whether the evidence is tendency evidence before asking whether it is relevant. Instead, he should have asked if the evidence is relevant and, if so, how is it relevant. This would have analysed the existence of any logical connection between the evidence and a fact in issue in the trial. <br />
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The problem with analysing whether the evidence is tendency evidence before asking if it is relevant becomes especially apparent at paragraphs 26 and 27. The prosecution's argument that the evidence is a non sequitur seems to me to be unconvincing. An argument that "I had nothing to do with X's criminal escapades. Indeed, here are a bunch of previous occasions where X engaged in criminal conduct without my involvement" isn't a very strong argument for why you couldn't have started now, but I think that it is stretching the point to say that such reasoning is just irrational. Indeed, it seems to me to rely on the same sort of prediction of future conduct from past conduct that is involved in the standard good character direction which asserts, in part, that "I've never committed a crime before, so I'm less likely to start now" (most recently re-endorsed in <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2011/14.html"><em>Braysich v R </em>[2011] HCA 14</a>). To conclude that the evidence is not relevant as tendency evidence at paragraph 21 and then to conclude at paragraph 27 that it is only relevant as inadmissible tendency evidence (because of irrelevance) seems to me to be internally inconsistent.<br />
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The case shows the importance of keeping relevance and exclusionary rules separate when applying the UEA. In this case, the defence didn't need to contend with the exclusionary rule in s101 of the UEA that required the probative value to significantly exceed the prejudicial effect. Instead, it only needed to show that the evidence had substantial probative value (a matter that Kaye J seems to treat as an afterthought at the end of paragraph 21). Kaye J's judgment appears heavily influenced by the common law, but overlooks the fact that even the common law recognises that the exclusion of similar fact evidence isn't because the evidence is logically irrelevant, but because of the risk that the evidence would be taken to prove too much (<em><a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2008/16.html">HML v R</a> </em>(2008) 235 CLR 303 per Gleeson CJ at [12]). The result is that he imposed stricter exclusionary rules on the defence than appear necessary and introduced confusion between the capacity of the evidence to rationally influence a decision as a matter of logic, and the legal restrictions on admitting evidence under ss97 and 135. <br />
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Is this a cavil at imprecision in the reasoning? Perhaps, but where the Evidence Act introduces small variations compared to the common law, there is a natural tendency for practitioners and judges to assume <br />
that the common law is a safe guide, and that is a tendency that should be guarded against.Caenhttp://www.blogger.com/profile/09430270444333226982noreply@blogger.com0tag:blogger.com,1999:blog-6277213944038535557.post-40988763743517530822011-05-02T07:55:00.001+10:002011-05-02T08:01:41.334+10:00R v Al-Assadi: Experience of crime and apprehended biasIn the week before Easter, the Court of Appeal handed down the decision of <a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2011/111.html"><em>R v Al-Assadi </em>[2011] VSCA 111</a>. While there were multiple grounds of appeal, the only one that succeeded was an apprehended bias argument. This case is, to my knowledge, the first time an apprehended bias argument has succeeded on the basis that the judge knew someone who had experienced a crime similar to that alleged by the complainant. It will, I expect, present substantial problems for the judge in question (who cannot be named because it would reveal the identity of a victim of a sexual offence), given the bulk of work in the County Court.<br />
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<strong>The Facts</strong><br />
The facts of <em>Al-Assadi</em> are straightforward. The complainant, aged 15, and friends met at a shopping centre. They initially sought a lift home from their mother but then accepted a lift from the accused, who was an older brother of a friend. The accused drove the complainant to a reserve and at least two people sexually penetrated the complainant. According to the accused, this was consensual. According to the complainant, she was raped by two different people at the reserve.<br />
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<strong>Apprehended bias</strong><br />
The apprehended bias argument took two forms. First, the appellant argued that the trial judge was unduly sympathetic in her treatment of the complainant. The appellant nominated such things as:<br />
<blockquote>the fact that her Honour invited the complainant to nominate the times she wished the Court to sit, apologised if the complainant was kept waiting, went to some lengths to set the complainant at ease, enquiring after her favourite subjects at school, whether she had a pet dog and what she did on her birthday and assuring her that the judge would try to make sure the questions of counsel were not too hard for her. By contrast, so it was said, her Honour made no enquiries as to the comfort and convenience of the accused. When the accused were a few minutes late returning to court after a short adjournment, the judge’s reaction was to forbid them to leave the dock during short adjournments. </blockquote>The Court of Appeal rejected that argument, stating:<br />
<blockquote>her Honour was not obliged to disqualify herself by the matters advanced by counsel at the trial. Her Honour quite properly sought to ensure that a young witness was not overawed or frightened by a strange, formal and potentially hostile environment. Critically, the complainant, unlike the applicant, was not represented by counsel. </blockquote>The second limb of the argument, however, took the case into new legal territory. In 2007 (two years before the trial), the judge's 14 year old daughter had been drinking with friends and was waylaid by a man who gave her amphetamines and raped, or attempted to rape her multiple times. The judge and her partner searched for their daughter all night, before eventually locating her on the steps of St Paul's Cathedral. The daughter identified the offender, who ultimately pleaded guilty. The judge had given evidence at the committal proceeding and made a victim impact statement where the she described the effect of the offending on herself as "extremely traumatic". The offender was sentenced on 1 April 2009, and the judge sentenced Al-Assadi on 27 April 2009. The judgment, unfortunately, doesn't identify when the trial took place, but given standard practices in the County Court, it is likely that it took place in March or April 2009.<br />
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The Court of Appeal acknowledged that there were important differences between the offending against the judge's daughter and the complainant, but noted that:<br />
<blockquote>... the ages of the victims were similar and advantage was taken by the offenders of the victims’ vulnerability. I think that the comparable circumstances of the victim in each case and the strength of the relationship of mother and child might well move a fair minded observer to think that her Honour might be partial to a girl in the position of the complainant and hostile to the applicant, who took advantage of the complainant’s position. <br />
The mere fact that a judge is related to a victim of crime is not sufficient to disqualify the judge from presiding at a trial of a person accused of a like crime. In the present case, however, the relationship of the judge to the victim of the first crime, the similar age and circumstances of the victims and the emotional involvement of the judge might have led a fair minded observer to think the similarity in the crimes and victims might have induced in her Honour a sympathy for the alleged victim of the offences with which the applicant was charged which prevented her from bringing an impartial mind to the conduct of the trial. In this respect I think it is significant that the judge underwent the harrowing experiences of searching for her child overnight and then dealing as best she could with her daughter’s distress. </blockquote>The court cites <em>R v Goodall</em>, but in my view, doesn't go into enough detail to distinguish the two cases. <em>Goodall</em>, it is important to remember, was a case where the Court of Appeal rejected an argument that being the victim of a similar kind of crime necessarily meant that a juror could not decide the case impartially, or that there was a reasonable apprehension of bias concerning such a juror. The court event accepted that a juror could legitimately use his or her own experiences as a victim of crime when assessing the evidence. Adopting the language of Neave JA in <em>Goodall, </em>the decision in <em>Al-Assadi: </em><br />
<blockquote>amounts to the generalisation that [parents of] victims of sexual assault are incapable of bringing an objective mind to the issues to be resolved in the trial of an accused for sexual offences, while other [judges] <strike>members of the jury</strike> who have not had such an experience are capable of doing so.</blockquote>The reasoning in paragraph [39] of <em>Al-Assadi </em>seems to be that the experience of searching for a child and dealing with the aftermath of the offending were so intense that a fair minded lay observer might reasonably conclude that the judge might not bring an impartial mind to bear. Regrettably, the court did not address the factors commonly cited against judicial apprehended bias applications, such as the fact that judge's take the judicial oath very seriously and, by their training and experience, are generally capable of putting irrelevant matters aside. It also didn't explain why the experience might lead to partiality in relation to a complainant who shared some superficial similarities with her daughter in the context of a case where the defence was one of consent. The court also didn't address the potent consequences of their decision, given that this decision would seem to exclude the judge from hearing a vast number of sexual offence cases involving, say, 13-16 year old complainants and an accused who is, to some degree, unknown to the complainant. <br />
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The decision raises more questions than it answers. How long does the restriction on the judge hearing similar cases last? Is it limited to cases heard between the time of offending (April 2007) and shortly after sentencing (April 2009)? If so, on what basis is the cut-off line drawn for cases after April 2009? Also, what does this decision mean for jurors? If you are the victim of a similar kind of offending within the past 2 years, does that mean there is a reasonable apprehension of bias? Does the offending need to be reasonable perceived to be sufficiently traumatic to make you ineligible? These questions will, perhaps, need to await some further appeals from this judge's trials, or appeals in relation to juror bias (or apprehension of bias).<br />
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EDIT: Since I started writing this post, but before I finished it, Austlii took down the reasons for judgment in <em>Al-Assadi. </em>Austlii notes that the reasons are available only in hardcopy. This will, I expect, limit the precedential potential of the judgment, especially its capacity to influence decisions in other jurisdictions.Caenhttp://www.blogger.com/profile/09430270444333226982noreply@blogger.com3tag:blogger.com,1999:blog-6277213944038535557.post-85601907534751337572011-04-12T07:59:00.001+10:002011-04-12T08:09:17.406+10:00The privileged position of journalistsAt the end of March, the Federal Parliament finally passed amendments to the Commonwealth Evidence Act to create what have often been called journalist shield laws. This may, however, be a misleading description if the privilege, as it arguably exists to protect sources and promote the flow of information rather than to protect journalists. <br />
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As readers would be well aware, the Commonwealth amendments will only apply in proceedings under the Commonwealth evidence laws. So far, I haven't heard whether New South Wales or Tasmania plan to follow suit. However, last Friday, <a href="http://www.theaustralian.com.au/business/legal-affairs/shield-law-state-to-defy-greens/story-e6frg97x-1226035629402">The Australian</a> ran a story that Victoria will not adopt the same provisions, and will instead adopt slightly different shield laws.<br />
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<a name='more'></a>The difference relates to the breadth of the laws. The original version of the Commonwealth Bill, as proposed by Andrew Wilkie, defined a journalist as: <br />
<blockquote>a person who in the normal course of that person’s work may be given information by an informant in the expectation that the information may be published in a news medium (<a href="http://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/r4468_first/toc_pdf/10256b01.pdf;fileType=application%2Fpdf">link</a>).</blockquote>During the passage of the Bill through Parliament, the Greens successfully <a href="http://parlinfo.aph.gov.au/parlInfo/download/legislation/amend/r4468_amend_0bb29b9a-270a-4967-93a0-c24157183120/upload_pdf/7018_Evidence_Amendment_Journalists'_Privilege_AG.pdf;fileType=application%2Fpdf">moved an amendment</a> to the definition so that it reads:<br />
<blockquote>a person who is engaged and active in the publication of news and who may be given information by an informant in the expectation that the information may be published in a news medium (<a href="http://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/r4468_aspassed/toc_pdf/10256b01.pdf;fileType=application%2Fpdf">link</a>).</blockquote>Thus, the Commonwealth legislation uses a test of 'engaged and active in the publication of news', rather than the originally proposed 'in the normal course of that person's work' test. The purpose of this was to expand the class of people who may able to claim the privilege and recognise the work of citizen journalists rather than confine the privilege to professional journalists.<br />
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According to The Australian's article, the Victorian Attorney-General has said:<br />
<blockquote>"There is a real worry that the Greens' amendment threatens to unreasonably restrict the ability to put evidence before the court.<br />
Simply running a blog does not make you a journalist. If you are a professional carrying on online journalism in the course of your work, electronic media journalists qualify (for protection) just as the print media does.<br />
But if you are an amateur running a blog, in principle and practice, it is not appropriate that the privilege extend to such a person."<br />
...<br />
Mr Clark said the original schemes favoured by Labor and the Coalition in Canberra had struck a fair balance between protecting the interests of the public in the free flow of information while providing courts with a discretion to require disclosure in the public interest.<br />
"The federal scheme, minus the Greens' amendments, still strikes a fair balance," he said</blockquote>Now, it is not particularly surprising that a blogger thinks that broadening shield laws to, in appropriate circumstances, protect bloggers is a good idea. And I recognise that this is a matter on which minds may legitimately differ. Citizen journalism is, in its current form, still an emerging area. It will likely be difficult for courts to determine when a person is 'active and engaged in the publication of news' in borderline cases. And I agree with the Attorney-General that "simply running a blog does not make you a journalist". That, however, isn't the test and I believe that working on the news in a private or amateur capacity, without the support of a news organisation, shouldn't prevent you from being a journalist. In my view, the solution to this problem is to simply omit a definition of journalist and let the courts apply the ordinary meaning of the word 'journalist' to the facts of the case.<br />
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What I really take issue with, is with the argument that the wider definition of journalist undermines the balance between protection a journalist's sources and providing courts with a discretion to require disclosure in the public interest. The Commonwealth law, as modified by the Greens amendments, doesn't change that. The operative provision is unchanged. It still reads:<br />
<blockquote>(1) If a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be ascertained. <br />
(2) The court may, on the application of a party, order that subsection (1) is not to apply if it is satisfied that, having regard to the issues to be determined in that proceeding, the public interest in the disclosure of evidence of the identity of the informant outweighs:<br />
<blockquote>(a) any likely adverse effect of the disclosure on the informant or any other person; and<br />
(b) the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts (<a href="http://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/r4468_aspassed/toc_pdf/10256b01.pdf;fileType=application%2Fpdf">link</a>).</blockquote></blockquote>So, the court <em>still</em> has a discretion. The court is <em>still</em> required to balance the desirability of disclosure with the adverse effects of disclosure on the informant and the public interest in the flow of information. All the amendment does is <em>broaden</em> an informant's choice of who to make the disclosure to. It avoids entrenching a privileged (pun partially intended) position for some journalists at a time when the face of journalism itself seems to be changing and, with greater disclosure of information through the internet, anyone with a bit of research, writing skills and a website, can be active in the distribution and analysis of news. If the Victorian Attorney-General wants to enshrine that, that is a legitimate position to take. But he shouldn't disguise this policy preference by referring the need to strike a "fair balance" between the flow of information and the ability of the court to require disclosure, as though the Greens amendment undermines that balance.<br />
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<strong>Update</strong>: Elsewhere - <a href="http://foi-privacy.blogspot.com/2011/04/victoria-up-for-professionals-only.html">Peter Timmins</a> has already written about the same matter.Caenhttp://www.blogger.com/profile/09430270444333226982noreply@blogger.com0tag:blogger.com,1999:blog-6277213944038535557.post-73835391589596701402011-04-08T18:27:00.001+10:002011-04-08T19:01:39.028+10:00The not-so-unfettered discretionSome days, I just can't help but feel sorry for Parliamentary drafters. Take a reasonably simple provision like s669A of the <em>Criminal Code </em>(Queensland):<br />
<blockquote>(1) The Attorney-General may appeal to the Court against any sentence pronounced by-- <br />
<blockquote>(a) the court of trial; or </blockquote><blockquote>(b) a court of summary jurisdiction in a case where an indictable offence is dealt with summarily by that court; </blockquote>and the Court may in its unfettered discretion vary the sentence and impose such sentence as to the Court seems proper.</blockquote>When Parliamentary Counsel wrote that provision, what sort of fetters do you think he or she intended would apply to the Court's ability to vary the sentence and impose such sentence as seemed proper?<br />
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In <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2011/10.html"><em>Lacey v AG</em> [2011] HCA 10</a>, a 6-1 majority of the High Court (Heydon J dissenting) settled on the word "appeal" in the opening words to hold that, like other appeals, the appellate court could not interfere unless it first determined error in the original sentence.<br />
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The history of s669A is fascinating. The majority recounts that the predecessor to the provision was first introduced in 1939, in similar form, though omitting the word "unfettered". The interpretation of this provision was largely guided by a High Court decision that is frequently overlooked in the frequent statements about judicial restraint in determining Crown appeals: <em><a href="http://www.austlii.edu.au/au/cases/cth/HCA/1928/28.html">Whittaker v The King</a></em>. This decision supported an expansive view of the ability of an appellate court to review a sentence on a Crown appeal. A view that has fallen away since decisions such as <em><a href="http://www.austlii.edu.au/au/cases/cth/HCA/1977/44.html">Griffiths v R</a></em>, <a href="http://www.austlii.edu.au/au/cases/cth/HCA/1994/49.html"><em>Everett v R</em></a><em> </em>and <em><a href="http://www.austlii.edu.au/au/cases/cth/HCA/1989/58.html">Malvaso v R</a>.</em><br />
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The interpretation of the provision was radically changed in Queensland in a 1973 decision, <em><a href="http://www.austlii.edu.au/cgi-bin/LawCite?cit=%5b1973%5d%20Qd%20R%20355">R v Liekefett; Ex parte Attorney-General</a></em>, which held that, like other Crown appeal provisions, the principles from <em>House v </em>R applied. Two years later, the Queensland Parliament amended the structure of s669A to its current form, with the main substantive difference being the addition of the word 'unfettered'. As one might expect, Queensland courts saw this as a repudiation of <em>Liekfett</em> and reverted to its former approach. Now, the High Court has restored the <em>Liekfett</em> approach (at [61]-[62]):<br />
<blockquote><div style="margin-bottom: 0pt; margin-top: 0pt; text-indent: 0pt;">The Solicitor-General of Queensland pointed to the background to the enactment of the new s 669A(1) in 1975 as a response to the 1973 decision of the Court of Criminal Appeal in <i>Liekefett</i>. The record of the Second Reading Speech shows that the Minister for Justice intended, by the repeal and re-enactment of s 669A(1), to "make it clear that the Court of Criminal Appeal has an unfettered discretion to determine the proper sentence to impose when the Attorney-General has appealed against the inadequacy of the sentence." The Minister's words, however, cannot be substituted for the text of the law, particularly where the Minister's intention, not expressed in the law, affects the liberty of the subject.<b> </b>In any event the Minister's Speech left open the question of the content to be given to the word "appeal" and thereby to the jurisdiction conferred upon the Court. Neither expressly nor by necessary implication do the words of s 669A(1) define the jurisdiction simply by reference to the power to vary sentences if the Attorney-General chooses to appeal.<b> </b>Such a construction would require clear language to overcome the intention which the common law imputes to the legislature that it does not require the Court to consider an appeal on the basis that it might be persuaded to disagree with a sentence which could not be challenged as manifestly inadequate or excessive or otherwise affected by error. <p></div><div style="margin-bottom: 0pt; margin-top: 0pt; text-indent: 0pt;">In our opinion, the appellate jurisdiction conferred upon the Court of Appeal by s 669A(1) requires that error on the part of the sentencing judge be demonstrated before the Court's "unfettered discretion" to vary the sentence is enlivened. The unfettered discretion may be taken to confer upon the Court of Appeal in such a case the power to substitute the sentence it thinks appropriate where error has been demonstrated. The appeal should be allowed.<b> </b>The question that then arises is whether the matter should be remitted to the Court of Appeal on the basis that it did not determine whether the trial judge erred in principle or imposed a manifestly inadequate sentence indicative of such error.</div></blockquote><div style="margin-bottom: 0pt; margin-top: 0pt; text-indent: 0pt;">Heydon J wrote what was, in my view, a very strong dissent. He emphasised that the existing line of authority in Queensland gives appropriate weight to the statutory language and avoids rendering the word "unfettered" redundant. At [84], he observes:</div><blockquote>The appellant submitted: </blockquote><blockquote style="margin-bottom: 0pt; margin-top: 0pt; text-indent: 0pt;"><blockquote>"the purposive approach to statutory interpretation in this matter is of no value as such an approach would do nothing other than lead to greater confusion. In such circumstances, reliance must be placed upon the words of the legislation. To change long established legal principle requires clear and unambiguous statutory wording. Such wording is absent in s 669A(1). In that regard it would not have been difficult for the legislature to have amended the section in such a way as to avoid all ambiguity as to its intention."</blockquote></blockquote><blockquote>The first two sentences are correct. So, it may be assumed, in the context of the present proceedings, is the third sentence. With respect, the fourth is not correct. And the appellant did not suggest a clearer way by which s 669A could have been amended in 1975.</blockquote>He also examines the various extrinsic material that confirms that the purpose of the 1975 amendment was to reverse <em>Liekfett</em> and concludes that this purpose must be given effect. Finally, he rejects the view of the majority that 'appeal' must involve correction of error. At [94], he states:<br />
<blockquote>The fourth consideration concerns the word "appeal". The appellant submitted that the selection of the word "appeal" in s 669A(1) indicated that the process was one involving the correction of error in the relevant sense. The submission assumes that all procedures described in legislation as "appeals" must involve the correction of error in the relevant sense. That assumption is unsound. The construction of "unfettered discretion" adopted by the Court of Appeal majority is not antithetical to the word "appeal" in s 669A(1). The legislature is at liberty to fashion what particular types of appeal it wishes to create.</blockquote><strong>Comment</strong><br />
I cannot help but agree with Heydon J regarding this decision, as I struggle to understand how the Queensland Parliament could have made itself any clearer. Is it really necessary to add a provision such as:<br />
<blockquote>(1A) In determining an appeal under (1), the Court of Appeal need not find error in the original sentence.</blockquote>Sure, it could do this and it would make it clearer. But having already added the word "unfettered", it simply shouldn't be necessary. If the 1975 amendments had instead been added to reverse the common law restraint principles on Crown appeals, and so functioned as a spiritual predecessor to <a href="http://www.austlii.edu.au/au/legis/vic/consol_act/cpa2009188/s289.html">s289 of the <em>Criminal Procedure Act 2009</em></a>, then I agree that the Queensland court shouldn't suddenly decide to ditch the principle that error must be shown on an appeal. The appellant in the High Court even conceded that the provision meant that, if the Court decided to allow the appeal, it was not fettered in determining the appropriate sentence. But, the history of jurisprudence in Queensland makes it clear that it wasn't addressing that issue and, as Heydon J points out, such fetters have no basis in the text of the legislation.<br />
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I also agree with Heydon J that the majority's narrow construction of the word "appeal" seems unsustainable. The majority identifies the three commonly recognised forms of appeal - Appeal in the strict sense, Appeal de novo and Appeal in the nature of a rehearing. However, having concluded that it is not an appeal de novo, the majority assumes that it must be in the nature of a rehearing, rather a fourth type of appeal - One in which the court must decide for itself, on the basis of materials before the original judge and any fresh evidence that is properly admitted, what sentence should be imposed. This blurs the line between de novo and rehearing appeals, but such a species of appeal <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2008/13.html">already exists</a>. It also has the virtue of giving weight to all the words of s669A(1), rather than focusing on "appeal" and making "unfettered" subordinate to the predetermined nature of the "appeal".<br />
<br />
Since I anticipate that the Queensland Parliament will look to restore the previous interpretation of s669A and reverse the effect of <em>Lacey</em>, let me conclude on a hopefully lighter note, and offer a few suggestions for how it might do this:<br />
<ul><li>Replace the word "appeal to the Court against" with "seek the review by the court of"</li>
<li>Replace the word "unfettered" with "completely unfettered", "well and truly unfettered" or"really unfettered".</li>
<li>Add the words "regardless of error" after the word "discretion"</li>
<li>Replace the words "vary the sentence and impose such sentence as to the Court seems proper" with "decide for itself what sentence to impose"</li>
<li>Add a subparagraph (1A) which reads "In the interpretation of this provision, Heydon J in <em>Lacey</em> <em>v AG</em> was right"</li>
</ul>Or maybe there are so many options Parliament simply cannot choose and so it adopts all of the above, leading to:<br />
<blockquote>(1) The Attorney-General may <strike>appeal</strike> <em>seek the review by the court of</em> any sentence pronounced by-- <br />
<blockquote>(a) the court of trial; or </blockquote><blockquote>(b) a court of summary jurisdiction in a case where an indictable offence is dealt with summarily by that court; </blockquote>and the Court may in its <em>completely, really, well and truly </em>unfettered discretion <em>regardless of error </em><strike>vary the sentence and impose such sentence as to the Court seems proper </strike><em>decide for itself what sentence to impose</em>.</blockquote><blockquote>(1A) <em>In the interpretation of this provision, Heydon J in Lacey v AG was right.</em></blockquote>Even then, we must wonder whether the provision is sufficiently clear!Caenhttp://www.blogger.com/profile/09430270444333226982noreply@blogger.com4