Human Rights Act 2019 (Qld): Right to a Fair Hearing
The right to a fair hearing is now enshrined in Queensland domestic legislation under the Human Rights Act 2019 (Qld). Every person charged with a criminal offence has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. The right to a fair trial in other jurisdictions has been interpreted as extending to the investigation and evidence-gathering phases of the criminal process.
What is ‘Fair’?
While what is ‘fair’ will depend entirely on the circumstances of a particular case,[1] there are a number of accepted factors relevant to criminal proceedings such as:[2]
- A court must be competent, independent and impartial. A court must decide a case according to the law, with no external factors or personal bias affecting the decision. In Queensland, judges and the court system are entirely separate from Parliament and other government bodies to ensure they do operate independently.
- A person charged with a criminal offence is to be presumed innocent until proven guilty, with the prosecution bearing the onus of proving the offence beyond reasonable doubt.
- Defendant must be afforded adequate time and resources to prepare for a trial. This includes the ability to access and communicate with a lawyer chosen by them.
- A trial must proceed without undue delay since the arrest. When considering a delay, the court will have regard to the length and reasons for the delay, as well as whether it prejudiced the defendant.[3]
- When charged with a criminal offence, unless explicitly electing to be self-represented, a person has the right to engage a lawyer. If they are unable to pay for representation, they will be afforded a legal advice or representation through Legal Aid or a community legal centre.
- Right to an interpreter if they cannot speak or understand English adequately to understand the charges or proceedings in court.
- A person charged with a criminal offence has a right not to self-incriminate themselves or confess at all stages throughout police questioning, to the conclusion of the trial. A limited number of exclusions apply to this right.
Disclosure and Evidence
An individual charged with a criminal offence has the right to know the case against them. They must be informed of the charges against them promptly, in a language they understand, and in sufficient detail to enable them to engage a lawyer and defend the charges. An accused must also have access and disclosure of evidence and witnesses to be presented against them. [4] These disclosure obligations seek to address the power imbalance between the resources available to the state, and those available to an individual charged, ensuring they are not at a disadvantage. One important role of a criminal lawyer is to ensure this disclosure occurs, and to review the (often overwhelming) amount of information provided, using this to form a defence.
Public Hearings and Judgements
The right to a fair trial also includes the right for the trial and judgement to be made available to the public. This is internationally recognised as relating to the right to a fair hearing as it facilitates public scrutiny of the criminal justice and court systems, often by publication of information by the press. This safeguards individuals charged against judicial corruption or bias. However, there are exceptions when the right to a fair trial may require the public or media be excluded from the court or judgements not be published. The Human Rights Act 2019 (Qld) allows for these exceptions when it is in the public interest or the interests of justice. In a criminal case, this may include circumstances where:
- It is required to protect the safety or identity of a witness or any other person; or
- It is required in the interests of national security; or
- To avoid undue distress or embarrassment to a witness, particularly a child, in proceedings relating to family and sexual offences; or
- It is necessary to ensure the defendant is not prejudiced. For example, a jury is not allowed to know a defendant’s criminal history as it may impact their verdict in relation to the current offence they are being tried for. In high profile cases, if this information is widely publicised a mistrial may result wasting time, money and causing undue stress to all involved.
This blog is part of a fortnightly series on the Queensland Human Rights Act which will break down key rights and remedies, and examine the role of the Human Rights Commission and the relationship between Human Rights and Criminal Law. Keep posted every Monday!
[1] Dietrich v R (1992) 177 CLR 292.
[2] Australian Law Reform Commission, “Attributes of a Fair Trial” (undated).<https://www.alrc.gov.au/publications/attributes-fair-trial>.
[3] Foote v Somes [2012] ACTSC 63.
[4] Ragg v Magistrates’ Court of Victoria and Corcoris [2008] VSC 1; R v Falcone (2008) 190 A Crim R 440.
Human Rights Act 2019 (Qld) passed for Queensland
After decades of campaigning, the Queensland Parliament passed the historic Human Rights Act on 27 February 2019, with Robertson O’Gorman Director Dan Rogers in attendance as pictured. The historic day called for celebration for many who, for years, had tirelessly lobbied Members of Parliament, writing submissions and holding advocacy events to raise the profile of the need for human right’s to be legislated in Queensland. The Human Rights Bill was introduced into Parliament on the 31st October 2018 by the Palaszczuk Government. The Attorney-General and Minister for Justice the Honourable Yvette D’Ath introduced the Bill, stating its purpose as recognising the equal and inalienable human rights of all persons, and changing the culture of the public sector to put Queenslander’s first. Despite all Members agreeing they support human rights as a concept, the Act was fiercely debated in Parliament, with opposition Members claiming it was unnecessary and undemocratic, undermining the Westminster System. A parliamentary committee, committed to reviewing the Bill, accepted 149 written submissions. 135 of those were in
support of the Bill. Among the stakeholders, there was general consensus that the Act should be based on the Victorian Human Rights Act, as well as having additional social and economic rights. In line with these submissions, The Queensland Act is the broadest piece of human right’s legislation in Australia. At the conclusion of the assembly’s debate, The Honourable D’Ath acknowledged hundreds of submissions from individuals and organisations, including both Caxton Legal Centre for which Dan Rogers is the President of the Management Committee, and the Queensland Council for Civil Liberties for which Terry O’Gorman is the Vice President. These submissions informed the debate regarding the introduction and form of the Act, with its introduction marking a historic day in Queensland’s history.
This blog is part of a fortnightly series on the Queensland Human Rights Act which will break down key rights and remedies, and examine the role of the Human Rights Commission and the relationship between Human Rights and Criminal Law. Keep posted every Monday!
Media Release – Terry O’Gorman, Vice-President of QCCL
The media need to behave responsibly and not reveal Robert Fardon’s address or whereabouts, otherwise Queensland will have a repeat of the Dennis Ferguson vigilante scenario of 2005 where Ferguson was driven out of Queensland towns and suburbs on his release from jail.
Civil Liberties Council Vice-President Terry O’Gorman said that the media gag order made last week for 7 days by the Queensland Supreme Court was to allow Fardon to be housed in the community without attracting vigilante activity.
As Justice Bowskill said in her Judgment “The main challenge facing the respondent [Fardon] is the media scrutiny he attracts which in turn may make his transition into ordinary life, in particular finding somewhere to live, difficult.”
Mr O’Gorman said that Justice Bowskill’s comments echo similar observations made by three Judges in the Queensland Court of Appeal in 2006 where each of the members of the Court commented on the impact of media and public scrutiny on Fardon when he was then being considered for release.
The Court of Appeal then said “It is to be hoped that our community is responsible enough to recognise these considerations and not make it more difficult for the respondent to rehabilitate himself.”
Mr O’Gorman also praised Queensland Police Commissioner Ian Stewart for his much needed leadership on the Fardon issue when he said “The system that we run as a State is one that is designed to assist people to make better decisions, to become members of our society that don’t offend – and that’s what is occurring in this case”.
Mr O’Gorman said that the Fardon hype over the last 24 hours ignores the important consideration that Police can apply for a further order against Fardon, including GPS tracking, if they believe Fardon is displaying “concerning conduct” as well as “precursor or preparatory behaviours” they believe could lead to offences against children.
Mr O’Gorman warned the media and vigilantes of the risk of contempt of Court action if Dennis Ferguson type behaviour is engaged in against Fardon.
Mr O’Gorman referred to yesterday’s published Decision of Justice Bowskill where she observed:
“Although there may be an argument about whether persons, who are not parties to this proceeding … are bound by the non publication order … conduct outside the Courtroom which deliberately frustrates the effect of an order made to enable a Court to act effectively within its jurisdiction may constitute a contempt of Court.”
The Civil Liberties Council will closely watch vigilante and associated media attention on Fardon and will immediately refer any potential contempt action by vigilantes or representatives of the media to the Queensland Attorney-General for necessary prosecution.
Mr O’Gorman can be contacted during business hours on 07 3034 0000
Courier Mail Article - Jail Inspectorate Must Be Independent, Says Top Civil Liberties Lawyer Terry O’Gorman
The Courier Mail has published an article regarding the establishment of an independent inspectorate of prisons for Queensland featuring comments by Robertson O'Gorman's Terry O'Gorman. The article is extracted below, and is available on the Courier Mail website here.
Jail inspectorate must be independent, says top Civil Liberties lawyer Terry O’Gorman
Thomas Chamberlin, The Courier-Mail
THE bashing of a prison officer has reignited calls for a new independent inspectorate of prisons which would report to parliament and highlight problems with Queensland jails.
Prisoner on prisoner bashings, excessive force by guards towards prisoners and the significant inadequacies of rehabilitation programs in Queensland jails – are but some of the problems.
It comes after The Courier-Mail today revealed the injuries to an officer who was savagely bashed by a prisoner at Woodford last month after he was told he had to share his cell with another prisoner.
Civil Liberties Council Vice-President Terry O’Gorman said it took the assault and increased threats of industrial action to bring out the serious problems within Queensland jails.
“But there are other systemic problems which never get public attention including prisoner on prisoner bashings, excessive force by guards towards prisoners and the significant inadequacies of rehabilitation programs in Queensland jails”, Mr O’Gorman said in a statement.
“In early December the QCCL highlighted harsh criticism by Supreme Court Justice (Peter) Applegarth in respect of a prisoner who has been kept in jail well beyond his full time release date because he was not placed on a rehabilitation program for sexual offenders.”
Mr O’Gorman said that Justice Applegarth in the case of Queensland Attorney-General v FJA1 said: “if the system had offered [FJA] a much needed (rehabilitation program) place over the last 18 months and he had completed the program satisfactorily, he probably would have been released in late 2018 on a supervision order. The system having failed [FJA] and the community in this way, regrettably he must be detained in custody for treatment”.
Mr O’Gorman said that the overcrowding issues could not be solved by building more prisons.
“It cost Queensland taxpayers more than $500 million a year to house a ballooning prison population when over the last decade crime statistics show that crime generally is falling”, Mr O’Gorman said.
The Queensland prison system already has a chief inspector who reports to the commissioner.
The Crime and Corruption Commission’s taskforce Flaxton report into prison corruption, which was released last month, also recommended an independent inspectorate be established.
Mr O’Gorman said the State Government needed to establish an independent prison inspectorate, similar to Western Australia.
“Unlike the current Queensland Inspectorate model which reports internally to the Corrective Services Commissioner, Peter Martin, the WA model report publicly to parliament and is completely independent of the prison bureaucracy”, Mr O’Gorman said.
“Western Australia does not have the systemic problems in its prison system that Queensland has and this has a lot to do with unannounced prisons inspections by the independent Prisons Inspectorate.
“We cannot continue to mindlessly spend an increasing amount of taxpayers’ money on prisons”, Mr O’Gorman said.
A spokesman for the government said the government had already committed to establishing an independent inspectorate.
“Talks between relevant departments have already commenced,” he said.
The Teacher’s Pet: Do viral podcasts have the ability to taint a jury pool?
I, like many thousands of others, have recently been immersed in the Australian’s podcast series The Teacher’s Pet. This brainchild of award winning journalist Hedley Thomas charts the disappearance and probable murder of a mother of two on Sydney’s northern beaches in the early 1980s.
As an avid fan of ‘true crime’ television series such as The Staircase, Making a Murders, The Jinx, The Keepers and the irreverent (and fictitious) American Vandal, I expected to embrace this series with similar relish. Surprisingly, however, I found myself guarded about the narrative pushed in this podcast phenomenon.
I suspect my hesitance to fully embrace the series is borne from my own dealings working within the criminal justice system in Australia. More precisely, I couldn’t help myself thinking about the rights of the (likely) defendant and how any future trial may be horribly prejudiced by this (understandably) popular podcast.
Foremost among my concerns was the impact the podcast may have on potential jurors. I would suspect, without being able to prove, that this podcast has been popular with a demographic which can relate to the heady days of the early 1980s. Anecdotally, those Baby Boomers account for the majority of jurors in criminal trials. In other words, this podcast is hitting the exact demographic who may find themselves called upon to pass judgment on Chris Dawson, should he ever be charged and tried.
A journalist is, at the end of at the day, a story teller. Hedley Thomas has told a ripping and compelling yarn but there are times, despite his best intentions, where questions of admissibility are left by the wayside. Of course a juror will only hear evidence which is admissible. They will not hear scores of opinions offered by concerned neighbours or hearsay conversations. Rules of evidence exist to recognise the danger and unreliability of such evidence. A journalist need not make such a distinction.
By populating the podcast with so much innuendo and opinion, which makes for great listening, there is a risk that any potential juror who has followed the podcast or accessed related news content may be exposed to evidence which is ultimately unable to be led at trial. This can lead the juror to base their decision on matters which are not relevant to the case.
Much like Making a Murderer there has been an absence of a competing narrative throughout The Teacher’s Pet. That is no fault of Hedley Thomas who has noted on numerous occasions that the Dawson’s have been given the opportunity to come on record. Quite sensibly, they have not done so. Any criminal lawyer who has ever worked on a case of a historical nature will see the grave risks of taking such a step.
As a result the series pushes an agenda which, in turn, has caused a significant groundswell and justifiable outrage as to the ineptitude of the early investigation and the lack of accountability of the Office of the DPP. The risk to a juror however is that they are being exposed to such a partisan version of events. Such a risk can manifest itself in the onus of proof shifting from the prosecution to the defence.
One can only hope that should a trial ever be reached that the jury will be polled on the knowledge of the podcast and the case generally. Hopefully any potential juror who discloses such an interest should be excused from service. My concern though is that there may be some jurors who play down their interest in the case so as to place themselves in what shapes to be a dynamite trial or that when selected as a jury member, they begin undertaking their own ‘background reading’.
It has been commented on by far more erudite minds than mine that jurors in the current technological age have far more information available to them than jurors in the past. They are far more susceptible to outside influence and the scourge of fake news. If I were acting on behalf of Mr Dawson I would be greatly concerned about the real or perceived risk that the jury pool has been tainted by the popularity of the podcast.
So, that being the case, would it be worthwhile seeking a ‘judge alone’ trial (if a trial is ever reached)? That is a topic for later musings. For now, I think the lesson we can learn is this: the increased interest in true crime reporting is likely to result in the number of truly objective jurors dwindling.
Remy Kurz
29 September 2018
MEDIA RELEASE BY TERRY O’GORMAN VICE-PRESIDENT, QUEENSLAND COUNCIL FOR CIVIL LIBERTIES
The Civil Liberties Council today called on both the Premier Annastacia Palaszczuk and Opposition Leader Deborah Frecklington to declare their public support concerning CCC Chair Alan MacSporran QC’s call for the Queensland Independent Remuneration Tribunal to take over setting staff entitlements for Queensland political parties.
QCCL Vice-President Terry O’Gorman said that when the issue first broke, the QCCL said that the Premier should immediately review her decision to strip the KAP of three Parliamentary staff as it represented a breach of a major pillar of the 1989 Fitzgerald Report which mandated that non Government party members must be properly resourced to enable them to do their job.
“The CCC Chair’s comments yesterday that the allocation of resources to elected members of Parliament is a fundamental plank in a democratic system and that there should not be political interference with Opposition parties’ resource allocation should be supported and acted upon immediately by both the Premier and the Opposition Leader”, Mr O’Gorman said.
“Indeed, there is a necessity for the Premier today to immediately reverse her decision to strip KAP of its three Parliamentary staff and restore their staff entitlements”, Mr O’Gorman said.
Mr O’Gorman said that any Parliamentary Committee set up to examine the fallout from the issue should also look at the Opposition’s role in the matter.
“When the decision to strip KAP of its Parliamentary staffing was announced, Deputy Opposition Leader Tim Mander said the Opposition had shamed the Government into taking action to strip KAP of its Parliamentary staff”, Mr O’Gorman said.
“If Mr Mander is calling for a Parliamentary Committee to examine the matter, the Opposition’s ‘behind the scenes’ role in the ultimate decision by the Premier to strip KAP of its Parliamentary staff must be examined and exposed”, Mr O’Gorman said.
Mr O’Gorman can be contacted during business hours on 07 3034 0000
Remy Kurz Presentation at Balmoral State High School
Solicitor Remy Kurz attended Balmoral State High School yesterday to present a session to the school’s year 10 to 12 students about his experiences as a lawyer.
The presentation covered a number of contemporary legal topics such as cyber safety, the death penalty, issues surrounding consent, and the legalisation of cannabis. The students enjoyed hearing some real life examples of interesting criminal cases and had plenty of questions about how a defence lawyer operates in this dynamic area of the law.
Remy spoke of the advantages of pursuing a career in the legal profession, noting that there are a range of growing areas within law that offer a diverse range of career choices.
Should your school be interested in having Remy speak to aspiring young law students contact Robertson O’Gorman on 3034 0000.
Consorting Laws: Worth the Effort?
Following the passage of the Serious and Organised Legislation Amendment Act in 2016 Queensland now has the new offence of habitually consorting with a recognised offender[1].This offence outlaws anyone from having intentional contact with two or more ‘recognised offenders’, with certain (narrow) statutory exceptions.
The explanatory notes for the new laws suggest that they are more constitutionally robust, fairer, efficient and effective than those which had been preferred by the Newman Government. Time will tell.
By May 2017 the Courier Mail were reporting[2] that over 100 warnings had been issued without any charges being laid.
Under the old version of this law, proceedings against the 7 alleged members of the Rebels Motorcycle Club took almost four years to be conclude in the Magistrates Court. At the time of last report, only two of the original ‘Yandina 7’ were prosecuted. The cost to the taxpayer for prosecuting 7 men ‘having a beer’ would have been monumental. Several defendants were legally aided and a deputy director appeared for the Crown.
While apparently aimed at any ‘organised’ crime there is little doubt that the legislation was drafted with outlaw motorcycle gangs (OMGs) in mind. Despite this, this author has seen three recent examples of how the Queensland Police Service have broadened their application of these controversial laws.
In the first instance, a female partner of my client (who admittedly had ties to OMGs) was issued a consorting warning listing her partner as someone she could not consort with. The warning was issued despite statutory defences found in section 77C which include, amongst others, that any consorting with a spouse or someone whom you share parental responsibility with should be disregarded.
In the second instance a young man’s father called me sounding irate. His son had been served an official consorting warning seeking to prevent him from seeing his best friend since childhood. The friend had one previous conviction which had been resolved summarily. Despite this, the friend was defined as a ‘recognised offender’. He had been convicted of a drug offence which carried a maximum penalty which exceeded 5 years[3]. There was no suggestion he was a member of an OMG.
The third instance shows how the legislation is being contorted to apply to just about any group of people the Police have their eye on. I acted for a young client who, with several others, was charged with a violent home invasion. My client was released on Supreme Court bail before the charges against him were discontinued. Following his discharge my client was given a consorting warning prohibiting contact with some of his former co-accused (who I presume met the definition of reportable offender). Importantly, the co-accused had been in custody together for some time (another statutory defence under s77C) and any evidence which suggested a gang affiliation was not pursued by the Crown at committal. In reality, the Police wanted to impose upon my client a quasi-bail condition preventing him contacting his co-accused. All of this when he was no longer before the Courts.
Each instance here reveals a lack of understanding of the application and intention of the consorting laws. Further, it crystallises the dangers outlined in the High Court challenges to this type of legislation namely that such laws are, in practice, being used to simply stop association, rather than to prevent organised crime.
More pointedly, it suggests that the QPS are giving very little thought to s5BAC of the PPRA which stipulates that before giving an official warning they should consider whether it is appropriate to give the warning having regard to the object of disrupting and preventing criminal activity by deterring recognised offenders from establishing, maintaining or expanding a criminal network.
One hopes that the Public Interest Monitor, who is responsible for gathering statistical information about the use and effectiveness of these warnings[4], is taking careful note. To suggest that no charges have been preferred on account of the effectiveness of the warnings is simplistic. Unless the law is applied as intended, its benefits will never come to fruition.
[1] Section 77B Criminal Code
[2] http://www.couriermail.com.au/news/queensland/queensland-consorting-laws-more-than-100-warnings-issued-in-two-months/news-story/62b53785190d0078ea3c8db8b63a9985
[3] As most offences under the Drugs Misuse Act do.
[4] Section 742(4)(e) Police Powers and Responsibilities Act (2000)