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Open justice ends when the criminal justice system bungles

By Bob Seaman - posted Friday, 26 September 2008


"It is not merely of some importance, but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done."

The statement by Lord Hewart, back in 1924, is one that is still quoted with approval, when the principle of open justice is discussed.

Now consider a slightly different statement, also in support of the open justice principle: "If the criminal justice system messes things up, it should also be manifestly seen to have messed things up."

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I'm not sure what Lord Hewart would have thought of the latter proposition, but if he was anything like present-day Victorian justice system bureaucrats, I suspect he would not have agreed. But read the following story, and make up your own mind whether or not you agree.

A concerning case of culpable driving

As an internet user, with a non-professional interest in the law, I frequently visit the web site for the Victorian Supreme Court's Court of Criminal Appeal (VSCA). One judgment that I found was particularly concerning. That case, and my attempts to follow it up, are the focus of this essay. I shall not identify participants by name, as their names are not relevant to my purpose.

In 2005, a driver was found guilty by a Victorian County Court jury of (i) culpable driving causing death, and of (ii) negligently causing serious injury, and was sentenced to imprisonment for five years, with a minimum term of two years and three months.

On appeal, almost a year later, the VSCA ruled that the driver had no case to answer.

It found that "... a jury ... could not be satisfied, beyond reasonable doubt, that there was such a great falling short of the standard which a reasonable person would have exercised in the circumstances, and which involved such a high risk that death or serious injury would follow, that the driving ... merited criminal punishment". In plain language, the matter should never even have gone to a jury for deliberation and verdict. The VSCA accordingly ordered an acquittal.

The VSCA described the circumstances of the collision that caused the death and serious injury as follows.

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"(The driver's) motor car was neither exceeding the limit, nor being driven at a speed that was inappropriate in the circumstances. (The driver) was not affected by drink, drugs or tiredness. (The driver) was not driving aggressively or erratically. (The driver) made an error of judgement in a situation of sudden crisis."

These are the Supreme Court justices' words, not mine! An obvious question, beyond the scope of this essay, is why the Office of Public Prosecutions (OPP) charged the driver with culpable driving in the first place. Maybe they simply thought it had a chance of getting up (and they were right, of course).

My reaction

"There but for fortune go you and I ..." Phil Ochs, 1966.

My first reaction on reading the VSCA judgment was to wonder how the matter could have got as far as it did. The decision by the OPP to charge the driver was only the first step. The driver still had to be committed for trial, tried, and found guilty.

As I found after a little research, the words in quotes in the VSCA judgment (". . a jury . . could not be satisfied . . " etc) are a recitation of what has become a standard legal definition of what is meant by gross negligence in Victorian culpable driving cases. The exact words originate from a landmark culpable driving case, De'Zilwa (2002), in which the Supreme Court mandated the way in which juries should be instructed about the meaning of gross negligence.

Prior to De'Zilwa, the accepted wisdom was that judges should NOT try to explain the meaning of "gross" (rather like they should not try to explain "reasonable doubt"). The importance of De'Zilwa was the Supreme Court ruling that the concept of gross negligence needed to be explained to juries better than was hitherto the case. Since 2002, De'Zilwa has been widely cited, and indeed discussed in some detail in articles such as Harkness (2004) in the Victorian Law Institute Journal.

Had the County Court jury in the case under discussion been adequately informed about what was meant by "gross" negligence, and how it related to the facts of the case under discussion? Unfortunately the VSCA appeal judgment was silent on these points. It merely asserted that the evidence was not strong enough to establish gross negligence beyond reasonable doubt. That was all it needed to say to justify its directed acquittal.

But one sentence of the judgment indicates that the VSCA had also contemplated the option of a new trial rather than an acquittal. ("There should be a new trial unless ..."). So it seems that at the time it issued its judgment, the VSCA may have already perceived defect(s) in the conduct of the County Court trial, which would have justified a new trial if it hadn't found there was no case to answer anyway. No transcript was made of the VSCA appeal hearing. Only the final judgment itself was available. One can therefore only speculate on the nature and seriousness of any such defects.

While the question in the first sentence of the paragraph before last is irrelevant, in the sense that the answer could not have altered the decision of a directed acquittal, that question is highly relevant to another question, namely whether the unfortunate driver had been imprisoned for almost a year as a result of judicial defects or incompetence at the County Court trial stage. If such was the case, there would surely be at least a moral entitlement to ex-gratia recompense to the driver from the government. Indeed, some might argue there was a moral entitlement anyway, given the OPP's original mistake.

On the other hand if, despite whatever defects may have existed at the County Court trial, the County Court jury HAD been adequately informed about what was meant by gross negligence, but had nevertheless returned a guilty verdict, the outcome for the driver could perhaps rather be ascribed, at least in part, to the vagaries of the jury system.

So, from my perspective, a crucial aspect remained the County Court judge's guidance to the jury, both in his formal charge, and in the course of the trial itself.

A closer look at the County Court trial transcript

A transcript of the County Court trial was made available for my inspection by the Victorian Government Reporting Service. Unfortunately, this transcript did not include the judge's charge to the jury. But from my non-expert perspective, what it did contain served only to heighten my concerns.

The prosecutor, in his opening address, said, "Gross is not a complicated word. Gross means gross." Then again in his closing address, "It's a pretty normal word ... gross means gross".

Such statements fly in the face of the VSCA ruling in De'Zilwa, which mandates a particular form of words to explain what the word "gross" means. The prosecutor's words, repeated as they were in succinct "sound bite" form, would surely have encouraged the jury to decide for themselves what "gross" meant. Moreover, there no challenge to these words at the time, on either occasion, either from the defence counsel, or from the judge (should there have been?).

Of course, the judge may well have given the De'Zilwa direction about the meaning of "gross negligence" later, in his eventual charge to the jury. Because I haven't been able to get a transcript of the judge's charge, I don't know whether he did so or not. But would such a direction alone been enough to dispel the earlier effects of the prosecutor's potentially misleading "sound bites"? Catchy phrases tend to stick in the memory more easily than do complex and legalistic descriptions, so it's all the more important that misleading sound bites be nailed at the time they are uttered.

My efforts to acquire court documents

So there remained two missing links in my understanding of the chain of events. The first, already mentioned, was the content of the County Court judge's charge to the jury. The other was the precise terms of the grounds of appeal to the VSCA. There were five grounds of appeal against the conviction, and one ground of appeal against the sentence, but the VSCA judgment did not detail these grounds. The detailed grounds of appeal might shed some further light upon why, if the VSCA had not directed an acquittal, it was apparently contemplating a new trial. They might also point to defects other than the one discussed in the previous section.

These two pieces of information, namely (i) the judge's charge and (ii) the detailed grounds of appeal, should in any case assist me to make a sounder judgment as to whether the unfortunate driver had been imprisoned as a result of judicial incompetence at the County Court trial stage, or was rather tragically unlucky. Egregious incompetence, bad luck, or both?

I very soon discovered that I could not get the documents I was looking for, simply by asking the relevant courts. When requesting the documents, I told the courts only that I was researching the case; I did not go into the detail of the preceding sections.

I was informed that it was at the discretion of the County Court trial judge (that's right, the trial judge himself), whether to release a transcript of his charge to the jury, to a non-party. Similarly, release of the detailed grounds of appeal was at the discretion of the Prothonotary of the Supreme Court.

In neither case was the discretion exercised in my favour. All of this despite the fact that, as I pointed out when asking, I was seeking information that could have been heard by anyone in court at the time. And I also sought assistance from my local state member of parliament (who happens to be a minister), again to no avail. Nor was Freedom of Information (FoI) legislation of any help at this stage. The courts are exempt from FoI in respect of documents relating to their judicial functions.

I was about to give up, when I noticed from the transcript of the Court of Appeal judgement, that the appellant's counsel had been instructed by Victoria Legal Aid (VLA). VLA are not exempt from FoI. So I made a formal FoI application to VLA for the two documents I was seeking.

An appeal to the Victorian Civil and Administrative Appeals Tribunal (VCAT)

VLA fought my application every inch of the way, but the matter eventually reached the VCAT for hearing. VLA claimed exemptions under Section 33 of the Victorian FoI Act (disclosure of personal affairs), and under Section 38 (prohibition of disclosure under another Act). The Victorian Legal Aid Act prohibits disclosure of any information received in relation to an application for legal assistance.

I opposed the VLA claim under Section 33 on the grounds that (i) I was prepared to accept release with the name of VLA's client deleted, and was also prepared to give an undertaking that I would not disclose that name, and (ii) release was not unreasonable on public interest grounds. I once again emphasised that the information contained within the documents had already been disclosed in open court. I also opposed VLA's Section 38 claim, arguing that the so-called "public interest override" of Section 50(4) of the FoI Act applied. My overall theme in contesting both grounds of appeal was the importance of open justice.

The Tribunal was not persuaded by VLA's claim for exemption under section 33. It was of the view that the question of whether the driver had or had not committed a criminal offence, and the facts relied upon in determining that question, were both of public importance, and (presumably with the name deleted) not personal to the alleged offender. A strong endorsement of the open justice principle ! So far, so good.

However, the Tribunal upheld VLA's Section 38 exemption claim. It held that the protection afforded by Section 38 was "of the utmost importance", and concluded that my public interest claim was insufficient to override that protection.

In other words, it was the fact that the documents were acquired in the course of the VLA's functions, rather than the actual information they contained, that prevented the release of the information. The crucial factor was the history of the documents' acquisition, rather than the character of the information.

In retrospect, I was probably always battling uphill trying to invoke the Section 50(4) public interest override, given the recently well publicised Supreme Court decision in Osland (2007), which stated, inter alia, that for Section 50(4) to succeed, "the case for access must, in effect, be irresistible".

We await post-Osland examples of any such "irresistible" cases! It is noted, however, that the High Court has referred aspects of Osland back to the Supreme Court.

So what, then?

My FoI claim against VLA was really only a sideshow to the main game. As the VLA counsel described it at a directions hearing, my application was a "back door" attempt to access documents originating from the County Court and Supreme Court. The critical question raised by this essay is whether the courts should have the absolute discretion they now have, to refuse access after the event to information already heard in open court.

In particular, the inappropriateness of the relevant County Court judge himself having the final say, in a case like the present one, is surely obvious.

From a wider perspective, the reality is that judges and lawyers, like the rest of us, occasionally make mistakes (www.forejustice.org is a handy entry point). The criminal appeals system does its best to rectify many such blunders, for example by ordering a new trial, or an acquittal. But in some cases, arguably like this one, an eventual acquittal may go nowhere near compensating a person who is originally wrongly convicted and imprisoned. However, that's all that the criminal appeals system can do.

I would argue that victims of judicial bungles deserve proper recompense, as much as do victims of crime, for example. Provision of such recompense is a community responsibility. But one can assess neither who are indeed victims of judicial blunders, nor the extent of recompense they deserve, without truly open justice. That is the most important message of this essay. Unpalatable as it may be to some in the bureaucracy, justice should unequivocally be seen NOT to have been done, if that is what has happened.

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About the Author

Bob Seaman is a research scientist who has observed bureaucracies for most of his life.

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