Robertson O'Gorman encourages emerging leaders - Robertson O'Gorman Prize in Criminal Law 2020

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.

The latest recipient is Ana Coimbra who was thrilled to receive this award:

"Being awarded with the Robertson O'Gorman Prize in Criminal Law 2020 has given me a fantastic framework from which to develop my legal career.  I cannot express my gratitude to Robertson O'Gorman enough.   Their generosity will not only financially support me in my studies but will also motivate my continued interest in criminal law.  While I have always had an aptitude towards criminal law, being granted such an award has prompted me to consider how I may contribute to Queensland’s criminal law system.  Ultimately, I hope to one day be in a position to encourage the academic pursuit of law students like Robertson O'Gorman has done for me.  These are the kinds of opportunities that truly cultivate knowledge, determination and progress in students at the beginning of their professional journeys." Ana Coimbra

 


QLS Proctor article on Terry O’Gorman AM: President’s Medal recognises a leader in criminal defence and civil liberties

John Teerds, Editor,  writes about a highlight of last week’s Legal Profession Dinner being the presentation of the Queensland Law Society President’s Medal to leading criminal defence lawyer and civil libertarian Terry O’Gorman AMQLS President Elizabeth Shearer told guests that Terry had been admitted to practice in 1976 and had worked fiercely to defend clients and to tirelessly protect the civil liberties of Queenslanders.  He had sat on the QLS Criminal Law Committee since 1979 and was an Executive Member of the National Association for Criminal Lawyers since its inception in 1986. Terry was awarded the Order of Australia in a General Division in 1991 for services to the legal profession and holds the positions of President of the Australian Council of Civil Liberties and Vice President of the Queensland Council of Civil Liberties. He is also a QLS accredited criminal law specialist and Senior Counsellor, and was the winner of QLS’s 2020 Outstanding Accredited Specialist Award.

In his speech, Terry highlighted that a key criminal law challenge was explaining to the community that the fundamentals of criminal law had to be maintained at all costs, particularly presumption of innocence. “While there are going to be controversies from time to time – such as the current controversy about sexual assault – and while those controversies will have to be addressed, and properly addressed, it cannot be at the expense of the fundamentals of the criminal law, including the presumption of innocence and a fair trial,” he said.

A well-deserved award for an outstanding career  in the field of criminal law - the full article is here.


Terry O’Gorman AM awarded QLS President’s Medal

Robertson O’Gorman Solicitors are delighted to announce, Senior Consultant, Terry O’Gorman has been awarded the prestigious President's Medal by the Queensland Law Society.  This award was presented at the QLS Legal Profession Dinner at the Sofitel on Friday night.

Terry O’Gorman AM, Senior Consultant, Robertson O’Gorman Solicitors was admitted to practice in 1976 and has sat on the Queensland Law Society Criminal Law Committee since 1979.  Terry has been involved in high profile criminal cases, including acting for a number of individuals in the wake of the Fitzgerald Inquiry. Terry was awarded the Order of Australia in a General Division in 1991 for services to the legal profession and holds the positions of President, Australian Council of Civil Liberties and President/Vice President, Queensland Council of Civil Liberties.  He is also an accredited criminal law specialist.

Lawyers have a special responsibility for upholding the rule of law. The President's Medal distinguishes an individual at the pinnacle of their career who goes above and beyond to uphold the core values of our profession. This award recognises an experienced legal practitioner who has shown great integrity, courage, and responsibility through their commitment to continual improvement of the profession and of themselves.   The nominees are judged on their legal competence, service to the community, personal integrity and professional commitment beyond the call of duty.  It is a very fitting that Terry’s admirable and long-standing contribution to the legal profession has been recognised by this award.  Congratulations Terry!


An independent inquiry into historical rape allegations: balancing accountability and the presumption of innocence

An independent inquiry into historical rape allegations: balancing accountability and the presumption of innocence

Senior Consultant Terry O’Gorman appeared on Radio National Breakfast on 05 March 2021 with Fiona McLeod, barrister and Chair of the Accountability Roundtable, and Pru Goward, former Sex Discrimination Commissioner and Liberal minister in New South Wales. They discussed how to balance ministerial accountability with the presumption of innocence in the context of the historical rape allegations against Federal Attorney-General Christian Porter.

Mr Porter has denied the allegations and the Prime Minister has stated that any further inquiries after the New South Wales police have closed their investigations would set a wrong precedent. Friends and family of the alleged victim nevertheless want an independent inquiry to be conducted.

Terry discussed that the biggest concerns with an independent inquiry being established into the rape allegations is that the presumption of innocence will not be respected. Criminal courts and the presumption of innocence exist for a purpose, and where there is no means to test the allegations, Terry argued that these processes should not be circumvented through an independent inquiry where an unfair outcome is likely. The matter stood separate to concerns raised regarding the toxic culture in Parliament as the allegations predate Mr Porter’s position in Parliament. These points were similarly argued by Pru Goward. In support of an independent inquiry, Fiona McLeod emphasised that the suggested inquiry would not sit within the criminal justice process but more closely resemble workplace or disciplinary investigations common in the administrative law sphere. In such inquiries, a suitably qualified person is appointed and a different burden of proof and laws of evidence apply. She gave the high-profile examples of Cardinal Pell, former Justice Heydon of the High Court of Australia and Israel Folau.

The presumption of innocence has been regarded as the ‘golden thread’[1] of criminal law and a ‘cardinal principle in our system of justice’.[2] It holds that a person accused of a crime is considered innocent until proven guilty by the prosecution. Such proof must demonstrate guilt ‘beyond reasonable doubt’, the rationale being that ‘it is better that ten guilty men should escape than that one innocent man should suffer’.[3] The presumption of innocence is enshrined in section 32(1) of the Human Rights Act 2019 (Qld).

To listen to Terry’s interview visit this link: https://www.abc.net.au/radionational/programs/breakfast/balancing-accountability-and-the-presumption-of-innocence/13107862

 

[1] Woolmington v DPP [1935] AC 1 481–482 (Viscount Sankey).

[2] Sorby v The Commonwealth (1983) 152 CLR 281, 294 (Gibbs CJ).

[3] William Blackstone, Commentaries on the Laws of England (The Legal Classics Library, 1765) 352.


JUDGE FOR YOURSELF (TRAFFICKING CHARGE)

On 15 February 2021 our Principal, Dan Rogers, lead a ‘Judge for Yourself’ session at Calamvale, Queensland.

Judge for Yourself is an interactive program that allows Queenslanders to play the role of judge or magistrate and sentence an offender in court. It is an initiative of the Queensland Sentencing Advisory Council (‘QSAC’), whose role includes informing and engaging the public on the complex nature of sentencing procedures in court.  As a member of QSAC, Dan regularly runs interactive sessions where members of the community are presented a case based on real life events, shown evidence from both the prosecution and defence, and are then invited to pass a sentence.  The exercise is an important one – it helps the community understand the basic justifications upon which a sentence can be imposed as well as the different sentencing options available.

In Queensland, the Penalties and Sentences Act 1992 (Qld) guides judicial decision making. The ‘governing principles’ of all sentences imposed in Queensland, as set out by section 9, are punishment, rehabilitation, deterrence, denunciation and protection of the wider community.  The session at Calamvale concerned a drug trafficking case. In the exercise, the Defendant, Christopher Quinn, pleaded guilty to the criminal offence of ‘trafficking in a dangerous drug.’

At first the participants were shown a news clip, which makes a reference to the dangerous nature of methylamphetamine – the drug trafficked Mr Quinn. Participants were then asked to pass a sentence simply on their opinion formulated by the bulletin. Afterwards, participants were shown submissions from the Prosecution and Defence, highlighting both the serious nature of the crime and the personal circumstances of Mr Quinn – he is a father who turned to drug use due to family illness.  Ultimately, the result of the Judge for Yourself exercise was that Mr Quinn was sentenced to 4 years imprisonment in total, with the Judge ordering that he received a suspended sentence and be released after 12 months. The case provided a great way to unpack some of the complex issues surrounding sentencing. Community participants were actively engaged in the exercise which was excellent.

Trafficking Generally

In Queensland, the trafficking of drugs is made a crime by virtue of the Drugs Misuse Act 1986 (Qld) (‘the Act’). Importantly, the Act distinguishes between ‘Schedule 1’ drugs and ‘Schedule 2’ drugs.

Schedule 1 drugs include Amphetamines, cocaine, heroin, LSD, methylamphetamine and MDMA or ecstasy. Accordingly, they are seen as the ‘more serious’ drugs and attract the more serious sentences. If found guilty of an offence involved a Schedule 1 drug the maximum term of imprisonment is 25 years.

Schedule 2 include cannabis, codeine, methadone, morphine, opium and oxycodone. Accordingly, they are seen as the ‘less serious’ drugs and attract lesser sentences. If found guilty of an offence involving a Schedule 2 drug the maximum term of imprisonment is 20 years.

Trafficking of a drug involves the sale of a drug. As held Martin v Osborne (1936) 55 CLR 376 it must be established that by selling the drugs, the person did so in the course of business. Thus, the Prosecution must show that the sale of the drug involved some level of commerciality. However, there need not be any financial benefit to the person themselves for trafficking to be made out.  If charged with trafficking, there are some possible defences that may be raised, including that the person was acting under duress, that the person has a mental impairment that meant they were not able to understand the nature of their actions, or the drug is not listed in any schedule of the Act.

It is our experience that trafficking offences often attract a term of imprisonment. Although it is always important that defence lawyers highlight to the court any mitigating factors in the circumstances, such as good character or lack of criminal history.

 


HIGHLIGHT: Frequently Asked Question - I have to go to Court, what's going to happen?

Dan Rogers is the Principal and Legal Director at Robertson O'Gorman Solicitors. He is an accredited specialist in criminal law.  Here he discusses the importance of legal representation at first court appearances.


Robertson O'Gorman Solicitors, leading criminal defence firm is pleased to welcome Linda Cho to the team!

Robertson O'Gorman Solicitors, leading criminal defence law firm is pleased to welcome Linda Cho to the team!

Linda holds a Bachelor of Laws (Honours) and a Bachelor of Arts (International Relations and Political Science) from the University of Queensland. She obtained her Graduate Diploma of Legal Practice from Australian National University and was admitted as a solicitor to the Supreme Court of Queensland in 2016.  Prior to joining the team at Robertson O’Gorman, Linda practiced in the areas of criminal law, child protection, domestic violence, mental health and youth crime. Linda has a keen interest in rehabilitation and has experience working within the therapeutic courts in Brisbane.  She has travelled on circuit to Aboriginal and Torres Strait Islander communities, such as Bamaga and Thursday Island and has represented clients from all walks of life and has appeared for clients in the Magistrates, District and Supreme Court, representing them for matters ranging from simple traffic matters to more serious matters.

Linda is also an active committee member of the Asian Australian Lawyers Association, helping to promote the importance of cultural diversity in the legal profession. She also sits on the Australian Broadcasting Corporation Advisory Council.  She is a passionate advocate who strives to assist people who must go through the criminal justice system. She understands that it can be a daunting and frightening experience. When meeting with clients she ensures that any question can be asked so every client has a clear understanding of what is happening with their matter.


Investigation of war crimes and the recommendations of the Inspector-General of the ADF

Investigation of war crimes and the recommendations of the Inspector-General of the ADF

The Inspector General of the ADF Afghanistan Inquiry Report was released following a lengthy investigation by Major General Brereton.

The Report made a number of recommendations for further investigation and in particular, the report recommended that 36 matters be referred to the Australian Federal Police for criminal investigation.

The inquiry had broad powers to investigate these matters. The inquiry is not a criminal trial and cannot find guilt in any individual case.  Any matters where the Inquiry Report recommends an investigation by the AFP must then be independently investigated by the federal police and a decision made as to whether or not to prosecute the matter.

It is important that in the context of any criminal investigation by the AFP, the individuals the subject of any investigation are reminded of their rights to remain silent and to obtain legal advice before answering any question put to them.

War crimes and the Commonwealth Criminal Code

Division 268 of the Commonwealth Criminal Code sets out a number of offences against humanity including genocide, crimes against humanity and war crimes.  Of importance in considering the recommendations made by the Major Brereton, is the war crime – murder which appears at section 268.70.  A person accused of the war crime of murder commits an offence if:

(a)  the accused causes the death of one or more persons; and

(b)  the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and

(c)  the accused knows of, or is reckless as to, the factual circumstances establishing that the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and

(d)  the accused person’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.

 

In addition to the war crime of murder, the report made recommendations around investigation of cruel treatment and torture both of which are also offences under the Commonwealth Criminal Code.

 

A person accused of cruel treatment, pursuant to section 268.72, commits an offence if:

(a) the perpetrator inflicts severe physical or mental pain or suffering upon one or more persons; and

(b) the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and

(c) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and

(d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict. Penalty: Imprisonment

 

Similarly in relation to the war crime of torture, pursuant to section 268.25, a person commits that offence if:

(a) the perpetrator inflicts severe physical or mental pain or suffering upon one or more persons; and

(b) the perpetrator inflicts the pain or suffering for the purpose of:

(i) obtaining information or a confession; or

(ii) a punishment, intimidation or coercion; or

(iii) a reason based on discrimination of any kind; and

(c) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and

(d) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected; and

(e) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.

Beyond reasonable doubt 

In Australia the criminal standard of proof, beyond reasonable doubt, applies to war crimes prosecuted under the Commonwealth Criminal Code.  The nature of the evidence collected by the inquiry throws up a number of questions concerning the admissibility of some of that evidence ultimately in criminal proceedings.

There are a number of defences available to individuals charged with the war crime of murder. Specifically to section 268.70 of the Criminal Code, the person will not be guilty of the offence if it can be demonstrated that:

(a)  the death of the person or persons occurs in the course of, or as a result of, an attack on a military objective; and

(b)  at the time the attack was launched:

  • the perpetrator did not expect that the attack would result in the incidental death of, or injury to, civilians that would have been excessive in relation to the concrete and direct military advantage anticipated; and
  • it was reasonable in all the circumstances that the perpetrator did not have such an expectation.

Many persons who are affected by the recommendations within this report would feel that the nature of the inquiry and their role within the ADF impacted greatly on their decisions and process.  The report noted the potential for accused persons to raise mental health defenses and disorders as relevant to culpability and abnormal mental functioning.  In each case of a recommendation for prosecution by the AFP, the mental health of the individual at the time of the alleged incident will be relevant not only to the exercise of the prosecutorial discretion but also ultimately to any potential defences or excuses which might be available to the accused person.

What to take away

There are a number of matters which should be taken away from this report:

  • Firstly, the inquiry is not a criminal trial and recommendations are not charges.
  • Secondly, the process for the individuals the subject of the report will be a long an arduous once and it is important that appropriate legal advice is obtained at the earliest opportunity.
  • Thirdly, the investigation to be conducted by the AFP will involve different rules and rights for individuals;
  • Fourthly, the process of proceeding to trial involves a number of strategic decisions best made by individuals with lawyers who understand the criminal process and are able to develop a strategy for their individual situation.

 

If you or a family member require any advice about matters arising from this report, please contact Dan Rogers, a specialist in international criminal law.

A redacted copy of the report can be found here. If you require support, The Defence all-hours Support Line is a confidential telephone and online service for ADF members and their families 1800 628 036.

 


Robertson O'Gorman Solicitors striving for Excellence - Emma Higgins recognised in the 2020 Queensland Criminal Law Rising Star Rankings

Last week, Robertson O’Gorman was again recognised as a ‘First Tier Criminal Defence Firm’. Congratulations to our newest edition to The Doyle’s Guide, solicitor Emma Higgins!  Emma has been recognised in the 2020 Queensland Criminal Law Rising Star rankings.  Doyle’s is curated by fellow criminal lawyers and barristers, recognising the expertise of our firm’s criminal defence lawyers and we are proud of our firm’s commitment to excellence and the continuing professional development and mentoring we provide throughout our lawyers' career.


Robertson O’Gorman Principal recognised in national Doyle’s List for White Collar and Corporate Crime Professionals and Criminal Defence Lawyers

Robertson O’Gorman Principal recognised in national Doyle’s List for White Collar and Corporate Crime Professionals and Criminal Defence  Lawyers

The Doyle’s Guide is an independent organisation that rates and recommends law firms and individuals based on interviews with clients, peers, and relevant industry bodies.  The Doyle’s 2020 rankings are in and we congratulate our Principal, Dan Rogers for being recognised nation-wide as a Leading Criminal Defence Lawyer, in addition to a national recognition in the White Collar Crime, Corporate Crime and Regulatory Investigations Category.  Congratulations also to Terry O’Gorman; another one of our team awarded nation-wide recognition as a Leading Criminal Defence Lawyer. All of the solicitors at Robertson O’Gorman strive for quality and superior customer service and we are very proud of their commitment to excellence.