Court of Appeal to consider “guideline judgment”

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.

Schrödinger’s VCAT: both a court and not

Is VCAT a court? Yes and no, the Court of Appeal ruled in Subway Systems Australia Pty v Ireland [2014] VSCA 142. The case was about a Subway restaurant franchise arrangement, including an arbitration agreement to deal with any disputes that arose. The Commercial Arbitration Act 2011 (Vic) prevents “a court” from hearing a matter that is covered by an arbitration agreement. The franchisees tried to take a retail tenancy dispute to VCAT, but Subway objected. The Court of Appeal majority judges held that parliament intended the law to “prefer[] arbitration of whatever kind has been agreed between the parties over State sponsored dispute resolution”, and the word “court” should be interpreted broadly in this context. So VCAT is usually considered to be a tribunal, but in some specific situations it is treated as if it was a court.

Qld cops accused of spinning stats

The Queensland Police Service has been accused of attempting to influence politics by releasing misleading crime statistics during a by-election campaign. The Police Commissioner claimed crime had fallen by 10% in the past year, but criminologist Professor Kerry Carrington claimed this was based on “cherry-picking”: “When you look at the whole database there’s only been a very minor drop of around 2 per cent.” Terry O’Gorman, chair of the Australian Council for Civil Liberties, said it was reminiscent of the corrupt Bjelke-Petersen Government: “During the ’70s and ’80s police used to regularly release crime statistics that were wrong in order to support the government of the day.” In Victoria, a similar scandal around the 2010 election led to the establishment of an independent Crime Statistics Agency, which will begin on 1 January 2015.

HIV-specific crime to be amended or repealed

Regardless who wins the next Victorian election, section 19A of the Crimes Act 1958 (Vic) will be on their legislative agenda. The provision makes it an offence to “intentionally causes another person to be infected with a very serious disease”. It was added in 1993 in response to community fears about an AIDS epidemic, and “very serious disease” is defined to only include one disease: HIV, which causes AIDS. Health experts say section 19A is counterproductive because it stigmatises people with HIV, discouraging them from seeking treatment. At the 20th International AIDS Conference, held in Melbourne earlier this month, the Victorian Health Minister, David Davis, announced the government’s intention to amend section 19A”. This was cautiously welcomed by delegates at the conference, though they still had concerns; the Victorian AIDS Council said: “We are concerned by … the possibility that section 19A could be converted into a general provision covering other infectious diseases. We believe that would be a step in the wrong direction.” Soon afterwards, the Shadow Health Minister, Gavin Jennings, promised to repeal the section altogether.

Magistrates’ Court expands mediation programme

In 2007, the Magistrates’ Court introduced a pilot programme to refer defended civil cases up to $40,000 for mediation, at no cost to the parties. It began at Broadmeadows, and has since been expanded to a number of other courts. Under a new practice direction, that programme will be extended to Heidelberg from 1 August 2014. The mediatior will be provided by the Dispute Settlement Centre of Victoria. Section 108 of the Magistrates’ Court Act 1989 (Vic) gives the court the power to refer civil cases for confidential mediation in the hope that they will reach an agreed settlement or at least narrow the issues in dispute.

Prison rehabilitation questioned

The Victorian Ombudsman, Deborah Glass, has launched an investigation into the effectiveness of the prison system in rehabilitating offenders. “According to the Australian  Bureau of Statistics, in 2013 more than 50 per cent of Victoria’s prisoners were repeat offenders,” said Ms Glass. The inquiry will focus on rehabilitation opportunities during imprisonment, as well as the transition back into the community. Prisoners’ families have suggested the increasing prison population is making it harder for offenders to access the help they need. The inquiry will build on other work being done in the area; the previous Ombudsman produced a scathing report on dangerous overcrowding in Victoria’s prisons, while the Australian Institute of Health and Welfare questioned the effectiveness of transition programs to help prisoners adjust upon release.

Koori Court expands to Melbourne

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.

Shearing cruelty exposed, but “ag-gag” laws on the way

Animal rights activist group PETA has released a shocking, graphic video of shearers abusing sheep: “The footage shows the workers violently punching sheep in the face, stomping and standing on the animal’s necks, and also beating them in the face with electric clippers and even a hammer.” They say the incidents were secretly filmed in Australian shearing sheds over the past year, and are calling on the RSPCA to prosecute the offenders, and on consumers to stop buying and wearing wool. At the same time, the Victorian Farmers Federation is lobbying for laws to crack down on activists secretly filming on farms—known in the US as “ag-gag” laws—and the Napthine Government has promised to introduce legislation this year.

Victoria’s biggest civil trial settles for $500m

The Supreme Court has announced that “[a]fter more than 200 court sitting days, testimony from 100 expert and lay witnesses and in excess of 10,000 case documents admitted to evidence, Victoria’s biggest civil trial—the Kilmore East-Kinglake Black Saturday bushfire class action—has reached a settlement.” The settlement of $500 million will need to be approved by the court to ensure a fair process for dividing up the funds between more than 10,000 members of the class action group. The plaintiffs argued that the negligence of power companies and the State government exacerbated the impact of the bushfire. Despite the settlement, the defendants deny responsibility.

Deaf jurors in mock trial experiment

Researchers at the University of NSW will conduct a mock trial this week to investigate the practicality of allowing deaf people to serve as jurors with the assistance of Auslan interpreters in the court and during deliberations. Professor Sandra Hale noted that “other countries already have them”, and said the trial would “find out what impact having a deaf juror in the deliberation room and the trial will have on the rest of the participants”. The Australian deaf community has been lobbying and running test cases for the right to participate in jury service. In 2006, the NSW Law Reform Commission recommended that “people who are blind or deaf should be qualified to serve on juries, and not be prevented from doing so on the basis of that physical disability alone”; instead, a decision should be made on a case-by-case basis. The Victorian Law Reform Commission is currently conducting an inquiry into jury empanelment, but it observed that “Issues associated with the eligibility of [deaf] persons to serve on juries are beyond the scope of the Commission’s terms of reference.”