"Irrationally generous"

Yesterday the High Court handed down its decision in Stubley v Western Australia [2011] HCA 7, which concerns the admissibility of tendency evidence (or, as WA calls it, propensity evidence) or relationship evidence in a sexual offence proceeding. The case, in broad terms, is fairly straightforward. Several years after ceasing treatment, 2 women alleged that their psychiatrist, Stubley, had sexual intercourse with them during therapy sessions. They claimed that they either actively communicated their lack of consent, or that their acquiescence was not consent, but was improperly induced by threats and other misconduct. The prosecution sought to lead evidence from 3 other women who also alleged that Stubley had sexual intercourse with them in the context of a professional-client relationship. The defence case did not dispute the allegations of sexual intercourse, but relied on consent or belief in consent. The defence denied that consent was obtained by threats.

More unenthusiasm for interlocutory appeals

Finn v R [2011] VSCA 68 continues the general trend of the Court of Appeal discouraging the routine use of interlocutory appeals. This time, the appellant sought to challenge a decision admitting evidence of statements by a deceased under s65(2)(b) of the Evidence Act 2008.

Lies and videotapes

For several years, consciousness of guilt has posed serious problems for Victorian trial judges. While the theory behind consciousness of guilt is arguably just common sense (a person who lies about important matters or engages in other incriminating conduct, like attempting to flee the State after an alleged offence may be more likely to be guilty of that offence) the reasons for the problems numerous and arguably a predictable result of the current state of the law:

• The directions required are long and complex, requiring precise identification of each separate piece of evidence and requires the judge to suggest other explanations for the lie or other evidence.
• The Court of Appeal has been incredibly vigilant for the slightest slip
• Prosecutors, concerned about the directions leaving the jury confused or considering the issue too hard and just setting the evidence to one side, may eschew reliance on consciousness of guilt reasoning
• Defendants, concerned that extensive directions on the topic would give it unwarranted prominence, encourage prosecutors and judges to eschew reliance on full consciousness of guilt directions

Johnstone v R [2011] VSCA 60 is then merely the latest in the long line of cases where consciousness of guilt evidence has brought a trial undone.

New Criminal Appeal rules

The Court of Appeal has released a new practice statement on criminal appeals, following amendments to Chapter VI of the Supreme Court Rules. These amendments follow what seemed to be a short consultation process in the last weeks of December last year.

Commonwealth specified discounts

The obligation to quantify the discount for an early guilty plea in Sentencing Act 1991 s6AAA has clearly troubled Victorian judges. From the early comments about trying to unscramble an omelette to complaints about it being an artificial exercise, it is clear that judges are uncomfortable with the deviation from the intuitive synthesis required by the legislation. However, its worth remembering that s6AAA isn't unique. Section 21E of the Commonwealth Crimes Act (not to be confused with the Commonwealth Criminal Code), requires judges to quantify the discount for promised future cooperation. This quantification then becomes relevant as a kind of 'ceiling' on an appellate court if the offender fails to provide the promised cooperation.

Setting the law back to the 1800s

First off, I want to congratulate the Human Rights Law Resource Centre for its excellent coverage of the Momcilovic appeal over twitter. In the coming days, I'll sit down with the transcript and give my thoughts on which way the wind was blowing at the hearing. In the meantime, I recommend you all get on Twitter, do a search for #momcilovic, and read the HRLRC's summaries. It's a credit to them that they managed to compress the gist of several party's arguments into the Twitter character limit.

I now want to turn to a brief article I saw in the MX on the way home, which is reproduced in most of the Herald Sun's companion papers. The article warns that "UNDERAGE girls in NSW could be charged with being an accessory to their own rape due to a legal loophole" (link here)

The article goes on to state:

Previews of Momcilovic

Today will see the commencement of the High Court hearing in Momcilovic v The Queen. The case, as most readers of this blog (all two or three of us...) are aware, concerns the interaction between the Charter of Human Rights and Responsibilities and the reverse onus provisions in the Drugs, Poisons and Controlled Substances Act. One tip I've heard suggests that all States and Territories will make submissions in response to the s78B constitutional notices and the case will run all week, an incredibly long time for a High Court hearing.

Unfortunately, I won't be able to attend the hearing, so like the rest of us, will have to make do with anything the Castan Centre and others provide on Twitter and media reports on the hearing. However, the media discussion of the case have already started in the Herald Sun.

Harsh and outdated language

Last Friday, the Herald Sun and associated News Limited outlets run a story with this opening:

Appeal judge Justice Geoff Nettle said the sentence handed down to Brett Janson, 40, was so inadequate it would "shock the public consciousness".
By a 2-1 majority the court held that the sentence was "manifestly inadequate" and they re-sentenced him to a total of four years with a two-year minimum.

Over the weekend, Alan Howe, sentencing expert in chief at the Herald Sun (or so it seems), wrote an opinion piece with this opening line:

Perhaps she is a delicate petal, County Court judge Felicity Hampel. But it seems she might be among our worst judges.

The case itself, DPP v Janson [2011] VSCA 19, only became available on Austlii today.

According priority to different trials

While the content of the right to a fair trial is elastic and nebulous at the margins, it is surprising that it includes an obligation to protect an accused from the possibility that he may make statements in one trial that undermine a defence in another. And yet, that seems to be what the Victorian Court of Appeal has just decided.

Admissibility of a record of interview

Imagine the following scenario. Mr Smith is charged with aggravated burglary. He is interviewed by police and denies involvement in the offence. In the course of the interview, he makes some exculpatory statements that suggest that other police witnesses may have a motive to lie. Is this interview admissible in the trial? Even if it is admissible, is the prosecution obliged to tender it?

Dangerous delays

Applicants for special leave to appeal to the High Court are well familiar with three standard bases on which special leave is refused:

1. The case does not raise any issue of sufficient importance
2. The case does not have sufficient prospects of success
3. The case is not a suitable vehicle for raising the issue in question

So far, one striking feature of the French High Court has been its increasingly aggressive position on the issue of court delays. As a result, we may start to see the emergence of a fourth basis:

• The delays in the case have been too great to justify further extending proceedings

Encouragement or coercion

In Victoria, sentence indication schemes have evoked a range of attitudes from lawyers and the judiciary. Available in the Magistrates Court since 1992 without any legislative backing, the scheme was given a legislative footing and expanded to the higher courts as a pilot project in 2008 following a Sentencing Advisory Council report. In 2010, the council report on the pilot recommended continuation of the sentence indication scheme and the government implemented that recommendation by repealing the sunset provision that previously hung over the sentence indication clauses.

Despite this brief history of gradual acceptance of sentence indication processes, the higher Victorian courts have been generally cautious about sentence indication. They have cited concerns about judicial independence, the risk of plea bargaining and the involvement of the judge in an accused's plea decisions. Guariglia v R [2010] VSCA 343 is the latest example of this caution.

Abolition of sentencing double jeopardy

One of the major reforms introduced by the Criminal Procedure Act 2009 was the abolition of the sentencing principle of double jeopardy. This principle historically acted as a fetter on Crown appeals against sentence and, in the words of the then-Attorney General:

This existing common-law consideration can distort sentencing practices because the sentence imposed by the Court of Appeal will not reflect the sentence that it considers should have been imposed in the first place. This can reduce the guidance provided by Court of Appeal sentences to other courts and the effectiveness of DPP appeals against sentence.

Further, this approach does not take into account other relevant and counterbalancing policy considerations, such as the interests of the community and the victim, in the courts sentencing offenders to appropriate sentences.

In DPP v Karazisis, Bogtstra and Kontoklotsis, specially convened court of five considered the operation of ss287, 289 and 290 of the Criminal Procedure Act 2009.

The meaning of 'sentence'

Ludeman, Thomas & French v R is the first five-judge bench decision on the meaning of the new appeal provisions in the Criminal Procedure Act 2009. The court held that the right to appeal 'a sentence' and the provisions governing when the court may grant leave or allow the appeal, apply to:

• The recording of a conviction;
• The individual sentences;
• Any concurrency or cumulation orders associated with individual sentences; 
• The non-parole period;
• An aggregate sentence;
• Superannuation orders;
• Restitution orders; and
• Compensation orders.

However, the provisions do not apply to what is conventionally called the 'total effective sentence'.

The endangered charter

With the election of the Ballieu liberal government at the recent state election, the Charter of Human Rights and Responsibilities Act 2006 would seem to have entered the endangered species list. Before and during the campaign, then-shadow Attorney General Robert Clark stated that the Charter needed to be repealed or radically altered. In The Australian's legeal affairs section yesterday, we saw a tag-team effort by Peter Faris and Mirko Bagaric to support the repeal of the Charter.

Corporate identity, statutory interpretation and keywords

Monday 29 November 2010 has been a busy day for Victorians. After a long wait, John Brumby conceded defeat in the Victorian state election. However, while politics tragics may have been waiting most of the day with bated breath, criminal law geeks received a feast of decisions from the Court of Appeal. Three in particular deserve special mention.

Children, crime and mental illness

Patrick McGorry has been in the news a lot this year since he was named Australian of the year, for his work highlighting the poor state of mental health services for children. Sadly, there is an all too common link between crime and mental illness. In its more serious forms, mental illness can rob a person of the chance to meaningfully participate in a trial. For that reason, Part 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 deals with the issue of what a court should do in that situation. Unfortunately, as CL (A minor) v Lee [2010] VSC 517 demonstrates, the law is not entirely thorough in its coverage of youth unfitness.

VLA's response to Rapke's global challenge

The Sentencing Act 1991 specifies a number of factors a court must have regard to when sentencing for an offence, the first three of which are:

(a)  the maximum penalty prescribed for the offence; and
(b)  current sentencing practices; and
(c)  the nature and gravity of the offence; and

In several cases through 2008 - 2010, the Court of Appeal has expressed concern about the adequate of current sentencing practices, in light of the prescribed maximum penalty for the offence. The Court has consistently stated that, in the interests of procedural fairness, the Court cannot hear arguments about the adequacy of sentencing practices for the first time on an appeal.

Confiscation and human rights

While Victoria waits with general indifference for the commencement of the Confiscation Act 2010 (some time before January 2012), the Supreme Court has handed down DPP v Ali (No 2) [2010] VSC 503, concerning the operation of the current scheme and the effect of the Charter. Section 38 of the Confiscation Act 1997 allows the DPP to seek confiscation of restrained property if-

Don't mention the Charter

Update - Dr Manhatten has also discussed this case - http://www.summarycrime.com/2010/11/wells-v-queen-no-2-charter-points-not.html

In my first post on this blog, I discussed the Court of Appeal's refusal to answer questions referred to it under s33 of the Charter of Human Rights and Responsibilities Act 2006. Last Thursday, the court sought to dissuade practitioners from using another avenue to obtain early and authoritative answers to questions arising under the Charter.