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Book Review
R Watson, A M Blackmore and G S Hosking, Court Advocate's Handbook
(2nd ed, Lawbook Co 2001) 1574pp
This weighty volume contains an annotated collection of the
key New South Wales criminal statutes
- Crimes Act 1900, Drugs Misuse and Trafficking Act 1985, Criminal
Procedure Act 1986, Justices Act 1902, Summary Offences Act 1988
and Bail Act 1978 - and is up-to-date as at 30 March 2001. It has been extracted
from the larger, more comprehensive, two-volume looseleaf publication, Criminal
Laws (NSW). While this latter fact might account for the Handbook's
lack of introduction and index, the absence of these standard features detracts
considerably from the Handbook's usefulness as a resource for its intended
user - the 'Court Advocate'.
In Queensland terms, the Handbook
is a Carter's Criminal Law of Queensland, a volume now in its 12th
edition, published by Butterworths that similarly contains an annotated compilation
of relevant Queensland criminal
legislation.
Given the ready availability and absolute currency of legislation
now accessible to practitioners via any number of internet sources, the usefulness
of this volume in terms of an up-to-date treatise alone is questionable, particularly
taking into account the notorious volatility of the criminal law in the current
political and social context. Nevertheless, the publishing concept is still
viable in terms of the text's value as a "ready for court" expert commentary:
its authors are highly regarded and the notion of a comprehensive single volume
that the criminal practitioner may take to court, confident of being assisted
by fulsome annotations in the heat of court room battle, is undoubtedly appealing.
However, it is in this area that the text is quite vulnerable. Perhaps if the
Handbook were utilised in conjunction with the excellent Federation Press
publication, Criminal Laws, now in its 3rd edition, it might
prove useful to the court advocate, but absent some additional or alternate
commentary, in many instances the Handbook falls short of fulfilling
the promise of its potential.
The strength of Federation's Criminal Laws, is precisely
the Achilles' heel of this publication. While Criminal Laws delivers
an extensive critical commentary - a wide-ranging doctrinal exposition set
within a contextual approach that draws on secondary materials and highlights
for the busy practitioner the fertile areas for argument and debate with legal
precepts - the Court Advocate's Handbook provides merely a terse, up-to-date,
strictly doctrinal exposition of certain parts of the criminal law in NSW only.
While a number of court advocates might otherwise forgive the
Handbook's lack of a broader approach to the criminal law and not be
looking for explanations and resources to stimulate argument, a perhaps more
fundamental difficulty with this publication is the unreliable nature of the
commentary that the text does provide by way of statutory annotation. Some offences
and provisions are broken down into very comprehensive commentary: for example,
the annotation accompanying Crimes Act 1900 s 344A 'Attempts' is
quite excellent and covers, in a well structured discussion, the nature and
rationale of the offence, the meaning of 'attempt', what does and does not
constitute an attempt, the vexed issue of impossibility, the role of the judge
and the jury, together with a fulsome discussion addressing the verdicts available.
Similarly, the discussion of arrest powers under the Crimes Act 1900 and
the fifteen page treatment of double jeopardy and the pleas of autrefois acquit
and autrefois convict under the Criminal Procedure Act 1986 are two of
the most lucid examinations of these topics any criminal practitioner is ever
likely to come across.
Unfortunately however, these instances are more isolated examples
of excellence than the norm for this text. The treatment of critical sections
of the various Acts is by no means uniformly reliable. As has been mentioned,
little regard is had to any aspects of contextual analysis. This approach to
the annotations extends to a complete lack of reference to extrinsic parliamentary
material that might aid in the interpretation of various sections where no other
commentary is provided. In the absence of doctrinal or primary source commentary,
allusion to jurisdictional approaches outside NSW and the citation of influential
Law Reform Commission Reports would also be welcome and appropriate. This strict
adherence to a doctrinal methodology is disappointing to say the least and in
the result fails Court Advocates by not providing them with the tools they need
to address new and difficult areas of criminal liability. Further, where it
otherwise might, the Handbook gives practitioners no guidance as to where,
as Advocates, they might legitimately push the boundaries of statutory interpretation.
The deficiencies described above and the uneven commentary
of legislative text become most apparent when the Court
Advocate looks for assistance on the "newer"
offences. Should s/he go to Part 15A Crimes Act 1900, for example, seeking
guidance on Apprehended Violence Orders and the stalking-type offences, the
practitioner will go over 50 sections and almost 40 pages of text with minimal
to no commentary. Similarly ignored in terms of the provision of explanation
are the 'Offences Relating to Computers' under Part 6 Crimes Act 1900
while, by way of further example (though there are many), there is no assistance
offered in relation to s 80A Crimes Act 1900 'Sexual assault by forced
self-manipulation'. In these instances, reference back to extrinsic legislative
materials at least would seem in order, while more useful still might be some
canvassing of comparative provisions in other jurisdictions. In certain instances,
the annotating discussion in the Handbook is almost misleadingly brief:
the cursory discussion of the definition of consent for the purposes of sexual
assault is a sufficient example. While some rare exceptions do present themselves
to this complaint, such as, for example, the quite useful treatment afforded
to the new s 105 Criminal Procedure Act 1986 'Admissibility of evidence
relating to sexual experience', the section which replaces the troubled s
409B, to a certain extent this makes the text a frustrating one to use. If the
new s 105 Criminal Procedure Act 1986 and, to take another example, s
48E Justices Act 1902 'Direction to witness to attend' are deemed
deserving of a full historical analysis, discussion of their legislative genesis
and a comparative analysis with predecessor law, why not the computer sections
or the AVO provisions?
In brief, if the intended application of this Handbook is to provide
Court Advocates with an authoritative answer under the pressure of a Court appearance,
it cannot be relied upon for this purpose. The lengthy text is difficult to
navigate without the benefit of an index and unless Advocates know exactly what
they are looking for they will not find it quickly. Even should they find their
section, the Handbook may still not help greatly unless the particular
issue is one that the Handbook has treated in any depth.
© Queensland University of Technology Law
& Justice Journal 2002
This article may be cited as: (2002) 2(1) QUTLJJ
153
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