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].