Current reforms to criminal law in Victoria Here is a summary of the current Reforms to Criminal Law in Victoria (21 Aug 2014). The CBA has raised numerous concerns about the substance and rate of recent proposals for change.

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CBA concerned about ‘cheapening the rule of law’

go to site The CBA is concerned that radical changes are occurring in the criminal law in a piecemeal, incoherent fashion.  This raises concerns both of substance and of form.

go to site The substantial changes need debate.  The abolition of common law self-defence is radical.  The limitation of committals is radical, and is a measure adopted and rejected previously. The rule of law generally is cheapened by the form of these changes.  The law needs to be stable and predictable.  Law reform is necessary, but it must proceed in an orderly manner.  Otherwise, the public, the police and the courts are unsure of the law.  If the law comes to be viewed as unstable, and subject to fickle and opportunistic alteration, it loses credibility.  That is a danger squarely raised by the current list of reforms.

azioni binarie auto The danger is magnified by the haste and lack of genuine, engaged debate.  Governments now routinely substitute the appearance of consultation for the real thing.

flirten wie richtig Narrow sectional interests drive current law reform initiatives.  The CBA now expresses its opposition both the specific reforms and to the form they take, which undermiones law generally.

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CPDs this week

There are some great CPDs on this week.

Tonight (Monday 25 August) Jill Prior from the Victorian Aboriginal Legal Service is speaking on the topic of Aboriginal offenders in the Justice System.

Tomorrow (Tuesday 26 August) Senior Crown Prosecutor Peter Kidd SC and Crown Prosecutor Brendan Kissane are presenting a seminar relating to sentencing. Brendan will speak on the topic of Prosecution sentencing submissions post-Barbaro & Zirilli and Peter’s topic is Avoiding appellate error in sentencing.

On Thursday 28 August the Honourable Justice Kenneth Hayne AC is presenting a seminar on the topic of Applications for Special Leave to the High Court of Australia.

All of these CPDs are at 5.15pm in the Neil McPhee room.


VLRC Report on the Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

The Victorian Law Reform Commission has published its report on the Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. The report was tabled in Parliament on 21 August 2014.

The Commission makes 107 recommendations for legislative reform in the following key areas:

• revising and clarifying the legal tests for unfitness to stand trial and the defence of mental impairment, including adding a definition of mental impairment to the law;
• extending the application of the law in the Magistrates’ Court and Children’s Court;
• extending the role of juries in determining the defence of mental impairment and reducing complexity in the content of jury directions under the law;
• improving how community interests are represented in court hearings;
• improving the level of support provided to, and acknowledgment of, victims and family members in cases under the law;
• strengthening the decision making framework for review, leave and release of people subject to indefinite supervision orders;
• establishing a new youth forensic facility for treating and supervising young people and a new medium-secure forensic mental health hospital;
• ensuring there is equal treatment of people with an intellectual disability or other cognitive impairment under the supervision regime.

The Report is available here.

Court of Appeal Newsletter

The latest addition of the Court of Appeal newsletter is available here.

The newsletter announces that the Court is reviewing Practice Statement No 1 of 2010 relating to interlocutory appeals in criminal matters. Any members who have suggestions or comments to make regarding the Practice Statement can email their comments to the CBA at or to the Court directly marked to the attention of David Tedhams at

DNA papers and recent High Court decision

The paper and powerpoint from last night’s CPD by Jane Taupin are available on the Publications page. Jane’s book, ‘Introduction to Forensic DNA Evidence for Criminal Justice Professionals’ (2013) is available on Amazon and at other online booksellers.

Also, note that the High Court last week decided Fitzgerald v The Queen [2014] HCA 28 on the question of whether the presence of DNA alone could satisfy a jury beyond reasonable doubt that the accused was present during an offence. The conviction was quashed.

Indictable Crime Certificate – UPDATE

Comrades, the criminal bar in the UK has vanished.  The CBA intends to be proactive in preserving the relevance of a specialist criminal Bar, the contribution of criminal barristers to the rule of law, and the livelihoods of our members in difficult times.  The ICC is central to those goals.

The Indictable Crime Certificate is currently being developed by the CBA and the Victorian Bar and is supported by the Supreme Court.  Those who complete it are certified by the Bar as suitable to be briefed in indictable trials.  The scheme is voluntary; those who are NOT certified still have the right of audience in the higher courts.  However, the ICC will likely become a prerequisite for membership on panels of approved barristers for the chief briefing agencies.

The ICC is a certificate designed to ensure that the Bar remains the primary source of advocates in criminal trials.  It is currently being developed in consultation with the briefing agencies, the higher courts and the Bar, and we expect it will be launched in September or October of this year.

The ICC will have two components – an education requirement and a compliance requirement.

The ICC, we hope, will allow the chief briefing agencies – the OPP, Legal Aid, private firms and government agencies such as Victoria Police, DoJ, DHS, Corrections and others – to operate panels consistently with our own standards.  The alternative is that they operate panels imposing their own criteria.  Panels are coming.

More generally, the ICC will allow the Bar to provide education suitable for those appearing in serious criminal matters.

Furthermore, the compliance mechanism will allow any concerns or complaints about barristers to be dealt with accountably.  Barristers need this – the absence of such a mechanism means that individual barristers are subject to unfair innuendo and rumour, with no ability to clear their name or repair any shortcoming.  Furthermore, the briefing agencies are now insisting upon some mechanism; it is far better that the Bar operate it.

Currently a working party of the CBA and the Bar is developing the details of the ICC.  We welcome further comment and input from the membership on these issues; as previously indicated, we regard this scheme as the last viable opportunity for the Bar to retain control of advocacy standards.

Judge Gucciardo CPD this Thursday

Members are encouraged to attend this CPD on Thursday 7 August at 5.15pm in the Neil McPhee Room. His Honour Judge Gucciardo of the County Court will be speaking on the topic of Responsibility of Counsel.

Tendency and co-incidence evidence

Members should be aware of the recent Court of Appeal decision of Velkoski v The Queen [2014] VSCA 121 which has application to cases involving tendency and co-incidence evidence.

The Judicial College of Victoria has made changes to the following directions in the Criminal Charge Book due to the Court of Appeal decision:

4.16.2 – Charge: Tendency Evidence (General Charge)
4.16.3 – Charge: Tendency Evidence (Sexual Interest Evidence)
4.16.4 – Charge: Tendency Evidence (Multiple sexual complaints)
4.16.6 – Charge: Coincidence Evidence