Joinder by Ella Scoles
It has long been the case in criminal law that only one criminal charge ought to be contained on an indictment. There is good reason for this. In a general sense, the law recognises the highly prejudicial nature of placing before a jury an allegation that the defendant is accused of criminal wrongdoing(s) on another occasion. The danger is that a jury’s assessment of one allegation would be clouded by the allegations pertaining to another. Or, in other words, there is a real likelihood evidence in respect of one allegation may wrongly be regarded by a jury as being more probative of the accused’s guilt than it deserves to be when considering another allegation.
In Queensland this protection is captured by section 567(2) of the Criminal Code. It provides that only one count should be contained on an indictment. More than one count may be joined under s 567(2) only if one of the following preconditions are met:
(a) “founded on the same facts”;
(b) “are, or form part of, a series of offences of the same or similar character”; or
(c) are or form a part of “a series of offences committed in the prosecution of a single purpose”.
Themes have emerged from appellate decisions about this issue.
Founded on the same facts is perhaps the most self-explanatory of the three possible limbs of joinder. The allegations must involve a common factual origin but it is not necessary for the offences to have arisen contemporaneously or to involve precisely the same facts. All that is necessary is for them to be traceable, either in time, place or circumstance, to common events.[1]
When considering whether counts form part of a series of offences of the same or similar character, the Court’s consider the ‘time, place and the other circumstances of the offences as well as the legal character or category are all factors which are considered for the purposes of seeing whether the necessary features of similarity and connection are present’.[2] But, it is not sufficient that the allegations be of similar character only, there must be something tying together the allegations that establishes them as a ‘series’.[3]
A single purpose may be alleged ‘sexual satisfaction’ or ‘drug trafficking’. The Courts must be cautious when concluding that multiple counts involve a series of offences committed in the prosecution of a single purpose.[4]
It is clearly a finely balanced exercise, and one Prosecutors must consider prior to the presentation of any indictment in the higher courts. Defence lawyers ought to also be guarded against improperly joined counts so as to prevent their clients from receiving an unfair trial.
[1] R v Collins; ex parte Attorney-General [1994] QCA 467
[2] R v Flynn [2010] QCA 254.
[3] R v Cranston [1998] 1 Qd R 159.
[4] R v Crowden and Lambert [2021] QSCPR 8, where Callaghan J considered the term “purpose”.
Alternative Reporting Options by Hannah Pugh
Alternative Reporting Options
The Queensland Police Service introduced ‘Alternative Reporting Options’ (ARO) as early as 2009.
ARO “exists for survivors of a sexual assault” and provides an alternative to making a formal complaint to police. Through the ARO process, survivors can provide police with “the full circumstances of their assault with the option of remaining anonymous if they wish”.[1]
The QPS notes that in addition to being “an extremely useful healing strategy for the survivor”, the ARO process is an effective investigative strategy for law enforcement agencies and “could be used to solve reported offences of a similar nature”.[2]
Specifically, police can use information obtained through the ARO process to “assist other prosecutions against an offender” and “devise intelligence driven strategies designed to target an offender and reduce repeat offending”.[3]
What does ARO mean for defence?
Information obtained through the ARO process represents a category of evidence which could be sought to be used against a person suspected of or charged with an offence of a sexual nature.
Questions may arise as to the admissibility of that evidence where, for example, the information obtained is from an anonymous source and cannot be tested.
In any event, defence need to be live to the use of ARO in criminal matters involving allegations of sexual offending. ARO needs to be the subject of inquiry and disclosure.
For focussed advice on how ARO may impact your criminal matter, call our team on (07) 3034 0000.
[1] Queensland Police Service, Alternative Reporting Options, last updated 27 July 2023 and available at: https://www.police.qld.gov.au/units/victims-of-crime/support-for-victims-of-crime/adult-sexual-assault/alternative-reporting
[2] Ibid.
[3] Ibid.
I have been charged with a Criminal Offence and hold a positive notice Blue Card: What Do I Do Now? by Emma Higgins
I have been charged with a Criminal Offence and hold a positive notice Blue Card: What Do I Do Now?
Introduction
Obtaining a Blue Card is a mandatory requirement for individuals in Queensland who work or volunteer in roles involving contact with children. The Blue Card system is designed to protect the safety and well-being of children by assessing the suitability of individuals in these roles. However, being charged with a criminal offense while holding a Blue Card can create a complex and challenging situation.
In this article, we will explore the steps to take if you find yourself in this situation and how it may affect your Blue Card status.
Understand the Blue Card System
A Blue Card is a formal approval issued by the Queensland Government that indicates an individual has met the necessary screening requirements and is eligible to work with children. These requirements include criminal history checks and ongoing monitoring.
It is essential to be aware of the responsibilities that come with holding a Blue Card, such as the duty to report any changes in police information, including criminal charges.
Notify the Blue Card Services
If you have been charged with a criminal offense, it is imperative to notify the Blue Card Services as soon as possible. Failure to do so may result in significant consequences, including the suspension or cancellation of your Blue Card.
You can notify the Blue Card Services by submitting a "Change in Circumstances" form, which is available on their website. Provide accurate and complete information. It is important that where the charges are at an early stage and you have only recently been charged your disclosure be brief because any disclosure about the charges themselves might be obtained by the QPS. You have the right to remain silent in the face of criminal allegations and the intersection between Blue Card and the criminal prosecution process should be approached with caution.
Await Further Instructions
After notifying the Blue Card Services of your criminal charge, they will review your case and may contact you for additional information or documentation. It's essential to cooperate during this process and provide any requested information promptly. However, it is also important to consider your competing rights in relation to criminal prosecution.
The Blue Card Services will consider the details of your case, the nature of the offense, and the potential risk to children. They will then make a decision regarding the status of your Blue Card.
Suspension or Cancellation of the Blue Card
If you have been charged with a criminal offense, the Blue Card Services may choose to suspend your Blue Card while they assess your case. This suspension is not a final decision but a precautionary measure to protect the safety of children. This would happen when the charges are disqualifying offences or where the person becomes subject to a temporary offender prohibition order or an interim sexual offender order.
During the suspension period, you are not authorized to work in roles that require a Blue Card. It is crucial to respect this suspension and refrain from engaging in any child-related work until the matter is resolved.
In some cases, the Blue Card Services may decide to disqualify a Blue Card holder. This will occur if you are convicted of a disqualifying offence and sentenced to imprisonment, become subject to reporting obligations, a final offender prohibition order or a sexual offender order. In such cases, the card must be cancelled and the person issued with a negative notice. .
Appeal to QCAT
If your Blue Card is cancelled and a negative notice is issued, you have the opportunity to appeal to the Queensland Civil and Administrative Tribunal. It is crucial to demonstrate that the decision was incorrect and that you have addressed any identified issues which the Department might rely on to have issued you a negative notice.
In many cases, it is possible to argue that the circumstances of the individual do not meet the ‘exceptional circumstances’ category required in many of the discretionary categories of cancellation. For example, where the offending is discontinued, not serious or disqualifying or relies only on domestic violence information or other relevant information.
Reapplying for a Blue Card
If your Blue Card is cancelled due to criminal charges, you have the opportunity to reapply for a new Blue Card after a period of 2 years. This is an application to set aside the negative notice. It is crucial to demonstrate that you have addressed the issue that led to the suspension or cancellation and that you are no longer a risk to children.
When reapplying for a Blue Card, it's advisable to provide all necessary documentation and information, including any evidence of your rehabilitation and good character. Your legal representative can guide you through the reapplication process.
Rehabilitation and Character References
One key factor in the Blue Card decision-making process is rehabilitation and insight. If you have been charged with a criminal offense, it is essential to actively work on your rehabilitation by complying with any court orders, seeking counselling or treatment if necessary, and making positive changes in your life.
Character references from individuals who can attest to your good character, personal growth, and commitment to children's safety can be valuable when reapplying for a Blue Card. Those commenting on your character should be briefed with the correspondence from Blue Card setting out the reasons for reconsideration or proposed cancellation so that it is clear that they are aware of the difficult parts of your history but still support you and attest to your good character.
Conclusion
Being charged with a criminal offense while holding a Blue Card in Queensland can be a challenging and stressful experience. However, it's essential to follow the necessary steps to address the situation and protect the safety of children. This includes notifying the Blue Card Services, cooperating with their review, seeking legal counsel for your criminal case, and actively working on rehabilitation and character references.
If you have been charged with a criminal offense, it is essential to seek legal counsel to navigate the criminal proceedings effectively. The outcome of your criminal case will have a significant impact on your Blue Card status.
Your legal representative will work with you to build a defence and address the charges brought against you. It is crucial to have a consistent strategy in respect of both your criminal matter and your blue card response.
If you would like to discuss your own matter, please contact ROG and speak with one of our specialists on (07) 3034 0000.
Evidence of Domestic Relationships and Domestic Violence - Impact on criminal proceedings by Emma Higgins
Evidence of Domestic Relationships and Domestic Violence - Impact on criminal proceedings
The Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Act 2023 introduced provisions to the Evidence Act 1977 which address the admissibility of domestic violence history and a history of domestic violence relationships. As a result, from October 2023, domestic violence history becomes relevant to criminal proceedings.
The new provisions of the Evidence Act 1977 are designed to ensure fairness to the defendant and any other person in giving evidence about matters related to domestic violence; and ensure that the jury do not apply confirmation bias reasoning to the treatment of domestic violence. As we know, there is no typical situation that arises in a case involving domestic violence. Every person’s response to domestic violence is different.
In this article, our legal director, Emma Higgins, explores the consequences of this for criminal trial proceedings and the considerations you need to have in mind when you approach a criminal proceeding or domestic violence proceeding.
Evidence of Domestic Relationships and Domestic Violence
Section 103T of the Evidence Act 1977 applies in relation to a trial by jury in a criminal proceeding where domestic violence is an issue. There are a variety of ways that domestic violence may be an issue in the proceeding and importantly, the defence may at any time during the trial, ask the Judge to direct the jury about domestic violence generally by informing the jury about relevant matters. In relation to the Judge, however, the Evidence Act 1977 makes clear that the Judge may on their own initiative and in the interests of justice, inform the jury about the issues of domestic violence in the particular proceeding.
Section 103U of the Evidence Act makes plain that in relation to a criminal proceeding where there is a trial by jury and self-defence is raised in response to domestic violence, the defence may at any time ask the judge to direct the jury about self-defence in response to domestic violence and inform the Jury about relevant matters as set out in section 103ZA which includes:
- self-defence is, or is likely to be, an issue in the proceeding; and
- as a matter of law, evidence of domestic violence may be relevant to determining whether the defendant acted in self-defence; and
- evidence in the trial is likely to include evidence of domestic violence committed by the victim against the defendant or another person whom the defendant was defending.
The directions also take into consideration the ways that experiences of domestic violence in the past may impact the behaviour of the subject of the criminal proceeding.
The reason that these directions have been introduced to the Queensland evidence act 1977 is because the Domestic Violence Taskforce found that many members of the community do not understand how the dynamics of Domestic and Family Violence may impact on the behaviour of victims of Domestic and Family Violence, such as why a victim of Domestic and Family Violence may remain in an abusive relationship. The legislation provides the Court with a discretion to give jury directions that address misconceptions and stereotypes about domestic violence.
In Kritskikh v Director of Public Prosecutions [2022] WASC 130, Hall J said of the provisions in Western Australia, which are similar in nature:
“The evident purpose of these provisions is to ensure that common misconceptions about the way in which victims of family violence may behave, for example that they will promptly report family violence to the police or will not remain with the perpetrator of violence, are dispelled and not taken into account in the reasoning process [of fact finders]”.
Why Directions are important
Trial directions in a criminal proceeding are important for the jury to understand the law they are required to apply when they deliberate. It is important to place evidence in its proper context and to allow the jury to understand the ways that they are lawfully able to reason about the evidence.
Because the experience of domestic violence is different for every person, it is important for the Judge to give directions about the experience of domestic violence and explain why the experience of one person may be different to another. Section 103Z provides the content of a general direction about domestic violence and allows the Judge to inform the jury that domestic violence:
“(a) is not limited to physical abuse and may, for example, include sexual abuse, psychological abuse, or financial abuse; and
(b) may amount to violence against a person even though it is immediately directed at another person; and
(c) may consist of a single act; and
(d) may consist of separate acts that form part of a pattern of behaviour that can amount to abuse even though some or all of those acts may, when viewed in isolation, appear to be minor or trivial.”
If relevant, the judge can also inform the Jury that experience shows that:
“(a) people may react differently to domestic violence and there is no typical response to domestic violence; and
(b) it is not uncommon for a person who has been subjected to domestic violence to stay with an abusive partner after the domestic violence, or to leave and then return to the partner; and
(c) it is not uncommon for a person who has been subjected to domestic violence not to report domestic violence to police or seek assistance to stop domestic violence; and
(d) decisions made by a person subjected to domestic violence about how to address, respond to or avoid domestic violence may be influenced by a variety of factors; and
(e) it is not uncommon for a decision to leave an intimate partner who is abusive, or to seek assistance, to increase apprehension about, or the actual risk of, harm.”
There are other case specific directions which may be given in response to particular experiences of domestic violence.
Considerations for parties
A defendant in a criminal proceeding who has experienced or been the subject of domestic violence proceedings or allegations may face particular prejudices or pre-conceived ideas about how that person ought to respond to that experience of a domestic violence relationship. The directions provided to the jury by the judge are designed to ensure fairness in the proceeding and undo some of those potential myths about the reactions of individuals in those domestic violence circumstances.
It is important that if you are charged with a criminal offence related to a domestic violence relationship, you understand the ways in which your alleged behaviour in the past might impact your criminal proceedings. Whether or not particular evidence is admissible against you is a matter which may change how your trial strategy develops. If evidence of previous domestic violence is led against you, it can be prejudicial to the proceedings and it is important that consideration be given to the admissibility of that evidence and if admissible, the use to be made of it by the jury.
If you require strategic advice about how to approach your criminal defence from specialists in criminal law, call Robertson O’Gorman Solicitors and speak with our accredited specialists today.
This article was written by Emma Higgins, legal director at Robertson O’Gorman Solicitors. Emma is a QLS accredited specialist in criminal law. She holds a Bachelor of Laws (Honours) and a Bachelor of Business (Economics) from the Queensland University of Technology. As a solicitor admitted in Queensland, she has appeared as a solicitor advocate at all levels of the Queensland Court process. She has a special interest in appellate work, having been involved in appeals to the High Court of Australia.
How Domestic Violence Protection Order Proceedings Could Impact Your Working With Children Check? by Emma Higgins
How Domestic Violence Protection Order Proceedings Could Impact Your Working With Children Check?
Introduction
The safety and well-being of children are paramount considerations under the Working with Children (Risk Management and Screening) Act 2000 (the WWC Act). That legislation has established stringent regulations and checks to protect children from harm and abuse. A Blue Card or positive working with children check is required to engage in employment, whether voluntary or paid with children. In this article, we will explore the implications of domestic violence protection order proceedings on your ability to maintain a Blue Card in Queensland.
Understanding the Working With Children Check
Blue Cards are a safeguard in Queensland's child protection framework. It is designed to identify and exclude individuals who may pose a risk to children from working or volunteering in roles involving regular contact with children. The check aims to protect children from harm, including physical, sexual, and emotional abuse, and it is a legal requirement for many professions and volunteer positions.
While not perfect, the disclosure requirements of the working with children process in relation to police information are extensive where that information exists.
The Intersection of Domestic Violence and Blue Cards
Domestic violence is a pervasive issue that has serious implications for the safety of children, particularly those who are exposed to domestic violence or experience associated domestic violence. Queensland has specific legislation in place to address domestic violence cases, namely the Domestic and Family Violence Protection Act 2012. This act enables aggrieved persons to seek protection orders against respondents and aims to provide a legal framework to address domestic violence issues.
As a part of those orders, named children can be placed in applications and be protected by orders where there is grounds to support a finding that the children are at risk of exposure to or experience associated domestic violence.
Becoming involved in a domestic violence situation is, by itself a difficult experience for all parties. However, before any steps are taken to finalise a without admissions order by consent or following a hearing, it is important for individuals, particularly those who hold Blue Cards to consider the potential consequences for their working with children clearance.
When applying for a WWCC, the Department obtains and considers criminal history and other relevant information which includes domestic violence information. Upon a charge for contravening a protection order, the update to the police information may trigger a reassessment process under the working with children legislation. There is an obligation on positive notice holders to declare a change in police information.
The Department will then assess whether individuals pose a risk to children based on their criminal history check and any other relevant information. Domestic violence protection order proceedings can be seen as an indicator of potential risk to children, especially if the orders involve violence, threats, or harm towards a family member.
The working with children check is not a one-time check; it is renewed periodically. If domestic violence protection order proceedings arise during the validity of a WWCC, they may be considered in the renewal process.
Understanding the decision making process for the Department
Case law suggests that the Department in considering the relevance of domestic violence information to an assessment of risk in relation to working with children, the exposure of children to ongoing domestic violence is a relevant feature.
In the event that no other relevant feature associated with criminal history is relevant to the determination, other relevant information (including domestic violence information) would only preclude a person from holding a positive notice if there were exceptional circumstances.
The term ‘exceptional circumstances’ is not defined in the WWC Act. Whether a case is an exceptional case is a question of fact and degree to be decided individually having regard to “the context of the legislation which contains them, the intent and purpose of that legislation and the interests of…children.”
Section 228 of the WWC Act provides that where domestic violence information exists, there must be consideration of:
- The circumstances of the domestic violence order;
- Length of time that has passed since the conduct;
- Relevance to employment involving children;
- Anything else relating to the information relevant to the assessment.
There are complex issues at play when:
- An aggrieved person receives a protection order for their protection but where that application shows that there is a level of exposure and ongoing risk to the children of that or previous relationships;
- A respondent person consents to a protection order naming children or contravenes a condition of the protection order, particularly if the allegation of contravention is said to have occurred in front of or exposing children to the behaviour.
How can we assist?
Your employment or voluntary work with children are important considerations when you approach a domestic violence matter. If you are the aggreived or the respondent, there is a potential for you to lose the opportunity to continue to hold a blue card depending on the allegations made in the protection order proceedings.
it is important in those circumstances that you receive advice at an early stage so that a strategy can be developed to ensure your position as regards your positive notice and protection order are preserved.
If you wish to discuss your positive notice or how it might be impacted by your protection order proceedings, call Robertson O'Gorman Solicitors on (07) 3034 0000.
Parole and show cause notices by Rachna Nagesh
Parole and show cause notices
In Queensland, the authority that makes decisions regarding parole is the Parole Board Queensland (‘the Board’). The Board has the power to indefinitely suspend or cancel a parole order when they reasonably believe that a person in detention:
- Has failed to follow a condition of their parole order (such as a curfew condition or negative urine drug tests);
- Presents a “serious and immediate risk of harm” to another person;
- Presents an “unacceptable risk” of committing an offence;
- Are preparing to leave Queensland without permission to do so; and/or
- Have been charged with a criminal offence.
As is apparent from the list above, the Board has the power to suspend or cancel a parole order even if the person has not been charged with a criminal offence or breached a condition of their parole (although these are the most common reasons for the decision).
What is the process?
Once a decision has been made to immediately suspend your parole, the Board will issue a warrant for your return to custody. This decision is sometimes initially made by a single member of the Board, and within two business days, the Board is required to consider the decision again. They will decide whether to confirm or set aside the decision.
If the Board decides to set aside the decision, you will be released from custody.
If the Board decides to confirm the decision, they will suspend your parole order. You will be issued with a document called an “Information Notice”. This document will:
- Confirm that your order has been suspended;
- Outline the grounds for your suspension and the reasons the Board decided to suspend your order; and
- Ask that you “show cause” within 21 days of receiving the Information Notice.
How do you “show cause”?
This part of the process allows you to tell your side of the story and explain why you should be released on parole. You should draft a letter containing submissions that address the grounds and reasons for your parole suspension.
Suspension due to further offences
If you have been suspended because you were charged with further offences, you will need to make submissions about matters including the following:
- The seriousness of the charges;
- Whether you have been released on bail for the charges (this does not mean that you will automatically be granted parole);
- Your personal circumstances (whether you are employed, whether you have been engaged in rehabilitation/treatment, your physical health);
- Your track record with parole supervision; and
- The length of time needed to determine the outcome of the charge.
You should be careful in discussing the circumstances of the offending, especially if you wish to contest the new charges. You should be careful not to incriminate yourself in those circumstances.
Failure to comply with parole order
If you have been suspended because you breached a condition on your parole order, you will need to make submissions about matters including the following:
- The seriousness of your failure to comply;
- The circumstances surrounding your failure to comply;
- Your home environment (including whether you have supportive family and friends);
- Your personal circumstances (whether you are employed, whether you have been engaged in rehabilitation/treatment, your physical health); and
- Your track record with parole supervision.
It is also important to discuss what steps you will take to ensure you do not fail to comply again, such as participation in treatment programs and counselling.
If your failure to comply was related to a relapse, the Board may ask you to complete a Relapse Prevention Plan. It is crucial that you complete this plan and take it very seriously. The Board may also review your accommodation again to decide whether it is appropriate.
How long does it take for a decision to be made?
While the decision must be made within a reasonable time, there is no legislative timeframe within which the Board is required to reconsider their decision.
Unfortunately, the process may take some months and there may be requests for further information from the Board. Sometimes, the Board will reconsider the decision multiple times before making a final decision. They will write to you each time your parole suspension is reconsidered.
Can a decision to suspend parole be appealed?
If the Board confirms their decision to suspend your parole, you can lodge an application for review of the decision in the Supreme Court of Queensland.
Because the Board is a public entity, it is required to act and make decisions in a way that respects and upholds human rights under the Human Rights Act 2019 (Qld).
Any relevant human rights considerations (as they arise under the Act) must be taken into account when deciding whether to cancel your parole.
How Robertson O’Gorman can help
Our team has significant experience in making show cause submissions as well as appearing in the Supreme Court of Queensland for appeals of Parole Board decisions. Contact us on our website or call (07) 3034 0000 for a free case appraisal.
Overview of changes to the Domestic Violence Act by Hannah Pugh
Overview
On 1 August 2023 the Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Act 2023 (Qld) came into force.
Most notably the Act amends Queensland’s domestic violence laws to give effect to the recommendations contained in the first report of the Women’s Safety and Justice Taskforce, Hear Her Voice – Report One – Addressing coercive control and domestic and family violence in Queensland.
The amendments are significant, and their retrospective application has the potential to impact matters currently before the Courts.
How ROG can help
The team at Robertson O’Gorman is experienced in this area of law. We are acutely aware of the ways in which the most recent amendments to Queensland’s domestic violence legislation may impact on proceedings started both before and after 1 August 2023.
If you would like specialised advice relating to a domestic violence matter, please contact our office on (07) 3034 0000.
Overview of Amendments to Queensland Domestic Violence Laws
The amendments to Queensland’s domestic violence laws may be categorised as follows:
- Definition of domestic violence
- Cross Applications
- Identification of “person most in need of protection”
- Costs
- Criminal and Domestic Violence Histories: Consideration and Disclosure
- Substituted Service
- Reopening of Proceedings
- Protected Witnesses
Details for each of these categories is below.
- Definition of Domestic Violence
The Act expands the definition of domestic violence.
First, it amends the definitions of domestic violence,[1] emotional or psychological abuse[2] and economic abuse[3] to include reference to a ‘pattern of behaviour’.
Second, the Act makes clear that domestic violence includes behaviour that may occur over a period of time and includes individual acts that, when considered cumulatively, are abusive, threatening, coercive or cause fear. The Act also states that these factors must be considered in the context of the relationship as a whole.
Intimidating harassing or abusing a person has also been included in the definition of ‘domestic violence’.[4]
As per the Explanatory Notes, these amendments are intended to “strengthen the responses to coercive control through a shift from focusing on responding to single incidents of violence to focusing on the pattern of abusive behaviour that occurs over time”.[5]
- Cross Applications
The Act amends Queensland’s domestic violence laws as they relate to the making and hearing of Cross Applications.
Summarised these amendments are:
- requiring applications and cross applications to be heard together;[6]
- requiring the court to consider whether to make arrangements for the safety, protection or wellbeing of the person most in need of protection (for example, allowing the person most in need of protection to give evidence outside the courtroom);[7]
- requiring the court to identify the person most in need of protection in the context of the relationship as a whole;[8] and
- only allowing the court to make one order to protect the person most in need of protection, unless there are exceptional circumstances where there is clear evidence that each of the parties in the relationship are in need of protection from each other.[9]
The Explanatory Notes state that these amendments are intended to ensure that cross applications are not used by perpetrators of domestic violence as a means of “continuing to control and intimidate victims, resulting in domestic violence orders being made against victims of DFV”.[10]
- Identification of “person most in need of protection”
The Act has, for the first time, provided legislative guidance on determining the ‘person most in need of protection’.
Under the new section 22A of the DFVPA, a person will be ‘most in need of protection’ when the behaviour towards them is more likely than not:
- abusive, threatening or coercive; or
- controlling or dominating causing them to fear for their safety or wellbeing (or that of their child, another person or animal, including a pet); or
- the person’s behaviour is more likely than not to be for the self-protection of themselves (or their child, another person or animal, including a pet), in retaliation of the other’s person behaviour towards them (or their child, another person or animal, including a pet), or attributable to the cumulative effect of the other person’s domestic violence towards them.
Under the new section 22A(2) the court must consider the following when determining the person most in need of protection:
- the history of domestic violence and the relationship between the parties;
- the nature and severity of the harm caused to each other;
- the level of fear experienced by each person;
- which person has the capacity to seriously harm the other person, or control or dominate the other person and cause fear; and
- whether the persons have characteristics that make them particularly vulnerable to domestic violence. Examples of people who may be particularly vulnerable to domestic violence are provided.[11]
- Costs
The Act enables a Court to award costs against a party whose application is dismissed and is considered by the Court to be a behaviour, or continuation of a pattern of behaviour, that is domestic violence.[12]
The intent behind this amendment is to prevent the type of behaviour described as ‘systems abuse’ or ‘legal abuse’: the use of Queensland’s domestic violence laws by one person to commit domestic violence against another.[13]
- Criminal and domestic violence histories
The Act amends Queensland’s domestic violence laws to require a respondent’s criminal and domestic violence histories to be disclosed to the Court in proceedings commenced after 1 August 2023. The Act gives the Court the power to consider those histories at various stages of proceedings. The new disclosure requirements apply to interstate histories and spent convictions.[14]
For proceedings commenced before 1 August 2023 but not yet decided, the Court may ask for the respondent’s criminal and domestic violence histories and consider same if it considers them relevant.[15]
Summarised:
- The Police Commissioner must provide a copy of the respondent’s criminal and domestic violence history to the Court when applying for a Protection Order, and when applying to vary a Protection Order.[16]
- The Court must consider a respondent’s criminal and domestic violence histories when deciding whether a Protection Order is necessary;[17]
- The Court may consider a respondent’s criminal and domestic violence histories when making or varying a Protection Order,[18] and when choosing to make a Temporary Protection Order;[19]
- The Court may consider a respondent’s criminal and domestic violence histories of a parent when deciding to make or vary a protection order.[20]
- Substituted Service
The Act amends Queensland’s domestic violence laws to allow for substituted service[21] of Police Protection Notices[22] and Protection Orders.[23] A substituted service order may be made for documents made before 1 August 2023.[24]
- Reopening of proceedings decided in respondent’s absence
The Act allows for a respondent to apply to the Court to reopen proceedings that were decided in the respondent’s absence, if the application was served under a substituted service order and the application was not, or could not reasonably have been, brought to the respondent’s attention by doing so.[25]
- Protected witnesses
The Act makes victims of domestic violence, or domestic violence order related offences, protected witnesses.[26]
This means that victims of domestic violence are afforded those protections as set out in the relevant part of the Evidence Act 1977 (Qld),[27] namely that they cannot be cross examined by an unrepresented defendant for an offence against the Domestic and Family Violence Protection Act 2012 (Qld).[28]
[1] Section 8.
[2] Section 11.
[3] Section 12.
[4] Section 8(3).
[5] Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Bill 2022, Explanatory Notes, p 5.
[6] Section 41C.
[7] Section 41D.
[8] Section 41G.
[9] Section 41G(3).
[10] Ibid n 5, p 6.
[11] Section 22A(2)(e).
[12] Section 157(2).
[13] See section 157(2)(a).
[14] Sections 189A, 189B.
[15] Section 234(2).
[16] Sections 36A, 90A, 189B.
[17] Section 36A.
[18] Sections 42(3); 91.
[19] Section 45.
[20] Section 43(6).
[21] See section 184A.
[22] Section 113(1)(a).
[23] Section 184(5)(a)(ii).
[24] Section 236.
[25] Sections 157A – 157C.
[26] Section 150(1).
[27] Evidence Act 1977 (Qld) Part 2, Division 6.
[28] Section 151.
Overseas Travel as a Reportable Offender by Hannah Pugh
Overseas Travel as a Reportable Offender
Overview
‘Registered’ or ‘reportable offenders’ in Australia cannot travel overseas without first obtaining permission from a competent authority.[1] Failure to do so will result in a penalty of five years imprisonment.[2]
It is important, then, for those deemed registered or reportable offenders to understand the process for which permission to travel overseas may be obtained.
Unfortunately whilst the legislation is clear in requiring permission, it is silent on what factors will be relevant to obtaining it.
Applicants are thus required to turn to the common law for guidance on this crucial aspect of their application.
Legislation
Section 271A.1 of the Criminal Code (Cth) was intended by Parliament to prevent reportable offenders from travelling overseas to sexually exploit or abuse vulnerable children.[3]
Under Section 271A.1, a reportable offender faces imprisonment for five years if he or she leaves Australia without permission from a competent authority.
A ‘reportable offender’ under section 271A.1 is a person whose name is entered on a child protection offender register (however described) of a State or Territory, who has reporting obligations in connection with that entry on the register.[4]
The relevant legislation in Queensland is the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld). Generally speaking, under section 5 of that Act a person sentenced for sexual offences involving children or child exploitation material will be deemed a reportable offender in Queensland.[5] For more detailed information on who is deemed a ‘reportable offender’ in Queensland, see Reportable Offender Legislation in Queensland.
‘Competent authority’ under section 271A.1 will be the relevant unit of the police service for the state or territory in which the reportable offender resides. In Queensland this is the Queensland Police Service’s ‘Child Protection Offender Registry’, which is supported at a local level by police officers in the community.[6]
Obtaining permission
The practical steps to obtaining permission to leave Australia will differ as between each state and territory.
In Queensland, permission for a reportable offender to travel overseas may be obtained by way of written application to the relevant unit of the Queensland Police Service.
What will be considered by the competent authority when determining an application by a reportable offender to leave Australia?
As stated, the legislation is silent on what must be taken into account when determining an application by a reportable offender to travel overseas.
Guidance must be gleaned from the common law.
In Mentink v Commissioner for the Police[7] Mullins J (as her Honour then was) remarked:
“There is no ‘presumption” expressed or implied under s 271A.1 of the Code against international travel that applies as the starting point when a reportable offender requests the component authority for permission to leave Australia”. [8]
Her Honour continued:
“There will be a number of risks of the same or similar nature that may have to be considered for any reportable offender who requests permission from a competent authority to travel overseas, but the weight to be given to a particular risk in any one case may vary according to the circumstances pertaining to that reportable offender which is a matter for the decision maker.”[9]
Having regard to the obiter in Mentink two things are clear.
First, section 271A.1 does not operate to prevent, at the outset, a reportable offender from travelling overseas. Rather it operates to ensure that international travel by reportable offenders is controlled.
Second, the weight to be given to risk factors associated with reportable offenders travelling overseas will be case specific.
For potential applicants, these two points are important to bear in mind: whilst not automatically prevented from overseas travel, obtaining permission to do so is no linear task.
Conclusion
Reportable offenders may leave Australia with the permission of a competent authority.
There is no set legislative criteria for determining an application by a reportable offender to obtain permission to travel overseas.
In Queensland it has been held by the Court of Appeal that the weight to be given to a particular risk in any one case may vary according to the circumstances specific to that reportable offender.
Potential applicants in Queensland should be aware then that although they are able to travel overseas with permission, there is no pro-forma approach to obtaining that permission.
How ROG Can Help
The team at Robertson O’Gorman is experienced in this area of law, and understands the difficulties associated with its navigation.
If you are interested in making an application under this legislation, or require more information about the process, please contact our office on (07) 3034 0000.
[1] Criminal Code Act 1995 (Cth), s 271A.1.
[2] Ibid.
[3] See Explanatory Memorandum, Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Bill 2017 (Cth).
[4] Criminal Code Act 1995 (Cth), s 271A.1(b) and (c).
[5] Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), ss 5, 9. See also Schedule 1.
[6] See Police Service Administration Act 1990 (Qld), section 4.9.
[7] [2018] QSC 151.
[8] Ibid, at [29].
[9] Ibid, at [36].
Navigating the Prohibition on Publication: Section 159 of the Domestic and Family Violence Protection Act 2012 by Emma Higgins
Navigating the Prohibition on Publication: Section 159 of the Domestic and Family Violence Protection Act 2012
In the pursuit of safeguarding the parties and maintaining the integrity of legal proceedings, many jurisdictions have established laws that restrict the publication of certain information. These laws aim to balance the right to a fair hearing and protect individuals, particularly in cases involving domestic and family violence. In Queensland, section 159 of the Domestic and Family Violence Protection Act 2012 contains a prohibition on publication.
Closed Court domestic violence proceedings
Unlike criminal proceedings, domestic violence proceedings are civil proceedings and are conducted in a closed court. Ordinarily, courts are open to the public to ensure transparency and accountability. Most criminal proceedings and civil proceedings in Queensland are public and open, accessible to the public at any time.
Domestic violence proceedings, however, are closed to the public. No members of the public, including media and journalists, can be in the courtroom unless they are a party to the proceedings. The people you will ordinarily find in the Courtroom at your domestic violence hearing include:
- The Magistrate and other court staff;
- The parties – called the Applicant, the Aggrieved and the Respondent; and
- Legal representatives for each party.
Prohibition on publication
The prohibition on publication outlined in Section 159 prevents the identification of parties involved in domestic and family violence proceedings. It restricts the disclosure of names, addresses, photographs, and other information that could lead to the identification of the aggrieved, respondent, a child of a relevant relationship or any other named person or witness involved in the case. Additionally, this prohibition extends to any information that could reveal the nature or circumstances of the alleged behaviour.
The prohibition on publication serves multiple purposes, each with the ultimate goal of fostering a safe and supportive environment for victims and their families. Some key objectives include:
- Protecting the safety of aggrieved persons: By preventing the identification of aggrieved people, section 159 aims to minimize the risk of retaliation, harassment, or further harm that could arise from public exposure.
- Ensuring fair hearing rights: The prohibition on publication helps preserve the integrity of legal proceedings by preventing potential bias or prejudice that could arise from public discussion.
- Encouraging reporting and seeking help: By maintaining anonymity, people the subject of domestic violence may feel more empowered to come forward, knowing that their privacy will be protected and their personal information will not be widely disseminated.
- Safeguarding children and other vulnerable parties: The prohibition on publication helps shield children, extended family members, and witnesses from potential harm and undue attention that may arise from public knowledge of the case.
An offence to publish
A contravention of prohibition on publication provision is an offence punishable by 100 penalty units or up to 2 years imprisonment if you are an individual. There are some specific circumstances in which the publication of information given in evidence to the DV Court or which identifies or is likely to identify a relevant person would not amount to an offence. Those exceptions are:
- If the Court expressly authorises the information to be published;
- If each person to whom the information relates consents to the information being published;
- To the display of a notice in the premises of a court;
- To the publication of information for the purpose of a recognised series of law reports;
- To the publication of information for approved research;
- If the publication is expressly permitted or required under this or another Act; or
- If the publication is permitted under a regulation.
While the definition of publish is specific, it is important to be cautious when handling documents or other evidence from a domestic violence proceeding to ensure that you are not placed in a position where you are contravening the legislation.
Takeaways for parties
Parties to a domestic violence proceeding should be wary of the non-publication provisions and ensure that they are complying with the obligation not to publish information to the public. Some examples of this include:
- Distributing documents from the proceedings to friends or associates.
- Publishing comments about the proceedings on social media that identify parties, allegations, findings or comments made during the proceedings.
In addition to the publication of those documents being an offence, it is also possible that if you are the respondent to an order and engage in that type of behaviour, it may amount to a breach of a protection order because it may be evidence of you not being of good behaviour and committing domestic violence against the aggrieved.
Section 159 of the Domestic and Family Violence Protection Act 2012 plays a vital role in safeguarding the privacy, safety, and dignity of all parties involved in domestic and family violence cases. By balancing the need for fair hearings, protecting aggrieved people, and minimizing the potential for harm, this provision strives to create a supportive environment for those affected by these offenses.
Contact a domestic violence lawyer at Robertson O’Gorman Solicitors if you require advice about the privacy of your domestic violence proceedings.
Reportable Offender Legislation in Queensland by Hannah Pugh
Reportable Offender Legislation in Queensland
Overview
In Australia, persons convicted for offences involving children or child exploitation material will in most cases have their information recorded on the ‘National Child Offender System’ (‘NCOS’).[1]
Information for the NCOS is gathered by law enforcement for each state and territory. This occurs under legislation requiring offenders in each jurisdiction to report to law enforcement periodically.
In Queensland, the relevant legislation is the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) (‘the Act’).
Who is a ‘Reportable Offender’ in Queensland?
Section 5 of the Act defines a reportable offender as someone who is sentenced for a ‘reportable offence’.
A ‘reportable offence’ is defined[2] to include, summarily, any type of sexual offence involving a child, and any type of offence involving child exploitation material (computer games included). For a full list of offences, see Schedule 1 of the Act. Offences include:
- Using the internet to procure a child;
- Sexual assault;
- Indecent treatment;
- Grooming;
- Carnal knowledge of a child;
- Rape;
- Maintaining a sexual relationship with a child;
- Offences involving child exploitation material.
Even if a person is sentenced for a non-reportable offence, a Court may order that it be treated as a reportable offence if it is satisfied that the facts and circumstances constitute the elements of such.[3]
In some cases, a person who is sentenced for a reportable offence will not be deemed a reportable offender under the Act.[4] This can occur when:
- A conviction is not recorded; or
- The person is sentenced to a single offence and the sentence does not include a term of imprisonment; or
- The person is sentenced to a single offence and the sentence does not include a requirement that they be supervised; or
- The person was a child when they committed a single offence, and that single offence involved child exploitation material only.
Last, a person who is deemed a reportable offender in another state or territory will be a reportable offender in Queensland.[5]
Reporting obligations
Reportable offenders will receive a ‘Notice of Reportable Offender’s Reporting Obligation’ from Queensland Police, either after conviction or release from custody. An initial report must be made to police within seven days of receipt of the Notice.[6]
Though the initial report must generally be made in person, follow up reports may be made online or over the phone.[7]
Monthly reporting obligations begin after the initial report.[8] Reporting frequency can however vary from case to case, and can be altered by the Police Commissioner.[9] A reportable offender may seek to have a decision to increase his or her reporting frequency reviewed.[10]
Information to be reported
A reportable offender must confirm the accuracy of their personal details in each report, or advise of any changes. The information to be reported can vary, but generally will include details about:[11]
- Place of residence;
- Employment;
- Vehicles registered in their name;
- Telephone and internet accounts;
- Any contact with children (regular or irregular, but not incidental); and
- Any intended travel outside Queensland, or Australia.
Record of information reported, and rights in relation to same
All information reported under the Act is recorded on the NCOS.
Reportable offenders may request copies of all reportable information in relation to them held on the NCOS. The Police Commissioner must provide this information upon request.[12]
Reportable offenders may also request that the Police Commissioner amend any reportable information held on the register in relation to the offender, that is incorrect. The Police Commissioner must comply with the request upon being satisfied that the information is incorrect.[13]
Reporting period
Reporting periods are five years, ten years or indefinitely.
A person’s reporting period will vary according to the type of offence committed and whether further offences are committed thereafter. In summary:[14]
- A five year reporting period will apply where a person was found guilty of one offence, or found guilty of multiple offences dealt with simultaneously by the Court.
- A ten year reporting period will apply where a person was convicted of one or more reportable offences and convicted of one further reportable offence thereafter.
- An indefinite reporting period of will apply where a person was convicted of one or more reportable offences and convicted of more than one reportable offence thereafter.
Suspension of reporting obligations
A reportable offender may apply in writing to the Police Commissioner for a suspension of their reporting obligations under the Act.[15]
A suspension will only be granted if the Police Commissioner is satisfied that the reportable offender does not pose a risk to the lives or sexual safety of one or more children, or of children generally. Further considerations apply where the reportable offender has a cognitive or physical impairment, or a mental illness.[16]
A reportable offender may seek to review a decision of the Police Commissioner to refuse to suspend reporting obligations.[17]
Offences for non-compliance
A failure to comply with reporting conditions without reasonable excuse is a crime under the Act. A penalty of up to 300 penalty units or 5 years imprisonment may be imposed.[18]
It should be noted that a conviction for an offence of noncompliance may also act to further penalise a reportable offender where it occurs in breach of parole, or a suspended sentence.
Other infringements
Reportable offenders must obtain the permission of the Queensland Police Service to travel outside of Australia, or face criminal charges.[19] A written application to this effect must be made.
Finally, the Queensland Police Service may request that the Department of Foreign Affairs and Trade cancel a reportable offender’s passport, or refuse application for same.[20]
Conclusion
Persons convicted for sexual offences involving children or child exploitation material in Queensland will, in most cases, be deemed a reportable offender under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld).
Reportable offenders are required to report periodically to the Queensland Police Service. These reporting obligations can last for five years, ten years or indefinitely. Reportable offenders may apply to the Police Commissioner to have their reporting obligations suspended, and can seek review of a decision to refuse same.
The information to be reported ranges from personal information to information about contact with children. All information reported under the Act is recorded on the NCOS. Reportable offenders can access, through the Police Commissioner, information on the NCOS as it relates to them. They may also request that information on the NCOS be corrected.
Lastly, reportable offenders must obtain permission from the Queensland Police Service to travel outside of Australia by way of written application. The Queensland Police Service may request that DFAT cancel a reportable offender’s passport, or refuse an application for same.
How can ROG help?
The team at Robertson O’Gorman is experienced in this area of law. We understand the complexities of this legislation and the very real impact it has on those to which it applies.
If you have been charged with a relevant offence, or would like assistance navigating your rights under this Act, please contact our office on (07) 3034 0000.
[1] The NCOS incorporates two registers of information: the ‘Australian National Child Offender Register’ and the ‘Managed Person System’. These two registers hold information about current reportable offenders, past reportable offenders and those who were charged with child sex offences but never convicted.
[2] Section 9. See also Schedule 1.
[3] Section 5A; section 9(c).
[4] See s 5(2)(a)-(iv).
[5] Section 5(1)(b) and (c).
[6] See Part 4, sections 14 – 19.
[7] Section 26.
[8] Section 19(1).
[9] Section 19(2).
[10] Schedule 4.
[11] See sections 18 – 24.
[12] Section 73(1).
[13] Section 73(4).
[14] Section 36.
[15] Section 67D(1).
[16] See Section 67D(5)(b) and (c).
[17] Schedule 4.
[18] Section 50.
[19] Criminal Code Act 1995 (Cth), s 271A.1.
[20] Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Act 2017 (Cth).
Robertson O'Gorman now has 5 Criminal Law Specialist Accredited Lawyers.
As the leading Queensland Criminal Law firm, we are pleased to congratulate another of our remarkable team of criminal law specialists! Emma Higgins is the latest of our team to be awarded Queensland Law Society Specialist Accreditation in the field of Criminal Law.
The Specialist Accreditation Scheme gives solicitors an opportunity to formally recognise their high level of competency and knowledge in their chosen area of legal practice. It also provides excellent guidance to the public and the profession as to which legal practitioners are truly leaders in their area of expertise.
This means that the team at Robertson O’Gorman Solicitors will be comprised of five practitioners who hold Specialist Accreditations in Criminal Law. This is a truly remarkable panel of expertise and skill and aligns with our culture of excellence and true commitment to superior customer service.
For more information on any of Robertson O’Gorman’s services or to read more about our team – please visit our website https://lnkd.in/gBYTSJv
The Legal Profession Act 2007 - appropriate course of action for a show cause notice by Ella Scoles
The Legal Profession Act 2007 (Qld) (‘the Act’) creates various eligibility requirements and standards for legal professionals. In the event of criminal conviction, even if arising out of a practitioner’s personal life, these requirements may give rise to a suitability matter or a ‘show cause’ event, whereby a practitioner must make submissions addressing their ongoing suitability as a fit and proper person to hold a local practicing certificate.
This blog will outline the operation of the Act and set out the appropriate course of action if you are served with a show cause notice.
Legal Framework
- Suitability
Suitability matters are contained in section 9 of the Act. These include, among other things, if a person has been convicted of an Australian offence, and if so, relevant considerations are the nature of the offence, how long ago the offence was committed, and the person’s age when the offence was committed.[1] A conviction for an offence is defined to mean a finding of guilt and the acceptance of a guilty plea whether or not a conviction was recorded.[2]
The various suitability matters in section 9 have been held to be ‘under the umbrella of the general test to be applied when the fitness and propriety of a person to continue as a legal practitioner is in issue: whether that person should any longer be held out as fit to practise, or whether they are '... a fit and proper person to be entrusted with the important duties and grave responsibilities of a solicitor'’.[3]
- Show Cause
The Act also creates requirements for a person to provide a submission should they be the subject of a ‘show cause event’.[4] A ‘show cause event’ is defined in Schedule 2 of the Act to mean a person’s conviction for a ‘serious offence’ which is in turn defined to mean any indictable offence even if dealt with summarily.[5] Sections 67 and 68 of the Act then allows that person to provide a written statement to the regulatory authority addressing the show cause event itself and explaining why, despite the event, the practitioner continues to be a fit and proper person to hold a local practising certificate.
Whilst not directly considering sections 67 or 68 of the Act, it is useful to at least canvass how Australian courts have interpreted the presence of criminal convictions in suitability matters.
In Legal Services Board v McGrath (No 2) [2010] VSC 332, Chief Justice Warren made three points:
- conviction for any serious breach of the law must call into question a practitioner’s willingness and ability to obey the law, which is integral to the civic office which they perform and the trust reposed in them to properly perform that function;
- the legal profession demands both empathy and insight into the victims of criminal behaviour, and any conviction which appears to show a disdain for victims will raise a serious concern about a practitioner’s professional and moral fitness to remain an officer of the court; and
- any suggestion that crimes committed at arm’s length can be considered of lesser seriousness in deciding upon an individual’s fitness to remain on the roll, should be the subject of intense scrutiny.
Young CJ in Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320 provides further useful commentary:
- the fact that a practitioner is convicted of a serious offence is not necessarily sufficient reason for a striking off order;
- the fact of conviction and imprisonment is, however, far from irrelevant and may be regarded as carrying a degree of disgrace itself;
- the conduct in question must be examined to see whether it is of such personally disgraceful character that the practitioner should not remain a member of the profession;
- the fact that the practitioner pleaded guilty will usually be counted in their favour; and
- conduct not occurring in the course of professional practice may demonstrate unfitness if it amounts to incompatibility with the personal qualities essential for the conduct of the practice.
Young CJ also accepted and applied ten propositions, derived from American authorities, which he considered could point to compelling mitigating circumstances in cases concerning suitability:
- absence of a prior disciplinary record or criminal record;
- absence of motive for personal enrichment;
- honesty and cooperation with the authorities after detection;
- the offences being unrelated to the practice of law;
- the ignominy of having suffered a criminal conviction and the deterrent element;
- the absence of premeditation with respect to the commission of the crime;
- evidence of good character;
- any voluntary self-imposed suspension or court imposed temporary suspension from practice;
- delay in commencing disciplinary proceedings; and
- most importantly, clear and convincing evidence of rehabilitation.
How we can help
If you find yourself in a show cause position as a result of a conviction for a serious offence, submissions must be made addressing your fitness to continue holding a practicing certificate. The fact that you have received a show cause notice does not in itself mean that you will no longer be able to practice. Submissions must be made having regard to the aforementioned mitigating circumstances.
To avoid potentially serious implications for your career, Robertson O’Gorman is committed to assisting clients in the making of oral and written submissions.
Our team of professional discipline specialists – Dan Rogers, Terry O’Gorman, Leigh Rollason, Dominic Brunello and Emma Higgins – are highly experienced in assisting with these matters. Contact us on (07) 3034 0000 for advice regarding your show cause notice.
[1] Legal Profession Act 2007 (Qld) s 9(1)(e).
[2] Legal Profession Act 2007 (Qld) s 11.
[3] Singh v Legal Services Commissioner [2013] QCA 384.
[4] Legal Profession Act 2007 (Qld) s 67 and 68.
[5] Legal Profession Act 2007 (Qld) sch 2.
Attorney General inquiry into money-laundering by The Star Entertainment Group. by Dan Rogers & Emma Higgins
This week the Queensland Attorney-General confirmed that the government will launch an inquiry into The Star Entertainment Group’s ability to continue its operations in Brisbane and the Gold Coast after revelations of money laundering and fraud at its Sydney casino.
The terms of reference of the inquiry will be released after consideration and it remains unclear at this stage whether the review will hold public hearings.
A Queensland inquiry is likely to review similar issues to those addressed by the NSW inquiry, and look into the conduct of those relevant agents to consider whether there is evidence of money laundering or other fraudulent activity.
In Australia, the Anti-Money Laundering and Counter Terrorism Financing Act 2006 governs the obligations of particular businesses in relation to reporting of suspicious transactions and particular threshold transactions.
What are a casino’s obligations?
Under the Australian anti-money laundering and terrorism financing laws, designated services have particular obligations. Designated services include a range of business activities in the financial services, digital currency exchange and, relevant to this inquiry, the gambling and casino industry.
As a reporting entity, there are a number of obligations in these industries which require reporting entities to report certain transactions and suspicious matters and submit compliance reports to AUSTRAC. Failures in relation to particular AML/CTF legislation and procedures have penalty consequences, but where there is a suggestion that those regulatory failures raise broader questions about money-laundering activities, more serious criminal offences may arise and require investigation.
What is money laundering?
Money laundering is when ‘dirty’ criminal money is used to facilitate what would otherwise be a lawful transaction. Hence, of course, the term laundering, it’s a metaphorical ‘cleaning’ of money. However, by operation of the fault provisions of the Commonwealth Criminal Code, individuals who are reckless in relation to dealings with the proceeds of crime are captured by the legislation.
The Criminal Code Act 1995 (Cth) stipulates that money laundering occurs when someone ‘deals with’ money or other property. Section 400.2 defines this as:
- receiving, possessing, concealing or disposing of money or other property; or
- importing money or other property into, or exporting money or other property from, Australia; and
- the money or other property which is proceeds of crime, or could become an instrument of crime, in relation to an indictable offence.
Each State and Territory has money laundering offences that typically arise under proceeds of crime legislation. Division 400 of the Criminal Code Act 1995 (Cth) establishes the Commonwealth’s money laundering offences which include offences for dealing with money or property that is or is likely to become proceeds or an instrument of crime.
It is the fault elements of these offences which may cause concern for individuals. Where a person is reckless as to the fact that the money is proceeds of crime or the fact that there is a risk that it will become an instrument of crime, that person would commit an offence. Similarly, where a person is negligent as to the fact that the money is the proceeds of crime, that person commits an offence. The difference between the negligent person, the reckless person and the person who evinces an intention that the money will become an instrument of crime is the maximum penalty involved. Because these offences are absolute liability offences, the fault elements do not apply to the physical elements of the offence and the defence of mistake of fact is unavailable.
Commissions of Inquiry and Important Safeguards
It is likely that individuals will be compelled to give evidence before the commission of inquiry. Such individuals will need specialist legal advice in order to ensure that their rights and interests are protected. For example, those individuals will need advice about making a claim of privilege against self-incrimination which the Courts have recognised as a substantive right. Ensuring that their answers are covered by a direct or derivate use immunity is also important in order to prevent such evidence being used against them in criminal proceedings.
Conclusions
Designated businesses and reporting entities have particular obligations in relation to the AML/CTF legislation which require ongoing review to ensure compliance. Where there is evidence that obligations have not been met in relation to domestic and international transaction reports, the regulator’s penalty provisions arise.
However, an inquiry may uncover additional evidence of other offending capable of being referred for prosecution to the appropriate prosecutorial agency. It is important that individuals involved in these designated businesses are aware of their rights and obligations in the face of a government inquiry. The powers of government inquiries can include coercive powers to answer questions which abrogate of the right to claim privilege against self-incrimination. We will be watching the unfolding Queensland inquiry with interest.
If you would like to learn more about the AML/CTF legislation, please see our publications here.
Written by Dan Rogers and Emma Higgins
Evasion Offences by Hannah Pugh
Evasion Offence: Sentencing Inconsistencies Resolved
Failing to stop a vehicle at the direction of police is a serious offence in Queensland and is duly penalised.
Section 754 of the Police Powers and Responsibilities Act 2000 (Qld) provides:
“754 Evasion Offence
(1) This section applies if, in the exercise of a power under an Act, a police officer using a police service motor vehicle gives the driver of another motor vehicle a direction to stop the motor vehicle the driver is driving.
(2) The driver of the motor vehicle must stop the motor vehicle as soon as reasonably practicable if a reasonable person would stop the motor vehicle in the circumstances.”
Penalty—
Minimum penalty—50 penalty units or 50 days imprisonment served wholly in a corrective services facility.
Penalty—
Maximum penalty—200 penalty units or 3 years imprisonment.”
Inconsistencies in sentencing outcomes
Judicial interpretation of the penalty under section 754 has been inconsistent.
Whilst some judicial officers interpreted the penalty as requiring a minimum term of actual imprisonment, [1] others considered community based orders as remaining available sentencing options under the section.[2]
This has led to varied and at times unreliable sentencing outcomes in the Magistrates and District Courts.
Commissioner of Police v Broederlow (2020) 5 QR 296
These interpretative inconsistences may have arguably been resolved by the Court of Appeal in Commissioner of Police v Broederlow.[3] In this case the Court considered an equivalent penalty provision under section 50(1)(d)(iii) of the Weapons Act 1990 (Qld):
“Penalty—
Minimum penalty—
(d) for an offence, committed by an adult, to which paragraph (a) , (b) , (c) (i) or (c)(ii) applies—
…
(iii) if the person unlawfully possesses a short firearm in a public place without a reasonable excuse—1 year’s imprisonment served wholly in a corrective services facility; or”
To the question of whether the section precluded sentencing options outside actual imprisonment, the Court’s decision centred on the words “wholly in a corrective services facility”:
“…the way in which the provision specifies the penalty is entirely unambiguous. It requires the period of imprisonment to be served “wholly in a corrective services facility”. Those very clear words exclude serving a penalty outside a corrective services facility. A probation order is just such a penalty.”[4]
In coming to this conclusion Broederlow approved the reasoning of Bowskill J (as her Honour then was) in R v DS.[5] In that case her Honour interpreted the relevant section of the Weapons Act to exclude sentencing options outside imprisonment and made a point of agreeing with Devereux SC DCJ’s judgement in Doig[6] to do the same with respect to section 754 of the PPRA.[7]
Broederlow also distinguished the decision of Spencer[8] on the basis that, inter alia, it was decided before section 754 of the PPRA was amended to include the “entirely unambiguous” words that a period of imprisonment must be served “wholly in a corrective services facility”.[9] The Court placed great significance on these words to the question of statutory interpretation of sentencing options.
Conclusion
Broederlow arguably provides Court of Appeal authority for a strict interpretation of statute that requires a period of imprisonment to be served “wholly in a corrective services facility”.
The Court’s decision in Broederlow centred on the meaning of the words “wholly in a corrective services facility” as they appeared in the context of a penalty provision. The specific statute in which these words appeared did not, in my view, inform the Court’s reasoning.
Accordingly it may be argued that the Broederlow decision applies to the interpretation of the penalty under section 754 of the PPRA:
“Penalty—
Minimum penalty—50 penalty units or 50 days imprisonment served wholly in a corrective services facility.
Penalty—
Maximum penalty—200 penalty units or 3 years imprisonment.”
Applying the Court’s reasoning in Broederlow, a sentence of imprisonment imposed for an evasion offence under section 754 of the PPRA must include a minimum of 50 days served in a corrective services facility.
Hannah Pugh
Solicitor
[1] Doig v Commissioner of Police [2016] QDC 320, approved in R v DS (2020) 2 QR 621. See also Broederlow v Commissioner of Police [2019] QDC 228; Nitz v Commissioner of Police [2021] QDC 237.
[2] Commissioner of Police Service v Spencer (2014) 2 Qd R 23; Forbes v Jingle [2014] QDC 204; Campbell v Galea [2019] QDC 53.
[3] (2020) 5 QR 296.
[4] At 307, [28].
[5] R v DS (2019) 2 QR 621.
[6] Doig v The Commissioner of Police [2019] QDC 228.
[7] R v DS (2019) 2 QR 621 at 624, 639-640.
[8] Commissioner of Police Service v Spencer (2014) 2 Qd R 23. This decision was the catalyst for the amendment of the section to include the words, “served wholly in a corrective services facility”.
[9] Ibid, n 4.
The important role of a plea of guilty by Emma Higgins
A plea of guilty is an acceptance of guilt to the offences charged. It is a choice made by the defendant to accept responsibility for their actions and be dealt with according to law.
A plea of guilty is entered in the exercise of a free choice, in the person’s own interests, by a person of apparently sound mind and without inducement to enter that plea. After a plea of guilty, a person is sentenced to a penalty that reflects all of the circumstances of the offending and the person’s personal antecedents.
If a defendant later says that the plea of guilty that they entered was not correct, an appeal may be brought within the relevant time limitation. However, any appeal against conviction must overcome the large obstacle that the defendant’s conviction followed their plea of guilty.
The relevant principles to be applied to an appeal against conviction following a plea of guilty are well settled by case law. In the 2011 decision of the Queensland Court of Appeal in R v Dobie, the Court approved what the High Court had said in 1995 in the decision of Meissner v the Queen. In relation to the plea of guilty, it was said that
“…there is no miscarriage of justice if a Court acts on a plea of guilty entered in open court by a person who is of full age and apparently sound mind and understanding where the plea is entered in the exercise of a free choice in the interests of the person entering the plea, even if that person is not in truth guilty of the offence. It is also established that an application subsequently to withdraw a plea of guilty should be approached with considerable caution. Furthermore, a plea of guilty is an admission of all of the elements of the offence and that all available defences have been negatived. Nevertheless, it may be open to the Court to find a miscarriage of justice which permits the withdrawal of a plea of guilty and the setting aside of a conviction entered on that plea if, on the facts put forward as constituting the facts of the offence with reference to which the person was charged and sentenced, the person could not in law have been convicted of that offence.”
It is not easy for a defendant to persuade a Court to set aside a conviction based on a plea of guilty. As the Court in Borsa v The Queen confirmed, “there must be a strong case and exceptional circumstances.” It is recognised that the circumstances in which the conviction will amount to a miscarriage of justice can never be exhaustively identified but said that there are three well-recognised circumstances in which a plea of guilty will be set aside:
- Firstly, when the applicant did not understand the nature of the charge or did not intend to admit guilt;
- Secondly, if, upon the admitted facts, the applicant could not in law have been guilty of the offence;
- Thirdly, where the guilty plea was obtained by improper inducement, fraud or intimidation and the like.
Recently, in the case of R v DBY [2022] QCA 20, the Court had occasion to again consider these principles and whether the appellant in that case had experienced a miscarriage of justice having regard to her conviction by way of her plea of guilty. In that case there was some evidence that the applicant had been unsound at the time of committing the first offence in the mental health court but the matter could not be resolved in the mental health court and those issues were not pursued by the defendant in the criminal proceedings. There was conflicting expert evidence within the mental health court about whether or not the defendant was of unsound mind at the time of the offending. As a result of that conflicting evidence, the matter was unable to be resolved through the mental health Court. However, those issues were not pursued when the matter was returned to the ordinary criminal stream of the Court. At all times when the Appellant was being assessed in that matter she was fit to stand trial and make decisions about the conduct of her matter. Moreover, the appellant’s decision to plead guilty involved a rational forensic choice on her part taken no doubt on the advice of her counsel. The Court went on to explain that while the appellant may regret that decision, no miscarriage of justice had been demonstrated.
This case is a reminder of the importance of making an informed decision about whether or not to enter a plea of guilty. Regret after the fact is not enough to overturn a conviction after a plea of guilty entered voluntarily and rationally at the time of entering the plea.
Being charged with a criminal offence is a serious matter that can have consequences not only for a person’s liberty but for their future employment and social and emotional wellbeing. The decision to plead guilty to offending is an important one and as this article demonstrates, a defendant is unable to resile from their plea of guilty except in circumstances which are exceptional.
Legislating against coercive control: The Hear Her Voice Report
Legislating against coercive control: The Hear Her Voice Report
Previous instalments of this series outlined the background to the coercive control debate in Queensland and discussed the Scottish legislative model which was anticipated to serve as an exemplar in the development of Queensland legislation.
The Hear Her Voice report (the Report) was recently released by the Women’s Safety and Justice Taskforce. It is the final report by the Taskforce which outlines their findings and recommendations in relation to the criminalisation of coercive control.
This blog will discuss the findings and recommendations of the taskforce and analyse the potential outcomes assuming such recommendations are to be adopted in Queensland.
The extent of the issue
The Report found that as a general proposition coercive control receives inefficacious responses from the criminal justice system.
As discussed in earlier instalments, coercive control is often not understood comprehensively and thus, the Report held, it receives limited resourcing and inadequate or inconsistent responses from police. As much of domestic violence policing takes an ‘incident-based’ approach, cases of physical violence take priority. The Report found that such an approach means more destructive and less apparent behaviour can occur where otherwise it could have been prevented.
The Report found that there was a negative culture within the Queensland Police Service surrounding coercive control, including negative attitudes held by individuals who dismissed legitimate complaints, failed to properly investigate, colluded with manipulative perpetrators and failed to mitigate conflicts of interests relating to complaints made against police officers. Additionally, cultural incapability of certain officers exacerbated issues in responding to cases of coercive control between First Nations people.
In cases that proceeded to court, the Report suggests that coercive control victims struggle with a hostile and unsafe environment which lacks supportive services such as safe rooms and the use of remote evidence. The domestic and family violence court process was also noted as a barrier to achieving safety for victims of coercive control, who could be subjected to further contact with their abuser through constant unnecessary adjournments.
The Taskforce concluded that these shortcomings can be solved through a suite of reforms focussing on education of police and judicial officials, as well as the introduction of a standalone coercive control offence similar to that adopted in Scotland.
Recommendations
The Report contains a total of 89 recommendations ranging from proposed education/training schemes, media and communication strategies, definitional, evidence and sentencing amendments as well as the creation of new offences. The main recommendations are summarised below.
Training/Education
The taskforce proposes an initial stage of reform which focusses on training and education of the police and judiciary so that they have an adequate understanding of the new coercive control scheme in order to efficiently and justly enforce it. The Taskforce proposes training throughout the QPS as well as creating specially trained detectives. They also propose five days of training each year for judicial officers.
Further proposed training will occur throughout the legal sector.
To address awareness in the broader community, the taskforce proposes:
- Communication strategies to educate the wider public;
- Media regulations (akin to this surrounding suicides) which ensure a consistent standard of reporting;
- Programs that target young men within schools.
Whilst some of these education schemes target a more long-term shift in culture and awareness, others will serve as a prerequisite to later stages of reform that focuses on the introduction of new offences, discussed below.
New offences/sentencing amendments
The report suggests two new offences as well as an amendment to the existing offence of unlawful stalking. To accompany these offences, it also makes amendments to some areas of sentencing and evidence law.
The New Coercive Control Offence
As anticipated, the new offence was modelled off the Scottish model. It would work in conjunction with an amended definition of domestic violence under section 8 of the Domestic and Family Violence Prevention Act 2012 (Qld) (‘DFVP Act’) that includes coercive control.
The new offence recommends criminalising the undertaking of a course of conduct constituting two acts of domestic violence, where a reasonable person would consider this course of conduct to be likely to cause one person in the relationship to suffer physical, psychological, emotional or financial harm. No proof of actual harm is required.
The offence will carry a maximum penalty of 14 years imprisonment. A complete defence exists if the defendant can prove on the balance of probabilities that the conduct was reasonable in the context of the relationship as a whole.
A new aggravating factor on sentence will apply if the commission of a domestic violence offence was also in breach of an existing court order or injunction or if the offence exposed a child to domestic violence.
The Taskforce further recommends that the offence be included within Schedule 1 of the Penalties and Sentences Act 1992 (Qld) so that a court may make an Serious Violent Offender declaration in relation to repeat perpetrators of serious domestic violence. Such a declaration would require these offenders to serve 80% of their sentence before being eligible for parole.
This new offence, with its lower threshold, would aim to be more easily established where other more serious offences (strangulation etc.) cannot be sufficiently particularised.
The Taskforce reasons that such an approach is sought to avoid an ‘incident-based’ approach by shifting focus from the particulars of domestic violence incidents and instead focussing on establishing that a course of conduct of domestic violence has been undertaken.
The Taskforce also made other recommendations in terms of the introduction of new post-conviction civil supervision and rehabilitation orders. These will be available where an offender had engaged in behaviour constituting domestic or family violence (including choking, suffocation or strangulation), and where the court considers that making the order is appropriate in all the circumstances to prevent the offender from further engaging in domestic and family violence.
The New Facilitation Offence
The Report further recommends a facilitation offence to stop third parties from committing acts of abuse against victims on a perpetrator’s behalf when there is a Domestic Violence Order in place.
This offence would criminalise conduct where:
- a person enables, aids, or facilitates domestic violence against another person on behalf of a respondent to a domestic violence order; and
- that person knew or ought reasonably to have known that the other person was named as an aggrieved on a domestic violence order.
The offence will be aggravated if it is committed for reward — for example, by a private investigator for a fee.
The Amended Stalking Offence
The Taskforce recommended, among other things, an expansion of the definition of stalking to include behaviours such as monitoring social media and online communication, GPS tracking or spyware.
It was also recommended that a new circumstance of aggravation be put in place which increases the maximum penalty if the crime was perpetrated against a person with whom the defendant had a ‘relevant relationship’ with under the DFVP Act.
Other amendments/proposals
The Report makes various other recommendations. The most notable of these are listed below.
Evidence Act amendments
The report proposes to expand the scope of the existing Evidence Act 1997 (Qld) provisions that allow for the admission of relevant domestic violence evidence in criminal proceedings relating to all criminal offences. It also proposes to allow admissibility of expert evidence about domestic violence and for jury directions to allow consideration of the contextual evidence with respect to the nature and impact of domestic violence.
Penalties and Sentencing Act amendments
The Report proposes that it be a mitigating factor if criminal behaviour is partly or wholly attributable to the defendant being a victim of coercive control.
Diversionary Scheme
The report proposes that first-time breachers of domestic violence orders be diverted to a perpetrator program. If they complete this program they should not be further dealt with by the criminal justice system.
Offender’s Register
The report proposes limited sharing of information between police and certain government and non-government entities to provide greater capacity for targeted monitoring and intervention of ‘high-risk’ domestic violence offenders.
General areas of review
In light of their findings, the taskforce recommended further review of defences (namely provocation) and the Serious Violent Offender scheme
Potential impacts
It is encouraging that so much emphasis has been placed on training and education, which arguably will have the greatest impact in preventing and addressing coercive control. In order to ensure justice for both victims and alleged offenders, consistency across the criminal justice system is required to prevent further confusion about coercive control.
As mentioned in the previous instalment of this blog, the proposed offence has relatively low evidential burdens which must be carefully considered so as not to disadvantage alleged offenders. A course of conduct requires the proof of only two non-particularised incidents, neither of which need to have caused actual harm. The nature of abusive behaviour often involves unremarkable acts which are non-criminal in isolation that therefore do not warrant attention or recording. In the Scottish jurisdiction extensive expert evidence has been consistently required to corroborate statements, and ultimately physical incidents, which are more readily understood and evidenced, have taken primacy in policing and prosecuting.
While cases with clear intent and harm are not problematic, it is not clear how this offence will apply to cases with limited evidence and unclear intention. Proposed media schemes must take care to explain with sufficient clarity which behaviours are now criminal and what the consequences of these behaviours will be. This clarity is imperative both to deter potential offenders and empower victims to report behaviours perpetrated against them which they know will be investigated.
There are several new proposals of particular note that seem to go beyond the current status quo in Queensland:
- The recommendation that domestic violence offences fall under the Serious Violent Offender scheme will have huge impacts. Allowing a court to decide that offenders convicted of domestic violence offences must serve 80% of their imprisonment term before being eligible for parole is a significant increase in sentencing that may have particularly burdensome effects in relation to the new offence and its low evidential hurdles.
- Modifications to the Evidence Act which allow evidence of domestic violence to be advanced in relation to all criminal offences would be a significant amendment. Use of ‘contextual’ domestic violent evidence could lead to situations of prejudice in relation to unconnected alleged criminal behaviour. Indeed, how thing will sit with the complex, existing law of similar fact evidence remains to be seen.
However, several encouraging proposals have been made that are likely to be of benefit to all:
- The introduction of diversionary schemes that allow for rehabilitation rather than proceeding to criminal prosecution is encouraging. Dealing with coercive control within the community will ultimately be an effective initial step in order to protect both alleged offenders and victims from the trauma of the criminal justice system.
- Similarly, post-conviction civil supervision and rehabilitation orders are an encouraged sentencing option that would adequately place focus on rehabilitation and education rather than punishment.
Conclusion
Ultimately the Report presents encouraging strategies of education and rehabilitation that are key to solving the longstanding issue of coercive control. The introduction of a new coercive control offence must be carefully considered in order to present a balanced approach to evidence and sentencing. The extension of the domestic violence jurisdiction to the Serious Violent Offender scheme and modifications to the Evidence Act are particularly strict proposals that must be considered carefully to ensure an appropriate balance between the interests of victims and alleged offenders. It will be interesting to see the response to the Taskforce’s report as the process of legislating against coercive control continues. The Report will now be considered by the Attorney-General.
Restricted prisoner declarations – a flagrant breach of human rights by Dan Rogers
Restricted prisoner declarations – a flagrant breach of human rights
Queensland Law Society wrote a submission to the parliamentary Legal Affairs and Safety Committee in relation to its inquiry into the Police Powers and Responsibilities and Other Legislation Amendment Bill 2021 (Qld), which was passed on Tuesday.
Principal Dan Rogers was part of the contingent from QLS who appeared as a witness at the public hearing held on 15 October 2021 in relation to the inquiry. Although QLS’s written submissions discussed various aspects of this Bill, most concerning were the proposed restricted prisoner declarations. Dan Rogers argued that the Bill in its proposed form was a flagrant breach of the Human Rights Act 2019 (Qld) (HR Act) in two respects.
Read the full Proctor article here.
https://lnkd.in/gfnPMVnV
Child murderers and serial killers could be denied parole for decades under new Queensland laws
Child murderers and serial killers could be denied parole for decades under new Queensland laws passed on Tuesday. The laws will give the president of Parole Board Queensland the power to make a "restricted prisoner declaration", blocking certain inmates from obtaining parole for up to 10 years, with no limit on the number of bans made.
The legal community had previously expressed concerns that the parole board sat "behind closed doors" and the powers "should only be vested in a court".
Legal Director, Dan Rogers raised concern over the new laws and described the restricted prisoner declaration as a flagrant and unjustified breach of so many different human rights. He questioned whether there is capacity for this extra decade to be a rolling thing … [which] really makes it arbitrary detention or indefinite detention.
Declarations could instead be handled by the courts, in a similar way judges determined whether some sexual offenders should remain behind bars indefinitely under the Dangerous Prisoners (Sexual Offences) Act.
Read the full article here.
Senior Consultant, Terry O'Gorman awarded the Law Council of Australia President's Award
Senior Consultant Terry O'Gorman has been awarded the Law Council of Australia President's Award. A very well-deserved honour for an outstanding lawyer.
The Law Council wrote:
Queensland lawyer, Terry O’Gorman AM has been honoured today for his tireless work to protect civil liberties in Australia over a career spanning more than four decades. The President’s Award honours an individual who has been an ‘outstanding example to the Australian legal profession and to those who might seek to join its ranks’.
Law Council President, Dr Jacoba Brasch QC, presented Mr O’Gorman with his award at the annual Law Council Director’s Meeting, which this year was held virtually. “There have been many highlights during my time as President of the Law Council of Australia,” Dr Brasch said. “Being able to recognise the contribution Terry has made to our profession and our society, is a privilege I am grateful to have had.”
In 1991, Mr O’Gorman was awarded the Order of Australia for services to the legal profession. He is President of the Australian Council of Civil Liberties and the Queensland Council of Civil Liberties. As an Accredited Specialist in Criminal Law, Mr Gorman is recognised by the Queensland Law Society (QLS) and the legal profession as an expert in criminal law, professional responsibility and police conduct.
“Since the 1970s, Terry has been instrumental in maintaining the rule of law in this country. For over 45 years, he has dedicated himself to educating the legal profession and wider community in relation to police powers and advocating for law reform,” Dr Brasch said. “Terry’s involvement in the Fitzgerald inquiry and the legislative changes that followed, particularly in relation to policing, are outstanding examples of the significant and longstanding role he has played in upholding the rule of law.”
Together with retired Judge, John Robertson, Mr O’Gorman is a founding partner of Robertson O’Gorman Solicitors. For the past five years, Robertson O'Gorman has sponsored the University of Queensland’s ‘Robertson O’Gorman Prize in Criminal Law’, which recognises the top achieving student in criminal law studies.
“Terry is a valued mentor to so many within our profession,” Dr Brasch said. “Judges, senior barristers and solicitors have benefited from his guidance and advice over the years.
“The award presented to Terry is the latest in a string of highly deserved formal commendations. He was named QLS Accredited Specialist of the Year in 2020 and awarded this year’s QLS President’s Medal. “Terry is a credit and inspiration to our profession who has championed long and hard on behalf of the community, particularly those disadvantaged or harmed because of an imbalance in power. He is a worthy recipient of the Law Council of Australia’s President Award.”
Part 3: Appeals Process in Queensland - Should Queensland adopt a second right of appeal? by Ella Scoles
Part 3: Appeals Process in Queensland - Should Queensland adopt a second right of appeal? by Ella Scoles
Our first and second blog in this three part series provided an introduction, history and exploration of the appeals process in Queensland and other jurisdictions. This final blog will concentrate on whether Queensland should adopt a second right of appeal.
- Should Queensland adopt a second right of appeal?
Australia’s post-conviction mechanisms have been the subject of much analysis. Often this analysis has brought to the fore deficiencies in the current process. This section will focus of three areas representing the most prominent arguments in the literature. These are critique of the one appeal rule, critique of the petitions of mercy, as well as critique of the second avenue of appeal.[1]
The validity of the Australian jurisdiction’s interpretation of the various appeal statutes to mean one appeal only is the subject of much debate. Many academics and the occasional judge have argued that this interpretation is simply not accounted for in the wording of the various appeals statutes.[2] All of the various Australian provisions, as well as the original English provisions upon which Australian criminal law was modelled, simply state that a person ‘may appeal’ a conviction in certain circumstances. Therefore, no number of appeals are provided for in the legislation. In fact, it has been argued that the interpretation of the wording to mean a singular appeal was historically influenced by ‘judicial distaste for the expansion of the appellate rights for convicted prisoners’.[3]
Importantly, this interpretation is justified on that basis that any potential miscarriages of justice can be remedied by the petitions process.[4] However, the ability of the pardon provisions to adequately remedy an injustice is also is subject to much scrutiny. The first area of critique is that the petitions process takes place within a political environment and therefore it is quite often subject to conflicts of interest. When considering a petition, a Governor or Governor-General usually seeks the advice of various legal practitioners within the public service. Clearly, this presents a conflict of interest when those legal advisors may tailor their advice in light of the fact that it could reflect badly on themselves, their department, their colleagues, the government, or even the criminal justice system itself.[5] This means that while Governors and Governor-Generals are technically members of the executive, there is a very real possibility that the determination of a petition is subject to political considerations and/or public pressures beyond their immediate arm of government. Not only would this almost always result in the applicant being at a severe disadvantage, it is clearly in breach of the separation of powers.[6] As stated by Justice Kirby, the current system dictates that a prisoner arguing innocence ‘seek redress from the Attorney-General. Yet this may be the very office-holder who has ultimate responsibility for the agencies … that the prisoner alleges to have been wanting if a miscarriage of justice is to be found and corrected’.[7]
Secondly, as highlighted above there is very little concrete guidance that applies to the determination of mercy petitions. One thing that is established is that the petitions process affords the Attorney-General unfettered discretion.[8] While on one hand this could work in the applicant’s favour, on the other it may also be detrimental to an applicant. As was held in Von Einem v Griffin (1998) 72 SASR 110 the courts have generally accepted that: the petition and statutory referral powers confers no legal rights on the applicant, the Attorney-General has a unfettered discretion in the matter and may decide on the petition as they please which includes ignoring or rejecting the petition without having to give reasons for doing so, and the decision-making process of the Attorney-General is itself not subject to judicial review.[9] Clearly, the potential for an executive to refuse a petition without even exercising their power is unsatisfactory and arguably flies in the face of the rule of law.[10] While this paper does not seek to suggest that this is how members of the executive operate, the fact that the parameters surrounding the process allow this to occur in the first place, and, the fact that there is no transparency or legal redress if this does highlights a gross inability of the petitions process to adequately remedy miscarriages of justice. Ultimately, even the Attorney General of Tasmania has conceded that the ‘[the petitions] process is open to criticism as lacking transparency, accountability and independence’.[11]
Lastly, while the implementation of a second right of appeal is seen to be a positive move for the Australian justice system, there could be an argument that its fresh evidence requirements may unduly restrict legitimate miscarriages of justice in certain circumstances.[12] Importantly, there is some debate over whether the statutory definition is more rigid than previous common law requirements regarding fresh evidence. Under both the common law and the statutory test, the applicant must show that they exercised ‘reasonable diligence’ in seeking exculpatory evidence at the time of the trial. Thus, fresh evidence is linked to the requirement for due diligence. However, the common law goes somewhat further in that new evidence as opposed to fresh evidence may still be admissible ‘if the interests of justice’ require it.[13] In other words, the courts consider if there is a substantial risk that a miscarriage of justice will occur if the evidence is not admitted.[14] In R v Drummond (No 2) [2015] SASCFC 82 (‘Drummond’), the second case that considered the new South Australian appeals provision, Justice Peek followed this flexible approach. He stated that as the requirement for fresh evidence was linked to the requirement for due diligence, evidence that is new but is not fresh can be admissible if that evidence was not presented to the original trial court due to the Crown’s failure to disclose material to the defence. In other words, if there is a failure by the prosecution to disclose relevant evidence, or, if the evidence was not admitted due to a false or misleading identification of evidence by the prosecution then this will be considered ‘fresh’ evidence under the new provisions.[15]
Ultimately, this raises questions over whether or not this flexible approach towards fresh evidence could apply to other circumstances outside of prosecutorial misconduct. For example, would the courts be as keen to incorporate elements of flexibility if the appeal concerns evidence that was available at the original trial, but was not presented due to the applicant’s inadequate legal counsel? Clearly such evidence would not be considered ‘fresh’ as it was available at the time of trial and with reasonable due diligence could have been presented to court.[16] While an applicant could appeal on the ground of inadequate legal counsel, given the high threshold Australia requires for this to be made out, there is arguably little rate of success in this area either.[17] Therefore, while Drummond is promising in that it suggests that the courts may be receptive to taking a flexible approach in their interpretation of the new statutory requirements, the fate of cases outside of prosecutorial non-disclosure of evidence and false and misleading claims remains to be seen.
[1] There are many other critiques, including those relating to the ‘proviso’ which allows courts to dismiss an appeal in the event that an error occurred but this did not amount to a substantial miscarriage of justice, critiques relating to the inability of the High Court to hear fresh evidence, critiques relation to the lack of a Criminal Case Review Commission (or similar body) in Australia, critiques relating to the lack of 100% certainty relating to the standard of proof required for beyond reasonable doubt, as well as critiques relating to the requirement for leave, see: Catherine Penhallurick, ‘The Proviso In Criminal Appeals’ (2003) 27(3) Melbourne University Law Review 800; Bibi Sangha and Robert Moles, ‘Post-Appeal Review Rights: Australia, Britain and Canada’ [2012] 36 Criminal Law Journal 300, 307-8; Lynne Weathered, ‘Does Australia Need a Specific Institution to Correct Wrongful Convictions?’ (2007) 40(2) The Australian and New Zealand Journal of Criminology 179; Hamer (n 10) 280; Chris Corns, ‘Leave to Appeal in Criminal Cases: The Victorian Model’ (2017) 29(1) Current Issues in Criminal Justice 39. This has left some academics arguing that Australia’s post-conviction mechanisms may fall short of our requirements under international law, see: Bibi Sangha, Robert Moles And Kim Economides, ‘The New Statutory Right of Appeal in South Australian Criminal Law: Problems Facing an Applicant – Unanticipated Interpretive Difficulties’ (2014) 16(1) Flinders Law Journal 145, 155.
[2] Justice Kirby (n 8) 300.
[3] Ibid.
[4] D’Orta-Ekenaike (n 6); Bibi Sangha and Robert Moles, Miscarriages of Justice: Criminal Appeals and the Rule of Law in Australia (Lexis Nexis, 2015) 71.
[5] David Caruso, ‘Return of the Wrongly Convicted: The Test for Post-Conviction Executive References in Australia’ [2011] 57 Studies in Law, Politics and Society 125, 132.
[6] Lynne Weathered, ‘Pardon Me: Current Avenues for the Correction of Wrongful Conviction in Australia’ (2005) 17(2) Current Issues in Criminal Justice 203, 212.
[7] Justice Kirby (n 8) 301.
[8] Von Einem v Griffin (1998) 72 SASR 110, [121].
[9] Von Einem v Griffin (1998) 72 SASR 110, [121]; Bibi Sangha and Robert Moles, ‘Mercy or Right? Post-Appeal Petitions in Australia’ [2012] 14 Flinders Law Journal 293, 294-5.
[10] Bibi Sangha and Robert Moles, ‘Post-Appeal Review Rights: Australia, Britain and Canada’ [2012] 36 Criminal Law Journal 300, 311.
[11] In the Legislative Council of Tasmania the Attorney-General reported a case from 2002 where a prisoner who had undergone major neurosurgery had the remainder of his sentence remitted by the Governor on a petition for mercy because the medical advice was that ‘maintaining the man in prison would put him at extreme risk’, see: Tasmania, Parliamentary Debates, Legislative Council, 15 October 2015 (Vanessa Goodwin, Attorney-General). This was the second reading of the Criminal Code Amendment (Second or Subsequent Appeal for Fresh and Compelling Evidence) Bill 2015 (Tas). This point was repeated in Tasmania, Parliamentary Debates, House of Assembly, 22 September 2015 (Will Hodgman, Premier).
[12] See also Bibi Sangha, Robert Moles and Kim Economides, ‘The New Statutory Right of Appeal in South Australian Criminal Law: Problems Facing an Applicant – Unanticipated Interpretive Difficulties’ (2014) 16(1) Flinders Law Journal 145 for discussion of other various critiques of the South Australian secondary review provision.
[13] R v Bain [2004] 1 NZLR 638, [22].
[14] Lundy v R [2013] UKPC 28, [117] citing R v Bain [2004] 1 NZLR 638, [22].
[15] Bibi Sangha, ‘The Statutory Right to Second or Subsequent Criminal Appeals in South Australia and Tasmania’ (2015) 17(2) Flinders Law Journal 471, 499.
[16] This is the scenario presented in Weathered, ‘Pardon Me: Current Avenues for the Correction of Wrongful Conviction in Australia’ (n 80) 210. While this paper was written prior to the enactment of the new subsequent appeal provisions, it is still pertinent to highlighting the difficulty in fresh versus new evidence requirements and the extent to which the courts may (or may not) take a flexible approach.
[17] Weathered, ‘Pardon Me: Current Avenues for the Correction of Wrongful Conviction in Australia’ (n 80) 210.
[18] Neill-Fraser v Tasmania [2019] TASSC 10, 3 (‘Neill-Fraser’).
[19] Ibid.
[20] Van Beelen v The Queen (2017) 262 CLR 565, 578 (‘Van Beelen’).
[21] Neill-Fraser (n 65) 3.
[22] Ibid 3-5.
[23] Ibid 4 (Brett J) quoting Van Beelen (n 67) 577 (Bell, Gageler, Keane, Nettle and Edelman JJ).
[24] Van Beelen (n 67) 577 (Bell, Gageler, Keane, Nettle and Edelman JJ) citing R v Keogh (No 2) (2014) 121 SASR 307, 337.
[25] Neill-Fraser (n 65) 4 (Brett J) quoting Van Beelen (n 67) 577 (Bell, Gageler, Keane, Nettle and Edelman JJ).
[26] Ibid.
[27] Neill-Fraser (n 65) 5.
Part 2: Appeals Process in Queensland - Other jurisdictions and judicial interpretation by Ella Scoles
Part 2: Appeals Process in Queensland - Other jurisdictions and judicial interpretation
Our first blog in this three part blog series provided an introduction, history and Queensland process of Appeals. This blog will concentrate on other jurisdictions and judicial interpretation.
- The appeals process in other jurisdictions
While Queensland law does not provide any additional avenues beyond the traditional appeal and pardon provisions, other states have enacted a secondary mechanism of appeal. This first occurred in 2013, when South Australia passed legislation to create a new right to a second appeal.[1] In 2015 Tasmania followed suit,[2] and in 2019 so did Victoria.[3]
Section 159 of the Criminal Procedure Act 1921 (SA) provides that with the leave of the Court of Appeal:
(1) The Court of Appeal may hear a second or subsequent appeal against conviction by a person convicted on information if the Court is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal.
The legislation in Tasmania is similar. Under section 402A of the Tasmanian Code, a person convicted of a serious crime or a person acquitted of a serious crime under the grounds of insanity,[4] may, with the leave of the Court of Appeal or a single judge,[5] have their case appealed to the Court for a second time if there is fresh and compelling evidence.[6] This is also the case in Victoria, where the legislation provides that a person convicted of an indictable offence in an originating court, who has exhausted their right to an appeal or who has previously had leave to hear their appeal dismissed, may apply to the Victorian Court of Appeal against their conviction if leave is granted.[7]
Therefore, there is only one ground of appeal under this new avenue of appeal – the presence of fresh and compelling evidence. The meaning of fresh and compelling evidence is provided for by the new provisions. Fresh evidence is held to be evidence that was not adduced at the trial of the convicted person.[8] Therefore, evidence that could have been adduced at the trial if reasonable diligence had occurred is excluded from being considered as fresh evidence.[9] Compelling evidence is evidence that is reliable, substantial, and highly probative to the case of the convicted person.[10]
If the appellant is granted leave, the Court of Appeal has three options. It may either: dismiss the appeal if the grounds of the appeal are not made out;[11] quash the conviction and direct that a judgement and verdict of acquittal be entered;[12] or quash the conviction and order a new trial be held.[13] According to the Tasmanian provision, in order to quash a conviction the Court must be satisfied that firstly, there is fresh and compelling evidence and secondly, the presence of such evidence means that there has been a substantial miscarriage of justice.[14]
However, before this can even occur, leave must be granted. This requires the applicant to establish that this jurisdictional fact (i.e. the fresh and compelling evidence) is reasonably arguable ‘on the balance of probabilities’.[15]
- Judicial interpretation of the subsequent right of appeal
The cases of Henry Keogh were the first in Australia to consider this new avenue of appeal.[16] In 1995 Keogh was sentenced to 26 years in prison for the murder of his then fiancée, Anna-Jane Cheney.
After an appeal to the High Court (which was refused)[17], four petitions for mercy which sought to cast doubt upon the validity of expert forensic evidence presented at trial and 20 years of imprisonment, Henry Keogh was granted leave for a second appeal under the new South Australian legislation. The appeal was subsequently allowed and his conviction quashed with an order for a retrial.[18] In 2015 the South Australia Director of Public Prosecutions announced that they would not be proceeding with the retrial. In his subsequent appeal it was revealed that in 2004 the Director of Public Prosecutions of South Australia had obtained a forensic report that brought into question the reliability of the original forensic findings responsible for this conviction.
In Koegh, Gray, Sulan and Nicholson JJ determined that consideration of section 353A (and indeed this can be extended to other jurisdictions) gives rise to the following questions:
- ‘the overall structure and intended operation of the section, including a subsidiary question addressing the inter-relationship between the need for jurisdiction to be made out and the requirement that permission to appeal be obtained;
- the meaning of ‘fresh’;
- the meaning of ‘compelling’;
- the meaning of ‘in the interests of justice’;
- the meaning of ‘substantial miscarriage of justice’; and
- the evidence to which the Court is permitted to have regard in determining whether there has been a substantial miscarriage of justice, having identified some evidence that satisfies the requirements of section 353A(1) and granted permission under subsection (2).’[19]
The following provides an analysis of Keogh’s interpretation of the above points.
The overarching structure and operation
This essentially referred to the threshold that was required to be overcome to hear a subsequent appeal. Their Honours termed this to be the ‘jurisdiction fact’.[20] What must be established is that there is fresh evidence, compelling evidence, and it should be in the interests of justice to consider this evidence. Importantly, any one piece of evidence must satisfy all three of these elements on the balance of probabilities before the jurisdictional fact is established.[21] The Court also stated that while in most cases simply establishing that a fresh and compelling evidence is present and that it would be in the interests to consider the evidence would in turn mean that a substantial miscarriage of justice is established, this is not always so.[22] What this means is there can, in some circumstances, be the presence of the jurisdictional fact, but a substantial injustice may not be reasonably arguably on the facts.
Fresh evidence
Their Honours reasoned that ‘The concept of fresh evidence is well known to the common law, as is the distinction between fresh evidence and new evidence’.[23] As such, they cited a number of common law definitions of fresh evidence as they did not see these definitions to be dissimilar from the s353A meaning. For example, the meaning of fresh evidence in Ratten v The Queen (1974) 131 CLR 510, was cited:
... The rule in relation to civil trials is that evidence, on the production of which a new trial may be ordered, must be fresh evidence; that is to say, evidence which was not actually available to the appellant at the time of the trial, or which could not then have been available to the appellant by the exercise on his part of reasonable diligence in the preparation of his case. However, the rules appropriate in this respect to civil trials cannot be transplanted without qualification into the area of the criminal law. But the underlying concepts of the adversary nature of the trial, be it civil or criminal, and of the desirable finality of its outcome are valid in relation to trial of a criminal offence.[24]
New evidence is the opposite of this – it is evidence that of which an appellant was not actually aware but could, with reasonable diligence, have been discovered by the time of the original trial.[25] If an appellant could have reasonably have been expected to have been aware of evidence then ordinarily it will not be considered fresh.[26] However, their Honours did recognise that at least in the criminal law, there has always been some flexibility when considering whether evidence could have been reasonably adduced.[27]
Compelling
Evidence that is compelling is evidence which is reliable, substantial and highly probative in the context of the trial. When considering the reliability of evidence, this requires consideration of the quality of the evidence itself and the person or means, documentary or otherwise, through or by which the evidence is adduced.[28] Ultimately, it requires a consideration of whether ‘the evidence is sufficiently trustworthy or accurate such that it provides the Court with a sound basis, when considered together with other evidence as necessary, for drawing conclusions’.[29]
Substantial evidence is evidence that is ‘of sufficient importance, worth or value’.[30] It is a qualitative exercise that should be considered in its ordinary meaning. Their Honours noted that often whether or not evidence is substantial may be of little consequence to the court, as they reasoned that ‘If evidence is seen to be reliable and highly probative in the context of the issues in dispute at trial, it is unlikely that it would be characterised as not substantial’.[31]
Lastly, evidence that is highly probative is evidence that has the ability to affect a rational persuasion about an issue that must be proved.[32] Their Honours noted that by placing the requirement that this evidence relate to an issue in dispute at trial was a deliberate attempt by the legislature to limit the scope of an appeal under this provision.[33]
Interests of justice
The term ‘in the interests of justice’ is said to have a wide meaning. Accordingly, their Honours stated that constructing an exhaustive list of circumstances in which their requirement may be satisfied is impossible.[34]
The reference to an appeal being heard “under this section” makes it clear that the court may hear and determine an appeal only where it is satisfied of the section 353A(1) jurisdictional fact. Thereafter, the court must consider the single available basis for allowing the appeal, namely whether there has been a substantial miscarriage of justice.[35]
Miscarriage of justice
Additionally, the term ‘miscarriage of justice’ also has a wide meaning and has been explored in a number of cases.[36]
To provide analysis on this term, their Honours cited the High Court judgement of Baini v The Queen (2012) 246 CLR 469 which considered the meaning of substantial miscarriage of justice as a basis for allowing a criminal appeal (an avenue under section 276 of Victorian legislation). Accordingly:
Section 276 must be read recognising that miscarriages of justice may occur in many circumstances and may take many forms… No single universally applicable description can be given for what is a “substantial miscarriage of justice” for the purposes of s 276(1)(b) and (c). The possible kinds of miscarriage of justice with which s 276(1) deals are too numerous and too different to permit prescription of a singular test. The kinds of miscarriage include, but are not limited to, three kinds of case. First, there is the case to which s 276(1)(a) is directed: where the jury have arrived at a result that cannot be supported. Second, there is the case where there has been an error or an irregularity in, or in relation to, the trial and the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial. Third, there is the case where there has been a serious departure from the prescribed processes for trial. This is not an exhaustive list. Whether there has been a “substantial miscarriage of justice” ultimately requires a judgment to be made.[37]
Evidence with which the court may have regard to
Lastly, section 353A(3) provides that ‘the Full Court may allow an appeal under this section if it thinks there was a substantial miscarriage of justice’. Their Honours held that the qualifier, ‘under this section’ is to be construed as meaning in accordance with the power conferred by section 353A(1). That is, the requirements of fresh and compelling evidence that would be in the interests of justice to be considered. They reasoned that this is the only evidence (or evidence that points to this) the court can have regard to.
[1] Originally the Statutes Amendment (Appeals) Act 2013 (SA) enacted s 353A of the Criminal Law Consolidation Act 1935 (SA) which allowed for a subsequent right of appeal. On 5 March 2018 the Summary Procedure (Indictable Offences) Amendment Act 2017 commenced and section 11 of that Act repealed section 353A. Section 353A was re-enacted in identical form as Criminal Procedure Act 1921 (SA) s 159.
[2] Under section 402A of the Tasmanian Code, a person convicted of a serious crime or a person acquitted of a serious crime under the grounds of insanity, may, with the leave of the Court of Appeal or a single judge, have their case appealed to the Court for a second time if there is fresh and compelling evidence.
[3] Justice Legislation Amendment (Criminal Appeals) Act 2019 (Vic) introduced section 326A of the Criminal Procedure Act 2009 (Vic), ‘Right of second or subsequent appeal against conviction’.
[4] The list of prescribed serious crimes is accounted for in The Tasmanian Code app D.
[5] The Tasmanian Code s 402A(2), (3).
[6] Ibid s 402A(6).
[7] Criminal Procedure Act 2009 (Vic) s 326A.
[8] Ibid s 402A(10)(a)(i); Criminal Procedure Act 1921 (SA) s 159(6)(a).
[9] Ibid s 402A(10)(a)(ii); Criminal Procedure Act 1921 (SA) s 159(6)(a).
[10] Ibid s 402A(10)(b); Criminal Procedure Act 1921 (SA) s 159(6)(b).
[11] Ibid s 402A(7).
[12] Ibid s 402A(8)(a); Criminal Procedure Act 1921 (SA) s 159(4).
[13] Ibid s 402A(8)(b); Criminal Procedure Act 1921 (SA) s 159(4).
[14] Ibid s 402A(6).
[15] R v Keogh (No 2) [2014] SASCFC 136, [80] and [89].
[16] This was the under the South Australia section 353A provision. While this is no longer in effect, an identical version is now contained in as Criminal Procedure Act 1921 (SA) s 159. Its discussion is therefore still valid.
[17] Keogh v The Queen [1997] HCATrans 313 (3 October 1997).
[18] R v Keogh [2014] SASCFC 20 (11 March 2014); R v Keogh [No 2] (2014) 121 SASR 307.
[19] R v Keogh (No 2) [2014] SASCFC 136, 24.
[20] Ibid, 25.
[21] Ibid.
[22] Ibid, 27.
[23] Ibid, 30.
[24] Ratten v The Queen (1974) 131 CLR 510, 516-7.
[25] See, for example, Ratten v The Queen (1974) 131 CLR 510; Lawless v The Queen (1979) 142 CLR 659; Gallagher v The Queen (1986) 160 CLR 392; Mickelberg v The Queen (1989) 167 CLR 259.
[26] R v Keogh (No 2) [2014] SASCFC 136, 30-31; Ratten v The Queen (1974) 131 CLR 510, 517.
[27] R v Keogh (No 2) [2014] SASCFC 136, 31; Ratten v The Queen (1974) 131 CLR 510, 517-8.
[28] R v Keogh (No 2) [2014] SASCFC 136, 33.
[29] Ibid.
[30] Ibid.
[31] Ibid.
[32] Ibid.
[33] Ibid, 33-34.
[34] Ibid, 35.
[35] Ibid, 36.
[36] See, for example, Mallard v The Queen (2005) 224 CLR 125; Cesan v The Queen (2008) 236 CLR 358; Nudd v The Queen (2006) 162 A Crim R 301; R v Scott (2012) 115 SASR 19; Davies & Cody v The King (1937) 57 CLR 170.
[37] Baini v The Queen (2012) 246 CLR 469, [25]-[26].
Dismissal of Charges Based on Unsoundness of Mind or Unfitness for Trial by Linda Cho
Dismissal of Charges Based on Unsoundness of Mind or Unfitness for Trial
Magistrates have the power to dismiss charges for simple offences if they are reasonably satisfied that the defendant is of unsound mind or unfit for trial.[1] A simple offence is a less serious offence, including some indictable offences, which can be dealt with by the Magistrates Court.[2] This power allows defendants to avoid the lengthy process in the Mental Health Court.
For example, the following charges (not limited to) may be dismissed by the Magistrate under this power:
- Public nuisance
- Assault or obstruct a police officer
- Drink driving
- Assault occasioning bodily harm
- Trespassing
The decision to dismiss charges
A person charged with an offence is of ‘unsound mind’ if they do not have the capacity to understand or control their actions, or know that they should not act in the manner constituting the offence.[3] This lack of capacity must arise primarily due to mental health or disability, even if the person was intoxicated at the time of the offence.[4] A person may be found unfit to plead and stand trial if they cannot understand the significance of telling the truth in court, comprehend the nature of the charge or instruct their solicitor.[5]
Reasonable satisfaction has not been defined by statute, but it is considered to mean ‘clear and convincing evidence’ is present to support the decision.[6] Magistrates are not restricted by the requirement that the dismissal must only occur in exceptional or extreme circumstances.[7]
In making a decision regarding dismissal, Magistrates may be provided a report from the Court Liaison Service outlining the defendant’s antecedents, mental health and cognitive disability.[8] Court Liaison Service is a part of Queensland Health and is a free service, however defendants may also engage independent experts to provide similar reports. If the person is unfit for trial but is likely to become fit within 6 months, the Magistrate may adjourn the hearing.[9]
Consequences of dismissal
If the Magistrate dismisses the charges, the person is discharged and cannot be further prosecuted for the relevant offending.[10]
Once the charge is dismissed, the Magistrate may refer the person to a disability services agency or the health department if they do not also have a mental illness.[11] The Magistrate can also make an ‘examination order’ if they are reasonably satisfied the person would benefit from being examined by an authorising doctor.[12] The doctor may then make or vary a treatment authority for the person and recommendations for the person’s voluntary treatment or care.[13] More information about treatment authorities can be found here.
This process is a useful tool for diverting people with mental illnesses and/or cognitive disability from the criminal justice system at an early stage. It assists the rehabilitation of offenders rather than simply punishing them where there are clear underlying issues to be resolved associated with their ‘criminal’ behaviour.
How Robertson O’Gorman can help
If you are unwell and cannot recall the circumstances around the alleged offending and/or have a mental health illness or cognitive disability Robertson O’Gorman can assist you by:
- Providing you with legal advice regarding your options, including applying for a dismissal of charges
- Assisting you in obtaining a report from the Court Liaison Service
- Referring you to an independent expert who can provide supporting documents for your application to dismiss your charges
- Corresponding with the prosecutor and advocating on your behalf in Court
Call us today on 3034 0000 or log an enquiry through our Free Case Appraisal.
[1] Mental Health Act 2016 (Qld) ss 22, 172; Magistrates Court Practice Direction No 1 of 2017.
[2] Mental Health Act 2016 (Qld) s 172; Justices Act 1886 (Qld) s 4.
[3] Mental Health Act 2016 (Qld) sch 2; Criminal Code (Qld) s 27.
[4] Mental Health Act 2016 (Qld) sch 2; Criminal Code (Qld) s 27; JKO v Queensland Police Service [2018] QMC 4.
[5] Mental Health Act 2016 (Qld) sch 2; R v Presser [1958] VR 45.
[6] RRK v Queensland Police Service [2019] QDC 176, [19].
[7] RRK v Queensland Police Service [2019] QDC 176, [17].
[8] Queensland Health, Court Liaison Service (Chief Psychiatrist Policy, 15 April 2020) 5
<https://www.health.qld.gov.au/__data/assets/pdf_file/0030/638454/cpp_court_liaison_service.pdf>.
[9] Mental Health Act 2016 (Qld) s 173.
[10] RRK v Queensland Police Service [2019] QDC 176, [18].
[11] Mental Health Act 2016 (Qld) s 174.
[12] Mental Health Act 2016 (Qld) s 177.
[13] Mental Health Act 2016 (Qld) s 177.
Part 1: Appeals Process in Queensland - Introduction, History and Queensland Process by Ella Scoles
Part 1 of a 3 part series explores the Appeals Process in Queensland. In this blog, we look at the history of the Appeals process and what happens in Queensland.
- Introduction
In Australia, the ability to seek relief from a criminal conviction comes in the form of a traditional post-conviction appeal, or, in very exceptional circumstances, through a pardon provision. These are both couched in state law.[1] While for a large amount of their histories, the various states and territories of Australia shared largely similar provisions relating to these two post-conviction limbs, more recently some discrepancies between the states have arisen. Traditionally, an Australian defendant (or appellant) only has one right of appeal, as is the case in Queensland, New South Wales, Northern Territory, Western Australia and the Australian Capital Territory. However, after a long campaign, in 2013, 2015 and 2019 respectively, South Australia, Tasmania and Victoria enacted legislation to allow for a second, or subsequent, right of appeal.[2] There is also a bill currently before the Western Australian Parliament that, if passed, will introduce a subsequent right of appeal in that State.
- A history: The current appeals process generally
Australia’s historical experience with colonialism meant that each of Australia’s states and territories (eventually) adopted the United Kingdom’s ‘common form’ appeals provisions after their creation in 1907.[3] This is because under the Australian Constitution, each state and territory is granted the powers to administer their own criminal law.[4] Therefore, the ability to seek post-conviction relief (both through an appeal or a pardon provision) is confined by the parameters of each state or territory’s respective legislative provisions.[5] Importantly, the Australian post-conviction framework, as with all areas of the law, is grounded in the principle of finality. This dictates that once the court enters a perfected judgement that matter is over and may not be reopened except in narrow circumstances.[6] In this respect, as an appeals court must ‘not attempt to enlarge its jurisdiction beyond what Parliament has chosen to give’,[7] the Australian jurisdiction has interpreted the right of appeal to be restricted to one appeal only. This means that if an applicant has already exhausted their one appeal, no matter how compelling the ground of appeal or fresh exculpatory evidence may be, an appeals court simply cannot hear a new appeal. The adherence to the principle of finality is so rigid that even Australia’s highest court – the High Court – is unable to hear a secondary application from a person who has exhausted their appeals options but claims to be wrongfully convicted and has evidence to prove this.[8] While there is a power for a defendant to apply for special leave to hear their case in the High Court,[9] this leave is unfortunately incredibly difficult to obtain.[10] Even then, if fresh, exculpatory evidence comes to light, the High Court has maintained the view that it is not able to hear such evidence.[11]
- The Queensland appeals process
In Queensland, the criminal appeals process is governed by Chapter 67 of the Criminal Code Act 1899 (Qld) (‘the Queensland Code’). Under the Queensland Code a person convicted of an offence on indictment may appeal to the Court of Appeal either: against the person’s conviction on any question of law;[12] with the leave of the Court against the person’s conviction on a question of fact, a mixed question of fact and law, or any ground the Court considers appropriate;[13] or with the leave of the Court against the person’s sentence.[14] This must occur within one calendar month of the verdict’s delivery,[15] meaning that appeals are almost always built upon the evidence that was available at the original trial. If the appeal is not lodged within one month, an applicant is able to apply to the Court for an extension to this time limit,[16] however the Court is generally only inclined to approve this extension if the potential appellant can show good reason for the delay, or, that to deny the opportunity to appeal would result in an obvious miscarriage of justice.[17] The Court is encouraged to accept an appeal if the Court is of then opinion that: the verdict of the jury should be set aside on the ground that it is unreasonable, the verdict could not have be supported having regard to the evidence, the trial judgment should be set aside on the ground that it contained a wrong decision on a question of law, or if there was in anyway a miscarriage of justice.[18] However, notwithstanding the occurrence of a substantial miscarriage of justice, the Court is not bound to allow the appeal even if one of the grounds above are made out.[19] If an appeal is allowed, the Court of Appeal either orders a new trial in such manner as it thinks fit or quashes the conviction and directs a judgment and verdict of acquittal to be entered.[20] However, while in theory a ‘discretion exists’ that allows the Court of Appeal to acquit an appellant upon appeal, as opposed to ordering a retrial, Courts are generally reluctant to do so in an effort to not ‘usurp’ the functions of a jury.[21] Indeed, a Court of Appeal will ordinarily only enter a verdict of acquittal if it is ‘held that the case considered as a whole required a jury to acquit the appellant because it must entertain a reasonable doubt or that a conviction would necessarily be unsafe’.[22]
If, however, the traditional appeals process fails, and a person still maintains their innocence, then that person can appeal to the Queensland Governor for a pardon.[23] Couched in the discretionary power of the common law, these ‘petitions of mercy’ or ‘pardon’ provisions grant the Queensland Governor the ability to refer either some or the whole of the case to the Court of the Appeal.[24] If successful, a pardon does not erase the conviction in its entirety, instead it simply removes any punishments or penalties the person has endured or is enduring because of the conviction.[25] However, the context in which this unique post-appeals process operates is uncertain,[26] especially since the granting of pardons is exceptionally rare in Australia.[27] Generally, it is agreed that the discretion granted to the Governor is wider than that of a court in that they are ‘unconfined by any rules or laws of evidence, procedure, and appellate conventions and restrictions.’[28] Therefore, issues not usually available to courts to consider in their decision making process,[29] as well as sources of information that may not overcome the laws of evidence in criminal trials,[30] are able to be taken in account by the Governor.
[1] See the following for appeals provisions: Criminal Appeal Act 1917 (NSW) s 5(1); Criminal Code Act 1899 (Qld) s 668D(1); Criminal Code Act 1983 (NT) s 410; Criminal Law Consolidation Act 1935 (SA) s 352(1); Criminal Code Act 1924 (Tas) s 401(1)(a); Supreme Court Act 1933 (ACT) s 37E; Criminal Appeals Act 2004 (WA) s 7; Criminal Procedure Act 2009 (Vic) s 274; see the following for petitions of mercy provisions: Crimes Act 1914 (Cth) ss 16–22A; Crimes (Appeal and Review) Act 2001 (NSW) ss 76–7; Crimes Act 1958 (Vic) s 584; Sentencing Act 1995 (WA) pt 19; Criminal Code Act 1924 (Tas) s 419; Criminal Code Act 1983 (NT) s 431; Crimes (Sentence Administration) Act 2005 (ACT) pt 13.2.
[2] Criminal Code Amendment (Second or Subsequent Appeal for Fresh and Compelling Evidence) Act 2015 (Tas); Justice Legislation Amendment (Criminal Appeals) Bill 2019 (Vic); Originally the Statutes Amendment (Appeals) Act 2013 (SA) enacted s 353A of the Criminal Law Consolidation Act 1935 (SA) which allowed for a subsequent right of appeal. On 5 March 2018 the Summary Procedure (Indictable Offences) Amendment Act 2017 commenced and section 11 of that Act repealed s 353A of the Criminal Law Consolidation Act 1935 (SA). Section 353A was re-enacted in identical form as Criminal Procedure Act 1921 (SA) s 159.
[3] See, eg, Mas Rivadavia v The Queen (2008) 236 CLR 358, 382 (French CJ), ‘it must be accepted that the question will ordinarily fall for consideration in the application of statutory language, in this case the common form provision for criminal appeals reflected in s 6(1) of the Criminal Appeal Act [1907 (UK)]’.
[4] Note that the Commonwealth of Australia Constitution Act 1901 (Cth) does not confer on the Commonwealth any express powers to legislate in regards to criminal law. While this does not completely bar the Commonwealth from creating criminal provisions, as all state constitutions have relevant powers allowing them to legislate on criminal matters, it has generally been accepted that states must create and administer their own criminal law, see Attorney-General’s Department, ‘The Constitution’, Federal Register of Legislation (Web Page, 1 January 2012) <https://www.legislation.gov.au/Details/C2005Q00193> viii-ix; Justice Michael Kirby, ‘A New Right of Appeal as a Response to Wrongful Convictions: Is it Enough?’ [2019] 43 Criminal Law Journal 299, 299.
[5] See above n 1.
[6] See D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 (‘D’Orta-Ekenaike’).
[7] R v Edwards (No 2) [1931] SASR 376, 380.
[8] Justice Michael Kirby, ‘A New Right of Appeal as a Response to Wrongful Convictions: Is it Enough?’ [2019] 43 Criminal Law Journal 299, 300.
[9][9] Contained in Judiciary Act 1903 (Cth) s 35A.
[10] David Hamer, ‘Wrongful Convictions, Appeals, and the Finality Principle: The Need for a Criminal Cases Review Commission’ (2014) 37(1) UNSW Law Journal 270, 286.
[11] Mickelberg v R (1989) 167 CLR 259, 264, 298. This is owing to the High Court’s interpretation of the appellate powers conferred to it via the section 73 of the Australian Constitution. This appellate jurisdiction has been interpreted to exclude the original jurisdiction of states. Therefore, as fresh evidence requires ‘an independent and original decision’ to occur, and as this decision has been interpreted to fall within the remit of the jurisdiction of state courts, fresh evidence is not capable of being heard in the High Court. It should be noted that if a matter concerns fresh, exculpatory evidence the High Court does have the power to refer the matter back to the state courts to consider admitting that fresh evidence who then may refer the matter back once again to the High Court with this evidence admitted. However, this is unfortunately infrequently used, see Justice Kirby (n 8) 300.
[12] Criminal Code Act 1899 (Qld) (‘The Queensland Code’) s 688D(1)(a).
[13] Ibid s 688D(1)(b). There is also much debate over whether this requirement for leave is itself a deficiency of the Australian appeals process, see: Chris Corns, ‘Leave to Appeal in Criminal Cases: The Victorian Model’ (2017) 29(1) Current Issues in Criminal Justice 39. While the parameters of this essay mean that only the most prominent arguments relating to Australia’s post-conviction mechanisms can be discussed, this should still be noted as an area of debate.
[14] The Queensland Code ss 668E(3), 688D(1)(c), 671(1). Usually, this occurs on the basis the sentence was ‘manifestly inadequate’ in that the sentence was too harsh in light of the circumstances of the case. When an appeal is being made against a sentence, the Court of Appeal has the power to both increase or decrease the sentence if it is of the opinion that some other sentence is warranted at law and should have been passed.
[15] The Queensland Code s 671(1).
[16] Ibid s 671; Criminal Practice Rules 1999 (Qld) r 65(3) (Form 28).
[17] Caxton Legal Centre, ‘Appeal Against Conviction’ (Web Page, 21 December 2016) <https://queenslandlawhandbook.org.au/the-queensland-law-handbook/offenders-and-victims/court-processes-in-criminal-matters/appeals-against-conviction/>.
[18] The Queensland Code s 668E(1).
[19] Ibid s 668E(1A). There is also much debate over whether this ‘proviso’ allowing a court to effectively accept an error so long as it is not substantial is a major defect in Australia’s appeals framework, see: Catherine Penhallurick, ‘The Proviso In Criminal Appeals’ (2003) 27(3) Melbourne University Law Review 800. While the parameters of this essay mean that only the most prominent arguments relating to Australia’s post-conviction mechanisms can be discussed, this should still be noted as an area of debate.
[20] The Queensland Code ss 669, 668E(2).
[21] Martens v Commonwealth [2009] FCA 207, 127-8.
[22] Ibid 128.
[23] See above n 1.
[24] The Queensland Code s 672A.
[25] R v Foster [1985] QB 115, 118; Eastman v DPP (ACT) (2003) 214 CLR 318, 350-1.
[26] Sue Milne, ‘The Second or Subsequent Criminal Appeal, the Prerogative of Mercy and the Judicial Inquiry: The Continuing Advance of Post-Conviction Review’ (2015) 36(1) Adelaide Law Review 211, 217.
[27] See below n 94.
[28] Mallard v The Queen (2005) 224 CLR 125, 129.
[29] Such as public concern regarding the proprietary of the conviction, see: Mickelberg v R (1989) 167 CLR 259.
[30] Such as ‘reports in the media, a petition presented to Parliament, a representation from a parliamentary colleague, or perhaps hearsay evidence as to the reliability of a complainant’, see: Martens v Commonwealth [2009] FCA 207, 128-9.
Who is “the occupier” of a vehicle under section 129(1)(c) Drugs Misuse Act 1986 (Qld)? by Hannah Pugh
Who is “the occupier” of a vehicle under section 129(1)(c) Drugs Misuse Act 1986 (Qld)?
“The occupier” in section 129(1)(c)
Section 129(1)(c) of the Drugs Misuse Act 1986 (Qld) deems possession of drugs found at a premises on “the occupier” of that premises.
‘The occupier’ is not defined in the Act but rather is a question of fact determined on a case-by-case basis by the Courts.
The following points have been considered relevant to determining who “the occupier” is under section 129(1)(c):
- Ownership of the place where drugs are found is not enough to establish occupation of it.[1]
- Mere presence in a place is not enough to establish occupation of it. Rather, occupation is commonly treated as “being dependent upon control, in the sense of being able to exclude strangers”.[2] The occupier of a place will thus have the ability to exclude strangers from it.[3]
- The occupier of a place is distinguished from an occupier of a place. The occupier of a place will purport to exercise a right to exclude others from it. An occupier of a place does not purport to exercise that right.[4]
- The occupier of a place must make use of that place, and have sufficient control of the place to facilitate that use.[5]
- A person may be the occupier of only one part of a place.[6]
“The occupier” of a vehicle?
A vehicle is a ‘place’ under section 129(1)(c)[7] and as such, the same factual considerations apply to the question of occupancy.
In R v P[8] two men, ‘N’ and ‘P’, were charged with possession of drugs found in a parked van. The van was parked at P’s house. N had the keys to the van and admitted to owning it. CCTV footage however showed both men travelling in the van before it was parked at P’s house. Specifically, the footage showed that P drove the van before it was parked. N’s possession of the keys indicated that N took over driving at some point before the van was parked. In coming to the conclusion that P had “at least joint control” of the van, Justice Applegarth referred to the evidence of P driving it as being P’s “earlier presence and control of the van”.[9]
In R v Sellwood[10] police intercepted a car whilst it was parked in a driveway. The appellant was the driver of the car. A second man was in the passenger seat of the car and had been in the car for about 30 seconds before police interception. Drugs were found “leaning against the center console of the car… on the hump, just more over to the passenger side… but leaning against the center console itself”.[11] The passenger was found with a significant amount of cash on him. The inference was that there was to be a drug deal. The driver of the car was found to the occupier of the car. This finding was upheld on appeal.
Conclusion
R v P[12] and R v Sellwood[13] seem to suggest that the starting point to an inquiry of this kind is that the driver, not the passenger, will be deemed “the occupier” of a vehicle.
Although the question of occupancy will turn on the individual facts of a case, taking into account the elements of use and control as outlined above, this appears the logical starting point.
[1] R v Smythe (1997) 2 QR 223.
[2] Thow v Campbell [1996] QCA 522 at 5, citing Council of the City of Newcastle v Royal Newcastle Hospital (1959) 100 CLR 1 at 4.
[3] Thow v Campbell [1996] 522; R v Ma [2019] QCA 1.
[4] R v Straker [1997] QCA 113 at 5.
[5] Ibid at 8.
[6] R v Smythe (1997) 2 QR 223.
[7] Drugs Misuse Act 1986 (Qld), s 4.
[8] R v P [2016] QSC 050.
[9] At [26].
[10] [2011] QCA 70.
[11] At [4].
[12] [2016] QSC 050.
[13] [2011] QCA 70.
PPRA and Non-Recording of Evidence - R v Jeffers and Morcom by Ella Scoles
INTRODUCTION
The Supreme Court of Queensland recently published an interesting pre-trial ruling in relation to the admissibility of improperly-obtained evidence.
In R v Jeffers and Morcom [2020] QSCPR 29 the Supreme Court exercised its discretion to exclude evidence that fell short of the legislative requirements in the Police Powers and Responsibilities Act 2000 (Qld) (‘the PPR Act’).
This case concerned two co-defendants, Mr Morcom and Mr Jeffers. They stood accused of attempted murder and burglary at the dwelling of Alan Kevin Black.
On the 25th of January 2018, Mr Black was attacked and seriously wounded. One of the wounds inflicted was a cut to his throat. He was also stabbed.
Mr Black passed away from unrelated matters prior to the matter being heard before the Court.
The Defence wished to exclude three separate conversations Mr Jeffers had with police. Each of these conversations contained various inculpatory admissions made by Mr Jeffers. The relevant conversation, for which the Court exercised its discretion to exclude evidence, concerned a conversation between Mr Jeffers and two Police Officers. The conversation occurred in the ‘administration area’ of the Nambour Police Station.
Whilst other police were interviewing Mr Morcom, Mr Jeffers remained in the company of the two Officers. Both of those Officers said that, at this point, Mr Jeffers volunteered: ‘Okay. I am going to tell you everything. I stabbed him. I stabbed him to teach a lesson for poisoning me…’
It was alleged he then went on to explain in detail how and why he poisoned Mr Black. This included details as to the amount of pressure used to wound the victim’s neck as well as the strategic placement of the stab wounds on Mr Black’s body.
This conversation was not recorded by the Officers involved. In one Officer’s case, a record of the conversation was constructed two days after the events. The other’s was not made till two months after the alleged conversation. At no point was the occurrence of this conversation put to Mr Jeffers nor was anything supposedly said in conversation endorsed by him.
Of importance, the Officers involved asserted that this conversation took the form of a monologue and did not involve a single question being asked by them.
WHAT DOES THE LAW SAY – THE OBLIGATIONS OF POLICE REGARDING CONFESSIONS AND INTERVIEWS OF SUSPECTS AND THE CONSEQUENCES OF A BREACH
By virtue of the PPR Act, police officers have certain obligations they must adhere to when conducting their duties. One such obligation is that all questioning of a relevant person (including a suspect) must be electronically recorded if practicable (section 436 of the PPR Act). If electronic recording is not practicable, police must arrange for any confession or admission of guilt to be recorded in writing (section 437 of the PPR Act).
Other safeguards (e.g. the presence of support people) are included in the PPR Act to regulate police questioning of indigenous people (section 420 of the PPR Act), children (s 421 of the PPR Act), people with impaired capacity (s 422 of the PPR Act) or intoxicated persons (s 423 of the PPR Act).
What if police fail to adhere to these obligations?
Section 130 of the Evidence Act 1997 (Qld) preserves the court’s common law ability to exclude evidence from a criminal proceeding if they are satisfied that it would be unfair to that person to admit the evidence. The common law test in the context of admissions is that, in determination of all the circumstances of the case, something is unfair if:
- There is an unacceptable risk that the jury may use the evidence prejudicially; and
- The evidence is not probative (i.e. reliable).
Central to the fairness discretion is the right of an accused to a fair trial. The relationship between these two concepts was discussed in depth by the High Court in Dietrich v The Queen (1992) 177 CLR 292:
The expression ‘fair trial according to law’ is not a tautology. In most cases a trial is fair if conducted according to law, and unfair if not. If our legal processes were perfect that would be so in every case. But the law recognizes that sometimes, despite the best efforts of all concerned, a trial may be unfair even though conducted strictly in accordance with law. Thus, the overriding qualification and universal criterion of fairness!
Speaking generally, the notion of "fairness" is one that accepts that, sometimes, the rules governing practice, procedure and evidence must be tempered by reason and common sense to accommodate the special case that has arisen because, otherwise, prejudice or unfairness might result.
It should be noted that there is much debate over both the kind of evidence the discretion applies to as well as the scope of the discretional test.
By contrast, it is generally accepted that evidence beyond that of confessions/admissions (i.e. what is deemed ‘real evidence’) cannot be excluded solely on considerations of fairness to the accused. Rather, this evidence is excluded if it overcomes the ‘public policy’ test. This requires the balancing of two competing considerations: the desirable goal of bringing wrongdoers to conviction, against the undesirable effect of curial approval or even encouragement being given to unlawful conduct of law enforcement officers.
It is clear that each of these discretions overlap considerably, despite them being separate powers capable of being enlivened by the court.
THE DECISION OF THE COURT IN R V JEFFERS AND MORCOM
In deciding the application before the court, Callaghan J noted that judgement of R v Swaffield; Pavic v R [1998] HCA 1 was particularly applicable to the circumstances. Particularly, [91] states:
In the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused’s freedom to choose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned, the Court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the Court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted. There may be no unfairness involved but the Court may consider that having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards. This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations
Callaghan J noted that the above consideration clearly arises in circumstances where police officers are required to electronically record conversations such as the one in question under the Act.
While the Prosecution sought to excuse the failure to electronically record the conversation on the basis that Mr Jeffers was not officially being ‘questioned’ by police, Callaghan J rejected this argument. He reasoned that ‘there is nothing about Mr Jeffers or his speech pattern which suggests that he might have delivered a confessional soliloquy of the kind suggested’.
Thus, it was held the conversation alleged to have occurred was one that came under the remit of the Act and therefore should have been recorded. The Court was also not prepared to accept that the breach of the Act was justified, stating that ‘the failure to record the conversation defied elementary common sense’. While His Honour noted that there may have been some reasonable delay at the beginning of the conversation and it would have been acceptable for this to go unrecorded, ‘once [Mr Jeffers] embarked upon the exercise of telling police about his involvement in the attack on Mr Black, anyone who was concerned to ensure the reliability of any evidence to be given about those admissions ought to have started making a record of some kind. There were plenty of options available in the circumstances - all parties were in a police station’.
CONCLUSION
Excluding improperly obtained admissions to police is a complex and intellectually challenging task.
R v Jeffers and Morcom [2020] QSCPR 29 provides an example of when a departure by police from their lawful obligations will attract the court’s discretion for exclusion. It adds to the mountainous jurisprudence of this complicated and difficult area of evidentiary law.
Restorative Justice Series – Part 3. Restorative Justice Processes
Restorative Justice Series – Part 3. Restorative Justice Processes
The previous instalment in this series discussed juvenile sentencing principles and sentencing options. Particular emphasis was placed on the breadth of available sentencing options for courts that are aimed at rehabilitating children and diverting them from the criminal justice system.
This blog will look specifically at restorative justice processes, their aims and consequences. Both police and court referrals to restorative justice processes will be discussed.
Background
Restorative justice is an internationally recognised response to criminal behaviour where the impact on society, and harm caused to the victim, family relationships and community are considered in depth. This is opposed to viewing criminal behaviour as simply an act of breaking the law, and represents a more holistic approach to justice.
A restorative justice conference is a meeting between a child who has committed a crime and the people most affected by the crime to discuss what happened, the effects of the offence, and how best to repair the harm caused to the victim. This requires active participation by the child, distinguishing the process from traditional justice responses.
The central purpose of this process is to provide a safe environment for everyone involved to talk about what happened and steps that can be taken to better things.
The restorative justice process can be entered at two stages:
- If a police officer refers an offence for the process after a child admits to committing the offence
- If the court refers an offence for the process after a child pleads guilty in court, or a child is found guilty after they pleaded not guilty
Police diversion
If a child admits to an offence and is willing, police officers can refer them to a voluntary conference or an alternative diversion program (see below regarding alternative diversion programs).[1] Police have wide discretion as to which offences they can refer to the restorative justice process. Referrals can be made if:[2]
- The child indicates a willingness to comply with the referral
- A caution is inappropriate
- The restorative justice process would be more appropriate than prosecuting the child
- The nature of the offence
- The harm suffered by anyone because of the offence
- Whether the interests of the community and the child would be served by having the offence considered or dealt with through a restorative justice process.
Prior to engaging in the process, the police must inform the child about the process and the consequences if they fail to participate properly. The restorative justice process is run by an independent and accredited convenor. The aim of the conference is for the child and other concerned persons to consider or deal with the offence in a way that benefits all concerned.[3]
The following people are allowed to attend and participate in the conference:[4]
- The child
- The victim
- The convenor
- The child’s parent
- At the child’s request, their lawyer, an adult member of their family or another adult
- If requested by the victim, the victim’s lawyer, an adult member of their family or another adult
- Another person approved by the convenor
The conference process involves a discussion of the offence, the impact and consequences for those affected, and the ways in which the child can repair the damage or harm caused to the victim. The convenor’s role is to ensure a fair outcome is reached for all parties and that no undue influence or pressure is put on anyone.
Court referral or order
Courts may refer children to the restorative justice process when:
- Dismissing the charge entirely when a child pleads guilty but applies for dismissal on the basis that police should have referred them to restorative justice
- Considering referral instead of sentencing if a child pleads guilty (this is required under the Youth Justice Act 1992 (Qld))[5]
- Considering referral if the child is found guilty (this is required under the Youth Justice Act 1992 (Qld))[6]
- Sentencing the child, such that attending a restorative justice process is considered to be a supervised community-based order (for more information on available orders, read the previous blog in the series)[7]
In considering whether a referral is appropriate, the court must consider: [8]
- The nature of the offence
- Harm suffered by anyone because of the offence
- Whether interests of the community and the child would be served at the restorative justice conference
Prior to making the referral, the court must also be satisfied that:
- The child has been told about and understands the process, and has agreed to participate
- The child is a suitable person to participate in the process
All other elements of restorative justice processes when ordered or referred by the court are the same as outlined above.
Consequences of restorative justice conferences
Conferences are conducted on a ‘without prejudice’ basis, meaning anything said during the conference cannot be used outside it or in any legal proceeding.[9] This means that anything said by the defendant cannot be used against them in a criminal proceeding against them.
If the conference is successful, a restorative justice agreement may be made. This may involve:
- Making an apology to the victim, orally or in writing
- Performing voluntary or community work
- Repair of or payment for any damage caused
The convenor must ensure that the agreement is not unreasonable or more onerous than if a court had dealt with the matter.
Police diversion
If the conference is successful, the child cannot be prosecuted for the offence unless the Youth Justice Act 1992 (Qld) states otherwise.[10] However, if the conference is not successful or if the child breaches the restorative justice agreement made at the conference, the police can:[11]
- Take no action
- Caution the child
- Refer the offence to another restorative justice process
- Start a court proceeding against the child for the offence.
Court order or referral
If the referral is made by a court and the child does not complete the agreement, the matter must be brought back to the court. The court may then take no further action, allow more time for the child to comply with the agreement, or sentence the child. If the child does not participate, denies responsibility, or an agreement cannot be reached, the matter must be brought back to court for sentence.
Where the court referred the child to restorative justice conferencing to assist in sentencing, a copy of the agreement and information regarding the child’s compliance must be given to the court so that it can be taken into account in the sentence.[12] The court can then order that the child comply with the remainder of the agreement, and this can become whole or part of the sentence.[13]
Alternative diversion programs
Alternative diversion programs are available where a conference is not possible even if the child responsible is willing to participate. Referrals can be made in the same process as restorative justice conferences. The program is similarly used to help children understand the harm caused and take responsibility for the offence through various activities, including:[14]
- Remedial actions
- Activities to strengthen the child’s relationship with their family or community, and
- Educational programs.
The program must be designed to help the child to understand the harm caused by their behaviour, and allow the child an opportunity to take responsibility for the offence committed by the child.[15] The program must also ensure the child is not treated more severely for the offence than if the child were sentenced by a court or in a way that contravenes youth sentencing principles.[16] Finally, this program must be in writing and be signed by the child.[17]
Alternative diversion programs are conducted on a ‘without prejudice’ basis, meaning anything said during the program cannot be used outside it or in any legal proceeding.[18] This means that anything said by the defendant cannot be used against them in a criminal proceeding against them.
Family and community involvement
In keeping with the objectives of the Youth Justice Act 1992 (Qld), restorative justice processes encourage families of child offenders to actively participate in the conference, help both their child and the victim understand each other and the consequences of their actions, and identify ways to help their child avoid trouble in the future.
Restorative justice processes also allow for cultural and community input to ensure the conference is appropriate to the specific community. For example, members of Aboriginal and Torres Strait Islander local justice groups or community elders may be invited to participate.
This recognises the role of families and communities in ensuring children feel safe, a sense of belonging and connection, and respected.
Conclusion
The restorative justice process provides for effective means of diverting children from the criminal justice system while ensuring children take responsibility for their actions and victims feel heard and respected.
The effectiveness of this process is evident given 77% of children and young people who engaged in the program did not re-offend or showed a decrease in the magnitude of their re-offending.[19] 89% of victims were also satisfied with the outcome of the conference, and 70% believed the process would help them manage the effects of crime.[20]
Lawyers must understand how the restorative justice process operates and ensure that juvenile clients are provided with sufficient information and support in deciding whether to utilise the process.
[1] Youth Justice Act 1992 (Qld) ss 31(2)-(3) (‘YJ Act’).
[2] YJ Act ss 22(3)-(4).
[3] YJ Act s 33.
[4] YJ Act s 34(1).
[5] YJ Act s 162(1).
[6] YJ Act s 162(2).
[7] YJ Act s 175(1)(db).
[8] YJ Act s 163, 192A.
[9] YJ Act s 40.
[10] YJ Act s 23(2).
[11] YJ Act s 24(3).
[12] YJ Act s 165.
[13] YJ Act s 175(1)(da).
[14] YJ Act s 38(1).
[15] YJ Act s 38(2).
[16] YJ Act s 38(3).
[17] YJ Act s 38(4).
[18] YJ Act s 40.
[19] Queensland Government, Youth Justice Strategy 2019-2023 (2021) 9 <https://www.cyjma.qld.gov.au/resources/dcsyw/youth-justice/reform/strategy.pdf>.
[20] Ibid.
The Sovereign Citizen Dilemma by Ella Scoles
Solicitor Ella Scoles writes about the Sovereign Citizen Dilemma in this QLS Proctor article:
The COVID-19 pandemic has brought about a myriad of challenges to our legal system – balancing human rights, substantive and procedural law reforms, an uptake in remote appearances and maintaining access to justice for vulnerable Queenslanders in the face of this dramatic change. Perhaps one of the more distracting consequences of the pandemic has been the increasing frequency in which ‘sovereign citizen’ arguments are being mounted against our law enforcement officials and in courts.
Regard the full article here: https://lnkd.in/geRvNGjD
Robertson O’Gorman Principal recognised nationally in 2021 Doyle’s List for White Collar and Corporate Crime Professionals and Leading Criminal Defence Lawyers
Robertson O’Gorman Principal recognised nationally in 2021 Doyle’s List for White Collar and Corporate Crime Professionals and Leading 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 2021 rankings are in and we congratulate our Principal, Dan Rogers for being recognised nation-wide as Leading in the Leading Criminal Defence Lawyer Category (Australia), in addition to national recognition in the White Collar Crime, Corporate Crime and Regulatory Investigations Category (Australia).
Congratulations also to Terry O'Gorman; another one of our team awarded nation-wide recognition as a Recommended - Leading Criminal Defence Lawyer (Australia). 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.
An analysis of the Bill Cosby decision by Ella Scoles
Yesterday the world learnt that Bill Cosby’s conviction for three counts of aggravated indecent assault was overturned by the Pennsylvanian Supreme Court. In essence, the Court ruled that ‘when a prosecutor makes an unconditional promise of non-prosecution, and when the defendant relies upon that guarantee to the detriment of his constitutional right not to testify, the principle of fundamental fairness that undergirds due process of law in our criminal justice system demands that the promise be enforced’.
To make sense of that ruling, we must delve into the history of the Cosby matter.
In 2005, Montgomery County District Attorney (‘DA’) Bruce Castor learned that Andrea Constand had reported that William Cosby had sexually assaulted her in 2004. In evaluating the likelihood of a successful prosecution of Cosby, the DA foresaw difficulties with Constand’s credibility as a witness based, in part, upon her decision not to file a complaint promptly. Other foreseeable issues also included the fact that there no corroborating evidence to Constand’s accusations. Because of these considerations, DA Castor concluded that there was insufficient credible and reliable evidence to charge Cosby. This was, unless he confessed.
Running alongside this criminal complaint was also a civil action. Like in criminal trials, a witness or accused is open to prosecution for the crime of perjury if they lie during a civil hearing.
In the United States, when a deposition is taken in a civil case, the Constitutional right against self-incrimination allows a witness to refuse to answer any questions that might lead to criminal liability. But if there is no possibility of a criminal prosecution, then an individual cannot invoke that right and must answer questions. Cosby relied upon the DA’s declination and proceeded to provide four sworn depositions. During those depositions, Cosby made several incriminating statements.
However, DA Castor’s successors did not adhere to his decision not to prosecute, and decided to pursue Cosby notwithstanding that prior undertaking. Those inculpatory admissions were used in the subsequent criminal action against Cosby. The Supreme Court held that because Cosby had relied upon the undertaking of DA Castor, and that this reliance was ultimately to his detriment, to deny him the benefit of that undertaking was an ‘affront’ to the fundamental notion of fairness in a criminal trial. On that basis the Supreme Court vacated Cosby’s conviction and sentence.
Obviously, the decision is a thought provoking one. It suggests that when an accused suffers detriment due to a promise of a prosecutor, and that detriment is contrary to a longstanding legal doctrine such as the right to silence, the conviction itself may be unsound. This is not to say that the fact of the accused’s guilt is in question. Rather, the conviction was unsafe due to the process through which the inculpatory evidence was obtained.
In Australia, the jurisprudence concerning what constitutes an unsatisfactory or unsafe conviction is vast. While the Cosby decision is no doubt limited by the unique constitutional position of the United States, it's relevance to the Australian jurisdiction, at the very least, demonstrates the fundamental importance the common law legal system places in long cherished principles such as fairness and the right to silence.
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 AM. QLS 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.
FIVE ACCREDITED SPECIALISTS
Robertson O’Gorman Solicitors now has five accredited criminal law specialists.
As the leading Queensland Criminal Law firm, we are pleased to congratulate another two of our remarkable team of criminal law specialists! Dominic Brunello and Remy Kurz are the latest of our team to be awarded Queensland Law Society Specialist Accreditation in the field of Criminal Law. Dominic also won the award for the highest achiever in the criminal law stream.
In another fantastic achievement, Terry O’Gorman has been awarded the prize for outstanding accredited specialist. This award recognises Terry’s outstanding contributions as a long-standing accredited specialist in criminal law.
The Specialist Accreditation Scheme gives solicitors an opportunity to formally recognise their high level of competency and knowledge in their chosen area of legal practice. It also provides excellent guidance to the public and the profession as to which legal practitioners are truly leaders in their area of expertise.
This means that the team at Robertson O’Gorman Solicitors will be comprised of five practitioners who hold Specialist Accreditations in Criminal Law. This is a truly remarkable panel of expertise and skill and aligns with our culture of excellence and true commitment to superior customer service. We are the only Criminal Law Firm in Queensland with this large number of accredited specialists.
For more information on any of Robertson O’Gorman’s services or to read more about our team – please visit our website https://www.robertsonogorman.com.au/
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.
PROPOSED MEDIA SHIELD LAWS
The Queensland Government and Opposition have jointly committed to develop shield law that protect journalists from being compelled to reveal their confidential sources. The proposal comes after the Attorney-General Yvette D’Ath withdrew legislation that would impose jail terms or significant fines on journalists who report on corruption allegations made to the CCC during state elections.
Queensland is the only state in Australia that has not enacted these laws, and this commitment has been welcomed by various groups like the Media, Entertainment and Arts Alliance (MEAA), as well as lawyers like Terry O’Gorman and Justin Quill. Without the proposed shield, journalists are exposed to prosecution for contempt if they refuse to reveal their sources.
Terry O’Gorman spoke to the Courier Mail regarding the proposed laws, stating that while these laws were long ‘overdue’, the drafting of the legislation should not be left to the government due to the risk of politicisation. The position is that the government of the day should not be drafting legislation that is likely to be utilised to criticise the government itself.
Mr O’Gorman further commented that it is necessary that any proposed legislation account for the fact that journalists should be required to disclose their sources in certain criminal cases where it is ‘in the interest of justice’.
Associations like the MEAA continue to lobby for uniform legislation at the Commonwealth level that addresses the existing disparities between state shield laws.
CORONAVIRUS, THE LAW AND COMPLIANCE WITH SELF-ISOLATION AND QUARANTINE RULES
CORONAVIRUS, THE LAW AND COMPLIANCE WITH SELF-ISOLATION AND QUARATINE RULES
We are all well aware that more and more of us are being told to self-isolate due to the spread of novel coronavirus (COVID-19). Governments are readily imposing shutdown measures across Australia to curb the spread of the virus, with the closure of borders, the banning of gatherings, forced closure of pubs and clubs, entertainment venues, gyms, indoor places of worship, sporting venues, you name it.
What we have also been noticing is that some people have not been taking these directions as seriously as others.
In Italy for example, more than 40,000 have been charged for violating the lockdown since the national quarantine was imposed on 9 March 2020.
In Australia, we are seeing specific police taskforces assembled dedicated to enforcing the shutdown measures. A multiagency taskforce was announced for Queensland with police commencing compliance checks in entertainment precincts.
So where do these powers come from?
Biosecurity Act 2015 (Cth)
On 18 March 2020, the Governor-General declared that a human biosecurity emergency exists. This declaration was made under section 475 of the Biosecurity Act 2015 (Cth) and is the first time that the powers under the Biosecurity Act have been used.
The Biosecurity Act provides the Health Minister with very broad powers, including any requirement that he or she is satisfied is necessary to prevent or control the emergence, establishment or spread of the declaration listed human disease in Australia.[1] These powers are subject to safeguards that the requirement must be “likely to be effective”, is “appropriate and adapted” to its purpose and is “no more restrictive or intrusive than is required in the circumstances”.[2]
This includes the power to impose general requirements on people entering or leaving specific places, to restrict or prevent the movement of people within places and to evacuate places.[3]
Further, specific officers can make a “human biosecurity control order”[4] to require individuals to do or not do certain things, including:
- Requiring a person to provide their contact information and health details including body samples for diagnosis;
- Restricting a person’s behavior including restrictions on movement;
- Requiring a person to isolate from the community for specific periods of time;
- Requiring a person to undergo other risk-minimisation interventions including wearing protective equipment;
- Requiring a person to undergo decontamination and/or undertake treatment. [5]
There is no requirement for a person to actually be infected or for the officer to even reasonably believe or suspect that a person is or may be infected for a control order to be issued.[6]
If a person does not consent to a control order, the Biosecurity Act provides a power for the Director of Human Biosecurity (the chief medical officer) to compel them to comply.[7]
What happens if you don’t comply?
A person who fails to comply with any requirement or direction made pursuant to the powers under the Biosecurity Act may be charged with a criminal offence.
Offences for failing to comply carry maximum penalties of five years imprisonment or 300 penalty units (approximately $63,000), or both.[8]
The same penalties apply to a person who fails to comply with a control order.[9]
In some cases, a person may be detained by police, particularly in the instance that a person refuses to comply with a requirement to stay at a particular place to isolate themselves.[10] Escaping from detention is a criminal offence and the same penalties above apply.[11] However, the Attorney-General has stated that detention of individuals is intended as a “last resort”.
Public Health Act 2005 (Qld)
There are similar separate ‘emergency powers’ under State law allowing an officer responding to a declared public health emergency to direct a person to do, or refrain from doing, certain things.[12]
These powers are in line with the National law and include directing people to stay in their home, or another isolation area. It also includes directions to an owner or operator of a business to close or limit visitor access for a specified period.
It is criminal offence for a person not to comply with the requirement or direction. The maximum penalty is 100 penalty units (approximately $13,345).[13] Further, an officer may under certain circumstances take action to enforce the requirement or direction.[14]
There is no doubt that these measures at both the National and State level have the potential to significantly impact upon a person’s liberty, including the obvious restrictions on movement and self-isolation requirements.
The next blog in this series will discuss the human rights and civil liberties concerns stemming from these extensive powers under Commonwealth and State law.
[1] Biosecurity Act 2005 (Cth), ss 477, 478.
[2] Biosecurity Act 2005 (Cth), ss 477(4), 478(3).
[3] Biosecurity Act 2005 (Cth), s 477(3).
[4] Biosecurity Act 2005 (Cth), s 60.
[5] Biosecurity Act 2005 (Cth), ss 85-97.
[6] The officer does have to be satisfied as to the principles provided for in Biosecurity Act 2005 (Cth), s 34.
[7] Biosecurity Act 2005 (Cth), s 72.
[8] Biosecurity Act 2005 (Cth), s 479
[9] Biosecurity Act 2005 (Cth), s 107.
[10] Biosecurity Act 2005 (Cth), s 103.
[11] Biosecurity Act 2005 (Cth), s 106.
[12] Public Health Act 2005 (Qld), s 345.
[13] Public Health Act 2005 (Qld), s 346.
[14] Public Health Act 2005 (Qld), s 345(3).
Corporate surveillance and Facebook
Following a report in the Daily Mail (Australia) in late December 2019 that Facebook is watching Australians as they shop at physical stores to target them with ads thanks to shops sharing data with Facebook, it has been claimed that under current Australian laws there is no way for the average Australian to escape this form of corporate surveillance.
In an interview with Channel 10 on Monday, 6 January 2020 Terry O’Gorman said that while theoretically users can opt out of being targeted by Facebook in this manner by selecting ‘ads’ in Settings in reality a significant law change was needed on a national level to deal with the increasing surveillance of Australians by tech giants such as Facebook and Google.
Terry O’Gorman told Channel 10 that in July 2019 a final report from Australia’s competition watchdog (the Australian Competition and Consumer Commission), Federal Treasurer Josh Frydenberg is now considering the ACCC’s proposal for a significant crackdown on Google and Facebook in Australia.
Terry O’Gorman told Channel 10 that tech companies are collecting personal data from the average Australian through the widespread possession and use of mobile phones without people knowing that is occurring.
US technology firm Oracle indicated recently that users are unwittingly uploading a gigabyte of data for Google to analyse.
Terry O’Gorman told Channel 10 that the legislation that will flow from the Australian Competition and Consumer Commission’s July 2019 report should be expanded to ensure that there are significantly increased penalties for breaches of privacy laws by tech giants.
Mr O’Gorman told Channel 10 that Facebook is currently the subject of a US investigation in relation to an alleged breach of US anti-trust law.
In Australia the head of the ACCC was quoted late last year that “there is no way in the world I would have a Google Home or the equivalent in my home”.
Mr O’Gorman said that there needed to be a national strengthening of privacy laws following the ACCC’s July 2019 report as regulating the might of overseas tech giants to protect the privacy of individual Australian’s was a task beyond the power of any individual State or Territory.
FEDERAL FACIAL RECOGNITION SCHEME
It was welcome news this week that Federal Parliament’s Joint Intelligence Committee has sent the proposal for a National Facial Recognition Scheme back for fundamental redrafting.
In an unusual move described as the first occasion since 2002 the Coalition and Opposition members of the Committee voted on Thursday, 24 October 2019 to send the Bill back for redrafting to ensure that there were proper accountability and privacy mechanisms put in place in respect of the Scheme.
Opponents of the Bill which included the Law Council of Australia, the Human Rights Law Centre, Digital Rights Australia and the Queensland Council for Civil Liberties submitted to the Committee that expanding identity matching could represent a gross overreach into the privacy of everyday Australians.
Liberal MP Andrew Hastie, Chair of the Committee, said that “the Committee acknowledges the (privacy and accountability) concerns and believes that while the Bill’s explanatory memorandum sets out governance arrangements such as exist in contemplated agreements and access policy, they are not adequately set out in the current bill”.
Shadow Attorney-General Mark Dreyfus said that the unusual bipartisan rejection of the Bill was on the basis of a lack of adequate safe guards.
One of the safeguards proposed was a Biometrics Commissioner. Such a body exists in the UK and has since 2012 where it was established under the Protection of Freedoms Act 2010 (UK). The UK Biometrics Commissioner is independent of government and it provides independent oversight in respect of data similar to the proposed Australian facial recognition database in the UK.
The Department of Home Affairs in its submission to the Federal Committee opposed the creation of a Biometrics Commissioner.
The background to the Bill is that in late 2017 the Federal Coalition government then under Malcolm Turnbull announced plans to incorporate State and Territory Government drivers’ licence photos in a large facial recognition database to be used by a range of agencies including law enforcement and other government departments.
The Human Rights Law Centre submission to the Committee was to the effect that “the facial recognition scheme effectively hands control of powerful new forms of surveillance to the Home Affairs Department with virtual carte blanche to collect and use some of the most sensitive personal data. The laws are a recipe for disaster and they put at risk everyone’s privacy and contain no meaningful safe guards” the Centre’s submission to the Committee stated.
All State and Territory drivers’ licences will be scanned into a Federal database managed by the Department of Home Affairs whose Minister Peter Dutton is notoriously unsympathetic to civil liberties and privacy concerns that are constantly expressed in relation to the operation of his portfolio.
The Home Affairs opposition to the safeguards and accountability mechanisms which were agreed to in the bipartisan call by the Committee to rewrite the legislation is another indication that Home Affairs want great power without adequate controls.
Forensic science in criminal cases
In the Sydney Morning Herald of 2 September 2019 Justice Chris Maxwell, President of the Victorian Court of Appeal said there was little proof that forensic techniques including gunshot analysis, footprint analysis, hair comparison and bite mark comparisons could reliably identify criminals.
He called on governments around Australia to urgently change the law so that Judges had to consider the reliability of forensic evidence before it was shown to juries and in that regard he referred to a 2016 High Court ruling that has meant that Judges cannot stop evidence from being shown to the jury over concerns of reliability.
In 2016 a major US Presidential Task Force on forensic science produced a report to the President asserting that 5 major forensic science techniques either do not work or have no strong evidence proving they work. These related to the areas of matching a bullet to a gun, footprint analysis, hair comparison, DNA analysis of mixed samples, and bite mark analysis.
Forensic science in criminal cases depends for its effectiveness and credibility on the independence and scientific rigour of those called to give forensic evidence.
Forensic scientist Dr Mark Reynolds in commenting on the 2016 report has said, “There was a lot of lip service given to that report but there was no palpable change. Nothing has changed. In my opinion it has gone backwards.”[1]
Relevantly, Dr Reynolds who was in charge of scientific quality in the Western Australian Police Force forensic science team and who retired in 2017 noted that scientists are supposed to objectively study evidence but most forensic scientists are police officers.
Dr Reynolds said, “The police hypothesis is to prove that a suspect did it. The underpinning ethos is mutually exclusive.”[2]
More recently in May 2019 the House of Lords Science and Technology Committee called for urgent reforms to forensic science saying a crisis in forensic science has brought some of the country’s largest laboratories to the brink of collapse.[3]
Forensic science has been a consistent recurrent cause of miscarriages of justice over the last 30 years in Australia. In 1980 Lindy Chamberlain was convicted of the murder of her young baby Azaria on the basis of supposed scientific evidence showing that red streaks under the glove box were arterial blood from Azaria when she was stabbed by her mother. The Commission of Inquiry that was set up after the High Court rejected Chamberlain’s appeal found that the red streaks were derived from sound deadener paint sprayed on the glove box and other internal areas of the car when the vehicle was manufactured in the Opel car factory in Germany.
30 years later in May 2019, Victorian public servant David Eastman was found not guilty by a jury in a retrial after he had served 20 years in jail for the murder of Australian Federal Police Assistant Commissioner Colin Winchester. A Commission of Inquiry set up to review Eastman’s conviction found that gunshot residue evidence that had been led in his trial was unreliable and should not have been used.
In Victoria, there is now a practice note listing standard questions that must routinely be asked of forensic witnesses after concerns were raised that forensic experts were not being properly questioned by both prosecutors and defence lawyers in Court. As well, when fingerprint evidence is being led in Victorian Courts, the same Victorian practice note requires so-called fingerprint experts to tell the jury of the percentage error rates of fingerprint evidence.
It is high time that Victorian Court of Appeal President Maxwell’s call is implemented namely for governments around Australia to urgently change the law so that Judges have to consider the reliability of forensic evidence before it is shown to juries not only around the country but also particularly in Queensland.
[1] The Age “CSI not so scientific: Doubt cast on veracity of forensic evidence” by Liam Mannix August 18, 2019
[2] Dib.
[3] 1 May 2019 The Guardian (UK) Hannah Devlin, Science Correspondent
Doyle's Guide 2018
Robertson O’Gorman Solicitors have again been featured as a First Tier Queensland Criminal Defence Firm in the 2018 Doyle’s Guide. The list, released on 20 July, can be accessed here.
Robertson O'Gorman's Terry O’Gorman has also been recognised as a preeminent Queensland Criminal Defence Lawyer by the 2018 Guide, one of only four lawyers to attain this ranking. Legal Director Dan Rogers and Senior Consultant Leigh Rollason were recognised as leading Queensland Criminal Defence Lawyers. This list can be accessed here.
The Doyle’s Guide is compiled by fellow criminal lawyers and barristers, and recognises the expertise of our firm’s criminal defence lawyers. Congratulations to Terry, Dan and Leigh for this achievement!
Doyles Guide: Leading Criminal Defence Lawyers 2017
Terry O’Gorman and Dan Rogers have been named as leading Australian Criminal Defence Lawyers by the 2017 Doyles Guide. This makes them two of only six Queensland lawyers to make the list.
Robertson O’Gorman is the only Brisbane based firm with two solicitors listed.
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!
Doyles Guide: Leading Criminal Defence Firm 2017
Robertson O’Gorman Solicitors have again been featured in Doyle’s Guide as one of Queensland’s Leading Criminal Defence Firms in 2017. The list, released on the 3rd August, can be accessed here.
This list is compiled by fellow criminal lawyers and barristers, and recognises the expertise of our firm’s criminal defence lawyers, listing Robertson O’Gorman as a First Tier firm.
Congratulations also goes to Robertson O’Gorman’s Director, Terry O’Gorman, who was listed in the preeminent list of Queensland’s Leading Criminal Defence Lawyer’s in 2017. Legal Director Dan Rogers also featured as a leading criminal defence lawyer, with the list recommending consultant Leigh Rollason’s expertise as well. This list can be accessed here.
National Domestic Violence Bench Book: Stage 2 Released
Robertson O’Gorman Solicitors are a specialist firm practicing in domestic violence and criminal law. We appear for applicants and respondents in domestic violence proceedings.
Online comments about Judges
On 21 January 2016 Troy La Rue appeared in the New Plymouth District Court in New Zealand before Judge Allan Roberts to be sentenced for unpaid fines amounting to $6 244.00. Upon being sentenced to 300 hours of community service in substitution for payment of the fines Mr La Rue was presented with a printed page containing a comment he had made just over a week earlier on social media regarding the story about Judge Roberts’ retirement. After some prompting, Mr La Rue read aloud “LOL I hope the fuckers gone by Friday. Ha ha. Fucker, nah fuckin cunt his old face and saggy chin. Fuck off”. After confirming that the subject of the comment was indeed Judge Roberts, Mr La Rue apologised and acknowledged he had been caught out.
In this example the serendipitous appearance of Mr La Rue before Judge Roberts provided an opportunity for the comment, which was entirely unconnected to any proceedings, to be addressed. Such a comment can be classified as gratuitous nastiness and forms one end of the spectrum upon which on line comments about judicial officers may fall.
Towards the higher end of the spectrum is the example provided in the UK case of Daniel and Samuel Sledden. On 16 February 2016, these two brothers were each sentenced to a term of imprisonment of two years, wholly suspended for drug offences. Forty minutes later, 27 year old Daniel Sledden posted a status to Facebook expressing his disbelief at how lucky he was to have escaped a custody sentence that finished with an invitation to Judge Beverley Lunt to “go suck [his] dick”. Samuel Sledden, aged 22, comments on the remark shortly after they were posted reflected his brother’s response to receiving a suspended sentence, albeit in more sedate terms.
Upon becoming aware of the comments, Judge Lunt called the pair for review of their sentence and after a 10 day adjournment to consider the implications of the on line comments, during which bail was refused, the suspension was revoked and full time custody was ordered. During the adjournment, Judge Lunt considered whether the comments amounted to contempt, harassment or any other criminal offence – concluding they did not. Instead, the comments were used as evidence of the brothers’ lack of remorse and used as a factor in the redetermination of their sentence. Unlike the La Rue case, the comments in this matter were directly connected to the proceedings and were not only disrespectful towards the Judge, but could be perceived as mocking the process[1].
The lesson to be learnt from this is that on line comments about Judges can land you in a lot of trouble.
[1] See Privacy Law Bulletin Vol 14 no. 3 2017 “On line comments and contempt” by Leah Findlay University of NSW @ p46
Are Judges out of touch?
Last week, the Queensland Sentencing Advisory Council launched their new website, “Judge for Yourself”. It is hoped that the tool will change the perception that judges are out of touch with the public. Legal Director, Dan Rogers is a member of the Sentencing Advisory Council and participated in the launch of the project.
Visitors to the site are invited to engage in three sentencing hearings and then decide the sentence they think is appropriate. The program has been endorsed by much of the legal community, including Attorney-General Yvette D’Ath.
“We have thousands of people sentenced every year, a very small percentage go on to appeal and an even smaller percentage of those are overturned,” Ms D’Ath said.
“So the majority of sentences are never challenged and are accepted by the victims, the offenders and the broader public.”
“But there is a misconception out there about whether some sentences are too harsh or too lenient.”
Former Supreme Court judge George Fryberg has also endorsed the program, acknowledging that “Too often the public is misled by inadequate descriptions of sentences, particularly in cases of violence.”
Council member Dan Rogers has pointed out that “Research has shown that when the community has all the facts, their sentences are slightly more lenient than judges.”
“The reality is the judges are not out of touch.”
Explore the resource here.
Robertson O’Gorman represents defendants at sentences to ensure the optimal outcome. Call us today on (07) 3034 0000.
Consorting Laws
With the coming into effect a week ago the new consorting provisions of the Serious Organised Crime legislation there were already signs of Police aggressively starting to implement the new Consorting laws.
It is an indictable offence for a person to consort with what is described as ‘recognised offenders’ after having been given an official warning by police with respect to each of those individuals.
A ‘recognised offender’ is a person aged 18 years or over who has a recorded conviction for an indictable offence punishable by a maximum of at least five years jail.
A person who ‘consorts’ with another person if they associate with the person in a way that involves seeking or accepting the other person’s company. For an act of consorting to be captured there needs to be an intentional seeking out of a personal or social relationship with another person.
There is a reverse onus defence whereby certain acts of consorting will be disregarded if they are reasonable such as those that are necessary for participation in civic life, for example, consorting with close family members or for the purpose of legitimate employment or generally obtaining education or health services.
The consorting offence replaces the anti-association offence of the Newman-Bleijie VLAD legislation era.
The consorting offence makes it a criminal offence for a person to associate with two other people who have previous convictions.
The official warning in relation to consorting can be given orally or in writing and must be given in relation to each convicted offender.
Warnings can be given pre-emptively, for example, the official warning can be issued by police without any consorting ever having occurred, but the person must then consort with those people on two occasions, post-receipt of the warning. Warnings can also be given retrospectively, for example, non-contemporaneously based on video footage.
There is no right of review for the issue of an official warning.
It is, therefore, important that anyone the subject of an official warning particularly in the first number of months of the new law being implemented by Queensland Police urgently obtain legal advice.
Magistrate Court Pleas of Guilty: The Devil is in the Detail
The vast majority of those charged with a criminal offence will have their matters resolved in the Magistrates Court.
Statistically, a great number of these people will plead guilty to the offences which they are charged with.
As a result of this, there can be a tendency in the Magistrates Court to favour expediency rather than presenting the case of a client in a balanced and well prepared fashion. What is imperative to remember is that the Magistrates Court is a dynamic jurisdiction and one which calls for significant preparation of matters which are proceeding to a plea of guilty.
This preparation can take many guises however will often involve the taking of a detailed personal statement from the client (with particular focus given to relevant factors at play at the time of offending). References should be not only obtained but carefully scrutinised to ensure that they add some meaningful value to the sentence proceedings. A well-tailored reference can, for example, give a greater insight into the person’s personal circumstances which could save the advocate themselves from having to submit on same. Whilst increasingly practitioners are being forced to make submissions on penalty in the Magistrates Court without reference to authority, it is also imperative that the research be done should the Magistrate take umbrage with your ultimate submissions on the appropriate sentence.
Essential to the preparation for a Magistrates Court plea is also consideration of the growing list of diversionary programs including police and Court drug diversion and the Queensland Integrated Court Referral (QICR) program. A well-developed knowledge of these referral programs will show that they are not solely directed at those who are marginalised in society but rather can have a wider remit and application, particularly for those who are motivated in addressing the underlying causes of their criminal behaviour.
Of course, all of this material needs to be bundled and condensed into a concise package. It is important to have all the information to hand should the Magistrate query any particular area. A failure to do so can result in the matter having to be needlessly adjourned or the Magistrate making a negative finding against your client.
Preparation is therefore key and the experienced Magistrate will be able to detect very quickly those who are lacking in this department.
Top tips for Magistrate Court plea preparation
- Know your client’s personal circumstances;
- Gather relevant and concise references from those who know your client best;
- Understand the factual basis on which your client will be sentenced on;
- Always have a valid authority up your sleeve for your sentencing submissions;
- Keep the submissions concise.
All of this comes as second nature to an experienced practitioner. Here at Robertson O’Gorman we have a combined 75+ years of experience in preparing such matters and are able to tailor a sentencing solution to meet your needs.
The proposed No body No parole law change
Civil Liberties lawyer Terry O’Gorman this week welcomed the recommendations of the Sofronoff Inquiry into Queensland Parole with the exception of the ‘no body no parole’ proposed change to parole laws.
Terry O’Gorman said that he particularly welcomed the proposal for the establishment of an independent Inspectorate of prisons.
Mr O’Gorman said that the independent Inspectorate would report to Parliament rather than secretly to the prisons’ Minister.
“The beauty of the independent Inspectorate is that it will hopefully end the ‘out of sight out of mind’ attitude to Queensland’s prisons”, Mr O’Gorman said.
Mr O’Gorman said that an independent Inspectorate of prisons will hopefully bring out in the open the unacceptable degree of sexual assault, overcrowding and often quite substandard conditions that prevail in Queensland’s jails.
However Mr O’Gorman expressed considerable reservation about the practicality of the ‘no body no parole’ proposed changes.
“While sympathising enormously with the surviving family of a murder victim, the reality is that the proposed ‘no body no parole’ law change is simplistic”, Mr O’Gorman said.
Mr O’Gorman said that if the ‘no body no parole’ law change had existed in the Northern Territory when Lindy Chamberlain was the victim of a miscarriage of justice when convicted of the murder of baby Azaria in 1980, she would have been kept in jail for the rest of her life thus compounding the miscarriage of justice that a Royal Commission eventually found that she was the victim of.
Mr O’Gorman said that there are also other circumstances where a body may not be able to be found even if there is cooperation by a prisoner.
“If the body has been buried at sea or buried and then the area has been inundated by flood there will be no possibility of the victim’s family getting the closure that they so deservedly need”, Mr O’Gorman said.
Mr O’Gorman said that if there was to be a change to the law that brought in a ‘no body no parole’ law change the extent to which a convicted murderer had cooperated with police should not be decided by the police but rather should be decided by the Supreme Court.
Rehabilitation Services for Prisoners & Queensland’s Parole Changes
Civil Liberties lawyer, Terry O’Gorman this week welcomed more rehabilitation services in Queensland prisons and the establishment of a single Statewide Parole Board as part of the State Government’s parole revamp.
Civil Liberties lawyer said that with the State’s prisons’ overcrowding at almost 120%, mental health and rehabilitation services risk being pushed further down the list of priorities for Queensland prisons as more and more money in the State’s prison budget risks being spent on more jails and more prison officers.
“Currently Wolston Correctional Centre has a capacity of 600 but has inmate numbers of 750, and that significant level of overcrowding is repeated in all prisons around the State”, Mr O’Gorman said.
Mr O’Gorman said that recidivism for prisoners in Queensland is above 60% and the sheer economics of the costs of this number of people repeatedly being returned to jail in Queensland needs to be confronted.
“More and more money is being spent on prisons which means less and less money for hospitals and schools”, Mr O’Gorman said.
Mr O’Gorman said that if any other State Government department had a 65% failure rate, it would be shut down.
Mr O’Gorman said that both the high rates of recidivism and overcrowding was significantly caused by too little money being available for jail programmes which prisoners have to undertake before being eligible for parole.
“Prison numbers are necessarily high because prisoners cannot get on to internal jail programmes until well into their sentence with some prisoners serving well beyond their parole eligibility date because of dwindling money being available for programmes”, Mr O’Gorman said.
Mr O’Gorman called for a further shake-up of the Prison and Parole System by the appointment of an Independent Prisons Inspectorate similar to that which operates in Western Australia and the UK.
“An Independent Prisons Inspectorate can report to Parliament and not to the Minister, and this opens up to public scrutiny inefficiencies and problems in both the Prison and Parole System”, Mr O’Gorman said.
“Not only will that result in bringing greater efficiencies to both the Prison Estate and the Parole Board and thereby save money but it would get rid of the ‘out of sight out of mind’ mentality which has characterised the Queensland Prison and Parole System for decades”, Mr O’Gorman said.
Privacy Issues with Mastercard Selfies
Civil Liberties’ lawyer Terry O’Gorman this week criticised the lack of privacy safeguards in respect of Mastercard’s announcement that Australian users of Mastercard can use photographs of selfies to authenticate credit card transactions.
Mr O’Gorman said that while it was reasonable for a major credit card provider such as Mastercard to develop more effective technology to prevent credit card fraud, it is equally important that the Australian Federal Privacy Commissioner lay down strong and enforceable regulations to Mastercard to ensure the photos produced for authentication of credit card transactions are not onsold to other data companies.
“Last month Europe’s highest Court handed down a ruling affecting Google and other multinational companies requiring that the free for all onsale of data gathered by Google and other large data companies be significantly reined in”, Mr O’Gorman said.
“It is not within the power of individual Mastercard holders to approach Mastercard to ensure that the selfie photos are not onsold to companies who make large amounts of money by passing such data on to advertising companies”, Mr O’Gorman said.
Mr O’Gorman said that it is for this reason that it is absolutely critical that, before the Mastercard selfie photo authentication process is rolled out in Australia, the Federal Privacy Commissioner imposes a strong and effective regime on Mastercard to prevent unauthorised onsale of the photographic details.
The Australian Building and Construction Commission – Your Rights
Building and Construction Commission. Under the Act, you do not have the right to refuse to answer questions during an examination because the answers would be self-incriminating. However, any responses given during an examination cannot be used as evidence against you in further criminal proceedings (except under limited circumstances such as giving false statements).
If you give information under an examination notice you are not liable to any proceedings for contravening any other law because of that conduct. Any documents inspected or copied, or information obtained from the coping or inspection of the documents, is not admissible as evidence in criminal proceedings other than in limited circumstances set out in the Act.
In relation to kept documents or records, while authorised officers have the power to retain the documents, they must allow certain people (the person who gave the documents or person entitled to possess the documents for example) to access or make copies of the relevant documents at all reasonable times. Further, you are entitled to be supplied with a certified copy of the documents as soon as practicable. These copies must be received in all courts and tribunals as though they were originals.
Upon entering a premises, officers must show their identity cards to the occupier or owner as soon as practicable. While authorised officers have the power to enter premises (without force) they can only do so under certain circumstances, such as if they believe building work is being performed, there has been a breach of the Act, or, for business premises, they believe there are documents relevant to compliance purposes on, or accessible from, the premises. Under the Act there are further restrictions regarding entry. If you have questions regarding whether the entry of officers is lawful, it is recommended that you obtain legal advice.
Obtaining legal advice when under an investigation, particularly regarding examination notices, is a very important step to protect your rights and interests. Robertson O’Gorman regularly assist and appear on behalf of individuals under these circumstances. We understand that experienced lawyers are key to protecting you during investigations or inquiries.
The Australian Building and Construction Commission
The existence of a body to regulate unions in the building sector has been a concern for a number of years. After the Cole royal commission in 2003, the Howard Government established the Australian Building and Construction Commission to regulate this area. This body was then abolished by the Gillard Government in 2012, and was replaced by Fair Work Building and Construction. More recently, the Abbott, and later Turnbull Governments, moved to re-establish a watchdog for this sector, and, when its re-establishment met resistance, it became a trigger for a double dissolution by the Turnbull Government, which was returned to office and subsequently passed legislation to establish a new commission.
The Australian and Building Construction Commission, the current watchdog, was re-established by the Building and Construction Industry (Improving Productivity) Act 2016 (‘The Act’). Its role is to enforce compliance with legislation such as the Fair Work Act 2009 and the Independent Contractors Act 2006 amongst others. To do this, the Commission has a number of powers, including requiring a person to attend an examination to give answers, to provide information and produce documents.
It is an offence to not comply with an examination notice, such as by non-attendance or answer relevant questions, the penalty for which is six (6) months imprisonment. Other powers of the authorised officers include entering a premises (without force), inspect work, interview any person, require a person to tell the officer who has custody, or access to, a record or document and can request the custodian to produce the document. Under the Act, authorised officers may also copy and/or keep documents for as long as necessary. Authorised officers may also inspect or make copies of any record or document that is either on the premises or is accessible via computer from the premises. Under some circumstances, authorised officers also have the power to require you to give your name and address.
Robertson O’Gorman regularly appear on behalf of individuals who face a commission of inquiry or investigation. Having an experienced lawyer protecting your rights and interests is vital.
Dan Rogers Obtains Specialist Accreditation in Criminal Law
Legal director of this firm, Dan Rogers recently obtained a Specialist Accreditation in Criminal Law from the Queensland Law Society.
The award is an acknowledgement of Dan’s high level of practical skill and knowledge in criminal law. Fewer than thirty practitioners around the state have achieved the accreditation.
Dan joins Leigh Rollason and Terry O’Gorman as Accredited Specialists in Criminal Law working at Robertson O’Gorman. The firm continues to ensure that our clients are receiving the highest level of representation.
To speak with an Accredited Specialist today, call us on (07) 3034 0000.
The Right to Protest: Intended lifetime ban for refugees who travel to Australia by sea
On Monday, 21 November 2016, Dan Rogers appeared pro bono for a group of three protestors that were charged with unlawfully doing an unregulated high risk activity and obstruct police. The ‘high risk activity’ was sitting on top of an awning at Immigration Minister Peter Dutton’s office.
The three protestors were each charged with the offending after staging a protest against Mr Dutton’s proposals to permanently ban refugees who travel to Australia by sea. All three plead guilty to the charge and received a $100 fine with no conviction being recorded.
In a democratic society, the right to protest is just as important as the right to vote. Public protests are a way for the general population to express their disagreement with the actions of the executive or the parliament. In most cases, Australian protests are very safe and peaceful. There are, however, a number of laws which attempt to limit protests. In pleading guilty, the clients acknowledged that they broke the law. However, their actions were motivated by the human rights abuses concerning Australia’s immigration policy.
To speak with a solicitor today, call Robertson O’Gorman on 3034 0000.
QCCL Media Release: Did the DPP consider their own guidelines before Tostee's trial?
The Civil Liberties Council today queried whether Tostee would have faced trial had the prosecution applied their own prosecutorial guidelines. These guidelines require the discontinuance of a charge unless there is both a public interest in the prosecution and sufficient evidence.
“While I am in no way attributing bad faith to the DPP decision to prosecute Tostee, the question is fairly raised whether, on the facts presented in Gabe Tostee’s trial, he would even have been charged let alone prosecuted if he was a female”, Mr O’Gorman said.
Mr O’Gorman said that the facts as reported in today’s media that were put forward in Tostee’s trial this week are as follows:-
- Tostee’s tape recording of the event had him warning Warriena Wright that he would have to kick her out if she did not stop attacking him;
- Ms Wright threw rocks from a tray on Tostee’s glass coffee table top at him; and
- Ms Wright grabbed a heavy metal clamp from a telescope that Tostee kept on his table and swung it at his head.
“Whilst some legal commentators today say that the DPP had no choice but to move forward with the case and that there was sufficient evidence for the matter to be put in the hands of a jury, other commentators take the position that there was not sufficient evidence to justify a charge and that the matter should have been referred in the first instance to the State Coroner”, Mr O’Gorman said.
“While I stress I am not accusing the DPP of bad faith in this prosecution, the prosecution of Tostee highlights the problem of Queensland, and indeed Australian, law that the decision of a Prosecutor to lay charges is utterly unreviewable in the Courts”, Mr O’Gorman said.
“The High Court held for many years (refer Maxwell’s case) that the decision of a DPP Prosecutor to lay charges is unreviewable by a Court”, Mr O’Gorman said.
“Over the 40 years I have practised criminal defence, the law has changed from the 70s and 80s when Judges had power to stop a case if the case was thought to be too weak to the current position where Judges have no such power”, Mr O’Gorman said.
“It is noteworthy in Mr Tostee’s case that the senior trial Judge, Justice Byrne, decided that the evidence, though weak, was enough for a jury to consider if Tostee had murdered Warriena Wright, Mr O’Gorman said.
“I gave a paper last weekend in Adelaide at an International Criminal Law Congress looking at developments in criminal law over the last 30 years noting that the law had reached an unsatisfactory position where the decision of senior Prosecutors to proceed with questionable charges was utterly unreviewable anywhere, particularly unreviewable in the Supreme Court”, Mr O’Gorman said.
Mr O’Gorman said that the powerful position of Prosecutors in deciding on what charge to lay arising from a set of facts thrown up by investigating police is that the centre of power in a criminal case lies not in the Courtroom but in the hands of a senior Prosecutor who decides what charge to lay and picks from a menu of available charges ranging from the most serious through to cases of medium severity and down to the most minor.
“This is a very topical and controversial issue as the Legal Affairs and Community Safety Committee of the Queensland Parliament prepares its report soon to be tabled in the Queensland Parliament on the Palaszczuk Government’s review of the Newman Government’s anti-bikie laws”, Mr O’Gorman said.
“The Explanatory Notes published by Attorney-General Yvette D’Ath acknowledges that under the revamped laws, a person may not face prison for the base offence (the offence a person is arrested for) but could be required to serve a mandatory 7 year sentence on top of a fine or some other non-jail Court order if a person is said to be a participant in a criminal organisation”, Mr O’Gorman said.
“It is clear that as with the Newman Government laws and so with the Palaszczuk Government laws the new proposed serious organised crime with circumstance of aggravation offence will catch non-bikies and will cover such low level criminal activity in a so-called organised crime context that the base offence may not even attract a term of imprisonment”, Mr O’Gorman said.
Mr O’Gorman said that the so-called protection against misuse of the very excessive mandatory imprisonment laws imposed by the Palaszczuk Government is that a decision to lay an organised crime charge will be made by the DPP.
“What the Tostee case shows is that such a prosecution decision is utterly unreviewable in Court, giving Prosecutors unprecedented power to pick the most serious charge resulting in a minimum of 7 years jail on top of the base offence itself not even attracting jail where a lesser charge is open to a Prosecutor to prefer”, Mr O’Gorman said.
Under the VLAD laws, three 18 year olds who take turn about to go into the Valley on a Friday night to buy marijuana in bulk for a Sunday afternoon smoke are likely to have been caught by the mandatory 15 years imprisonment regime under the very widely defined scenario of what constitutes organised crime.
Such a similar or close scenarios are open under the Palaszczuk laws currently before the State Parliament.
“The Palaszczuk Government laws have to be changed so that Prosecutors do not have totally unreviewable power to charge the most serious organised crime offence where a lesser charge would be appropriate and just on the facts of a given case”, Mr O’Gorman said.
“The Palaszczuk Government laws have to be changed so as to dilute the all powerful decision of a DPP Prosecutor to charge a top drawer offence attracting a mandatory prison term. Supervision of the laying of such charges has to be given to the Supreme Court”, Mr O’Gorman said.
Mr O’Gorman can be contacted during business hours on 07 3034 0000
Dan Rogers Delivers Speech at the QUT United Nations Association Networking Event
Dan Rogers, director of Robertson O’Gorman, was invited to the recent QUT United Nations Association Networking Event to speak to students in relation to the protection of human rights.
Mr Rogers was asked to speak about his experiences working at the International Criminal Court in The Hague during 2012. However, students were encouraged to strive to protect human rights locally rather than idolising international human rights lawyers. This, he said, is important as part of a broader involvement in the law.
For Mr Rogers, protecting human rights means representing the rights and interests of vulnerable individuals in crisis. In criminal prosecutions, it means levelling the playing field when a client faces a prosecution by the State with all its might and resources. It means day-to-day advocacy and ensuring a fair outcome in the courtroom.
Call Robertson O’Gorman today on 3034 0000
Queensland's Abolition of the Statutory Limitation Period Regarding Institutional Sexual Abuse
The Premier introduced a Bill to Parliament recently which, if passed, will create an exception to the three year limitation period for personal injury claims in instances where the injury has resulted from sexual abuse in an institutional context.
Limitation periods are a part of Queensland law to remove the threat of open-ended liability; to ensure a defendant is not unfairly prejudiced in proceedings through inability to access documents to defend the claim; and to ensure disputes are resolved as quickly as possible.
Presently, the victims of sexual abuse are required to bring their claim for damages within three years of suffering the abuse. If they are under eighteen years of age at the time of the abuse, the limitation period begins upon reaching that age. It became clear in the recent Royal Commission that some victims take up to 22 years to speak publicly about the abuse they have suffered – more than seven times the current limitation period.
Recommendations 85-86 and 88 of the Commission’s Redress and Civil Litigation Report concerned the removal of state and territory limitation periods. These amendments are largely in response to those recommendations and provide for an exception to the three year limitation period where the injury is caused by institutional sexual abuse. This amendment will apply retrospectively and as such many victims will now have access to justice through civil action in the Queensland courts.
Notably, the amendments preserve the right of the court to stay proceedings where it would be unfair to the defendant to proceed.
There are reports that the Queensland Government is considering the introduction of a redress scheme which will allow victims to access compensation without embarking on the inevitably expensive and stressful court process.
After its presentation to Parliament on Tuesday, the Bill was referred to the Legal Affairs and Community Safety Committee for consideration until 1 November 2016. The Bill is supported by the opposition and is therefore likely to pass.
Follow these links to read more:
- Limitations of Actions (Institutional Child Sexual Abuse) and Other Legislation Amendment Bill 2016
- Explanatory Note
- Hansard
Robertson O’Gorman handles sexual abuse matters with utmost discretion. For experienced and comprehensive legal advice, call us today on 3034 0000.
Robertson O’Gorman listed as a leading Queensland Criminal Law Firm
For the second year in a row, the Doyle’s Guide has ranked Robertson O’Gorman as one of five firms considered to be ‘First Tier’ in Queensland Criminal Law.
In addition to the firm’s recognition, Terry O’Gorman was named a Preeminent Queensland Criminal Lawyer together with Dan Rogers and Leigh Rollason who were named Leading Queensland Criminal Lawyers.
The solicitors at Robertson O’Gorman work tirelessly to achieve the best results for their clients.
To contact Robertson O’Gorman, call 3034 0000.
Dominic Brunello to resume working at Robertson O'Gorman
Robertson O’Gorman welcomes Dominic Brunello back to the firm as he begins work this month.
Dominic has practiced as a criminal defence lawyer since his admission to the roll in 2001. Dominic was trained by Terry O’Gorman, Leigh Rollason and the barristers briefed by the firm. He is deeply committed to protecting the rights of individuals accused of crime by all proper and lawful means. Dominic worked as a solicitor for Robertson O’Gorman in the period 2004 to 2008.
In 2008 Dominic took a job with the Aboriginal Legal Service of Western Australia. His skills as an advocate and legal advisor were recognised by steady promotion. In 2011, he was appointed in-house Counsel.
In Western Australian a ‘fused’ legal profession allows concurrent practice as a barrister and solicitor. Dominic has appeared as a barrister before the District and Supreme Courts in jury trials (including for murder), sentence hearings, bail applications and pre-trial applications. He has successfully argued a substantial number of appeals against conviction and sentence in the Supreme Court and the Court of Criminal Appeal. Dominic has twice appeared before the High Court of Australia.
In 2016, Dominic decided to return to Brisbane and to Robertson O’Gorman. As a solicitor-advocate for Robertson O’Gorman, he will appear without counsel in all courts across Queensland. He will also work closely with senior barristers; undertaking the preparatory work so vital to laying the foundation for a successful defence in court.
Dominic is passionate about criminal law, the protection of human rights and broader social justice issues. He is married with one child.
Read more about Dominic here.
Splendour in the Grass: Know Your Rights
With under three weeks until this year’s Splendour in the Grass festival, it is important attendees and their families keep in mind common legal issues that arise from these sorts of events.
Reminders:
- If approached by police you do need to give your name, your address and, if under 17, your age. Aside from these details you have a right to remain silent and are not required to answer police questions.
- Unless you have been specifically arrested you do not need to accompany the police to the station.
- You should never participate in an interview with police until you have discussed your situation with a lawyer.
- Always ask to call your family and / or lawyer if arrested.
- Obstructing police can lead to further charges
Alcohol
Police can issue on-the-spot fines for:
- drinking in a public place (18 years and over)
- underage drinking or possession of liquor in a public place, even if you're holding a drink for your friend who is over 18
- being under 18 and found on licensed premises
- being under 18 and found drinking or just holding a drink for a friend on licensed premises
If you’re 18 at Splendour and you supply alcohol to your underage friends you could face a fine of $11,000.
Drugs
Robertson O’Gorman encourages festival-goers to respect the law. Possessing or supplying drugs attracts heavy penalties, and as such festival-goers should be wary of their responsibilities prior to entering the festival.
If you are stopped because a police dog indicates you might have drugs, this gives Police ‘reasonable suspicion’ and they are within their rights to search you. You must give your full name and your address, but otherwise you have the right to remain silent. In many instances, first-time offenders will be given the opportunity to undertake a drug diversion course and won’t have to attend court.
If you are arrested, contact Robertson O’Gorman immediately on our 24-hour contact line (07) 3034 0000.
ID
Using someone else’s ID card or creating a fake card is illegal. Lending someone your own ID can also lead to a fine.
Other common situations;
In the festival environment it is important to also remember that assault and sexual assault can lead to severe criminal penalties. Public nuisance, wilful exposure, trespassing and drink driving are other offences to be aware of.
If you need legal advice, contact Robertson O’Gorman on our 24 hour line (07) 3034 0000.
Appeal a Win for Youth Rehabilitation
Robertson O’Gorman received instructions to appeal a sentence for a client that had previously been represented by another firm. He had pleaded guilty to trafficking methylamphetamine, among other related charges. For this, he was sentenced to 10 years’ imprisonment. Importantly, this meant that a serious violent offence declaration was made and as such, he was required to serve at least 80 percent of that time in custody. Under other circumstances, it is common practice for a defendant to serve only one third of the sentence before being eligible for parole or a suspension of their sentence.
On appeal, it was argued that the sentence imposed was manifestly excessive because it did not properly take into account the client’s youth or the time spent in pre-sentence custody. The client was aged 18 to 19 at the time of trafficking, but the sentencing judge had been led to believe the offending continued to until the client was 21 years old. The courts in Queensland place significant weight on the age of an offender when sentencing. Notably, they distinguish between ‘extreme youth’, which is considered to be between the ages of 17 and 19, and ‘youth’ which is up to the age of 21. This distinction is due to the fact that prospects for rehabilitation are generally considered to be much higher for younger offenders, especially when they have no previous convictions.
One further issue addressed on appeal was whether the sentence of a co-offender, and in particular the making of a serious violent offender declaration, should affect our client’s prospects of a reduced sentence. The Court of Appeal accepted our argument that parity may be displaced by a legislative provision that results in the mandatory imposition of such orders.
Our client was resentenced to 9 years’ imprisonment. The serious violent offender declaration was removed, and as such our client is now eligible for parole after serving 3 and a half years in prison. This represents a dramatic difference to a young person’s life.
The appeal addresses the need for rehabilitation of youthful offenders. In many cases, including this, a young person is far less culpable for their actions than a mature adult might be in the same situation. Furthermore, with their whole lives ahead of them, avoiding recidivism through effective rehabilitation and appropriate sentencing is of utmost importance.
Louisa Pink Appointed as Magistrate
Robertson O’Gorman congratulates Ms Pink on her appointment to the magistracy announced today by the Attorney General.
Ms Pink has been working in criminal defence since 2004, and joined the team at Robertson O’Gorman in 2006. She has been involved in the conduct of cases before all courts including the High Court, Court of Appeal, Mental Health Court and Children’s Court and has regularly appeared as a solicitor advocate in the Magistrates Court, commissions and tribunals.
Ms Pink worked initially in the Office of the Special Prosecutor responsible for post Fitzgerald Inquiry prosecutions before working for the Parliamentary Criminal Justice Committee overseeing the (then) CJC. Her early career ultimately led to work at a high level in Government in the development of legal policy. Over the last 12 years she has worked as a solicitor in private practice as a criminal defence lawyer.
She has been involved in a number of community initiatives, including the Prisoners Legal Service and most recently served as President of the Law & Justice Institute (Qld).
Ms Pink will be sworn in on Tuesday 3 May, after which she will take up a position at the Caboolture Magistrates Court.
The Panama Papers Leak and its Implications for Australian Business
Earlier this month, an unprecedented leak of confidential information made headlines across the globe. Millions of documents from Panamanian law firm Mossack Fonseca were provided to the German newspaper Sueddeutsche Zeitung. The International Consortium of Investigative Journalists alongside some 400 journalists began analysing the enormous amount of data in early 2015, a year before any information relating to the leak was published.
The Panama Papers have revealed details of offshore financial arrangements which shed light on the highly complex areas of tax avoidance and money laundering. Leading politicians and sports stars have been named alongside international criminals as clients of Mossack Fonseca.
Tax avoidance and money laundering has been the subject of much media attention, and is often considered a serious scourge on the modern world. Some of the world’s richest and most powerful people use offshore companies to hide assets and income from their respective governments.
But not all offshore companies are created or used for illegal purposes. In fact, many businesses have perfectly legitimate reasons for concealing their identity and assets from malicious competitors and enemies. Unfortunately, leaks such as this fail to distinguish between the illegal and the unethical. There is, and should be, a distinct line between the two. Tax evasion is illegal; tax avoidance is completely legal.
Our government has legislated a detailed and comprehensive set of rules that Australian businesses are required to follow. Most companies comply with the rules and regulations that govern their industry. Since 2006, however, the Australian Tax Office has recovered over $1 billion through its crime investigation activities. Whether or not a company has met their tax obligations is often a complex question which involves significant factual and legal analysis. Rather than allowing popular and often misguided opinion dictate the state of Australian taxation, objectivity must be maintained in the executive and judicial branches of government.
Robertson O’Gorman has extensive experience representing those charged or investigated for financial and corporate crime. Call us today on 3034 0000.
Police Powers when it comes to DV
With recent and indeed future DV amendments it is timely to consider the particular powers police have in relation to situations of possible Domestic Violence. Sometimes domestic violence situations will grant police additional powers or exemptions from usual requirements or rules.
For example, police can arrest you without if you are reasonably suspected of breaching a domestic violence order.
Similarly section 609 of the Police Powers and Responsibilities Act allows police to enter your home without a warrant if there is an urgent circumstance of domestic violence occurring. They can then stay for as long as is reasonably necessary to find out what is happening and to take action to help a person or remove the risk of injury or damage.
If you need advice about domestic violence call us on 3034 0000 to speak to a solicitor experienced in this area.
Tackling alcohol fueled violence
New laws that could pass in Qld regarding alcohol fuelled violence will herald a raft of changes to the Liquor Act 1992 (Liquor Act), Liquor Regulation 2002 (Liquor Regulation), Gaming Machine Act 1991 (Gaming Machine Act), Bail Act 1980 (Bail Act), Penalties and Sentences Act 1992 (PSA) and Police Powers and Responsibilities Act 2000 (PPRA).
Aside from changes to lock out times, licensing and the sale of certain beverages other key changes include:
- amending the Bail Act to no longer criminalise a failure to comply with a condition of bail imposed under section 11(9) (that is, participation in a rehabilitation, treatment or other intervention program or course). The amendment recognises the challenges associated with overcoming addiction.
- amending the Penalties and Sentences Act to allow a sentencing judge to include the completion of a Drug and Alcohol Assessment Referral course as a condition with the consent of the defendant.
- designating all police officers to be investigators under the Liquor Act.
A report from the committee is due this week.
Police Powers: Disobedience to Lawful Order
These days, most people carry a mobile phone with them everywhere they go. A mobile device can contain more information about a person than the rest of their belongings combined so it’s very unnerving for a stranger to be going through it.
Although in most situations a person is only required to provide a police officer with their name and address, search warrants can grant powers not normally available to police officers. For example, a warrant may include the power to compel someone to give the officer their phone pin.
If you are subject to a search warrant that includes this power, you must give police your mobile phone pin. If you fail to do so, you may be charged with the offence of ‘disobedience to lawful order issued by statutory authority’ which carries a maximum sentence of one year imprisonment.
If you or someone you know are subject to a police investigation or police warrant, it is vital you contact a solicitor for assistance and advice. Our firm can be contacted 24 hours a day for urgent advice.
Know your rights with police. To find out more, go to our FAQs.
24 Hour Service
Persons that have the unfortunate experience of being detained by police need advice.
Our firm is open throughout the Christmas period and we offer a 24 hour a day telephone service for those that require urgent advice.
Contact 3034 0000 to speak with an experienced solicitor from Robertson O’Gorman.
Queensland's Leading Lawyers
Each year Doyle’s produces a list of leading lawyers and law firms in different practice areas. For the first time in 2015 a specific Criminal Law list has been released, acknowledging those firms recognised by the broader legal profession for their expertise and abilities.
Robertson O’Gorman is proud to have been named a 2015 ‘first tier’ criminal law firm. Terry O’Gorman was also named one of Queensland’s preeminent criminal lawyers with Dan Rogers receiving recognition as a leading criminal lawyer.
Doyle’s full list is available here.
Australians on Drugs
The “2 High: A Week On Drugs” series is available for viewing now and includes live discussions and stories told by recreational drug users, drug addicts, drug dealers and those working through drug rehabilitation.
The series highlights the competing considerations associated with a seriously complex topic.
Many of the stories told draw out examples of the legal consequences associated with drug use and the inefficiencies of our current legal system in deterring people from using drugs.
Much debate is currently focussed on whether the personal use of illicit drugs should be decriminalised in order to encourage drug users to seek medical assistance in addressing problematic use or addiction.
Portugal amended their drug laws 14 years ago and removed criminal penalties for those found in possession of no more than 10 days’ supply of a substance. The laws seek to minimise harm and reduce the health consequences that flow from drug use (for example: HIV/AIDS, hepatitis, overdose, mental disorder).
The Queensland Police Service gathers statistical information about convictions for each type of offence. In the last 6 months there have been 12 convictions for the offence of trafficking drugs, 68 convictions for supply and 872 convictions for possessing drugs. The overwhelming majority of convictions relate to end drug users.
The Queensland Justice System has made some effort to assist drug users. If you are found in possession of a small amount of cannabis or a bong your matter could be suitable for police drug diversion. If you are not eligible for police drug diversion (because you have had it before or because of the nature of your charges) you may still be eligible for Court Ordered drug diversion or for the Special Circumstances Court (which is about to be reintroduced).
If you are charged with drug offences you should seek legal advice so that you can explore the avenues open to you for resolution of the matter. Your lawyer will also be able to provide you with information about drug rehabilitation in your area.
Queensland's Top 50 Thinkers
On 8 March 2015 the Sunday Mail released its list of Queensland’s 50 Top Thinkers. The list was described as including the best and brightest of people who have turned their minds to making society better. The people who have made Queensland the smart state. It was drawn from a broad range of backgrounds including science, medicine, education, business, politics, culture and sport.
Terry O’Gorman was included in the list for his work as a criminal defence lawyer and for his role as a civil libertarian, rallying against perceived abuses of police and political power. As the president of the Australian Council for Civil Liberties and vice-president of the Queensland Council Terry has been fighting for the rights of fellow Queenslanders for more than 40 years.
Answering Police Questions
Some people believe that the allegations against them are all a misunderstanding or that police won’t have any evidence; that it was the other person’s fault or that they have done nothing wrong. If they just explain it to the police it will all be resolved.
Many think that simply by denying the allegations or providing false or misleading information all their problems will do away.
Others feel that talking to police is the decent thing to do and necessary to demonstrate that they are not guilty. And yet others feel the need to confess everything to police.
Whatever your circumstances, getting legal advice before speaking to police is advisable. You should understand the full legal consequences of what you are about to do first. This is particularly important if you have a criminal history, are young, have an occupation where having a conviction recorded could be devastating for your future employment or where the potential charge is serious.
It is important to consider factors including the following:
- If police believe they have enough evidence that you have committed an offence, generally you will be charged even if you deny the allegation.
- Denying the allegations will rarely stop the charge process as it is up to the courts to decide innocence or guilt.
- If police have approached you as a potential suspect and requested an interview, it is highly likely, almost certain, that they will charge you, regardless of what you say when questioned.
- Do you want to add to the evidence that can be used against you?
Lawyers generally advise clients against answering police questions because it is the responsibility of the State to gather enough evidence to prove guilt beyond reasonable doubt and we all have the right to silence. Exercising your right to silence cannot be held against you in court. However, there are limited circumstances when giving your version of events in a police interview may be in your best interests.
Remember that you are only required to provide your name and address to police. You do not have to answer any other police questions. We strongly advise that you get legal advice before answering any questions. Police are required to delay questioning for a reasonable time to allow you to telephone or speak to a lawyer.
If you need legal advice, we are contactable 24 hours a day 7 days a week in emergencies so that even if police arrest or approach you after business hours we can still help.
ROBERTSON O’GORMAN 24hr EMERGENCY ASSISTANCE 3034 0000
If your call is not urgent please call during business hours.
Animal Cruelty Charge Dismissed
On 2 October 2014 the Brisbane Magistrates Court dismissed a charge of animal cruelty against our client, Mr Gunn.
Mr Gunn was represented by Kate Clark, solicitor of our firm.
In the face of significant public vilification Mr Gunn always maintained his innocence in the matter.
You can read more about this story here.
Blue Card Applications
We acted on behalf of “CON” who was the applicant to a QCAT application for the review of a decision made by the Commissioner for Children and Young People and Child Guardian. The Commissioner issued a negative notice to CON in response to their application for a Blue Card and positive notice. CON had previous convictions for assault and had been the respondent to Protection Orders in the past. The Commissioner had formed the view that CONs case was “exceptional” and that it would not be in the best interests of children to grant the application.
We sought the independent views of a registered psychologist and called witnesses at a contested hearing before QCAT. Kate Clark of our firm appeared as Solicitor Advocate at the contested hearing. QCAT made Orders to set aside the Commissioners decision to issue CON with a negative notice and to instead issue CON with a positive notice and Blue Card.
A copy of the full decision of QCAT may be found here.
WHAT IF WE ARE WRONG? THE RISKS ASSOCIATED WITH PREVENTIVE JUSTICE
On 29 July 2014 I attended a lecture delivered by Professor Lucia Zedner FBA Law Fellow, Corpus Christi College and Professor of Criminal Justice, University of Oxford, Conjoint Professor, Faculty of Law, UNSW. The lecture presented by Professor Zedner and delivered by the Australian Academy of Law analysed the balancing act between protecting society from harm and the rights of the individual. It also explored the roles of lawyers, Judges and academics in “distinguishing and delimiting preventive measures”.
During the course of the lecture the words “What if we are wrong?” rang through my ears.
Preventive justice is supposed to detect and anticipate when someone will likely commit an offence and then put into place protective features to stop them from doing so. It is not supposed to be anticipatory punishment but rather a protective mechanism for society.
Our policy writers hold the overwhelming power associated with installing preventive laws into our justice system. As we know, with great power comes great responsibility. More recent legislative reforms would have us question whether this responsibility is being appropriately managed. The introduction of the VLAD legislation, amendments to our Penalties and Sentences Act 1992 and the wide powers provided to star chambers are all cause for great concern.
In Queensland we have many preventive justice mechanisms embodied within our laws. They range in terms of their implications. The most basic form exists within our Police Powers and Responsibilities Act 2000 and Criminal Code. In Chapter 2, Part 6 “breaches of the peace, riots and prevention of offences” for example provide the police with powers to detain people and suppress riots where they assess that there is “an imminent likelihood” that something is about to occur. How is this power balanced to ensure that a full assessment is undertaken and not abused? How is the deprivation of citizen/s liberty balanced with the protection of society? What training do the police have to assess imminent risk on the fly? What consequences exist if this preventive power is inappropriately applied?
In the Child Protection (Offender Reporting) Act 2004 those who have committed certain offences of a sexual kind are subject to strict reporting requirements for either 8 or 15 years. The purpose of the Act is to “require particular offenders who commit sexual, or particular other serious, offences against children to keep police informed of their whereabouts and other personal details for a period of time after their release into the community:- (a) to reduce the likelihood that they will re-offend; and (b) to facilitate the investigation and prosecution of any future offences that they may commit.” Many hold the view that the legislation provides another punitive measure imposed by the State in addition to the penalty imposed by the Judiciary at sentence. The unfortunate reality is that there is no sliding scale on which the Act is assessed or implemented. It is an all or nothing register which restricts the individual, waters down their privacy and also costs our State a great deal to implement.
The VLAD laws are the most frightening of all preventive measures taken to date. These laws operate to discriminate unfairly against particular persons within our society. The appropriate checks and balances of allowing the laws to be scrutinised by the legal community did not occur.
Without adequate debate and scrutiny we run the risk that we are wrong and that our laws will be vague and applied erratically or in a manner which is open for abuse. Poorly assessed preventive laws do not offer our community security, they deprive citizens of their liberty, their rights and fosters injustice.
What if we are wrong?
Destruction of Evidence
We are often asked about what rights flow for individuals with respect to their personal property and in particular their property which is in the possession of the police (having been seized) and personal property that may become the subject of a police investigation (not yet seized).
This blog focuses on important considerations of how people can lawfully act in relation to their property which may tend to be used in evidence.
In the old days, which are not so long ago, our advice may have been limited to evidence of a physical kind, such as blood stains on clothing, shoe imprints, fingerprints and so on. Our world now is becoming increasingly more technically driven and people increasingly store information on electronic devices rather than in physical form.
Police investigations are also changing and evolving in order to keep up with technological advancements. There are dedicated units of the police force whom specialise in extracting electronic evidence from devices including deleted data and data stored in cache (temporary files).
Regardless of whether the evidence is physical or electronic the consequences of attempting or actually destroying evidence are serious. If a person is suspected of having attempted to or actually destroying evidence the police may charge them with any of the following offences:-
- s129 of the Criminal Code – damaging evidence with intent; and/or
- s132 of the Criminal Code – conspiring to defeat justice; and/or
- s133 of the Criminal Code – compounding an indictable offence.
All of these offences carry a head sentence of 7 years imprisonment. It is very likely that if convicted a person will be sentenced to serve actual time in custody for offences of these kinds, although each individual case varies.
In an attempt to play hard ball with the police people may consider destroying evidence or attempting to destroy or lock the police out of electronic evidence.
Deleted material is recoverable most of the time which includes SMS text messages, call logs, emails, web searches and so on. Even if a device can be “wiped” data such as text messages and telephone logs are generally also available through network provider for a period in excess of 6 months. That means for example that even if the police are unable to recover the SMS text messages from a phone itself, they will likely be able to obtain them from the network provider in full form. We have had matters were the police have successfully obtained text messages by taking that course.
Importantly taking action to destroy electronic evidence may be capable of being evidenced by police electronic evidence experts who will attempt to access a device and its contents. In taking a forensic image of a device the police may be able to establish that material was “wiped” or “deleted”. Using specialised programs the police may even be able to recover deleted material either in fragment or in full. They may also be able to establish how and when data was “wiped” or “deleted” or how a device was “locked” and from what device those actions were initiated.
If you are being investigated for an offence or you have already been charged with an offence it is important that you obtain legal advice about how to manage your circumstances within the law. Taking steps to “damage control” by attempting to or actually destroying evidence may harm you further and result in further charges. Obtain legal advice before taking any such action.
Transgender Rights in Criminal Law
There are particular practices that the police must employ when they are interacting with members of the Queensland Transgender community.
The guidelines within which the police must operate are set out in two main sources, the Queensland Police Operational Procedures Manual and the Good Practice Guide for Interaction with Transgender Clients. The police must also act in a manner which avoids behaviour amounting to discrimination as provided in the Anti-Discrimination Act.
It is an offence for a police officer to discriminate against a Transgender person either directly or indirectly. Under section 131A of the Act it is an offence to incite hatred/contempt/ridicule against a Transgender person or to encourage others to incite hatred/contempt/ridicule. It is also an offence to threaten (or have others threaten) physical harm towards a Transgender person. Fines and periods of imprisonment can apply if an officer is convicted of the offence.
Both the OPM and the Guide are updated and reviewed by the police from time to time and can be found on the QPS website (see the current links provided at the end of this blog).
The Guide explains to police the importance of respect and understanding of Transgender persons. The police are required to abide by the following general principles:
- Respect the Transgender person’s gender identity.
- Respect the Transgender person’s need for privacy.
- Reassure Transgender clients that confidentiality will be maintained; and
- Recognise the difference between gender identity and sexuality.
An LGBTI liaison program has also been established by QPS. The State Coordinator of the LGBTI program is located at the Community Safety and Crime Prevention Branch. Police officers volunteer to act in the capacity of an LGBTI liaison officer and they are obliged to assist.
During all interactions with the police, a Transgender person has the ability to contact an LGBTI liaison officer for information and assistance. This service cannot be unreasonably refused by the police.
Special procedures apply to the searching of Transgender persons (only an officer of the same biological sex can search the person) and detention (Transgender persons must be held separately from others whilst in custody).
If the police fail to uphold the guidelines or procedures as set out in the OPM or Guide, an alleged contravention should be immediately reported to QPS for investigation. In some circumstances a complaint can also be made to the Crime and Misconduct Commission.
In addition, a complaint can be made to the Anti-Discrimination Commission Queensland. The ADCQ Commissioner can examine the allegations and are able to (where relevant) conciliate the matter or refer the matter to the ADCQ Tribunal for determination.
If a matter is referred to the Tribunal, the Tribunal may make Orders under the Act that the officer pay the complainant compensation for loss or damage caused by the contravention.
Current Link for the Act.
Current Link for the OPM.
Current Link for the Guide.
Justice at any cost is not justice at all
Justice is a concept of “moral rightness” which is open to individual interpretation. The concept of justice, as held by individual defendants and respondents, often gets in the way of the clarity required to reason and seek out alternative resolutions in the face of complex and sometimes serious problems.
Despite wanting to “take the police on”, fight a charge or an allegation, each individual must stop and think about their matter from all angles before proceeding blindly in the pursuit of justice.
Defendants and Respondents in criminal or quasi-criminal proceedings need to give consideration to what options might be explored throughout their matter to push for early resolution. Charging forward to a hearing or trial might sound like the way to achieve justice but the consequences can be severe if you fail. For example, if you are convicted after a criminal trial a harsher penalty will likely be imposed on you.
In the civil law world, options that achieve early resolution are frequently explored as a matter of course: without prejudice offers to settle, dispute resolution before filing proceedings and dispute resolution or mediations after proceedings have commenced. In family law matters, as a rule of thumb, all litigants must first attempt to resolve their matter through mediation. Without having ticked that box proceedings cannot be commenced and the Court registry will not file your application material. The system in the civil world works quite well. Even the most steadfast civil litigant will often consider resolving a legal proceeding at the doors of the Court to cut their losses and avoid a legal battle.
Unfortunately the police are not required to, nor are they funded to, give any thought to ticking such a box. Unlike civil matters, most criminal law and quasi-criminal law matters do not have the powerful incentive that pushes for early resolution in civil matters: Costs Orders. There are limited exceptions, see our blog: “Costs Applications against the police” dated Thursday January 2, 2014.
There are however, a plethora of options available in criminal and quasi-criminal matters for early resolution. These need to be considered and explored on a case-by-case basis.
Justice Mediation is available for a number of matters and advice should be sought about this option. If successful, mediation can result in a criminal charge being discontinued in Court thus avoiding a criminal record, any penalty that might have otherwise been imposed by a Court and the legal fees associated with fighting the allegation raised.
In Domestic and Family Violence and Peace and Good Behaviour matters there might be some ground for an application to strike out the proceedings. The timing and execution of such an application has to be well thought out and executed but the results can be hugely beneficial. Such an application could be made on the basis that an application is an abuse of process, vexatious, frivolous or if the application is doomed to fail. Costs are rarely able to be awarded in these matters.
In both the summary and indictable jurisdiction a system of case conferencing exists and might allow a negotiation with the prosecution about charges and could see a charge either being amended or discontinued.
Prosecutions in relation to indictable offences might reveal, when properly prepared by the defence, some ground for an application to dismiss the matter at a committal stage. An application to dismiss a matter can be made if it can be demonstrated to the requisite standard that no jury, properly instructed, could possibly convict the defendant.
Fighting for justice is important but the concept of justice might not be the only important consideration. Justice achieved at any cost might not achieve justice at all. Before battling on, think about your options and source out focused advice so that you can explore whether you have an avenue for early resolution.
Costs Applications against the police
If you are charged with a summary offence, for example, committing a public nuisance or obstruct police, and the charge is dismissed, there is provision under the Justices Act for making an application for costs against the Commissioner for Queensland Police.
Far too often matters are finalised in Court without an application for costs being made by the defendant.
You can apply for an order for costs on dismissal or in circumstances where the Magistrate chooses to exercise their discretion to do so. The discretion is not readily exercised in favour of an applicant but it should be attempted in appropriate cases.
You can apply for your costs on a scale which includes the following:-
- Instructions and preparation for the hearing, including attendance on day 1 of the hearing (up to $1,500.00)
- Costs for each day of the hearing after day 1 (up to $875.00)
- Other Court attendances, other than the hearing of the complaint (up to $250.00)
If you have had the expense of legally represented mentions, preparations or attendances at a hearing for a summary offence and your matter is then dismissed, you may hold some prospects of making an application for Costs in accordance with the scale.
In October 2013 Robertson O’Gorman Solicitors made an application for costs on behalf of a client charged with two obstruct police charges. The police in that case had failed to comply with the Court’s directions to disclose material to the defendant. We wrote to the prosecution setting out the failure to disclose material and requested that they comply. The prosecution then obtained the missing material from the police and after considering the material made the decision to discontinue the charges against our client.
Ordinarily the prosecution discontinue summary charges by offering no evidence against the defendant in Court at a mention. In those circumstances people are usually relieved that the matter is over and give no further consideration to whether there is any avenue to take against the police for the charge being made in the first place.
In our October 2013 case the prosecution offered no evidence against our client and the charges were accordingly dismissed by the Presiding Magistrate. We then made an application for costs against the Commissioner for Queensland Police for the costs of two represented mentions and preparation for a hearing.
Our application was met with fierce opposition by the prosecution but our application was pressed and ultimately succeeded. The Presiding Magistrate awarded costs to our client in the sum sought, which was in the amount of $1,600.00.
If you are charged with a summary offence or offences, you must consider whether you hold any prospect of making an application for costs upon dismissal or in other circumstances. It is important to obtain advice about your options and the procedure involved in pursuing an application in Court.
Sex Offences
R v Phillips: Client convicted of several counts of rape. Appeal to the Queensland Court of Appeal dismissed. Further appeal to the High Court of Australia. Convictions overturned.
R v M: “M” was charged with possession of child exploitation material. On our advice he, after being charged, engaged in significant counselling to address the underlying issues which led to him accessing material. We argued his sentence in the Brisbane District Court and he received a wholly suspended term of imprisonment.
Offences against a person - Common Assault to Murder
R v G: We acted on behalf of “G” who was charged with assault occasioning bodily harm upon his son, “J”. “G” used excessive parental discipline and as a result, the Department of Child Safety became involved in the matter. With our assistance, “G” proactively engaged in counselling and parenting programs. We argued his sentence hearing and despite Prosecution attempts at seeking a custodial sentence, “G” received a fine with no conviction recorded.
R v M: “M” was charged with assault occasioning bodily harm while armed. The allegation against him was that he assaulted a male person with a glass bottle during a street fight. “M” faced a significant risk of custody if his matter proceeded to trial and he was convicted. We made submissions, which were ultimately successful, to the Police Prosecution Corps arguing that the matter should be referred to justice mediation. This means that “M” can informally resolve the matter with the complainant and thereby avoid the costs and uncertainty of a trial which for him included a real risk of actual imprisonment.
R v F: Client originally charged with murder. One punch death scenario. Client found not guilty after jury trial in the Supreme Court.
Offences against property
R v H: District Court sentence for social security fraud, approximately $70,000.00. Custodial sentence avoided due to exceptional circumstances.
R v Wallader: Client convicted in the District Court of possession of counterfeit prescribed securities. Appeal to the Queensland Court of Appeal. Argument centred on the correct interpretation of the definition of the term “counterfeit”. Conviction overturned by Court of Appeal and verdict of acquittal entered.
Crime and Misconduct Commission
WSX v CMC[2012] QSC 405 and EDC v CMC [2012] QSC 406
We acted for both applicants in this recent decision from the Brisbane Supreme Court. Both applicants were served with attendance notices to give evidence at the Crime and Misconduct Commission in relation to incidences of major crime. Both applicants claimed a reasonable excuse not to answer questions relating to their fear of reprisal if they were compelled to answer questions. The CMC denied that the applicants had a reasonable excuse. This decision was successfully appealed to the Supreme Court and we obtained costs from the CMC. The effect of the decision is that both applicants do not have to answer questions under compulsion or face charges of contempt.
Other Cases - Peace and Good Behaviour Application
C v H: We acted on behalf of “H” who was the respondent to a Peace and Good Behaviour application by his neighbour “C”. The factual allegation against “H” was trivial. We formed the view that “H” should not be put to the expense and time associated with a trial. We made an application to have the Peace and Good Behaviour application struck out at an early stage. This was successful. The Court made comment that if “C” institutes a further Peace and Good Behaviour application we would be in a strong position to seek costs from her.
Amendments to Criminal Sentencing in Queensland
New Criminal Penalties set for certain offenders.
Brisbane Times, 18 June 2012: Terry O'Gorman comments on the amendments.
Murderers, repeat child sex offenders and people who kill or evade police would be jailed for longer under tough changes approved for Queensland’s sentencing laws.
State Attorney-General Jarrod Bleijie announced that cabinet had on Monday approved amendments to the criminal code, which would be introduced to parliament this week.
Under the changes, murderers would be jailed for life.
The non-parole period would be raised from 15 to 20 years for the murder of a single victim and from 20 to 30 years for multiple victims.
Repeat sex offenders would also face mandatory life imprisonment, with a 20-year non-parole period.
Repeat offenders would be classified as those who had previously been convicted of a sexual crime punishable by life imprisonment such as rape but had been released on parole and committed a similar offence again.
Furthermore, an offender who killed a police officer carrying out their duties would serve at least 25 years before being eligible for parole.
The maximum penalty for a serious assault of a police officer would also double from seven years to 14 years imprisonment.
This be for offences where the assault results in an injury amounting to bodily harm and involves spitting, biting or projecting any bodily fluid, or where the offender uses a weapon.
Lastly, drivers who tried to evade police would face a minimum $5000 fine and two-year licence disqualification.
‘‘These tough new penalties send a clear and strong message that these offences simply won’t be tolerated,’’ Mr Bleijie said in a statement.
Meanwhile, Queensland Council of Civil Liberties president Terry O’Gorman said the changes would prevent a judge or magistrate from sentencing on the peculiar facts of each case and would cause injustice.
He said there was no justification for the announcement, except the new government wanted to appear to be tough.
‘‘It is a politician’s gimmick,’’ he said.
He said there is nothing wrong with the current system as prosecutors have the chance to appeal if they think a sentence is too lenient.
The planned changes would also tie the hands of parole boards, who decide if an offender is sufficiently rehabilitated.
Children and the Law - 17 year olds treated as adults
Terry O'Gorman comments on Queensland's law on 17 year old children being treated as adults
101.5fm, 1 March 2012: Queensland is the only state in Australia where 17 year old children are treated as adults in the criminal justice system
Police use of Tasers
Police Taser Use Questioned
Staff reporters, Yahoo!7
Updated February 17, 2012, 6:28 am
Internal Queensland Police documents obtained by Seven News, show officers are being disciplined for misusing Tasers.
But not one complaint of assault, or excessive force has been upheld.
In the past two years, there have been 34 investigations into taser misuse by Queensland police officers with 10 resulting in disciplinary action.
Documents obtained under right to information detail weapons being shot into ceilings, and lost in bushland.
One officer pointed an unloaded taser at another pregnant police service employee's stomach.
"I'm not able to go into the punishment that was delivered on that occasion," said Deputy Police Commissioner Ross Barnett.
Another officer was accused of tasering a man, then punching, kneeing and jumping on him.
That, and three other complaints still haven't been finalised.
"Once court's over we then take note of any judicial comment or criticism if there is any about the conduct of the officer using the taser," said Mr Barnett.
No allegations of assault by a member of the public, has been upheld.
Terry O'Gorman of the Council for Civil Liberties is adamant the force have something to hide.
"That either means that every complainant was a liar, or that the police have covered up - this is another police cover up."
Mr Barnett, however, points to something far less sinister.
"Every single complaint is examined and carefully scrutinised by the ethical standards command.
"It is a weapon, and there are very strict guidelines about where it's stored, what's taken out and when it's to be used."
DNA Under Legal Microscope
CHRIS MERRITT, LEGAL AFFAIRS EDITOR From: The Australian March 30, 2010 12:00AM
WHEN juries listen to scientific experts in court, they usually believe what they hear. But should they?
In the case of DNA evidence, the High Court of Australia is about to hear a case that will determine whether the nation's criminal justice system has been sold a pup.
If the justice system has indeed been placing too much faith in DNA evidence, this High Court decision could raise doubts about hundreds of criminal convictions.
Instead of convicting people based on hard scientific evidence, this case could indicate that courts have been sending people to prison based on nothing more compelling than statistical analysis.
Just over two weeks ago, the High Court agreed to hear an appeal by Benjamin James Forbes over his conviction in the Australian Capital Territory - based solely on DNA evidence - on a charge of unlawful sexual intercourse without consent.
This man's argument will come as a shock to those who might have thought the science of DNA analysis was clear-cut.
His silk, Peter Hastings QC, plans to argue that DNA evidence cannot, by itself, be used to convict people on criminal charges because it cannot show conclusively that two samples of genetic material are from the same person.
He will argue that DNA evidence can only show a degree of probability of a match. And because of that, the crucial DNA evidence against Forbes could never prove his guilt beyond reasonable doubt.
If Hastings succeeds, DNA evidence will carry far less weight in the criminal justice system. It will still be used, but people will no longer be convicted based solely on the strength of an expert's evidence about the outcome of DNA tests.
Criminologist Paul Wilson of Bond University believes the Forbes case is extremely significant. "It should lead to a complete overhaul across the nation of how DNA is not just being interpreted, but also collected and analysed," he says.
If that happens, the impact on criminal justice could be profound. A paper issued this month by the Australian Institute of Criminology found that DNA evidence has a powerful impact on jurors, even though they struggle to understand the implications of the evidence.
The AIC paper cites a 2008 study in which jurors who served on six criminal trials in NSW revealed they had difficulty understanding the DNA evidence but nevertheless returned guilty verdicts.
Another study indicated that "juries were 23 times more likely to vote guilty in homicide cases and 33 times more likely to vote guilty in sexual assault cases when DNA evidence was admitted", the AIC paper says.
The weight given to DNA evidence has been hotly debated for some time.
For the past decade, the Innocence Project at Griffith University has been criticising the fact that federal and state prosecutors rely on assertions by scientists of "partial" DNA matches.
Criminal lawyer Chris Nyst, who co-founded the Innocence Project, says the Forbes appeal holds out the hope that the High Court could provide some national direction on the applicable standards for DNA evidence.
"What's going on is the accepted standards are not being reached and despite this, prosecutors are still using DNA evidence to say, `It's not a match using acceptable standards but we say it's still a match; we call it a partial match,' " Nyst says.
There are other problems. Wilson says evidence based on very small samples of genetic material - sometimes just a few cells - is no longer used in Britain, but is still routinely used in Australia.
It is this type of DNA evidence, known as "low copy DNA", that helped convict Bradley John Murdoch of the 2001 murder of British tourist Peter Falconio in the Northern Territory.
Its use was suspended in Britain two years ago, but Wilson says it is still used in most Australian jurisdictions.
In January, the use of DNA evidence in Victoria was suspended for a month after prosecutors conceded there had been a substantial miscarriage of justice.
Victorian man Fara Jama, 22, had been wrongly convicted of rape based solely on the basis of a DNA sample that was later found to have been contaminated.
The Forbes prosecution also placed great weight on DNA. The victim could not identify her attacker but an expert witness said a semen stain on her clothing provided "extremely strong" evidence that Forbes was the source of this material.
In the book Five Drops of Blood, Wilson and co-author Dianne McInnes argue that Queensland spiritualist Andrew Fitzherbert should not have been convicted of the 1998 murder of veterinarian Kathleen Marshall based only on DNA evidence. Their book questioned the quality of the DNA evidence in that case. "Relying solely on DNA evidence for a conviction is very dangerous," Wilson tells The Australian.
Australian Council for Civil Liberties president Terry O'Gorman has long been concerned that juries were being blinded by science, when experience had shown serious problems had arisen when courts convicted people based only on DNA evidence.
He is also concerned that police in Australia had adopted a different approach to their international counterparts. Instead of giving forensic scientists a key role during investigations so they could eliminate potential suspects, Australian police were simply handing over evidence for analysis at the end of an investigation.
Even when genetic material is tested properly, Wilson says he is still troubled by the fact that DNA evidence has difficulty taking account of the genetic traits of particular ethnic groups, such as Aborigines.
DNA evidence merely states the statistical probability of a particular set of genetic markers from a given sample appearing in a sample from someone else within the community. It does not take account of the possibility that these markers might be more common in some ethnic groups than in the community at large, he says.
In the Forbes case, the DNA evidence that was presented to the jury did not state that there was an exact match between Forbes's DNA and the material found on the victim's clothing.
Because the human genome is so large, a complete analysis of the genome for a possible match was not possible. Evidence presented in the Forbes case was based on a comparison of 10 genetic "markers" within each sample.
Wilson says in the past the number of markers examined has tended to vary from state to state and over time. In the Forbes case, expert testimony was given that the term "partial DNA profile" means that information is not present at all 10 locations.
The DNA evidence was that the markers found in the genetic material on the victim's clothing, when compared to the distribution of those markers throughout the general population, were from Forbes.
Wilson says that the probability of one sample of DNA being considered to be a good match depends on the number of samples of DNA from throughout the community that formed the database for the testing laboratory.
This meant that the reliability of DNA evidence - while better than most other forensic science evidence - was still limited.
In the Forbes case, the DNA tests were conducted by the biological criminalistics section within the Australian Federal Police, which holds 620 individual DNA samples that have been collected from throughout the ACT.
Simon Walsh, who was a scientific adviser within that division, gave evidence that it was important to recognise that DNA is no more than a statistical probability, not evidence of an exact match.
"We're able to use those probabilities . . . as a way of estimating, if you like, the commonality or in many cases, the rarity of a particular profile in a particular population," Walsh told the court.
"But they can't be used as an exact number. They are estimates. They are statistical estimates only. And they aren't real numbers, they aren't real observations.
"So it's important not to translate them, from the estimates that they are, to actual real expectations or real numbers."
While the issue is complicated, the essence of what the High Court is being asked to determine is: "If DNA is found, is it either a match pursuant to international standards or is it not a match?"
The Innocence Project's Nyst says the High Court appeal highlights the fact that the public had been under a misapprehension about the reliability of evidence based on DNA testing.
"The problem with this is that it introduces proof by probability, which is a very substantial encroachment on the time-honoured standard of proof that has been applied in this country," Nyst says.
"The man in the street believes that the crown has to prove someone is guilty beyond any reasonable doubt.
"What is happening now is DNA evidence is introducing the concept of proof by probability."
He says the debate over the use of DNA evidence was similar to the erosion taking place in the rigour that prosecutors once applied to the use of fingerprint evidence.
"The High Court's intervention in this issue has been a long time coming," Nyst says.
"We have raised this issue at a political level but no one thought it was important enough. Now that the High Court is seized of the issue, the Innocence Project and many defence lawyers around the country are hoping for some direction from the court."