Litigation Stream : Changes stemming from Moynihan Review

Jim Henry SC

The Story So Far

July 2008: Former Supreme Court Judge the Hon Martin Moynihan AO QC appointed to conduct a review of the civil & criminal justice system in Queensland.

Review to consider:

• Monetary limits for the civil jurisdiction;• Summary disposition of indictable offences;• Reform of the committal proceedings process;• Sentencing discounts for an early plea; and• Case conferencing.

Ensuing Events

21 July 2009 Report released25 Nov 2009 Consultation Draft Bill released31 Jan 2010 Consultation period closed13 April 2010 Bill introduced to Parliament? 2010 Bill passed? 2010 Commencement

What Bill?

“Civil and Criminal Jurisdiction Reform and Modernisation Amendment Bill 2010”

“Short” title?

1 Short titleThis Act may be cited as the Civil

and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010.

or……

“CACJRAMAA”

Objectives of the Bill

• increase the monetary limit for civil disputes in the District Court to $750,000 and in the Magistrates Court to $150,000

Objectives of the Bill

• streamline the committal process and the management of matters in the Magistrates Courts which proceed by way of ex-officio indictment

Objectives of the Bill

• provide specific powers for the courts to deal with non-compliance with disclosure obligations in criminal cases

Objectives of the Bill

• expand the jurisdiction of the Magistrates Courts to determine indictable offences in the Criminal Code and Drugs Misuse Act 1986

Objectives of the Bill

• increase the general criminal jurisdiction of the District Court from offences with a maximum penalty of 14 years or less, to those with a maximum of 20 years or less

Mag. Ct. Civil

Was : $50,000Will be: $150,000How?:Magistrates Court Act amended,

particularly s4 & s2, by reference to a so-called “prescribed limit” defined as $150,000.

When?105 Insertion of new s 60After section 59—insert—‘60 Transitional provision for Civil and CriminalJurisdiction Reform and Modernisation AmendmentAct 2010‘Sections 4, 4AA, 5, 6 and 45, as amended or inserted by theCivil and Criminal Jurisdiction Reform and ModernisationAmendment Act 2010, apply only to actions or proceedingscommenced after the commencement of this section.’

When?

“…apply only to actions or proceedings commenced after the commencement of this section”

Costs

• New part in UCPR Schedule 3 for where amount recovered is over $50,000

• Similar to District Court Schedule, discounted by @ 20%

• Therefore, as with District Court, amount of counsel’s fees matter for discretion

Venue… “Central Registry”

143 Amendment of UCPR sch 4 (Dictionary)‘central registry means—…(c) for a Magistrates Court—the registry of a

Magistrates Court in the central division of the Brisbane District, or at Rockhampton, Townsville or Cairns.’.

Venue

101 inserts in Magistrates Courts Act:4AA Proceeding commenced in central registry‘(1) Despite section 4, if under the rules a proceeding that may

bestarted in a Magistrates Court is started in a registry for aMagistrates Court that is a central registry, that MagistratesCourt has jurisdiction for the proceeding.‘(2) Subsection (1) does not prevent the proceeding beingtransferred to another Magistrates Court under the rules.

District Court Civil

• Was: $250,000• Will be: $750,000• How?:District Court Act s68(2) definition of monetary

limit amended to $750,000

When?55 Insertion of new ss 145 and 146After section 144—insert—‘145 Transitional provision for Civil and CriminalJurisdiction Reform and ModernisationAmendment Act 2010—civil jurisdiction‘Sections 68, 75 and 118, as amended by the Civil and

Criminal Jurisdiction Reform and Modernisation Amendment Act 2010, apply only to actions, matters or proceedings commenced after the commencement of this section.’

When?

“…apply only to actions, matters or proceedings commenced after the commencement of this section.”

No other extension of powers

• The limited remedial powers of the District Court, in comparison to the Supreme Court, remain (see Startune Pty Ltd v Ultra-Tune Systems (Aust) Pty Ltd [1991] 1 Qd R 192)

• Save for the increased monetary limit the jurisdictional limits in District Court Act s68 remain.

No Right to Civil Jury Trial unless claim exceeds $150,000

• District Court Act s75 amended• Former references to exceeding $10,000

amended to read exceeding “the Magistrates Courts jurisdictional limit”.

Clause 51

Venue

Old UCPR 3333 Central registry of Supreme CourtA proceeding in the Supreme Court may be started

in any central registry of the court.

New UCPR 3333 Central registryA proceeding in a court may be started in any

central registry of the court.Clause 136

Changes in the Criminal Jurisdiction

When?

•All major amendments only apply if an originating step for the proceeding for the charge is taken on or after the commencement of the section

When?

• All major amendments only apply if an originating step for the proceeding for the charge is taken on or after the commencement of the section

• eg Justices Act new s277, Code new Chapter 87 (s724 et seq)

When?

• All major amendments only apply if an originating step for the proceeding for the charge is taken on or after the commencement of the section

• eg Justices Act new s277, Code new Chapter 87 (s724 et seq)

• “Originating step” = arrest, making of complaint, serving of notice to appear.

Increased District Court Criminal Jurisdiction

• District Court’s general criminal jurisdiction raised from max penalty of 14 years to 20years• Practical consequence: some drug

offences will go to the District rather than Supreme Court

Summary disposition of some indictable offences

• Code ss552A & 552B replaced by:s552A – prosecution elections552B – defendant elections552BA – mandatory summary dispositions552BB – exclusions

• The drafting is complicated. • Amendment to s 552D allows court to abstain from

summary disposition because of exceptional circumstances.

• Drugs Misuse Act new s14 – summary disposition of possession charge where max. more than 15 yrs but no commercial purpose alleged.

Need to apply for substantive committal

• No longer have automatic right to cross-examine witnesses at a committal .

• It is necessary to make application and satisfy the Magistrate that witnesses should be made available for cross-examination

Changes to s110A Justices Act

“(3) If a written statement of a witness is tendered to them by the prosecution, the justices—(a) must, subject to the provisions of this section being satisfied, admit the statement as evidence; and(b) must not require the witness to appear before them to give evidence or make a statement unless the witness is required to be called by the prosecution because a direction has been issued under section 83A(5AA).”

Changes to s110A Justices Act

“(5) Subsection (3)(b) does not stop the prosecution and the defence agreeing that the witness will be present to be cross-examined.

Note— It is open to the Director of Public Prosecutions to issue guidelines for the giving of agreement under subsection (5). (See the Director of Public Prosecutions Act 1984, section 11 (Powers of director).)”

Apply at a Directions Hearing

Amended s 83A Justices Act:“(5AA) A magistrate may also, at a direction hearing, give

a direction under this section requiring the prosecution to call the maker of a written statement tendered or to be tendered by the prosecution under section 110A(3)—(a) to attend before the court as a witness to give oralevidence; or(b) to be made available for cross-examination on thewritten statement.”

Clause 78

The Test: in new s110B(1)

“(1) A magistrate at a direction hearing must not give a direction under section 83A(5AA) in relation to the maker of a written statement unless the magistrate is satisfied there are substantial reasons why, in the interests of justice, the maker should attend to give oral evidence or be made available for cross-examination on the written statement.”

The Test: in new s110B(1)

“…substantial reasons why, in the interests of justice, the maker should attend…”

Interpretation

• Same test as in NSW• Already judicially considered in

NSW• eg Sim v Magistrate Corbett &

Anor [2006] NSWSC 665

Relevant principles per Sims Case“6. Each case will depend on its own facts and circumstances.

It is not possible to define exhaustively or even at all what might, in a particular case, constitute substantial reasons. It may be a situation where cross-examination may result in the discharge of the defendant or lead to a successful no-bill application; it may be a situation where cross-examination is likely to undermine substantially the credit of a significant witness. It may simply be a situation where cross-examination is necessary to avoid the defendant being taken by surprise at trial. The categories are not closed and flexibility of approach is required in the light of the issues that may arise in a particular matter.”

Relevant principles per Sims Case

“7. Substantial reasons might exist, for example, where the attendance of a witness is sought to enable cross-examination in respect of a matter which itself might give rise to a discretion or determination to reject evidence at trial.”

Relevant principles per Sims Case

“8. The expression “substantial reasons” is not to be ascertained by reference to synonyms or abstract dictionary definitions. The reasons advanced must have substance in the context of the committal proceedings, having particular regard to the facts and circumstances of the particular matter and the issues, which critically arise or are likely to arise in the trial.”

Procedural requirements prior to application: s110B(3)

‘(3) An application for a direction under section 83A(5AA) maybe made only if—

(a) the defendant has, by letter, or by email or some otherelectronic form of written communication (thedefendant’s communication) advised the prosecution ofthe following—

(i) the name of the maker of the written statement thesubject of the application;(ii) the general issues relevant to the making of theapplication;Examples of general issues—identification evidence, expert opinion evidence

s110B(3) cont.

(iii) the reasons to be relied on to justify the calling of the maker of the written statement to give oral

evidence;(iv) a time (the nominated time) for the

prosecution to respond to the defendant’s communication; and

(b) the prosecution’s response to the defendant’scommunication (the prosecution’s response) has beenreceived, or it has not been received within thenominated time; and

S110b(3) cont.

(c) there is filed with the application—(i) a copy of the defendant’s communication; and(ii) the prosecution’s response, if it has been received.

Police may seek further evidence

• In applications to cross-examine affected children the filing of the outline sometimes prompts the police to obtain further evidence.

• There is no law prohibiting them from doing likewise as a result of receiving a s110B(3) letter.

Applications to cross-examine affected children

• Law unchanged• Logically no reason why such

applications cannot occur at the same directions hearing

Interlocutory relief?

s83A(7) Justices Act is unchanged:

“A direction must not be subject to interlocutory appeal but may be raised as a ground of appeal against conviction or sentence.”

Options

• Re-open if can show “special reason” per s93A(6)

• NSW challenges have been by prerogative writs

• Judicial review?• Post-committal application in District Court,

eg for Basha hearing• Do it right the first time

Preparation

•Prepare early

Preparation

• Prepare early

• Further disclosure necessary?

Preparation

• Prepare early• Further disclosure necessary?

•Determine what the defence case will be

Preparation

• Prepare early• Further disclosure necessary?• Determine what the defence case will be

• Identify how cross-examination will assist

Preparation

• Prepare early• Further disclosure necessary?• Determine what the defence case will be• Identify how cross-examination will assist

•Does the greater advantage lies with not applying?

Preparation

• Prepare early• Further disclosure necessary?• Determine what the defence case will be• Identify how cross-examination will assist• Does the greater advantage lies with not applying?

• Sufficient funding?

Preparation

• Prepare early• Further disclosure necessary?• Determine what the defence case will be• Identify how cross-examination will assist• Does the greater advantage lies with not applying?• Sufficient funding?

• Seek the prosecution’s consent

Preparation• Prepare early• Further disclosure necessary?• Determine what the defence case will be• Identify how cross-examination will assist• Does the greater advantage lies with not applying?• Sufficient funding?• Seek the prosecution’s consent

•Make the s110B(3) letter your outline

The decision to commit

• Even if an application to cross-examine is unsuccessful a no case submission can still be made.

The decision to commit

• Even if an application to cross-examine is unsuccessful a no case submission can still be made.

• If the defence do not want to make a no case submission they can opt for a Registry Committal

Registry committal

• S114(1) empowers the Clerk of the court to commit if section’s requirements met

Registry committal• S114(1) empowers the Clerk of the court to commit if

section’s requirements met

• S114(3) requires written notice to Clerk of the Court stating, inter alia, wish to be committed for trial or sentence

Registry committal

• S114(1) empowers the Clerk of the court to commit if section’s requirements met

• S114(3) requires written notice to Clerk of the Court stating, inter alia, wish to be committed for trial or sentence

• S115(4) no appearance required

Registry committal• S114(1) empowers the Clerk of the court to commit if

section’s requirements met• S114(3) requires written notice to Clerk of the Court

stating, inter alia, wish to be committed for trial or sentence

• S115(4) no appearance required

• Bail Act s34B deems bail varied to require attendance at District or Supreme Court

Registry Management of Ex Officio’s

Justices Act new s23EB provides for Clerk of the court’s administrative management of charges where an ex officio indictment has is to be presented, avoiding the need for repeat mentions.

Registry Management of Ex Officio’s

Bail Act new s34BB deems bail continued as to require appearance in court where ex officio presented

Disclosure

•Minor amendments to Code’s existing disclosure provisions

Disclosure

• Minor amendments to Code’s existing disclosure provisions

•New Chapter division 4A Disclosure Obligations Directions s590D et seq

Code s590F Subject matter for disclosure obligation

“(1) A disclosure obligation direction may provide for any of the following—

…

(d) allowing the court to examine the arresting officer to decide whether the prosecution has a disclosure obligation in relation to a particular thing;…”

Code s590F Subject matter for disclosure obligation

“(e) requiring that the arresting officer file an affidavit to allow the court to decide whether the prosecution has a disclosure obligation in relation to a particular thing;…”

Code s590F Subject matter for disclosure obligation

“(f) allowing the accused person or a lawyer acting for the accused person to cross-examine the arresting officer on an affidavit mentioned in paragraph (e) to allow the court to decide whether the prosecution has a disclosure obligation in relation to a particular thing;…”

Disclosure applications procedure

• Criminal Practice rules new Chapter 9A Disclosure obligation directions

• CPR 43C requires a comprehensive written notice to be given to respondent

CRC 43C(2) Notice content

“(a) advise the respondent of the following—(i) what the applicant says the respondent should have done, but has not done, in relation to the disclosure obligation that is to be the subject of the disclosure obligation direction to be sought by the applicant;(ii) the disclosure obligation direction to be sought by the applicant; and”

CRC 43C(2) Notice content

“(b) give the respondent a brief statement about what the applicant considers the respondent should give the applicant to satisfy the applicant that the respondent has complied with the disclosure obligation; and”

Procedural points

• r43D: The application and the correspondence issued under r43C must be filed and served

Procedural points

• r43D: The application and the correspondence issued under r43C must be filed and served

• r43E: The application can be determined on the papers

Costs for non-disclosure Code s590AAA

“(1) If it appears to the court that a person (the directed person) has not complied with a direction given under section 590AA(2)(ba), the court may order the directed person to file an affidavit, or give evidence in court, explaining and justifying the failure to comply.”

Costs for non-disclosure Code s590AAA

“(3) An order under subsection (1) may be made—(a) on the court’s own initiative; or(b) on the application of the affected person.”

Costs for non-disclosure Code s590AAA

“(4) If the court is not satisfied the directed person’s affidavit or evidence satisfactorily explains and justifies the noncompliance, the court may— …(b) if the court is satisfied that the noncompliance was unjustified, unreasonable or deliberate—make, in relation to the adjournment, an award in favour of the affected person of an amount of costs the court considers just and reasonable;”

Conclusion