Human Rights Act 2019 (Qld) – Criminal Proceedings

Section 32 of the Human Rights Act 2019 (Qld) details the rights of a defendant subject to criminal proceedings in Queensland. Many of the rights included in this provision are similar to those protected by the right to a fair trial, however these relate specifically to criminal proceedings. Section 32 ensures the following foundational rights are protected:

  • Presumed innocent until proven guilty – this means that the prosecution has the burden of proving every element of the offence, before a person can be found guilty.
  • Informed promptly of the details and reason for any charge made against them
  • Have adequate time and facilities to prepare a defence and to communicate with a lawyer or advisor chosen by the person. If the person is eligible for Legal Aid, this provision does not allow them to choose a particular lawyer to provide assistance through Legal Aid.
  • to be tried without unreasonable delay;
  • to be tried in person, and to defend oneself personally or through legal assistance chosen by the person or, if eligible, through legal aid;
  • to be informed, if the person does not have representation, about the right, if eligible to legal aid;
  • to have access, if eligible, and if the interests of justice require it, to free legal aid;
  • to examine, or have examined, witnesses against the person;
  • to obtain the attendance of, and examine witnesses on the person’s behalf, under the same conditions as witnesses for the prosecution;
  • to have the free assistance of an interpreter if the person cannot understand or speak English. If you require an interpreter in a criminal proceeding, contact the registry in the court where your matter will be dealt with as early as possible. You should make your request in writing. Court registry staff will engage an interpreter for criminal proceedings—from an approved service provider or other sign language interpreting service—as directed by the court;
  • to have the free assistance of specialised communication tools and technology, and assistants, if the person has communication or speech difficulties that require this assistance. Once again, the individual or their legal representative can contact the registry to make such arrangements;
  • not to be compelled to testify against themselves or to confess guilt. This aligns with the right against self-incrimination; and
  • to have a conviction or sentence reviewed by a higher court in accordance with the law. A defendant can appeal a guilty verdict and/or apply for leave to appeal against a sentence.There are specific time frames for making an appeal. If the appeal against the conviction is successful, the court will either order a new trial with a different judge and jury, or find the appellant not guilty. If the appeal against the sentence is successful, the sentence may be reduced or a different type of sentence may be imposed.

None of these provisions alter a person’s existing rights and obligations under the Legal Aid process as set out under Legal Aid Queensland Act 1997.

 

Special Rights for Children

Section 32 of the Act also provides that a child charged with a criminal offence has the right to a procedure that takes into account their age. Section 33 of the Act also states that a child must be treated in an age-appropriate way during criminal proceedings. Examples of this can be seen in the current operation of Queensland Children’s Courts, which alter ordinary court procedure in the following ways:

  • Proceedings are held in a closed court to protect the child’s identity and limit the stress of attending court, allowing only people relevant to the proceeding to attend;
  • There is a prohibition on publishing the identifying material about the child in relation to the proceeding, with limited exceptions;
  • Generally, courts will not deal with a child’s matter unless a parent is present. A court can adjourn a proceeding to enable a parent to be present, and can recommend the department meet a parent’s travel expenses (s 69 Youth Justice Act);
  • Court processes can be conducted less formally, with parties sitting down to speak.

The provision also states that criminal proceedings and outcomes for children should promote the desirability of rehabilitation, supporting the general principle that children should only be detained as a matter of last resort.

Note, s33 of the Act sets out two further rights regarding accused children. Firstly, that they are to be detained separately from all adults. Further, the child must be brought to trial as soon as possible.

 

Miscellaneous Provisions Relating to Criminal Proceedings

Section 34 of the Act states a person cannot be re-tried for an offence for which they have already been finally convicted or acquitted in criminal proceedings, enshrining the double jeopardy principle. Queensland does have laws that breach this right when it concerns ‘fresh and compelling’ evidence for very serious offences.

Further, section 35 sets out the rules in relation to retrospective laws. It states you cannot be found guilty of an offence for conduct that was not a criminal offence at the time you engaged in it. This stops the government from making laws to outlaw conduct that has already happened, maintaining fairness for individuals by allowing them to have access to the law that applies to them. Likewise, when a person is convicted of an offence, the maximum penalty that can be imposed is that which applies at the date they committed the offence. If, before trial or sentencing this penalty increases, it cannot be handed down to them. However, if a person is convicted of an offence, and before the sentencing hearing occurs the penalty is reduced, they are eligible for this reduced penalty. This seeks to afford maximum fairness to the accused, balancing the power imbalance between the state and individual.

 

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!


Robertson O’Gorman lawyers recognised as Leading Lawyers across Australia

The 2018 Doyles Guide has recognised lawyers Terry O’Gorman and Dan Rogers among Australia’s criminal law experts. The list can be access here.

Founding partner Terry O’Gorman has been identified for his expertise and ability in practicing criminal law as a Leading Lawyer in Australia. Terry has also been recognised as a Recommended Lawyer for his expertise in white collar crime, corporate crime and regulatory investigations.

Legal Director Dan Rogers has been recognised for his expertise and ability in criminal law as a Recommended Lawyer in Australia.

Terry and Dan are two of only six Queensland lawyers to make the list. Robertson O’Gorman is the only firm in Queensland with two solicitors recognised by the exclusive list.

The Doyles Guide recognises lawyers who excel in their field of expertise as identified by their peers. Congratulations to Terry and Dan for this achievement.


Tougher Penalties for Corporate Crime

The Federal Government has announced it will introduce a new sentencing regime for corporate crime, amending the Corporations Act 2001 to increase both civil and criminal penalties. This arises from an enforcement review taskforce undertaken by ASIC, of which the government has agreed to all 50 of the report’s recommendations.

Why have the Federal Government made this announcement?

In the wake of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, the proposal has been widely supported. The Banking Association’s chief executive Anna Bligh described the reform as “vital to tackling criminal and unacceptable behaviour by individuals and corporations.” Financial Services Minister Kelly O'Dwyer said such reforms would align us with leading international jurisdictions, describing the proposal as the most significant increase in 20 years.

What will the penalties be for corporate crime offences?

The reform will see the maximum criminal penalties increase to:

  • For individuals –10 years imprisonment and the greater of a $945,000 fine or three times the benefits gained or loss avoided.
  • For corporations –$9.45 million or three times the benefits gained or 10 per cent of a company's annual turnover if that was larger, capped at $210 million.

The maximum civil penalties will be increased:

  • For individuals - from $200,000 to $1.05 million or three times the benefit gained or loss avoided.
  • For corporations - from $1 million to the greater of $10.5 million, three times the benefit or loss or 10 per cent of a company's annual turnover.

The amendments will also allow ASIC to issue infringement notices for a wider range of financial and investment services as well as grant ASIC greater search warrant powers to assist in prosecuting offences. These powers are in addition to the already extensive coercive powers that can compel interviews as part of an investigation. The proposed reforms will be the subject of consultation later this year.

Allegations of corporate criminal activity, against individuals or companies, can cause severe reputational damage, convictions, large fines and/or terms of imprisonment. Early intervention by an experienced criminal law firm specialising in corporate crime is essential.

For proactive advice about corporate crime, contact our Corporate Crime specialists.


Dan Rogers Presents on ‘Public Perceptions of Sentencing’

Robertson O’Gorman Legal Director Dan Rogers, in his capacity as a member of the Queensland Sentencing Advisory Council, presented at a session on ‘Public Perceptions of Sentencing’ alongside the Honourable Margaret McMurdo AC and Her Excellency the Honourable Kate Warner AC, Governor of Tasmania in the Banco Court.

The forum was prompted by the overwhelming community perceptions that judges and the legal system are too soft on crime, often fueled by the media and politicians playing into this narrative. However, despite this view Australia’s jails are experiencing overcrowding to crisis levels not seen before. Research has found that when jurors are put in the position of a judge, they would often impose a similar sentence on offenders.

Mr Rogers was called upon in light of his expertise in criminal law to address these issues, considering how in touch the legal system and the courts are with community attitudes. The discussion included solutions as to how sentencing in the future can better reflect community values.

The ABC podcast of this forum on public perceptions of sentencing is now available online at https://lnkd.in/fwve46r.


Dan Rogers: Addressing the crossover between family and criminal law

Dan Rogers, Legal Director at Robertson O’Gorman, delivered a presentation at the QLS & FLPA Family Law Residential 2017. He addressed the blurred line between criminal and family law and the importance for practitioners to be aware of the growing crossover between the practice areas.

Domestic violence has always existed. But in the past 5 years, it has assumed unprecedented focus in our community. As a result of various reports and increased media attention, there have been numerous legislative changes of both domestic violence and criminal laws. There is a growing number of crossovers between family and criminal law.

To keep informed of the legislative changes and their impacts, it is extremely important for practitioners to be aware of the legal tools available to them. It should be noted that the Law Society and other organisations are increasingly publishing guidelines to assist practitioners and judicial officers in the application of the law.

The second stage of the comprehensive and detailed National Domestic and Family Violence Bench book was recently released. That resource was developed to bring together key cases and legislation from across Australia. Importantly, it addresses several of the key crossovers between criminal and family law. It can be accessed freely online here.

Another resource recommended by Mr Rogers is the Queensland Law Handbook. Produced by Caxton Legal Centre, the resource provides an overview of criminal law issues written by magistrates, barristers and accredited specialists. The resource is freely available online here.

During his presentation, Mr Rogers addressed the most frequently asked questions by family lawyers to the solicitors at Robertson O’Gorman, namely:

  1. Should you client consent to a domestic violence order?
  2. The other side has brought a domestic violence application – it’s obviously a strategic move. Will the Court recognise this?
  3. Should a cross application be brought?
  4. What are some options to resolve a DV matter?
  5. What are the consequences of a protection order being made?
  6. Is a breach proceeding a serious charge?
  7. My client faces a police application for a protection order. Is this serious?
  8. What are the consequences of a criminal conviction?
  9. The police are at my client’s door – what do I do?

Practitioners from all areas of law should be conscious of the impact their decisions will have on parallel proceedings in other jurisdictions. To avoid blind spots and adverse outcomes for clients, a strong and reliable relationship for referrals and cross-advice should be a priority for every law firm.

Robertson O’Gorman Solicitors specialise in domestic violence and criminal law. For assistance, call us today on 3034 0000.


Dan Rogers: Opinion: Soft sentences? You be the judge

Today's Courier Mail published an opinion article written by Legal Director Dan Rogers. The article addresses community expectations and their role in sentencing. You can read the article here.
For legal advice, call Robertson O'Gorman today on (07) 3034 0000.

Bond University Panel Discussion: Social Justice and the Role of Lawyers

Legal Director Dan Rogers spoke last night at the Bond University Law Wellness Association’s inaugural event ‘Lady Justice in White’. His message to aspiring lawyers was to involve themselves broadly in the law and step beyond the office.

Mr Rogers drew on his experience working at Robertson O’Gorman Solicitors, his role as secretary of Caxton Community Legal Centre, his membership of multiple committees, and his prior experience working at the International Criminal Court in The Hague. During his talk to students, he emphasised the importance of stepping into the public arena and contributing to wider social justice causes. He encouraged students to shape a worthwhile and rewarding career.

The event was in support of the charity “Queensland Indigenous and Family Violence Legal Service”.

For experienced legal advice, call Robertson O’Gorman Solicitors today on 3034 0000.


Studies Into Sentencing Show The ‘Lenient Judge’ Is A Myth

As published in the Courier Mail today, Dan Rogers comments on how studies in to sentencing show the 'lenient judge' is a myth. Original article available here, with the body of the article below. 

SENTENCING occupies a significant space in public debate.

When a criminal court imposes punishment on an offender, the state exerts its authority upon a person who has broken the law.

Fortunately, corporal punishment no longer features in our land. However, every day in Queensland members of our community, from all walks of life, anxiously await sentencing by a criminal court.

The circumstances of the offence and the offender are infinitely varied. On a daily basis, judges and magistrates confront the enormous task of applying intellectual rigour and careful consideration to determine a sentence that is just and fair in the particular circumstances of each individual case.

The judiciary is assisted by a prosecutor (representing the state) and almost always in serious criminal cases, a defence lawyer (representing the individual).

Both roles are vitally important to ensure the process is fair. Last year, there were 236,233 cases finalised as sentences in Queensland’s criminal courts.

In every case, both the prosecution and the defendant may appeal the sentence. The appeal process is a safeguard against a sentence outcome that is manifestly wrong; a penalty that shocks the public conscience.

Only a very small number of sentences are appealed each year. In the same period last year there were only 844 appeals, which represents just 0.4 per cent of finalised cases.

Of those, a much lesser number were successful.

The number of successful sentence appeals is so low because, by and large, the courts get it right.

The law is complex but Queensland’s criminal justice system operates to ensure that, in the vast majority of cases, a just and fair penalty is imposed.

As a community, we only get snippets of this complex process. That is because media reports (or perhaps our attention span) can only be so long.

Time and again, headlines suggest courts are too lenient or judges too soft. These claims encourage “law and order” politics, where unfair and ineffective sentencing policies result from a government’s desire to achieve popularity by appearing “tough on crime”.

When courts are criticised, judges are not allowed to respond or participate in public debate.

This protocol is an important safeguard of judicial independence. By taking on the duty of judicial office, judges forego their right to participate in public debate.

The reality, underpinned by credible research, is that judges and magistrates typically impose harsher sentences than members of the community with full knowledge of the facts.

Kate Warner, a law professor and now Governor of Tasmania, has led important sentencing research in this country.

Her work as the director of the Tasmanian Law Reform Institute asked real jurors, who had convicted a person in a real criminal trial, to deliver a sentence.

The research project was large: 987 jurors from 124 criminal trials from the County Court of Victoria in the period 2013 to 2015.

It followed a previous study conducted in Tasmania between 2007 and 2009 with 698 jurors.

The jurors in the study had the opportunity to know all of the circumstances of the offence and of the offender.

The study found that 62 per cent of jurors would have imposed a more lenient sentence than the sentence ultimately imposed by the court.

In child sex offending trials, there was a more even split between the sentences imposed by the jurors and the court.

Jurors were less likely to be more lenient in sentencing cases involving victims aged under 12 years.

However, jurors were more likely to be lenient in violent trials, with 71 per cent submitting softer sentences than judges.

This research challenges prevailing community perceptions that sentences are overly lenient and out of step with community expectations.

This research is also very helpful to governments who are asked to consider policy decisions that result in sending more people to prison and for longer.

Above all else, this research shows clearly the need to educate and inform the community around sentencing practices.

And this is one of the key tasks of the Queensland Sentencing Advisory Council, newly reinstated by the State Government.Dan Rogers is the Legal Director of Robertson O’Gorman Solicitors and a member of the Queensland Sentencing Advisory Council.

Dan Rogers 


Robertson O'Gorman Prize in Criminal Law

(Pictured Dan Rogers, Jordan English, Chief Justice Catherine Holmes and Professor Peter Høj).

Robertson O’Gorman is a proud sponsor of the University of Queensland Law School. Each year the law school recognises the brightest legal minds through awards to its top performing students.

This week at Customs House, Dan Rogers presented The Robertson O’Gorman Prize in Criminal Law at the UQ Law Awards Ceremony. Robertson O’Gorman sponsors two prizes for students that receive the highest marks in Criminal Law.

The event included a key note address by Chief Justice Catherine Holmes of the Supreme Court of Queensland. Jordan English and Elizaveta Belongogoff won the Robertson O’Gorman prizes.

This year, the law awards were extra special for Robertson O’Gorman as Keilin Anderson, law clerk in our office, received a Pro Bono Centre Award. This is a great achievement as pro bono legal work is an important responsibility for all in our profession.

A full UQ media release can be found here.


Dan Rogers co-chairs Human Rights Debate

Dan Rogers co-chaired with Kevin Cocks AM a debate last night regarding the introduction of a Human Rights Act in Queensland. Hosted by the Queensland Law Society, the event was attended by local lawyers and students.

After last year’s state election, consideration of a Human Rights Act was a key commitment given by Labor in return for Peter Wellington’s support in a hung parliament. Since that time, a broad and dynamic group of community organisations, social justice groups and individuals have been advocating for the introduction of legislative protection of human rights.

In September 2015, the Caxton Community Legal Centre hosted a forum at Parliament House. It was effectively a campaign launch by interested community groups. Ms Yvette D’Ath (Attorney-General) and Ms Jackie Trad (Deputy Premier) spoke alongside various community leaders including Mr Cocks.

At that event, the Attorney General committed to an inquiry and subsequently referred the issue of a Human Rights Act to the Legal Affairs and Community Safety Committee. That committee is due to report to Parliament by July this year. It is expected that public hearings will occur in early May.

The issue of a Human Rights Act can be divisive. It is one where reasonable and intelligent minds can differ. They can differ on whether a statutory model is needed or whether the common law is sufficient to safeguard our rights.

Human rights mean different things to different individuals. For some, invoking such rights is a heartfelt and justified demand to rectify a form of injustice. For others, any reference to human rights is but a slogan to be treated with a degree of cynicism.

Many in the community regard human rights lawyers as the Amal Clooney type. They have a sexy image of someone jet-setting around the globe wearing Prada and arguing cases before international courts and tribunals. The reality is somewhat different and many lawyers also fail to recognise it.

All lawyers are human rights lawyers. We protect the rights and interests of our clients on a daily basis whether it’s the right to property, to fair trial or to safety and security in a domestic violence proceeding. Lawyers working in the community legal sector are exposed to human rights issues even more frequently. This reform could affect the practice of all lawyers significantly.

Generally speaking, it is common ground that the protection of rights is a good thing. However, the mechanism by which this is achieved is debatable. Legislative protection of human rights exists in Victoria, the Australian Capital Territory, New Zealand and the United Kingdom. There are also constitutional or entrenched models in the United States and Canada, although Queensland is not considering an entrenched model.

The idea of a Human Rights Act is, therefore, not a new concept. There is a body of literature and careful analysis to inform us as to its successes and failings. It is hoped that the Government’s inquiry will carefully consider this material and provide a clear and positive direction for the protection of human rights in Queensland.