No. 141

VICTORIA

LAW REFORM COMMISSIONER

Report

for the

Year ended 30 June 1983

Ordered by the Legislative Assembfl' to be printed

MELBOURNE F D ATK.INSON GOVERNMENT PRINTER

1982-84

The Honourable James H. Kennan, M.L.C.,

Attorney-General of Victoria,

State Law Offices,

221 Queen Street,

Melbourne, Victoria. 3000.

Dear Attorney-General,

I have the honour to present, as required by section

12 of the Law Reform Act 1973, the Tenth Annual Report of

the Law Reform Commissioner upon the performance of his

functions under the Act.

l. INTRODUCTION

Substantial progress has been made on the law reform

projects initiated in earlier years. In addition, research

has begun on the reform of the law of homicide in Victoria.

The inauguration of work on this project was made possible

by the establishment of an additional position of Legal

Assistant, to which an appointment was made in September

1982. But the size of the research and support staff is

still modest when compared to those in other Australian

law reform agencies.

2. OFFICES UNDER THE ACT

During the year ended 30 June 1983, the holders

of offices under the Act have been:-

Law Reform Commissioner:

Professor Louis Waller.

- 2 -

Members of the Law Reform Advisory Council:

The Law Reform Commissioner (Chairman); Mr. E. w. Gillard, Q.c.,- Nominee of the Chairman

of the Victorian Bar Council; Mr. John Bennison - Nominee of the President of

the Law Institute of Victoria; Mrs. Jocelyn Howlett appointed by Mr. Mark w. Sibree the Professor Enid M. Campbell Attorney-General.

Legal Assistants to the Law Reform Commissioner:

Mr. George Ryan: Mrs. Loane Skene; Ms Bronwyn Naylor (from 1 October 1982).

Secretary to the Law Reform Commissioner: Ms Elizabeth Russell.

Part-time Secretary-Stenographer: Mrs Margaret McHutchison.

Receptionist:

3.

Mrs. Esther Shoueka, jointly employed by the Victoria Law Foundation and the Law Reform Commissioner.

REPORTS No reports were submitted. Work on the several

references has proceeded throughout the year, and is described later in this Report.

- 3 -

IMPLEMENTATION OF REPORTS

4. On 30 June 1983 the situation regarding the implementation of Reports was as follows:

Number and Date of Report

No. 1 (August 1974)

No. 2 (October 1974)

No. 3 (June 1975)

No. 4 (February 1976)

No. 5 (June 1976)

The Subject of the Recommendations

Abolition of the doctrines of constructive murder and introduction of consequential changes

1. Appeals from insanity verdicts in criminal trials

2. Legal aid for bail applications

3. Notice of alibi defences

4. Order of addresses

) ) ) ) )

5. Taking other offences) into account

Changes to bring into accord with present-day conditions the special rules relating to the criminal liability of married persons

Delays in Supreme Court Actions

Rape Prosecutions

Implementation

Crimes Act 1976

Crimes Act 1976

Crimes (Married Persons' Liability) Act 1977

Minor amendments relating to particul­ars of claim made to s. 21 of Wrongs Act 1958 by Act 9153 of 1978.

Rape Offences (Proceedings) Act 1976

Number and Date of Report

No. 6 (November 1976)

No. 7 (June 1978)

No. 8 (April 1979)

No. 9 (October 1980)

No.lO (November 1980)

No. 11 (June 1981)

No. 12 (January 1982)

- 4 -

The Subject of the Recommendations

Spouse-Witnesses (Competence and Compe·llabili ty)

Innocent Misrepresentation

Pre-Incorporation Contracts

Duress, Necessity and Coercion

Delivery ot ueeds

Unsworn Statements in Criminal Trials

Provocation and Diminished Responsibility as Defences to Murder.

*

Implementation

Crimes (Competence and Compellability of Spouse-Witnesses) ~ 1978

Under consideration.*'

The recommendations made in this Report have been incorp­orated in s. 81 of the Companies Act 1981 (Commonwealth).**·

Under consideration.

Property Law (Delivery by Agent) ~ 1981.

Under consideration, in connexion with the A.L.R.C. Refere.nce on Evidence

Under consideration.*

Both of these Reports are being considered by me in the context of the Reference

**

***

on the law of homicide.

This matter was considered in relation to the Inquiry into Deceptive Trade Practices Law, carried out by the Victorian Consumer Affairs Council: see its Report 1983.

And see s. 81 of the Companies (Victoria) Code 1982.

- 5 -

5 . WORK IN PROGRESS

5.1 Intoxication and Criminal Responsibility.

Work on this reference has comprised legal

research, an examination of the.effect of the rule in

O'Connor's case in the day-to-day work of the criminal

courts in Victoria, and wide-ranging consultation,

especially but not only with judges, magistrates and

lawyers. The programme of consultation undertaken in

relation to this reference is probably the most comprehensive

ever attempted in Victoria.

As part of that programme, Mrs Skene wrote an

article entitled "Drunkenness and Acquittals", published

in (1983) 57 Law Institute Journal, 318, which invited

readers to comment. She has conducted interviews with many Victor~an judicial officers, partly as a result

of that publication, and spoken to a number of groups

of lawyers.

A seminar on the subject of the reference was

held on 25 February 1983, to which criminal law teachers from the three metropolitan universities were invited.

I accepted an invitation to deliver the 15th Leonard Ball Oration, under the auspices of the Alcohol and Drug Foundation, on "Intoxication and Criminal Responsibility".

The Oration was delivered on 26 May 1983, and has since been published. It received press and radio publicity,

and this in turn resulted in a number of responses and

comments from members of the community.

A short Issues Paper on the reference has been

prepared, which will be published in the next few weeks.

The Paper is written for a general audience, and after

considering comments which I expect that Paper to elicit,

a final Report will be prepared in the early part of

1984.

- 6 -

5.2 The Law of Homicide.

A reference on this subject was received on 12 July 1982. I decided to begin by examining first the law of murder. This was the subject of the first Report of the Law Reform Commissioner, in October 1974. Since that Report was presented,capital punishment for murder has been abolished in Victoria by the Crimes (Capital Offences) Act 1975. Part of constructive murder, the felony murder rule, was also abolished by the Crimes (Classification of Offences) Act 1981; in its place is the provision

in sec. 3A (1) of that enactment. There have also been important judicial developments of the definition

of murder, provocation, and self-defence. Some of these matters were considered in Report No. 12, Provocation and Diminished Responsibility as Defences to Murder. (See the Ninth Annual Report.)

Since Ms Naylor took up her appointment as the third Legal Assistant at the beginning of October 1982 she has undertaken wide-ranging research on this aspect of the reference. This has included an examination of the administration of the law of murder in Victoria. The Criminal Law Branch of the Law Department and the Office of the Director of Public Prosecutions have provided ready access to

their records and files. As part of the examination of the punishment for murder discussions have been

held with the Chairman, Deputy Chairman and Secretary of the Adult Parole Board.

A Working ·Paper on the definition and punishment of murder will be published shortly.

- 7 -

5.3 Corporate Crime.

Work continues on this subject. Mr. Ryan has prepared

further drafts for a proposed Discussion Paper. The subject encompasses not only the still much-debated question of

imposing criminal responsibility on corporations (apart

from or as well as upon their directors and managers) but

also the scope and ambit of the law of theft and related

offences, as these relate to corporate activities. In

addition there are the serious issues of the trial of complicated

commercial cases, where the abandonment of jury trial for

indictable offences has been proposed in some jurisdictions;

and the investigation and prosecution of these cases. The

subject of computer crime has also been canvassed. While

there are, of course,·many links between that and corporate

crime, it is a distinct topic of very large dimensions.

I have decided that computer abuse should be left to a separate

investigation.

In connection with the work on corporate crime,

I convened a meeting on 11 November 1982 to discuss the prosecution of complicated commercial cases. This was arranged to take advantage of the visit to Melbourne by Mr. John Wood, Principal Assistant Director of Public Prosecutions for England and Wales; he has had substantial experience in the institution and management of these sorts of cases. Mr. Leonard Flanagan, Q.C., Crown Counsel, and Messrs Colin

Hollis-Bee, Michael Strong and Paul Willee, Prosecutors for the Queen, (who presently constitute the Commercial

Crime Group), all participated, as did Mrs. Jan Wade, the

Commissioner for Corporate Affairs. Mr. Wood said that in England

the office of the Director of Public Prosecutions tried to assume the direction of the investigation of a complex commercial

fraud matter at the earliest possible stage. This meant

that duplication could be avoided and peripheral and trivial

issues not pursued. The number of counts in any indictment

preferred was kept small; usually there were no more than

three.

- 8 -

Mr. Wood also described the system of pre-trial review which had been developed, principally at the Old Bailey. This permits and clearly encourages both prosecution and defence counsel to clarify and refine the contentious issues in the case. In the discussion which followed his

~ess,Mr. Wood suggested that the proposal for abolition of jury trials in complex commercial prosecutions would gather momentum. It has subsequently received support

from the Lord Chancellor, the Lord Chief Justice, and the Chairman of the Law Commission of England and Wales.

I arranged for Mr. Ryan to attend the Commercial Crime Symposium conducted at Cambridge University in December

1982. It was held under the auspices of the Commonwealth Secretariat and the Centre for Commercial Law Studies in the University of London. At the Symposium papers covering the several matters already mentioned in this section were presented. It provided excellent opportunities for Mr. Ryan to discover in detail what was being done in the United Kingdom, and to a degree in several other Commonwealth countries, and for him to communicate some of the work carried out in Victoria. Mr. Ryan prepared a report on the Symposium which the Advisory Council discussed, and copies were distributed to the Commercial Crime Group and the Commiss­ioner for Corporate Affairs.

5.4 Other Matters

A number of serivus proposals for law reform has been received from members of the community, from

professional associations, and from the Law Department. In conformity with the provisions of sec. S(a) of the

Law Reform Act 1973, I have been able to consider and report on some of these, without serious interruptions to the work on the main references already described.

- 9 -

5.4.1 Testator's Family Maintenance for Former Spouses: Administration and Probate Act 1958, Part IV.

Following the decision of Mr. Justice Tadgell

in Krause v. Sinclair and another , [1983] V.R. 73 (1982),

senior counsel for the unsuccessful plaintiff referred

this Part, especially sec. 91, to me. A report on the

subject, recommending certain changes in this part of

the law, was sent to the Attorney-General.

5.4.2 Consumer Affairs and the Proposed Residential Disputes

Tribunal.

A brief discussion paper on this subject was

received from the Ministry of consumer Affairs. In

response, a memorandum of advice and comment was sent to the Director of Consumer Affairs.

5.4.3 Affidavits for Use in the Supreme Court: Evidence

Act 1958, Part IV, Divisions 7, 8 and 9.

A solicitor practising in the country proposed that all legal practitioners be empowered to take and

receive affidavits for use in the Supreme Court. I sent a memorandum on the subJect to the Chief Justice of Victoria, as Chairman of the Chief Justice's Law Reform Committee, and to the Attorney-General.

5.4.4 Electronic Eavesdropping and the Listening Devices

Act 1969.

The Acting Secretary of the Law Department asked

me to comment on Mr. Ian Elliott's paper "Listening Devices

and the Participant Monitor: Controlling the Use of Electronic

Surveillance in Law Enforcement", now published in (1982) 6 Crim L.J. 327. The subject was examined extensively,

- 10 -

and the criticisms and proposals, made by Mr. Elliott (who

is a Senior Lecturer in Law in the University of Melbourne}

were considered, and discussed with him. I provided comment and advice on the subject to the Acting Secretary.

Since these matters were not the subject of formal published Reports, I have not described my comments or proposals in any detail.

6. SEVENTH AUSTRALIAN LAW REFORM AGENCIES CONFERENCE

This Conference was held in Adelaide on 24 and 25

September 1982. Mrs. Skene and I took part in the Conference, as did Sir Murray Mcinerney, who represented the Chief Justice's

Law Reform Committee.

All Australian law reform agencies were represented,

and so was the Papua-New Guinea Law Reform Commission. The Chief Justice of South Australia, Mr. Justice King, opened the meeting. In his address he reminded the-gathering that nearly all the law reform agencies represented at the Conference had come into existence in the last twenty years. The need for laws to be regularly reviewed and brought up to date, in order to cope with the very rapid rate of change in moral and social attitudes which would otherwise be divisive if legal change did not take place, had brought about this development. Law reform agencies can deal effectively with divisive social issues because they are able to examine the available legal options

and to assess the consequences which may follow each of these

options.

Reports on work in progress and current references were

made by all the agencies present. In addition Professor Ronald

sackville, Chairman of the New South Wales Law Reform Commission,

- 11 -

gave a paper in which he reviewed the role and success of law

reform agencies. Mr. H. H. Jackson of the Law Reform Commission

of Western Australia gave a paper on the Cost Effectiveness

of Law Reform Methods, and Techniques of Driving the Law Reform

Dollar Further. The major themes discussed after presentation of both these papers were consultation in the work of law reform

and collaboration and co-operation between Australian law reform

agencies, and overall co-ordination and rationalisation of their

activities. [ The last subject was to be extensively considered

at the Eighth Australian Law Reform Agencies Conference, in Brisbane

in July 1983. This will be discussed in the next Annual Report,

since it falls outside the period covered by this Report.]

7. CHIEF JUSTICE'S LAW REFORM COl.fMITTEE

The Ch~ef Justice of Victoria remains the Chairman of

this Committee, of which I am a member.

The work of this Committee is the subject of a report

by the Chief Justice of Victoria in his Annual Report.

8. PARTICIPATION IN CONFERENCES AND SEMINARS

My legal assistants and I have taken part in a number of seminars, discussions, conferences and meetings throughout the year. Many of these have been closely connected with work on one or other of the references already described. Others have been concerned with law reform projects carried out by other Australian law reform agencies. The subjects

have ranged from reform of the legal profession, forensic

psychiatry, alcohol, drugs and criminal responsibility, and

commercial and corporate crime.

Whenever possible, invitations to speak to schools and

to teachers, and to take part in in-service training and courses

for teachers, have been accepted by me and my legal assistants.

- 12 -

9. LAW REFORM ADVISORY COUNCIL

Members of the Council have taken part in the meetings and seminars arranged in connection with the work on corporate crime and with the work on intoxication and criminal responsibility, described above. In addition there was a formal meeting of the Council on 5 May, at which work on all references was critically reviewed.

10. CLEARING HOUSE NOTES

During the year two editions of the Clearing House Notes have been prepared and circulated among: (i)

(ii)

(Hi)

(iv)

11.

The Chief Justice's Law Reform Committee; The Parliamentary Legal and Constitutional Committee; The Victoria Law Foundation;

The Law Reform Commission, Australia.

VISITORS Visitors have included Mr. John Wood, Principal Assistant

Director of Public Prosecutions for England and Wales; Mr. J. A. Couldrey, OBE, a member of the Kenya Law Reform Commission; and Professor H. J. Schneider of the Department of Criminology in the University of Munster/Westphalia, Federal Republic of Germany. Professor Schneider has carried out extensive research on victims of crime, and in connection with his visit it was possible to arrange for him to meet Mr. A. J. Scurry, Q.C., who constitutes the Crimes Compensation Tribunal.

12. OVERSEAS VISITS

I took part in the Fourth International Symposium on

Victimology held in Tokyo and Kyoto, Japan, in September 1982.

As well as being a member of the International Organising Committee of that Symposium I also acted as Rapporteur for one

session. I was able afterwards to give the Working Party to Review the Criminal Injuries Compensation Act 1972 some information about criminal injuries compensation in Japan, and on

the development of the law on this subject in the United States.

- 13 -

I was a member of the Delegation to China on Criminal Law and Procedure, established by the Joint Committee to Promote Legal Exchanges with China of the Law Council of-Australia and the Australasian Universities Law Schools Association. The Delegation, which was led by Mr. Justice R. E. McGarvie of the Supreme Court of Victoria, spent the last two weeks of October 1982 in China meeting legal workers including judges, law teachers and government officers, and gave seminars and presentations on Aspects of Australian Criminal Law and Procedure. A copy of the Delegation's Report of May 1983,

prepared with the assistance of the Law Department, has been handed to the Attorney-General.

13. COMMITTEE ON IN VITRO FERTILISATION IN VICTORIA

I have been Chairman of this Committee, which was est-ablished in May 1982. The Committee's Interim Report was submitted to the Attorney-General in September 1982, and its Issues Paper on Donor Gametes in IVF was published in April 1983. (The Committee's Report on Donor Gametes in IVF was published in August 1983, outside the period of this Report.)

Though my Chairmanship of the Committee is not as a result of a reference from the Attorney-General, or strictly speaking within the terms of the Law Reform Act 1973, it has taken up a significant part of my time in my office as Law Reform Commissioner. The committee has had excellent secretarial support from the Law Department, and has received some administrative and research assistance from the Department as well. But in order for it to carry out its work effectively it has been necessary for me to arrange for substantial

secretarial assistance, and some research and administrative support, to be provided by my staff.

I welcome this opportunity to express my appreciation to my legal assistants, my secretary, and my secretarial staff, and to the Executive Director and staff of the Victoria Law Foundation for the help and advice that they have provided to me and to the members of the Committee.

- 14 -

14. FINANCIAL

A Statement of the Receipts and Expenditure for the Law Reform Commissioner in respect of the year ended 30 June 1983 is set out in Appendix A.

15. In Appendix B is set out the Law Reform Commissioner's Estimate of Expenditure for the year 1983-1984 as approved by the Victoria Law Foundation pursuant to Section 11 (4) of the Law Reform Act 1973.

Prof. Louis Waller,

LAW REFORM COMMISSIONER.

7 November, 1983

160 Queen Street, Melbourne, Victoria. 3000.

Appendix A.

STA'l'EMElfi' oF RECEIPI'S AND P~, l!EAR END!D 30 m, 1983

Instalments received fl:an Victoria Law Foundation pursuant to

$

1982-83 estimates 15l,CX:O.OO

Refurds ana reintlursements (inclt.ding superannuation, travelling expenses, etc.)

Other

1,612.07

423.78

Balance overdrawn 30. 6. 82 Rent Salaries

Insurance Superannuation

telepbcne library stationeJ:y electricity copying office expenses bank fees

Postage Petty Cash

1,985.93 567.18

1,357.08 1,866.90 1,678.59 1,854.87

84.21

Research Assistance Travelling 6,566.63 Conferences and

meetings 4,370.93

Furniture and fittings

.E'.quipnent Al.rlit fees (2 years) Mise. Increase in rates Balance 30 June 1983

$

1,127.17 15,274.44 96,491.84

1,365.16 3,353.17

9,394.76

757.00 480.00

1,599.47

10,937.56

320.90 6,788.00

210.00 135.38 658.12

4,142.88

$ 153,035.85 $ 153,035.85

NnE 1. Of the approved estimate of $217,600 payable by the Victoria Law Foundation in respect of the year 1982-83 the amount remaining to be drawn as at 30.6.83 was $66,600. This amount is not carried over to the 1983-84 year, the funding of which is subject to a separate estimate.

NnE 2. As a result of expenditure in this and the preceding financial years the following assets (in addition to office supplies and cash) were held on 30.6.83.

Fixtures, fittings and o.ffice equipment (at cost) $66,063.57.

•

LAW REFORM COMMISSIONER Appendix B.

ESTIMATE OF EXPENDITURE IN THE ADMINISTRATION OF THE LAW REFORM ACT 1973

FOR THE FINANCIAL YEAR ENDING 30.6.1984

Rent - an apportioned share of the rent of the 7th and 9th floors at 160 Queen Street, leased to the Victoria Law Foundation for use by the Victoria Law Foundation, the Law Reform Commissioner, and the Law Council of Australia

2. Salaries of persons appointed by the Governor in Council under section 7 of the Act:-

(a) Legal Assistant -Mr. George Ryan $28,830.

(b) Legal Assistant -Mrs. Loa ne Skene 25,250.

(cl Legal Assistant -Ms Bronwyn.Naylor 21,347.

(d) Secretary -Ms Elizabeth Russell 17,064.

(e) Part-time Secretary -Mrs. Margaret McHutchison 7,810.

Salary of Receptionist, Mrs Esther Shoueka, half share 7,603. 107,904.

Provision for additional temporary stenographer

Estimated amount to cover increases in salary rates before 30 June 1984 (say 15%)

Annual leave payments (17.5% loading) approximate only

3. Printing

8,000.

16,186.

2,500.

4. Office expenses - including electric light and power, telephone, insurance, stationery, postage, fares, photocopying, library.

5. Research assistance for specific projects (to be called for only if and when occasion arises).

6. Travelling expenses and contingencies

7. Conferences and meetings

8. Contingency for increase in rates (MMBW & MCC)

9. Equipment (including word processing)

10. Furniture and fittings

11. Superannuation - Secretary, Receptionist, and Legal Assistant

( 1 ) This figure takes account of the probable anount of a rent increase urder the tex:ms· of the lease.

( 2 ) The anount is to take aa::ou:nt of the possible e.ntry into the superannuation schane of a Legal Assistant who is qualified to join.

$ 30 , 000 . (l)

134,590.

25,000.

16,500.

10,000.

10,000.

5,000.

1,000.

10,000.

1,000.

5,641. ( 2)

$ 248,731.