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Open justice ends when the criminal justice system bungles

By Bob Seaman - posted Friday, 26 September 2008


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.

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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.

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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.

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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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