Category Archives: Crime

More judicial flourish please!

Barristers are forced to read a lot of judgments, which can often be a pretty grueling exercise. But it also depends on whose opinion you are reading. Of course judges are not in the business of entertaining their audience but every so often a bit of colour can make all the difference and at least from my own perspective, is always encouraged. As a light aside to the usual hints and case notes I post here, I give you three of my favourites.

The first comes from the United States, where Chief Judge Kozinski of the United States Court of Appeals, Ninth Circuit ruled in favour of a Japanese whaling research organization against Paul Watson and the Sea Shepherd Organisation with which he is associated. The former sought an injunction to prevent Watson et al from continuing what were alleged to be piracy activities (in the name of protecting the whales). In his judgment Institute of Cetacean Research v Sea Shepherd Conservation Society 12-35266 His Honour opened his opinion with this:

You don’t need a peg leg or an eye patch. When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be.

Something more local comes from Justice Pembroke of the NSW Supreme Court, who maintains a sharp turn of phrase in all of his judgments. In an application brought by Channel 7 seeking to restrain its former employee James Warburton from going to work for the enemy, His Honour commenced his judgment in Seven Network (Operations) Limited & Ors v James Warburton (No 2) [2011] NSWSC 386 by saying:

Mr Warburton is a highly skilled and talented television executive. At the Seven Network, he was the natural successor to David Leckie as chief executive officer. Like Caesar however, Mr Leckie was not ready to go.”

Who better than to have the final say than the inimitable Lord Denning who in the famous nuisance case, Miller v Jackson [1977] QB 966, said:

In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last 70 years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good club house for the players and seats for the onlookers. The village team play there on Saturdays and Sundays. They belong to a league, competing with the neighbouring villages. On other evenings after work they practise while the light lasts. Yet now after these 70 years a judge of the High Court has ordered that they must not play there any more. He has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket. This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket. But now this adjoining field has been turned into a housing estate. The newcomer bought one of the houses on the edge of the cricket ground. No doubt the open space was a selling point. Now he complains that when a batsman hits a six the ball has been known to land in his garden or on or near his house. His wife has got so upset about it that they always go out at week-ends. They do not go into the garden when cricket is being played. They say that this is intolerable. So they asked the judge to stop the cricket being played. And the judge, much against his will, has felt that he must order the cricket to be stopped: with the consequence, I suppose, that the Lintz Cricket Club will disappear. The cricket ground will be turned to some other use. I expect for more houses or a factory. The young men will turn to other things instead of cricket. The whole village will be much the poorer. And all this because of a newcomer who has just bought a house there next to the cricket ground.”

Hear, hear, jolly good show!!

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Police ‘Argot’ Experts in drug cases: independent?

Drug trials often see the Crown tender telephone intercepts of coded conversations between an accused and their associates to support a submission that the interlocutors were talking about drugs; or at least using language consistent with talk of drugs.

It is a trite subterfuge device within the criminal community to use slang, or ‘argot’, in an attempt to  render ambiguous the true meaning and effect of their conversations. Nevertheless, when evidence of such conversations is put before a jury an expert’s guidance is necessary; even though many of the coded terms would be quite familiar to any juror who has taken the time to enjoy a few episodes of The Wire in their time.

Therefore, a police officer who has spent considerable amounts of their service dealing with the criminal drug milieu and is thereby purportedly qualified to give evidence of how such people talk, will be called to give evidence.

However, there are considerable dangers in putting such evidence before a jury. The case law illustrates some of the specific forensic dangers, but there are broader perhaps intrinsic issues with a police man or woman giving such evidence which would perhaps warrant an expert being drawn from outside the police force.

A good example of problems that can arise is Keller’s case. In Keller v R [2006] NSWCCA 204, the accused was charged with the supply of cocaine in a commercial quantity. A conviction was recorded at first instance and an appeal instituted raising an issue with regard to the opinion evidence given by a police officer as to the meanings of various words spoken during intercepted telephone conversations. Some of the more colourful language used included: ‘teeth’ (a reference to cocaine); ‘untickled’ (to purity); and ‘a farmer’ (to quantity, being a quarter of a kilogram).

At the time he gave his evidence, the expert was a member of the Australian Federal Police with extensive training and experience in drug related matters. For his opinion to be admissible under the Evidence Act (section 79) it would need to be wholly or substantially based on his training, study or experience. Yet a passage of cross-examination by the defendant’s counsel extracted by the Court of Appeal at [35] revealed that the opinion was not so founded:

“Q- You’ve said that the reference at page one…saying ‘that’s when I get the results’ is in your opinion a reference to a drug transaction?

A-That’s correct.

….

Q- You can’t say that simply by reading that, someone saying he’s going to meet someone at 9 o’clock in the morning that that relates to drugs can you?

A-I placed this telephone conversation in the total context of which it was involved.

Q-What was the total context Mr Smith that’ you’re talking about, what are the contextual matters that you rely on in reaching that conclusion?

A-The fact that Mr Denholm was arrested with half a kilo of cocaine the following day.”

**

The central problem was the admission by the expert that “..in part the opinion of the witness was arrived at having regard to the discovery of the cocaine in the possession of the co-accused who had conversed with the appellant.” (at [42]); as opposed to an objective assessment based on the expert’s experience in other matters of what the words referred to.

If it wasn’t for the skilled cross-examination at trial stage and the highly skilled appellate advocacy of Stephen Odgers SC this problem would not have been brought to light.

There was also an issue with respect to the manner in which the expert’s evidence was given. He gave evidence to the effect that in his opinion the parties to the intercepted conversations were actually talking about drugs rather than using language consistent with that state of affairs. This kind of evidence had previously been ruled inadmissible in other cases on the basis that it strayed far too close to the ultimate or central issue in the trial (ie. was the accused guilty). The common law rule against evidence being given which strays too close to the ultimate issue has now been abolished by section 80 of the Evidence Act, but judges are still reluctant to allow evidence of this kind and often find other ways to reject it (eg. s135 of the Evidence Act).

On how many other occasions has a police expert given evidence of what the accused or their associates were using was drug ‘argot’ and did so with a knowledge of the facts and circumstances in which the crime took place?

I suppose as a matter of good defence advocacy, how the witness reached their opinion, including their background knowledge of the case against the accused, should be put to the expert to ensure that any of that information has not coloured their opinion, albeit inadvertently.

Nevertheless, it was somewhat fortunate for the accused that his counsel was able to point to such a particular matter as he did in Keller’s case. Even if the expert did admit to having an expensive knowledge of the facts in the case, it would be an easy submission for the Crown prosecutor to make that this level of background understanding is necessary to enable the expert to properly opine.

However, the problem remains: if you know someone is accused of a drug offence and just how the case is put against them, it is a rare individual indeed who can compartmentalise their thinking to the extent necessary to prevent the same problem as that which occurred in Keller. This is not to say that there is any lack of propriety in the way these police witnesses conduct themselves, it is simply a matter of one’s independence of thought being coloured by among other things, a combination of what we know, our experience and life’s purpose .

This is a matter a judge alone could account for by the weight they accord the evidence, but this level of skill in assessing an expert witness’ credit may well be beyond a lay juror.

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R v Belghar: judge alone or jury and the “interests of justice”

Section 132 of the Criminal Procedure Act NSW provides that an accused charged with an indictable offence tried in the District or Supreme Court of NSW can ask for an order from the presiding judge that they be tried before a judge sitting alone (ie. no jury). The judge is to consider the “interests of justice” in deciding whether to make the order.

The section also provides that the judge may refuse the application if the trial involves the resolution a factual issue requiring the application of objective community standards (eg. reasonableness or dangerousness), which a jury would embody,  or if there is a substantial risk of jury interference that cannot reasonably be mitigated.

In R v Belghar [2012] NSWCCA 86 the accused successfully applied for an order under section 132 at first instance. The basis upon which the application was granted was that the trial would bring before the Court the religious and cultural circumstances of the accused as a Muslim person and in the words of the trial judge, “in light of the fact that there has been adverse publicity regarding persons who hold extreme Muslim faith beliefs….[the accused] may not receive a fair trial.”

The prosecution appealed the order.

After  a lengthy review of other decisions on this issue (and the jury system per se) the NSW Court of Criminal Appeal (CCA) decided that because there was no evidence before the trial judge as to how and where such prejudices lay and the extent to which they would conceivably operate to affect the receipt of a fair trial by the accused, the trial judge’s decision should be quashed. It was also found that these were not matters of which a judge could take judicial notice under s144 of the Evidence Act.

The Court contrasted this matter with the decision in Arthurs v The State of Western Australia [2007] WASC 182 in which a judge alone trial was ordered based on evidence given by the solicitor for the accused of the considerable prior media attention that case had received. Therefore, there was a real rather than simply perceived, likelihood that a fair trial would not be received if heard by a jury.

The Chief Judge did acknowledge there may be “some people in the Australian community [who] harbour prejudice against persons who adhere to the Muslim faith, particularly against those holding “conservative” views about the place and role of women in marriage or in wider society” [107].

However, he said there are also sufficient protections afforded by virtue of a juror’s stated undertaking to exercise an impartial mind and the standard trial judge’s directions that the jury must decide the case according to the evidence and not based of any inherent prejudice they may harbour.

The decision is also notable for the following comments by McLellan CJ about the meaning of “interests of justice” in section 132:

(i)        the “interests of justice” is not informed by considerations of efficiency in the overall running of the trial before a judge sitting alone [111]; and

(ii)       if the matter will involve a decision on a complex technical issue, the “interests of justice” may be promoted by the obligation for a judge to give reasons, as opposed to the inscrutability of a jury’s decision [112].

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