The Civil Liberties Council today queried whether Tostee would have faced trial had the prosecution applied their own prosecutorial guidelines. These guidelines require the discontinuance of a charge unless there is both a public interest in the prosecution and sufficient evidence.

“While I am in no way attributing bad faith to the DPP decision to prosecute Tostee, the question is fairly raised whether, on the facts presented in Gabe Tostee’s trial, he would even have been charged let alone prosecuted if he was a female”, Mr O’Gorman said.

Mr O’Gorman said that the facts as reported in today’s media that were put forward in Tostee’s trial this week are as follows:-

  • Tostee’s tape recording of the event had him warning Warriena Wright that he would have to kick her out if she did not stop attacking him;
  • Ms Wright threw rocks from a tray on Tostee’s glass coffee table top at him; and
  • Ms Wright grabbed a heavy metal clamp from a telescope that Tostee kept on his table and swung it at his head.

“Whilst some legal commentators today say that the DPP had no choice but to move forward with the case and that there was sufficient evidence for the matter to be put in the hands of a jury, other commentators take the position that there was not sufficient evidence to justify a charge and that the matter should have been referred in the first instance to the State Coroner”, Mr O’Gorman said.

“While I stress I am not accusing the DPP of bad faith in this prosecution, the prosecution of Tostee highlights the problem of Queensland, and indeed Australian, law that the decision of a Prosecutor to lay charges is utterly unreviewable in the Courts”, Mr O’Gorman said.

“The High Court held for many years (refer Maxwell’s case) that the decision of a DPP Prosecutor to lay charges is unreviewable by a Court”, Mr O’Gorman said.

“Over the 40 years I have practised criminal defence, the law has changed from the 70s and 80s when Judges had power to stop a case if the case was thought to be too weak to the current position where Judges have no such power”, Mr O’Gorman said.

“It is noteworthy in Mr Tostee’s case that the senior trial Judge, Justice Byrne, decided that the evidence, though weak, was enough for a jury to consider if Tostee had murdered Warriena Wright, Mr O’Gorman said.

“I gave a paper last weekend in Adelaide at an International Criminal Law Congress looking at developments in criminal law over the last 30 years noting that the law had reached an unsatisfactory position where the decision of senior Prosecutors to proceed with questionable charges was utterly unreviewable anywhere, particularly unreviewable in the Supreme Court”, Mr O’Gorman said.

Mr O’Gorman said that the powerful position of Prosecutors in deciding on what charge to lay arising from a set of facts thrown up by investigating police is that the centre of power in a criminal case lies not in the Courtroom but in the hands of a senior Prosecutor who decides what charge to lay and picks from a menu of available charges ranging from the most serious through to cases of medium severity and down to the most minor.

“This is a very topical and controversial issue as the Legal Affairs and Community Safety Committee of the Queensland Parliament prepares its report soon to be tabled in the Queensland Parliament on the Palaszczuk Government’s review of the Newman Government’s anti-bikie laws”, Mr O’Gorman said.

“The Explanatory Notes published by Attorney-General Yvette D’Ath acknowledges that under the revamped laws, a person may not face prison for the base offence (the offence a person is arrested for) but could be required to serve a mandatory 7 year sentence on top of a fine or some other non-jail Court order if a person is said to be a participant in a criminal organisation”, Mr O’Gorman said.

“It is clear that as with the Newman Government laws and so with the Palaszczuk Government laws the new proposed serious organised crime with circumstance of aggravation offence will catch non-bikies and will cover such low level criminal activity in a so-called organised crime context that the base offence may not even attract a term of imprisonment”, Mr O’Gorman said.

Mr O’Gorman said that the so-called protection against misuse of the very excessive mandatory imprisonment laws imposed by the Palaszczuk Government is that a decision to lay an organised crime charge will be made by the DPP.

“What the Tostee case shows is that such a prosecution decision is utterly unreviewable in Court, giving Prosecutors unprecedented power to pick the most serious charge resulting in a minimum of 7 years jail on top of the base offence itself not even attracting jail where a lesser charge is open to a Prosecutor to prefer”, Mr O’Gorman said.

Under the VLAD laws, three 18 year olds who take turn about to go into the Valley on a Friday night to buy marijuana in bulk for a Sunday afternoon smoke are likely to have been caught by the mandatory 15 years imprisonment regime under the very widely defined scenario of what constitutes organised crime.

Such a similar or close scenarios are open under the Palaszczuk laws currently before the State Parliament.

“The Palaszczuk Government laws have to be changed so that Prosecutors do not have totally unreviewable power to charge the most serious organised crime offence where a lesser charge would be appropriate and just on the facts of a given case”, Mr O’Gorman said.

“The Palaszczuk Government laws have to be changed so as to dilute the all powerful decision of a DPP Prosecutor to charge a top drawer offence attracting a mandatory prison term. Supervision of the laying of such charges has to be given to the Supreme Court”, Mr O’Gorman said.

Mr O’Gorman can be contacted during business hours on 07 3034 0000