Queensland’s veteran human rights warrior on ‘miscarriages of justice’ past and present
Retiring criminal lawyer Terry O’Gorman, who famously took on Joh Bjelke-Petersen, is withering about David Crisafulli’s new law and order crackdown
Framed on the wall of Terry O’Gorman’s office in inner-city Brisbane is a white vest and a cartoon.
The criminal lawyer wore the legal observer’s vest as a law student with an Art Garfunkel-esque mop of curls during the brutal crackdown on those protesting against the now infamous tour of the apartheid-era South African rugby team in the early days of the Joh Bjelke-Petersen regime.
The newspaper cartoon depicts O’Gorman in the pomp of his legal career, red-haired and ruddy, looming over a flustered-looking Bjelke-Petersen in the witness stand during the landmark Fitzgerald inquiry that would bring down the controversial premier 17 years later.
So it is with no small irony that the now snowy-headed O’Gorman retired after five decades of practice – during which he was a standard-bearer in the often murky fight for human rights in the sunshine state – the day after a new conservative premier unveiled his own signature law and order crackdown.
And while the vibrant shade of O’Gorman’s locks might have dimmed with age, his turn of phrase has not. His assessment of David Crisafulli’s new hardline youth crime laws – under which youth offenders who commit serious crimes will face the same penalties as adults, including mandatory life detention for murder – is typically withering.
“This is the first time in Australia, and to my knowledge, the first time in the western world – the first time in countries with systems like us such as the UK and Canada – that we’ve had such a policy,” O’Gorman says. “So it is totally breaking new ground.
“And it, invariably, is going to cause miscarriages of justice.”
In this bill O’Gorman sees the ghost of injustices inflicted by the mandatory life sentences Bjelke-Petersen imposed for drug trafficking. To the ordinary person, O’Gorman says, that term conjured images of jumbo jets filled with methamphetamine and heroin. In reality, drug trafficking applied equally to small-timers pushing drugs to feed a habit.
“I had a client go to jail for life under that legislation,” he says. “My client was a user, addict-seller.”
It is not just the sweeping nature of Crisafulli’s crackdown that draws O’Gorman’s ire, but the fact that it will be “pushed through” parliament without “proper” consideration.
“You’ve got a politically motivated change of legislation that was put up there at the top of the agenda for the LNP to win an election that is now being completed in record time, simply to suit the political convenience of the premier who said it would be done by Christmas,” he says.
Particularly given that Queensland has no upper house to vet bills – another bug bear of O’Gorman’s – parliamentary committees require “proper deliberation” to ensure all voices are heard, submissions made and flaws identified. None of which will be possible under the timeframe given to Crisafulli’s legislation.
“The committee examination of this is going to be a farce and a shambles,” O’Gorman says.
Considering that prediction and his profile, did the 73-year-old lawyer consider delaying his retirement? O’Gorman’s answer to that question should put Crisafulli on notice – he is retiring from the practice of law, not from championing civil rights.
The former president of both the Queensland and Australian civil liberties councils says he will be watching the Liberal National party government “with some considerable trepidation” for a “repeat of the Campbell Newman madness”.
O’Gorman is referring to the anti-association “Vlad” laws the former LNP premier brought in to target bikie gangs “without consultation”. But also his “ridiculous” judicial appointments.
Newman’s pick of Tim Carmody as chief justice in 2014 would later be described as “the most controversial judicial appointment in Australia’s history” and is one the likes of which O’Gorman is adamant must never be repeated.
“It is critical that the appointment of judges remains apolitical, as it currently is,” O’Gorman says. “You only need to look at the US to see why.”
Concerned as he is, does O’Gorman not look forward to a break from a career in which he admits “one struggles to find work-life balance”
To this, the man raised in a conservative Catholic family among 15 siblings gives a vague response about reading books and riding his bike before launching on a lengthy and impassioned plea for a national criminal cases review commission, a body to fight miscarriages of justice, for which he has long advocated, and one that will remain a pet project in retirement.
But the fight against those injustices is not always glamorous, or popular.
O’Gorman’s final trial, that concluded last week, was a rape case. His client was found not guilty. O’Gorman admits to a feeling of personal satisfaction – had the result been otherwise he believes it would have been a serious miscarriage of justice. Is he sure he’s ready to retire, really?
“There’s more than one of me,” O’Gorman says.
On one hand, this statement is backed by the number of critics of Crisafulli’s youth crime crackdown and a testament to how much has changed in Queensland since the 1970s when the Queensland Council for Civil Liberties was “almost a voice in the wilderness”, speaking out against the lawless methods employed by those imposing order.
But on the other, surely, there is only one Terry O’Gorman.
Pretrial Publication of Criminal History by Terry O’Gorman
Robertson O'Gorman Senior Criminal Defense Lawyer, Terry O'Gorman, writes about pretrial publication of criminal sentencing, post recent publication of Courier Mail and airing of Channel 9 News
It has long been a requirement of Police that a person’s criminal history is not to be revealed by the Police in post arrest media comments.
The reason for this rule is to protect the integrity of the Trial process and the rule is directed to two aspects of the Court process.
The first is to ensure the fair Trial of an accused which can be adversely affected by the publication of an accused’s criminal history, particularly by Police in the immediate aftermath of an accused’s arrest.
The second is a corollary of the first, namely to protect the integrity of the Prosecution case against a challenge by the Defence for exclusion of evidence or other Trial related steps such as a temporary or permanent stay of proceedings.
In today’s Courier Mail and in last night’s news there was reference to the criminal history of the accused person arrested in relation to the incredibly tragic event where a 69 year old woman was killed at Murrumba Downs allegedly by a 16 year old driving a stolen Audi.
Police attributed or background comments about the criminal history of the accused are:-
- Chief Superintendent Adam Guild said the teen was known to Police and confirmed he had matters before the Court (Courier Mail, Friday 8 November 2024, page 4);
- Channel 9 News 6:00pm Thursday 7 November 2024 where a comment was made that “(The suspect) has a 16 page rap sheet and is on bail”.
While the event is extremely tragic, the protection of the integrity of the Court process requires that the increasing practice of Queensland Police making media comments on a person’s criminal history at the time of the arrest must cease.
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Criminal lawyering: Sentences by Dan Rogers
Robertson O'Gorman Principal, Dan Rogers writes in QLS Proctor about vital sentencing resources for preparing and arguing a plea in mitigation
When navigating the complex landscape of criminal law, one of the most critical aspects is understanding sentencing. A recent article on QLS Proctor, written by our Principal Dan Rogers, highlights key considerations that legal professionals and defendants alike should be aware of.
The article states:
"Sentencing is not just about punishment; it serves several purposes including deterrence, rehabilitation, and protection of the community.”
This multi-faceted approach underscores that sentences are tailored not only to the crime but also to the individual circumstances of the offender. The importance of “contextual factors,” such as the defendant's background and the impact on victims cannot be more emphasised. This highlights the judicial system's efforts to balance justice with compassion.
Understanding these nuances can empower defendants to make informed decisions about their cases.
“A well-informed client is better equipped to navigate the complexities of the legal system.”
Read the full article here: QLS Proctor - Criminal lawyering: Sentences
By grasping the intricacies of sentencing, individuals can better advocate for their rights and seek fair outcomes. For anyone involved in a criminal case, this knowledge is invaluable.
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Beating the Drum of Juvenile Justice Law and Order by Terry O’Gorman
Terry O’Gorman in an interview with Channel 9 (https://www.9now.com.au/) yesterday described the latest LNP juvenile justice proposals as another example of the LNP incessantly beating the juvenile justice law and order drum.
The LNP yesterday announced a policy that a youth offender’s criminal history will carry over into adulthood.
Terry O’Gorman said the current law is that if a child appears in the Children’s Court presided over by a Magistrate or in the Children’s Court presided over by a District Court Judge, when a conviction is recorded it already carries over if that person reoffends as an adult.
Mr O’Gorman said that the additional proposal by the LNP that youth offenders will be judged on every police caution and restorative justice agreement will simply mean that lawyers will seriously consider telling their clients not to participate in such diversion schemes if they are to be used against them at a later time.
“The purpose of such diversion schemes is to steer juveniles away from further offending and it works in the overwhelming majority of cases”
Mr O’Gorman said that the LNP policy represented a step too far in maintaining a balanced juvenile justice system.
“If the LNP aim is to beat the law and order drum louder in the leadup to the State Election, yesterday’s announcement will probably help them. But with Queensland having the highest number of juveniles in juvenile jails of any other State in Australia, yesterday’s announcement will only increase the already overcrowded juvenile justice jails”
Mr O’Gorman joined other advocates who have criticised recent LNP juvenile justice announcements by indicating that Queensland is already on the wrong track in building two extra juvenile jails, namely one in Woodford and one in Cairns.
“The huge amount of money spent on building juvenile jails and in keeping juveniles in jail could be much better used on a ‘front end basis’ to pump resources into families who are in trouble and are having difficulty with children so as to prevent children from getting on and progressing up the juvenile justice ladder”
Contact us for advice: https://www.robertsonogorman.com.au/our-services/criminal-law/