Language matters in the transition to new legislation

The importance of clear and well-drafted transitional provisions was illustrated in the case of Director of Public Prosecutions (DPP) v Lyons (a pseudonym) [2018] VSCA 247 (Lyons).

Key points:

• Despite some unclear and inconsistent language in the 2018 Act's transitional provisions, the Court focused on the "irresistibly clear" language in Clause 5(2) of Schedule 4 to the 2018 Act and concluded that the application for a renewal of a detention order was to be heard and determined using the 2018 Act.
• Use clear language when drafting transitional provisions and ensure consistency of word use within clauses! When words can be given a ‘plain meaning’ this interpretation will be followed.
• A clause will only have a deeming effect if clear and express words are used (e.g. "is deemed to be").
• When using the Charter to interpret a statutory provision, the Court still looks first to the ‘plain meaning’ or the clear language of the statute.

Background

In Victoria, serious sex offenders and serious violent offenders that present an unacceptable risk to the community can be subject to ongoing supervision or detention after they have served their prison sentence. This post sentence scheme is contained in the Serious Offenders Act 2018 (2018 Act), which replaced the Serious Sex Offenders (Detention and Supervision) Act 2009 (2009 Act).

In Lyons, the Department of Public Prosecutions (DPP) sought to renew a detention order against Mr Lyons. The application was made under the 2009 Act; however, before the matter could be heard the 2009 Act was repealed and the 2018 Act commenced.

Which Act should the Court use to make its decision?

If the 2009 Act applied, only Mr Lyons’ risk of sexual re-offending could be considered by the Court. If the 2018 Act applied, the Court could consider Mr Lyons’ risk of sexual re-offending, violent re-offending, or both.

Clause 5(2) of Schedule 4 to the 2018 Act [Applications commenced under superseded Act that have not been determined] contains the transitional provisions and is as follows:

(1) Subject to subclause (2), the superseded Act and regulations made under that Act continue to apply to any of the following applications that were made under the superseded Act but not determined before the commencement day—  (a) an application for a supervision order, a detention order or an interim order;  (b) an application for the renewal or extension of an order referred to in paragraph (a);    (c) an application for the review of an order or a condition of an order referred to in paragraph (a).  (2) An order made on an application referred to in subclause (1), or on appeal in respect of such an application, is to be made under this Act. [our emphasis added]

The Court of Appeal considered the proper interpretation of the words ‘made under this Act’. The parties' positions were as follows:

• The DPP submitted that the application should be determined using the 2009 Act (meaning the Court could only consider Mr Lyons’ risk of sexual re-offending) but that the order should be ‘made’ following the form of the 2018 Act. The DPP relied on the text of clause 5(1).
• The Secretary to the Department of Justice and Community Safety submitted an order for Mr Lyons should be made and determined using the 2018 Act, meaning the Court could consider Mr Lyons’ risk of sexual or violent re-offending, or both.

The Court of Appeal's Judgment - key aspects of the decision

The Court focused on the "irresistibly clear" language in clause 5(2), namely ‘made under this Act’. The Court considered that these words clearly meant the application for a detention order against Mr Lyons was to be heard and determined using the 2018 Act. The Court also considered that this construction is consistent with the primary purpose of the 2018 Act which is to provide, from the commencement of the 2018 Act, for enhanced protection of the community.

The Court noted that its interpretation does not render clause 5(1) redundant because it operates to ensure that neither the DPP nor the Secretary need to bring fresh applications upon the commencement of the 2018 Act and repeal of the 2009 Act. Clause 5(1) also requires that any question concerning the adequacy of procedural steps taken before 3 September (the commencement date of the 2018 Act) is to be determined in accordance with the 2009 Act.

Some other points made by the Court of Appeal

Deeming provision: If clause 5(2) was a deeming provision, any order made under the 2009 Act would be 'deemed' to be an order made under the 2018 Act. The Court determined that clause 5(2) was not a deeming provision as it lacked the clear and express wording required of a deeming provision (for example, in Spear v Hallenstein 1  - the specific words 'is deemed to be' were used).

The Charter of Human Rights and Responsibilities: The Charter requires that, where possible, laws should be interpreted in a way that is compatible with human rights. If the 2018 Act applied, Mr Lyons' human rights would be detrimentally impacted because there would be an interference with Mr Lyons' liberty, freedom of movement and privacy on broader grounds than were previously available under the 2009 Act. However, the Court considered that there was no room for the Charter here because the 2018 Act's words were so clear. Also, the Statement of Compatibility (which records the Act's compatibility with human rights) did not refer to the transitional provisions. The Court held that the Minister's silence on a particular topic cannot be used to draw an inference as to the statute's proper interpretation nor can it be used as a substitute for an objective reading of the words in dispute.

Inconvenience caused? The Court acknowledged that inconvenience would result from the 2018 Act being used to determine the application for Mr Lyons (and for other matters). However, the Court found that some inconvenience is unavoidable when transitioning to new laws.

To find out more contact:

Liam McAuliffe
Principal Solicitor
Victorian Government Solicitor's Office

This blog was produced with the assistance of Rita Scammell, winter clerk, July 2019.


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1 Spear v Hallenstein [2018] VSC 169.

Individualised justice and consistency: recent changes in Victorian sentencing law

Last month, the High Court handed down judgment in Director of Public Prosecutions v Dalgliesh (a pseudonym), a decision which alters the sentencing landscape in Victoria. Not long before that, amendments to the Sentencing Act were passed which are set to introduce 'standard sentences' for certain indictable offences. With all these changes on the way, we've taken the opportunity to prepare a summary of what you need to know when it comes to sentencing (adult) offenders in Victoria.

Sentencing in Victoria, a refresher

In Victoria, sentencing is governed by two sources: legislation and the common law. Offences and their maximum (and sometimes minimum) penalties are usually found in legislation, including the Crimes Act 1958, the Summary Offences Act 1966, the Drugs, Poisons and Controlled Substances Act 1981 and the Road Safety Act 1986.

Operating within the boundaries of these legislative provisions, decision-makers have discretion as to the appropriate penalty. In reaching a decision, they are guided by sentencing purposes, principles and factors, which are found in the common law and the Sentencing Act 1991. For those wanting to do background reading, there are many great resources on how sentencing works, including the Sentencing Council's Quick Guide to Sentencing and the Judicial College of Victoria's Sentencing Manual.

Of particular note for the recent changes are the sentencing factors outlined in s 5(2) of the Sentencing Act. Under this section, decision-makers are required to have regard to a range of factors including the maximum penalty for the offence; current sentencing practices for the offence type (the sentences that have been given for similar cases); the nature and gravity of the offence; and the impact of the offence on any victim.

The decision in Dalgliesh

The issue before the High Court in Dalgliesh was essentially about the weight that should be accorded to current sentencing practices.  Our system values individual justice. The High Court affirmed this much in Dalgliesh, observing that 'the imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned to do justice in that case.' However, it is also the case, as Gleeson CJ said in Wong v The Queen (and as the High Court reiterated in Dalgliesh), that 'the administration of criminal justice works as a system … It should be systemically fair, and that involves, amongst other things, reasonable consistency.' The consistency being referred to by the Court is the application of the relevant legal principles, rather than the numerical outcome.

In this case, Mr Dalgliesh had been convicted and sentenced for a number of serious offences in the County Court. The DPP appealed the sentence on two grounds: that the sentence imposed on the incest charge was manifestly inadequate and the orders for cumulation resulted in a total effective sentence that was manifestly inadequate.

The Court of Appeal clearly expressed a view that current sentencing practices for the offences in question were inadequate, concluding that the range is so low it 'reveals error in principle' and is not proportionate to the objective gravity of the offending. However, the Court of Appeal dismissed the appeal, holding that the sentences were within the range indicated by current sentencing practices.

The High Court rejected this approach, ruling that the Court of Appeal had erred by treating the range established by current sentencing practices as determinative or decisive of the appeal before it. The High Court unanimously found that there was no statutory basis for this interpretation. It reiterated that the consistency sought is that of approach, rather than outcome and that the Sentencing Act 'does not require adherence to a range of sentences that is demonstrably contrary to principle.'

In doing so, the Court also overruled the decision in Ashdown, which emphasised that an offender who pleads guilty to an offence does so in the expectation that he or she is to be sentenced in line with current sentencing practices. The High Court emphatically rejected this approach, ruling that 'the only expectation an offender can have at sentence is of the imposition of a justice sentence according to law.'

More change to come … amendments to the Sentencing Act

The other change on its way for sentencing in Victoria is in the form of legislation. Parliament recently passed the Sentencing Amendment (Standard Sentences) Bill 2017, which will come into effect in April 2018, unless proclaimed earlier. The Bill introduces standard sentences for certain indictable offences. The standard sentence will be an additional factor for courts to take into account, in the form of a legislative guidepost. The Bill also makes some changes to the operation of guideline judgments. 

Key takeaways

• The weight to be accorded to current sentencing practices in Victorian sentencing law has changed. The High Court has made it clear that current sentencing practices are one factor to be considered. They do not play a decisive or determinative role. 
• The introduction of standard sentences will soon provide another factor to be taken into account by the courts when sentencing offenders for certain indictable offences. These amendments will come into effect in April 2018, unless proclaimed earlier. 

VGSO provides assistance to government on the application of sentencing principles and statutory interpretation.  For more information and assistance please contact our senior lawyers below.

This blog was prepared by Katharine Brown, Solicitor.

Paula Cumbo 
9032 3043

Tien Tran
8684 0414

When can you leave the past behind you?

In recent weeks, attention has been drawn to a federal election candidate in Western Australia who did not declare two spent convictions to the political party that had endorsed him as its election candidate.  The candidate has now been disendorsed by the political party and lost the opportunity to run for a seat in the Federal Parliament.
Aside from heightened scrutiny of candidates at election time, this situation raises a simple question, that does not always have a clear answer: what is a 'spent' conviction?  And in what circumstances does a person need to disclose such information to a government agency, employer or a non-government organisation?

The short answer is (in part) it will generally depend on the nature of the offence, when and where the offence was committed, and to what organisation or who you are providing the information.

What may surprise is that there is no spent conviction legislation in Victoria or formal rules that govern the disclosure of criminal history information.  However, Part VIIC of the Crimes Act 1914 (Cth) sets out the Commonwealth Spent Conviction Scheme.  All other jurisdictions in Australia have spent conviction schemes.

Victoria

A person's history of any Victorian criminal convictions are held by and accessed through Victoria Police.

While Victoria has recently passed legislation which provides for the expungement of certain historical homosexual offences, it does not have a general statutory regime dealing with spent convictions.

However, Victoria Police has an Information Release Policy that it applies to requests for an individual's criminal conviction history.

The Information Release Policy states that, save for certain exceptions, no details of a prior offence will be disclosed if 10 years has passed since an adult was last found guilty of an offence.  A five year waiting period applies for persons under 18 years of age.  Therefore, details of a person's prior convictions will generally not be disclosed by Victoria Police in a criminal history check once the relevant waiting period has lapsed, and in the absence of further offending.  However, an individual's criminal history remains in the records of Victoria Police.  As such, despite the Information Release Policy, Victoria Police may exercise its discretion and disclose criminal history information depending on the purpose for which the information is sought and to whom it will be disclosed (e.g. where the information is required for employment with children, the elderly or disabled persons).

Commonwealth

While Victoria does not have spent conviction legislation, Victoria Police’s Information Release Policy operates, in practice, in a similar way to the Commonwealth’s Spent Conviction Scheme in Part VIIC of the Crimes Act 1914.

Section 85ZM of the Crimes Act 1914 provides that a person's conviction for an offence will be spent if:
(a)  the person has been granted a pardon for a reason other than the person was wrongly convicted of the offence; or
(b)  the person was not sentenced to imprisonment for the offence, or was not sentenced to imprisonment for the offence for more than 30 months, and the waiting period for the offence has ended .

The scope of a person's rights and obligations under the scheme varies depending on:

• whether the conviction is for a Commonwealth, state, territory or foreign offence
• who or what type of authority or organisation knows or is being told about a spent conviction (ie a government authority or a non-government organisation)
• where the person being told is located.

Generally, the Commonwealth scheme permits a person to not disclose a spent conviction:

• to any person located in a state or territory of Australia a spent conviction for a Commonwealth offence;
• to a Commonwealth authority a spent conviction for a state, territory offence or foreign offence.

The scheme also operates to allow a person to say under oath that they have not been charged with or convicted of an offence.

However, some categories and positions of employment are excluded from the Commonwealth scheme and require that a person must declare all convictions when applying for certain positions (eg a law enforcement agency has a right to information about a person's spent convictions for the purpose of making decisions in relation to prospective employees and contractors).

Other jurisdictions

In order to determine what a person’s rights are in relation to non-disclosure of a state or territory offence in Australian jurisdictions other than Victoria, the relevant spent conviction legislation will need to be consulted.

Take home points for individuals and government authorities

When determining whether they must disclose information about a prior conviction, individuals need to carefully consider where the offence was committed, the nature of the offence, how serious it was and what period of time has passed since it was committed.  While there can be a tension between a person disclosing their prior conviction history and their ability to put their past offending behind them and privacy, in some cases, disclosure of prior convictions will always be required, or at least expected, given the reason or purpose for which they are disclosing the information.  For individuals, ensure you read the fine print on what you are required or expected to disclose about your history of prior convictions and/or disciplinary offences to a government authority or non-government organisation.

Government authorities should ensure their application and consent forms clearly advise members of the public why and when they are required to disclose their prior conviction history, including what if any spent conviction scheme applies (including relevant exceptions) and how the information will be used.  Government authorities should also ensure they comply with privacy and data protection legislation when collecting information about a person's prior convictions.  This includes having privacy policies on how such information may be collected, used and disclosed.

Further information

- Victoria Police, National Police Certificates-Information Release Policy (2016)
- Part VIIC, Division 6 of the Crimes Act 1914 and Regulations 7A and 8 and Schedule 3 of the Crimes Regulations 1990
Sentencing Amendment (Historical Homosexual Convictions Expungement) Act 2014

Joanne Kummrow
Special Counsel

Michael Williams
Solicitor

A civil penalty is not a criminal sentence by any other name

Regulators' speaking roles in civil penalty determinations restored by the High Court

Last week, the High Court delivered an important judgment for regulators in civil penalty proceedings.  In Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; CFMEU and Director, Fair Work Building Industry Inspectorate, the High Court unanimously held that Courts are not precluded from considering and, if appropriate, imposing civil penalties that are agreed between the parties. 

What's new about that?  Isn't that the way it always works?

Not exactly.  In May this year, the Full Court of the Federal Court significantly constrained the ability of Courts (and potentially Tribunals) to consider and give effect to agreements between regulators and other parties about the suitable penalty for a regulatory breach.  

As many of our State clients would know (and as the High Court has now said is sound practice) in a multitude of regulatory proceedings - from breaches of employment awards to director’s duties – regulators as diverse as the Fair Work Ombudsman to ASIC had often reached agreement with an accused on a form of civil penalty.  That agreement was then proposed to the courts who, if it was considered appropriate, imposed the agreed penalty.  Trial times were shortened and, among other things, the regulators’ resources could be put to other uses, such as monitoring compliance. 

With the Full Court’s decision, however, this longstanding practice was held to be unlawful.  For the Full Court, the task of ordering a civil penalty was very much like imposing a criminal sentence.  As a result, it applied the principle in Barbaro, which prohibits a criminal prosecutor from making submissions as to the appropriate sentencing range or ultimate sentencing outcome, to the civil penalty context.  At the heart of the Court's concern was the idea that by agreeing on a penalty, parties may 'bind the Court' to make their preferred order and undermine its role in determining an appropriate penalty. 

Since May, then, real questions have existed in many jurisdictions about the lawfulness of regulators’ speaking roles in any civil penalty determination.  Were regulators to be like prosecutors – silent and dispassionate? Or, alternatively -  invested, knowledgeable, agencies with a range of unlawful conduct expertly in their sights?  

High Court Decision

On appeal, the High Court determined unanimously that, in civil penalty proceedings, courts are not precluded from considering and, if appropriate, imposing penalties that are agreed between the parties.   While the High Court noted that there was some similarity between the task of imposing civil and criminal penalties – the tasks are, it said, fundamentally of a different character.  The Court rejected any attempt to apply Barbaro to civil penalty proceedings.  Moreover, the Court held that a court is not bound by the penalty suggested by the parties, reiterating that it must ask 'whether their proposal can be accepted as fixing an appropriate amount'.  The judgments also spend considerable time endorsing the traditional model of regulator agreement and regulators' speaking role when proposing the terms and quantum of a penalty, stating:

• there is important public policy involved in promoting predictability of outcome in civil proceedings;
• the practice of receiving and, if appropriate, accepting agreed penalty submissions increases the predictability of outcomes for regulators and wrongdoers; and
• it must be accepted that judges will do their duty, as they have been sworn to do, and reject any agreed penalty submission if not satisfied that what is proposed is appropriate.

For advice on regulatory proceedings and civil penalties, now the silence has been lifted, contact:

Greg Elms

Managing Principal Solicitor

8684 0414

greg.elms@vgso.vic.gov.au 

Janine Hebiton

Managing Principal Solicitor

8684 0450

janine.hebiton@vgso.vic.gov.au

The High Court puts SA breath test laws to the fairness test

Under South Australian drink-driving laws, if you blow a positive breath test you can go to a doctor of your choice and get a blood test to confirm its correctness. But what happens if the doctor makes a mistake and the blood test can't be used? In a case that made it all the way to the High Court, that's exactly what happened, provoking an interesting debate over judges' discretion to ensure a fair trial.

In SA Police v Dunstall [2015] HCA 26, the High Court rejected an argument that courts can exclude evidence for broad-textured reasons of 'fairness', where to do so would be contrary to the intent of Parliament in a particular legislative scheme.

How did it get to the High Court?

Mr Dunstall had successfully argued for a Magistrate to exclude evidence of his positive breath test taken by police on the basis of 'general unfairness'. While he had taken the opportunity to challenge his drink-driving charge by obtaining a blood test in the manner provided for under SA law, the medical practitioner who performed the test failed to take enough blood so the sample couldn't be analysed, and it couldn't be used to challenge or confirm the blood alcohol reading on his positive breath test.  Of course, once the breath test evidence had been excluded, there was insufficient evidence to sustain a drink-driving conviction.

SA Police appealed the Magistrate's decision, and lost, in the SA Supreme Court and Full Court.  The appeal then went to the High Court, which found in favour of SA Police.

The 'fairness discretion' and the question before the High Court

It was no surprise that the Court confirmed the existence of a 'fairness discretion': a trial judge has certain discretionary powers to ensure that an accused receives a fair trial according to law, including by excluding evidence or, in rare cases, by ordering a stay of proceedings.

A trial judge can exclude evidence in three well recognised categories of discretion:

• The Christie discretion allows a judge to exclude evidence where its probative value is outweighed by the risk of prejudice to the accused person.  
• The Bunning v Cross discretion enables a judge to exclude evidence that has been tainted by illegality or impropriety.  
• The Lee discretion enables the exclusion of confessional statements where certain rules about how confessions can be obtained have been breached.

None of these 'discretions' were available in the case of Mr Dunstall's blood test, which was best characterised as a 'loss of evidence' through no fault of either party.  The High Court had to decide whether a judge has power to exclude probative evidence simply on the basis that its admission could be unfair to the accused.

The High Court's decision

The Court found that Mr Dunstall's argument failed to come to terms with the legislative scheme.  Under the SA law, the offence of drink-driving was established by proof of the breath analysis reading alone.  Blood test evidence could be used to confirm, or to call into question, the breath test evidence, but a defendant does not have a statutory 'right' to blood test evidence to rebut the presumption that the breath test was reliable.  The onus is wholly on the defendant to procure the 'second opinion' evidence.  Where the defendant tries to obtain blood test evidence and, through no fault of their own or that of the Police, these efforts fail, it is clearly intended by the SA legislation that the evidence of the individual's blood alcohol level provided by the breath test cannot be challenged.  The only circumstances in which the breath test could be challenged where a faulty blood test was taken were those explicitly provided for in the legislation, ie where a faulty test kit was provided to the accused by Police.  Accordingly, in this case it was not open for a court to decide to exclude the breath test evidence.

In a separate concurring opinion, Justice Nettle considered the scope of a potential fairness discretion, finding that a 'residual discretion' exists to permit a judge to exclude otherwise admissible evidence to prevent an 'unacceptable risk of miscarriage of justice'.  However, Nettle J found that Mr Dunstall could not show an unacceptable risk of injustice, but only that the loss of his blood test evidence 'might have' have had such a result.  In Nettle J's words, the fairness discretion does not exist:

to give effect to idiosyncratic notions of "fair play" or "whether the forensic contest is an even one", still less to deny effect to statutory  modifications of common law means of proof which, because of idiosyncratic notions of what is fair, a judge may disapprove.

In short, the 'unfairness' in Mr Dunstall's case resulted from the proper operation of the legislative scheme itself.  Whatever the scope of a court's 'fairness discretion' to prevent injustice in a criminal proceeding, it cannot override the clear intent of Parliament.

Victorian Government clients seeking advice on public law can contact:

Rachel Amamoo
Managing Principal Solicitor
03 8684 0899

Jordina Rust
Solicitor
03 8684 0468

Key features of the Corrections Legislation Amendment Bill 2015

This week the Corrections Legislation Amendment Bill 2015 (Bill), was passed by the Victorian Parliament.
On its commencement, the new act will mean Victoria's parolees will be subject to cancellation of parole should they receive an interstate or overseas prison sentence whilst on parole. The Adult Parole Board's power to compel production of documents or attendance of witnesses is codified and procedural changes to the Board are made, while the power of prison Governors to monitor prisoners electronically is made explicit. Victoria Police will have an additional 12 months to commence proceedings against a parolee for breach of parole conditions under amendments to the Corrections Act 1986 (Corrections Act).

The Bill also amend the Corrections Act to codify the powers of prison Governors, the Adult Parole Board and Victoria Police.

Interstate Prison Sentences against Parolees

Following the decision of the Supreme Court of Victoria in Mercorella v The Secretary to the Department of Justice [2015] VSC 18, the Bill clarifies that parolees may have their parole cancelled if a court in or outside of Victoria imposes a term of imprisonment for offences committed either before or during the parole period.

Adult Parole Board's power to compel evidence

The Bill clarifies the Board's power to compel persons to produce specified documents or attend meetings of the Board to give evidence.  Where a notice to attend is issued to a person in custody, the Board will be able to direct the Governor of the prison to facilitate the attendance of the prisoner, either in person or by video link.
In relation to taking evidence, the Bill confirms the Board is not a court and is not bound by the rules of evidence.  However, the Board may require a person who attends under a notice to attend, to give evidence on oath or affirmation.
In the absence of a reasonable excuse, it is an offence for a person to fail to comply with a notice to produce or notice to attend, potentially attracting a term of imprisonment or fine.

Electronic monitoring of prisoners in prisons

Under the Bill, a new provision is inserted in the Corrections Act to explicitly permit a Governor of a prison to order electronic monitoring of a prisoner.  Examples of possible uses given in the second reading speech are to monitor the movements of selected prisoners within certain areas, to keep certain prisoners separated, or to assist in a medical response if the monitor indicates that a prisoner has stopped moving.
The current s 23, which gives a prison officer general powers to give an order to a prisoner for the security or good order of the prison or the safety or welfare of the prisoner or other persons, is not affected by the new provision.

Time frame for commencing proceedings for breach of parole conditions

Currently, a parolee commits an offence if he or she breaches the conditions of their  parole.  Under the Corrections Act, Victoria Police must commence proceedings against a parolee for breaching his or her parole conditions within 12 months of the date of commission of the alleged offence.
To prevent the time limit of 12 months resulting in some breach proceedings being statute barred because a breach of parole conditions may not be readily apparent before the 12 months elapses, the time limit is extended to 2 years.  This will allow for a criminal investigation to evolve over time, and for  Victoria Police to await the outcome of court proceedings related to other offences.
Among other changes, the Bill will also permit the Secretary to the Department of Justice and Regulation to authorise departmental officers to perform the roles of a community corrections officer, regional manager and secretary to the Board.

Brendan McIntyre
Principal Solicitor
9947 1435


Elizabeth Wortley
Senior Solicitor
9947 1433


Debra Coombs
Principal Solicitor

Should I stay or should I go (ahead)? Staying civil proceedings when they threaten a fair trial

In the recent case of Commissioner of the Australian Federal Police v Zhao, the High Court granted a stay of civil forfeiture (asset confiscation) proceedings to protect a defendant's right to a fair trial in related criminal proceedings. The Court's decision contributes to a body of law that addresses the question how a court should respond when the conduct of civil, disciplinary or inquisitorial proceedings threatens to prejudice the fair conduct of criminal proceedings.

The facts

On 2 July 2013 Mr Xin Jing was charged with offences against the Commonwealth Criminal Code. Shortly after the charges were laid, the Commissioner of the Australian Federal Police commenced proceedings in the County Court of Victoria seeking an order that the family home of Mr Jing and his wife, Ms Qing Zhao, be forfeited under the Proceeds of Crime Act 2002 (Cth) on the grounds that the property represented proceeds of the offences with which Mr Jing was charged.
Mr Jing and Ms Zhao sought an order that the forfeiture proceedings be stayed until the charges against Mr Jing had finally been determined. They argued that defending the forfeiture proceedings would require Mr Jing either to give evidence that might be used against in him in the criminal proceedings or to divulge the details of his defence before the conclusion of the prosecution's case. Mr Jing and Ms Zhao said that to allow the forfeiture proceedings to continue would rob Mr Jing of his right to silence.
The application for a stay of the forfeiture proceedings was refused in the County Court. However, an appeal to the Court of Appeal was successful. The AFP Commissioner then appealed to the High Court.

The High Court's Decision

The High Court determined unanimously that the Commissioner's appeal should be dismissed. In reaching its decision, the Court first noted that the continuation of the forfeiture proceedings would expose Mr Jing to a risk of prejudice in his defence of the criminal proceedings. The Court then held that the interests of justice would not be served by 'requiring the second respondent to defend the forfeiture proceedings or pursue the exclusion proceedings before his criminal proceedings are finalised, especially since the Commissioner will suffer no relevant prejudice from a delay in the continuation of the forfeiture proceedings.'

Relevance of the decision

Zhao builds on a series of recent decisions, including X7 v Australian Crime Commission and Lee v The Queen, in which the High Court has considered the means by which courts may ensure that the conduct of civil, disciplinary or inquisitorial proceedings does not prejudice the interests of an accused in pending criminal proceedings, either by requiring the accused to divulge his or her defence ahead of time or by requiring the accused to provide information that is likely to be incriminating. The cases show that courts have a range of means of ensuring that the fair conduct of criminal proceedings is not prejudiced by the conduct of other proceedings, such as:

• A stay order like the one in Zhao may be made by a superior court in its supervisory jurisdiction or may be made by an inferior court in the exercise of its implied powers. A superior court also has inherent jurisdiction to restrain contempt; this jurisdiction extends to making an order restraining a body with investigative powers (such as a disciplinary board) from seeking to compel a person charged with an offence from answering questions that relate to pending criminal proceedings.
• Where a statutory provision confers investigative powers on an office holder, a court will be reluctant to interpret the provision in a manner that empowers the office holder to compel the production of information that relates to pending criminal proceedings. It is only where clear and unambiguous terms are employed that a statute will be interpreted to require the production of information in breach of an accused's right to silence.
• Even where a provision empowers a statutory office holder to compel a person to provide information that may implicate him or her in the commission of an offence, the information will generally be held to be subject either to 'use immunity' or 'derivative use immunity'. Use immunity prevents information obtained by an investigator pursuant to his or her compulsive powers from being used directly in criminal proceedings. Derivative use immunity prevents evidence found or discovered as a result of the giving of information to an investigator from being admitted.

Finally, where an accused has been required by an investigating body to provide information in breach of his or her right to silence, improper provision of that information to prosecuting authorities may require any subsequent conviction to be quashed.

For queries relating to any of the issues identified in this blog, please contact:

Jonathan Bayly
Principal Solicitor
jonathan.bayly@vgso.vic.gov.au

Rodney McInnes
Principal Solicitor
rodney.mcinnes@vgso.vic.gov.au

WA Supreme Court delivers explicit message on privacy: compensation awarded to Facebook post victim

A woman who was the subject of sexually explicit social media posts by her ex-boyfriend has been awarded almost $50,000 in damages, in a further development of the protection of privacy in Australia.

The facts

In the recent case of Wilson v Ferguson, the plaintiff claimed that her former partner had breached an equitable duty of confidence by posting sexually explicit photographs and videos of her on the internet.

The couple had sent each other explicit photographs over the course of their relationship.  The defendant also took naked photographs of the plaintiff with her consent.  On one occasion, the defendant accessed the plaintiff's phone without her permission and emailed himself videos of the plaintiff engaging in sexual activity.

Following the break-down of the relationship, the defendant posted 16 explicit photographs and two videos of the plaintiff on his Facebook page, along with offensive comments.  The images were accessible to hundreds of the defendant's 'Facebook friends' - many of whom also knew the plaintiff - before they were removed several hours later.

Judgment

The Supreme Court of Western Australia found that the defendant had breached an equitable duty of confidence owed to the plaintiff.  The elements for succeeding in an action for breach of confidence are:

• the information in question was of a confidential nature (i.e., not widely known);
• the information was communicated or obtained in circumstances importing an obligation of confidence; and
• the information was used or disclosed without authorisation.

The Court found that where a person shares intimate photographs in the context of a relationship, it is ordinarily on the implied condition that the photographs are to be kept confidential.  In this case, the plaintiff's expectation that the material be kept private was confirmed in her conversations with the defendant.  The Court also found that by accessing sexually explicit videos from the plaintiff's phone without her knowledge, the defendant was placed under a duty to keep those videos confidential.  The Court was satisfied that posting the material on Facebook was a clear misuse of the confidential information.

A new avenue of redress for victims?

While there are numerous criminal offences which involve breaches of privacy (such as stalking, the use of surveillance devices and the interception of telecommunications), the common law action for breach of privacy remains relatively undeveloped in Australia.   As recently reported by the Australian Law Reform Commission, this means there are limited avenues of redress for persons who have suffered from serious intrusions on their privacy.

Plaintiffs have occasionally brought actions for breach of confidence, where the usual remedy is an injunction to prevent the publication, or further publication, of the confidential information.  Equitable damages have traditionally been awarded for economic loss, but not for distress that falls short of a psychiatric injury.  Accordingly, this cause of action has not been seen as useful for plaintiffs who suffer embarrassment, but no financial harm.

Importantly, in Wilson v Ferguson, the Court not only granted an injunction preventing the defendant from republishing the explicit images of the plaintiff, but also awarded equitable damages of $35,000 to the plaintiff as compensation for the distress caused by the dissemination of the images.  The Court expressly relied upon the 2008 Victorian Court of Appeal decision of Giller v Procopets  in determining that such damages were available.  The defendant was ordered to pay a further $13,404 in equitable damages for economic loss, to cover the plaintiff's time off work following the incident.

As such, this case represents a potentially significant precedent on the award of equitable damages for emotional distress for the misuse of personal information.  If the decision is followed, bringing a legal action for breach of confidence may become a far more attractive avenue of redress for people who have suffered from serious invasions of their privacy where there was an obligation of confidentiality.

A cautionary tale of the use of technology…

One of the Court's key reasons for expanding the award of equitable damages was the recognition that the law needs to keep pace with the use of technology on modern society. As Justice Mitchell remarked, it is not uncommon for people in relationships to use mobile phones to share intimate communications, and the internet is an easily accessible platform to disseminate those communications with the world.  Although the explicit images in this case were removed from the defendant's Facebook page just hours after being posted, the damage had already been done.  The award of almost $50,000 damages against the defendant comes as a timely reminder that comments and postings made online in the spur-of the-moment can have far-reaching 'real world' consequences.

For information on privacy law and related criminal offences, please contact:

Louise Jarrett
Acting Managing Principal Solicitor
louise.jarret@vgso.vic.gov.au 

Amy Galeotti
Solicitor
amy.galeotti@vgso.vic.gov.au

A duty to prevent a person from harming others? The latest from the High Court

On 12 November 2014 the High Court handed down judgment in Hunter and New England Local Health District v McKenna, unanimously allowing an appeal against an award of damages arising out of the deliberate killing of a man by his severely psychiatrically disturbed friend. While the Court's judgment only directly concerns the liability in tort of medical practitioners who exercise statutory functions relating to the involuntary hospitalisation of psychiatric patients, it is likely to have significant implications for statutory bodies charged with the exercise of public functions.

The Facts

Early in the morning of 20 July 2004, Mr Stephen Rose became concerned about the mental state of his friend Mr Phillip Pettigrove, who suffered from schizophrenia. Mr Rose took Mr Pettigrove to Manning Base Hospital in Taree. Upon his arrival at the hospital, Mr Pettigrove was admitted as an involuntary patient under the former Mental Health Act 1990 (NSW).

During the afternoon of 20 July 2004, hospital staff examined Mr Pettigrove and discussed his condition with Mr Rose. It was determined that Mr Pettigrove would be discharged into the care of Mr Rose, who would take him by car to his mother's home in Echuca. On the morning of 21 July 2004, Mr Pettigrove and Mr Rose departed Taree for Echuca. That night, while in a delusional state, Mr Pettigrove strangled Mr Rose to death.

Mr Rose's mother and his two sisters alleged that they had sustained psychiatric injury as a result of Mr Rose's death and commenced proceedings for damages against the hospital authority. They alleged that hospital staff had been negligent in failing to order the continued involuntary treatment of Mr Pettigrove and that this negligence had been a cause of Mr Rose's death and of their subsequent psychiatric injuries. At trial, the plaintiffs were unsuccessful. However, they successfully appealed to the New South Wales Court of Appeal. The hospital authority then appealed to the High Court.

The NSW Act

Central to the case were the provisions of the NSW Act. Section 21 provided for the involuntary detention of a person in a hospital if a medical practitioner certified that he or she was mentally ill. However, the Act contained numerous safeguards to protect the rights of patients. In particular, it provided that a decision to involuntarily admit a patient was subject to multiple stages of internal review by specialist medical practitioners and that the involuntary admission of a patient pursuant to the order of a medical practitioner could not exceed three days' duration. Thus the Act manifested a strong bias against involuntary detention. This policy was reflected in the express terms of section 20 of the Act, which provided that involuntary admission was not to be ordered where a less restrictive treatment option was reasonably available.

Judgment

The High Court held that staff at the hospital owed no duty to take reasonable care in determining whether or not to order the continued involuntary treatment of Mr Pettigrove. The Court considered that this conclusion was mandated by the express terms of s 20 of the NSW Act and by other provisions which 'reinforced' the policy enunciated in s 20. The Court determined that to impose upon hospital staff a common law duty to take reasonable care in determining whether to order the continued involuntary treatment of Mr Pettigrove would be inconsistent with the strong presumption against involuntary treatment manifested in the Act.

Implications for Decision Makers

While the judgment of the Court directly concerns only the specific provisions of the (now repealed) NSW Act, it will be welcomed by parole boards, quarantine authorities and other decision makers whose powers require them to balance the interests of individuals against the interests of the wider community. The imposition of a duty to take reasonable care in the exercise of such powers has the potential to act as a potent incentive to a decision maker to make the decision that he or she considers least likely to result in an award of damages, rather than the one he or she considers to be correct or preferable. It thus may place a decision maker in an impossible situation in which the proper performance of a statutory function carries with it a risk of incurring liability in damages, while minimising the risk of liability entails neglecting the performance of a statutory duty. The judgment of the High Court contributes to a body of authority, which includes such cases as Sullivan v Moody, Regent Holdings v State of Victoria and X v State of South Australia, that holds that a duty of care will not be found to exist in such circumstances.

If you are in the Victorian Government and would like further guidance on decision-making, risk and liability, we can help.

Jonathan Bayly
t 8684 0223
jonathan.bayly@vgso.vic.gov.au

Crime doesn’t pay: Northern Territory's tough stance on proceeds of crime gets tick of approval from High Court

The idea that offenders shouldn't be allowed to profit from their criminal behaviour isn't a new or a controversial one. Forcing an offender to forfeit gains derived from a criminal offence is accepted as part and parcel of criminal punishment, and all Australian governments have some form of legislation allowing them to confiscate the proceeds of crime from a convicted offender.

But while its common practice to confiscate property derived from offending, most states and territories (including Victoria) confine it to that. That is, the property the State can seize from the offender needs some sort of link with the offending. In Victoria, for example, the property must be 'tainted'.  It has to have been used or intended for use by the offender in connection with the offence, or must have been derived and/or realised from the offence.  Regardless of whether the property belongs to, or was used by, the offender or some other person, if it's found to be 'tainted', the State of Victoria can apply to confiscate it.

The Northern Territory however, took this one step further in relation to drug trafficking and enacted legislation that allows the Director of Public Prosecutions to apply to the NT Supreme Court to have a person officially declared a 'drug trafficker'.  Once labelled a 'drug trafficker', section 94(1) of the Criminal Property Forfeiture Act (NT) mandates that all of that individual's property must be forfeited to the Territory. There is no requirement that the property be connected to or derived from a particular offence or criminal activity generally, it applies to all property owned or effectively controlled by that person, and all property they may have given away, whether acquired before or after the legislation was introduced. Once a person's been tarred with the drug trafficker brush, if the NT DPP makes a forfeiture application in accordance with s 94(1), everything they have goes to the Territory.

The law was bound to be tested, and sure enough, the High Court recently had the opportunity to consider an appeal brought by NT resident, Reginald William Emmerson. Between August 2007 and September 2011 Mr Emmerson was convicted of a range of drug-related offences, including supply of 18.6646kg of cannabis. In 2012, the NT DPP successfully had Mr Emmerson declared a drug trafficker under s 36A of the Misuse of Drugs Act (NT). He was therefore obliged to surrender not only the $70,050 he obtained from the sale of cannabis, but also in excess of $850,000 worth of assets acquired through legitimate means. Mr Emmerson appealed to the NT Court of Appeal, where they set aside the declaration as unconstitutional, saying that the law was not compatible with the sort of powers governments are able to give courts, which are part of the wider court hierarchy in Australia and have to be independent from other branches of government. Some of you may know this as the Kable doctrine, which preserves the institutional integrity of the courts of the States and Territories, preventing them from being used as a mere tool of the executive government.

Next, the NT Attorney-General appealed to the High Court. On 10 April 2014, the High Court handed down a 6:1 majority judgment giving the NT forfeiture laws their tick of approval.  The High Court said that the NT is constitutionally permitted to give its Supreme Court the power to declare a convicted offender a 'drug trafficker' with the consequent loss of all his property: it's not incompatible with the Supreme Court's constitutional role, and in bad news for Mr Emmerson, it was not an acquisition of property otherwise than on just terms. As some of you will know, that is one of the few rights enshrined in our Constitution: s 51(xxxi).

To a modern eye, the NT law may seem harsh, but the High Court majority seemed to almost relish setting out its finding that there is nothing unconstitutional about the State seizing a convicted crim's worldly goods.

In a 'back to the future' approach, the High Court noted that forfeiture laws of this kind have a long history in English law (which, of course, provides the blueprint for Australia's legal system). Up until 1870, a convicted felon in England routinely forfeited all his property. The Court said at para [16], 'Blackstone noted the severe deterrent effect of [old English] forfeiture as a punishment for serious crime because it affected posterity as well as the individual offender.' In other words, the kids weren't inheriting dad's land and titles if he committed a serious crime. The history buffs among you will enjoy the short tour through the history of criminal forfeiture law contained in the majority judgment.

From a Victorian perspective the case is interesting because the High Court did not find that the NT law required the NT Supreme Court to act at the behest of the NT DPP or to give effect to government policy without following ordinary judicial processes. In other words, there is no 'Kable' limitation on the ability of Australian State governments to enact such laws.  

If you are in the Victorian Government and would like advice on constitutional limitations regarding courts in State legislation, please contact

Sky Mykyta
sky.mykyta@vgso.vic.gov.au
8684 0220

Rachel Amamoo 
rachel.amamoo@vgso.vic.gov.au
8684 0899

'Double or nothing' - The rule against duplicity in charging criminal offences

In Victoria, the rule against duplicity is a common law rule concerning the way criminal charges are drafted.  The rule provides that the prosecution must not allege the commission of two or more offences in a single charge in a charge-sheet.[1]  Such a charge is sometimes said to be 'duplex' or 'duplicitous'.

While the rule is well established in criminal law, prosecuting agencies sometimes find it difficult to apply in practice.  It is often stated that there is no 'technical verbal formula of precise application' that provides an easy guide to applying the rule.[2]

However, like other common law and statutory rules [3] for drafting criminal charges, the rule stems from two important principles:

• First, as a matter of fairness, a person charged with a criminal offence is entitled to know the crime that they are alleged to have committed, so they can either prepare and present a defence or decide to plead guilty.  
• Second, the court hearing the charge must also know what is alleged so that it can determine the admissibility of evidence, focus on the relevant fact-finding task, consider any possible defences which might be available, and determine the appropriate punishment in the event of a conviction.

When does a charge contravene the rule against duplicity?

There are generally considered to be two ways in which a charge might offend the rule against duplicity: These are:

Patent duplicity, where a single charge alleges the commission of two separate offences.  

Latent duplicity (also called 'latent ambiguity' or 'latent uncertainty'), where a single charge alleges the commission of only one offence, but the evidence led by the prosecution in relation to the charge discloses a number of separate offences, all of which could fit the allegation described in the charge.

In either case, the accused may be prejudiced in a number of ways by a duplex charge.  A concise summary of the prejudice that may flow in such cases can be found here in the judgement of Redlich JA in the Victorian Court of Appeal decision of PPP v The Queen.[4]

An excellent summary of the history and development of the rule can be found in the judgement of Leeming JA in the NSW Court of Criminal Appeals' decision of Environment Protection Authority v Truegain Pty Ltd.[5] 

Distinction between a duplex charge and a charge alleging an offence 'in the alternative'

Sometimes a statutory provision will state that an offence can be committed in alternative ways (for example, intentionally or recklessly causing injury).  Under the Criminal Procedure Act 2009 (Vic), the prosecution may generally plead that an offence was committed 'in the alternative' in the one charge.[6]  

However, it can sometimes be difficult to apply this exception in practice.  One problem is that a single statutory provision sometimes creates separate offences.[7]   Whether a statutory provision creates separate offences or a single offence that can be committed in alternative ways can only be identified by process of statutory interpretation. VGSO's lawyers are experts in statutory interpretation and are pleased to provide assistance in this regard.

Exception for offences that are part of a 'single transaction' or are 'continuing offences'

An exception to the rule against duplicity is where an accused is alleged to have engaged in a course of conduct consisting of a series of acts, each which might constitute a separate offence, but which are so closely related that they can be considered one act or a 'single transaction'.[8] 

Whether such allegations are considered a 'single transaction' depends on the period of time over which the acts occurred, the similarity of the acts, the physical proximity of the place where the acts happened, and the intention of the accused throughout those acts.[9]   However, even where such a connection exists, it may still be necessary to charge one or more of the acts separately.  For example, an accused might have a specific defence to one or more of the alleged acts, or the evidence available to prove some acts may be substantially weaker than for others.[10]   Fairness dictates that these acts are set out in separate charges.

There are also offences which require proof of a number of acts in order to establish an offence, even where the individual acts may themselves constitute distinct offences.  These are sometimes called 'continuing offences'.  Examples include allegations of stalking[11] or persistent sexual abuse of a child.[12] 

Exception for 'rolled-up' charges

Another important exception to this rule applies where an accused waives the right to object to a charge that is affected by duplicity by pleading guilty to a 'rolled-up' charge.  

A rolled-up charge can comprise a number of separate offences against the same statutory provision, even where they do not amount to a 'single transaction' (eg where the acts occurred on different occasions).  This is usually done in negotiating a plea of guilty to create an administrative convenience rather than to reduce the culpability of the accused.  

It is important for prosecutors to ensure that the summary of facts presented to the Court at sentencing explains that a rolled-up charge encompasses a number of distinct offences, so that the accused is sentenced accordingly.

Overcoming duplicity in a charge

Duplex charges are not automatically struck out by a court.  Instead, the court will usually require the prosecution to 'elect' which of the separate offences it wishes to proceed with (where there is patent duplicity) or to provide sufficient particulars of the charge to identify the precise instance of offending (where there is latent duplicity).  If the prosecution fails to make an election or identify the precise instance of offending, the Court may act to strike out or 'stay' the charge.

Whatever the case, it is always important that proper particulars are given, so that the accused knows all of the relevant facts, matters and circumstances alleged against them.  A failure to provide such particulars can still result in a charge being struck out.

Conclusion

If you require advice or assistance in drafting charges or criminal prosecutions generally, contact:

Greg Elms
greg.elms@vgso.vic.gov.au
8684 0414

Michael Stagg
michael.stagg@vgso.vic.gov.au
9247 6496

Matthew Carrazzo
matthew.carrazzo@vgso.vic.gov.au
8684 0497

[1] The rule applies equally to the drafting of counts in an indictment, where a matter is prosecuted by the Director of Public Prosecutions in the County Court or Supreme Court.

[2] Stanton v Abernathy (No 2) (1990) 19 NSWLR 656 at 666 per Gleeson CJ.

[3] See Schedule 1 of the Criminal Procedure Act 2009 (Vic).

[4] [2010] VSCA 110 at para [43].

[5] [2013] NSWCCA 204 at paras [31] to [53].

[6] Clause 3(3) of Schedule 1 to the CP Act.

[7] For example, section 52 of the Summary Offences Act 1966 (Vic) provides: "Any person who assaults resists obstructs hinders or delays … any member of the police force or a protective services officer in the execution of his duty under this Act or otherwise… shall be guilty of an offence".  This provision arguably creates a number of distinct offences, rather than a single offence which can be committed in different ways.

[8] Such conduct is sometimes referred to as a 'composite activity'.

[9] Walsh v Tattersall (1996) 188 CLR 77 per Kirby J; R v Khouzame & Saliba [1999] NSWCCA 173; (1999) 108 A Crim R 170; R v Heaney [2009] VSCA 74; Rixon v Thompson [2009] VSCA 84.  It is useful to look at cases of the higher courts to get a flavour for what fits within this exception.  The decision of Ashley JA in R v Heaney and the decision of the Court of Appeal in Rixon v Thompson are good starting points.

[10] See: Rixon v Thompson [2009] VSCA 84 per Maxwell P, Weinberg JA and Kyrou AJA at paras [73]-[77], [89]-[90].

[11] Section 21A of the Crimes Act 1958.

[12] Section 47A of the Crimes Act 1958.