Evidence and Confession(al)s

It’s been a long week, and in the midst of it came the news that a Bill with a bland title had been passed by the Legislative Council. In due course, the Governor will provide royal assent and it will become law.

The bill in question is called the Children Legislation Amendment Bill 2019. It amends a number of Acts, but the amendments that have drawn most attention relate to the Children, Youth and Families Act 2005 (CYF Act) and the Evidence Act 2008.

Image from here

The text of the bill can be found here. Once its amendments are made, §182 and §184 of the CYF Act will relevantly read as follows –

Section 182 – Who is a mandatory reporter?
(1) The following persons are mandatory reporters for the purposes of this Act— …
(ea) a person in religious ministry;… .

Section 184 – Mandatory reporting
(1) A mandatory reporter who, in the course of … carrying out the duties of his or her office … forms the belief on reasonable grounds that a child is in need of protection … must report to the Secretary that belief and the reasonable grounds for it as soon as practicable …

Penalty: 10 penalty units. …

(2A) To avoid doubt, a person is not exempt from the requirement to report under subsection (1) merely because the information would be privileged under section 127 of the Evidence Act 2008. …

This amendment dovetails with §327 of the Crimes Act 1958.  This section relevantly provides that

Section 327 – Failure to disclose sexual offence committed against child under the age of 16 years 

(2)     … a person of or over the age of 18 years (whether in Victoria or elsewhere) who has information that leads the person to form a reasonable belief that a sexual offence has been committed in Victoria against a child under the age of 16 years by another person of or over the age of 18 years must disclose that information to a police officer as soon as it is practicable to do so, unless the person has a reasonable excuse for not doing so.

Penalty:     3 years imprisonment. …

This would be fairly unremarkable, but for the amendments to the Evidence Act.  Post-amendment, §127 of that Act relevantly reads as follows –

Section 127 – Religious confessions
(1)     A person who is or was a member of the clergy of any church or religious denomination is entitled to refuse to divulge that a religious confession was made, or the
contents of a religious confession made, to the person when a member of the clergy.

(2)    Subsection (1) does not apply— …
   (b)        in a proceeding for an offence against section 184 of the Children, Youth and Families Act 2005; or
    (c)    in a proceeding for an offence against section 327(2) of the Crimes Act 1958. …

(4)     In this section, “religious confession” means a confession made by a person to a member of the clergy in the member’s professional capacity according to the ritual of the church or religious denomination concerned.

The effect of this is tolerably clear: in cases falling under the CYF Act or the Crimes Act, a priest may now be prosecuted for failing to maintain the seal of the confessional.  In these cases, a cleric is to be obliged to violate a sacrament and to excommunicate himself (a person who dies in such a condition has no hope of salvation).  While the Minister who steered the legislation through Parliament insisted it applied to a range of faiths, it’s unlikely many people think it was aimed at anyone except Catholics:

For better or worse, §116 of Australia’s Constitution offers clerics little protection.  In relevant part, that section says that “The Commonwealth shall not make any law … for prohibiting the free exercise of any religion”.  Leaving aside whether s.116 applies to State legislatures, the High Court long ago emptied the section of most of its force.  As Griffith CJ put it in Krygger v Williams (1912) 15 CLR 366

To require a man to do a thing which has nothing at all to do with religion is not prohibiting him from a free exercise of religion. It may be that a law requiring a man to do an act which his religion forbids would be objectionable on moral grounds, but it does not come within the prohibition of sec. 116, and the justification for a refusal to obey a law of that kind must be found elsewhere.

I remember my long-ago lecturer in Criminal Law went through a thought experiment where he demonstrated that law of even the most 1984-esque type could be rationalised as being for the protection of children.  One imagines he may now feel vindicated.

What did police not see?

An interesting case was mentioned on the ABA Journal’s website recently.  The case concerns litigation against the US Federal government for failing to identify that the perpetrator of the Charlestown massacre was not able to purchase a firearm.

The article notes that

A federal appeals court has ruled that the federal government can be sued for failing to uncover information about the Charleston, South Carolina, church shooter during a background check that would have barred him from being able to buy a gun from a licensed dealer before the mass shooting. …

The review was run by the FBI’s National Instant Criminal Background Check System. … The government reviewer contacted the wrong police department for records of Roof’s arrest because of a misstatement in a government database. …

If the government reviewer had been using discretion and decided against obtaining the arrest report, the government would be immune, the 4th Circuit said. But the examiner instead was required to get the report from the arresting agency under internal operating procedures that remove any discretion from reviewers. “The government can claim no immunity in these circumstances,” the 4th Circuit said.

This poses an interesting light on the broad principle that the state has only a limited duty to detect and prevent crime.  The law has traditionally been unwilling to be an armchair-quarterback to decisions made by police in exercising their discretion as to discharging their role: see Hill v Chief Constable of West Yorkshire [1989] AC 53.  In this case, however, there was expressly no discretion and so the failure by the reviewer would have lacked a common law immunity.  As a result, one can infer that the more prescriptive a government (or police force) is about its members’ duties, the less likely it is that a court may need to adopt the wide approach to liability taken by (say) South African law in Van Eeden v Minister of Safety and Security, 2003 (1) SA 389 (SCA).

Fun with Flags

I think I’ve mentioned that we have a remarkably diverse clientele here.  Looking over my notebook for today I see that I’ve worked on the files of clients who were born in nine different countries.  I thought it might be an interesting challenge to share the flags of each; how many can you name?

Happy Competing!

North Macedonia
El Salvador

A time to speak?

A recent story in Lawyers’ Weekly has left me wondering how much a judge’s public comments should be restrained after retirement.

According to the story, His Honour Michael Kirby, a retired Justice of the High Court of Australia, spoke at an LGBTIQ book launch.  His comments noted that –

Justice Kirby said Australia should be wary of the draft Religious Freedom Bill, brought to light by Attorney-General Christian Porter, as it was not “drafted by friends”.

“I think we have to watch the Religious Freedom Bill with the greatest of care because that has not been drafted by friends or allies,” Justice Kirby said. “It has been drafted by people that want to go back to the binary division, fixed by penis and vagina.”

It is hard not to be a little troubled by a man of His Honour’s stature stating that a Bill had ‘not been drafted by friends or allies’, because the implication is that it has been drafted by enemies.  It is not clear whom he may have had in mind.  Attorney-General Porter, perhaps?  Parliamentary counsel?  Regardless, it seems to me that a lay person might reasonably wonder how far His Honour’s view of the law might be shared by his successors on the High Court, and what that might mean for any challenge to the law.

A more problematic set of statements appeared at the end of the article, where it was reported that

Justice Kirby said [transsexual people] “… get a very hard time from the Roman Catholic Church”.

“They get that hard time because of the notion of civil law that you have to go back to natural law, and natural law is based on the binary division of human beings with penises and vaginas. And by that standard of nature you are fixed forever and you must fulfil that role,” Justice Kirby said of these attitudes.

“This is the natural law of teaching and that is what the church has said in its latest publication. It is totally opposed to transition surgery and to different bathrooms and other benefits for trans people. The battle at the level of the church is not over.”

The phrasing of a “battle at the level of the [Catholic] church” seems unfortunate when there are reports that Cardinal Pell will seek special leave to appeal to the High Court over his sexual assault convictions.

Retired members of the Bench are potentially a valuable source of wisdom in the public forum, but it seems to me that getting too near the coalface of debate is dangerous.  The risk of calling the Court’s impartiality into question is too great.

The taxman in Portugal

I’m not sure how it happened, but I somehow ended up on the mailing list of Portuguese law firm Caiado Guerreiro.  My firm has a remarkably large Portuguese clientele, so I keep an eye on these emails (courtesy of Google Translate) in order to be able to pass on anything that might be useful.


I received one the other day why probably isn’t much use to our clients, but that I found interesting.  It covers the right to silence in tax cases.  Courtesy of Google Translate it reads –

A recent ruling by the Constitutional Court (TC Ruling No. 298/2019 of 15 May) strengthened taxpayers’ guarantees to the Tax Authority.

At issue was the non-delivery of VAT, but what stands out in this case is the defendants’ right to non-self-discrimination. After conviction at first instance for the practice of abuse of fiscal confidence, the defendant appealed to the Court of Appeal which dismissed the appeal. In the context of the appeal, its nullity was argued and some points of the judgment under appeal were clarified.

The argument was based on the principle nemo tenetur se ipsum accusare, the right to silence, namely the provision of information or the delivery of self-discriminatory documents. The Constitutional Court has recognized that this principle is not absolute and may be legally restricted, however, this was not the case. The defendant, during a tax inspection that took place during the investigation of the criminal proceedings, believing that he was obliged by virtue of the duties of tax cooperation before the TA and under penalty of being fined, handed several documents and accounting information to the Tax Authority without the prior knowledge or decision of the competent judicial authority. That is, it was forced to make available information that became an instrument of its own incrimination.

As the court states, a possibility arises for linking procedures (tax inspection and tax criminal proceedings) which are governed by contrary principles, on the one hand the principle of cooperation with the TA and on the other a principle which is reflected in the right to silence.

Faced with the above imperatives, the Constitutional Court ruled unconstitutional, in breach of the nemo tenetur se ipsum accusare principle, under Article 32 (1) of the Constitution of the Portuguese Republic, the normative interpretation of Articles 61 (2) 1 (d), 125 and 126 (2) (a), all of the Code of Criminal Procedure, according to which tax-relevant documents obtained under the duty of cooperation laid down in Article 9 (1) of the Complementary Regime of the Tax and Customs Inspection Procedure and Article 59 (4) of the General Tax Law within the scope of the tax inspection that runs terms concurrently with the investigation phase of a case criminal offense for the commission of a tax offense against the inspected taxpayer may be used as evidence in the same proceeding.

Thus, the TC understands that the documents and information obtained by the TA in the context of a tax inspection cannot be used against the taxpayer who runs concurrent terms.

In the original it reads –

Uma decisão recente do Tribunal Constitucional (Acórdão do TC n.º 298/2019, de 15 de maio) reforçou as garantias dos contribuintes perante a Autoridade Tributária.

Em causa estava a não entrega de IVA, mas o que sobressai deste processo é o direito dos arguidos à não autoincriminação. Após condenação em 1ª instância pela prática de abuso de confiança fiscal, o arguido recorreu para a Relação que julgou o recurso improcedente. No âmbito do recurso foi arguida a sua nulidade e solicitou-se o esclarecimento de alguns pontos do acórdão recorrido.

A argumentação correu em volta do princípio nemo tenetur se ipsum accusare, o direito ao silêncio, nomeadamente a prestação de informações ou a entrega de documentos autoincriminatórios. O Tribunal Constitucional reconheceu que este princípio não é absoluto, podendo ser legalmente restringido, no entanto, este não foi o caso. O arguido, em sede de inspeção tributária que decorreu durante o inquérito do processo-crime, acreditando estar obrigado por força dos deveres de colaboração em matéria tributária perante a AT e sob pena de lhe ser aplicada uma coima, entregou vários documentos e informações contabilísticas à Autoridade Tributária, sem o prévio conhecimento ou decisão da autoridade judiciária competente. Ou seja, foi forçado a disponibilizar informação que se transformou em instrumento da sua própria incriminação.

Como refere o tribunal, emerge uma possibilidade de ligação dos procedimentos (o de inspeção tributária e o processo penal fiscal) que são regidos por princípios de sentidos contrários, por um lado o princípio da cooperação com a AT e por outro um princípio que se reflete no direito ao silêncio.

Confrontados os imperativos supra, o Tribunal Constitucional julgou inconstitucional, por violação do princípio nemo tenetur se ipsum accusare, ínsito no artigo 32.º, n.º1, da Constituição da República Portuguesa, a interpretação normativa dos artigos 61.º, n.º 1, alínea d), 125.º e 126.º, n.º 2, alínea a), todos do Código de Processo Penal, segundo a qual os documentos fiscalmente relevantes obtidos ao abrigo do dever de cooperação previsto no artigo 9.º, n.º 1, do Regime Complementar do Procedimento de Inspeção Tributária e Aduaneira e no artigo 59.º, n.º 4, da Lei Geral Tributária no âmbito de inspeção tributária que corre termos em simultâneo com a fase de inquérito de um processo criminal pela prática de crime fiscal movido contra o contribuinte inspecionado, podem ser utilizados como prova no mesmo processo.

Assim, entende o TC que os documentos e informações obtidos pela AT no âmbito de uma inspeção tributária não podem ser utilizados contra o contribuinte em sede de processo-crime que corra termos em simultâneo.

I find it interesting that a person may indeed be able (in that jurisdiction) to refuse to hand over records on self-incrimination grounds.  At some point I should have a look at whether the IRS or ATO face similar restraints.

Did blame end with death?

An interesting case on liability and causation was recently decided by the Supreme Court of South Carolina.

On 3 February 2011 pharmacist John Wickersham was involved in a road accident while driving a Ford Escape.  The airbag system was defective and enhanced his injuries.  After enduring severe pain for some months, he committed suicide.  His widow sought compensation from the manufacturer of the car  based on his wrongful death.  Ford argued that the deceased’s suicide was an intervening act that could not have been caused by a defective airbag.

white airbag instruction label
Photo by Markus Spiske temporausch.com on Pexels.com

After a number of procedural twists and turns (including removing the case to federal court) a jury awarded the widow $4.65 million, albeit with a discount for Mr Wickersham’s contributory negligence.  Ford appealed to the Fourth Circuit Court of Appeals.  The Court of Appeals then asked the South Carolina Supreme Court to determine whether that State’s law recognised an exception to the principle that suicide will break the chain of causation in wrongful death claims.

The Supreme Court responded that it did not recognise such a principle.  Instead, the ‘traditional’ principles of causation applied: that is, the court must first decide whether the suicide was foreseeable as a matter of law.  That is, was it the “natural and probable” consequence of the defendant’s act or omission?  If so, then the jury must determine whether in the facts of the case the suicide was foreseeable and whether the alleged act  was causative: that is, did it cause the deceased  to suffer an involuntary and irresistible urge to end his life.

Wickersham v Ford Motor Co (So. Carolina, 24 July 2019)

Putting out the Writs

I’m looking over my casebook and I’m struck by how active a week it’s been in terms of starting cases.  I’ve served or filed –

  • One Supreme Court writ
  • Two County Court writs
  • Two County Court originating motions
  • One Magistrates Court complaint

CC Seal

As Robert Maxwell (didn’t) say –

When I’m feeling in a mood

Someone out there will be sued!


When Basketball goes Bad

Earlier this year Pope Francis gave an address to the Italian Sports Centre.  His remarks included the observation that “[Sport] is a great school, provided that you live it with self-control and respect for others.”.  Recently the Supreme Court of Utah had to look at what this means in practice.

A basketball match at a meetinghouse of the Church of Jesus Christ of Latter Day Saints turned a bit ugly when one Judd Nixon was tackled by another player, Edward Clay.  The tackle was ruled to be an unintentional common foul, despite which Nixon suffered a serious knee injury.

action backboard ball basketball
Photo by Pixabay on Pexels.com

Nixon brought proceedings seeking damages in the Utah County District Court.  Judge Pullan granted a summary dismissal of the case on the grounds that a participant in a contact sport is liable only for the results of a wilful or reckless disregard for the safety of another player.  Mr Nixon appealed.

The Supreme Court of Utah dismissed the Appeal.  The Court adopted a simpler test which bypassed consideration of the defendant’s state of mind.  It expressed the relevant common law to be –

that voluntary participants in a sport cannot be held liable for injuries arising out of any contact that is “inherent” in the sport. Under our rule, participants in voluntary sports activities retain “a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.” Knight, 834 P.2d at 708. But there is no duty to lower or eliminate risks that are inherent in an activity.

In the circumstances, a grant of summary judgment was appropriate.

Interestingly, the Supreme Court of Utah was essentially the same as that reached by Australian courts in McNamara v Duncan and Smith v Emerson.

Nixon v Clay, 2019 UT 32

Unreasonableness and Regret

An interesting headline popped up in my twitter feed this morning.  The Australian had run an article which noted the possibility of litigation against doctors in cases of gender reassignment regret.

The article states that –

In Australia, troubled clinicians have urged the federal government to set up an urgent inquiry into the safety and ethics of “experimental” hormone drug treatment of girls as young as nine and boys from 11.

They say trans activism has trumped ethics and obscured the weak evidence for this radical treatment, with the dominant ­“affirmation model” pushing children down a medical path that can leave them infertile and incapable of orgasm, among other side-­effects. …

The US is seeing early signs of what ­clinicians believe will be a wave of regretful “detransitioners” across the English-speaking world.

This left me wondering what the legal options would be for a litigant.  The only caselaw on the subject of which I’m aware is Finch v Southern Health [2004] VCC 44; affirmed as Walters v Finch [2005] VSCA 203.  That case, however, dealt only with the time limit for bringing the proceeding.  I can find no decision in it post 2004; presumably the matter resolved.  In any event, since Finch’s Case the Wrongs Act 1958 has been amended to include §59, which relevantly says –

(1) A professional is not negligent … if it is established that the professional acted in a manner that (at the time …) was widely [but not necessarily universally] accepted in Australia by a significant number of respected practitioners in the field (peer professional opinion) as competent professional practice in the circumstances.

(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court determines that the opinion is unreasonable.

It occurs to me that subsection (2) may make for some interesting litigation if the ‘wave of regretful “detransitioners”‘ becomes a reality.  It is hard to be unaware of the fraught nature of public discussion surrounding transgender issues.  The danger of being caught in a social media wildfire is unacceptably high for many serious and reasonable research institutions.  If this public pressure were to result in a substantial skewing of research, a court may well be asked to determine that the relevant professional opinion is unreasonable.

Who owned the elephant?

Bart Simpson famously asked “where’s my elephant?”

He wasn’t the first.

In 1914 or 1915 Mr Maung Dwe of Burma captured an elephant and trained it to work. About six months later he sold it to Mr Maung Sin, for whom it worked until 6 June 1917 when it became lost in the jungle. The creature appears to have joined with a herd of wild elephants. In June 1918 it was recaptured by Mr Maung Shwe. He found it was able to be put to work very soon thereafter. Sin sued successfully for recovery of the elephant. The defendant appealed to the Lower Burma Chief Court.

Elephant at work - Rangoon, Burma
Elephants at work, Rangoon (c.1907) [Image from here]
Higinbotham J took his bearings from Halsbury’s Laws of England, vol.1 ¶¶798799. According to Halsbury a person can have only “qualified” property in a wild animal.  If a wild animal escapes to its former liberty, the ownership is lost.  He continued –

Elephants are animals which, though by nature wild, are peculiarly amenable to training and quickly become tame. If any such tame and trained ani­mal should go off with a wild herd of other elephants and remain at liberty so long that when recaptured, it had to be dealt with and trained as if it were a wild animal, which had never before been tamed and trained, I think it would be correct to say that it had reverted to its natural state and was in fact a wild animal.  In such case, the former owner would have lost all property to it.  But if on recapture it was found to be tame and could be put to work again almost at once, I think it would be incorrect to say that it was a wild animal.

In this case the recaptured elephant had been returned to work in a very short time and appeared trained.  It followed that it was not a wild animal when recaptured and so Sin remained the owner.

Shwe v Sin, AIR 1921 Lower Burma 1