Warren’s Charter

No, the blog isn’t back. But I thought it was worth easing my resolve a touch to mark an event that is an antidote, for now, to so much that bothered me last year: a genuinely great Charter decision.

No, make that a terrific Charter decision! The best decision ever! OMFG… The case is Re an application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381. This is the resolution (for now) of what I referred to on Charterblog as Bongiorno J’s challenge, here and here.

The case concerns Victorian anti-organised-crime legislation, passed in 2004 at the height of the gangland war (don’t mention the war! It’s suppressed.) which gave the Orwellian ‘Chief Examiner’ the power (on application to a court) to coercively question (or demand documents from) anyone suspected of involving in organised crime. (Similar powers are awarded to the Director, Police Integrity and the Special Investigators Monitor, in police corruption matters.) No, the coercion isn’t torture, but only up to five years in Barwon’s Acacia Unit.

Crucially, the legislation expressly abrogates the privilege against self-incrimination but only provides for a limited immunity against the use of answers in a later prosecution:

39. Privilege against self-incrimination abrogated

(1) A person is not excused from answering a question or giving information at an examination, or from producing a document or other thing at an examination or in accordance with a witness summons, on the ground that the answer to the question, the information, or the production of the document or other thing,
might tend to incriminate the person or make the person liable to a penalty.

(2) Subsection (3) limits the use that can be made of any answers given at an examination before the Chief Examiner, or documents or other things produced at an examination before the Chief Examiner or in accordance with a witness summons.

(3) The answer, or the document or other thing, is not admissible in evidence against the person in- (a) a criminal proceeding; or (b) a proceeding for the imposition of a penalty- other than- (c) proceedings in respect of an offence against this Act; or (d) proceedings under the Confiscation Act 1997; or (e) a proceeding in respect of- (i) in the case of an answer, the falsity of the answer; or (ii) in the case of the production of a document, the falsity of any statement contained in the document.

Section 39(3) stops the examinee’s answers or compelled documents being used against him/her. But the controversy is that it doesn’t stop the later use of evidence derived from those answer/documents being used against the examinee in a criminal prosecution. So, if you are asked to say where you buried a body (on pain of contempt or perjury), your answers can’t be used against you, but the body can! Great. The controversy is heightened because the legislation specifically allows the questioning of people facing criminal charges. (See s29. The Chief Examiner is required to take reasonable steps not to ‘prejudice’ the ongoing proceedings, a nod to an earlier High Court case, Hammond.)

I called this Bongiorno’s challenge, because he decided last year in an unpublished decision that the Charter ‘s rights against self-incrimination mean that courts, in granting applications to the Chief Examiner, should include a condition barring the questioning of charged persons. The present case is an appeal to the Supreme Court against the imposition of such a condition. The identity of the charged person remains a mystery. CoughMokbel! Actually, I have no idea. Hilariously, the identity of the applicant, DAS, ‘a member of Victoria police’, is also a mystery. Joanna Davidson represented him/her/it, and Kris Walker represented VEOHRC, in a rare intervention. [But see the EDIT below.] It’s an all-acronym case! But the A-G was a no-show.

The case went before Warren CJ. Now, I’ve been very hard on Marilyn Warren in my blogging, mainly because of her role in the Unberbelly debacle, but also because of her cavalier treatment of a lesser free speech claim in a leaking case. Those were indeed awful decisions. But I no longer question Warren’s abilities or dedication to the Charter. This decision is a tour de force, not only of Charter law, but also of the law of self-incrimination and evidence. Full disclosure: it also accords (somewhat) with what SARC said in its report on a similar scheme in the Police Integrity Bill: . Go SARC! It also largely contradicts what the Police Minister said in response to SARC’s queries. Sorry Bob…

The whole of Warren’s decision is worth reading, but here are the highlights: Continue reading

Giuseppe De Simone redux

[EDIT: Here, at last, the post VCAT suppressed, originally written over a month ago. Who knows why the suppression was ordered or lifted? The case is now available online.]

He’s baaaack! Giuseppe De Simone, readers will recall, scored a brief Charter mention on Halloween in his succesful appeal against his conviction for biting a police officer in the aftermath of a supermarket dispute involving an ice-cream he ate. But that isn’t the end of his business in Victoria’s judicial system or, for that matter, his significance for the Charter. In a recent VCAT judgment, he had another bite of the Charter cherry. Actually, it was his third. And it raises one novel issue (involving Charter s. 33, the Supreme Court referral provision) and a host of familiar ones.

The context is a building contract dispute relating to the Seachange Retirement Village at Ocean Grove  (which, for those who don’t know, is quite close to Barwon Heads, which, for those who don’t know, is the real life location of Pearl Bay, which, for those who don’t know, lucky you.) The owners of the land have sued the builders for non-performance (after the Charter s. 49(2) cut-off date, it seems) and the builders have counterclaimed for misleading conduct. In the thick of things is De Simone, managing director of the owners. On 27th July 2006, two days after the Charter became law, he sent the builders, who said they needed evidence of financing for insurance purposes, a letter on an accountant’s letterhead that appeared to confirm financing. Alas, it seems, it didn’t, but was instead a letter about a subsidiary money matter. This led to De Simone being personally joined in the action. The recent VCAT case was De Simone’s attempt to stay that part of the action.

But, before we get there, there’s an earlier Charter angle. The original VCAT officer appointed to the case early last year was Senior Member Roger Young. Young fairly quickly started to have problems with De Simone, who, it turns out, ‘has studied law but has not been a legal practitioner’. The worst sort! De Simone represented himself (for the most part) in the various directions and interlocutory hearings that arose last year and he and Young obviously didn’t get along, with Young often shutting down De Simone’s contributions (and pointedly suggesting he get a lawyer) and De Simone making applications for Young to step down due to apprehended bias (one of which was prompted by the ‘lawyer’ suggestion, which Young conceded was a lame joke.) In the end, it seems, Young just started to lose it, stopping De Simone from making relevant submissions, criticising De Simone for skipping a meeting that Young had excused him from and, most damningly, saying things like: ‘Gee whiz, I’m getting sick of you!’ (Surely likely to be the last non-ironic use of the term ‘gee whiz’ ever.) So, in the middle of this year, in Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors [2008] VCAT 1479, VCAT’s (then) acting President Ian Ross exercised his powers to take over the case, citing apprehended bias, De Simone’s fair hearing right and Charter s. 24. The latter was a classic passing mention, with all the lameness and fuzziness that follows from it. Fortunately, Ross’s latest Charter judgment on the case is more substantial.

De Simone’s case for having the civil claim against him stayed arises because the builders not only sued in VCAT but also referred De Simone’s alleged financing letter shenanigans to the Geelong police. De Simone has not yet been charged (either at the time of his application, in July, or the time of the ruling, in late November), but it was accepted by all parties in the hearing that the probability of  a charge of obtaining financial advantage by deception was ‘high’, although the time-line is not known. De Simone’s application therefore raised the same issue as Trevor Flugge‘s (successful) stay application: whether the civil proceedings should be stayed to avoid prejudicing the defence of the future criminal proceedings and, in particular, whether the unpopular 1982 judgment of McMahon v Gould, which generally favoured the rights of civil litigants, should be applied. However, whereas Flugge’s action faced some significant barriers to raising the Charter (due to the federal context and the  Charter’s lack of direct application to common law rules), De Simone’s action lacks those barriers: VCAT’s jurisdiction is both Victorian and statutory.

The initial (and most novel) issue in Seachange Mangement Pty Ltd v Bevnol Constructions and Developments Pty Ltd [2008] VCAT 2629 is whether the questions pose by De Simone’s Charter challenge should be resolved by VCAT or by the Supreme Court. De Simone requested the later. Here’s the relevant Charter provision:

33(1) If, in a proceeding before a court or tribunal, a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter, that question may be referred to the Supreme Court if- (a) a party has made an application for referral; and (b) the court or tribunal considers that the question is appropriate for determination by the Supreme Court.

(2) If a question has been referred to the Supreme Court under subsection (1), the court or tribunal referring the question must not- (a) make a determination to which the question is relevant while the referral is pending; or (b) proceed in a manner or make a determination that is inconsistent with the opinion of the Supreme Court on the question.

(3) If a question is referred under subsection (1) by the Trial Division of the Supreme Court, the referral is to be made to the Court of Appeal.

This provision is the result of a recommendation by the Consultation Committee. (Interestingly, and pertinently, the Committee’s draft also required a referral to the Court of Appeal instead of the Supreme Court if the referral was from a VCAT President or Vice-President, but that equitable treatment of VCAT and the Supreme Court was excised by the meddlers. )  The Committee explained that sometimes lower courts ‘need guidance on an interpretative question’ and that the Committee ‘sees value’ in having the Supreme Court decide them (following notice to the A-G and VEORHC.) So, it’s another plank in the Committee’s ‘don’t let lesser lawyers or officers stuff up our precious Charter; that’s a job for the Attorney-General and the Supreme Court’ philosophy. However, unlike the risible Charter s. 35, this provision is ameliorated by the sensible constraints of requiring both a party request and a determination by the first instance officer, before the higher authorities stick their collective nose in.

God knows why De Simone made his application (relating to both the application of Charter s. 24 directly to VCAT and its application to the procedural provisions in the VCAT Act), though you’d have to wonder whether he just wanted to delay the civil claim against him under Charter. s33(2)(a), which would probably be as good as getting a stay. But the interesting question is when and on what basis such an application should be granted under Charter. s. 33(1)(b). Neither the Consultation Committee’s report nor the EM given even the slightest hint of when a question ‘is appropriate for determination by the Supreme Court’ [sic – or the Court of Appeal.] Here’s Ross’s take:

I am not persuaded that it is appropriate to refer either of these questions to the Supreme Court pursuant to s 38(1) [sic]. The issues raised by the questions were fully ventilated in the proceedings as was the application of the relevant principles to the facts of this matter. In my view the most expeditious course is to determine the application. Any party aggrieved by the decision may exercise their appeal rights and the issues sought to be determined by the referral application may be determined in that context.

Well, I’m not persuaded by this. Surely, the major issue under Charter s. 33(1(b) is whether or not the question is important enough to require authoritative determination, both for the benefit of the immediate matter and for other similar proceedings. The application of McMahon v Gould in VCAT matters would seem to fit the bill, especially given the enormous criticism of that case, including recently in the Supreme Court. The major counter-factor would be the impact of Charter s. 33(2)(a) on the proceeding itself. Perhaps that’d be a weighty factor, but Ross doesn’t discuss whether or not the builders or owners would be prejudiced by delaying the counter-claim against De Simone (who, it must be remembered, was a late joinder to the original dispute between the two companies.) Of course, there’s a certain sense in Ross’s notion that the matter could be dealt with by the Supreme Court on appeal (and that there’s no reason why Ross can’t resolve the matter himself), but that sense seems to be at odds with the whole (elitist) point of Charter s. 33.

Personally, if the parties are willing – or if one party is keen and the other isn’t prejudiced overly –  it strikes me as a good thing to fast-track major issues to the Supreme Court and Court of Appeal, at least while so many crucial things about the Charter remain unresolved. For instance, what really is the point of Bell J’s current lengthy hearings about mental health, FOI and the definition of public authority, when those matters are all so contentious that they will inevitably have to be sorted out by the Court of Appeal (and perhaps the High Court)? If the parties are fine with doing things the slow way, then I have no objection. But otherwise? The quicker these major questions about how the Charter works are authoratitively resolved, the better, surely?

Anyhow, for better or for worse, Ross proceeded to resolve the matter himself. The good news is that he (and, it seems, the lawyers, and maybe even De Simone) were well versed in Charter Operative Provisions 101:

The Charter may impact on VCAT’s work in three ways:

  • if VCAT is a ‘public authority’ s 38(1) provides that it would be unlawful for it to act incompatibly with human rights (subject to the exceptions in ss 338(2) and (4));
  • all statutory provisions must be interpreted in a way that is compatible with human rights (s 32(1)); and
  • the Charter applies to courts and tribunals to the extent that they have functions under Part 2 and Division 3 of Part 3 of the Charter (s 6(2)(b)).

Oh, thank you Ian Ross! You can read! I’m not being facetious. You are streets ahead of most of your supposed betters on the Supreme Court: the Bongiornos, the Lasries, the Hollingworths, etc. You’ve even noticed the exceptions to the conduct mandate, including the most important one. Praise be. After nearly a year of blogging this stuff, I’m genuinely impressed. Which is actually tragic. Alas – readers of the blog know what’s coming! – Ross’s approach to the subtleties of the Charter didn’t quite match his precise grasp of the basics. Continue reading

VCAT vs the Charter

Two interesting new Charter cases have emerged from that hotbed of Charter lip service, VCAT.  But I can only talk about one of them!

The public one is TGM Investments Pty Ltd v Rosenfield [2008] VCAT 2407, a retail tenancies dispute (although it’s not clear what the substantive issue is.) The procedural involves legal representation in VCAT. VCAT is a lawyer free haven, but there are exceptions:

62 (1) In any proceeding a party…  (b) may be represented by a professional advocate if- … (iii) another party to the proceeding who is permitted under this section to be represented by a professional advocate is so represented…

One party, TGM Investments, is described as being represented by ‘Mr D Anthony, Solicitor‘. So, the result is that the other party, Mr Rosenfield, is entitled to be represted by a ‘professional advocate’. The issue in this case is whether Rosenfield is entitled to be represented by his advocate of choice, a ‘Mr J Foster of Counsel’.

The problem is that Foster represented TGM three years ago in another retail tenancies matter. Moreover, it even involved the same ‘building’ (though not the same bit of the building.) The issue was raised between the parties during settlement negotations and TGM weren’t bothered, but it seems that that agreement has fallen apart. TGM has asked for Foster to be booted off Rosenfield’s case.

VCAT Senior Member Damien Cremean – who taught in a subject I coordinated here at Melbourne Law School last semester (hi Damien!) – granted TGM’s request. His main ground involved the risk (denied by Foster) that Foster might be privy to some sort of secrets gained from his service to TGM and that Foster may (for that or other reasons) be unable to meet the requirement of ‘purity of interest in the adversaries’ that Cremean suggested was required by VCAT’s statutory provisions demanding that its proceedings be conducted fairly. Personally, I have never been impressed by the view that lawyers somehow become affiliated to a party simply by representing them. It’s a view that simultaneously overvalues the service lawyers offer while denigrating their supposed professionalism. The confidential information issue is, by contrast, a real one, but it surely requires something a bit more solid than straight-out speculation.

What’s crucial is the other side of the coin: that Rosenfield is being denied a lawyer of his choice (while TGM has no such burder.) If this was a criminal matter, that’d be a breach of Charter s. 25(2)(d), but this is, instead, a civil matter. Nevertheless, surely fairness will typically involve legal represntation of choice; it definitely requires equality of arms, which seems to be a little shaky here. Cremean, however, cited the Charter in TGM’s favour:

I am concerned with the outward perception of the performance of the Tribunal’s duty under the Act particularly s97. The duty to act fairly could be seen to be compromised if I allowed a member of Counsel to appear against a client for which he previously acted not very long ago. The perception could be that he might have available to him or her information given in confidence and might, unwittingly, use it. This is especially so when the factual contexts in both cases are not dissimilar. It is important also to note the fair hearing right given by s24 of the Charter of Human Rights and Responsibilities Act 2006. I do not consider it proper in the circumstances to allow Mr Foster to appear.

A classic passing mention, in that it doesn’t pay much attention to such niceties as the relevant operational provisions and any compelling comparative law judgments. Interestingly, Cremean’s argument – which notably only seems to focus on the fair hearing rights of TGM – seems to be in breach of Charter s. 6(1), which says that only human beings have human rights and specifically denies them to corporations like TGM. I’m no fan of Charter s. 6(1), especially in this context, but its effect does seem to be that, at least under the Charter, it’s Rosenfield’s fair hearing right that should have been promoted (with TGM’s and VCAT’s interests demoted to a factor in a Charter s. 7(2) or Charter s. 38(2) analysis.) Oops.

Alas, there has been at least one more VCAT judgment on the Charter in recent times that goes way beyond a passing mention, raising a novel and interesting question about the requirements of Charter s. 33 , some familiar but interesting questions about the continued status of McMahon v Gould in light of the Charter, and does a reasonable, if not ultimately satisfying job, at grappling seriously with the operative provisions. Indeed, I’ve written a lengthy post of nearly 4000 words on the case and had it ready to go as soon as the judgment appeared publicly on Austlii. Alas, when I got a little tired of waiting for it to appear and inquired with VCAT about whether there was some sort of problem, I got a response late yesterday that – strangely, just yesterday! – President Bell issued an order suppressing the judgment – and any ‘disclosure or publication’ of it  –  until next month, except for the purposes of the parties who might wish to appeal. Was that my fault?

Doubtless, Bell has good reasons for his order. Arguably, he’d better have Continue reading

The right to Miranda

Two days ago, in Salduz v Turkey [2008] ECHR 1542, the Grand Chamber of the European Court of Human Rights unanimously overruled one of its lower chambers, in a case concerning a young man accused of breach of Turkey’s anti-terrorism laws through his alleged involvement with the PKK. Seventeen year-old Yusuf Salduz, arrested on suspicion of being involved in a PKK demonstration and hanging an illegal banner (“Long Live Leader Apo”) from a bridge, was interrogated for two days by government security officers. In accordance with the then Turkish security laws, he was not allowed a lawyer, though he was told of his right to remain silent. He confessed to the allegations and gave samples of his handwriting, which an expert report was unable to conclusively match with the banner. After his charge, he retracted the confession, but was convicted on evidence including the confession, a further expert report and evidence from his alleged partners in PKK-support.

But the facts scarcely matter. At issue was this ECHR right:

6.3 Everyone charged with a criminal offence has the following minimum rights:… (c) to defend himself in person or through legal assistance of his own choosing…

The terms of this right appear to speak about the trial itself. The ECtHR has held that it (and its allied fair hearing right) can have implications for pre-trial interrogation, but that requirement was couched in terms of flexible reasonableness standards:

National laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings. In such circumstances, Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. However, this right has so far been considered capable of being subject to restrictions for good cause. The question, in each case, has therefore been whether the restriction was justified and, if so, whether, in the light of the entirety of the proceedings, it has not deprived the accused of a fair hearing, for even a justified restriction is capable of doing so in certain circumstances…

But not any more:

[T]he Court finds that in order for the right to a fair trial to remain sufficiently “practical and effective” Article 6 § 1 [the ECHR fair hearing right] requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6…  The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.

This pronouncement recalls the most famous criminal procedure case of all time: the Warren’s Court’s ruling in Miranda v Arizona:

[W]e hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him

What was startling about Miranda, and is startling about Salduz, is the mandatory nature of the rule: no lawyer (and no waiver) = no admissible confession. Indeed, the link between the two cases runs deep indeed. Salduz, like Miranda, bases its rule explicitly on the privilege against self-incrimination:

In this respect, the Court underlines the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial..  At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task it is, among other things, to help to ensure respect of the right of an accused not to incriminate himself. This right indeed presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused…  Early access to a lawyer is part of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self-incrimination.

And Salduz, like Miranda, takes a narrow view of what can count as a waiver of the right to a lawyer:

The Court further recalls that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial… However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance…  Thus, in the present case, no reliance can be placed on the assertion in the form stating his rights that the applicant had been reminded of his right to remain silent.

All of this is most exciting in Victoria, where Miranda has never been the rule. Continue reading

Taxi driver redux

Sophie Delaney and Vivienne Topp write in today’s Sunday Age on XFJ (the first mention of the case that I’m aware of in the broadsheet):

Not only is this a disturbing example of tabloid-driven law-making, and an undermining of the rule of law, it is also potentially discriminatory. People found not guilty due to mental illness offend because of their illness. An indiscriminate exclusion of such people from employment or participation in society is particularly questionable in the year when Victoria’s Charter of Human Rights and Responsibilities has become fully operational.

It is starting to look like the Charter will inevitably be drawn into this case, despite its near miss in the VCAT judgment.

There are currently three Charter angles:

First, there’s news of an action to overturn the suppression order on XFJ’s name by VCAT:

Ms Kosky’s comments came as the Herald Sun launched legal action to unmask the man, who stabbed his wife to death in a frenzy and whose identity is suppressed by a tribunal order.

It was pointed out to me that, if the Herald Sun was able to use the Charter to reveal XFJ’s identity, then my feared head-on crash may be more of a love-in. Indeed. But it isn’t an especially likely outcome. As the Herald Sun’s owner happens to be a corporation (Herald and Weekly Times), it has no rights. This seems to be the basis on which Channel Nine’s action to get Underbelly unsuppressed came a cropper. It shouldn’t have, of course, as the VCAT suppression order (like King J’s) affects the rights of Melbournians to ‘receive information’, part of their Charter freedom of expression. As well, at a stretch, the Hun can argue that those Melbournians’ right to movement might be harmed by not knowing XFJ’s identity (as some may be deterred from taking taxis.) Even more extreme, they could claim that their rights to security or life are at stake. But that’s a two-edged sword: XFJ’s rights against discrimination, privacy, security and (at a stretch) life (and maybe his family life) are protected by the order. 

Second, there’s Kosky’s promise to appeal against the VCAT judgment:

We will look at every avenue for appeal so I can actually fix that difficulty, so everyone can feel safe when they hop in a cab. That’s what I want to be able to guarantee,” she said.

Presumably, the government will argue that Macnamara misinterpreted the word ‘comfort’ in the Transport Act’s ‘public care objective’ as about upholstery rather than the personal foibles of Melbournian taxi drivers. It’s inevitable that XFJ will resist this argument using the Charter. Macnamara didn’t have to resolve that issue, but the Supreme Court will have to. Perhaps the government will respond with Charter arguments about Melbournians’ rights. But, more likely, the government will just fight XFJ’s Charter claims tooth-and-nail. Charter s. 35 notices will have to be issued, meaning that the Attorney-General and VEOHRC will be invited to the party. Both of course will be there to provide neutral assistance, so maybe the Attorney-General will back XFJ? Anyone want to bet on that one?

Third, there’s the coming legislation. Continue reading

The Charter in passing

After midday on 22nd February 2006, four or so months before the Charter was enacted, Peter Kokkios took a walk through Richmond’s public housing estate, not far from where I live. He was approached by a short skinny man and a tall fat one – that rules me out! – who asked him for a cigarette. When Kokkios said no, the next request was for his $1800(!) Tag Heuer watch, a request backed up by a syringe produced by the skinny guy. After taking a further $50 from Kokkios’s pocket, they ran off, with the taller one shouting ‘Come on Ant!’. Who was this ‘Ant’?

Mr Kokkios recalled that the skinny man had bloodshot and baggy eyes along with bad skin and bad breath. Mr Kokkis recalled that he was about 5 feet 10 inches tall and his hair, which was slicked or combed back, was black. He recalled that the skinny man looked European – Italian or Greek – was clean shaven, had brown eyes, a very long and skinny face and was approximately 20 to 25 years old. He recalled that he was wearing a red top and black ‘parachute’ tracksuit pants and a red T-shirt.

The next day, Kokkios identified Antonio Falcone from a photoboard. Falcone’s alibi wasn’t the best. He said that he went with his mum to the Commonwealth bank on nearby Bridge Road to get some money out, but left empty-handed when it turned out his account was in the red. A computer record showed that his discussion with the bank happened at 11.40AM. The disappointed pair went home. A couple of hours later, Falcone pawned some of Mrs Falcone’s jewelry. He denied having entered the housing estate that or wearing red or black clothing.

At Falcone’s trial for armed robbery, late last year, the deliberating jury had the following question for the trial judge:

If we find that we can place him at the scene, but believe he is not the man with the syringe, can we still find him guilty?

The jury’s question probably arose because of the account of Raglus, another possible eyewitness, who said he saw two men eyeing off a flash car near the housing estate close to midday. The witness also identified Falcone from a photoboard, but said that it was the other taller guy who was wearing red and black. After consulting both counsel, the trial judge responded:

If you find that the accused man wasn’t the one with the syringe, then you must have a reasonable doubt about the identification made by Mr Kokkios as identifying this accused man because he gives no description of Man No. 2 other than broader and bigger than Man No. 1. So if you were to reach this position then you must look at what’s left before you in the case and that’s the evidence of Scott Raglus and what you make of that, the evidence of Mr Trojan the man at the bank and what you make of that, the evidence of Mr Falcone and Detective Senior Constable Roberts and finally what the accused man had to say during his interview with the police. So that’s how I’m going to answer your question and I’ll otherwise ask you to return to the jury room and if there’s anything else that I can assist you with, please let me know

I’m not convinced that this is actually what the jury wanted to know. This account is directed to whether or not the evidence could support a finding that Falcone was the other man. But I suspect that what the jury really wanted to know was whether you could still be guilty of armed robbery even if you weren’t the one carrying the syringe. Because of the doctrine of ‘acting in concert’, the answer is, almost certainly, yes, as the trial judge had earlier directed them. Three days later, the jury convicted Falcone of armed robbery. In R v Falcone [2008] VSC 225, the Court of Appeal overturned Falcone’s conviction and ordered a new trial. The reason was that the Crown’s sole theory presented in the trial was that Falcone was the guy with the syringe. Australia’s common law doesn’t allow a new factual theory to be introduced without the defendant having a chance to respond. So, the trial judge should, instead, have answered ‘no’. 

This mundane, if somewhat depressing, procedural error yielded the following Charter remark from Vickery J, writing the judgment for the court:

The right to a fair trial is an essential safeguard of the liberty of the individual under the law. It finds expression in Article 14 of the International Covenant on Civil and Political Rights 1966 and is reinforced by s 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

This is a ‘passing mention’. I complained about this practice back in February, during the (in hindsight) happy era when the Supreme Court’s jurisprudence was characterised by feel-good vagueness, rather than the misreadings and lousy analysis that soon rose to the fore. It is to be distinguished from both the outright sloppiness of approaches like Bongiorno’s and Lasry’s (amongst other reasons, because the Charter wasn’t applicable in Falcone’s case due to Charter s. 49(2)) and also the helpful approach of Neave and Warren (who mentioned the Charter to indicate what difference it may make in the future.) Rather, Vickery’s approach is similar to the dull jurisprudence of the ACT Supreme Court on its HRA, where the Charter is seen as, in some vague and unimportant way, restating the existing law. It’s worth recalling why this is a lousy practice. Continue reading

The right not to be hurt

A tiny Supreme Court judgment from a month back has appeared on Austlii. Daniels v Bayside Health [2008] VSC 472 involves an unrepresented man who is convinced that his son’s health and, possibly, his life is in danger from treatment he is receiving as an involuntary patient under the Mental Health Act 1986 at Thomas Embling Hospital. Bernard Daniels has been told be Dr Yolanda Lucire, a Sydney doctor, that his son Garth has been misdiagnosed as a schizophrenic and instead has had a variety of other conditions for the last ten years. Her opinion is that the treatment Garth is receiving, valium and zuclopenthixol, is likely to cause harm to him, in particular to his muscles. The treating doctors acknowledge that the medicine has its risks, but dispute the doctor’s diagnosis of a complicating condition called neuroleptic malignant syndrome.

Daniels senior lodged a review with the Mental Health Review Board but turned up at the Supreme Court because he wanted the medication stopped prior to that review. The Mental Health Act requires that all patients (and, presumably, as appropriate, their guardians) be told their rights. Recent new regulations specify that involuntary patients be told of their Charter rights in these terms:

The Victorian Charter of Human Rights and Responsibilities Act 2006 seeks to promote and protect certain human rights. The Charter defines the protected rights and requires public mental health services to act compatibly with these rights. The Charter also specifies when and how rights can be limited by law. For example, under the Mental Health Act 1986 you may be detained in a mental health service if it is necessary to protect your health or safety or the safety of others. However, any restrictions on your liberty and any interference with your rights, privacy, dignity and self-respect must be kept to the minimum necessary in the circumstances. If you have any questions about the Charter or how it might affect your treatment, contact one of the organisations described at the end of this statement.

This does a nice, if inevitably inadequate job, of explaining the nuances of the Charter. It doesn’t, for example, address the complex issue of whether the Charter places some fundamental new limits on treatment, notably when the treatment is a threat to someone’s health, as Lucire alleges in this case. The statement directs patients wanting more information to VEOHRC. It’d be interesting to know what they’d say in this circumstance.

Daniels senior raised the Charter in these terms:

In the course of his argument, Mr Daniels has raised a large number of matters, many of which are not really matters which I need or can determine at this stage. He raised questions of procedural fairness, the entitlement of his son not to suffer torture under the Charter of Human Rights and Responsibilities 2006, the entitlement of his son not to suffer death or to be at risk of death under the Charter.

Not a bad effort. Daniels has obviously read Charter ss. 9 and 10. The difficulty for him, alas, was that, testifying by phone before the Supreme COurt, Lucire didn’t support the claims of threats to Garth’s life or that there was an intermediate risk, e.g. to his heart muscles. 

Daniels’s reference to procedural fairness – it’s not clear what fairness issues were at stake – was presumably to Charter s. 24. At the Protecting Human Rights conference, I observed that the Attorney-General, intervening in a Mental Health Review Board matter, was described in the judgment as submitting that the right to a fair hearing doesn’t apply to mental health matters. However, Joanna Davidson, in the audience, publicly and firmly objected to my ‘mischaracterisation’, insisting that the issue only arose in passing and that she only canvassed the law briefly. Her vehemence carried the clear implication, before an audience with considerable interest in this matter, that the Attorney-General would never take such a miserly stance. That very public exchange would be quite a relief to many stakeholders in mental health, including Daniels. 

Justice David Byrne treated the matter with appropriate flexibility, deeming it to be an application for an interim injunction for a variation to Garth’s treatment order (even though no application was actually filed.) However, the application was dismissed:

In the circumstances and given the limited area of my concern in this type of application, I find myself not satisfied that the current medication is so dangerous as to warrant the intervention of the court, assuming that the court has the power to intervene in such a case. Accordingly, the application for interim injunctive relief must fail.

While Bryne’s stance is understandable, I’m not convinced that the test applied is appropriate in light of the Charter. While it’s clear that findings weren’t open about breaches of Garth’s rights to life and against degrading treatment, I think that things are a little different given a further Charter right: Continue reading

Flugge’s challenge

flugge_narrowweb__300x4530Boy, it’s suddenly gotten busy. Two challenges to SSOMA . One to MC(IP)A. Bell’s hearing next week on mental health. A taste of Victoria’s glorious Chartered future. But those are pending matters. Decided matters still drip through and make little splash. Today, the Victorian Supreme Court issued judgment in Trevor Flugge’s Charter challenge, Re AWB Limited [2008] VSC 473. Flugge won, but the Charter point wasn’t considered.

Flugge’s case and its demise follows directly from these conclusions of the Cole report into the Australian Wheat Boad’s role in the Oil-for-Food scandal:

I]n my view:

  • Mr Flugge might have been either reckless, or intentionally dishonest, and might have failed to exercise his powers or discharge his duties either in good faith in the best interests of AWB or for a proper purpose and therefore might have committed an offence against s 184(1) of the Corporations Act 2001
  • Mr Flugge might have dishonestly used his position and been reckless as to whether the use of his position may have resulted in Iraq or an Iraqi entity directly or indirectly gaining an advantage and therefore might have committed an offence against s 184(2) of the Corporations Act 2001
  • Mr Flugge might have failed to exercise his powers and discharge his duties in the best interests of AWB and for a proper purpose and therefore might have contravened s 181 of the Corporations Act 2001
  • Mr Flugge might have failed to exercise his powers and discharge his duties with the degree of care and diligence that a reasonable person would exercise if they were a director of a corporation in AWB’s circumstances and occupied the office held by, and had the same responsibilities within the corporation, as Mr Flugge and therefore might have contravened s 180 of the Corporations Act 2001.

It is a serious matter for an officer of a public corporation such as AWB to authorise the corporation to enter into agreements in breach of statutory duties that the officer owes to the corporation, particularly where the officer acts intentionally, dishonestly or recklessly in breach of those duties.

I recommend that this matter be referred to the Task Force for consideration of whether proceedings under sections 180, 181 and 184 of the Corporations Act 2001 be instituted against Mr Flugge.

I note that section 1317K of the Corporations Act 2001 imposes a six year limitation period for the commencement of proceedings arising from contraventions of civil penalty provisions. Accordingly, the referral to ASIC should only be in relation to the conduct of Mr Flugge that occurred from 2001 onwards

The key nuance is that Cole’s findings supported both ‘civil penalty’ proceedings (which can attract disqualification and ‘pecuniary penalties’) and criminal proceedings (which can attract fines and prison.) While the concept of a civil penalty proceedings was initially conceived as an alternative to criminal prosecution, the scheme was eventually changed to allow criminal proceedings to go ahead even though civil proceedings were in place or had concluded. The reverse couldn’t occur, unless the civil proceeding failed.

In the case of Flugge and four other directors against whom Cole recommended both civil and criminal proceedings, ASIC said that it would do the civil proceedings first, because of the civil statute of limitations. (By coincidence, one of the relevant contracts commenced on 20th December 2001, meaning that the six year cut-off was 19th December 2007. If Coghlan’s ridiculous decision in BAE Systems Australia is correct, then that starting-point, weeks before the Charter’s full commencement, would have barred the Charter from the case. That’s a point wasn’t resolved here.)

What was argued was that the serial procedings were unfair to the defendants, mainly because they would have to choose between revealing their defences (including possibly testifying) in the civil proceedings (which will feed handy information for the criminal prosecutions) or not doing so, possibly harming their civil defence. There is a provision barring the use of evidence adduced by the defendant in civil proceedings in the later criminal ones. But, like the other Charter case involving overlapping proceedings – Bongiorno’s concern about the coercive questioning regime operating in parallel with a criminal prosecution – the bar doesn’t extend to ‘derivative’ information.

Flugge et al argued that the civil proceedings ought to be stayed until the criminal matters are resolved. This would, of course, solve ASIC’s statute of limitations problem, but ASIC nevertheless resisted the stay. The question of whether or not a stay should be granted turned on a 1982 case, McMahon v Gould, which set out an ‘interests of justice’ test that gave priority to the right of ‘plaintiffs’ to pursue whatever actions they want. But later authorities suggested that the balance should shift in favour of a stay, in particular because of the potential for defendants in civil proceedings to have to testify (or otherwise defend themselves), thus undermining their right to silence in a later criminal matters. The Charter was thrown into this mess of precedents as follows: Continue reading

More on the sex offenders’ challenge

I happened to be in the legal precinct today and dropped by to listen in at the sex offenders’ challenge in the Court of Appeal. Pamela Tate was speaking (presumably for the Secretary, rather than with her ‘neutral’ hat on intevening for the Attorney-General. At least, that’s sure how it sounded.) There were nine barristers there (presumably three each for the two fiends – I spotted Kris Walker. Some VEOHRC staff were there, but it didn’t look like the commission was intervening. [EDIT: Nope, they are intervening, and will speak after the S-G. So, maybe I’m wrong and the A-G was intervening too? It’d be handy if they could colour-code those wigs of theirs.] There was no talk of a declaration, so I assume none of the required Charter s. 36(3) notices are out on that one.  

It’s dangerous to try to sense the mood when you only watch part of a case – as the mood can be the opposite when the other side speaks – but the case didn’t seem to be going at all well for Tate, with Maxwell and Weinberg both hammering into her. Nettle was quieter and even helped her out every now and then.

Anyway, some tidbits I picked up:

  • A comity of errors: One issue (possibly the only one) is the interpretation of ‘likely’ in s11 of the SSOMA. It certainly does seem to be in the cards that the CoA will overrule Callaway in TSM (despite only being a three-judge bench.) Indeed, both sides seemed to disagree with Callaway, with Tate describing his judgment as somewhat confused (which it is.) Hilariously, Tate’s argument is that Victoria should follow the present approach of the NSW Court of Appeal. Regular readers will recall that the NSWCA reached that interpretation reluctantly out of comity with Callaway in TSM! To sustain her argument, Tate had to claim that the NSWCA’s actually misinterpreted Callaway and somehow stumbled onto the right answer.  It’s hard to see how this sort of error can be persuasive, especially when the NSWCA clearly said that, but for comity, it wouldn’t have followed TSM at all but rather would have adopted a stricter standard (which, presumably, Tate thinks is the wrong standard.) Tate, trying to get away from Tilman, relied instead on the follow-up case, Cornwall. Readers will recall that Cornwall was the first bloke the NSWCA refused to detain, ruling that there was no ‘high degree of probability that he was likely’ to re-offend and that electronic supervision would do. He had his bracelet off and melted away within 30 minutes. Surprising that the Victorian government thinks that that’s the perfect test. I guess that Tate will argue that, although the NSWCA stated the correct test in Cornwall, they nevertheless misapplied it to the facts. 
  • A non-‘trivial’ bar: Tate’s big pitch was that, whatever the test is, it shouldn’t be quantitative. That’s because she knew that the court would then go for the ‘more likely than not’ standard that the NSWCA would have backed were it not for TSM, which would certainly narrow the SSOMA scheme. Not that she said that; rather, she argued (1) it would go against the legislature’s choice to use the word ‘likely’, which she claimed (to Weinberg’s incredulity) wasn’t quantitative. Maxwell kept point out that all that was clear is that the test isn’t normative (e.g. a Briginshaw-like standard that re-adjusted itself according to what issues were at stake.) Tate very reluctantly agreed with that. 2) It would encourage over-reliance on statistical expert evidence. Weinberg’s response was that the best way to stop statistical evidence is to stop asking for it and listening to it. Maxwell was concerned that trial judges need an intelligible standard. He could hardly keep a straight face when Tate suggested that defining ‘likely’ to mean ‘a sufficiently substantial risk’ would provide the required certainty (and wouldn’t be ‘normative’.)  The judges then mooted the idea that the bar should be high indeed, given how extraordinary ESOs are. Tate firmly stated that the bar should not be ‘trivial’. That’s quite a concession. She then embarked on some stats to show that of the 150 eligible offenders released last year, the Secretary only called for reports on 34 and only sought orders on 10. Of those tenm seven were granted and the other three were… pending. Weinberg asked whether that meant that none had been refused. ‘Um’ retorted the S-G, until Weinberg pointed out the math. Tate countered with more stats, which suggested that of 40 court applications to date, ‘several were withdrawn’, one was reversed on appeal and one was rejected. A high bar indeed. Attrition stats are always tricky in a discretionary system aren’t they?
  • A non-criminal process for locking up criminals: ‘So, you’d better address Charter s 7(2) then’, said Maxwell. Uh, there’s an intervening step, said Tate: have any rights been limited? That is indeed true, but why she wanted to embark down that road is beyond me. But embark she did, passionately arguing that Charter ss. 25(c), 26 and 27 didn’t apply because of Fardon, the High Court’s umpteenth refusal to apply Kable. Maxwell was a bit dubious about the relevance of Chapter 3 to the meaning of ‘punish’, but Tate pressed Gummow’s  ‘normative scheme’ approach. According to Gummow, ESOs are nothing at all like criminal sentencing, because ESOs are simply triggered by guilt but are imposed for other reasons. As opposed to sentencing, which… um…. anyway. Tate also mentioned a UK case that Maxwell snorted was about non-contact orders, not supervision. Somehow, the model litigant didn’t see fit to talk about Belcher, where the NZCA held that almost identical legislation was punishment for the purposes of NZBoRA’s criminal process rights. I guess that’s in the written arguments. But why wouldn’t she be responding to what her opponents said on that? I hope they know about it! Weinberg raised the fact that SSOMA says that proceedings are criminal. Tate said that was not-determinative but just a starting point and was just a mechanism to ensure that the Secretary had the same obligations as a prosecutor. Weinberg was confused: does the Secretary usually have less obligations than a prosecutor? Nettle chimed in with something about having to call adverse witnesses. Maxwell suggested that, if the proceedings are criminal, then maybe contested facts need to be proven beyond reasonable doubt? Tate said she was sur that the test was balance of probabilities. But you’ve gotta wonder if that will be true in 2010 when s141 of the Evidence Act 2008 kicks in.
  • ESOs and helicopter mums: Tate did concede that ESOs limited one right: freedom of movement. (It’s not clear whether or not the fiends raised any others. Self-incrim, alas, didn’t get a look-in.) So, it’s time for 7(2). Tate started by saying that you need to look closely at the nature of the right. Weinberg said: movement’s pretty important isn’t it? It’s essential to liberty. Tate argued that, at international law, ESOs don’t engage the right to liberty at all. Maxwell asked her to say that again so that no-one misunderstands it. Ouch. She valiantly insisted that ESOs could be likened to mum and dad telling the kids to phone then when they get to their destination. Weinberg pointed out that, regardless, movement was high on the scale in 7(2)(a). Tate sounded unhappy about that. I wonder what’s high on her scale? Life, I guess. What I don’t get here is that all the arguments were about the mandatory bits of the ESO scheme. But an ESO also exposes you to the discretion of the Adult Parole Board, which can order stuff like mandatory medical treatment, having to ‘reside’ at Ararat Prison, who you can associate with, whether you can use the net, etc. There are plenty of rights limitations there. The Board, of course, isn’t bound by the Charter. So why don’t ESOs engage all those rights? It’s not clear that that’s what the sex offenders are arguing, though. Strange.

And that was it for the day. They’re at it again tomorrow, but I’ll skip it.

Again, caution is necessary, but Tate seemed to know that she’s going to ‘lose’ at least 2-1, in the sense that the judges are going to toughen up the TSL threshold to ‘more likely than not’, at least and cite the Charter as the reason. I can’t help but think that Tate is just going through the motions now and planning a High Court appeal, where the judges who were in the majority in Fardon will presumably be more sympathetic to her take on things.

The sex offenders’ challenge

My guess last post was right. (Of course, presumably the whole legal community knew this, but not me.) It’s on!:

Two convicted sex offenders are invoking Victoria’s human rights charter to appeal against being given an extended supervision order in what is a legal first.

One of the applicants is a child sex offender jailed for more than 10 years for his crimes. The man, whose name is suppressed, was convicted for sex crimes against his teenage daughter, another teenage girl and his adult partner. He was given a 10-year extended supervision order when he finished his jail term after a County Court judge found a “high degree of probability” he was likely to further offend. However, his lawyer Graham Thomas SC told a Court of Appeal hearing today his client was not a high-risk child sex offender and therefore not eligible to to be subject to the order.

Mr Thomas also said the sentencing judge had indicated she did not believe the man was suitable for an order but later changed her position. But counsel representing the secretary to the Department of Justice, David Grace QC, said the man’s crimes were premeditated and opportunistic. Mr Grace said the sentencing judge included in her reasons the fact the man had shown a lack of insight into his behaviour by denying his wrongdoing. He said the man jumped bail on the day he was due to attend his court hearing on his application for an extended supervision order and had refused to take part in a sex offenders program, despite being offered many times. Mr Grace said the man continued to “thumb his nose up at authority” and suggested he tried to create relationships with females with children while he was in jail so he could groom them for sexual offending.

The second sex offender is appealing an eight-year extended supervision order imposed on him by the County Court on the basis it is too long. The man, whose name is also suppressed, was jailed for more than a year for indecent assault and will also use the charter to argue his case.

Victoria became the first Australian state to implement a Charter of Human Rights and Responsibilities on January 1 and it is the first time it will be considered by Victoria’s appeal court. The hearing before Justices Geoffrey Nettle, President Chris Maxwell and Mark Weinberg continues tomorrow.

Um, it’s actually the sixth time the Charter will be ‘considered’ by Victoria’s appeal court. The appeal court cited the Charter once in 2006 and four times again this year, including in its appalling Underbelly decision. Here’s hoping, though, that this will be the first time the Court actually does the Charter justice, in analysis if not in the final result. Interestingly, all three judges in this hearing are Charter virgins. The case, argued today, is listed for a second day of argument tomorrow. [EDIT: And here’s the Hun’s take. The tabloid refers to the offenders as ‘sex fiends’ (fair enough, I guess) and, as is the norm, gives more details of the legal argument than the Age.]

But what is being argued? The article is tantalisingly vague. I can see three types of rights arguments could be made about extended supervision orders (ESOs): Continue reading

Napping in the High Court

Once upon a midnight dreary, while I pondered, weak and weary,
Over many a quaint and curious volume of forgotten [law]–
While I nodded, nearly napping, suddenly there came a tapping,
As of some one gently rapping, rapping at my chamber door.
“‘Tis some visitor,” I muttered, “tapping at my chamber door–
Only this, and nothing more.”

Actually, it was Judge Dodd’s aides loudly dropping those law booksto wake him up during a deadly dull drug trial.  On Thursday, the High Court added another short volume. At last, we are blessed with the reasons for judgment in  Cesan v The Queen; Mas Rivadavia v The Queen [2008] HCA 52. The problem of sleeping judges raises two great questions and one silly one:

First, how can you tell if a judge is asleep? Recently, Refshauge J of the ACT Supreme Court had to determine whether he had nodded off during a deeply-dull-sounding matter about tracing improperly transferred Commonwealth funds. Allan Endresz, one of the matter’s twenty-nine defendants, having heard about the High Court allowing Cesan’s appeal, started claiming that Refshauge was occassionally driftig off during the triall. The judge told Endresz that his argument would be stronger if he pointed it out when it happened. Andresz didn’t quite comply, with his next allegation and the alleged nap being separated by a lunch break. However, matters came to a head when Edresz produced one of his employees who had been sitting in the gallery with a notebook. TTime pressures meant that Refshauge himself had to rule on whether he had been asleep at the times noted, which he noticed was as silly (and common) as a judge ruling on whether she or he was biased. He resolved the issue by considering the evidence: that no-one noticed any snoring; that Endresz’s main evidence (a fake objection to test the judge’s wakefulness that received a slow response) was inconclusive; that other counsel disagreed with Endresz’s observations; that Refshauge didn’t recall being asleep; that his notes showed no signs of ‘squiggles’; and that the tape recording of the incident was both familiar to him and appeared to catch him coughing. Mystery solved. Refshauge ruled that he had his eyes shut to concentrate and would be cautious about his demeanour in future.

The factualy mystery was less happily resolved in Ceasan’s case. Although the defendants raised Judge Dodd’s snoozes with their counsel, he advised them that they were better off with Dodd than 85% of the NSW judiciary. (French CJ concluded that this wasn’t a reference to the judciary’s sleepiness, but rather their pro-prosecution bias. What a relief!) But they did offer a slew of affidavits from themselves and their supporters on appeal. Conveniently for them, the majority of the NSWCCA (presumably part of the 85%) were so certain that sleepiness was no injustice that they glibly accepted the evidence that Dodd was napping and the ensuring circumstances (presumably assisted by medical evidence about Dodd.) So, facts weren’t the problem in the High Court.

Second, is a sleeping judge a miscarriage of justice? This is the question the NSWCCA came a cropper on, with the majority holding that the judge’s mere physical presence (unaccompanied by actual consciousness) was enough, at least if the judge wasn’t required to make any legal rulings while napping. The High Court overruled that, but on two quite different grounds. The majority focused exclusively on evidence that the jury was distracted by the judge’s napping. Cesan’s sister said:

During the times when the judge was asleep for long periods I noticed that many of the jurors appeared not to be paying attention to what was being said and would appear restless. They would fidget, look at each other, watch the judge, look around, appear to be scribbling and generally appeared to lose concentration. This was very different to how the jury reacted when the judge was awake. At those times they would appear to be paying attention, generally looking at whoever was speaking or at their papers when asked. It was very obvious to me that there was a real difference in the jury’s behaviour when the judge was asleep.

Others testified that jurors joked, and jurors and officials slept while Dodd nodded. The majority held that such conduct was at odds with a proper trial. Trial judges had better be careful not to trigger a wave of yawns in future trials.

The new Chief Justice Robert French took a bolder view, holding that the jury’s conduct was mere evidence of a deeper problem causeed by the judge’s behaviour:

If, by reason of sleep episodes or serious inattention, the reality or the appearance exists that a trial judge has substantially failed to discharge his or her duty of supervision and control of the trial process in a trial by jury, then enough has been made out to establish a miscarriage of justice. 

The problem, French held, is the appearance of justice. Without that appearance, there might be miscarriage of justice. Refshauge better keep his eyes wide open in futere.

French held that the absence of complaint by counsel wasn’t determinative, given the amount of sleep proven and the evidence of jury distraction:

The question whether there has been the reality or appearance of a substantial failure by the judge to perform his or her duty will require assessment of a number of factors including: 1. Whether the conduct of the judge can be said to have affected the outcome of the trial. 2. Whether the conduct of the judge has created a risk that the outcome of the trial may have been affected. 3. Whether counsel raised the question of the trial judge’s conduct at the trial. 4. Whether the jury appeared to have noticed or to have been distracted or otherwise affected by the judge’s conduct.

Alas,  the other four Howard appointees and Gummow didn’ even mention French’s approach. Interesting politics, there. Perhaps they couldn’t stomach the fact that French cited a European Court of Human Rights judgment on the right to a fair hearing for his ‘appearance of justice approach.’ More likely, they were probably pissed off that French spent much of his judgment defining the term ‘miscarriage of justice’, contrary to the Gleeson court’s approach to interpreting appeal statutes, where century-old terms have been belatedly deemed undefinable and definitions are regarded as inappropriate and irrelevant judicial glosses. 

And, now, the silly question: should the defendants get a new trial? Continue reading

Bongiorno’s challenge

Last Friday’s Stateline brought some major Charter news:

As part of its election commitment, the Victorian Government introduced a Charter of Human Rights. Now Supreme Court judge Justice Bernard Bongiorno has questioned whether aspects of coercive powers legislation are in conflict with the Charter. He’s called for written submissions before deciding on the matter and has halted the granting of coercive orders to police in cases where the subject of the order has already been charged.

Um, ‘election commitment’? The Bracks Government was elected to its second term in 2002 and its third term in November 2006. Hulls’s Justice Statement announcing the Charter consultation was in May 2004 and the Charter was on the statute books in July 2006. George Williams has said that the short time frame was designed to fit in with ‘the electoral cycle’. So, let’s not engage in any revisionism, OK?

Anyway, assuming that Stateline can be trusted on the rest of its story, this is, at last, a significant Charter challenge to some significant Victorian legislation that has significant legs. Interesting that the Charter issue appears to have been raised by Bongiorno himself. That’d be the third time he’s done that (see here and here.) The challenge appears to be to the Major Crime (Investigative Powers) Act 2004, which was passed in the midst of the gangland war. (Don’t mention the war!) Its provisions allow for a ‘coercive powers order’ in the following situation:

5(1) Subject to subsection (2), a member of the police force may apply to the Supreme Court for a coercive powers order if the member suspects on reasonable grounds that an organised crime offence has been, is being or is likely to be committed.

8 The Supreme Court may make a coercive powers order if satisfied-

(a) that there are reasonable grounds for the suspicion founding the application for the order; and

(b) that it is in the public interest to make the order, having regard to- (i) the nature and gravity of the alleged organised crime offence in respect of which the order is sought; and (ii) the impact of the use of coercive powers on the rights of members of the community.

The order allows the issuing of a ‘witness summons’ to anyone over 16. That’s an offer you can’t refuse:

37(1) A person served, as prescribed by this Act, with a witness summons to appear as a witness at an examination before the Chief Examiner must not, without reasonable excuse- (a) fail to attend as required by the summons; or (b) fail to attend from day to day unless excused, or released from further attendance, by the Chief Examiner.

(2) A person appearing as a witness before the Chief Examiner must not- (a) at an examination, refuse or fail to answer a question that he or she is required to answer by the Chief Examiner; or (b) without reasonable excuse, refuse or fail to produce a document or other thing that he or she was required to produce by the witness summons.

(3) A person who contravenes subsection (1) or (2) is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum).

39(1) A person is not excused from answering a question or giving information at an examination, or from producing a document or other thing at an examination or in accordance with a witness summons, on the ground that the answer to the question, the information, or the production of the document or other thing, might tend to incriminate the person or make the person liable to a penalty.

So, what’s the problem? Well, it probably isn’t the Charter right to freedom of expression, because that it is glossed by a significant exception:

15(3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary-…  (b) for the protection of national security, public order, public health or public morality.

Rather, the likely ground of challenge is the Charter’s two rights affording a privilege against self-incrimination: Continue reading

The meaning of doubt

It is commonplace for jurors in Australian criminal trials to ask the trial judge to define ‘reasonable doubt’. It is also commonplace for trial judges to refuse to do so. Indeed, it is mandatory. Here’s Owen Dixon from a 1961 High Court judgment:

[I]t is a mistake to depart from the time-honoured formula. It is, I think, used by ordinary people and is understood well enough by the average man in the community. The attempts to substitute other expressions, of which there have been many examples not only here but in England, have never prospered. It is wise as well as proper to avoid such expressions.

A new jury study by NSW’s Bureau of Crime Statistics & Research proves that Dixon was wrong. 1225 jurors in 112 NSW criminal trials were asked the folllowing question

[P]eople tried in court are presumed to be innocent, unless and until they are proved guilty ‘beyond reasonable doubt’. In your view, does the phrase ‘beyond reasonable doubt’ mean [pretty likely the person is guilty/very likely the person is guilty/almost sure the person is guilty/sure the person is guilty]?

The results:

Pretty likely person is guilty: N= 119 (10.1%)

Very likely person is guilty: N= 137 (11.6%)

Almost sure person is guilty: N= 270 (22.9%)

Sure person is guilty: N= 652 (55.4%)

No-one will be panicking about the 78.3% of jurors in the latter two categories. But, bearing in mind that jurors were given a choice of all four options, the 21.7% in the first two categories are a disaster. It gets worse:

Jurors’ understanding of the concept ‘beyond reasonable doubt’ is significantly related to their understanding of the judge’s instructions on the law, whether the trial dealt with adult/child sexual offences or other offences and whether English was the juror’s first language.

Virtually every other comparative court takes the view that ‘beyond reasonable doubt’ must be defined by the judge. Here are some of the mandatory definitions:

  • United Kingdom: ”You must be completely satisfied’ or better still: ‘You must feel sure of the prisoner’s guilt’.
  • New Zealand: “A reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence.”
  • Canada: ‘[A] reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence’.
  • United States: A reasonable doubt is ‘one that is founded upon a real tangible substantial basis and not upon mere caprice and conjecture. It must be such doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. It is an actual substantial doubt. It is a doubt that a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a moral certainty.’

But the High Court of Australia’s major authority, Green v R [1971] HCA 55, enforces the smug view that the phrase needs no definition in terms that are anything but glib:

[I]n this instance the learned trial judge, undeterred by the failures of illustrious predecessors, has made a new endeavour to explain that which requires no explanation and to improve upon the traditional formula. So far from succeeding where they did not, he has, in our opinion, not only confused the jury but has misdirected them. In consequence there must be a new trial not only in the case of Green but in that of each of the others tried with him for, as we have observed, the quoted passage of the summing up was applicable to the case of each of them. Public time and expenditure has been wasted and the time elapsing between the making of the charges and their final disposal has been unnecessarily prolonged.

The Court has maintained its view in the face of continued questioning by jurors about the definition, and even jury requests for a dictionary. The line of cases is a classic example of the non-genius of the common law method, which – in the field of trial practice – develops fixed views of fairness and practice in the absence of (and impervious to) empirical research. Doubtless, BOCSAR’s study will be dismissed as irrelevant and contrary to accepted understandings about the capacities of lay jurors.

One of my hopes for the Charter is that its right to a fair hearing, while in completely generic terms, will encourage – I’d say mandate – a re-evaluation of such non-evidence-based approaches to trial practices in Victoria. How can it be said that these two rights are being respected when 20% of jurors think that ‘proof beyond reasonable doubt’ means that guilt is ‘pretty likely’ or ‘very likely’, and when the numbers vary depending on what offence is being charged?:

24(1) A person charged with a criminal offence… has the right to have the charge… decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

25(1) A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

The bad news is that the common law is exempted from the Charter. Heaven forbid that Victoria’s courts depart from Australia’s terrific unified common law. The Constitution would snap in half!

The good news Continue reading

A question of reputation

Black Inc Books, mysteriously undeterred by my negative-reviews-only policy, and the fact that I only review Charter books, has sent me a free copy of A Question of Power by Michelle Schwarz on the allegations that Geoff Clark raped several women in the early 1970s. I’ve followed this story with some interest since the allegations were publicised in 2001. Moreover, I was in Warrnambool recently speaking on the Charter at a Deakin Law School conference and was curious to know why such a scenic and well-located town isn’t better regarded as a holiday destination in Victoria. The Warrnambool tourist agency won’t be a big fan of this book, with its hair-raising claims of rape gangs roaming the streets in the 1970s and racists sipping lattes in the cafes in the 2000s.

But I’m a big fan and will definitely look up Schwarz’s other book, on the death of David Hookes. While the ‘true crime’ genre should be a natural for my interests, I’m no fan of blood-soaked yarns about nasty criminals, screeds against institutionalised racism or a cheap shot dig at the justice system. So, A Question of Power is my kinda crime reporting book, featuring detailed interviews with all parties and careful analysis of transcripts, including letting the subjects and, especially, the transcripts do most of the talking.

Writing about rape allegations is a very tricky thing for rights-oriented folks. Our instinctive reaction in favour of criminal defendants runs hard up against our knowledge of the sexism and nastiness of the criminal justice response to rape. Trying to stay true to both instincts is hard. I did my thesis on the presumption of innocence in rape trials in an attempt to walk the tightrope, and more recently tried to find commonalities in the legal wrongs done to each side in DNA cases. Schwarz, a former lawyer, doesn’t leap for the objectivity of legal analysis and policy arguments. Instead, she delves into the significant credibility issues on both sides. Her account of Carol Stingel’s tale shows clearly how compelling Stingel’s case is. Equally her examination of not just the federal and country town politics involved in Clark’s case but also the politics within Framlingham (home of Clark and a rival family including his other main accuser) is revelatory. She doesn’t reveal her conclusions (though it’s clear that she doubts Jo McGuiness’s tale) but I’d like to think that all the parties she interviewed (which is all of them apart from politicians), and especially Clark and Stingel, would think that her account was fair. That’s no mean feat!

Schwarz’s major opinions are reserved for Andrew Rule, author of ‘Power and Rape’, the newspaper article that aired the revelations, basically ending Clark’s career. I was very unhappy with Rule’s article when it came out, but my views have softened on airing accounts of crimes outside the judicial process. Schwarz’s argument focusses, not on the airing of the allegations, but on the lack of balance in Rule’s article. Most notably, she argues that it omits all of the bitter Framlingham politics that surrounded McGuiness’s claims. Unfortunately, the Walkley-award-winning article doesn’t seem to be available on the net, so I can’t check her account, but if it’s true then the article isn’t an account, but rather an attack. The Charter has something to say about such attacks:

13 A person has the right-… (b) not to have his or her reputation unlawfully attacked.

Of course, Rule isn’t bound by the Charter, although his article might (might!) run into trouble under the ALRC’s privacy proposal. According to Schwarz, Rule was initially happy to talk with her, but cut off contact once she revealed that her book wouldn’t have the same tone as his article. If that’s true, then Rule is a tool.

But what about the other sort of rule that is implicated in this story?: the Victorian laws that facilitated Stingel’s successful civil claim against Clark, which added the state’s imprimatur to the allegations aired by Rule. Continue reading

The Charter and committals

Tony Mokbel, perhaps alone amongst the alleged gangsters from Victoria’s underbelly, will have at least some of his charges resolved in proceedings governed by the Charter, assuming the judges running his case get the date right in Charter s. 49(2):

[I]n February and March 2006, the plaintiff was tried in the Supreme Court on one count of importation into Australia of a prohibited import, namely cocaine, in November 2000, contrary to s 233B(1)(d) of the Customs Act 1901. After the conclusion of evidence, and during the Crown Prosecutor’s address, the accused absconded while still on bail….

Between 27 February 2007 and 20 June 2007, Victoria Police filed in the Magistrates’ Court a further 15 charges against the plaintiff. Those charges included two charges of murder and five charges of trafficking in a large commercial quantity of a drug of dependence. The plaintiff was arrested in Greece on 5 June 2007.

However, Mokbel’s attempt to head-off his coming criminal trials failed yesterday.  In Mokbel v DPP (Vic) & Ors [2008] VSC 433, Justice Stephen Kaye knocked back an application for a stay based on Mokbel’s extradition occurring while his action before the European Court of Human Rights resisting the extradition was unresolved.  Presumably, Mokbel’s Charter action would have been based on his lawyer Mirko Bagaric’s argument that pre-trial publicity means that he cannot have a fair trial.  The ruling didn’t discuss the Charter, but Kaye’s rulings carry mixed news for any furture reliance on the Charter’s fair hearing right.

Kaye’s main holding was that the remedy of a stay for abuse of process is not available for committals. One of the two lynch-pins of his decision is good news for criminal defendans wishing to raise the Charter:

It is useful to commence with the appropriate characterisation of committal proceedings. In Phelan v Allen, the Full Court held that a stipendiary magistrate, in a committal proceeding, exercises a ministerial, and not judicial function, and accordingly an order by him striking out the information and discharging the defendant might not be the subject of judicial review under s 155(1) of the Justices Act 1958. In Grassby v R, the High Court held that a magistrate does not have power to stay committal proceedings as an abuse of process. In reaching that conclusion, Dawson J (with whom Mason CJ and Brennan, Deane and Toohey JJ agreed) recognised that it had been “consistently held” that committal proceedings do not constitute a judicial inquiry, but “ … are conducted in the exercise of an executive or ministerial function”. As such, the role of a magistrate or justice in holding a committal is essentially inquisitorial and administrative. Finally, in Potter v Tural; Campbell v Bah, two defendants sought judicial review of the decision of the magistrate refusing leave to cross-examine certain witnesses in the course of criminal proceedings against them. On review, the primary judge quashed the decisions of the magistrate. That decision was reversed by the Court of Appeal. Batt JA (with whom Tadgell and Callaway JJA agreed) commenced his reasons by stating: “It is established by a long line of authority in Victoria that a magistrate’s order committing for trial or refusing to commit is ministerial and not judicial and also is not amenable either to certiorari … or to appeal under statutory appeal procedures replacing certiorari.”

So, committals aren’t judicial, but are rather ‘ministerial’. Kaye distinguished UK committals on the ground that they determine whether or not charges will go ahead; Australian committals, by contrast, are neither here nor there: an Australian prosecutor can ignore both a positive ruling at a committal (by entering a nolle prosequi) or a negative one (by commencing anex officio indictment.) The point of Australian committals is a bit of a mystery, and they are mostly justified by the opportunity they give defendants for discovery of the case against them.

This issue is relevant to Charter matters, because of the dreaded Charter s. 4(1)(j) partial exemption for courts and tribunals from the conduct mandate:

4(1) For the purposes of this Charter, a public authority… does not include-… (j) a court or tribunal except when it is acting in an administrative capacity;…

Note Committal proceedings and the issuing of warrants by a court or tribunal are examples of when a court or tribunal is acting in an administrative capacity. A court or tribunal also acts in an administrative capacity when, for example, listing cases or adopting practices and procedures.

Doubtless, the combination of these rulings and the note to Charter s. 4(1)(j) will be taken to have basically settled the matter. And that’s basically a good thing, as the Charter s. 4(1)(j) is stupid anyway. But I think that there is still room for doubt. Continue reading

The right to jury nullification

I’m absolutely thrilled at today’s verdict in the trial of Joseph ‘Jihad Jack’ Thomas. This is the second time a jury has examined the case against Thomas and issued a split verdict, clearing him of major terrorism charges and convicting him of trivia. In both trials, the verdict was surprising in light of the evidence, where Thomas confessed to the appearance of being a terrorist, but claimed that it was all a ruse.

While it may be that both juries diligently applied the requirement of proof beyond reasonable doubt, I suspect – and indeed hope – that the split verdicts were deliberate messages aimed at the Australian authorities, expressing outrage at their connivance in conduct that is much worse than anything Thomas is accused of.

There’s been some talk lately of abolishing juries. I’m torn by such calls. The complex task of fact-finding strikes me as ideally suited to professionals, who can be trained for their job and can be expected to provide testable reasons for their decisions. But professionals so often tend to toe official lines. These conflicting criteria for good fact-finders appear in the Charter’s fair hearing right:

24(1) A person charged with a criminal offence…  has the right to have the charge… decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

Lord Devlin beautifully expressed how competence (via the long service of professional life) can be at odds with independence when it comes to the task of finding the facts that connect the law to individuals:

The power that puts the jury above the law can never be safely entrusted to a single person or to an institution, no matter how great or how good. For it is an absolute power and, given time, absolute power corrupts absolutely. But jurors are anonymous characters who meet upon a random and unexpected summons to a single task (or perhaps a few), whose accomplishment is their dissolution. Power lies beneath their feet but they tread on it so swiftly that they are not burnt.

The juries of Jihad Jack managed to accomplish a justice that completely eluded the various institutions involved: the AFP, the Cth DPP, the Supreme Court, the Court of Appeal and the High Court.

The Charter, alas, was inapplicable in Thomas’s trials, due in part to its federal aspects (the involvement of AFP and ASIO, and the federal offences) and also (in relation to state aspects, such as court procedure) because of  the Charter’s appalling transitional provision. If the Charter had been applicable, some weighty rights indeed would have been engaged:

  • Charter s. 10 (torture): Not only was Thomas (on all accounts) tortured and degraded at the hands of Pakistani and CIA agents, but Cummins J appallingly admitted confessions he made to escape further torture.
  • Charter ss. 14, 15 & 16 (civil freedoms):The ridiculous offence of receiving money from (as opposed to funding) a terrorist organisation, without any requirement to prove an intent to further the organisation’s aims or to commit a crime, would, if it was a Victorian offence, have almost certainly engages the Charter’s rights to belief, expression and association. While these rights can be subjected to ‘lawful restrictions’, that caveat requires that the restrictions be accessible and proportionate. Charging Thomas with an offence that was recently created while he was out-of-contact overseas scarcely meets the first requirement; the 25 year maximum penalty (and the oppressive five-year sentence Cummins imposed) make a mockery out of the second.
  • Charter s. 25(2)(b) (right to a lawyer): The AFP told Thomas of his right to communicate with a lawyer, but simultaneously informed him that he couldn’t exercise it (due to Pakistani restrictions.) Their failure to stop the interview then and there is what made his first trial possible, after Cummins appallingly held that compliance with Thomas’s rights wasn’t required in the circumstance. If Thomas had access to a lawyer, he would have been made aware of the new offences (and, of course, advised to exercise his right to silence.)
  • Charter s. 26 (double jeopardy): The Court of Appeal, after correcting the erroroneous admission of THomas’s tortured and unadvised confessions, which permitted his first trial, erroneously permitted a second trial, sidestepping a clear High Court authority (not to mention a major ruling of the US Supreme Court) to allow the prosecution to have a second go based on entirely new evidence. The outgoing Chief Justice and Hayne J weren’t bothered.

The new evidence was interviews given by Thomas that were published after his first wrongful conviction. A lot of commentators have glibly observed that Thomas was ‘badly advised’ about giving that interview. But I disagree. Continue reading

Underbelly: The Director’s Cut

The judgment in X v General Television Corporation Pty Ltd [2008] VSC 344 is now on Austlii. However, just like the version of Underbelly that Victorians have at last been able to watch, it’s a trimmed down ‘authorised for publication’ version with annoying breaks:

4 [Paragraphs 4 to 12 inclusive have been deleted from this version.]

18 [Paragraphs 18 to 23 inclusive have been deleted from this version.]

Alas, we can’t go interstate to find out what’s in the mystery paragraphs. Although, at least that means that there’s some point to all the censorship, unlike the weird pixellation of Underbelly’s Victorian edition. Or is there? Tthe sole purpose of the trimming is so that we don’t find out who X is. The judgment does reveal that X is facing ‘criminal trials’ (plural) and that one such trial is for the ‘alleged murder of Lewis Moran’. (I dunno if ‘alleged’ is the right word. After all, Evan Goussis is currently serving a sentence for that very murder. Or maybe he’s been secretly acquitted?)  Vickery also excludes half of Victoria’s population by referring to ‘his murder charge’. So, not Zarah Garde-Wilson, I guess. Surely, when that trial comes about, the jury are going to work out the mystery? Or are there dozens more folks lined up to go on trial for killing poor old Lewis?

Alas, what is also left secret is exactly why Justice Peter Vickery ordered that the first five episodes of Underbelly could be shown, but not the sixth. He does reveal that what Victorians have got to see is the Director’s cut:

A “Victorian” edited version of the program has been produced to satisfy concerns expressed by the Jeremy Rapke QC, Victorian Director of Public Prosecutions. The Victorian version is proposed to consist of an edited version of episodes 1-6 only.

So, Rapke – he of the media release that threatened prosecution for anyone who showed any part of Underbelly whatsoever – has indeed decided that over a third of the series is AOK. Perhaps what was prejudicial to Evan Goussis isn’t prejudicial to X. Or maybe Rapke is learning on the job as Victoria’s chief censor.

But Vickery had a problem with episode 6:

I find that the broadcasting of episode 6 of the television series Underbelly in Victoria, prior to the trial of X on his murder charge in relation to the death of Lewis Moran would constitute a contempt of court. In my opinion, the making of the necessary prohibition order is necessary to ensure a fair trial for the accused X in relation to this charge. As the Court of Appeal said in General Television Corporation Pty Ltd v Director of Public Prosecutions and Ors: The test for liability for sub judice contempt is whether, as a matter of practical reality, the publication is shown to have a tendency to prejudice or embarrass particular legal proceedings. I find that there is a real and definite tendency for episode 6 of the edited Victorian series to prejudice the trial of X and that a broadcast on Channel 9 in Victoria prior to X’s trial in relation to the death of Lewis Moran would have this effect.

Of course, we can’t know what is wrong with episode 6 (unless we buy the DVD from interstate.) But isn’t it a little weird how the very case that Vickery quoted here had already ruled that the first three episodes couldn’t be shown at all prior to Goussis’s trial:

The first matter to be considered is whether, as is submitted by the applicant, no prejudice could arise by reason of the broadcast of episodes 1 to 3 of Underbelly. Episode 1 is entitled ‘The Black Prince’ and involves matters relating to one Alphonse Gangitano. It is set during the year 1995. The period of time to which the episode refers is thus temporally separate from the matters connected to the trial. However, B and two of his sons are named and represented by actors in episode 1, as is D. This episode commences to describe the relationships which each of those parties has to each other and to other persons. Those relationships are portrayed as being relevant to the events which lead in due course to the death of B. Likewise in episode 2, B and members of his family and D are named and portrayed by actors. F is represented in the program by an actor but not named and his face is pixelated. Similarly, episode 3 is devoted principally to the family of B and their association with other alleged members of the ‘underworld’. It also refers in some detail to the alleged association between D and F.

Clearly the relationships between the deceased and members of his family and D and F, and the criminal activities in which they are portrayed engaging in as portrayed in episodes 1 to 3 are relevant to the manner in which the prosecution puts its case against A. In our view, taking into account the proximity of the trial and that fact, the judge rightly considered that the dramatic portrayal of matters of mixed fact and fiction which directly relates to the trial of A was a matter of most serious concern. In this regard it must be remembered that it was the trial judge who was to be burdened with the obligation of providing appropriate directions to both a prospective jury panel and to any jury finally selected. In our view her discretion in relation to episodes 1 to 3, as with her discretion in relation to the other episodes, did not miscarry.

I wonder if Victorian edition that Channel Nine offered then is all that different from the Rapke edition? Is the difference in orders really about proximity to the trial? Or is the truth that there are some varying views with the Supreme Court about when it’s appropriate to success? And is that level of variance acceptable? Or perhaps the difference this time is that Vickery actually considered the Charter. Continue reading

How do you solve a problem like Dennis?

The overturning of District Court Justice Bottling’s ruling that Dennis Ferguson couldn’t get a fair trial for charges of sexual assault because of a mixture of pre-trial publicity and the difficult nature of the prsoecution case poses an extreme problem for Queensland’s criminal justice system. The Court of Appeal’s view is that the court system has to assume that jurors are capable of doing their job in these circumstances, as otherwise there’d be doubts about the whole jury (and justice) system. Heaven forbid!

But Queensland’s parliament has a new solution. The Criminal Code and Jury and Another Act Amendment Bill 2008 allows for judge-only trials if prosecution or defence applies and the following test is satisfied:

615 (1) The court may make a no jury order if it considers it is in the interests of justice to do so.

(4) Without limiting subsection (1), (2) or (3), the court may make a no jury order if it considers that any of the following apply— (a) the trial, because of its complexity or length or both, is likely to be unreasonably burdensome to a jury; (b) there is a real possibility that acts that may constitute an offence under section 119B would be committed in relation to a member of a jury; (c) there has been significant pre-trial publicity that may affect jury deliberations

If this provision passes, it’ll be interesting to see when a court is willing to say that getting rid of the jury is in ‘the interests of justice’. Such an order, at least if done in relation to s615(4)(c), would seem to imply that jurors may fail in circumstances when judges wouldn’t.

And, yes, the new provision could be applied to Ferguson’s upcoming trial:

720(1) Chapter 62, chapter division 9A applies in relation to a trial begun after the commencement whether the offence was committed before or after the commencement.

(2) For subsection (1), the trial has begun when the jury panel attends before the court.

Proceedings against Ferguson commenced ages ago, but his jury panel presumably hasn’t yet attended. Indeed, it’s likely that publicity would delay any such attendance for some time, long enough (I imagine) to bring the trial within the new provisions.

But it may not be plain sailing, thanks to these two provisions in the new Bill: Continue reading

The Charter vs Wikipedia

The United States 8th Circuit Court of Appeals has ordered a review of an immigration decision based on the fact that the relevant decision-maker consulted this Wikipedia entry:

A laissez-passer (from the French let pass) is a travel document issued by a national government or an international treaty organization. When issued by a national government a laissez-passer is often for one-way travel to the issuing country. When issued by an international treaty organization it is often for employee travel on official business. Some national governments issue laissez-passers to their own nationals as emergency passports. Others issue them to people who are stateless, who are unable to obtain a passport from their own government or whose government is not recognized by the issuing country. 

This entry was relied upon to reject an applicant’s laissez-passer as proving her identity.

The Court of Appeals observed:

We conclude that the case must be remanded for further proceedings, because the BIA failed adequately to explain its conclusion that Badasa did not establish her identity. See SEC v. Chenery Corp., 318 U.S. 80, 94-95 (1943). The BIA did not adopt the entirety of the IJ’s reasoning for rejecting Badasa’s claim. Rather, the BIA acknowledged that it was improper for the IJ to consider information from Wikipedia in evaluating Badasa’s submission on remand, and the government does not dispute that conclusion here.

But what is wrong with Wikipedia? Amusingly, the Court of Appeal cited Wikipedia itself:

Wikipedia describes itself as “the free encyclopedia that anyone can edit,” urges readers to “[f]ind something that can be improved, whether content, grammar or formatting, and make it better,” and assures them that “[y]ou can’t break Wikipedia,” because “[a]nything can be fixed or improved later.”…  Wikipedia’s own “overview” explains that “many articles start out by giving one – perhaps not particularly evenhanded – view of the subject, and it is after a long process of discussion, debate, and argument that they gradually take on a consensus form.”…  Other articles, the site acknowledges, “may become caught up in a heavily unbalanced viewpoint and can take some time – months perhaps – to regain a better-balanced consensus.”… . As a consequence, Wikipedia observes, the website’s “radical openness means that any given article may be, at any given moment, in a bad state: for example, it could be in the middle of a large edit or it could have been recently vandalized.”… The BIA presumably was concerned that Wikipedia is not a sufficiently reliable source on which to rest the determination that an alien alleging a risk of future persecution is not entitled to asylum.

It’s not entirely clear to me why Wikipedia fails this standard, whereas (presumably) traditional encyclopedias pass. Is the Court applying the Supreme Court’s Daubert test to distinguish between trustworthy and untrustworthy expertise? If so, it seems to me that the Court of Appeal is being quite narrow-minded about what counts as appropriate ways of gathering and testing expert knowledge. Why are official publications (intermittently reviewed, written by a handful of people, not up-to-date, relatively immune from criticism) reliable, whereas Web 2.0 isn’t? What about that study (published in top-quality rag Nature) that suggested that Wikipedia is more accurate than Encylopedia Britannica? 

I imagine that this is a precedent for interpreting a similar question under the Charter’s fair trial right:

24(1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

Arguably, relying on unreliable fact-finding by others is a failure to make an independent decision (on what, arguably, is a civil proceeding.)

Interestingly, Victoria has, on its statute books, a very unusual provision privileging computer-sourced information over other information: Continue reading

Sleepers wake!

The first decision from the French Court! Yes, already. And it’s a doozy. The court has issued orders, with reasons to follow, allowing the appeals of Messrs Cesan and Rivadavia, the pair who had the good luck of being convicted by a jury under the ‘supervision’ of Judge Dodd, who nodded off for parts of the proceedings. Each of them have had their convictions quashed and will get a new trial.

Obviously, there are no reasons yet. But the transcript shows that:

  • The Court made its decision based on standard ‘miscarriage of justice’ grounds. The Court said from the outset (in a development that must have chilled Wendy Abraham SC, Counsel for the DPP) that the parties should leave out the grounds based on s. 80 of the Constitution.
  • The Court seemed unimpressed with the majority of the NSW Court of Criminal Appeal’s view that only a judge’s ‘acts’ or ‘omissions’ can constitute a miscarriage of justice; rather, it focused on dissenting Justice Basten’s view that distraction of the jury is itself a matter of great concern.
  • The Court appears to be contemplating treating the judge’s sleepiness as a procedural irregularty that precludes the operation of the ‘proviso’ (which would otherwise allow the court to consider whether the evidence, arguably including a post-verdict note to the judge from one of the defendants, was so overwhelming that the guilty verdicts couldn’t be a miscarriage of justice); in particular, the court was skeptical about how you could measure which parts of a trial matter or how you could take account of the actual guilty verict in these circumstances.
  • The Court was unimpressed by the DPP’s arguments that there was sharp conduct by the defendants or their counsel in not raising the issue at trial (much less by Abraham’s insane fresh evidence point.) Indeed, Abraham herself conceded that NSW court rules do not oblige counsel to raise the sleepiness of the judge (or risk denial of leave to raise the ground on appeal).

There was no reference to a ‘majority’ of the Court making the orders, so it sounds like it’s unanimous.

Obviously, I’ll have more on this case and its relevance to Charter s. 24 when the reasons for judgment come out. But, while I’m here, let me gripe about one thing: Continue reading