1×02: Idle Persons and Incorrigible Rogues

In this episode of Hearsay, I’ll dig in to the issue of homelessness, looking at how a media campaign can lead to new criminal laws, how we have criminalised poverty and homelessness through history, and how the City of Melbourne is empowered to create new crimes (even if the Lord Mayor doesn’t really understand that’s what he is proposing). Are we returning to the old days of locking up “idle persons” and “incorrigible rogues”? Continue reading “1×02: Idle Persons and Incorrigible Rogues”

1×01: Mr Trumble goes to Washington

In this episode of Hearsay, I’ll take a look at the international legal dispute that led to our Prime Minister being dubbed “Mr Trumble”. I’ll also talk about some of the other controversies surrounding Donald Trump’s fledgling presidency, and explain how they have parallels with issues in Australia’s legal system. Continue reading “1×01: Mr Trumble goes to Washington”

Welcome to the Hearsay podcast

Welcome to Hearsay, a podcast about law and legal issues for students and everyone else.

The first episode is coming soon…

Each episode, I will present a selection of news updates and discussion of legal issues. The show will generally follow this format:

  • Summary Matters — Brief information about a selection of legal news that is important, but doesn’t require detailed discussion or explanation. (Summary matters are less serious criminal cases, heard in the Magistrates’ Court.)
  • Examination-in-Chief The main topic each week will be explained or discussed in more detail. I will try to provide background information, context, and my own views about the merits of the issue. (Examination-in-chief is the main questioning of a witness by the party who called them.)
  • Learned Friends — There are a lot of other great sites out there, and each episode I’ll give you a recommendation and a brief explanation why I like it. (In court etiquette, counsel refer to other barristers as “my learned friend”.)
  • Address in Reply — I welcome your feedback! Please, leave a comment or send me an email to robert@hearsaypodcast.com, and I will try to respond directly or in the next episode. You can also leave a voice message to be included in a future episode! I would love to hear your thoughts, suggestions for topics, or any questions you have. (At the start of each parliamentary session, the Governor or Governor-General makes a speech setting out the Government’s agenda; the Address in Reply is a formal motion that allows MPs to respond.)
  • Adjournment — I will wrap up each episode with some light-hearted legal news, and remind you about how to find the podcast and get in touch to discuss what you’ve heard. (At the end of a court hearing or parliamentary sitting, proceedings are adjourned to be recommenced at a future time.)

The show notes for each episode will include links to relevant sources, either referred to in the episode or for further background. Even if you don’t listen to the podcast, I hope you will find these links useful.

What happened to Ignorantia Juris?

First, the Latin title was too much of a mouthful, which made it hard for people to find the blog. Second, it went into an unofficial hiatus after my daughter was born, and now that life has settled into a new rhythm, I’m keen to try something new.

So Ignorantia Juris has made way for the Hearsay podcast.

I will continue to categorise the podcast episodes according to the key topics in the VCE Legal Studies study design, so that you can search them for revision, and the show notes will still contain the key links if you don’t want to listen to a podcast.

If you’re looking for the old blog posts, they can all be found in the Ignorantia Juris archives.

But please — subscribe to the podcast, follow on Twitter for a regular stream of relevant links, and let me know what you think.

High Court warns appeal courts to respect the role of the jury

The High Court has reinstated a murder conviction in the high profile case of Gerard Baden-Clay, confirming an initial jury verdict. Baden-Clay was charged with murdering his wife in 2012 after she discovered he was having an affair. He was tried in the Supreme Court of Queensland in 2014. The jury convicted him following a hearing that lasted more than a month, and he was sentenced to life imprisonment. Baden-Clay appealed the jury verdict, arguing that it was “unreasonable, or can not be supported having regard to the evidence”.

During the appeal, Baden-Clay’s lawyers argued that the jury could not rule out the possibility that their client had an altercation with his wife and accidentally killed her. This would mean they could not find, beyond reasonable doubt, that Baden-Clay had the required mens rea for murder (that is, intention to kill or seriously injure the victim). The Queensland Court of Appeal accepted that argument and substituted a verdict of manslaughter.

The prosecution then appealed this decision to the High Court, arguing that the murder verdict should be reinstated. They said that while “the defence offered theories of suicide, overdose, a fall, drowning and alcohol as the cause, unintended or accidental killing by Mr Baden-Clay was not offered during trial”. In fact Baden-Clay had chosen to give evidence and denied any involvement with his wife’s death, which would rule out accidental death.

The High Court agreed with this argument. In the unanimous judgment of five justices, it found that Baden-Clay had chosen to testify that he had not had a physical altercation with his wife, and therefore “the only witness who could have given evidence to support the hypothesis gave evidence which necessarily excluded it as a possibility.” The jury could logically exclude the accidental death scenario, which meant their guilty verdict was not unreasonable.

Importantly, the High Court gave a strongly-worded warning that overturning a jury’s verdict should not be done lightly: “Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ … is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. … [A] court of criminal appeal is not to substitute trial by an appeal court for trial by jury.”

While the issue in this case was the concept of an “unreasonable” verdict under s 668E(1) of the Queensland Criminal Code, the High Court’s comments will be relevant in other jurisdictions. For example, the Victorian Criminal Procedure Act 2009 includes a similar rule for appeals in s 276(1)(a): the Court of Appeal “must allow the appeal against conviction” if the court is satisfied that “the verdict of the jury is unreasonable or cannot be supported having regard to the evidence” — in other words, if the appeal court agrees that the jury reached an impossible verdict based on the evidence presented at the trial.

The High Court has made it clear this power to overturn a jury verdict should only be exercised cautiously.

High Court battles prolix lawyers with new typographic rules

For many years, the High Court has had rules about formatting documents in Rule 1.08.01, including requirements that documents are printed single-sided A4 paper, with 2.5cm margins. The High Court Registry is notoriously strict in applying these rules.

Commencing on 1 July 2016, the High Court introduced new rules for special leave applications — including a tight limit on the length of the documents filed. Under the new Rule 41.01.3, “An application: (a) must not exceed 12 pages; and (b) must be typed in at least 12 point (Times New Roman or equivalent font size) with line spacing of 1.5 lines.”

Matthew Butterick is the author of Typography for Lawyers, a book explaining the principles of presenting attractive and legible text in legal contexts. He explains why these court rules exist: “Con­sis­tency of typog­ra­phy in court fil­ings helps ensure fair­ness to the par­ties. For instance, in juris­dic­tions that use page lim­its, if law­yer A sets his briefs at 12 point and law­yer B sets hers at 10 point, then law­yer B will get more words per page. Court rules about typog­ra­phy pre­vent abuse of these lim­its.”

However, he notes that “courts often require text to be set at 12 point—and some­times larger”, but that this does not guarantee uniformity because “the point-size sys­tem is not absolute—dif­fer­ent fonts set at the same point size won’t nec­es­sar­ily appear the same on the page”.

Perhaps Australian lawyers have been reading Broderick’s work. Richard Ackland reports that “some briefs have discovered a font that looks like 12 point, but in reality is closer to 10, which allows more words and argumentation to be crammed into the 12 pages at the required line spacing of 1.5.  This is why innovative thinkers at the bar are paid big bucks.”

This tension between lawyers and judges over the length of documents has a long history. In 1596, the UK Court of Chancery complained about a solicitor who filed documents “amount[ing] to six score sheets of paper [ie, 120 pages], and yet all the matter thereof which is pertinent might have been well contrived in sixteen sheets of paper”. As a punishment, they ordered that a hole be cut in the bundle of papers so that it could be worn around the lawyer’s neck while he was paraded “bare headed and bare faced, round about Westminster Hall, whilst the Courts are sitting, and [shown] at the bar of every of the three Courts within the Hall” — in addition to paying a fine and the defendant’s costs.

We are yet to see how the High Court will respond to counsel who adopt creative interpretations of Rule 41.01.3.

Annual debate about law graduate career prospects begins

As students begin their course selections for next year, the debate over the employment prospects of law graduates has resurfaced. With 19 universities opening new law schools over the last twenty-five years, the question of whether there are too many graduates for the available jobs has been an ongoing issue.

This year’s round of the debate was opened by Frank Carrigan, a senior lecturer at Macquarie University, who complained that “Law student numbers are out of hand”, and it is leading to an oversupply of graduates who can’t find work. “Thousands of students are undertaking a degree that will result in broken dreams.”

In a column for the Australian Financial Review, he wrote: “Nearly 15,000 finish their degree each year, and enter a market where there are only 66,000 solicitors. These graduate numbers far transcend the growth in the legal market. … Law deans are running a bait and switch operation. They hold out the promise of a legal career, while adding to the unemployment queue.”

Responding in the same newspaper, the Dean of the University of Melbourne Law School, Professor Carolyn Evans, rejected this criticism. She cited statistics from Graduate Careers Australia to argue that law graduates have strong prospects for employment and higher wages than many other fields:

  • “around 74 per cent of those who graduated from law school four months earlier and were available for employment were in fact employed. The national average for graduate employment is a bit under 69 per cent”;
  • “those with Bachelors degrees in Maths had an employment rate of 62 per cent, chemistry graduates a rate of 50 per cent and physics graduates a rate of 54 per cent”; and
  • “the average starting salary for law graduates is above the average salary for graduates of all degrees and in the top ten degrees by salary for recent graduates.”

However, it is important to note that many of these graduates are not working in the legal profession. Professor Evans says she speaks to graduates whose careers are “in business, the arts, policy, diplomacy and consultancy” — but she says the skills offered by a law degree made these careers possible.

The Legal Nomads website regularly publishes profiles of law graduates working in very diverse fields, from journalism and tax advice to curry evangelism and LEGO art. Universities are supporting this flexibility by offering double degrees in unusal combinations such as Law and Creative Writing.

Even within the legal profession, career opportunities and pathways are changing. The AFR reports that relatively young “millennial” lawyers are developing niche expertise and opening their own legal practices.

New VCAT fee structure adds Corporate and Concession rates

The Victorian Civil and Administrative Tribunal (VCAT) was established as a low-cost alternative to the courts for resolving civil disputes, but in recent years its fee increases have been criticised for undermining that mission. In 2013, fees for consumer cases increased from $39 to $132 and the number of applications fell by 15 per cent. Gerard Brody of the Consumer Law Action Centre said, “If the claim is less than a couple of thousand dollars then you might think the fee, together with the time involved with having to go to VCAT, is not worth the effort.”

The Andrews Government conducted a review of the tribunal’s fee structure to ensure its resources were allocated as effectively as possible, taking into account the applicant’s capacity to pay. The result is a new system providing for Concession, Standard and Corporate fee rates, which commenced on 1 July 2016.

At the higher end of the scale, a new Corporate fee rate has been established, which applies to government agencies and companies with a turnover in excess of $200,000 per year. The Victorian Government highlighted that “the corporate fee to challenge the refusal of a planning permit for a development with a value of between $15 million and $50 million will increase from $2,086 to $2,328, while the concession fee to challenge the grant of such a permit will now be $150.”

The Standard rate (for individuals and small businesses) is fixed at 70 per cent of the Corporate rate. For most residential tenancy matters, the Standard fee is $61.50, and there is no fee for bond disputes. The new fee structure also includes a sliding scale based on the value of the claim; for goods and services, the Standard fee ranges from $61.50 for a claim under $3000, to $1571 for a claim over $5 million.

In order to address access to justice for those least able to pay, a new Concession rate of fees has been established. Holders of a federal Health Care Card will be eligible for this category, with no application fee for residential tenancy disputes, or for goods and services claims worth up to $15,000. They will also benefit from a cap of $150 on any fee they are required to pay. The option of applying for a fee waiver in exceptional circumstances will remain.

The review process included public consultation, and the Government appears to have taken into account some of the specific suggestions made by lobby groups on behalf of low-income claimants. For example, both the Victorian Council of Social Services and the Consumer Action Law Centre argued that $10,000 was too low a threshold for small claims — the new fee structure removes application and daily hearing fees for Concession holders for claims up to $15,000. However, their proposals that there should be no fee for claims up to $100,000 (VCOSS) or for any claim regardless of value (CALC) were not accepted.

Corrections Victoria fails to bring prisoners to court

Victorian courts have sharply criticised Corrections Victoria for its failure to bring prisoners to court for hearings, but the agency continues to breach the rights of those in its custody.

The Herald Sun reported that Corrections Victoria has been fined 650 times since 2013 — with the total penalties approaching $500,000 — for holding people in custody rather than bringing them to their scheduled court appearances, including over $110,000 in fines in the first half of 2016.

Victoria Legal Aid said that 455 Magistrates’ Court matters were affected in the first seven weeks of 2016, with some prisoners being unable to apply for bail or missing assessments for community-based sentences.

In March, a magistrate told The Age in some cases it was more likely an accused person would attend court if they were released than if they remained in custody. “I’m releasing people — not high-risk — but I’m releasing them on bail because I can’t guarantee they’ll appear.”

The problem had not been resolved by August. After being told that a number of prisoners could not apply for bail as they had not been brought to court, Magistrate Timothy Walsh warned Corrections officers, “They can be brought in or they’ll be released on bail.”

The Victorian Government has been aware of the problem since 2014, when the Auditor-General reviewed the prisoner transport system and reported: “Increasing prisoner numbers within the justice system means that prisoners are not always transported when and where required.”

The Government has announced $14.7 million in funding to improve video link facilities at 53 courts, which it hopes will reduce congestion in the prisoner transport system. This investment supports the Justice Legislation (Evidence and Other Acts) Amendment Act 2016, which requires that most Magistrates’ Court hearings involving remand prisoners should be conducted by video link.

Section 21 of the Victorian Charter of Human Rights and Responsibilities requires that people must not be subjected to arbitrary detention, and that deprivation of their liberty must only be in accordance with procedures established by law.

Police Minister steps down, highlighting vicarious trauma

Victorian Police and Corrections Minister Wade Noonan has stepped down from his role for three months. He said he needs a break from the job because of the psychological impact it has had on him. He explained, “It has been difficult to cope with the constant exposure to details of unspeakable crimes and traumatic events that are an everyday part of my role and the accumulation of these experiences has taken an unexpected toll.”

The issue of the exposure of people involved in the legal process to gruesome details of crimes has also been raised recently as a result of the sentencing of Matthew Graham, a 22-year-old Melbourne man who was responsible for websites sharing photos and video of the sexual abuse, torture and killing of children.

The prosecutor asked the County Court judge to view some of the worst videos: “It is with a great deal of regret that I urge your honour to view the material. Seeing it brings it home in a much more realistic and tangible way. It is probably one of the worst things you could see.” In April last year, the County Court recognised the psychological harm caused to judges and court staff who are required to observe traumatic evidence, and engaged five psychologists and psychiatrists to build judicial resilience.

Other participants in the system can also be affected. For instance, the Victorian Juries Commissioner recognises the potential for vicarious trauma, and after the trial jurors can access psychological services. Adrian Lowe, who spent four years reporting on crimes for The Age, said he asked to be assigned to different duties because he was being affected by the work, but that he still suffers the consequences: “It has been almost four years since I left the court round. The nightmares, flashbacks and visions have continued, fortunately with less frequency as the years pass.”

The issue can have an impact on the effectiveness and fairness of the legal system. In January, the ABC’s Law Report looked at how interpreters are affected by translating the details of evidence. A survey of 271 qualified interpreters found that “a quarter of respondents … said that they continued to feel traumatised for some period after and that they would choose to avoid those types of assignment in the future”. This can mean that it is hard to find appropriately qualified interpreters to deal with traumatic cases.

TURC criticism prompts new Supreme Court list

The Supreme Court of Victoria has established a specialist Employment and Industrial List, which commenced on 1 January 2016. The list will manage proceedings involving employment contracts, breaches of confidence, and employment-related misleading and deceptive conduct.

It will also deal with allegations of “interference with contractual relations, industrial torts, secondary boycotts, and related contempt proceedings”. These are claims typically directed against industrial action taken by workers and their trade unions.

The establishment of the list comes after criticism by former High Court judge Dyson Heydon in the interim report of his Royal Commission into Trade Union Governance and Corruption, known as TURC. (This controversial inquisitorial body was criticised for political bias after Heydon agreed to speak at a Liberal Party fundraiser, but he cleared himself of wrongdoing and continued its hearings.)

Heydon claimed “extraordinary delay” in the Supreme Court’s hearing of industrial torts and related matters “will make the Australian legal system a laughing stock” and called for “consideration to be given to procedures which ensure swift determination of contempt applications”.

These comments were made in relation to a case study of a long-running and high-profile dispute between construction company Grocon and the Construction, Forestry, Mining and Energy Union (CFMEU) over the appointment of safety representatives. This dispute culminated in a massive protest outside the Myer Emporium construction site, and led to Grocon suing the CFMEU over industrial torts, secondary boycotts, and related contempts.

Grocon was represented in the Supreme Court by Michael McDonald SC. He was subsequently appointed to the Supreme Court Trial Division, and is the inaugural Judge in Charge of the Industrial and Employment List.