Strict Legalism

"The law is always certain although no one may know what it is."

Pre-sentence detention and not declaring it: extending the device to Drug Court

doyouthinkthatisairyouarebreathingnow.jpg

Is there ever a time when it’s justified to ask a court not to declare pre-sentence detention (‘PSD’)? Sounds weird but turns out, sometimes, yes. It is referred to by the Court of Appeal as the “device”. So how do we use the device and when is it appropriate? This article will cover two situations when it can be used. First, the traditional YTC situation where I discuss the principles applicable. But then I secondly argue it can also be used in the Drug Court just as legitimately. This is arguably an extension of the doctrine that I believe practitioners will find most useful for Drug Court.

What is the “device” and where does it come from?

Under s 18(1) of the Sentencing Act 1991 (Vic) generally the court must declare PSD unless “the court fixing a non-parole in respect of the sentence otherwise orders” (authors emphasis). Poor wording but it basically means that the Court can “otherwise order” to not declare the PSD. Generally, this is something that needs to be specifically requested of a sentencing judge or magistrate and usually involves situations involving young offenders. Even then it is quite rare. The leading case on the matter is Hill [1996] 2 VR 496 where the Court of Appeal declined to reckon the PSD in order to allow the convicted person to be eligible for a Youth Training Centre (‘YTC’) order which has a maximum of three years. This is the first use of the “device”. It is now settled law in Victoria (see below).

The device to get into YTC

The first is YTC orders. Let us pretend you are representing a young offender who has done a significant amount of PSD either in adult or youth custody. Under the Sentencing Act 1991 (Vic) a court can only order a maximum of 3 years at a YTC. For very serious crimes a court may decide that 3 years is insufficient on its own however an offender might have done a lot of PSD. In situations like these the Court can be asked to use the “device” to not declare the PSD so as not to violate the jurisdictional maximum of 3 years for a YTC order. This was used in Hill [1996] 2 VR 496. I myself made submissions in the County Court to use the “device” for this purpose in the case of DPP v Awo & Ors [2017] VCC 1801 at [53] which was adopted by the learned judge when sentencing two of the accused.

Can the device be used to get into Drug Court?

I believe that this doctrine can be extended and used in the Drug Court jurisdiction. As most practitioners know the Drug Court has a jurisdictional limit of 2 years. It seems to be that no submissions have been made to that court about using the “device” to not declare PSD. So this is probably a new use of the law. However in cases where there are clients with (a) a lot of PSD under their belt and (b) are pushing the upper limit of the 2 years it may be appropriate. The Court of Appeal has not discussed whether the “device” could be used in the Drug Court, however they have spoken about CCOs and the “device”. The device can’t be used with CCOs basically due to issues with respect to declaring non-parole periods (too complicated to go through here). The authority for this is DPP v Grech [2016] VSCA 98. However it is at paragraph [70] where the Court of Appeal outlines areas where the “device” can and can’t be used. In ruling it out when it comes to a cocktail sentence of a CCO and imprisonment they state at [70] that,

This is not, as in Hill, a situation where there is a lacuna in the legislation that needs to be filled. The legislation implicitly (if not excplicitly) address the very point in issue.”

There is that same “lacuna” when it comes to Drug Court sentences. In fact under s 18ZD the Drug Court “must not fix a non-parole period in accordance with that section as part of the sentence imposed by it.” The Drug Court is also required under the legislation to prioritise the safety of the community (through rehabilitation of an offender) over other aspects of the Sentencing Act 1991 (Vic). It is perfectly legitimate for those considerations to factor into a Drug Court magistrates mind when deciding whether or not to utilise the PSD device. The gap in the legislation means that the court can step in, when appropriate, and decline to declare the PSD. This gap may be rare but may be an actual life saver for a client who would otherwise fall through the gap. The Drug Court is at the cutting edge of therapeutic jurisprudence in this country and possibly in the world.

So I’d be stating to lawyers who appear in Drug Court that when you have a person who is pushing the 2 year jurisdictional limit and has a lengthy period of PSD to use this “device”. It is a legitimate sentencing option available to the learned Drug Court magistrates’. Just be aware that generally speaking it is rare for a court to use it. So the reasons have to be very good and something more than the typical. As the Court of Appeal states in Hill at [505]:

“Section 35(1) … is addressed primarily to the prison authorities responsible for the administration of the Act. However, it also empowers the sentencing court to ‘otherwise order’, that is to say, to order that the period spent in custody is not to be reckoned as already served. It would follow from the making of such an order that the offender would serve a term which was the aggregate of the period already served and the sentence then imposed.

In most cases, such a result would appear to offend the principle that an offender should serve a term no longer than the justice of the case requires; it being the duty of the court to impose a sentence appropriate in all the circumstances or, put another way, a sentence which fits the crime. If that is the sentence imposed, justice requires that time already served is subtracted. That was the practice in the law long before legislative intervention.

The legislation is silent as to the considerations which the sentencing court should take into account in exercising the wide discretion granted to the court by s.35(1).

There are here two considerations which appear to us to be diametrically opposed to each other. On the one hand, there is the consideration that what we have termed the ‘clear intention’ of Parliament is that the period of detention not exceed three years; on the other hand, if we take the view (as we do) that three years’ detention is inadequate, then we would be obliged to sentence the applicant to imprisonment. Not without considerable hesitation we have finally concluded that though ‘device’ it may be, that word ought not necessarily be given a pejorative meaning, and in particular circumstances now before the court it is a legitimate device, and one, we might add, which counsel for the applicant urges us to adopt. Furthermore the adoption of this course will assist in the achievement of two objectives which are important in the case of a youthful offender, particularly so where the offender is a child. The first of these is that rehabilitation is usually far more important than general deterrence; the second is that such an offender is not, if it can be avoided, sent to an adult prison for a first offence: see R. v.Misokka (unreported, Court of Appeal, 9 November 1995) at 6-7 and the authorities there cited.” (authors emphasis)

But in certain special cases it is perfectly legitimate to use this “device” in a Drug Court context. The Court should be quite rightly hesitant to decline to declare PSD however in deserving cases (especially those involving youth) then it can be legitimately used.

I hope you find it useful.

Advertisements

Defending the fourth estate: A quick guide to journalist privilege

journalistprivilege

This is a ready reckoner for the journalist who may be required, at short notice, to rely on the law to protect their source. Given the current climate. I imagine large mastheads would know this already but smaller news agencies may also be targeted. This isn’t legal advice and people should seek their own legal advice based off their current situation. This is a rough and quickly typed document and I am not a media lawyer. I am a criminal lawyer.

Journalist privilege

Journalism is covered by a type of privilege contained in the Uniform Evidence Acts across Victoria, NSW, WA and ACT. At this point I will stick with analysis of these states. This is found in s 126K of the Evidence Act 2008 (Vic) in Victoria and will be replicated in the various other Acts in their respect states.

The section reads as follows:

(1) If a journalist, in the course of the journalist’s work, has promised an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable to give evidence that would disclose the identity of the informant or enable that identity to be ascertained.

(2) The court may, on the application of a party, order that subsection (1) is not to apply if it is satisfied that, having regard to the issues to be determined in the proceeding, the public interest in the disclosure of the identity of the informant outweighs—

(a) any likely adverse effect of the disclosure on the informant or any other person; and

(b) the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts.

(3) An order under subsection (2) maybe made subject to such terms and conditions (if any) as the court thinks fit.

As a practical guide I would say that if a journalist were being raided that they immediately apply for an injunction preventing anything that would compel information that would sacrifice the identity of a source. This would have to be done within a very short time frame and most probably be covered by an affidavit. The affidavit would have to establish a “promise” to an “informant not to disclose the informant’s identity” pursuant subsection (1) of s 126K.

If I was a media organisation I would want to have pre-prepared affidavits at the ready. For example,

“I, XXXXX, am a journalist at XXXXX. I depose that I provided a promise to a confidential source and informant in relation to XXXXX story published on XXXXX. I am currently the subject of a search warrant from XXXX agency and I seek an order requiring (insert specific requirements for an order) to protect my informant.

The impact of disclosure of the informant will do XXXX and cause XXXX to XXXXX”

Immediately then that creates a protection under s 131a of the Evidence Act. That section reads as follows:

(a)     a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1C or 3; and

(b)     the person objects to giving that information or providing that document—

the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence.

 

A “disclosure requirement” is either a summons or subpoena to produce or give evidence, pre-trial discovery, non-party discovery, interrogatories, a notice to produce or a request to produce a document under Division 1 of Part 4.6 of the Act and a search warrant. Disturbingly, NSW (where the ABC raid occurred) removes the reference to a “search warrant” which removes their right under this section. So an injunction to the Supreme Court will probably be required there. In Victoria they would be able to use this section. That is why I think most of the raids will occur in NSW (due to the lack of search warrant mention in s 131a or outside Uniform Evidence States. It remains unknown as to what extent a magistrate did or did not take s 126K into account in the ABC case. This should have been done prior to the search warrant occurring but would obviously be covered under public interest immunity, which shields agencies from legal scrutiny entirely.

After a search warrant and the objection, there will then be argument in relation to policy principles at court. This would be balancing the competing the public interest in source disclosure (i.e. preventing a serious crime) with the impact on the source or any other person and the broader principle of the desirability of news media to do their job. The raided material searched for and seized will then have to remain sealed and confidential until a judicial officer decides the issue.

A journalist or their lawyer arguing would have to firstly mount an argument as to the impact on the informant if the disclosure was made. This could include civil, criminal penalties, reputational damage and/or threat to life – any real world likely impacts. Then the second argument can be a broader sweeping argument about public interest in democratic journalism, its ideals and the necessary functioning of a healthy democracy. The judicial officer would then decide the issue in relation to the competing public interest of releasing the information.

The best defence against this type of incursion would probably be technological (e.g. blind encryption) and a rule to never send internal emails identifying sources.

It’s further important to realise what this protection is not. This protection does not make it illegal for an agency to search ones premises. It merely creates a “rebuttable presumption” that has to be raised in court by the journalist or their organisation. As an aside this is why law firms can and have been raided (but not successfully disclosed post-search warrant). Thus it is still possible for (a) a journalist’s house or workplace to be raided (b) for that information to be found and then sealed. While that material may ultimately not be used in court, it is likely that any identity of an informant would be known through the raid itself. This would be useful for intelligence purposes if an agency really wants to know the identity of someone. Let that sink in.

Good night, and good luck.

 

Bail Case Analysis No 3: Matemberere, good behaviour bonds, bail and beyond.

legalinflation

It’s amazing what you find yourself doing when you have cabin fever after a knee injury. I will be hobbling around the courts soon enough. The article is useful because it examines what an adjourned undertaking actually is, what difference a conviction and non-conviction adjourned undertaking is and what the definition of a “sentence” is. It is also a pristine example of a profound scourge on our democracy, legal inflation. Feel free to watch the video below by the legendary trial lawyer, Irving Younger. It is lengthy but worth it. It is on Socrates, democracy and legal inflation. Otherwise the case analysis is below.

This is a case analysis of the increasingly infamous Application for Bail by Allen Matemberere [2018] VSC 762. The case has caused some consternation amongst the legal fraternity due to the inherent absurdity it seems to create. To reduce the issue down to its core, Weinberg JA interprets the new Bail Act 1977 (Vic) as placing someone in exceptional circumstances if they allegedly re-offend on a good behaviour bond (with or without conviction). Bizarre right? Well don’t blame Weinberg JA blame the new bail amendments. The facts are not necessary to neither read nor recite (although one always should). But for the sake of brevity all that really needs to be known is that an applicant committed an offence whilst he was on a good behaviour bond without conviction.

The case is authority for when an accused is “serving a sentence” under a good behaviour bond (with or without conviction) if they commit another Schedule 1 or Schedule 2 offence they are launched into exceptional circumstances. Weinberg JA states at [31] that this creates “seemingly odd consequences” and is a “paradoxical result”. His Honour states that “[t]hat it seems to me to be an inexorable result of the language the legislature has chosen to use.” That is coded judge speak directing the legislature to amend this silly illogicality. Luckily, I am not a judge so I can be freer with my language. This is an unjust and poorly executed law and with consequences clearly not foreseen by the legislature. It was enacted in the heady days of the frenzied law and order battle royale at the last election cycle. Now we are stuck with it until someone in the legislature fixes it or the matter is challenged in the courts. To fully unpack what we are talking about here lets use an example. A University student on a two-year good behavior bond without conviction commits a drunken act of hijinks and trespasses at their University. She is caught and according to this law demands to be remanded. The student would have to prove “exceptional circumstances” which is the same standard a murderer would have to clear to get bail. She could spend weeks or months in gaol.

While it is unlikely that this case has filtered down to become common knowledge in the VicPol prosecutors that is likely to change soon. I am writing this article because I believe at least part of His Honour Justice Weinberg’s reasoning can be challenged or clarified. Undoubtedly one of the readers of this blog or someone that they know will encounter a situation where a person is placed into the exceptional circumstances category by virtue of what is clearly a legislative oversight. If that is the case, then I urge pursuing a bail application, appeal or a judicial review on this point. So lets begin.

There is a tension between R v Kuru (1995) 78 A Crim R 447 and R v Gorman 2010) 27 VR 469 that the appellant sought to rely upon. There are interesting cases but not necessary to examine further here. The Crown responded with the case of WBM v Chief Commissioner of Police (2010) 27 VR 469. WBM deciding judge, Kaye J, held that a person who is in the suspended portion of their suspended sentence is still “serving” their suspended term of imprisonment. This is plainly correct. There is some obiter from Kaye J discussing what a “sentence” is under s 3 of the sex offender legislation.

However, an alternative attack could be mounted by way of examination s 3 of the Criminal Procedure Act 2009 (Vic), which defines a sentence as:

“sentence” includes—

  1. the recording of a conviction; and
  2. an order made under Part 3, 3A, 3B, 3BA, 3C, 3D, 4 or 5 of the Sentencing Act 1991, other than an order incidental to or preparatory to the making of the order; and (my emphasis)
  3. an order made under section 11 or 11B of the Sex Offenders Registration Act 2004 ; and
  4. an order made under section 84S or 84T of the Road Safety Act 1986 ; and
  5. an order made under section 365, 367, 373, 380 or 387 of the Children, Youth and Families Act 2005 made by the Supreme Court in its original jurisdiction or the County Court in its original jurisdiction;

I would say that if a person received a good behaviour bond with conviction they are, without a doubt, “serving” a sentence under that definition. Why? Because the conviction starts on that day and so do the other conditions. They are effectively sentenced and thus “the recording of a conviction” under s 3 is complete. But what of those people on without conviction adjourned undertakings? Now obviously s 3 is poorly drafted legislation with the inclusion of the word “and” after every sentence implying that a sentence will only be a combination of these things. Another defect in the definition of “sentence” is the odd inclusion of s 84S and s 84T of the Road Safety Act 1989 (Vic). These are the impoundment and forfeiture provisions for cars. Does this mean that a person who commits a minor crime whilst having their car impounded should be placed in exceptional circumstances? Doubt it.

Anyway putting all these red herrings aside the words “other than an order incidental to or preparatory to the making of the order” is worth further scrutiny.

I argue that an adjournment without conviction is not “serving” a sentence. A defendant is simply under review by the court during the adjournment period. It is “preparatory” to the making of the order. In my alternative attack I make the following points:

  1. Section 75 of the Sentencing Act 1991 heading reads “[r]elease on adjournment without conviction” necessarily implying that it is an adjournment for up to 60 months. A plain reading of this is that an adjournment is an adjournment and not a sentence.
  2. But what is an adjournment? And where does it come from? An adjournment is an ancient power conveyed to a court. It involves holding off hearing or finalising a case from day X to day Y. A Chapter III court has the inherent common law power to adjourn. In R v Southhampton Justices; Ex parte Lebern (1907) 96 LT 697, Phillimore J described the power of adjournment of stating that,“The magistrates are, if not common law officers, at any rate, officers of very great antiquity. They had a great number of powers before the Summary Jurisdiction Act or the Indictable Offences Act, or any of the Acts regulating their jurisdiction which were passed in the course of the last century; and, unless those Acts have taken away that jurisdiction, it remains. I conceive every court has a common law power of adjourning for a reasonable time and upon reasonable grounds. (my emphasis)”
  3. That s 331 of the Criminal Procedure Act 2009 (Vic) also protects the power to adjourn a matter “to any time and place” and “for any purpose” and “on any terms as to costs or otherwise”.
  4. The power to adjourn a case is one of the “defining characteristics of a court” as per French CJ at [70] in South Australia v Totani [2010] HCA 39. A judicial officer can adjourn on any terms that they see fit and for whatever purpose.
  5. The definition of “sentence” under s 3 of the Criminal Procedure Act 2009 provides a crucial distinction between an adjourned undertaking with conviction and an adjourned undertaking without conviction. A without conviction adjourned undertaking is a simple adjournment with conditions attached. I would say that it is “incidental to or preparatory to the making of the order” as per the definition of “sentence” under s 3.
  6. How can this be when they are both adjourned undertaking? I think it necessarily the decision to impose a conviction or not. The imposition of a conviction alters the nature and mechanism of what an adjourned undertaking actually is. By way of comparison, a diversion is not a finding of guilty but an adjournment for up to twelve months to comply with conditions. An adjourned undertaking is similar (if not the same) except with a finding and a deferral/adjournment, which is preparatory to the making of an order on the return date (s 3). Whereas an adjourned undertaking with conviction is a normal sentence because a conviction has been imposed and a finding has been made (just like a suspended sentence, CCO or parole order would be).
  7. Therefore taking into account [1] – [7] if a person is then alleged to have committed whilst on an adjourned undertaking without conviction, they should not trigger the bail act provisions.

I may very well be wrong as experienced counsel and Weinberg JA clearly and very thoroughly examined the relevant sections and Acts. But I believe there are sufficient points here to at least have a crack at Matemberere to try and clarify the situation for people on good behaviour bonds without conviction. Even if you disagree with my analysis what is clear is that due over enthusiastic legal inflation certain basic concepts (like what a sentence is) become increasingly tedious and convoluted to define. I can’t help but notice the patterns throughout our democratic history when examining Socrates trial, Irving Younger’s video and the new bail laws.

Bail Case Analysis No. 2: How to deal with unexpected applications to revoke bail (Gloury-Hyde)

Re Gloury-Hyde Bail Case

With the advent of the Schedule 1 & 2 compelling reasons or exceptional circumstances tests the risk of grave injustice is high. As practitioners we probably all know the various and multiple blunt injustices that can occur when people are arbitrarily placed in ‘exceptional circumstances’ for crimes that ultimately are not very serious. (aside: thanks JS for input and proofing. Thank you practitioners who commented on last bail analysis. Keep sharing!) 

There is however a unique way around this. It only occurs in a very specific circumstance. Take for example the below factual scenario:

Mr Citizen is on six sets of bail for relatively low-level offending. Mr Citizen has a nasty habit of not paying for items in stores. Mr Citizen often steals baguettes, croissants and other French style baked goods (especially Canelé de Bordeaux). His matters are booked in for a consolidated plea at the Middle of Nowhere Magistrates’ Court in one and a half months’ time. Mr Citizen is objectively looking at a CCO. 

Sadly, for Mr Citizen he is caught in possession of 0.5 grams of heroin. He is placed on remand at the Melbourne Magistrates’ Court. The only summary before the Court is the heroin summary. The baked goods summaries cannot be abridged and the court does not have time to hear a consolidated plea. The next consolidated plea date is in one months’ time. Mr Citizen is in exceptional circumstances for bail. Mr Citizen is an unexceptional man. 

What are the options for poor old Mr Citizen? Sadly, most of the options are not very palatable. They are:

  1. Mr Citizen can apply for bail. Bail looks unlikely because of him being in ‘exceptional circumstances’. No.
  2. Mr Citizen can adjourn his matters to the Middle of Nowhere Magistrates’ Court for a plea of guilty in one and a half’s months’ time. Nope.
  3. Mr Citizen can plead guilty to the possession charge and have his matters abridged from the Middle of Nowhere Magistrates’ Court to a consolidated plea date in three and a half weeks’ time. Not the best.
  4. Mr Citizen can plead guilty to the possession of heroin charges today. Be released on a good behaviour bond to seek treatment under a mental health care plan or CISP. He can then do his consolidated plea in one and a half months’ time at the Middle of Nowhere Magistrates’ Court. Sounds promising.

If I was Mr Citizen, I’d probably go with option [4] because it means I don’t have to sit in the big house until my consolidated plea is heard either at Melbourne Magistrates’ Court or at the Middle of Nowhere Magistrates’ Court.

You duly give Mr Citizen the advice after he admits that he was in possession of the heroin. Mr Citizen wants to go for bail however after explaining the cruel and unusual changes to the Bail Act 1977 (Vic) he decides to simply plead to the heroin charges. After all the drugs were found in a bum bag emblazoned with the words “Mr Citizen’s Special Bag”. Despite this you are confident that when you do the plea he will get a modest fine or a bond.

You don’t anticipate a problem. You go upstairs and the tired police prosecutor asks, “what’s happening with your matter?” You then say it is going to be a plea. The prosecutor then tells the informant. The informant and the prosecutor then hatch a cunning plan. They decide to apply to revoke the bail for Mr Citizen’s baked good allegations. Regardless of the sentencing outcome for the possession of heroin charge Mr Citizen is now facing one and a half months in the big house! Quelle horreur! Rather than panicking there is a way out.

The prosecution can apply to revoke bail at any time. The application for revocation of bail is governed under s 18AE and s 18AF of the Bail Act 1977 (Vic). Both those sections are zen like in their brevity. The relevant section here is s 18AF which considers how a court needs to determine a s18AE application.  The heavily pruned section reads as follows:

On an application under section 18AE, the court may either—

        (a)     revoke bail; or

        (b)     dismiss the application.

What to make of this section? And how does it apply to Mr Citizen? Is he in exceptional circumstances? Or compelling reasons? What test does a judicial officer apply? The answer is unclear. Some take the view that s 4E applies due to the title ‘All offences – unacceptable risk test’. Others take the view that upon an application to revoke no test applies due to strange wording of s 18AE.

Personally I take the view that no test applies. Not even unacceptable risk.

This is supported by the case of Re Gloury-Hyde (No 2) [2018] VSC 520 Priest JA remarked at paragraph [13] on this unusual section stating:

Section 18AF provides that on an application under s 18AE, the court may either revoke bail or dismiss the application, but the Act otherwise gives no guidance as to how the discretionary powers in the section are to be exercised. That said, the Court must, of course, exercise the powers reserved to it under s 18AF by reference to the guiding principles in s 1B of the Act.” 

This is what happens when parliament creates sloppy and prescriptive legislation. Mr Citizen is therefore entitled to resist the application to revoke his bail free from the shackles of compelling reasons or exceptional circumstances.

The only lodestar for a defence lawyer or a judicial officer is the guiding principles of the Act found in s 1B. Those principles are:

(1)     The Parliament recognises the importance of—

        (a)     maximising the safety of the community and persons affected by crime to the greatest extent possible; and

        (b)     taking account of the presumption of innocence and the right to liberty; and

        (c)     promoting fairness, transparency and consistency in bail decision making; and

        (d)     promoting public understanding of bail practices and procedures.

    (2)     It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).

This is fresh, uncharted territory now. It is time to have some fun. The guiding principles for bail under s 1B are actually very helpful for defence lawyers. I’ve already dealt with the “maximising safety” argument under s 1B(1)(a)  in my last post on Re Gaylor. Then s 1B(1)(b) talks expressly about the “presumption of innocence” and the “right to liberty”. This is a gift to Mr Citizen. A strong argument can be made for Mr Citizen that he has an enduring right to liberty because he is unlikely to receive any gaol time for the theft of multiple baked goods. These things are all powerful considerations for a bail decision maker.

I have used this argument in court several times. If your friend on the other side of the bar table challenges your reasoning refer to s 18AF, paragraph [13] of Re Gloury-Hyde (No 2)If the prosecution argue that that cannot be the intention of parliament feel free to chuck in some Latin for a bit of whimsy. Referring to s 18AF Parliament is very clear in its language on what includes (nothing) and excludes (everything). So expressio unius est exclusion alteriusThe logic and reasoning are sound.

Further, the prosecution may seek to argue that the bail decision maker has no power to put into place programs that mitigate risk. This is incorrect. When you look at the definition of ‘bail decision maker’ in s 3, which is defined as any person empowered under the act to “grant bail, extend bail, vary the amount of bail or conditions of bail or revoke bail”. Clearly conditions can be varied to include CISP.

It is a useful line of reasoning when you are faced with high volume offender committing minor crimes where there is little chance of gaol. It however is only suitable to argue in situations where, if the defendant were to plead guilty, they would be released same day. It is a case of straight is the gate, narrow is the way, a few there be that find it. But when you do find the gate it is quite rewarding.

Thanks for reading.

 

Bail case analysis: Re Gaylor & compelling reasons

compellingreasonsbailfelixralph

This is a case analysis of a bail application where the applicant, charged with serious offences, had to show ‘compelling reasons’ to get bail. I think defence lawyers should start using it. Note, for those short on time skip to the end with the ‘bold bits’. The case is Re Gaylor [2019] VSC 46 and it was decided recently on the 18 January 2019.

Main facts of the case

This case involved an applicant who was charged with sexual penetration of a child under 16, possession of child abuse material and grooming a child under 16. These charges occurred between the 1st November 2018 and 7 December 2018 and involved a 12 year old girl. Essentially the applicant, a 22 year old male, in July or early August 2018 was driving past some young girls and offered to buy a slurpee in exchange for their social media details [edit: thanks JS for fixing that sentence]. On 7 November they become ‘friends’ on Facebook and he allegedly grooms her. Then the alleged sexual offending takes place. After the complaint the police raid his house and find child abuse material and one video of bestiality. Fairly disturbing stuff. The defence conceded the evidence is strong.

He was refused bail on the 10 December at the Ballarat Magistrates’ Court and is due to face Committal Mention on the 7th March. He was placed in the ‘compelling reason’ category under s 4C(1A) of the Bail Act 1977 (Vic).

The ‘compelling reason’ test

The way that the Act operates is that the court must refuse bail unless satisfied that the applicant has established ‘compelling reasons’ (step one). Then it becomes the usual question of unacceptable risk (step two). This is the familiar ‘two step test’. Paragraph 9 is useful in considering ‘compelling reasons’:

“In considering whether a compelling reason exists, the Court must take into account the surrounding circumstances, being all the circumstances relevant to the matter including, but not limited to, the matters listed in s 3AAA.”

Once compelling reasons is established the prosecution then bears the onus of satisfying any Court on the existence of unacceptable risk.

“12. In considering whether any relevant risk is unacceptable, s 4E(3) requires the Court to take into account the surrounding circumstances and to consider whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.

13. Pursuant to s 5AAAA(1) of the Act, the Court must make enquiries of the prosecutor as to whether there is in force a Family Violence Intervention Order, Family Violence Safety Notice, or recognised Domestic Violence Order made against the accused

14. Section 1B(2) requires me to apply and interpret the Act having regard to the guiding principles set out in s 1B(1), which include: (a) maximising the safety of the community and persons affected by crime to the greatest extent possible; and (b) taking account of the presumption of innocence and the right to liberty.”

The case reinforces the common sense definition of ‘compelling reason’  seen in Re Alsulayhim [2018] VSC 570 where Beach JA held that “Put shortly, the applicant in the present case, if he is to be successful, must establish a compelling reason (in the sense of a reason that is forceful and therefore convincing) that justifies the grant of bail.”

All in all, nothing new up until this point in the judgment.

Bail factors as argued by the appellant

The applicant argued that a combination of factors established compelling reasons. They were:

  • Age (being 22);
  • Suitable accommodation with his mother;
  • Family support and ties to the jurisdiction. His mother gave evidence that ‘he’s not going anywhere without me or his dad. I discussed that with him and he was fine with that’;
  • Parenting responsibilities as he had a 3 year old daughter;
  • Special vulnerabilities being Tourette syndrome, severe depression and anxiety and suicidal ideation. His father was an employee of Corrections Victoria and the applicant’s father gave evidence that he is well known in the prison system which may give the applicant some grief. The prosecution argued that there was no evidence of the medical or psychological conditions however it was conceded the father was a Corrections Victoria employee;
  • Employment on a casual basis. The prosecution argued that casual employment is not a compelling reason. For example if an applicant lost his or her job, be unable to receive medical treatment or wouldn’t be able to pay their mortgage that may be compelling;
  • Lack of priors, one good behaviour bond for family violence; and
  • Likely sentence, being most likely he may get a custodial sentence but not necessary a sure thing.

The important bits: (1) Rehabilitation is good & (2) What about post-sentence?

Interestingly, and I think quite rightly, Riordan J emphasised the following when granting bail:

First, prospects of endangering safety is low due to lack of priors and family support.

Second, the prospects of rehabilitation was high due to lack of priors, age, evidence of depression and anxiety and CISP;

“Third, although the grant of bail may expose the community to some short-term risk that the applicant will reoffend while on bail, the incarceration of this young man on remand for a further period of about 12 months is most unlikely to reduce the risk of reoffending when he is ultimately released; and may have the opposite effect”;

“Fourth, an assessment of the applicant’s performance during the bail period (in particular, the extent to which he complies with undertakings and seeks treatment) will inform the sentencing court about his prospects of rehabilitation and assist in the determination of an appropriate sentence, if the applicant is ultimately convicted of an offence”; and

“Fifth, the guiding principles of the Act recognise the importance of ‘maximising the safety of the community’.13 I consider that this principle encompasses the safety of the community both: (a) in the short term, while an accused is on bail; and (b) in the long term, once an offender is released permanently into the community.”

What a well-crafted judgment! This case has wide utility because of the way that it approaches the ‘compelling reason’ test in circumstances where there is opportunity for treatment and rehabilitation whilst on bail. On the face of it, this young man is going to gaol for his offences however if he complies with his bail and undertakes rehabilitation in the process it may be (just may be) open to a court not to impose a custodial sentence. The chance of a non-custodial sentence are slim to moderate however that is not the end of the matter. The inherent logic that is the foundation of Riordan J’s reasoning is sound as rock.

As a rehabilitation minded defence lawyer, I am attracted to the logic that incarceration may actually be more dangerous in the long term to the general safety of the public. Especially in lower jurisdictions where a person is only going to receive a few months gaol time. What really is the utility in that? Re Gaylor is useful authority when you have those cases where if the applicant proves themselves whilst on bail they may be able to avoid a custodial sentence. Even in really serious cases like this. Careful and detailed analysis by a court of how a person performs on bail is a common and useful tool to assess their prospects of rehabilitation for the future. Denial of bail denies the court that chance for further informed analysis.

This case is important because it broadens the time frame to consider the ‘safety of the public’ from the immediate short term to the longer view. This is informed by the detailed analysis of the Victorian Ombudsman, Investigation into the Rehabilitation and Reintegration of Prisoners in Victoria (Report, September 2015) [813], [817], citing Melbourne Sentencing Advisory Council, Does Imprisonment Deter? A Review of the Evidence (Report, April 2011).  These articles were cited with approval by Riordan J. Those reports and this judgment will serve as useful for any advocate wishing to provide a vigorous riposte to the well-worn phrase of “no condition of bail would ameliorate the police concerns of safety to the public.”

This logic is one that should gain traction in legal circles. I am reminded of a Magistrate who I admire greatly who stated in a bail application “Well what is the utility in denying bail? The man will be sentenced to a few months in gaol and then released. What about the safety of the public then?” Can’t fault that. Next time an informant uses the generic ‘safety of the public’ line, ask in cross-examination about the longer-term view.

Use this case when you want to say that your client can prove themselves on bail through CISP or residential rehabilitation or some other program. Even if the charges are very serious, like in this young man’s case.

Thanks for reading.

Three no-spin changes that would help tighten and streamline bail laws

vicnewbaillaws

[Important note:] This article was substantively written on the 2nd May 2017. On the 8th May the bail review changes were announced by the Victorian Government. As predicted, they are not good. Once a substantive policy has been released to the public and the Coghlan Review is released I will look over it. I thought that while this is ‘old news’ it is not necessarily ‘fake news’ – the points are still valid. Watch this space. 

It is a tragic irony that criminal lawyers are unable to effectively communicate the seismic changes required to fix the criminal justice system. This is no criticism of the advocates but merely an observation based on reality. We are in the midst of the nadir of a savage law and order cycle and criminal lawyers (and our organisations and institutes) are faced with a very difficult task. Namely, how do you convince a population and its politicians, in the grips of a punitive law and order cycle, that the path we are going down is wholly wrong, wholly unsafe and most unwise?

Criminal lawyers are duty bound to sell this unsellable message. Recognising this reality reveals that there is a limit to how much we can achieve in such a punitive law and order cycle. So maybe we should aim for things that are achievable in the current political climate.

There are three no-spin (potentially) bipartisan changes that would actually modernise the bail system without tipping the scales. These are: (1) remove the ‘show cause’ provisions, (2) one accused one easily accessible file and (3) treatment beginning from time of arrest. These three suggestions would help to streamline the criminal justice system, modernise the question of bail, save money and remand the people who need to be remanded. Stepping away from the reactionary politics its clear we don’t just need a review of the bail system but the political will to make smart changes.

Currently, I fear what will happen is just a ‘tinkering around the edges’ of the Bail Act couched in the lazy politics and emotive language of being ‘tough’ or ‘weak’ on crime. Continual tinkering with a piece of legislation from 1977 with law and order policy motived by political considerations  does not protect the community, it is unwise, costly and unjust. Smart justice is the best justice.

The poisoned optics of a bail review

At the moment there is a criminal justice review by commissioned by the Andrews Government in the wake of the Bourke Street tragedy. Justice Coghlan spearheads that review. As I have previously stated the review of the Bail Act 1977 (Vic) is long overdue. Many commentators and expert reviews have long highlighted the changes required to have an efficient bail law system. The political will to champion those changes has been lacking, with taking the ‘tough guy’ approach being the easy way out. Without prejudging the recommendations of His Honour, I feel that the review will be rehashing well-worn territory as we have already looked at bail review in 2007.

The core trouble with the Coghlan review is that it will be invariably poisoned by reactionary politics. To be clear, I expect that in reality no enlightened changes will occur despite Justice Coghlan delivering what will invariably be a thorough and precise series of just recommendations. And in the wake of such an emotive tragedy how can there be such a change? The political reality is just too stark at the moment. How can you sell the idea to the Victorian population that we should abolish ‘show cause’ provisions? How can you say to the Victorian people that bail justices are simply a filter who overwhelmingly, almost always deny bail when the police ask for it? How can you convey the idea that rehabilitation and helping alleged offenders will reduce the crime rate and protect society? These are the unsellable messages. My argument is that you cannot achieve the hard nosed and enlightened changes required to remedy a broken system when reviews such as this are announced in a reactionary and emotive setting.

It is my feeling that wholesale change is required but there is simply not the political will to drive that sweeping change. It may be pessimistic (and a broken status quo should never be accepted) but criminal lawyers should focus on achievable goals. Thus I focus on the reality and focus on changes that would be highly effective but not wholly controversial. Aiming small and missing small would not deprive politicians of their ‘tough on crime’ rhetoric that they feel they need to get elected. It would allow prosecutors to fully prosecute their case and defence lawyers to answer it with counter facts. Most importantly it would allow judicial decision makers to make an informed decision. Most importantly, it would save lives. But before I discuss the suggestions, let’s focus on some home truths.

The reality

This is the reality that no politician will talk about, no judicial officer will admit and no paper will print on the record. That is that crime is wholly unpredictable. You cannot, no matter your expertise, predict the outcome of the future.  Mr. Gargousulas was granted bail by a bail justice for driving offences. There were no (or little) indicia of risk that would leave a frontline decision maker to conclude he would commit such a heinous series of crimes. Making a decision regarding sentencing or bail is like playing a deadly game of pass the parcel. You try your best and make the best decisions you can on the day but if you play the game long enough inevitably something will explode.

And yet no Magistrate or Judge wants to be the person who releases the next terror suspect or the next significant criminal out on bail. The reality is that crime is unpredictable and hindsight is a wonderful thing that the people on the ground cannot possess. All we can do as criminal lawyers is have access to as much information as we possibly can to assist the court in makingan informed, impartial decision based on the law.

I feel a lot of empathy for the bail justices and especially the bail justice who granted bail for Mr. Gargousulas. They have been unfairly pilloried for a job that is almost always unthankful and based entirely on a sense of civic duty. Bail justices feel that they have been unfairly blamed for making that fateful bail decision. As a practitioner, I am surprised whenever a bail justice actually grants bail. What is more it is a hard job to do in a system that is so thoroughly antiquated, overwhelmed and broken. So why can’t we focus on getting as much information to the independent decision maker (the judiciary) as efficiently as possible?

Decision makers are operating in an antiquated system based on software that most people wouldn’t even recognise anymore. The courts run on something called ‘Court Link’ and it is a DOS based program. DOS! It is green, yellow and red with a black background. To imprison someone you press the ‘IMP’ button. It is truly the most unruly, user-unfriendly system one could hope for. It also restricts access to information. Court Link cannot open a PDF file or an email. It cannot access CCTV footage or records of interview. When was the last time you punched in a DOS command? This is our criminal justice system. It would be almost comical if the repercussions weren’t so serious. Such an old system means that magistrates, lawyers, police prosecutors etc. have no ability to easily retrieve current or past allegations of criminality, psychiatric reports, bail reports, sentencing decisions etc. How can a decision maker make an informed decision as to risk when relying on a system that cannot provide all salient facts? It’s actually dangerous and outrageously so.

Practical changes that actually work

Here are some suggestions as to how to really tighten up the bail system. It wouldn’t cost a huge amount of money but I would guarantee that it would save lives and reduce people being unjustly remanded. It would also save a decent amount of taxpayer dollars. It would probably make a defence lawyer’s jobs harder, but at least everyone will be operating from easily accessible information.

  • Remove the ‘show cause’ provisions: Simplify the Bail Act 1977 by removing all ‘show cause’ provisions and simply have a single question being asked: “is the accused person an unacceptable risk of committing further offences or failing to appear?” This would free up court time to focus on the only question that actually matters. As I have previously stated, the Bail Act is antiquated in and of itself. Highly confusing, clunky and inconsistent, it costs more in court time that any other piece of legislation. This has been a core recommendation for years and something I have previously written about.
  • One accused, one file: We should have a central and modern database with an access to an accused persons history and file. Currently, judicial officers simply have to guess what persons a priors actually involve based on a system developed in the early 80s called LEAP. It is often impossible to access all briefs for allegations of the offences that an accused is facing. A surprising amount of decisions made in the courts are ones that are not fully informed of the facts and risks. This leads to distrustful judicial officers, who almost always feel dissatisfied with the lack of information available to them. Defence lawyers nearly always have to conduct an enquiry as to the true nature of the risks and facts when presented with a bail application scenario. Overworked prosecutors almost never have the information they need to prosecute their case. We should level the playing field for all with free ranging access to all pertinent information. Why couldn’t the criminal justice system have access to a collated database that held police summaries, correction reports, psychiatric history, intervention orders and the like? Access could be granted once you begin acting for a particular accused. As a tech-savvy lawyer I recoil in horror at the antiquated system the courts and police have to deal with. I should be able to click on a person’s prior from the last two years and access the amended police summary, the corrections report, the psychiatric reports and the CISP reports. If I want to argue that the CCTV identification evidence is weak, I should be able to say to the Magistrate “let’s take a look at 19:20 on the CCTV footage. You cannot see his face!” All then the Magistrate, prosecutor and myself would have to do is click on the current file, the current allegations and then the CCTV evidence. The Magistrate can then make an informed decision based on the strength of the evidence. It is frankly astounding that this doesn’t occur. Make no mistake, innocent people wait in custody for weeks or months on charges that are ultimately unable to be proved.
  • Treatment beginning from the time of arrest: We should have mental health and CISP clinicians available at the time of arrest at every police station. I cannot emphasise this enough, as it would make for a much safer community. Frontline access to drug rehabilitation services and psychiatric intervention would substantially alleviate the risk factors of people committing crimes immediately post-release. This is an idea that I stole in court from Her Honour Magistrate Popovic. It’s a good one and Her Honour should know, she invented CISP. CISP is much cheaper per potential prisoner than remanding them in custody. [Important note:] As of today it seems that there is a promised ‘increase’ in funding for the CISP program. More on this when it comes to light. 

These three suggestions would work to streamline the criminal justice system. It would focus the question being asked, namely “what is the risk of bailing this person?” It would provide the information required to adequately answer that question, by having easy access to psychiatric and treatment related information. Lastly, it would enable to the people who need treatment, at first instance, immediate access to that treatment. By streamlining the question and providing the evidence we could bail the people who need to be bailed and address the question of risk more thoroughly, efficiently and accurately.

I believe that actually implementing these ideas would not be a politically unsellable message and would offer real substantive changes in how we conduct justice in this state. It would cost less than building a new prison and would allow the people who need to be bailed to be bailed. It is an example of smart policy and smart justice through justice reinvestment. Why we haven’t done this already is truly beyond me.

I ask that the criminal lawyers, judges, magistrates, barristers, prosecutors, police officers and citizens who read this blog question why we are operating in a system that is so inaccurate, insufficient, unsafe and clunky. Why do we have a system that is based off technology developed in the 1980s? What can we do better and how do we achieve change that is realistic and that will actually work? How can we get the information required to assist the court in making a just and informed decision?

These are the questions that can be easily answered without expending large political capital or a whole lot of money. More accurate, efficient and available information when assessing bail cannot be a bad thing. Treatment for the people who would ordinarily deserve bail should always be at the forefront of our minds. Maybe we should aim for uncontroversial policies that achieve these things?

Just a thought.

Felix Ralph

Legal Aid & Bulk Tendering: The Era of the Mega-lawfirm?

bulktenderinglegalaid

Recently, the Access to Justice Report was released to the public. It is a dense report that will take some time to digest. However, there is one recommendation that is particularly ill conceived. This is recommendation 6.10 entitled “[v]alue for money in purchasing decisions” on p. 414. The report recommends embracing of “innovative” funding and purchasing arrangements, one of which is “bulk tendering” of cases. The recommendation is as follows,

felixralphbulktendering

It is unclear how this would work in practice so let’s look at the United Kingdom. In the UK 100% of legal aid funding goes to private practitioners (referred to as ‘high street solicitors’). In Victoria, roughly 70% of legal aid is done by private practitioners (see page 41, Appendix B of the LIV Pricewaterhousecoopers report). The UK has gone down this “innovative” approach of bulk tendering. It has been largely derided and bemoaned by that jurisdictions legal profession. Here are some of the headlines coming out of that country after that particular innovation. Here is one, “1000 criminal law firms to be cut from legal aid work”. Another, “[h]ow the Ministry of Justice proposal for the tendering of criminal legal aid is misconceived and illiberal”. Another, “High Street solicitors could be forced to close by Government legal aid changes” One from The Guardian [l]egal aid contracts for on-call criminal solicitors to be slashed by two-thirds” One from the Independent[u]ndermine Legal Aid and you put entire justice system at risk” where the article concludes that,

“[a] tendering system like this will reward high volume providers, but bulk-bidding will hurt local high-street firms who will not be able to compete on price against call-centre lawyers operating a ‘pile-it-high and sell it cheap’ model.”

To be clear, the only reason I can see how this saves money is to create “economies of scale” within the legal profession. The larger the law firm the cheaper the running a legally aided case supposedly is. This means larger law firms have a competitive advantage because they can outbid and provide cheaper and more competitive rates for the bulk tendering process. This is called “cost-innovation” and “efficiency”. See the advantages and disadvantages outlined in the LIV 2015 report by PWC. PWC neatly gloss over the real issues with the SWOT analysis below:

felixralphbulktendering2

In discussing the UK example the above PWC report, which is directly cited by the Access to Justice Report in recommending bulk tendering concludes on page 32 that,

“These reforms have led to a high level of concern among the legal profession in England and Wales. This is in part because the number of service contracts for the duty provider scheme will be reduced from approximately 1,600 firms currently providing legal aid criminal defence, to 527 successful applicants. The new system will come into effect in September 2015. It is too early to tell whether this new bulk tendering system will be successful in achieving its objectives of creating economies of scale and greater flexibility and simplification, while continuing to ensure high-quality legal aid representation.” (authors emphasis)

The Access to Justice Report does not explore these concerns citing the PWC report. Regardless, there are a number of reasons why bulk tendering is an unworthy option.

  1. Bulk tendering of legal aid contract removes what’s called the “choice of solicitor principle” which is pretty self-explanatory. As an accused person, a citizen, you get to choose your own solicitor to represent you. By removing this and having a bulk tendering process, you are allocated what you are given – like it or lump it.
  1. Smaller practitioners are wedged out by larger law firms as the constant drive for efficiency creates ‘economies of scale’.   This drive for efficiencies and value will invariably favour larger law firms.
  1. Bulk tendering ignores individual lawyers strengths and weaknesses. For example, when I cannot represent someone for whatever reason I recommend a particular lawyer personally. I never recommend an entire firm. That’s because of the reality that some lawyers are more suitable, more experienced or simply more qualified than others. It doesn’t matter what firm they work for. Bulk tendering could mean that a consumer of legal services has no control over who handles their case.
  1. If bulk tendering is adopted it is creating the conditions for an oligopoly of criminal lawyers for the future. This is an environment ripe for miscarriages of justice. My view is that you let the free market dictate the size and success of the firm.

Read the rest of this entry »

Unjust legislative changes means video-links in court all the time

videolink-injustice

Technology is not the answer to injustice. Justice is. As of 12 September 2016 it will become the default position that all appearances for persons in custody will be done via video-link unless it is an enquiry into fitness to plead, the hearing of a charge if accused is pleading not guilty or a committal. This is through a combination of legislation under the Justice Legislation (Evidence and other Acts) 2016 (Vic) and through practice direction in the Melbourne Magistrates’ Court.

This is in response to the “phenomenon” of prisoners not being brought to court by Corrections Victoria. This is not a “phenomenon” it is a failure. I view this as a tacit acknowledgment by the government that the criminal justice system has been fundamentally broken by law and order politics. The system is so overfull that Corrections Victoria cannot bring people to court anymore, there is simply no capacity or room. The Court’s are left to struggle with this, at mercy to the Department of Justice and funding considerations. This is what happens to a system, that just a few years ago worked entirely appropriately, to one that completely ignores concepts of justice reinvestment and rehabilitation.

It is assumed that technology is the panacea to all problems. It is not and here is why:

  1. Video-links ignore the fact that the situation with cases changes on the day. I.e. more charges could be added, a new issue arises and/or lawyers need to get further instructions from their clients. A case is never set in stone, it is fluid and moveable.
  1. Video-links being semi-mandatory turns a half-day matter into a multiple day matter. For example, a bail application where the Magistrate needs to grant permission to have the client assessed for the Court Integrated Services Program? That will have to be done on the next occasion. Adjourn the matter to the next date, which could be a month or more away.
  1. This is also the same situation for assessment for Community Corrections Orders, which is the primary way that most matters in the Magistrates’ court resolve.
  1. Video-links blunt the effectiveness of a sentence indication. The vast majority of matters usually resolve at contest mentions upon a sentence indication. This now cannot be done, and if it is, then it is done clumsily.
  1. When things change you cannot get private instructions over video-link. They provide the option to call but often you only get a 5-minute call to take the client through complex legal problems and expect them to make a decision that could drastically affect their lives. I’ve seen people forced into having to get instructions in packed courtrooms, with magistrates’ off the bench.
  1. Video-links ignores the human factor of having difficult clients. Yesterday I saw a terrible situation where a prisoner was confused, disorientated and had just been brought out of medical. He did not understand the situation at all because he had no lawyer to explain it to him. felixralphvideolink
  1. Video-links acts as a barrier to communication and effectively reading the situation. Magistrates’ like to see, hear and observe the defendant in person. 70% of communication is non-verbal. The process of appearing via video-link is dehumanising because it puts the person far away. Magistrates’ like to look people in the eyes. Assess them. Judge them. All video-links all the time means that the prisoner is out of sight out of mind.
  1. Video-links are shared with courts, practitioners, CISP and Corrections. Currently, practitioners can use “Jabber Guest” which is a system that works essentially like Skype. Often there is a significant delay trying to speak to clients in custody over this service. You cannot simply pick up a phone and speak to your client easily. What’s more the Courts “share” the video-links between them, with every court get set “allocations” of video-links per day. You cannot go over time.
  1. As a result pleas in mitigation are timed on video-links, with a threat of ‘running out of time’ with respect to submissions. I.e. you have 30 minutes to finalise the whole matter, where the allegations take 20 minutes to read out.
  1. Video-links often do not work. The technology fails all the time, the result being a delay in a persons case and increase time in custody. Increased costs to the community all because the technology failed to work. I remember one matter where the prisoner had to put both arms in the air if they were to accept the charges against them. It was plea instructions by pantomime.
  1. If a person is released from custody they will be released directly from gaol. Prisons and gaols are often in the middle of nowhere. They have no family to pick them up, often nowhere to sleep and little to no money. Where are the services that are usually provided to people at court? No Salvation Army. No support workers. How are you going to ensure that a homeless, mentally ill man has the wherewithal to access appropriate services post release?
  1. Video-links deprive prisoners their ability to access forensicare nurses when in the cells. This denies the ability of practitioners to have the assistance of trained mental health care professionals to make the appropriate recommendations and referrals.
  1. This places huge pressure on practitioners to be able to explain all these situations in a very short time frame.
  1. It won’t solve the problem. I’ve already had the situation in the last week where I was advised that there was no capacity to bring the prisoner to court but also no capacity or time to have him heard via video-link!
  1. Criminal law is a human business. Criminal lawyers have a very fine instinct for reading situations, reading emotions, assessing the capacity and understanding of clients. As do Magistrates’ (actually they probably have an even finer instinct). It is foreseeable that during this process a lawyer could process a person’s case without ever meeting them face-to-face. It is likely that a Magistrate would as well.  And with increased pressures due to reduced funding to Legal Aid, it becomes harder and harder to communicate with clients. The pressures on the system is immense. How much confidence does that inspire?

This new regime is making the system way more convoluted and inefficient. Technology is not the answer to the fact that the system is failing because people are not being brought to court. If the government wants to send more people into custody then fine, but at least give the court the facilities to able to have people be physically present to instruct their lawyers. The Court needs the resources to do its job.

Video-links are fantastic when used correctly but they are not the answer to fundamental structural deficiencies in the criminal justice system.

This decision will disproportionately impact the poor, the mentally ill, the destitute and the at-risk people in our society. People who should spend no time in custody will spend weeks or months in custody. This is why I constantly talk about justice reinvestment both in my advocacy in court and on this blog. This is why you don’t build new prisons, they cost too much.

 

Felix Ralph

The power of the whinging advocate

felixralph.jpg

Sometimes the power of a whinge cannot be overstated. My article ‘Delay & Injustice: A New Normal‘ that I wrote on the 25 February 2016 received some modest traction both within and outside of legal circles. Eventually resulted in some good reporting by The Age journalist, Bianca Hall (@_Biancah), in her article entitled ‘Prisoners released on bail instead of remanded because of jail overcrowding‘. I was lucky enough that she took note of my post, which was essentially a whinge and venting of frustration at the situation with remanded citizens not being brought to court. The article was written, pressure was applied and various stakeholders replied. I viewed, with some dissatisfaction, the comments from a spokesman from Corrections Victoria who stated,

“The decision to remand someone into prison custody is generally made by a magistrate or a bail justice. Questions about remand and sentencing decisions, as well as court delays, should be directed to the Victorian courts.”

I’d simply add this. Technically, that spokesman is correct when they state that remand and sentencing decisions are questions to be decided by the courts alone. However, they cannot make those decisions if there is no prisoner before a court! The whole system grinds to a halt and cannot move. I’d also add that when Magistrates’ issue what’s called ‘gaol orders’ it is an order of a court for a person to be presented at a specific court on a specific date. Viewed in that light, it is a particularly glib reply and ignores the massive costs incurred by the system and not to mention the injustice of it all.

However, since then the situation has seemed to slightly improve since March (at least anecdotally). My clients at least have been brought to court for bail applications and sentencing. The situation is far from fixed and I am sure many practitioners have had the opposite experience that I have. But I have to say I have sensed a moderate (almost imperceptible) improvement overall. I imagine or guess that someone higher up in Corrections Victoria or possibly the State Government may have heard that call and maybe re-emphasised the importance of citizens actually being appearing at courts they have been remanded to and maybe avoid the inevitable PR nightmare that would ensue if this persisted. If the situation deteriorates… well all I will say is watch this space.

Anyway, many advocates tend to shy away from discussing things with the media. I am usually one of those advocates. There is a great tradition in the common law jurisdictions of simply letting your advocacy and work do the talking for you. This is reflected in the noble ideals of the Bar, the OPP and the Bench. It can be seen in the regular beatings that Magistrates’ and Judges take within the media – usually over sentencing decisions. These comments are weathered, no matter how painful, and put down to the cost of being part of the criminal justice system. I am a fan of this. I think it provides a silent dignity to the criminal justice system that frees that system from political tit for tat behaviour.

However, sometimes in order to fix systemic problems it is worth having a whinge and pointing out the many injustices in our system. Sometimes it is worth screaming at the top of your lungs hoping someone will hear. This is constructive whinging and part of being in a just and civil democracy. How else can we have a well informed society that at least has some idea of the realities of the criminal justice system? With a bit of luck someone does hear you and something positive can be done. I note my concern at the cuts within Fairfax and the planned redundancies there.  I have no doubt the situation would have continued or worsened had that article not been written. It would not of fixed itself and my whinging would of been relatively obscure as my readership of this blog is paltry at best.

We advocates weather a fair bit of nastiness on a daily basis. Sometimes clients are belligerent or outright hostile. Their family, out of stress and concern, can use advocates as their personal punching bags. Police officers and prosecutors  quite often end up in yelling matches with opposing lawyers. Often, defence lawyers are trying to fix the mistakes of others in a clearly imperfect system. Then Magistrates, for whatever reason, decide to issue scathing criticism (sometimes justified) at the advocates that appear before them. If you are female then you have to deal with an inherent flavour of sexism and discrimination within the system. Or if you happen to work as a refugee advocate you can be criticised by your own parliamentary representative as implicitly causing the self-immolation of your desperate clients (ala The Hon. Peter Dutton MP). If you have a matter appealed, the advocate is exposed to the lofty criticism of the higher courts. And like a monkey dancing on a razor blade that is where the advocate does his or her best work. 

Advocates deal with this largely in silence. That is the job. But if there is a systemic problem or injustice, it is the role of the advocate to point it out and press for change towards a more just, more perfect system. So scream I say. Scream into the void about that injustice and hope that somebody will listen. Or do what I do and have a bit of a whinge at injustice. Because sometimes, just sometimes, some good can come of it.

Keep on whinging on.

Felix Ralph

Delay & injustice: the new normal

magnacarta

Our Corrections system is broken. Attend any Magistrates’ Court in Victoria and you’ll notice a disturbing trend in the remand courtrooms of people not actually being brought to court.

I am writing this after an appearance at the Sunshine Magistrates’ Court today. Sitting in the remand court for the morning a total of nine prisoners were not brought to court. One was schizophrenic and held in custody for stealing a stick of glue. Some were awaiting sentence after having been told they could be released if they were just brought to court for a Corrections Order assessment and final sentence. I saw one lucky prisoner where an emergency video link was arranged who was due to be released three weeks ago.  Unfortunately he had to actually be at court to be assessed for a CCO. He’ll spend an extra three weeks in custody. Many of these people aren’t even convicted of an offence and they can’t even get to court to apply for bail. How is that just?

This week none of my clients have been brought to court. It was the same the week before and then the week before that. I’ve seen Magistrates adopt a ‘three strikes and you’re out rule’ meaning that if they are not brought to court three times for their bail applications the prisoners will simply be released. The whole system is in utter chaos at the moment and this will only be brought to light when some sort of political disaster happens. I said to one Magistrate last week that I feel like a ‘pantomime in the theatre of the absurd’. Great line but it’s also sadly true.

Read the rest of this entry »