Criminal Bar Association of Victoria

Members are reminded of the 2008 National Indigenous Legal Conference, which will focus on topical issues such as Native Title, the Stolen Generations, Indigenous issues at the United Nations, and the Northern Territory Intervention.

Dates: 12 & 13 September 2008
Venue: Level 17, RACV Club, 501 Bourke Street, Melbourne

The Victorian Bar Indigenous Lawyers Association also invites Bar members to join their table at the Brian Willis National Indigenous Legal Ball, which promises to be a great event, on 13 September 2008 at the Melbourne Town Hall. Single and group registration forms are attached. If you are interested in attending, once registered, please email Aislinn Martin and inform her that you would like to be seated at the Bar’s Indigenous Lawyers table.

The Annual General Meeting of the Criminal Bar Association of Victoria Inc. will be held at 5.15pm on Tuesday 16 September 2008 at the Neil Forsyth room, Level 1, Owen Dixon Chambers East.

The Annual General Meeting will consider business arising out of the following Agenda items:

Positions to be determined by election at the Annual General Meeting are: Chairman; Vice Chairman; Treasurer, Secretary and four (4) ordinary Committee members.

Nominations must be in writing and signed by two nominating members and accompanied by the written consent of the candidate and must be delivered to the Secretary not later than 5.00pm on 9 September 2008. [NOMINATION FORM]

Please deliver nominations to: Megan Tittensor, Secretary, Criminal Bar Association Inc., C/- Holmes List, 555 Lonsdale Melbourne, Vic 3000.

Only financial members may nominate or stand for positions or vote at the Annual General Meeting.

Obtaining Information from Telstra by Subpoena:
The attached information has been provided by the General Counsel for Telstra, Sue Laver, to assist members and solicitors when seeking information from Telstra: members will note that it includes the categories of information commonly sought, service of subpoenas, the scope of subpoenas, conduct money and compliance costs.

Recent Cases- Court of Appeal:
R v Poduska 2008 VSCA 147 [18/8/2008]-
The allegation made was that of culpable driving by driving negligently or while under the influence. The Trial judge failed to identify the conduct relied upon by the Crown. By a majority the Court of Appeal entered a verdict of acquittal, as the verdict could not be supported by the evidence.

Sentencing Act 1991: Section 6AAA- Operation & Effect:
Specified guilty plea discounts.

Members should be aware that Section 6AAA has been introduced into the Sentencing Act by the Criminal Procedure Legislation Amendment Act 2008. It became operative on 1 July 2008. It requires that sentencing judge state the effective discount on sentence for a guilty plea. The section is as follows:-

(2) If an offender is sentenced for more than one offence in the same proceeding and subsection (1)(a) and (b) apply, the court must state, in respect of any total effective period of imprisonment—

that it would have imposed but for the plea of guilty and need not state those matters in respect of each offence.

(3) In the case of a sentence other than a sentence referred to in subsection (1)(b), the court may state the sentence that it would have imposed but for the plea of guilty.

(4) If the court makes a statement under this section, it must cause to be noted in the records of the court, in respect of each offence and the total effective period of imprisonment, if any, the sentence and the non-parole period, if any, that it would have imposed but for the plea of guilty.

The first ruling on the effect of this section was given by Kaye J in R v Flaherty (No 2) [2008] VSC 270 (22 July 2008). His Honour examined the background to the introduction of the provision, namely the Sentencing Advisory Council report entitled "Sentence Indication and Specified Sentence Discounts" (September 2007). His Honour states that the "...underlying object of s 6AAA seems to be to advance the public interest in guilty persons pleading guilty, and to provide for a conspicuous reward to those who do so." [8].

In His Honour's opinion there are difficulties in giving effect to the legislative intent - the guilty plea does not operate in isolation as a mitigating factor, but interacts with other factors like rehabilitation and remorse, and the artificiality of ignoring the guilty plea to determine what sentence would have been imposed if a person had not pleaded guilty: [9] - [10]

His Honour concluded that the section required him to postulate a situation in which the prisoner did not plead guilty, but in which all the other mitigating circumstances he found (including cooperation and remorse) were present: [11] In determining the amount of the reduction of sentence on account of the guilty plea His Honour had regard to the utilitarian effects, the fact that is was made out of an ongoing concern to cooperate with authorities and that it was accompanied by remorse: [14].

Flaherty pleaded guilty to murder and was sentenced to 21 years imprisonment with a minimum term of 16 Years. In complying with section 6AAA, Kaye J stated that if the offender had not pleaded guilty, he would have imposed a sentence of 23 years imprisonment with a non-parole period of 18 years.

Important amendments have been made by the Criminal Procedure Legislation Amendment Act 2008 (No.8 of 2008), much of which came into force on 1 July 2008. Amongst other things, the court must (in most situations) indicate the discount for guilty pleas, all courts can now give sentencing indications, and there has been a formalising of contest mentions.

CPD
The Vic Bar Continuing Professional Development (formerly CLE’S) program and past papers can be accessed by pressing the “CPD” button to your left (under the heading Useful Links).

CBA Dinner: 20/8/2008
Members are advised that the next CBA dinner is to be held on Wednesday 20 August 2008 at Matteo's Restaurant. Guest of Honour is John Coldrey QC, together with a sparkling invited guest list of Judges, Magistrates, and former members. Not to be missed.

Congratulations
The CBA congratulates Martin Grinberg on his appointment to the Magistrates’ Court.

Office of Corrections Forum:
The CBA has been invited to the next Office of Corrections Stakeholders Forum to be held on 10 July 2008. The forum is an opportunity for the CBA and its members to raise any issues relevant to members or on behalf of clients. Anyone who wants an issue raised, please contact either Benjamin Lindner or Tom Danos.

County Court Website:
The Department of Justice eGov unit is in the process of updating the County Court website and has invited any ideas or contributions from the CBA members. These will be put to a focus group. Any members with an interest please contact John Champion.

Supreme Court:
S55 (1) Road Safety Act 1986- refusal to accompany a police officer for the purposes of a breath test. DPP v Mastwyk [2008] VSC 192. This case looks at the issue of whether the transport of a person in the back of a police divisional van amounts to imprisonment and the concept of whether the requirement to accompany must be reasonable.

Court of Appeal:
Taylor [2008] VSCA 57- Commencement of proceedings- When is a proceeding commenced? In this case the Court of Appeal held that a proceeding commences when a presentment is filed. Members ought to be aware that there is an argument based on later legislation which may affect this issue.
The Justice Legislation Amendment (Sex Offences Procedure) Bill 2008, which, by cl 3, will insert s. 359(2AA) into the Crimes Act 1958. It will provide –

The legislature draws a clear distinction between the commencement of proceedings (reference specifically being made to s 26 of the Magistrates’ Court Act), the commencement of a trial and the filing of a presentment.

High Court:
HML v R [2008] HCA 16- Propensity evidence, whether uncharged acts need to be proved beyond reasonable doubt.

Congratulations
The CBA congratulates members Paul Lacava SC, and Frank Gucciardo on their appointment to the County Court.

The legal profession will extend a welcome to his Honour Judge Lacava on Thursday 5 June 2008 at 9.15am in Court 3-3, County Court of Victoria, 250 William Street Melbourne 3000.

The legal profession will extend a welcome to his Honour Judge Gucciardo on Friday 6 June 2008 at 9.15am in Court 3-3, County Court of Victoria, 250 William Street Melbourne 3000.
All members are encouraged to attend.

Victorian Criminal Charge Book:
The Judicial College of Victoria has updated the Victorian Criminal Charge Book as follows:

Seminar on Sentencing Principles applicable in cases involving Sexual offences:
For those members who did not attend the seminar given by Ian Freckleton SC, the paper presented and PowerPoint presentation are now available. Download paper (MS-Word format); download PowerPoint presentation.

Child Witness Service Committee
The Committee is interested in feedback from Counsel who has had experience in using the Child Witness Service. Could any comments be addressed to Michelle Hodgson, who is the Bar’s representative on the Committee at michelleth@ozemail.com.au. Please note that the Service is available for use by child witnesses called for the defence (no takers so far though!)

Annual Conference of International Association of Prosecutors:
Members should take note that the Annual Conference of the above Association is being held in Singapore from 27-31 August 2008. The program includes workshops on;

It is anticipated that attendees will include a wide range of prosecutors from all over the world. For more information go to www.iap08.com

The Ethiopian State Minister for Justice, Dr Hashim Tewfik, will be visiting the Melbourne Law School and presenting a seminar on his work as a chief prosecutor. The seminar will be chaired by His Honour Justice Weinberg and convened by Dr Jennifer Beard, Co-Director of the IILAH Law and Development Program. The Seminar will be held on Thursday, 1 May 2008 in Room 920, Level 9, Melbourne Law School , 185 Pelham Street, Carlton at 5:30pm. A flyer advertising the seminar is attached. Please note the seminar attracts CLE points. Download seminar flyer (pdf)

Judicial College of Victoria: Updating of Criminal Charge Book.
The College has advised that the following is new material is now available on its website:
4.9.1- Consent & awareness of non-consent,
7.3.1- Rape’
7.3.2- Indecent Assault
7.3.3- Incest
7.3.4.1- Sexual penetration of a child under 16,
7.3.4.2- Indecent Act with a child under 16,
7.3.4.4- Sexual penetration of a 16/17 year old,
7.3.4.5- Indecent Act with 16 years old,
7.3.4.6- Indecent act with a 16/17/year old,

New Topics: 2.3.1- Alternative arrangements,
2.3.2- protected witnesses,
2.3.3- Pre-recorded evidence.

The CBA also congratulates member Jane Patrick on her appointment to the County Court.

A welcome to Her Honour will be held on Thursday 1 May 2008 at 9.15am in Court 3-3, County Court of Victoria, 250 William Street Melbourne 3000. All counsel who are able to attend are requested to do so, robed.

Recent Decisions: Court of Appeal
R v Benbrika & Ors (Ruling no 20) [2008] VSC 80. Bongiorno J ordered a conditional stay of the trial on the basis of the conditions of incarceration and transportation of the accused and the effect on their psychological and physical health. His Honour set out the minimum alterations to the accused conditions of incarceration and travel that would be necessary to remove the unfairness. The matter was adjourned to 31 March 2008 when it is proposed that evidence be taken from a representative of the Department of Justice about such conditions. His Honour ruled that unless the conditions improve to the necessary degree the trial will be stayed and bail applications will be listed.

Membership
As advised previously we are trying to streamline membership payments so that we can bulk bill clerks rather than members individually. If you have not yet provided an authority and wish to do so, please fill out the following form and return it to Megan Tittensor: http://www.crimbarvic.org.au/docs/Membership_form.doc.

Farewell to the Honourable Justice John Coldrey
A long and valued member of the CBA, a farewell sitting to mark the retirement of the Honourable Justice John Coldrey as a judge of the Supreme Court of Victoria will be held on Thursday 3 April 2008 at 4.30pm in the Banco Court of the Supreme Court of Victoria.

Appointment – His Honour Judge Strong as Office of Police Integrity Director
The Criminal Bar Association also applauds the appointment of member, Judge Michael Strong, on his appointment as Director of the Office of Police Integrity.

Obituary – His Honour Judge Michael Higgins
The CBA mourns the death on Saturday 1 March 2008 of His Honour Judge Michael Higgins. Although not a member of the CBA, having been appointed from his position as senior partner at Slater and Gordon, Judge Higgins had a close association with many of our members. Judge Higgins made a huge contribution to the criminal law in Victoria and will be a great loss to the profession.

Corrections Victoria- Stakeholder Forum
CBA recently attended a Forum held by Corrections Victoria to bring up to date information about a number of aspects of their current, on-going activities.

Corrections reported that so far as “prisoners” held in police custody their optimum figure was 100 at any one time. It was indicated that generally the figure was in the vicinity of 60 which was regarded as a “bad” day and that the figure was often much less than that. According to their data no one was being held in police prisons for longer than 10 days. Accepting that at face value, it would be a marked improvement on what had been occurring not so long ago.

It was further reported that “Home detention” was now a permanent sentencing option, the pilot scheme having been regarded as a success. The numbers at the moment are limited to 80 and operate for both the Parole Board and sentencing Courts.

Corrections also reported that according to their figures “recidivism” continues to come down, their latest claim asserting that there was a 6% reduction.

Another area where considerable work was being undertaken was what was described as “Transitional services”. This relates to people moving from the prison system back into the community. In October 2006 a specific program was commenced for women moving back into the community, as recently as December a similar program was started for men, and it was intended that it would be extended to Kooris in the near future.

Whilst it was too early to report on the male program, the female one was adjudged as successful.

The CBA raised the issues relating to prisoner transport and movements, a continuing issue, especially for those running lengthy trials when the accused are in custody.

Tom Danos

Forthcoming Seminar: Sexual Offences-
On 23 May 2008, the CBA will host a morning seminar on Sexual Offences. It is anticipated that the speakers will include a leading Silk, a Judge and a Forensic Physician. The Seminar will commence at 9.00am and proceed to 1.00am and coincides with a Magistrates’ Court Conference day.

Magistrates’ Court User’s Group:
The CBA is looking for a junior member of the CBA to volunteer to join Brendan Murphy QC and Warwick Walsh-Buckley to represent the CBA on the above group. The group has met intermittently in the past but it is hoped that this will change. Anyone who is interested, please contact Megan Tittensor [Phone: Extension 7557].

Appointment – Gavin Silbert S.C. as Chief Crown Prosecutor
The Criminal Bar Association extends its warmest congratulations to one of our members, Gavin Silbert S.C., on his appointment to the role of Chief Crown Prosecutor.

Recent Decisions: Court of Appeal
R v Ienco [2008] VSC 17. The Court of Appeal restates the law as to what is meant by exceptional circumstances in the context of family hardship sufficient to justify a non- custodial sentencing alternative. Additionally it looks at the words used by Nettle J, in the context of s31(5A) Sentencing Act 1991[breach of suspended sentence] in R v Steggall [2005] VSCA 278 “ beyond reasonable expectation or contemplation” and concludes that Steggall is not authority for the proposition that circumstances can only be exceptional if they are beyond reasonable expectation or contemplation.

Last week the Victorian Director of Public Prosecutions, Jeremy Rapke QC, released public comments criticising members of the Victorian judiciary for passing sentences that were too light. Further, he announced that a series of “test cases” would be launched to appellate courts in an effort to address perceived inadequate sentencing practices of the Victorian judiciary. In one instance a specific case was mentioned in support of this move.

The right of the Director of Public Prosecutions to appeal against the passing of inadequate sentences is well established in Victoria . Such appeals are frequently undertaken, and either succeed, or not, as the case may be. At plea hearings Crown Prosecutors have the right, indeed the duty on behalf of the community, to address remarks about appropriate penalties to the particular sentencing court. Sentencing submissions at plea hearings, and to appellate courts, can be strongly put. The Sentencing Council expresses opinions about sentencing trends and practices. Furthermore, the judiciary of this State are provided with educational tools, and statistics, to assist in formulating appropriate sentences. Sentencing judgements of the Court of Appeal provide guidance to lower courts exercising criminal jurisdiction.

There are clear and accepted opportunities for the Crown to put sentencing submissions and materials before sentencing courts, and to appeal against sentences that are regarded as inadequate. It is the view of this Association that the most recent announcement by Mr. Rapke, in combination with a previous announcement which criticised members of the judiciary over the making of insensitive remarks, together constitute an unwelcome trend to publicly attack Victorian judges in the media.

This Association believes that such comments, reported in selected print media, have the undesirable effect of compromising judicial independence by placing public pressure on judges to impose harsher penalties. This is an inappropriate means to an end. Further, these types of public comments made in the popular media by the senior prosecutor of this State, in our view carry an appreciable risk of eroding public confidence in the administration of justice. The appropriate place in which to bring perceived inadequate sentencing practices into question is within the court system, in an orderly and considered fashion.

We believe that it is not the role of a Director of Public Prosecutions to either announce or mount campaigns in the public media. Rather, it is the role of the Director to use the tools that already exist within the legal system to make his point about arguably inadequate sentencing practices.

Membership
The CBA is trying to streamline membership payments so that the majority of $25 pa renewals can be collected in one go from member’s clerks. Recently, those for whom we do not hold an authority received an email requesting that they provide us with one. For those that have still not provided an authority and wish to do so, please fill out the following form and return it to Megan Tittensor: http://www.crimbarvic.org.au/docs/Membership_form.doc.

If you did not receive such an email then our records indicate that you have in the past provided such an authority. If you believe that our records are incorrect in this regard, please contact Megan Tittensor.

Criminal Procedure Bill 2007
The Government has committed to overhaul and replace the Crimes Act 1958. This process involves three major Bills – Criminal Procedure Bill, Criminal Investigation Powers Bill and the Crimes Bill (Offences). The first of these Bills is out in confidential draft form. The CBA has been asked to contribute submissions on the Bill which contains a number of substantive policy changes. This will be a large undertaking and we expect to provide a joint submission along with the Bar Council. Would those interested in assisting with the submission, which is due by 28 March 2008, please contact Megan Tittensor.

Corrections Victoria:
Corrections Victoria is holding a “stakeholders” forum on 3 March 2008. These forums are an opportunity to raise issues with the Commissioner for Corrections, Kelvin Anderson, and Corrections staff. It is expected that the CBA will have a representative at the meeting. Anyone who has any issue that needs to be raised, please contact Benjamin Lindner.

VLA Fees:
The Bar has commissioned a report from Price, Waterhouse & Co concerning the inadequacy of VLA funding in criminal cases, particularly as the fee structures impact on members of the junior bar. The Bar is expecting the receipt of this report in the near future. It is hoped it will then be the basis for detailed submissions for additional Government funding.

Recent Decisions: Court of Appeal:
R v Rasool [2008] VSCA 13 (12/2/2008). In this decision the Court of Appeal looks at the elements of the offence of reckless conduct endangering life [s22 Crimes Act 1958]. It looks at whether the contemplated future acts of the Accused can be considered in determining the whether the offence was committed and concludes that they could not. The case contains a thorough review of the authorities and the nature of the offence. The Court reiterates that the evidence must establish that an appreciable risk of death occurred by reason of the offending conduct.

OPP Fees
Last week the OPP announced its new fee structure which is broadly in conformity with VLA rates. Also announced were a number of changes to briefing practices which include the timely payment of fees and the timely delivery of briefs. If anyone has any queries that they wish to address to the OPP, please contact John Champion SC.

Decisions of Interest
Victorian Supreme Court
Charter of Human Rights & Responsibilities Act 2006
In Gray v DPP [2008] VSC 4, Justice Bongiorno applied relevant sections of the Charter to the question of the granting of the Applicant’s bail. The application was considered in the light of those sections of the Charter which require persons accused of crime to be tried without reasonable delay and released if that does not occur. Specifically, His Honour applied the guarantee of trial without reasonable delay [s 25 (2) (c)], & the consequences of delay [s21] to the facts.

International Covenant of Civil & Political Rights
Ragg v Magistrates’ Court of Victoria & Corcoris [2008] VSC 1. In this decision Justice Bell draws upon Article 14 of the International Covenant of Civil & Political Rights, to which Australia is a party, and in particular the “equality of arms” principle. Pursuant to this principle, it is one of the features of the wider principle of a fair trial, for each party to be afforded a reasonable opportunity to present his case in conditions that do not place him at a disadvantage vis a vis his opponent.

These principles are then applied to the facts which involved a Defendant issuing a document subpoena and the production of documents being resisted.

His Honor also reviews recent authorities on the test to be used in demonstrating legitimate forensic purpose.

Sex Offence Trials
Application of Crimes Amendment (Rape) Act 2007 (No 57/2007)

Anyone representing an Accused on rape or allied charges in a County Court trial needs to aware of a looming controversy. In particular, where an Accused was arraigned before 1 January 2008 but is to be tried before a jury in 2008, the Defence must be alert to this controversy.

The controversy is whether the new Act applies to Accused who were arraigned before 1 January 2008. The Defence needs to be ready to argue that it does not apply.

The Crimes (Rape Act 2007 (No 57/2007) came into operation on 1 January 2008. It appears to represent a significant alteration in the criminal law, advancing the “communicative model of consent”. Sections 3 and 4 amend aspects of the Crimes Act 1958, inserting the requirement for certain precise jury directions. Sections 5, 6 and 7 amend the elements of certain Crimes Act offences, including rape and indecent assault.

Sections 5, 6 and 7 of the Act apply only to offences committed after the Act commences.

But Sections 3 and 4 (the jury direction sections) apply to “any trial that commences” after that section comes into effect.¹ A trial commences upon arraignment of the Accused.² At common law, the position seems to have been that arraignment, for these purposes, referred to the first joining of issue between the Crown and the Accused.

The Crown now takes the view that the term “arraignment” refers to the process of arraigning the Accused before a specific jury, not the first arraignment of an Accused. The effect is that, if an Accused is arraigned at all in 2008,the Crown says the new jury directions are required.

In a trial before Barnett J,³ the Crown sought a ruling that new provisions of the Crimes Act 1958 (ss37AAA and 37AA, as recently inserted by sections 3 and 4 of the Crimes (Rape) Act 2007) applied to an accused, arraigned in November 2007 before a jury subsequently discharged. The Defence contended that these provisions do not apply: the Accused had been arraigned already, he need not be re-arraigned and, even if he were re-arraigned, such re-arraignment does not commence a trial as contemplated by the Crimes (Rape) Act 2007. The defence pointed to the use in the new Act of common law terminology. This terminology reflects the existing common law terminology, and must be presumed to adopt it.⁴ “Arraignment” at common law referred to the initial arraignment, not to re-arraignments.⁵

Barnett J ruled against the Crown. The Crown are considering whether to review or appeal that decision.

However, the Crown will want the matter resolved in its favour, as the directions are distinctly favourable to conviction. There are many cases pending where the Accused was arraigned in 2007 or before, at special hearings, directions hearings or previous trials.

Single Criminal List
We have received the discussion paper from the Department of Justice in relation to the proposal for a Single Criminal List. Submissions are sought by 21 March. The CBA will be making submissions in relation to this matter. A copy of the paper is available on the DOJ website

Judicial College of Victoria
The Judicial College of Victoria has updated the Victorian Criminal Charge Book by publishing the following:

Appointment of her Honour Judge Bourke
The CBA welcomes the appointment of one of our members, Katherine Bourke, to the County Court of Victoria. Her Honour will be welcomed next Tuesday, 18 December at 9:15 in Court 3-3.

OPP Fees
Recently the Criminal Bar Association met with Angela Cannon, Solicitor for the Office of Public Prosecutions. The purpose of the meeting was to discuss fees and briefing arrangements for members of Counsel briefed from the private Bar by the OPP. Members should be aware that discussions on these issues between the CBA and the OPP have been ongoing for over 12 months. During that period the OPP has been conducting a wide-ranging review of these issues, as well as other matters relevant to the operations of that organization.

Ms. Cannon has indicated that new fee scales and briefing arrangements will be put in place as from early February 2008. In general terms, the anticipated arrangements will mean that fees payable to Counsel will become broadly commensurate with fees that are currently payable by Victoria Legal Aid for matters in which that organization briefs Counsel. The detail of the arrangements will become clear in due course but members of the Bar that prosecute will be pleased to know that attention will also be paid to the issues of fees for preparation, and fees payable for circuit matters.

The Flemington & Kensington Community Legal Centre is seeking the assistance of experienced barristers to run cases involving young refugees who have been charged with police assault/hinder police, resist arrest and offensive language charges. The Legal Centre has thus far run a number of successful cases with the expert and thorough assistance of Dyson Hore-Lacy SC, Jane Dixon SC, Mandy Fox and Jennifer Clark. In these cases charges such as hinder, resist and assault police have all been dismissed. The other feature of these cases is that sometimes the young people have lodged complaints with OPI months prior to the charges been laid against them.

None of our clients have the capacity to pay for their legal services. If anyone is interested in acting for our clients in these types of cases please contact Tamar_Hopkins@clc.net.au.

Senior Counsel -
The CBA heartily congratulates the following members who have been appointed as Senior Counsel: Nick Robinson, Gavin Silbert, Ian Freckelton and Kerri Judd.

Melbourne Magistrates’ - Court 2 - Contest Call Over -
Members need to be aware that the time Counsel are to be at Court 2 is 9.30am for Call over of the cases that are listed there for Contested hearing.

Office of Corrections -
On 22 November 2007, Benjamin Lindner attended the Corrections Stakeholders Forum which was held at the Langham Hotel. This forum is held regularly and is an opportunity for Kelvin Anderson, the Correctional Services Commissioner to be questioned. Prior to the next forum, members will be notified so that any matters that need to be raised can be.

Sentence Indication: County Court -
Judge Howard recently ruled it was appropriate to give a sentence indication, limited to the range of sentences open. His Ruling dated 1/8/2007 can be accessed here. The Criminal Procedure legislation Amendment Bill 2007 currently before Parliament contains proposed legislation on both Sentence Discounts and Sentence Indications.

The CBA heartily congratulates the following members who have been appointed as Senior Counsel: Nick Robinson, Gavin Silbert, Ian Freckelton and Kerri Judd.

Criminal Charge Book - The Judicial College of Victoria has updated the Victorian Criminal Charge Book by publishing some amendments to the following areas:

CLE's - 2008
The committee is currently considering what CLE seminar subjects would be useful to members in the coming year. If you have any ideas or thoughts as to what you would like to see as the subject of seminars next year please contact Michael O'Connell or John Champion.

New Magistrates’ Court -
In the past fortnight, the Moorabbin Justice Centre has opened. It is presided over by Her Honour, Jane Patrick. In addition to the Magistrates’ Court, the Children’s Court in its criminal jurisdiction also operates from the complex. The catchment area for the Court is persons from the municipalities of Bayside, Kingston and Glen Eira. Ultimately it will have 6 Court rooms in operation. It is located at 1140 Nepean Highway Moorabbin - telephone 90908000. The Registrar of the Court is John Bennett -Telephone 90908016.

Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 -
On 1 November 2007, Tony Parsons sponsored a round table conference concerning the use of the defence of impairment in the Magistrates‘ Court. Its purpose was for various stakeholders to raise difficulties with the running of the defence and any attendant procedural difficulties. Sharon Cure and Tony Trood attended on behalf of the CBA. Paul Willee QC, from the Ethics committee, also attended. As a result there will be a discussion paper put out suggesting changes to the existing legislation and/or practice. Any CBA member who has suggestions or anecdotal evidence, please contact Tony Trood.

Cocktail Party - Wednesday 21/11/2007, 5.15 pm -
All members are encouraged to attend as this will be the last CBA social function for the year. Whether you know Lex Lasry or not, come and join the celebration.

Terror and ASIO -
In the case of R v Ul -Haque [2007] NSWCC 1251, Justice Adams excluded 3 records of interview as a result of illegal detention of the Accused by ASIO officers. His Honour makes very adverse findings against the relevant ASIO officers who he found to have committed the offences of inter alia, false imprisonment and kidnapping [see paragraph 62].

Court of Appeal - Decisions of Interest:
Offences committed whilst on parole & relevance of a parole Board decision to cancel parole, totality -
R v Piacentino & R v Ahmad [2007] VSCA 49. The Court of Appeal looks at the s5(2AA) Sentencing Act 1991(Vic.) and concludes that it prevents a sentencing judge from taking into account the possibility that the Parole Board will cancel parole [Piacentino]. The situation was different in the case of Ahmad as he was on Commonwealth parole, which is automatically cancelled, and thus can be taken in to account by the sentencing judge.

The Criminal Law Lexicon [An Incomplete Guide]:
“E” – Extradition: Literally handing over. An unexpected spike in sales of “Aughterson on Extradition” has recently occurred in Athens.

“F” – Freddie: colloquial term for Police identification badge.

“G” – Galbally, Frank. A giant amongst advocates who practiced at the time the death penalty was on the books & whose influence and law practice has fostered many of the past and current leaders of the Criminal Bar, from both sides of the bar table, many of whom have also been appointed judicial office holders.
To be continued…

7 November 2007

Section 41G Evidence Act Special Hearings - Procedure:
Paper prepared by her Honour Judge Hannan detailing a summary of the procedure relating to Special Hearings.

7 November

Proposed Major Drugs Trial Committal List
The Magistrates' Court recently formed a committee to examine complex drug cases and ways in which those cases may be dealt with more efficiently, perhaps through the establishment of a complex drug committal list.

A meeting was held on 18 September 2007. Michelle Hodgson and Michael O'Connell attended on behalf of the CBA. Other organisations such as Vicpol, OPP, & VLA were represented. A further meeting is scheduled for 26 November.

As many members would be aware multiple co -defendants, large volumes of telephone intercept and listening device material, delays in analysis of drugs and complex between dates allegations make for unwieldy cases.

The issues canvassed included delays in the listing of contested committals, the decrease in resolution of matters at committal level, lack of court resources, the increase in complexity and sophistication of drug investigations, whether briefs might be provided electronically, the impact of Proceeds of Crime legislation, the lack of early identification of the Crown will put its case and the lack of incentive for early resolution of matters.

The committee would welcome any comments, ideas or thoughts from our membership as to any of these issues.

If you wish to contribute or have any queries, you can contact the secretary Megan Tittensor, Michelle Hodgson or Michael O'Connell before the next meeting on 26 November 2007.

Bail -
The Victorian Law Reform Commission has now prepared its Final Report into a review of the Bail Act 1977. Should anyone wish to read the Final report, contact
CBA member Daniel Gurvich who was the Bar’s representative on the Bail Advisory Committee, or Tony Trood.

(a)Civil Wrongs by Police -
The Victorian Bar has formulated its submission for legislative reform to the Police Regulation Act 1958 arguing that the State, inter alia, be vicariously liable for all legal wrongs of police officers in the execution or purported execution of their duties as police officers, including wrongs sounding in aggravated or exemplary damages. For a copy of the submission, see the Bar’s website or contact Tony Trood.

Abortion -
As a result of the Attorney -General asking the Victorian Law Reform Commission to consider options for the reform of abortion law, the CBA has been asked to contribute its views to any proposed reforms. If any member would like to contribute to this, please contact John Champion or Mark Taft. Submissions must be received by 9 November 2007.

Media -
Members will note that from time to time the media publish photos and footage of suspects at the very outset of investigations. Any members who believe a contempt of court has been committed in such a fashion can refer the matter to the CBA who will look at it, and if appropriate, refer it to the relevant Director of Public Prosecutions for investigation. The CBA has in recent times referred several such cases to the DPP.

Supreme Court – Decisions of Interest:
R v Matthey [2007] VSC 398 Coldrey J.
In this matter Mrs. Matthey was prosecuted for the murder of her 4 children. Ultimately the Acting DPP entered a nolle prosequi after consideration of the case in the light of evidentiary rulings by the trial judge, His Honour, Justice Coldrey. The case raised a number of important issues such as the admissibility of expert medical opinion where it was said to trespass on the ultimate question for a jury [see paragraph 147 and onwards].

Legislative Activity -
Negligently Cause Serious Injury [Section 24 Crimes Act 1958] -
The government has publicly indicated that it intends to increase the maximum penalty for the offence of negligently causing serious injury from 5 years to 10 years. This comes against the background of repeated calls by both our Court of Appeal and sentencing judges for the penalty to be increased. The Sentencing Advisory Council has advised the Government to double this penalty.

“Upskirting” -
As a result of a number of incidents where women were the unwitting targets of persons who took photographs of them by the use of cameras aimed up the dresses /skirts of the woman concerned, legislation is to be introduced specifically prohibiting this conduct. It is proposed that the offence will be summary, punishable by a maximum of 3 years imprisonment. For further information see the Summary Offences Amendment (Upskirting) Bill 2007.

Forthcoming Events: Appointment of Lex Lasry -
The CBA will host drinks to celebrate Lex Lasry’s appointment to the Supreme Court on Wednesday 21 November 2007 at 5.15 pm at the Essoign Club.

Trial Work - Western Australia -
As recently advertised in the Bar News [see Issue No. 358], opportunities exist to work in Western Australia representing Aboriginal Accused in forthcoming trials in January 2008. A large number of Accused face serious allegations of sexual abuse. Barristers interested in finding out more about this work can meet with the Director of the WA Aboriginal Legal Services, Peter Collins, on 14 November 2007 at 3.30pm. 1st Floor ODC.

Next Meeting of CBA Committee – Tuesday 13 November 200, 8.00am.

The Criminal Law Lexicon [An Incomplete Guide]:
‘A” – Alibi - Nothing sinks faster than a cast iron alibi.

“B” – Beak – colloquial term for a Magistrate.

“C” – Cross -examination – The weapon used by lawyers to unearth the truth. Easier said than done!

“D” – Defect Notice - colloquially known as a “canary”. Placed on vehicles by the Police and seen as a rite of passage by any self respecting petrol head.
To be continued

23 October

MEDIA RELEASE

APPOINTMENT OF LEX LASRY QC

With immense pride and heartiest congratulations the Criminal Bar Association of Victoria welcomes the appointment of Lex Lasry QC as a Justice of the Supreme Court of Victoria.

Mr. Lasry was admitted as Barrister and Solicitor of the Supreme Court of Victoria in 1973. He was appointed Queens Counsel in 1990. During his distinguished career as a member of the Victorian Bar he was a member of the Committee of the Criminal Bar Association for over 10 years, 5 years of which he served as Chairman. In 2007 he was awarded life membership of our Association as recognition of his service to it.

Over the years Mr. Lasry has unstintingly acted in the best traditions of the Bar in appearing in many hard fought, and in some instances, very unpopular causes. He has been a highly admired and respected member of the Victorian Bar. During his career has given considerable energy to encouraging the advancement of junior members of the Bar.

The appointment of Mr. Lasry brings exceptional qualities to the bench of the Supreme Court. We expect that he will serve the people of Victoria in exemplary fashion.

The Criminal Bar Association wishes Mr. Lasry a long and satisfying career as a judge.

JOHN R CHAMPION
Chairman
Criminal Bar Association
23rd October 2007

15 October 2007

Police Integrity Commission/ Independent Commission against corruption:
The CBA is currently formulating its policy on what is the appropriate body in Victoria to investigate Police and other corruption. Anyone who is interested in contributing please contact either John Champion, Mark Taft or Tony Trood.

Prosecutions for sexual offences involving children and/or cognitively impaired complainants:
As members are aware, the current legislation stipulates that complaints are to be cross -examined within 21 days of the Defendant being committed for trial. This very short period has caused difficulties for the Crown, the Defence and the County Court. Amendments are proposed to change this period to 3 months and to have the trial finalized within 3 months. Watch for the legislative amendments.

Fees:
The CBA through Mark Taft and others, continues to work towards increasing the fees paid by both the OPP and VLA.

Appeal Costs Fund:
As members are aware, the Government is looking at reducing the amounts that are to be paid to claimants under the Act. Both VLA and the CBA are extremely concerned about this proposal and are continuing to urge the Government to abandon this course. The fight is not over!

Media:
Members will note that from time to time the media publish photos and footage of suspects at the very outset of investigations. Any members who believe a contempt of court has been committed in such a fashion can refer the matter to the CBA who will look at it, and if appropriate, refer it to the relevant Director of Public Prosecutions for investigation. The CBA has in recent times referred several such cases to the DPP.

Attendances:
Over the past month members of the CBA have attended a number of organizations and groups the following to represent the interests of CBA members including:
Sexual Offence & Child Abuse Unit conference – Gerard Mullaly,
Criminal Law Advisory Group meeting – John Champion & Mark Taft
Note that it is proposed that a pilot sentence indication scheme be introduced in the County Court. Details will be provided in due course.
Magistrates’ Court Suppression Orders Group - J Dickinson

Supreme Court Victoria - Decisions of Interest:
Access by Accused in custody to appropriate media in order to prepare for hearings:
Rich v Magistrates’ Court of Victoria & Anor [2007] VSC 65
Maxwell P in this case looks at the issue of what is the minimum access that a person in custody is entitled to when preparing to face serious criminal charges. He considers that the minimum entitlement involves having available at reasonable times the media necessary to prepare. This will include computers, & the means to listen to telephone intercepts, records of interview etc as the occasion requires.

Extradition: ss83 & 86 Service &Execution of Process Act 1992 (Cwlth)
Berichon v Chief Commissioner Victoria Police [2007] VSC 143 Held by Mandie J that where dealing with an extradition application pursuant to s83, the Magistrate must make 1 or other of the orders contemplated by the Act.

There is no power to decline to make such an order on the basis of abuse of process. The Supreme Court doe not have any wider power when reviewing such an order.

Filming Sentencing Proceedings:
Application to film declined. R v Williams [2007] VSC 139, R v Avent unrep. SC 17/5/1995, Teague J not followed.

Re -Formulation of prosecution case by magistrate in an Impermissible manner:
Where a court deals with a criminal charge in a way which has not been relied upon by the prosecution, it affords the defence with no opportunity to meet the charge & thereby constitutes a fundamental error resulting in the overturning of the decision Citypower v Leahy [2007] VSC 95 King J.

Court of Appeal Victoria - Decisions of Interest:
Relevance of impaired mental functioning in sentencing: R v Tsiaris [1996] 1 VR 398.

The principles set out in Tsiaras are reformulated in R v Verdins & Ors 2007 VSCA 102

Agenda for Criminal Bar Association Executive Committee Meeting on Tuesday 16 October 2007
# Download (12 kb)

28 September 2007
Agenda for Criminal Bar Association Executive Committee Meeting on Tuesday 2 October 2007
# Download (11 kb)

24 July 2007
Article in response to Haneef and Attorney -General’s involvement by Stephen Shirrefs as published in The AGE on 24 July 2007:

20 July 2007
Seminar documents: Changes to committal proceedings: Courts Legislation (Jurisdiction) Act 2006. Speaker: Greg Byrne, Director Criminal Law & Justice Statement – Department of Justice.
# Handout (Flowchart) (40 kb)
# Powerpoint Presentation (135 kb)

28 June 2007
Agenda for Criminal Bar Association Executive Committee Meeting on Tuesday 3 July 2007.
# Download (10 kb)

26 June 2007
CLE – Tuesday, 10 July 2007
Members are reminded that Greg Byrne, Director Criminal Law & Justice Statement at the Department of Justice, will be presenting a CLE in relation to changes to committal proceedings which have been brought about by virtue of the Courts Legislation (Jurisdiction) Act 2006. The legislation makes substantive changes to the way committals will run, and the changes take effect from 1 July 2007. Thus, this CLE is important for anyone practising in criminal law.

The seminar will take place on Tuesday, 10 July 2007 at 5.15pm in the Neil McPhee Room, 1st Floor, ODCE.

19 June 2007
Members are advised that training for Counsel conducted by the Office of Public Prosecutions Sexual Offences Unit has received accreditation from the Victorian Bar for one CLE point per one hour of attendance, to a maximum of five points.

5 June 2007
Response to a discussion paper on reforms to the Appeals Cost Act 1998
# Download (70 kb)

2 April 2007
The Judge's Perspective On Sentencing - Paper by the Honourable Justice Osborn
# Download (70 kb)

23 March 2007
Agenda for the next Criminal Bar Association Executive Committee Meeting on Tuesday 27 March 2007.
# Download (10 kb)

23 March 2007
Technology in Criminal Cases - The Chief Justice Marilyn Warren has commissioned a Working Group comprising interested parties, including the CBA, to work towards the development of a Practice Note or Protocol dealing with the use of technology in criminal cases. Members of the CBA who have any views they wish to express, or contribute, should direct their contributions to John Champion SC, Peter Morrissey, or John Bushby

5 March 2007
Attached are the minutes from the latest Police Lawyers Liaison Committee meeting. Topics included a reminder to provide reports and references to be used in court to the prosecutor prior to and not during a hearing, the formalisation of the policy in relation to solicitors attending police stations as well as other matters. If you have any matters may warrant discussion at the next meeting, please contact Megan Tittensor.
# Download (100 kb)

23 Feb. 2007
Agenda for the next Criminal Bar Association Executive Committee Meeting on Tuesday 27 February 2007.
# Download (10 kb)

15 Feb. 2007
Members are advised that the Victorian Criminal Charge Book; the Victorian Sentencing Manual; the Search Warrants Manual; and the Sexual Assault Manual are now all available online through the Home Page of the Judicial College of Victoria. These are essential tools for barristers conducting criminal cases and we encourage all members to become familiar with them.



	Welcome to the Criminal Bar Association of Victoria, Australia The Criminal Bar Association is the peak body for barristers in Victoria practising in the criminal law. Its members comprise almost one quarter of all barristers practising in Victoria and it counts almost one third of Victoria's judiciary among its Honorary Members. The Association represents criminal barristers who principally prosecute, those who principally defend and those who have a mixed practice.