Law Update: Un-sworn Evidence at Trial

Where children cannot swear an oath to give evidence truthfully (because, for example, they are too young to understand the significance of the oath) there remains a process by which the child can give un-sworn evidence at trial. That process is governed by section 13 of the Evidence Act.

In subsection 5 of section 13, it is a requirement that a person who cannot give sworn evidence will only be allowed to give unsworn evidence if the court has told that person:  

(a) that it is important to tell the truth, and

(b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs, and

(c) that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue.

In the recent case of SH v R [2012] NSWCCA 79, the Court dealt with a case in which the principal witness for the prosecution was a complainant who did not give sworn evidence, but gave evidence un-sworn. The appellant said that the judge failed to give a necessary instruction to the complainant before she gave her evidence. As a result, her evidence not merely  inadmissible, but also she was an incompetent witness. In such circumstances, it was submitted, the conviction must be set aside despite the fact that no objection was taken on that ground to her giving evidence, and that there may have been no substantial miscarriage of justice.

After reviewing a number of authorities, the Court concluded that while there appeared to be no substantial miscarriage of justice, the failure to comply with section 13(5) meant that the trial was not conducted according to law and that as a result the conviction would have to be set aside [per Basten JA at 35 with Blanche and Hall JJ agreeing]. 

The approach of the NSWCCA is consistent with the rule in R v BBR [2009] QCA 178 (19 June 2009) where Chesterman JA said: 

“[The] proposition is that where a statute permits the giving of unsworn testimony on certain conditions those conditions must be satisfied before the evidence can be given. Where a condition is that the judge give an explanation or admonition of some kind to the witness the explanation or admonition must be given.” 

A Kernaghan.

Law Update: Juveniles Avoiding Adult Gaol?

A provision of the Children (Criminal Proceedings) Act allows a court, when sentencing to goal a juvenile for an offence, to order that the child serve that sentence in Juvenile Detention Centre and not adult custody (section 19). The power to do that only comes into effect when the sentence that is imposed will see the child turn 18 while in custody. In such a circumstance, the court can order that the child serve that portion of his/her sentence over the age of 18 in a juvenile detention facility.

However there are restrictions on that power and one of these is that the sentence must, in any event, end within six months of the child/adult’s 21st birthday (Section 19(2)).

In the recent case of JM v R [2012] NSWCCA 83, the Court of Criminal Appeal considered a situation where a juvenile had been sentenced in such a way that he would be eligible for release when he was 23 years old – well after his twenty-first birthday and the six month maximum time period that is allowed for ordering such a person to serve the sentence in juvenile detention and avoid adult gaol. 

The question was whether or not it is relevant to consider that the child will serve time in adult gaol when determining the appropriate sentence? The answer seems to be “yes”. Simpson J observed this [at 123-125]:

“However, it is also my opinion that the constraint imposed by these subsections that makes it inevitable that the applicant will serve the major part of his non-parole period in an adult facility is a consideration relevant to the determination of the length of the non-parole period to be imposed. In saying this, I have not overlooked, and am indeed conscious of, subs (4A), which requires that more than mere youth is essential for a decision that would enable a juvenile offender who attains adulthood during the term of the sentence to serve that sentence as a juvenile offender.


It is then necessary to consider whether it was an error for her Honour to fail to take into account the circumstance that the legislation precluded the course that she envisaged (even though it was plain that she was aware that some part of the sentence would be served in adult custody); and the more difficult question whether it would have been open to her to tailor the sentence to take account of, and avoid, that circumstance.

I have concluded that the first part of the question ought to be answered affirmatively, that it was an error to fail to take into account that circumstance.

The second part of the question (can the court tailor the sentence specifically for the purpose of imposing a sentence that will involve no time in adult custody) has to be answered with very considerably more caution. As Howie J said in TG, it would be an error for the court to select a sentence solely for the purpose of avoiding a period in adult custody. Whatever sentence is imposed, wherever it is to be served, must meet the prime sentencing objective of recognising the objective gravity of the crime. If that is achieved, however, I am of the view, consistently with the approach taken in respect of sentences served in protective custody, that some, although limited, weight can be given to the nature of the offender’s custody.”

The other two justices disagreed with this approach noting that it ought never occur that a sentencing court adjusts a sentence to achieve a particular custodial outcome [per Howie J in TG and as set out in the reasons of Whealy J]. 

Although in the minority on this point, it seems the judgement of Simpson J has some work to do, particularly in the courts that regularly sentence juveniles. Simpson J’s judgement is typically careful and thorough and addresses the tension that might be observed to exist with the comments of Howie J in TG (as set out above). This is an important case.

A Kernaghan.

Law Update: Trial Summing Up

At the end of a trial in the District or Supreme Court, after each party has addressed the jury, it falls to the Judge to provide a summary of the evidence. Precisely what the summary should be has been the subject of instruction in the case of R v Zorad (1990) 19 NSWLOR 91 per Hunt, Enderby and Sharpe JJ:

“A summing-up should, in every case, not only include directions as to the ingredients of the offence which the Crown has to establish and an explanation of how the relevant law may be applied to the facts of the particular case, but it should also include a collected resume of the evidence which relates to each of those ingredients and a brief outline of the arguments which have been put in relation to that evidence [….]”

After critically observing the tendency of trial judges not to comply with such a rule, their honours noted this:

“It is not a compliance with that rule simply to read the relevant part of the section to the jury and then to read out the evidence which has been given chronologically, starting with the first witness and going through the evidence in chief, the cross-examination and then re-examination of each witness before turning to the next witness and so on. The idea of a summing-up is to present for the jury the issues of fact which they have to determine.”

This approach was approved in R v Tillott (NSWCCA, 8 April 1991, unreported).

Following those cases, the NSW Parliament ammended the legislation to provide that a trial judge need not summarise the evidence given in the trial if of the opinion that a summary is not necessary (Section 161 of the Criminal Procedure Act).

The recent case of Buckley v R; R v Buckley [2012] NSWCCA 85 affirms the good sense of the rule in Zorad while noting that, in some circumstances, it will be right for a judge not to summarise the evidence:

It is easy to state the basic requirements of a proper summing up: it is less easy to apply them in particular cases. Especially in times where every word uttered in the course of a trial is recorded and transcribed, there is considerable pressure on a trial judge to err on the side of excessive caution in referring to the evidence and the issues, lest any misstatement or omission be seized upon by counsel for the purposes of an appeal. The safest course, it may be thought, is to deal with the evidence as it has unfolded, in a largely chronological fashion. Unfortunately, that course is likely to be of less help to the jury than the more demanding course of identifying issues in dispute and relating relevant evidence to each issue in turn. It is clear that it is the latter course which must generally be adopted.” [per Basten JA at 14].

The court has also noted with approval the recent judgement of  El-Jalkh v R [2009] NSWCCA 139 James J (Spigelman CJ and Simpson J agreeing), where (after referring to Zorad and the statutory provision) it was observed that:

“It is clear from the authorities to which I have referred that it is an essential function of a trial judge in summing-up to a jury that the trial judge, having identified the issue or issues in the trial, put the defence case on that issue or those issues and that the trial judge make such references to the evidence as may be required to enable the jury properly to understand the defence case and that it is not sufficient for the trial judge to say to the jury that they should give consideration to the arguments which have been put by counsel.”  [at 147].

A Kernaghan.

See Jade Law for more information on recent Australian and New South Wales case law.

Women at the Victorian Bar

11 women and 20 men joined the Victorian barrister ranks after completing the Bar Readers’ Course, taking the total number of barristers in Victoria from 1875 to 1906. The newly-appointed barristers come from a range of employment backgrounds and include a speechwriter, a television scriptwriter and an event manager.

Full article from Lawyers Weekly here.

No Rest for In-House General Counsel

The High Court ruling against the ex-general counsel of James Hardie means that it is now harder for general counsels to avoid liability, the country’s leading in-house legal body has said.
On 3 May the High Court handed down its judgment with regard to alleged breaches of the Corporations Act 2001 against eight former office holders of James Hardie.
The High Court found that Peter Shafron, the former general counsel and company secretary of James Hardie, had breached the Act by failing to discharge his duties as an officer of the company with the degree of care and due diligence that a reasonable person in his position would have exercised.
Baker & McKenzie corporate advisory partner James Halliday told Lawyers Weekly that the High Court decision has significant implications for general counsels.
“The Shafron decision is saying that a company officer can’t act in two roles (general counsel and company secretary),” said Halliday. “They can’t run around the other side of the desk and put on a different hat.

Full article from Lawyers Weekly here.


In a case before the Local Court of New South Wales we successfully applied to the court for the dismissal of an application for an Apprehended Violence Order being litigated by NSW Police Prosecutors on behalf of an officer who had applied for the AVO.

We acted for a step-father who the Police had taken an AVO against purportedly on behalf of two very-young children. The basis of the AVO were allegations made to the Police by the maternal grandmother of the children who. This triggered an investigation that went on for a number of weeks, during which time the children’s parents not only did not know where their children were, they had to make an urgent application to the Court for orders to have the children returned.

Despite an apparently exhaustive investigation by Police (including interviewing the children without their parents consent) nothing further came of the matter. No criminal charges were bought against the parents and no evidence was provided supporting the original AVO or the subsequent conduct by Police of the matter.

On the final time the matter was before the court, Police Prosecutors said that they had no instructions from the Police Officer in Charge of the investigation (commonly referred to as an “OIC”) yet they sought to have the matter set down for a hearing.

We successfully petitioned on behalf of our client that the AVO should be dismissed for want of prosecution by the NSW Police. We made submissions to the court that the conduct of Police in failing to properly prosecute the matter combined with their lack of instructions and their stated desire to see the matter proceed to a hearing nonetheless amounted to misconduct or was at the very least improper use of court process.

The court noting the history of the matter and a previous Magistrates order that there be no further adjournments, dismissed the application on the spot.

Aaron Kernaghan.

Nothing Exceptional

This week in Wollongong Local Court, Magistrate Michael Stoddart refused to order that the prosecution pay the legal costs of a man who Police had bought an AVO against only to have it dismissed after they couldn’t get any evidence or information from the Police.

The AVO had been bought by Police who had been convinced in January 2012 by the man’s estranged mother-in-law that his step children needed protection from him. Despite the children being interviewed by Police and the matter apparently being investigated, no charges were laid and no evidence provided in relation to the AVO. Three months of trying to defend his name and reputation later, the Court dismissed the AVO because the Police had no instructions or evidence and could not take the matter further.

In my opinion, it is proper that in cases such as this, the Police pay the costs that they have put a private citizen to. In this case, Magistrate Stoddart judged that nothing in the conduct of Police was improper or unreasonable nor was the case in any way exceptional and so declined to order that Police have to pay the costs.

That a person can be put to enormous financial expense by Police only to have the whole thing dismissed is bad enough. That a court could think such circumstances might not be exceptional is even worse.

Aaron Kernaghan.

Precedent Suitable for a Nation of Sheep.

A speech caught my eye, by Lionel Murphy at the  Labor lawyers Conference in Adelaide in 1979 (with thanks to Bernadette for the referral):

Doctrine of precedent eminently suitable
for a nation overwhelmingly populated by sheep.

“My fellow lawyers, and in that I include the distinguished legislators who are here this evening.
The law and its procedures in most respects are out of date, inefficient and often unjust. This is known by everyone, except 90 per cent of the bar and 95 per cent of the judges.
The civil and criminal laws are complex and bewildering to the average person, even specialists have difficulty in understanding some of them. Defamation, privacy, corporate crime, industrial law and a host of other areas scream for change. Property rights are still preferred to civil, political and personal rights.
The out-of-date laws and procedures are not only unjust to individuals and groups, they also result in a huge burden of social cost. Most lawyers are resistant to change. Many of them are resolutely determined to oppose any change. Only public pressure will bring about the necessary changes.
Let us turn to some of the areas whee change is necessary. 
The criminal justice system in Australia and not only in Australia, is a disgrace to civilised society.
We know that at the lower end of the scale there are pressures to plead guilty, which prove irresistible to most persons caught in the system. It’s, they say, easier for a camel to go through the eye of a needle, than it is for a rich man to go to jail.
The committal proceedings we have are a public scandal, especially in the area of corporate crime. Committal proceedings are dragged out, public time is wasted and an enormous amount of public expense is incurred and very often, where frauds have been perpetrated against the public, little or nothing happens. We can provide better procedures than this.
In the indictable matters, trial judges often have to give directions, which are absurdly complex and overloaded with detail. The judges are often engaged in technical exercises that they hope will satisfy the Court of Criminal Appeal rather than illuminate the minds of the jury.
The direction that a trial judge is now supposed, for example, to give on self-defence could not be understood by a jury of 12 intelligent corporate lawyers, and I suspect not by most judges who have to administer that branch of the law.
A distinguished law officer in South Australia appealed to the High Court for some enlightenment on this area, but those present, including myself, felt unable to assist him.
It is really regrettable that the legal system can be viewed  with such a lack of confidence by the public that it achieves little of its aimed goals and it falls with great severity on the poor in the community and those least able to defend themselves.
Corporate frauds against the public are often committed with the assistance of accountants and lawyers, who close their eyes to what they know is happening.
There seems to be some kind of magic, which prevents the law on aiding and abetting or counselling being applied to those professionals without whose assistance the crimes could hardly be successfully carried out.
The United Nations Congress on prevention of crime and the treatment of offenders was due to be held in Sydney in 1980. This has now been cancelled by the Australian Government. Some think that Australia does not need to learn anything about the treatment of offenders and perhaps our history shows that that may be correct.
Two hundred years ago Europeans came to a country inhabited by peaceful people living in harmony with their environment, with an ancient system of law and a highly developed system of social justice. They had no need of the goods, the law, or the ideas of the invaders.
For these offences the British Government took away their land, wiped most of them out and brutalised and degraded them.
We continue to degrade them, to discriminate against them and to deny them elementary human rights. They are only one per cent of our population.
Fifty per cent of our population are women. The women of Australia were once in the forefront of the struggle for emancipation of women and the struggle for civil and political rights
Whether or not this was an offence, we have systematically denied them civil and political rights, sometimes overtly and by means of law, but very often covertly.
Consider the judiciary. There has never been a woman on the High Court or the Federal Court. Recently complaints were made that no judge had ever come from the three smaller states.
But, the fact that no woman has ever been appointed rouses no comment.
The community tolerates sex discrimination, men tolerate it, women tolerate it. One only has to go to a racecourse and see that in the official enclosures there are invisible lines across which women must not pass. The control of that, of course, is in the State legislatures, often in the State governments, but nothing is done about it.
If we turn to other areas where reform is needed, there are signs in Australia that we are about to repeat the unfortunate experience with labour injunctions and contempt citations against trade unions issued by ordinary courts.
The union injunctions brought the courts into such real contempt in the United States that their intervention was outlawed by legislation, but indications here and elsewhere are that the lesson has not been learnt by the experience of others, but is to be learnt by ourselves.
In the area of tax avoidance, this is the rich man’s province.
Some of the best brains of the law devote their energies to tax avoidance. Some of the work of the legislators is designed to overcome the work of the tax avoidance experts, but anyone conversant with the field knows that the Treasurer is standing there like King Canute.
He may hold back the waves immediately in front of his feet, but no more. While the tax laws are interpreted in the way that they have been it’s not possible for legislation to overcome tax avoidance.
As fast as one loop-hole is closed, 20 will be able to be opened and the answer, as everyone knows, is not how the law is drafted but how it’s interpreted.
I move to the doctrine of precedent, and that’s a favourite doctrine of mine. I have managed to apply it at least once every year since I’ve been on the bench.
The doctrine of precedent is one that whenever faced with a decision, you always follow what the last person did who was faced with the same decision.
It is a doctrine eminently suitable for a nation overwhelmingly populated by sheep. As the distinguished chemist, Cornford said, “the doctrine is based on the theory that nothing should ever be done for the first time”.
The vast part of the common law, which is the area not occupied by constitutions and legislation, is still judge made. It’s called the common law, which disguises its true nature that it is judge made, or decisional law.
The judges having made the law, or it having been made by their predecessors, they are entitled to bring it up-to-date, but they often neglect to do so under the excuse that only parliament can do this.
This excuse is contradicted by 700 years of the history of the common law and if it were not so we would still be deciding cases according to the law of Stephen I.
The myth that judges do not make law is still subscribed to by many judges. The community is entitled to ask how then has the common law changed beyond recognition in areas not controlled by statutory law?
There are many great judges who repudiated this myth. There was the great judge, Coke, who is well remembered for his career. He commenced as a controversial Attorney General and went on to become a revered judge.
In modern times, many luminaries, such as Justice Holmes and Lord Denning, have laughed at the myth that judges do not make law. It’s been described as infantile or puerile, and so it is.
It should be admitted judges can change the law in the areas left to them by constitutions and legislation. They should not change it by stealth; they should change it openly, and they do not have to change it by small degrees; they should change it as much as they think necessary.
It is intellectually dishonest to change the law by distinguishing cases and other devices, when what is called for is a frank repudiation of the ground of the previous decision and an acknowledgment that a new approach should be taken.
Essentially this is a non-democratic process, because it is left to a group of appointed people. This is largely unavoidable because the representative system is not really capable of dealing with the day-to-day adaption of the law in certain areas. That’s the lesson of history.
Being aware of the undemocratic nature of it, it is essential that the appointed law makers be exposed to the democratic process. Their decisions should be freely available and the reasons publicised and subjected to informed scrutiny and criticism, and to the legitimate pressure of public opinion.
The social function of the judges needs to be understood, studied, criticised and improved.
The myth that the judges cannot make law is readily used to justify the judges not making law, and if that were accepted that would be a triumph of conservatism over what has proved to be essential to the evolution of our society.
If one looks back at what’s happened to society, one sees that it has moved from the feudal system through the mercantile and the industrial revolution and into our modern complex society.
Much of the change has been accompanied by vast changes in the law and those vast changes have, for the most part, been accomplished by judicial decisions. In some cases, and in many cases, the law lagged behind the social changes while in other areas, the law was in advance, and helped to promote the social changes.
Take one example. Mansfield was well-know for taking out-of-date commercial laws of Great Britain, and going to the merchants and finding out what their practices were and almost single-handedly rewriting the commercial law of Great Britain.
That was instrumental in the evolution of London to become the commercial centre of Europe and in its way an important factor in the enormous growth of the British Empire.
The growth of trade, the growth of imperialism was made possible, to a large extent, by the fact that Britain was this commercial centre, that it had a set of sensible laws and others wanted to deal with it, and that trade and commerce could flourish.
There are many examples throughout the history of the law of the sensible adaptation of the laws to the necessary changes in society. 
Regrettably in this century, one has seen the large amount of abdication of judicial responsibility in Great Britain. From 1898 to 1966 the British judiciary contended that once the law was made, in all events by the House of Lords, it was not changeable other than by parliament.
That brought about a tendency to freeze the law and we have suffered in Australia by our tendency, as part of the post-colonial syndrome, to follow this trend even more zealously than did the British.
The response of the legislatures to the judges declining to adapt the law has been to set up law reform commissions. This is one of the main reasons for the establishment of the Australian Law Reform Commission. But had the judicial function been properly exercised, I think it would have been unnecessary to have the law reform commissions, which proliferate in Australia.
However, it gives the public a forum through which to press for changes in the law and enables them to participate in the legal process in the areas, which were formerly the preserve of judicial decision.
In another respect the public has had an important part to play, which is now diminishing. The public participation in the judicial process is in two ways.
One is very indirect and that’s in the appointment of the judges by the legislature and executive representatives of the people.
The other is the jury system and that’s an extremely important function of the people in the judicial process.
Regrettably again, that area of participation is diminishing and it’s an anti-democratic process which is being pursued. The argument for taking away the juries in corporate crime is said to be that the cases are too complex for juries to understand. I believe that’s nonsense.
The traditional approach of the law has been that if you have a complicated subject matter, the answer is not to do away with the juries and have decisions by experts, but to bring experts into the court-room and give the evidence by experts to the jury.
No corporate fraud is more complicated than was a poisoning case, the trial of William Palmer, for strychnine poisoning. If you want to run through the history of the law you will find again and again cases of the greatest complexities which were handled and handled admirably by the jury system.
The trend towards doing away with the jury has very strong implications, which are inimical to the freedom of the people.
We need definition and development of the law in may areas – childrens’ rights, prisoners’ right, those of other disadvantaged groups.
We need community legal education beginning in the schools; we need provision of legal aid as an instrument to equalise opportunity.
This will require change in the attitudes of academics, of practitioners, government as well as private, and of judges.

The impetus for change will not come from the establishment lawyers, it will come from lawyers like you. It is worthy of the efforts of Labor lawyers; it is a labour of love.”

No More Lunch Break?

Article from Lawyers Weekly:

“Phew! US law firms can breathe a sigh of relief after a US Supreme Court ruled that their lawyers can continue to beaver away for the billable hour without taking a lunch break.

As CIO Today reports, last week the California Supreme Court unanimously ruled that employers are under no obligation to ensure that their employees actually take their lunch break to which they are legally entitled.

The case arose after lawyers acting on behalf of workers argued that abuses are routine and widespread at companies which do not ensure employees take their designated lunch break. The lawyers claimed that employers take advantage of workers who do not want to leave their colleagues during busy times.

While most lawyers would be familiar with the unspoken expectation that they work through their lunch break (and their breakfast and dinner in many cases) to meet their billable targets, now it has been confirmed that law firms don’t have to stop it from happening.

In a win for law firms across the state, the Supreme Court ruled that requiring businesses to order breaks would be unmanageable and that the decision should be left to workers.

Well, Folklaw can only laugh at the thought of a lawyer deciding to walk out of the office to take an hour for lunch while their colleagues give them piercing looks of disapproval as they do what it takes to clock their seven-odd hours of billable work.”

Time for another Royal Commission in NSW

In 1995 a groundbreaking and significant review into Police corruption and practices in general was conducted. Known as the Wood Royal Commission it delved into the depths of Police misconduct, ultimately leading in no small part to the resignation of then Commissioner Lauer and paved the way towards an overhaul of the force, the employment of greater professionalism and improved conduct protocols across the board.

Today NSW Police have some of the best educators, training and faculty development at the Police College and again throughout an officer’s career.

However the incident on the weekend in which two boys were shot by Police raises sufficient question for there to be a review conducted, by a senior judicial figure, as to the use of violence by NSW Police.

In recent months, there has been a number of incidents involving Police violence. It is timely to remind those young officers in the force, whose memory may not stretch back so far as 1995, of the valuable lessons learned and the changes (for the better) that Commissioner Ryan implemented.

What of the Police Integrity Commission I hear you say? It is irrelevant. I have acted for a client who was thrown against the wall sufficiently to cause his apparent unconsciousness. When reported to the PIC, their response was that it wasn’t sufficiently serious for them to investigate.

Take the hands out of the PIC and put it back in the hand of Justice Wood, the fellow who’s skill and compassion sought out wrong and set the state on the path to making it right.

For more coverage see this morning’s article in the SMH from whence the above picture came.

Aaron Kernaghan.