CASE SUMMARIES 2007
1 / Drink/driving1.DPP v O'Rourke MC01/07 is an important case dealing with the definition of "prescribed concentration of alcohol" in s49(1)(b) of the Road Safety Act 1986. The Court of Appeal stated that the maximum of 0.05BAC applies to all drivers. However, if a driver is subject to zero blood alcohol then that is an aggravating factor which may affect penalty. Accordingly, if the prosecution failed to prove that a driver was subject to the zero blood alcohol limit then the driver was subject to the ordinary penalty.
2. In R v Ciantar MC08/07 the Full Bench of the Court of Appeal (The Chief Justice and four Justices) held that evidence given by suitably-qualified experts in relation to the PBT device is admissible in evidence.
2 / Costs on dismissal of charge
1. Since Latoudis v Casey (1990) 170 CLR 534 it is well-known that ordinarily, when a summary prosecution is dismissed, the informant should be required to pay the defendant's costs. However, there may be circumstances which may take a case outside the ordinary and which might justify a refusal or reduction of costs. In Kymar Nominees Pty Ltd v Sinclair MC02/07, a magistrate found that the case fell within the exception to the general principle and was upheld on appeal.
2.Latoudis v Casey (1991) 170 CLR 534 does not establish that a successful defendant should be fully indemnified by the prosecution. The purpose of an order for costs is to compensate (or indemnify) the party in whose favour the order runs, rather than to punish the party against whom the order is made. Any costs order is an indemnity but that does not mean that the indemnity is 100%. In awarding a full indemnity of counsel's fees and suggesting that a defendant should not ordinarily be out of pocket, the magistrate acted on a misunderstanding of the concept of "indemnity" in relation to costs and accordingly, was in error. See Nguyen v Oberoi Hotels (Australia) Pty Ltd, MC31/07
2 / Emailing reasons for decision
At the end of Magistrates Cases 2007 Part 1 under the heading Obiter, the question is posed: Should a Magistrate’s judgment be emailed to the parties? The answer was ‘No’ in reliance on the judgment in Esso Australia Pty Ltd v Robertson [2005] VSCA at 9 (Warren CJ, Batt and Chernov JJ A.)
In the case of Kymar Nominees Pty Ltd v Sinclair MC02/07, the presiding magistrate has informed us that the reasons in that case were not emailed to the parties either in ignorance or cavalier disregard of the words of the Court of Appeal in Esso. The learned magistrate said that the observations of the Court in Esso were considered before the reasons for decision were emailed in Kymar’s case. Although the Court of Appeal said that ‘the practice should be entirely discountenanced for a court’, the matter of concern in that passage was the issue of the right of the public to be present in court to hear the judgment being given. That concern was addressed by the magistrate in Kymar and in a number of cases since Esso, by publishing the reasons in open court and placing them on the court file on a date notified in advance to the parties. That is done after the reasons are emailed and the parties have had an opportunity to consider them. It is never done without the prior consent of the parties. The magistrate states that the purpose is to save costs and inconvenience both for the parties and the court. It is almost invariably accepted gratefully by the parties, who often do not appear when the reasons are published. If they do appear they have usually prepared submissions on the basis of the reasons. They are not ambushed by reasons presented to them for the first time and do not have to seek an adjournment to prepare arguments. The question of emailing reasons was raised with Neave JA after Esso when Her Honour was still Law Reform Commissioner, as an access to justice issue. It is interesting to note that in the recent case of Shaw v Yarranova Pty Ltd and Anor [2007] VSCA 48 the Court of Appeal (Warren CJ, Eames and Neave JJ A) published their judgment in open court and then emailed it to the parties to a costs dispute where the parties had not been notified of the date for delivery of judgment (apart from the Press) and failed to attend on the day. The magistrate in Kymar submits that the question posed at the outset might be answered ‘Yes’ where the reasons are published in open court.
3 / Bail - "exceptional circumstances"
In Mustica v DPP MC03/07 M. was charged with serious drug offences which meant that he had to show "exceptional circumstances" which justified the grant of bail. Among other things, Hollingworth J considered "delay" as a factor and Her Honour's judgment in granting bail is detailed and helpful in this vexed area of the law.
4 / Crimes Act 1958 s464H
The principles relating to the admissibility of statements which have not been tape-recorded are fairly well-known. The decision of Hollingworth J in DPP v Donnelly & Reed MC04/07 is a useful case dealing with fact-situations where the provisions of the Act were not followed. Her Honour said that given the desire to protect the integrity of the questioning process, "courts should avoid any technical interpretation which would unduly confine the area of operation of s464H."
See also R v Drasko MC09/07.
5 / Costs – Offer of Compromise
In Stipanov v Mier (No 2)NC05/07, Hollingworth J dealt with the question of costs in civil proceedings generally and in relation to cases where an offer of compromise has been made. Her Honour held:
1.Whilst a court has power to order that costs be taxed on a party and party basis, a solicitor and client basis, an indemnity basis or such other basis as the court may direct, the general rule is that the court will order costs to be taxed on a party and party basis.
2. The Rules do not provide for the situation where the plaintiff fails altogether and judgment is given for the defendant. However, it is well-established in such an event the court may, in the exercise of its general discretion, award costs to the defendant on a more generous basis than party and party from the time the offer was served.
3.The principle in Calderbank v Calderbank [1976] Fam 93; [1975] 3 All ER 333 exposes a litigant to the risk of a costs order if, taking into account all relevant considerations including the facts known to the offeree at the time of the offer, the offeree unreasonably ignores a reasonable offer of settlement, whether made by letter or formal offer of compromise.
4.The reasonableness of the offer of compromise has to be ascertained on the facts known at the time of the making of the offer. At the time of the offer, it would have been reasonable for those advising S. to have concluded that she had strong prospects of establishing negligence and that damages in excess of $35,000 might be recovered. There is a particular danger in considering issues of witness credibility through the prism of hindsight.
Richfield Investments v OCBC Ltd [2004] VSC 351; and
Grynberg v Muller [2002] NSWSC 350, applied.
5. In the circumstances, S. did not act unreasonably in rejecting the first offer of compromise. Accordingly, S. should pay M.s costs on a party/party basis.
6 / Occupational Health & Safety
In Schierholter v County Court of Victoria & Anor MC06/07, the Court of Appeal had no difficulty in rejecting a submission that the Authority to prosecute was deficient. This argument has cropped up in other cases and seems like a technical argument that has surely run its course.
7 / Re-examination of Witness
The rule laid down by Harris J in Hatziparadissis v GFC (Manufacturing) Pty Ltd [1978] VR 181 that in order to compel tender of a document it must be done whilst the witness is still under cross-examination has been overruled. This decision had been doubted and not followed in other Australian courts. Now the Court of Appeal in R v Vella MC07/07 has said that the court controls the reception of evidence and there is no time limit on the tender of a document provided the cross-examiner has made it admissible and it is receivable under the ordinary rules.
8 / Evidence – PBT and Breath Analysing Instruments
The Court of Appeal in R v Ciantar MC08/07 considered the admissibility of evidence given in relation to PBT and breath analyzing instruments and whether the readings obtained from a PBT device is admissible as evidence of blood/alcohol concentration. The Court held:
1.The provisions of S58 of the Road Safety Act 1986 are facultative. They do not purport to exclude nor do they have the effect of rendering inadmissible proof aliunde of blood alcohol concentration. Like any other bodily condition, blood alcohol concentration may be proved by any recognised and reliable scientific technique. A court may admit results of a test conducted with a scientific instrument on the basis of evidence from a witness expert in its use. It is sufficient if it is established that it is a scientifically accepted instrument for its avowed purpose and that the particular instrument was handled properly and read accurately.
Mehesz v Redman (No 2) (1980) 26 SASR 244, followed.
Porter v Kolodzeij (1962) VR 75, doubted.
2.Where evidence was given by expert witnesses that the PBT is within a class of instrument generally accepted by experts as accurate for its particular purpose and that if handled properly produces accurate results and there was evidence to show that the PBT was handled properly and read accurately by the operator on the relevant occasion, a court was not in error in admitting evidence of the PBT result.
9 / Tape-recorded interviews
In R v Drasko MC09/07, the Court of Appeal considered the question of the admissibility of a tape-recorded interview. In dismissing the appeal against conviction and sentence, the Court held:
1.The statements were made in furtherance of D.s desire to secure benefits under a civil contract of insurance pursuant to arrangements into which she had voluntarily entered. The duty of disclosure under a civil contract of insurance in no way restricts the capacity of an individual to speak or remain silent under the criminal law or interfere with the manner in which the choice may be exercised. D. can be taken to have been well aware that the insurance company was entitled to ascertain whether or not she was entitled to benefits before any payment was made and her conduct on this occasion constituted, on the prosecution case, an integral part of her alleged criminal enterprise. No question of the making of a statement against penal interest in respect of an earlier committed crime arose. The evidence was not probative as an admission against interest and admissible on this basis as an exception to the hearsay rule, but because it was directly relevant to the central question in the trial, namely, whether D. had attempted to defraud the company. In any event, there was nothing whatever to suggest that D.s will may have been overborne or her capacity to exercise a free choice compromised in any way. In so far as there was an inducement for the making of the statements, it arose from the applicant’s earlier and continuing desire to secure benefits under her contract of insurance. Finally, there was no indication that either D. or the private inquiry agent ever perceived him as "a person in authority", save perhaps to the limited extent that he could have reported adversely in relation to a civil claim.
2.D. was on any view of the evidence, not "a person in custody". The police officer did nothing more than secure a voluntarily made statement from D. withdrawing her complaint and setting out her stated reason for doing so. The police officer engaged in no abuse of power, trickery or subterfuge.
3.Having regard to the fact that the reported 'burglary' did not take place and that none of the chattels the subject of D.s claim belonged to her or were at the premises when the 'burglary' allegedly occurred, there was ample evidence before the jury to support the conviction of D.
4.In relation to sentence, whilst D. had no prior convictions, was suffering symptoms of significant depressive illness and the adverse consequences suffered including loss of her job, it was open to the judge to state that "insurance contracts are contracts of ultimate good faith and require the scrupulous honesty of people who deal with insurance companies. Attempted frauds of this nature must be the subject matter of curial disapproval, and the message must be clear to all people who are minded to commit offences of this nature that they will not be tolerated." There was no error in the sentence imposed.
10 / Crown Proceedings Act proceedings – relief against a forfeiture order
In Renate Mokbel v DPP MC10/07, Gillard J dealt with an application by a surety for relief against a forfeiture of bail order. In dismissing the application, Gillard J held:
1.It is clear from the wording of s6(4) of the Crown Proceedings Act 1958 ('Act') that M. carried the burden of persuading the Court on the balance of probabilities that it "would be unjust to require her to pay the amount undertaken to be paid having regard to all the circumstances of the case". The Court’s jurisdiction extends to varying or rescinding the order if the circumstances justify it. The question is, would it be unjust to require the applicant to pay the amount undertaken to be paid, taking into account all the circumstances of the case?
2.First, to be a surety is a serious matter, and suretyship is not to be entered into lightly. Secondly, the accused person on release is entrusted by the Court to the surety, who has an obligation to ensure that he/she attends the trial. This requires the surety to take positive steps. It is no answer for the surety to stand by and do nothing and then state that he or she believed that the accused would attend his/her trial. By signing an undertaking, the surety guarantees to the Court and the community that he or she will take steps to ensure the presence of the accused at trial. In one sense, it is a guarantee, but the legal principles relating to guarantees in commercial law do not apply to the surety’s obligation.
3.The first question on an application under s6(4) of the Act is to determine whether or not a surety has fully and properly performed the duties imposed upon him or her by the suretyship. The test is whether or not the surety has taken all reasonable steps to secure the attendance of the principal party to the undertaking. The surety must take some positive step. To do nothing would not satisfy the test.
4.Absent any changed circumstances relating to the financial affairs of the surety after the undertaking has been executed, the impact upon the surety’s financial position of enforcing the undertaking is not a matter that should be taken into account. The fact is that on occasions, accused persons fail to surrender themselves for trial. The possibility of this occurring is not remote. There is a risk. If the risk materialises, then the undertaking requires the surety to pay the full amount. That is what the surety agrees to do. It would undermine the system if, having given thought to entering into the undertaking and swearing an affidavit as to the assets which he or she has to meet the undertaking, the surety could be relieved from the full obligation and ordered to pay a lesser amount because of the financial impact.
5.Having regard to the fact that M. did not take all reasonable steps to ensure attendance of the accused at trial, that there were no new circumstances which should be taken into account in considering the financial impact, that M. was not a genuine surety and that M. did not disclose her true financial position, M. failed to persuade the Court that it would be unjust to require her to pay the amount undertaken to be paid.
6.Factors relevant to the Application. See paras 64-67 of His Honour’s judgment.
11 / Charter of Human Rights
In R v Williams, MC11/07, King J dealt with aspects of the new Charter of Human Rights and Responsibilities Act 2006 which fully comes into operation on 1 January 2008. This Act applies to Magistrates' Courts and Her Honour's comments are essential reading for all Magistrates. The intention of Parliament is for the Courts to become actively involved in the interpretation of the Charter and Human Rights after 1 January 1908. The rights as declared, at the least in s25 would be rights that the Court would be bound to take into account in ensuring that a fair trial was conducted pursuant to s24. Magistrates will be well-advised to familiarise themselves with the relevant provisions of this Act
12 / Whether sentence for an offence under the Road Safety Act 1986 makes a person a prohibited person for the purposes of s3 of the Firearms Act 1996.
In R v Coner MC12/07 the Court of Appeal held:
A conviction and sentence of imprisonment for an offence under the Road Safety Act 1986 does not make one a prohibited person for the purposes of the Firearms Act 1996 ('Act'). Accordingly, a court was in error in finding that C. was a prohibited person within the meaning of s3 of the Act and finding the charge proved.
13 / Duty of Magistrates to give reasons
It has been said time and again that Magistrates have a duty to give reasons for judgment. This is so that the appeal court can identify the reasoning and the basis upon which the decision was made. In Insurance Manufacturers of Australia Pty Ltd v Vandermeer MC13/07, after a two-day hearing a Magistrate gave brief reasons which failed adequately to disclose how he came to his ultimate conclusion. This meant that the matter had to be sent back for retrial before another Magistrate which involved a waste of time and costs for all concerned.