The Court of Appeal will today hear Victoria’s first application for a guideline judgment under Part 2AA of the Sentencing Act 1991 (Vic). Because sentences are tailored to individual offenders, it can be difficult for judges to use past cases to guide future decisions. A guideline judgment allows the Court of Appeal to provide a broad outline of principles and criteria to be applied in all cases. The Judicial College of Victoria explains: “Sometimes the guideline judgment represents an encapsulation of current practices, and its value lies in the marshalling of unwieldy primary source material. Other examples reflect an attempt to impose order on the chaos of inconsistent sentencing decisions.” Although the power to issue a guideline judgment was legislated in 2003, it has never been used. In the case to be heard tomorrow, the Director of Public Prosecutions has asked for guidance about the imposition of Community Correction Orders, a sentencing option that was introduced in 2012. Because this sentencing option is so new, judges do not have a body of precedent to guide their decisions. A guideline sentence would provide immediate clarity about how CCOs should be used.
In today’s Lee v The Queen judgment, the High Court unanimously ordered a retrial over drug and firearms charges, in an important decision upholding the privilege against self-incrimination. Two men had been forced to answer questions by the NSW Crime Commission under special powers that suspend the “right to silence”. The men were later charged by the DPP, and the prosecutor obtained a copy of the Crime Commission transcript, breaching a suppression order. The High Court ruled: “It is a … departure in a fundamental respect from a criminal trial which the system of criminal justice requires an accused person to have, for the prosecution to be armed with the evidence of an accused person obtained under compulsion concerning matters the subject of the charges.” Barrister Edward Greaves points out that the decision will force all investigative bodies with compulsory examination powers to ensure they keep their records out of the hands of prosecutors. The High Court said if leaks occurred, trials should only go ahead when “another prosecutor and other DPP personnel, not privy to the evidence, were engaged.”
The Victorian Law Reform Commission has launched its inquiry into the “forfeiture rule”, following a reference from the Attorney-General. When a person unlawfully causes another person’s death, this common law principle says they forfeit any inheritance, insurance policy, or payment that they would otherwise have received. The VLRC explains the concern about the rule: “In Victoria, the rule applies equally and inflexibly in all circumstances but the outcome can be harsh. Both a premeditated murder carried out with the intention of obtaining a financial benefit, and a suicide pact in which one of the parties survived, would attract the application of the rule.” In addition, because the rule applies in civil proceedings, “The rule may be applied to a person who has been acquitted, or has not been prosecuted at all, if it is proved to the court, on the balance of probabilities, that the person unlawfully killed the deceased.” VLRC has set up a forfeiture quiz to highlight problematic scenarios.
“If a woman is assaulted or killed and police don’t do all they can to protect her from attack, should the police be held liable in negligence?” In Australia, the law is unclear. The NT police reached a confidential out-of-court settlement with Tiffany Paterson, whose complaints were ignored by police before she was beaten and slashed in the face by her former partner. In WA, the family of Andrea Pickett are suing the police for their failure to prevent her being brutally murdered in front of her daughter. Australian lawyers are attempting to develop this area of the common law because in the UK, the High Court awarded damages to two victims of a serial rapist. It held that “a series of systemic failings” breached “a duty imposed upon the police to conduct investigations into particularly severe violent acts perpetrated by private parties in a timely and efficient manner”. However, the UK claim was brought under the Human Rights Act 1998 (UK), and no equivalent legislation exists in Australia.
The High Court is hearing the case of Norrie, an androgynous person arguing their birth certificate should record their sex as “non specific”. In this interview, Norrie explains the background to the case.