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.

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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.

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.

Evidence: it’s rather useful

I once saw an Articled Clerk appearing for a plaintiff in a mention before the Melbourne Magistrates Court.  The Magistrate asked her “what’s the estimated duration of the hearing?”

AC: “I don’t have instructions on that, Your Honour”

Court: “Well, how many witnesses do you intend to call?”

AC: “We don’t propose to call any, your honour” [presumably the actual strategy was to negotiate at the door of the court]

Court (looking curious): “ok … how do you propose to prove your case if the defendant exercises its right not to call any witnesses?

A recent appeal out of California suggests how such a scenario might play out.

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You don’t expect to come out of a yoga class injured. Relaxed maybe. Even chilled out. But not injured. It isn’t work out that way for Ms Webster. During a yoga class on 11 October 2014 her position was twice adjusted by the instructor. She alleged that these adjustments injured her neck. She sued the school operators alleging negligence.

The defendant sought summary dismissal of the claim which was granted: Webster v Claremont Yoga (L.A. Co. Sup. Ct, Nieto J, 3 October 2016, unreported).  The plaintiff appealed.

The Court of Appeal noted the need for expert evidence in cases of professional negligence, unless a matter lay within a jury’s common experience.   The only expert evidence available in this case was supplied by the defendant.  It said that he had observed the relevant standard of care.

Plaintiff argues that an expert’s testimony is not determinative, even when uncontradicted, because a jury may reject it. … But even if a jury rejected Simons’s opinion, plaintiff would still have the burden affirmatively to establish the applicable standard of care and a breach thereof, which she cannot do without an expert. In the absence of an expert, she could not show a triable issue of material fact, and defendants were entitled to summary judgment.

The court went on to consider the plaintiff’s doctor’s notes, which recorded complaints of  injury which she associated with yoga.  These were not considered sufficient to raise a causation issue for a jury to resolve.

Webster v Claremont Yoga (Calif. Ct of Apeal, 31 July 2018)

The oil of speculation

Expert evidence comes in many shapes and sizes.  Circular shouldn’t be one of them.

On2 February 2014 Rose Peralta entered a California supermarket to buy bread.  As she approached the bakery her left foot slid and she fell, suffering injury.  She did not see anything on the floor before or after falling but said she felt as though she had slipped on oil or grease.  She was observed to be wearing shoes with a 3-inch stiletto heel.

Peralta issued proceedings in the Los Angeles County Superior Court.  She relied on an opinion from a civil engineer.  The engineer opined that the flooring would be dangerously slippery if grease or oil were present, and that the fall would not be expected to occur without such substances on the floor.

Image from here

The defendant sought summary dismissal of the claim which was granted: Peralta v The Vons Companies Inc (L.A. Co. Sup. Ct, Oki J, 14 February 2017, unreported).  Peralta appealed.

The appeal was dismissed.  Concerning the engineer’s opinion the Court said –

Peraltas … attempt to establish there was a slippery substance on the floor through Avrit’s declaration, in which he opines that the manner in which Rose fell is consistent with a slip created by a foreign substance. Mere conjecture, however, is “legally insufficient to defeat summary judgment.” (Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, 734.) The mere possibility that there was a slippery substance on the floor does not establish causation. Absent any evidence that there was a foreign substance on the floor, or some other dangerous condition created by or known to Vons, Peraltas cannot sustain their burden of proof.

The opinion was considered to be, in effect, speculation.

Peralta v The Vons Companies Inc (California Court of Appeal, 30 May 2018)

Ex Africa semper aliquid novi

Nobody really won on 25 July 2005.

In a town in South Africa on the night I mentioned, Mr Shavhani Ramusetheli was shot in what may have been a robbery.  Four men were charged with murder, robbery and attempted murder.  In the Limpopo High Court, one of the men was convicted of murder and aggravated robbery.  The sole evidence against him was an extra-curial statement by one of his co-accused exculpating himself and incriminating the others –

In that statement, the first accused alleged that he was party to a conspiracy involving his co-accused in terms of which it was agreed that they would rob the deceased of his money. He alleged that his role was to point out the deceased’s homestead to the second and third accused whilst the fourth accused’s role was to supply the firearm to be used during the robbery. The appellant drove them to the deceased’s home in a Toyota Venture motor vehicle owned by the appellant’s employer. The first accused said that he was an unwilling participant in this escapade but was compelled to participate for fear of reprisal at the hands of his co-conspirators and in particular the fourth accused. He went on to allege that it was the second accused and the appellant who committed the offences with which they were charged and that the former was the one who pulled the trigger. In his testimony at the trial, the first accused in substance regurgitated the contents of his statement.

Mulaudzi v S (Theron, Petse and Willis JJA, Supreme Court of Appeal of South Africa, 20 May 2016, unreported)

The man with whom we are concerned was sentenced to imprisonment for life for murder and to 20 years imprisonment for robbery: S v Mushweu & Ors (Limpopo High Court, Makgoba AJ, 22 August 2005, unreported.

LP High court
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The defendant appealed to the Supreme Court of Appeal.  The matter took over a decade to be dealt with, largely for reasons outside the appellant’s control.  Lewis and Saldulker JJA and Mothle AJA noted that the common law principle that

admissions made extra-curially were not to be used against a co-accused. … [S]ince any out-of-court statement by a co-accused would compromise the constitutional right to a fair trial, it should not be admissible against an accused.

The Court upheld the appeal and set aside the conviction.  A verdict of acquittal was entered in its place.

Ndwambi v S, The South African, 20 June 2018.


The War got in the way

One of the beauties of law reports is that every so often you stumble across a long-forgotten case that you would otherwise never consider. This happened to me recently, when I found a case where the war got in the way of a plaintiff.

The case might be one of the earliest motor-accident injury claims. In the early twentieth century a lady named Wilkie was sitting in a jinker (a type of horse drawn buggy). The jinker was hit by a bus operated by the Melbourne Motor-Bus Co Ltd. She brought proceedings in the County Court of Victoria for her injuries. The jury rejected the claim and found for the defendant.

Horse and jinker (Image from here)

The plaintiff applied for a new trial. Before her application could be heard, she learned that some of her witnesses – soldiers in the Australian Army – were to leave the state on 4 April 1916 (one might infer that they were to leave for the War). On 3 April 1916 she applied to the Supreme Court of Victoria for an order for their oral examination. Section 4 of the then Evidence Act 1915 relevantly provided that

It shall be lawful for the Supreme Court … in any action or suit depending … in any county court … upon the application of any of the parties to such action or suit to order the examination on oath upon interrogatories or otherwise before some person to be named in such order of any witnesses within Victoria … ; and by the same or any subsequent order … to give all such directions touching the time place and manner of such examination … and all other matters and circumstances connected with such examinations as appear reasonable and just….

The modern analogue of this section is §4 of the Evidence (Miscellaneous Provisions) Act 1958.

Bus belonging to the defendant (Image from here)

A’Beckett J dismissed the application on the grounds that he had no jurisdiction. His concern seems to have been that because jury in the case at first instance had dismissed the claim, there was no pending case (presumably, at least, not until the plaintiff had successfully sought a new trial).

Wilkie v Melbourne Motor-Bus Co Ltd [1916] VLR 211