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

Director of Public Prosecutions publishes new policy

In August 2017, the Director of Public Prosecutions published the Policy of the Director of Public Prosecutions for Victoria (Policy).  The Policy follows a comprehensive review of the DPP's policy material and replaces all former DPP policies.

The Policy is required reading for anyone involved in prosecution or employed in an agency with prosecutorial or regulatory functions.  You can and should use the Policy to guide your prosecutorial decisions in line with modern prosecutorial principles.  We've produced a quick summary of what the policy covers to help you easily identify the areas you might find most relevant to your day to day functions.

What does the Policy cover?

The Policy supplements the Public Prosecutions Act 1994 and relevant case law to promote  transparency, accountability and consistency in prosecutorial decision-making.  It aims to reflect, accurately and succinctly, the needs of modern-day prosecutors.  Importantly, the overriding criteria in making the decision to prosecute remain that there is a reasonable prospect of a conviction and the prosecution is in the public interest.

In summary, the Policy covers:

• prosecutorial discretion 
• the role of the prosecutor
• victims and persons adversely affected by crime
• resolution of criminal proceedings by agreement between the prosecution and the accused
• the appropriate jurisdiction for indictable offences triable summarily
• undertakings and indemnities
• juries
• family violence
• appeals, references, retrials and reinvestigations
• takeover of prosecutions by the DPP
• proceeds of crime
• giving reasons for prosecutorial decisions
• advice from the Office of Public Prosecutions to external agencies
• detention orders under the Serious Sex Offenders (Detention and Supervisions) Act 2009.

The DPP has also said that he will not print the Policy for distribution, but will treat it as a living, electronic document, to be continually reviewed and accessed as needed.  This approach ensures that the Policy is consistently relevant and up-to-date.  You can follow the DPP on Twitter to receive notification of updates to the policy.

What doesn't the Policy cover?

Inevitably, some matters covered by former policies are not covered in the Policy.  After all, the single, 50-page Policy replaces over 50 former policies, issued over several years and totalling almost 500 pages.  In the Policy Foreword, the DPP notes that this series of former policies did not bear a sufficient connection to the practice of a modern-day prosecutor.  Generally speaking, the Victorian public prosecutions service has sought to excise any policy material that was out of date, was related to internal DPP procedures or was seen as an unnecessary recitation of the law.

To give just a few examples, the new Policy does not reproduce the former policies on media communication, the investigation of jury offences or protocols for the prosecution of joint State-Commonwealth matters.  Several policies relating to specific applications or pieces of legislation have also been retired, such as those on notifications under s 49(1) of the Coroners Act 2008, the granting of consent to prosecute under the Racial and Religious Tolerance Act 2001 and the granting of consent to extend time to prosecute under the Funerals Act 2006.

What else does the Policy mean for me?

Agencies with prosecutorial or regulatory functions may also wish to review their internal policies and manuals to ensure they are up-to-date.  VGSO have a team of regulatory and enforcement specialists who can assist with investigations, prosecutions, as well as drafting of relevant policies, manuals and staff training.

Where can I go for more information?

If you would like further advice about the Policy or its implications for your practice, please contact:

Alicia Robson
8684 0494
Acting Managing Principal Solicitor

Michael Rancie
8684 0266
Solicitor

Regulators and decision-makers, it's a dog's life

The recent High Court decision in Isbester v Knox City Council [2015] HCA 20 reinforces to regulators that their staff cannot act as jury, judge and executioner, and they must apply the principles of natural justice to each decision, acting without any perception of bias.

On 10 June 2015, the High Court in essence held that the same staff within a regulator cannot be involved in the prosecution of a criminal charge then sit on a review panel for a related matter, even if not acting as the final decision-maker, due to the perception of bias.

Facts of case

Ms Hughes was a Council employee who, as an authorised officer, charged Ms Isbester with an offence under s 29 of the Domestic Animals Act 1994 (Vic) relating to an attack by her dog.

Later, Ms Hughes sat as a member of a three-person panel which deliberated and recommended to the chairperson of that panel, who was the ultimate decision maker, that he make an order to destroy the dog under s 84P(e) of the same Act.

The High Court considered the question of whether there was a possibility that Ms Hughes could have prejudged the decision to destroy the dog after her involvement in the prosecution of the charges against Ms Isbester, and whether that could give rise to an apprehension of a conflict of interest.

Principles of bias

The well-known principle governing cases of possible bias was said in Ebner[1] to require two steps:

1.         An interest which might lead a decision-maker to decide a case other than on its legal and factual merits.

2.           A logical connection between that interest and the feared deviation from the course of deciding the case on its merits.

Ms Isbester had alleged that:

(a)          Ms Hughes had such an 'interest' as a person bringing charges, whether as a prosecutor or other accuser, in the outcome of the hearing of those charges; and

(b)          This interest would conflict with the objectivity required of Ms Hughes as a member of another decision‑making body deciding the consequential matter of whether to destroy the dog.

Joint judgment

In their joint judgment, the Honourable Justices Kiefel, Bell, Keane and Nettle held at [42] that:

It is not realistic to view Ms Hughes' interest in the matter as coming to an end when the proceedings in the Magistrates' Court were completed.  A line cannot be drawn at that point of her involvement so as to quarantine the Magistrates' Court proceedings from her actions as a member of the Panel.  It is reasonably to be expected that her involvement in the prosecution of the charges created an interest in the final outcome of the matter.

Of course, the "final outcome of the matter" was the decision of whether to destroy the dog.

Their Honours held at [43] that:

Having participated in obtaining the conviction for the offence under s 29(4), [Ms Hughes] organised the Panel hearing and drafted the letter advising [Ms Isbester] of it.  She supplied the Panel with evidence, including further evidence she had obtained as relevant to the future housing of the dog.  If Ms Hughes could not actually be described as a prosecutor with respect to the decision under s 84P(e), she was certainly the moving force.

A fair-minded observer might reasonably apprehend that Ms Hughes might not have brought an impartial mind to the decision under s 84P(e).

Their Honours confirmed that this was the case even though the primary judge had found that Ms Hughes had acted nothing other than diligently, and in accordance with her duties, or that she was in fact wholly impartial.  They said that "natural justice required, however, that she not participate in the decision and because that occurred, the decision must be quashed."

So, the decision to destroy the dog was set aside.  As they say, every dog has it's day...

Victorian Government clients seeking advice on investigations and the prosecution of criminal charges, can contact:

Jennifer Butler

Principal Solicitor

8684 0423

Greg Elms

Managing Principal Solicitor

8684 0414

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[1] Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v Australia and New Zealand Banking Group Ltd (2000) 205 CLR 337

Smile, you could be on 'body worn camera'

Take a closer look at all the gadgets and equipment worn by your local police officer and you might notice a small vest-mounted video camera attached to his or her lapel.  The camera,  called a body worn camera (BWC), records police interactions with the public and they may soon be worn by front line officers across the country.

According to news reports, BWCs are popular and have been trialled in every Australian state. For example:

• In the Northern Territory a reported 40 front line officers are officially trialling the equipment, and the Northern Territory Police Association estimates that three-quarters of their force have already bought and are using personal cameras;
• In Queensland, the Palaszczuk government reportedly has committed significant funds for BWCs;  
• In Victoria, Frankston police trialled 22 BWCs in 2013-2014, and Victoria Police is currently evaluating the project in anticipation of expansion.  

Even in the US, President Obama has reportedly asked Congress for $263 million over three years for 50,000 BWCs across the country following the tragic events in Ferguson, Missouri. It wouldn't be surprising to see the use of BWC's extend beyond policing to other areas of enforcement - perhaps parking inspectors, park rangers or fisheries officers keen to document their encounters on duty.

What are their key advantages?

1. Potential reduction in violence.

There is little data on the efficacy of BWCs, but what exists is positive.  The most widely cited study tracked their use by police in Rialto, California.  There, Cambridge researchers found that the use of BWCs decreased incidents of the use of force by 59% and complaints against police by 87%.

Although limited, the study suggests that people are less willing to resort to violence and that police behaviour improves when both parties know they are being recorded, and it also appears to deter members of the public from bringing spurious complaints.

2. Use as an evidentiary tool.

For investigating and prosecuting agencies, the BWC is no doubt appealing as an evidentiary tool.  Clear, verifiable footage captured by BWCs could reduce hours in court examining and verifying the veracity of oral accounts.  This in turn would reduce the public resources spent on each trial and enable courts to hear more cases in less time.

However, investigating agencies using or considering using BWC footage as evidence will need to take into account a range of factors including:

• Admissibility requirements. The admissibility of footage captured by body worn cameras will generally be governed by the principles which apply to the admissibility of evidence in general.  In Victoria these principles are set out in the Evidence Act 2008, which generally provides that evidence is admissible if it is relevant to the issues in dispute between the parties and either is not hearsay or, if hearsay, falls within an exception to the hearsay rule.  However, depending on the jurisdiction in which the dispute is brought, other provisions may be applicable: see for example s 98(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998.
• Pre-trial disclosure requirements. Agencies will need to be equipped to hand over relevant footage, or at least have facilities for defence lawyers to view the footage in a secure setting.  Whether interested parties, including the media, can access footage when no prosecution is on foot will be another matter for determination.

Other legal considerations

Privacy 

To date, no specific Victorian legislation removes the statutory privacy obligations of police and other agencies using BWCs.  Agencies intending to use BWCs should therefore ensure that their use complies with legislation regulating the collection, use and disclosure of personal and health information, and in particular the Charter of Human Rights and Responsibilities Act 2006, the Privacy and Data Protection Act 2014 (PDP Act) and the Health Records Act 2001. Notably, the law enforcement exemption to the PDP Act, if applicable, would allow Victoria Police to collect, use, disclose and restrict access to information recorded by BWCs when reasonably necessary to carry out law enforcement functions. In some circumstances the Surveillance Devices Act 1999 may also apply. Amendments to privacy notices are likely to be required.

The law also restricts publication of personal and sensitive information including details of sexual assault, family violence victims and children involved in court proceedings, and information that could prejudice the fairness of any pending or in progress trials.  Agencies will need to be especially careful to identify and appropriately deal with personal information of third parties that is captured in background events and peripheral conversations.

Data retention

Information collected via BWCs must be securely stored and otherwise dealt with in accordance with legislation, including the Public Records Act 1973 and the PDP Act Parts 4 and 5 as applicable.  From a practical perspective, continuous recording could mean enormous data storage costs, so agencies will need to develop policies on when to turn the cameras on and off. For example, it has been reported that the practice in the Northern Territory is to turn on the BWC only when police exercise their powers or 'make customer contact or custody'.

For further information on these issues please contact members of our Policing Practice Group or Technology and Data Protection Practice Group:

Louise Jarrett
Managing Principal Solicitor
t 9247 6798
louise.jarrett@vgso.vic.gov.au

Grahame Best
Solicitor
t 9247 6425
grahame.best@vgso.vic.gov.au

Deidre Missingham
Senior Solicitor
t 8684 0483
deidre.missingham@vgso.vic.gov.au

'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.

High Court decision affecting Victorian hunting and fishing laws

Native title cases can make your head hurt. But it is always interesting to see the highest court in the land grapple with the complex interplay between statutory regimes and native title rights.

Karpany v Dietman is no exception. It considered whether the native title right to fish provided a defence to a prosecution under an SA law prohibiting fishing, and also whether the native title right was extinguished by a previous SA fishing law.

The decision is an important one for any Victorian government officers that regulate hunting, gathering or fishing, as it increases the likelihood of native title operating as a defence in prosecutions of this type.

The facts

Owen and Daniel Karpany, two members of the Narrunga People (an Aboriginal group in South Australia), were charged on 12 December 2009 for possessing undersized abalone.

They argued s 211 of the Native Title Act 1993 (Cth) as a defence. Section 211 provides a defence to federal and State prohibitions on hunting, fishing, gathering and 'cultural or spiritual' activities where a person has a native title right to carry on the activity, so long as:

• it is for a domestic or communal purpose, not a commercial one;
• it does not exceed the scope of the native title rights; and
• the prohibition applies other than in accordance with a 'licence, permit or other instrument'. The Karpanys argued that the Minister's ability to grant exemptions from this prohibition met this requirement.

The two issues for the High Court were:

• whether the Fisheries Act 1971 (SA) (1971 Act) extinguished the Karpanys' native title right and thus s 211 was inapplicable; and
• whether the words 'licence, permit or other instrument' in s 211 should be read broadly to include the SA Minister's statutory power to grant exemptions to the fishing prohibition.

The decision

The High Court found for the Karpanys on both issues.

First, it held that the native title right to fish had not been extinguished by the 1971 Act because the 1971 Act regulated fishing, rather than replacing all existing fishing rights with statutory ones. The Court noted that the 1971 Act's prohibitions were subject to exceptions and exemptions, including ones facilitating the exercise of the native title right to fish. As the 1971 Act did not generally prohibit the exercise of native title fishing rights, it did not extinguish those rights.

Secondly, the Court agreed that the statutory power of the Minister to grant exemptions from the current fishing prohibition was a 'licence, permit or other instrument' for the purpose of s 211(1)(b). The Court said that those words accommodated 'a large range of possible statutory regimes', and were apt to cover 'any form of statutory permission issued to individuals or classes or groups of people to carry on one or other of the classes of activities described in s 211(3)' (that is, hunting, fishing and gathering).

How this decision affects the Victorian government

There are two ways this decision could affect Victorian government officers.

First, it is more likely that s 211 of the Native Title Act 1993 (Cth) could be raised as a defence to a hunting or fishing prosecution. When its preconditions are met, s 211 trumps State restrictions on these activities, allowing native title rights to be exercised for personal, domestic, non-commercial or communal needs. This is because s 109 of the Constitution invalidates any State laws that are inconsistent with a Commonwealth law (such as s 211).

Section 211 will apply if the State restriction applies other than in accordance with a 'licence, permit or other instrument'. For example, in Victoria, Part 8 of the Fisheries Regulations 2009 (Vic) applies various restrictions to the taking of abalone. But where a restriction is subject to an exemption based on a licence, the restriction could be removed by s 211. The broad approach to interpreting 'licence, permit or other instrument' in Karpany may mean that the point is more whether there is an exemption power of some kind, even if it is not usually thought of as a licence or permit.

It is important to note that the State law relaxed by s 211 was an offence provision which applied to persons who did not hold a licence. The effect was that native title holders could take undersized abalone which no one else could, unless the Minister actually exempted them from the operation of the legislation. The existence of that exemption power (not its past or likely use) was enough to trigger s 211.

Moreover, Karpany is another instance that shows native title does not need to have been formally recognised to argue the s 211 defence. Having said that, the prosecution did not argue that the Karpanys did not have the necessary native title fishing rights.

Secondly, the decision shows the High Court will not be easily persuaded that a State statutory licensing regime extinguishes native title rights to take resources. Native title rights to fish for non-commercial purposes have been recognised to exist over parts of Victoria.

In short, Victorian government officers need to keep in mind that native title rights to fish or hunt may form a defence to a prosecution if it was done for domestic or communal purposes. Seek legal advice on your specific legal regime if you want to know whether it meets the particular requirements of s 211 of the Native Title Act 1993 (Cth).

If you are in the Victorian Government and require legal advice on native title rights or this decision, please contact:

Mary Scalzo
Managing Principal Solicitor
t 9947 1419
mary.scalzo@vgso.vic.gov.au

James Stephens
Principal Solicitor
t 9947 1422
james.stephens@vgso.vic.gov.au

Water Bill Exposure Draft: what changes will flow?

Following a comprehensive review of Victorian water law, a Water Bill Exposure Draft was released to the public in December 2013.

The Exposure Draft proposes to bring the two current Acts that govern water use and management in Victoria - the Water Act 1989 and the Water Industry Act 1994 - into a single streamlined Water Act. In addition to ironing out issues created by confusing, duplicated and obsolete provisions in the current legislation, the Exposure Draft also seeks to modernise water management practices and implement Government policies including the Living Victoria policy and the forthcoming Melbourne's Water Future strategy.

Although many features of the current legislative regime will remain the same, the Exposure Draft proposes a new, more logical structure that should make it easier to find relevant information. It seeks to streamline and consolidate provisions which are spread across the current Acts, both of which have been subject to many water reform amendments since their commencement. A table that sets out where the equivalent provisions in the current Acts can be located in the new Exposure Draft is available here. Some current provisions - such as those governing the power to impose water restrictions - will be dealt with by Regulation.

The Exposure Draft also proposes a number of substantive changes aimed at promoting 'whole of water cycle' management and to bring Victorian water law into line with contemporary water and legislative practice.  Four of the most substantive changes are outlined below.

New 'core considerations' for decision makers

Under the current legislation, the obligations on decision makers regarding matters that must be taken into account are difficult to navigate, inconsistent and repetitive. The Exposure Draft sets out a new single set of 'core considerations' at the front of the Bill which the Minister - or water corporations and catchment authorities acting on the Minister's behalf - will be required to take into account before making certain decisions, including considering applications for new licences and water shares.

The proposed core considerations include the impact a decision will have on other water users, on environmental water (and water that may not meet the definition of 'environmental water' but which has multiple uses including preserving environmental values and the health of water ecosystems); and on the protection of the environment generally. The concept of 'environmental water reserve' has been replaced by the broader concept 'environmental water'. This is intended to better capture the concept of water in life cycle terms including: water held under an entitlement or right for the environment, and water committed under other entitlements for environmental purposes.

Replacing the current piecemeal approach with a standardised set of core considerations that will govern the making of many decisions relating to water use and management should enable greater consistency and efficiency in decision making as well as ensuring environmental protection is a priority.

Water Resource Management Order

A new concept called the Water Resource Management Order (WRMO) is proposed to describe all water management arrangements for a particular area. This will act as an umbrella under which all entitlements in the particular area will sit. That means that bulk entitlements, water shares, take and use licenses as well as statutory rights (eg, for domestic and stock use) will be located in one place and easier to understand. The current mix of regulatory instruments have been described as complex and inconsistent. The WRMO proposes to simplify water system management rules. The WRMO will include cap and trade rules that determine the maximum volume of water that can be allocated within a particular area or water system.

Statutory rights for local councils to water in stormwater drains

At common law, the position in relation to property rights that attach to the water collected in stormwater pipes and drains is complex and difficult to understand. The Exposure Draft proposes to extinguish these common law rights and confer new express rights for local councils to manage water in their stormwater works.

Under the Exposure Draft, all rights to water in local council and water corporation stormwater pipes and drains will be vested in the Crown, with the rights to take and use that water expressly conferred on local councils and water corporations. Having clear rights to use and control this water is aimed at encouraging investment in local projects to harvest and make use of stormwater that is currently going to waste.

Changes to the enforcement regime for water-related offences

The Exposure Draft also proposes a significant overhaul of the compliance and enforcement regime currently in place under the Water Act 1989 for water-related offences, including providing clearer explanations of what conduct will constitute an offence, and increasing penalties to improve deterrence.

The changes comprise multiple enforcement options that are more targeted to the nature of the particular offence, and provide alternatives to costly and time consuming court proceedings such as the use of penalty infringement notices.

The provision relating to liability for flows of water (currently s 16, new clause 671) has been clarified in a number of ways. The flows of water for which an owner of land may be held liable includes water from a tank, sewer, drain, pipe, fitting or appliance of any kind on the land.

The Exposure Draft also sets out new requirements for the valid appointment of appropriately trained Authorised Water Officers who will be responsible for administering the compliance and enforcement regime.

The Exposure Draft is open for public comment until 14 February 2014. Once finalised, it is intended that the new Water Bill will be introduced to Parliament during 2014 with a view to a new Water Act commencing on 1 January 2016.

For more information, please contact:

Eliza Bergin
Principal Solicitor
t 8684 0267
eliza.bergin@vgso.vic.gov.au

How to give your prosecutions the best chance of success

Regulators don’t prosecute lightly.  So when they do, it is important to get it right.

This involves more than good investigation.  As the Victorian Auditor-General’s Office has noted in a number of its recent reports, good regulatory outcomes come from agencies having clear and comprehensive systems in place for their enforcement activities. 

VAGO's reports include recommendations such as:

• establishing a compliance framework for determining appropriate enforcement action;
• documenting the procedures and standards required of staff carrying out compliance and enforcement activities; and
• ensuring staff understand the legislation and rules for their regulatory area.

Here are some tips for building your agency’s capacity to conduct prosecution casework and achieve good regulatory outcomes.

Know the law

Investigators and prosecutors should have a good understanding of the regulatory laws that they apply, including relevant acts, regulations and other rules (such as Ministerial orders).  This can be developed through training, information sharing and reference material as much as through experience.

Investigators and prosecutors should be particularly familiar with the criminal offences under their legislation, the 'elements' or 'points of proof' for those offences, and the evidence required before a prosecution can be commenced.   Template investigation plans for these offences help investigators identify the evidence to be gathered and inquiries to make.

Companies and other organisations may operate in your regulatory space. Proving criminal offences against companies can be complex.  Investigators and prosecutors should know how relevant laws apply to companies as well as to individuals.

Develop appropriate investigative techniques and use statutory powers carefully

Successful prosecution outcomes start with good investigations.

Basic investigatory techniques, such as effective communication and interpersonal skills, are important for any investigation.  However, some offences require specialised investigative techniques or resources to gather the required evidence. 

This may include:

• developing information systems or databases to store, manage and access information;
• using appropriate interviewing or questioning techniques (for example, when dealing with children or persons from different social, cultural and linguistic backgrounds); or
• obtaining technical support for gathering evidence (such as a forensic computer analyst or accountant).

Operational training is important to ensure staff can use these techniques and resources.

Investigators sometimes have special powers, for example, to enter buildings, search for items and seize possible evidence.  It is very important to know the limits of these powers, not only because their improper use can affect the admissibility of evidence, but also because they can infringe important civil rights.  Agencies should develop guidelines for the use of these powers, and regularly audit how they are being used.

Prepare well-organised and comprehensive briefs

Investigators ordinarily compile all of the evidentiary material they obtain into a brief.  A well-organised brief allows a prosecutor to easily:

• understand the alleged offending;
• assess the evidence against the allegation;
• identify what further evidence the investigator should attempt to obtain;
• provide appropriate disclosure of the prosecution case to the defence; and
• prosecute the case in court.

Investigators should make sure the brief includes:

• well-prepared witness statements for all witnesses (in coming weeks, we will write in more detail about witness statements, watch this space!)
• a complete list of exhibits (including copies of all relevant evidentiary documents and details of any 'real evidence', such as items seized during a search);
• details of any prior criminal history of alleged offenders; and
• any other documents which may need to be disclosed under the pre-hearing disclosure provisions of the Criminal Procedure Act 2009 (for example, the investigator's notes, relevant documents that will not be relied on in evidence). 

A covering memorandum from the investigator to the prosecutor, explaining the substance of the allegations and any other relevant matters, is always helpful.

Original evidentiary documents and 'real evidence' should not be included with investigation briefs, but should be kept safely.  The investigator may need to demonstrate the 'chain of custody' of particular evidence, and include these details in his/her witness statement.  Agencies should ensure that there are procedures for handling and storing important evidence, particularly seized documents or items.

Agencies should have a standard format for investigation briefs.  Investigators should work with prosecutors to create a useful format, and discuss proposed prosecution briefs at an early stage.

Make good decisions about when to prosecute offences

Having clear guidelines for making decisions about whether or not to prosecute offences is especially important.  It is not in the public interest to prosecute all offences. 

Good guidance as to the range of considerations in making such decisions can be found in the DPP's policy on prosecutorial discretion).

Agencies have a range of regulatory compliance and enforcement tools available, of which criminal prosecutions are only one option.  Most agencies that conduct compliance activities will have an established, risk-based framework for determining the appropriate enforcement action.

Some good resources for establishing a risk-based compliance framework include:

• the Department of Treasury and Finance's 2011 Victorian Guide to Regulation;
• the Department of Premier and Cabinet's 2010 Improving Governance of Regulators: Principles and Guidelines; and
• the Chartered Secretaries of Australia’s 2009 Good Governance Guide: Compliance in the Public Sector.

If you are in the Victorian government and would like advice or assistance with any aspect of your agency’s regulatory compliance and enforcement activities, please contact:

Greg Elms
Managing Principal Solicitor
t 9247 6790
greg.elms@vgso.vic.gov.au

Matt Carrazzo
Senior Solicitor
t 8684 0497
matthew.carrazzo@vgso.vic.gov.au

How to be a five-star witness

Government solicitors are often asked to prepare departmental or other witnesses to give evidence in court or VCAT.  You may not coach witnesses, that is, suggest answers to questions.  But here are some tips that you can provide to them to make their (and your) life easier before what can be a nerve-wracking experience.

The days before

• Do not discuss your evidence with other witnesses.
• Review any notes or statements you have made.
• Find out where the court is and how long it will take you to get there.
• Find out how long you will be needed for.  Courts normally sit from 10 until 4, with a one-hour break at 1pm.  VCAT listings vary.  Every effort will be made to minimise the time you spend at court, but be prepared to wait.

On the day

• Bring any statements or notes you have made about the case with you to court. Tell the solicitor which documents you have brought.
• Choose clothes that show respect for the judge and the court proceedings.  Look professional, dressing appropriately for your position.
• Make sure there are no sharp or glass objects in your bag (e.g. knitting needles, tweezers, umbrellas).
• Get to court in good time.  There may be a queue to pass through security.
• Turn your phone off before you enter the courtroom.

In the minutes before

• Sit outside the courtroom until it is time for you to give evidence.  Someone will come and get you when it is your turn.
• Before giving evidence, you will be asked if you wish to take an oath or make an affirmation that your evidence is true.   

Giving evidence

• The claimant in a civil action or the prosecution in a criminal trial will put their case first. Their witnesses will give evidence and be cross-examined (by asking additional questions).  The witness may then be ‘re-examined’. Once this process has happened, the defence will do the same with its witnesses.
• The Judge, Magistrate or Member may also ask you questions about your evidence.  You should address the Judge or Magistrate as ‘Your Honour’.  In VCAT, it depends on the seniority of the Member hearing your case:
• The VCAT President is addressed as ‘Your Honour’
• Vice Presidents are addressed as ‘Judge’.
• Members are addresses as ‘Sir’ or ‘Madam’ or as ‘Ms’ or ‘Mr’ and the Member’s surname. 
• Giving evidence is not a memory test.  You don’t get points for answering every question.  Do not guess or speculate. If you are not sure about an answer, just say so, else you may do more harm than good.  You can’t say, for example, ‘I would have done X’ or speculate about why a person acted in a particular way.
• Listen to and think about each question before you answer. 
• Give evidence in your own words.
• Make your answers as specific as you can.  Do not generalise.
• If you do not understand a question, you should say so.
• Do not say what someone else has told you unless you are asked.
• Explain any technical terms you have to use.
• Speak clearly so that your evidence can be understood. The microphone in front of you only records your voice. It does not make it louder.  You are giving evidence to the judge, so face them when answering a question
• You should not look at your notes without permission from the Judge.  If you are having trouble remembering details or accurately answering the questions, ask the Judge for permission before looking at any notes that you made at the time when the events were fresh in your memory.
• Cross-examination normally takes the form of a series of propositions put to you by the other side’s barrister. If you do not agree with all parts of the proposition, say so.  If you do not know whether a proposition is right, say so.  Don’t just agree with the barrister because you don’t want to seem obstinate.
• Don’t lose your patience with the other side’s barrister when being cross-examined.  The best witnesses remain neutral and focused. 
• If a witness has never been cross-examined before, one way a solicitor can help a witness understand how it feels is to engage in a mock cross-examination beforehand, using the type of questioning styles that a barrister would use in court.  This mock cross-examination should not be based on facts similar to the actual hearing.
• If you qualify as an expert witness (and meet all the requirements for this status), you may give opinions within your expertise.  Otherwise you can only give evidence of facts.

After

• After you have given your evidence and are excused by the court, you are free to leave. You may stay in the courtroom if you wish, unless you are expected to give evidence again later in the case.

VGSO has a network of experienced advocates who can represent Victorian government clients in all courts and tribunals.  Briefing our in-house advocates, rather than a barrister, can be more cost effective and ensures access to our expertise in specialist areas of Victorian government law.  Having regard to the demands of a particular matter, we can provide advocates ranging from our Special Counsel to solicitors of various seniority.  For more information about VGSO advocates, please contact

Hayley Petrony
Assistant Victorian Government Solicitor
t 9947 3011
hayley.petrony@vgso.vic.gov.au