Melissa Kerr

Legal Services Commissioner v Mill [2026] QCAT 308

Family lawyers and Domestic Violence Lawyers are often instructed by clients who are distressed, frustrated, fearful, or desperate to be heard. Nowhere is this more apparent than in matters where domestic violence orders exist alongside parenting disputes.

The recent Queensland decision in Legal Services Commissioner v Mill [2026] QCAT 308 serves as a powerful reminder that a solicitor's role is not to become a conduit for a client's emotions, grievances, or attempts at reconciliation. Rather, practitioners must maintain professional independence and ensure that communications serve a legitimate legal purpose.

The case concerned the sending of lengthy legal correspondence to an Aggrieved by a solicitor acting for a Respondent. The Respondent was bound by a no contact condition with relevant exceptions.  According to the Tribunal, the letter went far beyond matters legitimately connected with arrangements for a child. It contained repeated emotional appeals, discussions about reconciliation and warnings about the cost and stress of litigation. The Tribunal described the correspondence as emotionally manipulative and coercive.

The risk of becoming a mouthpiece

One of the most important lessons arising from the decision is that solicitors cannot abdicate their professional judgment to their clients.

Many family lawyers and domestic violence lawyers have experienced a client who insists on reviewing every sentence of correspondence, demands the inclusion of personal grievances, or seeks to use legal communications as a vehicle to express hurt, anger, disappointment, or a desire for reconciliation. The temptation can be to accommodate the client in an effort to maintain the relationship or move the matter forward.

However, the Tribunal’s decision here is a timely reminder that a solicitor is not retained to merely transmit what a client wishes to say. Legal correspondence carries authority because it comes from a lawyer. The recipient, the court, and the public are entitled to assume that communications issued by a solicitor reflect independent legal judgment rather than unfiltered client opinion.   When a lawyer simply reproduces a client's narrative, particularly in emotionally charged family law matters, the lawyer risks becoming a mouthpiece rather than an independent professional adviser.

Domestic Violence Orders require particular care

The risks become significantly greater where a domestic violence order is in place.  Protection orders commonly restrict communications between parties. While legal practitioners may legitimately communicate with parties to protection orders consistent with the legislation, those communications must not become a mechanism for conveying messages that the client is otherwise prohibited from sending.

As practitioners we should constantly ask ourselves:

• Does this communication serve a genuine legal purpose?
• Is every paragraph necessary?
• Am I communicating legal issues, or my client's emotional wishes?
• Would this content be appropriate if scrutinised by a court or disciplinary tribunal?
• Am I facilitating communication that my client could not appropriately make themselves?

If those questions cannot be answered confidently, the communication should be reconsidered.

Professional Independence

One observation made by the Tribunal at [14] was that perhaps the solicitor, rather than giving in to the pressure exerted by the client ought to have ‘shown him the door’.  That comment highlights a difficult reality of legal practice: sometimes the correct professional response is to refuse instructions.  Clients are entitled to provide instructions. They are not entitled to dictate how a solicitor exercises professional judgment.

Where a client insists upon:

• inappropriate communications;
• personal attacks;
• emotional manipulation;
• attempts to circumvent court orders; or
• content inconsistent with a solicitor's professional obligations,

the practitioner may need to refuse the instruction or, in extreme cases, terminate the retainer.

Family lawyers and domestic violence lawyers perform a vital role in helping clients navigate some of the most difficult periods of their lives. Yet the authority and privilege of practising law requires judgment, restraint, and often the courage to say: "I cannot send that."  It is often uncomfortable in the moment but when explained to the client, the benefit the client ultimately derives from the stance you take is often met with respect and understanding, after all, you as their lawyer have their best interests in mind when giving that advice.

Written By The Robertson O’Gorman Team

Robertson O’Gorman Solicitors is Brisbane’s pre-eminent criminal defence firm, with a legacy of over 50 years of legal excellence. Their team includes accredited criminal law specialists and former prosecutors who consistently appear across Magistrates, District, Supreme and appellate courts. As a First Tier firm recognised in Doyle’s Guide 2025, they deliver strategic, early-stage legal advice — often before charges are laid — to preserve rights and achieve optimal outcomes for clients. Known for fearless yet compassionate advocacy, the firm combines deep courtroom experience with a commitment to social justice, integrity and tailored client care.

by Melissa Kerr

Distinguished Robertson O’Gorman alum, Terry O’Gorman AM, presents at the Australian Criminal Lawyers Conference, on disclosure challenges facing the criminal justice system.

On the 27 of March 2026, criminal law practitioners from across the country gathered in Sydney for the annual Australian Criminal Lawyers Conference. The conference is an excellent opportunity to hear from industry experts across the Australian jurisdictions, on key developments and emerging challenges in the criminal law landscape.

This year, Terry O’Gorman AM, civil rights advocate and co-founder of Robertson O’Gorman Solicitors, was invited to present a paper addressing significant and systemic issues in the way disclosure is handled within the criminal justice system.

The paper began with a cross-jurisdictional analysis of existing disclosure regimes across Australia’s states and territories, identifying key deficiencies that contribute to the persistent problem of late and missing disclosure.

The paper proceeded to discuss practical strategies defence practitioners can adopt within the constraints of the existing system, to mitigate the risks associated with inadequate disclosure. The following ten strategies were drawn from Terry O’Gorman’s extensive experience in addressing failures by prosecution to provide relevant material, as well as from discussions with other practitioners:

1. Be proactive. Invoke the right to disclosure expressly, from an early stage and in writing. The defence should not rely on informal assumptions.
2. Particularise the defence theory early. Where appropriate, articulating the defence case at an early stage can help shape and direct the scope of disclosure.
3. Inquire specifically about credibility and inducement material. A striking number of miscarriage cases involve undisclosed benefits, informer status, payments, criminal histories, prior inconsistent statements or other impeachment material.
4. Force the Prosecution to disclose what enquiries have and have not been made. Do not just ask “have you disclosed everything?”. Ask what sources were checked, what devices were downloaded, what third parties were approached, what overseas or agency records were sought and what was not pursued. This strategy helps turn a vague assurance into something testable.
5. Use subpoenas strategically. Defence practitioners should take an active role in identifying and obtaining potentially relevant material—such as hospital, agency, telecommunications, or institutional records—rather than waiting for the prosecution to disclose it.
6. Challenge Prosecution claims of privilege or public interest immunity. In practical terms the Defence should press for a proper identification of the material and if necessary judicial inspection rather than accepting a prosecution bare refusal.
7. Treat digital evidence as a disclosure project of its own. Recent reviews show that digital evidence is where disclosure often breaks down. Be scrupulous in requesting extraction reports, search terms, audit trails and a clear explanation of what collections were searched, and which were not.
8. Put the issue before the court early, not just on appeal. Case law demonstrates that late discovery of non-disclosure can overturn convictions. It is clear that the Defence should use interlocutory and pre-trial processes to force the issue before trial.
9. Keep a detailed disclosure record. A Defence team that keeps a dated schedule of requests, response, omissions and challenged assumptions is much better placed both to force compliance at trial and to prove unfairness later.
10. Do not assume the Prosecutor already knows what police or agencies hold. The Defence should frame requests and Subpoenas not only to the prosecutor’s brief but also requests should be directed to material held by the police, other agencies and individual investigators.

The paper emphasised that, while practical strategies can mitigate the risks of inadequate disclosure, any effective long-term solution ultimately requires systemic reform supported by legislative change. Drawing on recent reviews of the disclosure regime in the United Kingdom - particularly the Fisher Review - the paper identified several key pathways for reform:

• Stronger, more comprehensive legislative frameworks across Australia to clearly define and articulate disclosure obligations, reducing ambiguity in their scope and application.
• Robust accountability mechanisms at all levels, including disciplinary consequences for police officers who fail to comply with disclosure duties.
• Mandatory verification of disclosure compliance, such as requiring both prosecutors and arresting officers to formally certify that all disclosure obligations have been satisfied prior to the submission of a prosecution brief.
• Improved training for police investigators, prosecutors, and model litigants, ensuring a thorough and consistent understanding of disclosure obligations and eliminating misconceptions about their scope.
• Greater prosecutorial oversight of disclosure practices. Given that disclosure is largely police-controlled, prosecutors currently rely heavily on investigators to identify relevant material. Increased prosecutorial involvement is necessary to ensure compliance with disclosure requirements.
• Ongoing monitoring and evaluation of recent reforms, particularly in jurisdictions such as New South Wales and the Australian Capital Territory, to assess their effectiveness and inform future improvements.

The paper ultimately serves as a call to action, cautioning that attendance at conferences of this kind risks becoming a hollow exercise if not followed by concrete steps. Meaningful reform requires more than mere recognition of the problem; it demands sustained commitment, ongoing oversight, and deliberate, practical action.

by Melissa Kerr

Daniel’s Law: What does it mean and how may I be impacted?

Daniel's Law, which refers to the Community Protection and Public Child Sex Offender Register (Daniel's Law) Bill 2025, was introduced into the Queensland Parliament on 27 August 2025.

The bill proposes to amend the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 and introduce a three-tiered public child sex offender register:

1. A publicly available website for reportable offenders who have failed to comply with their obligations and their whereabouts is unknown to police. The offenders full name, photograph and year of birth may be accessible by members of the public.

The bill requires only information considered necessary to keep the community informed to be published and details to be removed as soon as practicable once the offender is located by police.

2. A locality search application that gives residents the ability to view photographs of reportable offenders living in their local area.

Tier 2 is limited to reportable offenders who pose the greatest risk of reoffending against children. These are reportable offenders who:

• • are repeat offenders;
  • have reporting obligations imposed for the remainder of the offender’s life;
  • are subject to a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003; or
  • the Police Commissioner deems to be a serious risk offender

3. A parent and guardian application that allows parents, carers and guardians to confirm whether a particular person who has had, or will have, unsupervised contact with their child, is a reportable offender.

Its purpose is to increase the protection of children by giving parents, carers or guardians access to information that will allow them to act at an individual level to keep children safe.

However, the bill recognises that public release of information must be undertaken in a measured way. Safeguards proposed by the bill include:

• In line with existing restrictions, not enabling the publication or disclosure of information about an offender:
• who is under the age of 18 years, or who was under the age of 18 years at the time they committed a child sexual offence and has not reoffended or engaged in particular conduct as an adult;
• who is a participant in a witness protection program; or
• where a court has prohibited identification of the offender or the disclosure or publication of personal information about the offender.
• Creating new offences prohibiting misuse of information accessed or obtained using the public register:
• an offence carrying a maximum penalty of 10 years targeting conduct intending to, or inciting others to, intimidate or harass another person they believe or suspect is an identified offender;
• an offence carrying a maximum penalty of 3 years targeting conduct that is likely to, or likely to incite others to, intimidate or harass another person they believe or suspect is an identified offender; and
• an additional offence carrying a maximum penalty of 3 years for the unauthorised sharing of information obtained through the public register.

Will I know if my information has been shared?

It is unlikely you will be informed if your information is shared with an individual. This is because the Police Commissioner is not required to notify any person likely to be affected by such decisions or to offer them with the opportunity to provide input or make submissions.

Additionally, the bill allows only a limited right to appeal the Police Commissioner’s decision to publish information.

Any person concerned about publication of their identifying information should seek legal advice.

by Melissa Kerr

Advocacy at Trial - Statutory directions from the Evidence Act 1977

In criminal trials, jury directions provide essential scaffolding for fair judgment. Traditionally, many of these have developed at common law and are distilled in judicial benchbooks as model or guiding formulations.

Over time, practitioners have relied upon these tools to ensure that the evidence they are eliciting either in chief or in cross-examination is consistent with the law that a jury will be directed on by the Trial Judge. Beyond these long‑standing norms emerge statutory directions, commands of the legislature that demand precise application. Their significance lies not only in what they say, but, if they apply, in their mandatory nature.

Benchbook directions serve as flexible aids. A trial judge may adapt them or elect not to give them, depending on the case's contours and the strength of submissions from counsel. Statutory directions are legislative commands, which arise once their preconditions are met. This subtle but crucial distinction places an onus on practitioners to ensure that where the possibility of a statutory direction arises, the evidence meets its requirements.

Take, for example, the Evidence Act 1977 (Qld) subdivision 4 and the suite of trial directions to be applied in the case of offending of a sexual nature.  At section 103ZY, if evidence is given or likely to be given that suggests a difference in the complainant's account bearing on truthfulness or reliability, the judge must deliver a specific direction. The direction explains that variations in account are common, due to trauma or memory issues, and that such inconsistencies do not inherently signal dishonesty. It emphasises that it remains for the jury to determine whether these differences matter.

A trial judge must give any one or more of the directions set out in those subdivisions of the Evidence Act when there is a good reason to give the direction or it is requested by the party, unless there is a good reason not to give the direction.  While there is no particular form of language for the direction (Evidence Act 1977 (Qld) s103ZQ(5)) the statutory language should be considered by practitioners in considering whether the conditions arise for the direction to be given.

This dynamic is illustrated in the Court of Appeal judgment R v PBT [2025] QCA 152.  In that case, the Court overturned the Appellant’s convictions on the basis that the evidence of the recorded interview with the defendant ought not have been admitted.  In that case, however, a second ground of appeal related to whether the direction pursuant to section 103ZY ought to have been given.

In that particular case, the complainant’s evidence was not relied upon by the Crown. The complainant had originally given recorded evidence to Police and then recanted that evidence. In the meantime, the defendant’s record of interview had been taken.  The circumstances of the trial required that, while it was not relied on, the complainant’s evidence be played to the Jury.

This led to an unusual situation where the jury heard the complainant’s evidence but were told it could “in no way be used to support the Crown case” and then were directed in accordance with section 103ZY about the complainant’s evidence.

Overturning the conviction on another basis, the Court of Appeal took the opportunity to observe that the statutory directions pursuant to the Evidence Act, and in this case 103ZY, require the parties to carefully consider whether a direction is in fact called for in the circumstances of the particular case. Giving the direction in circumstances where it is not required by the statute may well cause a jury to be confused.

In practice, lawyers must carefully assess the circumstances under which statutory directions arise. This involves analysing the evidence, determining its probative value, considering the objectives of specific lines of cross-examination, and anticipating the potential need for trial directions. These considerations are essential aspects of effective advocacy during trial proceedings.

These statutory directions are tools designed to counteract biases and myths around sexual offence complainants. Their utility relies on diligent advocacy. It is the responsibility of practitioners to identify their trigger, argue their necessity clearly, and help shape them sensitively so that they do justice in the courtroom.

This alignment between legislative prescription and courtroom clarity is where effective trial advocacy shines.

by Melissa Kerr

Major Queensland Domestic Violence Act amendments

Major Queensland Domestic Violence Act amendments

On the 30th of April 2025, the Queensland Minister for Domestic and Family Violence introduced significant changes to Queensland’s current domestic violence laws.

The most notable change is the introduction of a Police Protection Direction (PPD). This direction is, in effect, an order made by police ‘on-the-spot’ to alleged perpetrators of domestic violence. Further introductions include:

• QPS monitoring devices will be issued to high-risk perpetrators.
• The video recorded evidence in-chief (VREC) scheme, which has been under trial, will be expanded statewide

Police Protection Direction (PPD)

Up until now, all police application for a protection order are put before a Court requiring an independent judicial officer to consider the merits of any application. Now, police will be able to issue a PPD when a Police officer considers that it is appropriate for a matter not to proceed to Court. This represents a fundamental shift in the administration of justice plus the rights and interests of all parties.

The Minister in her Introduction Speech asserted that there will be safeguards for the issuing of PPDs to reduce the risk of misidentification of the person most in need of protection. The Minister’s speech indicates there are circumstances where a formal application to a Court for a Domestic Violence Order will continue to be the most appropriate form of protection.

A PPD will not be available in any of the following circumstances:

1. a) Where the respondent or aggrieved is a child
   b) Where the respondent or aggrieved is a police officer
   c) Where the respondent should be taken into custody in relation to the relevant domestic violence
2. d) Where a DVO will recognise interstate orders relating to the parties as enforced or has previously been enforced. This is to ensure the parties who have a history of orders between them proceed to a Court to have their relationship as a whole considered.
3. e) Where a PPD against the respondent is in force or has previously been in force. A PPD will also not be able to be issued if there is already a PPD in place between the same aggrieved and respondent
4. f) Where the respondent has been convicted of a domestic violence offence in the previous two years.
5. g) Where the respondent has allegedly used or threatened to use an offensive weapon or instrument to commit the domestic violence
6. h) Where an application for a protection order, including via a PPN, against the respondent has been made
7. i) Where a child is a named person on the PPD, and conditions other then standard conditions are needed to provide protection

When issuing a PPD, police officers will be required to seek approval from a supervising police officer. For a PPD which includes a cool-down condition, the supervising officer must be of at least the rank of Seargeant. PPDs that include an ouster or no contact condition must be approved by a supervising officer of at least the rank of Senior Seargeant.

If a supervising officer considers the matter should go before the Court, they can approve the issue of a Police Protection Notice instead of a PPD.

The Bill establishes two pathways for a PPD to be reviewed once it is issued – a police review and a Court review.

A police officer review may be suitable on a police officer’s initiative if the police officer becomes aware of circumstances, or reasonably believes there are circumstances, that were not known or considered when the PPD was issued.

The aggrieved, the respondent, and authorised persons for the aggrieved and the named person may also apply for a police review of a PPD within 28 days after the notice. This is a useful safeguard.

The aggrieved or respondent can also, at any time during the 12 months the PPD is in force, make an application to a Court to review the PPD. Importantly, an Applicant can seek a Court review whether or not they have applied for a police review. The Court review is not an appeal against the police review.

On such an application, the Court will be required to consider whether a protection order is necessary or desirable at the time of review, not at the time the PPD was issued. The Court may make any order that is currently available in relation to hearing an application for a Domestic Violence Order. The Court might also make an Order setting aside the PPD or decide to dismiss the application for a protection notice.

QPS electronic monitoring devices

Under the Bill, there are also changes to the framework for electronic monitoring of high-risk domestic and family violence perpetrators. When making a monitoring device condition, Courts will be required to consider making an ouster condition or a condition that prohibits the respondent from approaching, or attempting to approach, the aggrieved or named person.

Video recorded evidence-in-chief

According to the Minister, the Bill simplifies, streamlines and expands the framework currently in the Evidence Act 1977 (Qld) which allows adult complainants in domestic violence criminal proceedings to give their evidence-in-chief by way of a video recorded statement. Currently, the framework only applies in the Ipswich, Southport and Coolangatta Magistrates Court. The Bill expands the framework to all Magistrates court statewide to enable all “victim-survivors” of domestic and family violence the option of providing a recorded statement and have that recording presented to the Court as their evidence in chief instead of oral testimony.

The Minister noted that “victim-survivors” of domestic and family violence may delay in reporting any offending to police. If a matter is immediately reported, “victim-survivors” may be in a heightened state of distress and require further time before providing a detailed account police. The Bill removes the requirement to obtain a recorded statement as soon as practicable after the events to which the recorded statement relates. The Minister said this will allow a victim-centric approach to when a police officer may take a recorded statement.

The Bill also removes the requirement for a police officer who has successfully completed certain training to take a recorded statement. This will provide, according to the Minister, more “victim-survivors” across the state the option of making a recorded statement with a police officer who has completed other suitable training.

Conclusion

These changes represent significant shifts in the way in which police investigate domestic violence, collect evidence and protect those in need of protection.

The Women’s Safety and Justice Taskforce, in ‘Hear her voice – Report 2 - Women and girls experience across the criminal justice system’, detailed how the person most in need of protection is often misidentified.1 Similarly, the Commission of Inquiry into Queensland Police Service responses to domestic and family violence, explicitly noted that the misidentification of victims as perpetrators “compromises the integrity of the police response and significantly heightens the risk to the primary victim”.2

Courts play an important role to independently assess each case once the dust has settled in a domestic violence situation. While the mechanism to review a PPD before a Court is encouraging, many individuals will face practical barriers, such as financial ones, to exercise this right.

1 Hear her voice – Report Two – Volume 2 - Women and girls experience across the criminal justice system, Women’s Safety and Justice Taskforce Report. Pg 452-501

2 Ibid pg 54, para 8

by Melissa Kerr

Terry O'Gorman writes on the yet another New South Wales District Court prosecution that has resulted in a Costs Order against the Director of Public Prosecutions (DPP).

Today’s Australian Newspaper reports on yet another New South Wales District Court prosecution that has resulted in a Costs Order against the Director of Public Prosecutions (DPP).

In an exchange during the course of a jury trial in a matter which was not a sex case, Judge Colefax reportedly said to the Prosecutor “how do (you propose to) discharge the onus of proof” to which the Prosecutor answered “we don’t (can’t)”.

The Australian reported that the Crown Prosecutor told the District Court in an opening address that the case had no prospects of success.

Given this startling concession, the Trial Judge took the unusual but sensible step of offering the Crown Prosecutor the opportunity of immediately seeking guidance of a senior member of the New South Wales private bar. Following that, the next day, another Senior Crown Prosecutor appeared and withdrew the case.

The Australian reports the original Crown Prosecutor has since resigned from the DPP, with his departure causing waves within the Office.

New South Wales has a Costs Regime in criminal jury trials. Queensland does not. Costs Applications, after unsuccessful Prosecutions, have become a defacto mechanism for highlighting how the New South Wales DPP is frequently running unmeritorious jury trials.

The problem revealed in this case, and similar cases reported in the Australian over the last 12 months, shows the necessity for a complaint and oversight mechanism to be installed across all DPP Offices in Australia.

None of the Australian DPP Offices have an independent and fully transparent complaints process.

The Royal Commission into Institutional Sex Abuse examined a proposal that Australia institute a DPP Inspectorate nationwide modelled on the United Kingdom Crown Prosecution Service Inspectorate which has existed for many years. The Royal Commission, in effect, fudged the issue by not including such an oversight body in its findings and recommendations.

The opaqueness and lack of transparency of DPP Offices around the country, both in relation to Prosecution decisions and complaints about misbehaviours or decisions made by Crown Prosecutors has to end.

It is well overdue for a national Inspectorate of Australian DPP Offices similar to the UK model to be established.

We are a criminal law firm in Brisbane and if you need advice on any criminal matter, feel free to contact us.

by Melissa Kerr

Terry O'Gorman writes on the CCC report into former public trustee Peter Carne

On Wednesday night, 19 February 2025 the Queensland Parliament tabled the report of the Queensland Crime and Corruption Commission into former public trustee Peter Carne despite the High Court of Australia’s finding that the Commission “lacked the power to report at all" (1).

The Hansard transcript shows a non-existent debate as to Parliament’s right to table a report highly damaging to Mr Carne in despite of the High Court’s ruling.

The Attorney-General, Deputy Premier and Health Minister were the main government speakers in favour of the tabling of the report. None of the three senior State Cabinet Ministers addressed the fundamental issue of being bound by the High Court rulings unless and until the Parliament legislated a new law to override the High Court Judgment.

The Labor Opposition indicated they were not going to oppose the motion and that is all that was said by the Opposition. There was not a mention about the important principles of respecting court decisions unless they are overruled by subsequent legislation.

Parliamentary supremacy is an important principle in our democratic process. However, the fact that neither the Government nor the Opposition addressed the fact that the tabling of the Carne report was contrary to the High Court ruling is profoundly concerning. Our community deserve better debate on important issues.

1. See page 242 of (the Independent Review into Crime & Commission’s reporting on the performance of its corruption functions 20/5/24) by the Honourable Catherine Holmes AC SC

by Melissa Kerr

Founding partners Terry O'Gorman and John Robertson speak with current Principal Dan Rogers

Founding partners Terry O'Gorman and John Robertson sit down with Principal Dan Rogers to reflect on their partnership, the Fitzgerald inquiry, law reform, and Robertson O’Gorman’s guiding principles and significant milestones.

Watch the full video below:

by Melissa Kerr