The Victorian Attorney-General, Robert Clark, has asked the Victorian Law Reform Commission to “undertake a detailed inquiry into the role of victims of crime in the criminal trial process”. It is 20 years since Victim Impact Statements were introduced to give victims a more active role in the sentencing process, but Mr Clark says it is time for a “fundamental examination of the roles that victims should be able to have in the various stages of the criminal trial process, ranging from decisions about prosecutions through to sentencing and the making of compensation orders”. Although the legislature has finished sitting ahead of the November election, the executive continues to govern, allowing the Attorney-General to make this referral. A formal “caretaker period” begins at 6pm on Tuesday, 4 November, and after that point decisions that might affect the incoming government should not be made.
ABC Radio National’s Law Report this week focussed on the representativeness of juries. The first segment looked at the tactic of “black striking”, in which American lawyers try to remove African American jurors: “African Americans are three times more likely to be cut than white Americans”. Next, it turned to Alice Springs, and an NT Law Reform Committee report which acknowledged under-representation of Aboriginal people on juries was “clearly an affront to the principle ‘equality before the law’, a principle accepted as basic to this nation; the more so when translated into equally basic Australian such as ‘mateship’ and ‘fair go’.” It concluded, “There is no magic wand to be waved, no miraculous incantation to be pronounced… One must descend into the harsh world of reality and practicality; and that points inevitably to the obvious and comprehensive but long-term solution; education.” In the final segment, the chair of the VLRC explains its recent recommendation that peremptory challenges should be scaled back to prevent gender discrimination.
A new Practice Note issued by the Supreme Court is intended to reduce delays between committal hearings and trial. Under the new guidelines, the Magistrates’ Court will be required to email documentation to the Supreme Court immediately after committal, and “where feasible, the [post-committal directions hearing] may be heard in the afternoon on the same day and otherwise will be heard at 9:30 am the following sitting day.” The new guidelines also require the parties to be ready at the first directions hearing to advise the Supreme Court about issues such as whether the accused is negotiating on a plea, the availability of witnesses, and the estimated length of the trial.
The Victorian Law Reform Commission’s Jury Empanelment report was tabled in parliament on Wednesday. It made a number of recommendations, such as calling jurors by number only (not by name), ending the practice of jurors “parading” past the accused, and allowing up to 15 jurors to deliberate instead of additional jurors being “balloted off” at the end of the trial. The most significant recommendation was to reduce the number of peremptory challenges. The VLRC said that on current statistics, “For every man challenged, two women are challenged”, and as a result “women make up on average only 44 per cent of jurors on criminal trials”. Reducing the number of peremptory challenges would limit their impact on the gender representativeness of juries. The Government will now consider the recommendations before deciding whether to implement them.
In June, two academics from the Sydney University claimed that “too much weak, speculative and unreliable opinion is allowed into criminal proceedings”. They said Honeysett v The Queen was “an opportunity for the High Court to provide critically important guidance on the admissibility of expert opinion evidence in criminal proceedings under the now (almost) Uniform Evidence Law (‘UEL’)”. The High Court handed down its ruling this week. Under the UEL (which includes the Evidence Act 2008 (Vic)), expert opinion is admissible as evidence as long as it is based on specialised knowledge. In Honeysett, a professor of anatomy compared CCTV video to photos of the accused. The High Court ruled this so-called “body mapping” was not based on expertise: “his conclusion that Offender One and the appellant each have oval shaped heads … was based on Professor Henneberg’s subjective impression of what he saw when he looked at the images”. This was a comparison the jury could make for themselves. Furthermore, presenting “body mapping” as expert evidence could mislead the jury: “the use of technical terms … gave the unwarranted appearance of science to the prosecution case” and was unfair to the defendant. The High Court ordered a new trial.
Victoria’s culturally-appropriate Indigenous sentencing system expanded again last week, with the launch of a Koori Court division at the Melbourne Magistrates’ Court—the busiest court in the State. Attorney-General Robert Clark said, “The Koori Courts initiative has helped improve justice outcomes for the Koori community for the benefit of all Victorians. Not only have Koori Courts provided more successful outcomes in individual cases, they have improved the engagement of Koori communities with the justice system and have helped build capacity within Koori communities.” Prior to the last election, Denis Napthine described such specialist courts as “apartheid of the justice system in Australia”, but following an Ombudsman’s report indicating early success, the Government decided to keep the system in place.
ABC Radio National has rebroadcast a 2012 documentary, Wooing the jury, about the life of a criminal barrister: “in this program we go under the barristers’ horse hair wigs to hear about their struggles with ethical dilemmas, lying clients, righting injustices, long work hours and all the after-effects.”
A Queensland judge has approved a series of questions to be asked of potential jurors in the trial of a man accused of murdering his wife. Before they are empanelled, they will be asked whether they lived near the family, whether they contributed to a fund to help find the killer, and whether they have ever expressed a view about the case. Queensland is the only State in which pre-trial questioning of jurors is allowed; however, as part of its inquiry into Jury Empanelment, the Victorian Law Reform Commission asked, “Should the judge or the parties have the ability to question prospective jurors to determine their impartiality in certain circumstances?” The VLRC’s final report was due on 31 May, and will be made public after it is tabled in parliament.
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.”
WorkSafe, the agency that regulates workplace safety in Victoria, has charged two companies over a wall collapse that killed three pedestrians last year. The builder, Grocon, and a signage company it hired have been charged under section 23 and section 26 of the Occupational Health and Safety Act 2004 (Vic). According to the Herald Sun, WorkSafe alleges that the companies failed to obtain a permit or conduct appropriate risk and engineering assessments before attaching an advertising billboard to the wall. It later collapsed in high winds. The companies face up to $9 million in fines if the allegations are proved.