When is a decision not a decision

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

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

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

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

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

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

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

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

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

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

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

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

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

Special leave watch: R v Wilson

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

The Court stated:

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

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

King: The High Court and dangerous driving

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

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

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

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

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

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

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

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

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

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

Victoria to get sentence enhancements

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

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

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

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

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

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

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

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

Using a house to kill

Legal historians and those with an interest in confiscation law are familiar with the deodand - 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 Confiscation Act 1997, which includes property that:

(a)  was used, or was intended by the accused to be used in, or in connection with, the commission of the offence

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.

The continued unhappy state of the law of consent

The High Court has listed the appeal hearing in R v Getachew for the end of February and the outline of submissions for both the DPP and the accused are now available on the High Court website. 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.

Despite that development, the Court of Appeal is still handing down decisions dependent on the line of authority developed in Worsnop. The latest is GBD v R [2011] VSCA 437, 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

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.

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 Worsnop argument, and the Crown, consistent with the state of the law as it stands under Worsnop initially conceded the point. At the leave hearing, Tom Gyorffy SC, fresh from writing the DPP's submissions to the High Court for Getachew, sought to withdraw that concession and argue that Worsnop was wrongly decided. Sadly, this point received only the following treatment:

After hearing argument, the Court refused the application.

It is disappointing that such a significant issue is dismissed in such a summary fashion.

On the substantive issue of whether to allow the appeal, Harper JA stated:

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.
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.
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.
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.

As far as I am concerned, paragraph 28 perfectly demonstrates how appellate authority in this area has gone wrong. Despite section 36section 38, 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 section 37AA. 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.

Court 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:

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.

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’.

A judgment thus classified may not be cited in a subsequent appeal without the leave of the bench hearing that appeal.

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.

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.

Don't mention the elephant

Back in 1991, the High Court stated that:

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.

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.

The safety of taxis and the media beat-up

The 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 Court of Appeal 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.

Lessons from non-precedential appeals

I've blogged previously about the Court of Appeal's innovative use of catchwords to declare that a case raises no point of principle (see here and here). 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 Harper v R [2011] VSCA 314, 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:

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.

Although there was no ground of specific error, Ashley JA at [22] took the time to comment that:

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.

Bearing in mind what the Court said in Ciantar & Rose, 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 Harper 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.

Baseline sentencing and the High Court's implacable opposition to two-stage sentencing

The Sentencing Advisory Council currently has a reference from the Attorney-General regarding baseline sentences. The parameters of the government's idea of baseline sentences are spelt out in 5 bullet points:

Baseline sentences will apply for serious offences as defined in the Sentencing Act 1991 and for additional offences such as arson, recklessly causing serious injury, aggravated burglary and major drug trafficking.

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.

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.

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.

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.

Following yesterday's High Court decision in Muldrock v R [2011] HCA 39, one model the council presumably won't be looking to emulate is the New South Wales approach to standard non-parole periods.

Special leave report: R v Getachew

As Jeremy Gans mentioned in the comments to the previous post, the High Court has granted special leave to appeal Getachew v R. The transcript is available here. It is fascinating reading, starting with this exchange immediately after counsel make their appearances:

HEYDON J: Mr Boyce, I think it might be convenient if we hear from you first.
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.
HEYDON J: I agree with that, but it does seem an extraordinary judgment by the Court of Appeal.

Chris Boyce did his best to defend the decision, stating that it was a natural extension of the principle from R v Worsnop 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 Worsnop, 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 might not be consenting" (emphasis added). She did, however, qualify her remarks and indicated that they were not concerned with the correctness of Worsnop. Ultimately, the High Court granted special leave for the DPP to appeal the decision, without calling on the DPP to make any submissions.

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 Pemble 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, here.

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 Roberts and Neal, since they relate to the same point, but weren't the subject of the special leave application. The retrial in Neal can probably stand on its own feet, but Roberts is far more similar to Getachew and, if Getachew is overturned, that should logically take the retrial order in Roberts with it. Maybe the Crown will seek the join the matters later in some way?

The new proviso - Just like the old one

One of the reforms introduced by the Criminal Procedure Act 2009 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:

• That the verdict was unreasonable or unsupported by evidence;
• That there was a wrong decision on a question of law; or
• That on any other basis there was a miscarriage of justice.

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:

(a) the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or
(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
(c) for any other reason there has been a substantial miscarriage of justice.

Special leave update - September 2011

Before wading through the 273 pages of Momcilovic, 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.

One wrong leads to another

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.

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.

Heeman, Pato and Grixti - Three recent sentencing decisions

Justices Harper and Hansen have recently released a spate of sentence appeal decisions, three of which warrant special attention.

Grixti v R [2011] VSCA 220
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:

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.

 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.

Heeman v R [2011] VSCA 221
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:

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.

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.

Pato v R [2011] VSCA 223
Pato concerns the application of the Verdins 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 Verdins principles to moderate the sentence and the judge held that:

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 Verdins.

This was the extent of any discussion of Verdins. The Court of Appeal held that this was insufficient and that the judge needed to do more to explain how the Verdins principles were relevant:

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.

In a system of intuitive synthesis, explaining with any precision how the six different factors identified in Verdins 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".

Importantly, the Court of Appeal explicitly noted the new statutory provisions on sentence appeals; s281 of the Criminal Procedure Act 2009, 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.

Conservation of criticism

Last year, Carolyn Burnside attracted heavy criticism 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 addendum 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:

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.
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.
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.

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.

Special leave watch: R v Guariglia

I've previously blogged about R v Guariglia [2010] VSCA 343, 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 (transcript here). Regretably, the High Court knocked back the application, holding that it was not a suitable vehicle and there were insufficient prospects of success.

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:

• an indication of scepticism about any practice of the judge referring to the strength of Crown case;
• a recognition that the issue relates to the free choice of plea;
• an inquiry whether this was a test case;
• an inquiry about the current status of the accused and whether he was serving time on other matters.

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.

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 Guariglia 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).

The long term effect of Guariglia 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.