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:

  1. a person enables, aids, or facilitates domestic violence against another person on behalf of a respondent to a domestic violence order; and
  2. 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.

  1. 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.

 

 

 

OTHER STUFF

 

Neill-Fraser v Tasmania [2019] TASSC 10 (‘Neill-Fraser’) was the first case in which the Tasmanian Supreme Court considered section 402A. Owing to the absence of jurisprudence on the new provision, the judgement in Neill-Fraser relied heavily upon the case of Van Beelen v The Queen 262 CLR 565 (‘Van Beelen’) as this case analysed the almost identical South Australian secondary appeal provision. In Neill-Fraser the Court was asked to consider what ought to be the test for considering whether or not to grant leave to an appellant under section 402A and subsequently what ought to be the threshold for that test. Here, Justice Brett held that the test under section 402A is whether the applicant ‘has a reasonable case to present to the Court of Criminal Appeal in support of the grant of appeal’.[18] This therefore requires consideration of whether there is a reasonable argument of fresh and compelling evidence and whether the presence of that evidence amounts to the possibility that a substantial miscarriage of justice has occurred.[19] However, the Court did note that ‘commonly, where fresh evidence is compelling, the interests of justice will favour considering it on appeal’.[20] Ultimately, this test is to be considered in light of the tension between ‘the need to rectify a substantial miscarriage of justice upon the subsequent discovery of fresh and compelling evidence, and the desirability of the finality of litigation’.[21]

 

Neill-Fraser also provided some analysis on what constitutes fresh and compelling evidence, with particular focus being on compelling evidence.[22] Citing the judgement of Van Beelen, the Court held that in the absence of any other direction, the words 'reliable', 'substantial' and 'highly probative' must be given their ordinary meaning.[23] While each of the three are separate limbs, it is acceptable that there will be some overlap between them. To this end, evidence is said to be reliable if it is credible and provides a trustworthy basis for fact finding.[24] Substantial evidence is said to be evidence that ‘is of real significance or importance with respect to the matter it is tendered to prove’.[25] Lastly, evidence that is both substantial and reliable is likely to meet the test of highly probative, however not always.[26] On this point of probative value Neill-Fraser elaborated, stating that while ‘each piece of evidence asserted as [highly probative in the context of the issues in dispute at the applicant’s original trial] must be assessed independently, but [the] probative value (of such evidence) may be informed by its effect when considered together with other evidence, including evidence adduced at trial, and other evidence subsequently put forward as fresh and compelling evidence’.[27] In other words, when considering whether evidence is highly probative to the issues considered at the applicant’s appeal and therefore whether the evidence is compelling, the Court is able to consider that value in light of the case as a whole.

 

 

[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.

 

  1. 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]

 

  1. 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:

 

  1. ‘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;
  2. the meaning of ‘fresh’;
  3. the meaning of ‘compelling’;
  4. the meaning of ‘in the interests of justice’;
  5. the meaning of ‘substantial miscarriage of justice’; and
  6. 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.

  1. 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.

 

  1. 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):

  1. Ownership of the place where drugs are found is not enough to establish occupation of it.[1]
  2. 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]
  1. The occupier of a place must make use of that place, and have sufficient control of the place to facilitate that use.[5]
  2. 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:

  1. There is an unacceptable risk that the jury may use the evidence prejudicially; and
  2. 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.