QCCL Media Release: Did the DPP consider their own guidelines before Tostee's trial?

The Civil Liberties Council today queried whether Tostee would have faced trial had the prosecution applied their own prosecutorial guidelines. These guidelines require the discontinuance of a charge unless there is both a public interest in the prosecution and sufficient evidence.

“While I am in no way attributing bad faith to the DPP decision to prosecute Tostee, the question is fairly raised whether, on the facts presented in Gabe Tostee’s trial, he would even have been charged let alone prosecuted if he was a female”, Mr O’Gorman said.

Mr O’Gorman said that the facts as reported in today’s media that were put forward in Tostee’s trial this week are as follows:-

  • Tostee’s tape recording of the event had him warning Warriena Wright that he would have to kick her out if she did not stop attacking him;
  • Ms Wright threw rocks from a tray on Tostee’s glass coffee table top at him; and
  • Ms Wright grabbed a heavy metal clamp from a telescope that Tostee kept on his table and swung it at his head.

“Whilst some legal commentators today say that the DPP had no choice but to move forward with the case and that there was sufficient evidence for the matter to be put in the hands of a jury, other commentators take the position that there was not sufficient evidence to justify a charge and that the matter should have been referred in the first instance to the State Coroner”, Mr O’Gorman said.

“While I stress I am not accusing the DPP of bad faith in this prosecution, the prosecution of Tostee highlights the problem of Queensland, and indeed Australian, law that the decision of a Prosecutor to lay charges is utterly unreviewable in the Courts”, Mr O’Gorman said.

“The High Court held for many years (refer Maxwell’s case) that the decision of a DPP Prosecutor to lay charges is unreviewable by a Court”, Mr O’Gorman said.

“Over the 40 years I have practised criminal defence, the law has changed from the 70s and 80s when Judges had power to stop a case if the case was thought to be too weak to the current position where Judges have no such power”, Mr O’Gorman said.

“It is noteworthy in Mr Tostee’s case that the senior trial Judge, Justice Byrne, decided that the evidence, though weak, was enough for a jury to consider if Tostee had murdered Warriena Wright, Mr O’Gorman said.

“I gave a paper last weekend in Adelaide at an International Criminal Law Congress looking at developments in criminal law over the last 30 years noting that the law had reached an unsatisfactory position where the decision of senior Prosecutors to proceed with questionable charges was utterly unreviewable anywhere, particularly unreviewable in the Supreme Court”, Mr O’Gorman said.

Mr O’Gorman said that the powerful position of Prosecutors in deciding on what charge to lay arising from a set of facts thrown up by investigating police is that the centre of power in a criminal case lies not in the Courtroom but in the hands of a senior Prosecutor who decides what charge to lay and picks from a menu of available charges ranging from the most serious through to cases of medium severity and down to the most minor.

“This is a very topical and controversial issue as the Legal Affairs and Community Safety Committee of the Queensland Parliament prepares its report soon to be tabled in the Queensland Parliament on the Palaszczuk Government’s review of the Newman Government’s anti-bikie laws”, Mr O’Gorman said.

“The Explanatory Notes published by Attorney-General Yvette D’Ath acknowledges that under the revamped laws, a person may not face prison for the base offence (the offence a person is arrested for) but could be required to serve a mandatory 7 year sentence on top of a fine or some other non-jail Court order if a person is said to be a participant in a criminal organisation”, Mr O’Gorman said.

“It is clear that as with the Newman Government laws and so with the Palaszczuk Government laws the new proposed serious organised crime with circumstance of aggravation offence will catch non-bikies and will cover such low level criminal activity in a so-called organised crime context that the base offence may not even attract a term of imprisonment”, Mr O’Gorman said.

Mr O’Gorman said that the so-called protection against misuse of the very excessive mandatory imprisonment laws imposed by the Palaszczuk Government is that a decision to lay an organised crime charge will be made by the DPP.

“What the Tostee case shows is that such a prosecution decision is utterly unreviewable in Court, giving Prosecutors unprecedented power to pick the most serious charge resulting in a minimum of 7 years jail on top of the base offence itself not even attracting jail where a lesser charge is open to a Prosecutor to prefer”, Mr O’Gorman said.

Under the VLAD laws, three 18 year olds who take turn about to go into the Valley on a Friday night to buy marijuana in bulk for a Sunday afternoon smoke are likely to have been caught by the mandatory 15 years imprisonment regime under the very widely defined scenario of what constitutes organised crime.

Such a similar or close scenarios are open under the Palaszczuk laws currently before the State Parliament.

“The Palaszczuk Government laws have to be changed so that Prosecutors do not have totally unreviewable power to charge the most serious organised crime offence where a lesser charge would be appropriate and just on the facts of a given case”, Mr O’Gorman said.

“The Palaszczuk Government laws have to be changed so as to dilute the all powerful decision of a DPP Prosecutor to charge a top drawer offence attracting a mandatory prison term. Supervision of the laying of such charges has to be given to the Supreme Court”, Mr O’Gorman said.

Mr O’Gorman can be contacted during business hours on 07 3034 0000 or after hours on 0418 787182


Dan Rogers Delivers Speech at the QUT United Nations Association Networking Event

Dan Rogers, director of Robertson O’Gorman, was invited to the recent QUT United Nations Association Networking Event to speak to students in relation to the protection of human rights.

Mr Rogers was asked to speak about his experiences working at the International Criminal Court in The Hague during 2012. However, students were encouraged to strive to protect human rights locally rather than idolising international human rights lawyers. This, he said, is important as part of a broader involvement in the law.

For Mr Rogers, protecting human rights means representing the rights and interests of vulnerable individuals in crisis. In criminal prosecutions, it means levelling the playing field when a client faces a prosecution by the State with all its might and resources. It means day-to-day advocacy and ensuring a fair outcome in the courtroom.

Call Robertson O’Gorman today on 3034 0000


Queensland's Abolition of the Statutory Limitation Period Regarding Institutional Sexual Abuse

The Premier introduced a Bill to Parliament recently which, if passed, will create an exception to the three year limitation period for personal injury claims in instances where the injury has resulted from sexual abuse in an institutional context.

Limitation periods are a part of Queensland law to remove the threat of open-ended liability; to ensure a defendant is not unfairly prejudiced in proceedings through inability to access documents to defend the claim; and to ensure disputes are resolved as quickly as possible.

Presently, the victims of sexual abuse are required to bring their claim for damages within three years of suffering the abuse. If they are under eighteen years of age at the time of the abuse, the limitation period begins upon reaching that age. It became clear in the recent Royal Commission that some victims take up to 22 years to speak publicly about the abuse they have suffered – more than seven times the current limitation period.

Recommendations 85-86 and 88 of the Commission’s Redress and Civil Litigation Report concerned the removal of state and territory limitation periods. These amendments are largely in response to those recommendations and provide for an exception to the three year limitation period where the injury is caused by institutional sexual abuse. This amendment will apply retrospectively and as such many victims will now have access to justice through civil action in the Queensland courts.

Notably, the amendments preserve the right of the court to stay proceedings where it would be unfair to the defendant to proceed.

There are reports that the Queensland Government is considering the introduction of a redress scheme which will allow victims to access compensation without embarking on the inevitably expensive and stressful court process.

After its presentation to Parliament on Tuesday, the Bill was referred to the Legal Affairs and Community Safety Committee for consideration until 1 November 2016. The Bill is supported by the opposition and is therefore likely to pass.

Follow these links to read more:

  1. Limitations of Actions (Institutional Child Sexual Abuse) and Other Legislation Amendment Bill 2016
  2. Explanatory Note
  3. Hansard

Robertson O’Gorman handles sexual abuse matters with utmost discretion. For experienced and comprehensive legal advice, call us today on 3034 0000.


Robertson O’Gorman listed as a leading Queensland Criminal Law Firm

For the second year in a row, the Doyle’s Guide has ranked Robertson O’Gorman as one of five firms considered to be ‘First Tier’ in Queensland Criminal Law.

In addition to the firm’s recognition, Terry O’Gorman was named a Preeminent Queensland Criminal Lawyer together with Dan Rogers and Leigh Rollason who were named Leading Queensland Criminal Lawyers.

The solicitors at Robertson O’Gorman work tirelessly to achieve the best results for their clients.

To contact Robertson O’Gorman, call 3034 0000.


Dominic Brunello to resume working at Robertson O'Gorman

Robertson O’Gorman welcomes Dominic Brunello back to the firm as he begins work this month.

Dominic has practiced as a criminal defence lawyer since his admission to the roll in 2001. Dominic was trained by Terry O’Gorman, Leigh Rollason and the barristers briefed by the firm. He is deeply committed to protecting the rights of individuals accused of crime by all proper and lawful means. Dominic worked as a solicitor for Robertson O’Gorman in the period 2004 to 2008.

In 2008 Dominic took a job with the Aboriginal Legal Service of Western Australia. His skills as an advocate and legal advisor were recognised by steady promotion. In 2011, he was appointed in-house Counsel.

In Western Australian a ‘fused’ legal profession allows concurrent practice as a barrister and solicitor. Dominic has appeared as a barrister before the District and Supreme Courts in jury trials (including for murder), sentence hearings, bail applications and pre-trial applications. He has successfully argued a substantial number of appeals against conviction and sentence in the Supreme Court and the Court of Criminal Appeal. Dominic has twice appeared before the High Court of Australia.

In 2016, Dominic decided to return to Brisbane and to Robertson O’Gorman. As a solicitor-advocate for Robertson O’Gorman, he will appear without counsel in all courts across Queensland. He will also work closely with senior barristers; undertaking the preparatory work so vital to laying the foundation for a successful defence in court.

Dominic is passionate about criminal law, the protection of human rights and broader social justice issues. He is married with one child.

Read more about Dominic here.


Splendour in the Grass: Know Your Rights

With under three weeks until this year’s Splendour in the Grass festival, it is important attendees and their families keep in mind common legal issues that arise from these sorts of events.

Reminders:

  1. If approached by police you do need to give your name, your address and, if under 17, your age. Aside from these details you have a right to remain silent and are not required to answer police questions.
  2. Unless you have been specifically arrested you do not need to accompany the police to the station.
  3. You should never participate in an interview with police until you have discussed your situation with a lawyer.
  4. Always ask to call your family and / or lawyer if arrested.
  5. Obstructing police can lead to further charges

Alcohol

Police can issue on-the-spot fines for:

  • drinking in a public place (18 years and over)
  • underage drinking or possession of liquor in a public place, even if you're holding a drink for your friend who is over 18
  • being under 18 and found on licensed premises
  • being under 18 and found drinking or just holding a drink for a friend on licensed premises

If you’re 18 at Splendour and you supply alcohol to your underage friends you could face a fine of $11,000.

Drugs

Robertson O’Gorman encourages festival-goers to respect the law. Possessing or supplying drugs attracts heavy penalties, and as such festival-goers should be wary of their responsibilities prior to entering the festival.

If you are stopped because a police dog indicates you might have drugs, this gives Police ‘reasonable suspicion’ and they are within their rights to search you. You must give your full name and your address, but otherwise you have the right to remain silent. In many instances, first-time offenders will be given the opportunity to undertake a drug diversion course and won’t have to attend court.

If you are arrested, contact Robertson O’Gorman immediately on our 24-hour contact line (07) 3034 0000.

ID

Using someone else’s ID card or creating a fake card is illegal. Lending someone your own ID can also lead to a fine.

Other common situations;

In the festival environment it is important to also remember that assault and sexual assault can lead to severe criminal penalties. Public nuisance, wilful exposure, trespassing and drink driving are other offences to be aware of.

If you need legal advice, contact Robertson O’Gorman on our 24 hour line (07) 3034 0000.


Appeal a Win for Youth Rehabilitation

Robertson O’Gorman received instructions to appeal a sentence for a client that had previously been represented by another firm. He had pleaded guilty to trafficking methylamphetamine, among other related charges. For this, he was sentenced to 10 years’ imprisonment. Importantly, this meant that a serious violent offence declaration was made and as such, he was required to serve at least 80 percent of that time in custody. Under other circumstances, it is common practice for a defendant to serve only one third of the sentence before being eligible for parole or a suspension of their sentence.

On appeal, it was argued that the sentence imposed was manifestly excessive because it did not properly take into account the client’s youth or the time spent in pre-sentence custody. The client was aged 18 to 19 at the time of trafficking, but the sentencing judge had been led to believe the offending continued to until the client was 21 years old. The courts in Queensland place significant weight on the age of an offender when sentencing. Notably, they distinguish between ‘extreme youth’, which is considered to be between the ages of 17 and 19, and ‘youth’ which is up to the age of 21. This distinction is due to the fact that prospects for rehabilitation are generally considered to be much higher for younger offenders, especially when they have no previous convictions.

One further issue addressed on appeal was whether the sentence of a co-offender, and in particular the making of a serious violent offender declaration, should affect our client’s prospects of a reduced sentence. The Court of Appeal accepted our argument that parity may be displaced by a legislative provision that results in the mandatory imposition of such orders.

Our client was resentenced to 9 years’ imprisonment. The serious violent offender declaration was removed, and as such our client is now eligible for parole after serving 3 and a half years in prison. This represents a dramatic difference to a young person’s life.

The appeal addresses the need for rehabilitation of youthful offenders. In many cases, including this, a young person is far less culpable for their actions than a mature adult might be in the same situation. Furthermore, with their whole lives ahead of them, avoiding recidivism through effective rehabilitation and appropriate sentencing is of utmost importance.


Louisa Pink Appointed as Magistrate

Robertson O’Gorman congratulates Ms  Pink on her appointment to the magistracy announced today by the Attorney General.

Ms Pink has been working in criminal defence since 2004, and joined the team at Robertson O’Gorman in 2006. She has been involved in the conduct of cases before all courts including the High Court, Court of Appeal, Mental Health Court and Children’s Court and has regularly appeared as a solicitor advocate in the Magistrates Court, commissions and tribunals.

Ms Pink worked initially in the Office of the Special Prosecutor responsible for post Fitzgerald Inquiry prosecutions before working for the Parliamentary Criminal Justice Committee overseeing the (then) CJC.  Her early career ultimately led to work at a high level in Government in the development of legal policy. Over the last 12 years she has worked as a solicitor in private practice as a criminal defence lawyer.

She has been involved in a number of community initiatives, including the Prisoners Legal Service and most recently served as President of the Law & Justice Institute (Qld).

Ms Pink will be sworn in on Tuesday 3 May, after which she will take up a position at the Caboolture Magistrates Court.


The Panama Papers Leak and its Implications for Australian Business

Earlier this month, an unprecedented leak of confidential information made headlines across the globe. Millions of documents from Panamanian law firm Mossack Fonseca were provided to the German newspaper Sueddeutsche Zeitung. The International Consortium of Investigative Journalists alongside some 400 journalists began analysing the enormous amount of data in early 2015, a year before any information relating to the leak was published.

The Panama Papers have revealed details of offshore financial arrangements which shed light on the highly complex areas of tax avoidance and money laundering. Leading politicians and sports stars have been named alongside international criminals as clients of Mossack Fonseca.

Tax avoidance and money laundering has been the subject of much media attention, and is often considered a serious scourge on the modern world. Some of the world’s richest and most powerful people use offshore companies to hide assets and income from their respective governments.

But not all offshore companies are created or used for illegal purposes. In fact, many businesses have perfectly legitimate reasons for concealing their identity and assets from malicious competitors and enemies. Unfortunately, leaks such as this fail to distinguish between the illegal and the unethical. There is, and should be, a distinct line between the two. Tax evasion is illegal; tax avoidance is completely legal.

Our government has legislated a detailed and comprehensive set of rules that Australian businesses are required to follow. Most companies comply with the rules and regulations that govern their industry. Since 2006, however, the Australian Tax Office has recovered over $1 billion through its crime investigation activities. Whether or not a company has met their tax obligations is often a complex question which involves significant factual and legal analysis. Rather than allowing popular and often misguided opinion dictate the state of Australian taxation, objectivity must be maintained in the executive and judicial branches of government.

Robertson O’Gorman has extensive experience representing those charged or investigated for financial and corporate crime. Call us today on 3034 0000.


Police Powers when it comes to DV

With recent and indeed future DV amendments it is timely to consider the particular powers police have in relation to situations of possible Domestic Violence. Sometimes domestic violence situations will grant police additional powers or exemptions from usual requirements or rules.

For example, police can arrest you without if you are reasonably suspected of breaching a domestic violence order.

Similarly section 609 of the Police Powers and Responsibilities Act allows police to enter your home without a warrant if there is an urgent circumstance of domestic violence occurring. They can then stay for as long as is reasonably necessary to find out what is happening and to take action to help a person or remove the risk of injury or damage.

If you need advice about domestic violence call us on 3034 0000 to speak to a solicitor experienced in this area.