Recklessness and indifference

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

Appeals without precedent

Yesterday was a busy day for the Court of Appeal. Ashley and Weinberg JJA handed down 4 separate sentence appeal decisions, all of which contained the following peculiar catchword

Appeal decision without precedent value

The decisions were all highly fact-based, though Dow v R [2010] VSCA 274 and Sharkey v R [2010] VSCA 273 both adverted to the issue of how declarations of guilty plea discount can be used as a ground of appeal.

Not all laws are equal

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

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

The human cost of appeals and the limits of judicial review

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

Adjournments and alternatives

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

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

The media and the law

The Australian's Chris Merrit has had a good week reporting on Chief Justice Marilyn Warren's Richard Searby oration. By my count, there have been at least three separate reports and the oration has prompted one editorial in the Australian. The Sydney Morning Herald and the Age have also gotten in on the act, publishing edited extracts of the speech and on Friday the Herald Sun joined the chorus.

Though while scorekeeping can be an interesting game in itself, the more interesting part concerns the particular responses of the media.

Say again

After almost 2 years of operation, we finally have some appellate guidance on the meaning of s66(2A) of the Uniform Evidence Act. In R v XY, the New South Wales Court of Criminal Appeal confirmed that the section was effective in doing what it was created to do - To wind back the unduly restrictive interpretation the High Court gave the expression 'fresh in the memory' in Graham v R.

Warning: The following contains some details of sexual offending against a child and may distress some readers.

Victim impact statements and judicial sensitivity

The last 24 hours has seen the Herald Sun and affiliated newspapers run an article on the drama that unfolded during the sentencing hearing of Leon Borthwick. The article is available here.

The Facts
On 16 November 2008, Mark Zimmer was killed when he was struck by a van driven by Leon Borthwick. Borthwick was charged with murder and after a trial, was convicted by a jury of manslaughter. Yesterday, Kornelia Zimmer sought to read parts of her victim impact statement. Borthwick's counsel, Carmen Randazzo objected to several lines on the basis of relevance. Justice Katherine Williams agreed and directed that certain passages in the statement be admitted.

Today, Kornelia Zimmer took to the airwaves to share the omitted portions of her statement with 3AW's listeners.

Public punitiveness and judicial minimalism

WCB v R is an interesting example of the judiciary's willingness to engage in the public debate concerning sentencing standards (summary of reasons available here).

The bulk of the judgment concerns the following ground of appeal:

The learned sentencing judge erred in sentencing the appellant on the basis that ‘The community would expect you to be imprisoned for a lengthy period.

Statements of this nature are quite common in sentencing remarks. As the judgment records at [36], courts have often spoken of the community's justifiable concern about sexual abuse of children, and the need to respond to such concern with appropriately severe penalties.

Despite this straightforward point, the court spends 15 pages responding to one reasonable simple ground of appeal. The analysis includes:

The wrong question

Giuseppe De Simone, property developer, ice-cream lover and human rights campaigner, has had another unsuccessful experience in the Court of Appeal.

Last Friday, in De Simone v Bevnol Constructions, the Court knocked back Mr De Simone's latest attempt to obtain a stay of civil proceedings concerning a dispute over the construction of a retirement village in Ocean Grove. The case concerns the principles from McMahon v Gould, and the power of an inferior court or tribunal to refer questions of law to the Supreme Court.