FIREARM PROHIBITION ORDER by Terry O'Gorman

FIREARM PROHIBITION ORDER

 

If you have a legitimate need for access to firearms including if you are engaged in farming or related activity, close attention needs to be given to the proposed Firearm Prohibition Order which was introduced under the Community Safety Bill that was brought into Queensland Parliament on Wednesday 1 May 2024 by Police Minister Mark Ryan.

 

It is claimed that the Queensland FPO Model aligns with similar schemes used throughout Australia but the extent to which schemes in other States protect potential miscarriages of justice from occurring with FPOs was not referred to by the Minister in his Introduction Speech.

 

The new FPO Scheme will allow the Queensland Police Commissioner to make a Firearms Prohibition Order without having to get Court approval for a duration of 60 days if the Commissioner is satisfied it is in the public interest to make the Order.  If a longer duration is necessary the Commissioner may apply to the Court for a further FPO.

 

The term ‘public interest’ requires close analysis as to the ease with which a Police issued FPO can occur.

 

The Bill provides that when considering if it is in the public interest to make an FPO the decisionmaker may have regard to:-

 

  • the individual’s criminal or domestic violence history including whether a person has been subject to a Domestic Violence Order;

 

  • the individual’s behaviour, particularly violent or aggressive behaviour;

 

  • whether the individual has communicated to another individual that they intend or wish to commit a serious offence;

 

  • whether the individual has been subject to an Order under the Dangerous Prisoners (Sexual Offenders) Act 2003; and

 

  • any other matter or information which indicates possession of a firearm by an individual would be likely to pose a risk to public safety or security.

 

If a person needs access to a firearm for their work by being employed in the rural sector or as a security guard he/she can have a Police FPO Order made against them simply on the basis that they are subject to a Domestic Violence Order.  In that regard many people agree to Domestic Violence Orders without admissions in order to avoid the emotional upset and costs of fighting a Domestic Violence Order and in that regard it is particularly important to note that domestic violence is defined in the relevant law as including coercive control or even emotional or economic abuse.

 

The Queensland Police can consider an individual’s ‘aggressive behaviour’ in deciding whether to issue an FPO.  Such ‘aggressive behaviour’ does not even have to be the subject of a criminal charge.

An FPO can also be made where an individual has communicated to another individual that they intend or wish to commit a serious offence.  It would be acceptable for an FPO to be laid by a Police Officer if the serious offence involved potential grievous bodily harm or a bank robbery or the like and there is an immediate threat of that event happening.  It can be imagined, however, that particularly in domestic violence cases a person can falsely accuse a spouse or a partner of having made a threat that they intend or wish to commit a serious offence where the allegation is ’word against word’ in the context of a bitter breakup of a relationship.

 

It is to be noted that the proposed scheme allows a Police Officer delegated by the Police Commissioner to issue an FPO for 60 days.  While a person may appeal the making of the Order, the delay and costs inherent in an Appeal are considerable.

 

While control of firearms within the community is vital, it is important that unintended consequences that can flow from a Police issued FPO for 60 days before the Police have to go to Court be addressed as a matter of urgency before this Bill is passed by Parliament.

 

What happens to a farmer who requires access to a firearm for his/her work including dealing with wild animal attacks on stock if the local Police Officer serves him/her with an FPO.

 

Imagine the scenario of a helicopter pilot whose job it is in rural areas to cull wild animals from the air if that person can lose their livelihood immediately a Police Officer issues an FPO without the matter first having to go to Court.

 

The FPO proposal should be changed to require the Police to get a Court Order before an FPO can be issued particularly in relation to people whose occupations are at risk if they are no longer able to access firearms.

 


Media Release - Criminal Cases Review Commission by Terry O'Gorman

The Folbigg Pardon highlights the necessity to establish a national Criminal Cases Review Commission in Australia.

 

Queensland Council for Civil Liberties Vice-President Terry O’Gorman said that the Folbigg case shows how the current system for remedying miscarriages of justice in Australia is dependent on politicians agreeing to set up a Special Inquiry into a case said to be a miscarriage of justice.

 

“The more controversial the case the less likely a politician (usually the Attorney-General) will set up a public inquiry to ascertain if a miscarriage of justice has occurred because the Attorney-General/politician fears a law and order blowback”, Mr O’Gorman said.

 

Mr O’Gorman said that the UK (England, Wales and Scotland) have had Criminal Cases Review Commission for years and New Zealand set up a similar body in 2019.

 

“The Folbigg case amply demonstrates the necessity for a national Criminal Cases Review Commission in Australia”, Mr O’Gorman said.

 

Mr O’Gorman said that public inquiries into miscarriages of justice are set up by the government of the day in the various States and Territories and the person constituting the Inquiry and Counsel Assisting is chosen by the government.

 

Mr O’Gorman said that as the New Zealand Minister for Justice said in his cabinet submission for a Criminal Cases Review Commission “there is a public perception that the status quo is not sufficiently independent of the Executive (government of the day) to remedy miscarriages of justice.[1]

 

“If New Zealand with a population the size of Queensland has acted on the necessity to establish a Criminal Cases Review Commission it is particularly important that a national Criminal Cases Review Commission spanning all Australian States and Territories be established, Mr O’Gorman said.

[1] See Minister of Justice New Zealand Cabinet submission on establishing a Criminal Cases Review Commission.


Blog - New Queensland Domestic Violence Laws introduced 14 October 2022

NEW QUEENSLAND DOMESTIC VIOLENCE LAWS

INTRODUCED FRIDAY 14 OCTOBER 2022

 

New domestic violence laws which start to implement new coercive control laws were introduced into the Queensland Parliament on Friday 14 October 2022.

 

Coercive control constitutes a pattern of behaviours perpetrated against a person to create a climate of fear, isolation, intimidation and humiliation.

 

In March 2021 the Queensland Government established a Taskforce to examine coercive control and review the need for a specific offence of domestic violence.  The Taskforce recommended the creation of a new standalone offence of coercive control.  However it also made it clear that, prior to the introduction of a standalone offence, system wide reform was needed to ensure sufficient services and supports are in place across the DV service and justice systems, along with critical amendments to existing legislation which should be implemented immediately.  This includes that systems need to respond better to coercive control through a shift from focusing on responding to single incidents of violence to focusing on the pattern of abusive behaviour that occurs over time.

 

The Taskforce recommended immediate legislative reforms that are required to strengthen Queensland’s current response to coercive control and this Bill implements those recommendations through amendments to the Criminal Code, the Domestic Violence Act, the Evidence Act and the Penalties and Sentences Act.

 

Victims of coercive control told the Taskforce about the prevalence of stalking and harassing behaviour particularly electronic surveillance of them and their children.  The Taskforce also noted that the stalking offence is underused by Police and Prosecutors in the context of coercive and controlling behaviours.

 

The amendments in the Bill seek to reflect the association between stalking and domestic violence and to ensure that traditional attitudes, practices and misconceptions do not impede the offence being used to hold perpetrators to account.  The Bill modernises the offence of stalking so that it reflects criminal behaviour including the interaction between stalking and coercive control.

 

The offence of stalking is to be renamed “unlawful stalking, intimidation, harassment or abuse” and will broaden the type of offending captured by the offence and better reflect the way an offender might use technology to facilitate stalking, intimidation, harassment or abuse.

 

The additional conduct that will be captured by the new offence of stalking, intimidation, harassment or abuse will include contacting a person in any way using any technology and monitoring, tracking, or surveilling a person’s movements, activities or interpersonal associations without the person’s consent.  This includes checking the recorded history in a person’s digital device, reading a person’s SMS messages, monitoring a person’s email account or internet browser history and monitoring a person’s account with a social media platform.

 

It will also include publishing offensive material on a website or social media platform in a way that will be found by or brought to the attention of a person.

 

It will include giving offensive material either directly or indirectly to a person including by using a website or social media platform.

 

It will also include a threatening, humiliating or abusive act against a person whether or not involving violence or the threat of violence with an example of that conduct being publishing a person’s personal information such as the person’s home address or phone number on a website.

 

The Bill introduces a new circumstance of aggravation with a maximum penalty of 7 years imprisonment for the offence of stalking, intimidation, harassment or abuse if a domestic relationship exists between the offender and the stalked person, and domestic relationships will include former relationships.

 

The Bill will increase the maximum penalty for the offence of contravening a Restraining Order under the stalking legislation to 3 years imprisonment and the Bill also provides for a circumstance of aggravation if the person has been convicted of a domestic violence offence in the 5 years before the contravention of the Restraining Order.  The maximum penalty for contravening a Restraining Order with a circumstance of aggravation will be 5 years imprisonment.  The maximum penalty will apply regardless of whether the domestic violence offence was committed before or after commencement of the Bill.

 

Contravening a Restraining Order with a circumstance of aggravation will be an indictable offence but the Bill provides that an offence of contravening a Restraining Order with a circumstance of aggravation must be heard and decided summarily (in the Magistrates Court) unless the Defendant elects for Trial by Jury.

 

The Bill provides that when a Court makes a Restraining Order the default period is 5 years unless the Court is satisfied that the safety of a person in relation to whom the Restraining Order is made is not compromised by a shorter period.

 

The Explanatory Notes to the Bill observe that the current definition of domestic violence sends a confusing message about the nature of coercive control in domestic violence and may contribute to misidentification of domestic violence by not properly reflecting coercive control as being the key component of domestic violence.

 

The Bill makes it clear that domestic violence includes behaviour that may occur over a period of time, includes individual acts that, when considered cumulatively, are abusive, threatening, coercive or cause fear, and must be considered in the context of the relationship as a whole.  There will be a shift from focusing on responding to single incidents of violence to focusing on the pattern of abusive behaviour that occurs over time.

 

The Bill also considers cross-applications and requires that applications and cross‑applications be heard together.

 

The Bill requires the Court to identify the person most in need of protection in the context of the relationship as a whole and only enables the Court to make one Order to protect the person most in need of protection, unless there are exceptional circumstances where there is clear evidence that each of the parties in the relationship are in need of protection from each other.

 

The Bill provides that a person is most in need of protection when the behaviour towards them is more likely than not to be (1) abusive, threatening or coercive or (2) controlling or dominating causing the person to fear for their safety or wellbeing or that of their child, another person or a pet and the person’s behaviour is more likely than not to be for the self protection of themselves or their child, another person or a pet, in retaliation of the other person’s behaviour towards them or attributable to the cumulative effect of the other person’s domestic violence towards them.

 

In deciding the person most in need of protection the Court must consider the history of domestic violence and the relationship between the parties, the nature and severity of the harm caused to each other, the level of fear experienced by each person, which person has the capacity to seriously harm the other person or control or dominate the other person and cause fear, and whether the persons have characteristics that make them particularly vulnerable to domestic violence.

 

The Domestic Violence Act will be amended to specify that where a party has intentionally used proceedings as a means of committing domestic violence including coercive control the Court has the power to award costs against them.  The purpose of this is to ‘signpost’ to Lawyers and systems abusers that the Court has the power to award costs against people who use the legal system to continue abusive, coercive and controlling behaviour and the Bill specifically describes this type of behaviour as systems abuse or legal abuse.  This is behaviour in which a person intentionally misuses the legal system to intentionally exert control or dominance over the other person or to torment, intimidate or harass the other person.

 

A person’s criminal and domestic violence history is to be put before the Court to help determine the risk to the Aggrieved and whether to make a Protection Order and to assist in best tailoring the conditions of the Order to keep the victim safe.

 

The Court must consider the Respondent’s criminal and/or domestic violence history when making a Protection Order including a Temporary Order including a Domestic Violence Order by consent.

 

A Respondent’s domestic violence history will state where a previous Domestic Violence Order has been made by consent which is intended to assist the Court in determining the weight to place on the history as Orders made by consent do not require a finding that domestic violence has occurred.

 

There are also amendments to the Evidence Act to create a new category of protected witness with respect to any domestic violence offence including an offence of contravening a Domestic Violence Order.  The prohibition on direct cross‑examination is extended to this new category of protected witness thereby bringing the complainant of a domestic violence offence within the protected witness scheme.

 

The current Section 132B of the Evidence Act which allows for relevant evidence of the history of the domestic relationship between the Defendant and Complainant to be admitted in criminal proceedings will be extended to cover all offences in the Criminal Code.

 

The Bill also makes evidence of domestic violence admissible whether that evidence relates to the Defendant, the person against whom the offence was committed, or another person connected with the proceeding.

 

The Bill implements a Taskforce finding that the full context of victim experiences of coercive control is not being consistently admitted in Court proceedings and has implemented a Taskforce finding that the patterned and cumulative nature of coercive control manifests in complex ways, is often not well understood and that domestic abuse can cause emotional and psychological harm to a victim.  The Bill implements a Taskforce recommendation that the ability to present expert evidence on these issues may be needed to aid Juries and Judicial Officers in understanding and evaluating evidence from victims of coercive control.

 

The Bill defines an expert on the subject of domestic violence to include a person who can demonstrate specialised knowledge, gained by training, study or experience, of a matter that may constitute evidence of domestic violence.  These provisions are modelled on Section 39 of the Evidence Act (WA).

 

The Taskforce found that many members of the community do not understand how the dynamics of domestic violence may impact on the behaviour of victims of DV such as why a victim of DV may remain in an abusive relationship.

 

The Bill provides the Court with a discretion to give Jury directions that address misconceptions and stereotypes about domestic violence.  The amendments seek to enable Juries and Judicial Officers to be better informed and able to consider evidence of domestic violence that has been raised during a Trial.  These provisions are also based on the Western Australian Evidence Act.

 

Section 11 of the Penalties and Sentences Act is amended to provide that the history of Domestic Violence Orders against an offender may be considered by a sentencing Court when determining an offender’s character.

 

A change to Section 359F of the Criminal Code to create a circumstance of aggravation where a previous domestic violence offence has occurred operates with a partial retrospective effect to the extent that a conviction for a domestic violence offence which occurred before the commencement of the Bill will be recognised as a previous offence for the purposes of the new circumstance of aggravation.  The retrospective operation of the amendments is limited by the requirements that the offence be committed within the 5 years prior to the commencement.

 

 

Terry O’Gorman (Acc Spec (Crim) Qld)[1]

Robertson O’Gorman Solicitors

 

[1] The observations in this article are drawn from the Explanatory Notes of the legislation introduced on Friday 14 October 2022 in the Queensland Parliament.


Blog 2 - Women’s Safety & Justice Taskforce Report

This is article two in a series of articles dealing with the July 2022 report of the Women’s Safety and Justice Taskforce headed by the Honourable Margaret McMurdo AC.  This article will look at the major recommendations of the Report.

 

There were 188 recommendations many of which related to improving investigative procedures concerning sexual assault, and related matters.

 

The main recommendations are as follows:

 

  • That the Queensland Government establish a Victims’ Commissioner as an independent statutory office to promote and protect the needs of victims of all violent offences. The Commissioner will have a specific and dedicated focus on victims of domestic and family and sexual violence. (Recommendation 18)

 

  • That the Queensland Police Service (QPS) review and update Operational Policies and Procedures about the investigation of sexual violence cases. This will include reviewing policies and procedures relating to the use of pretext phone calls and questioning victim-survivors including about their intoxication at the time of the offence and matters that may be relevant to the excuse of mistake of fact.  (Recommendation 30)

 

  • That the Queensland Police Service ensure that only specialist trained officers interview victim-survivors in sexual offences when a victim agrees to a recording being used as their evidence in chief in a criminal proceeding. (Recommendation 31)

 

  • That the Attorney-General amend Section 348 of the Criminal Code (Meaning of Consent) and 348A (mistake of fact) in relation to consent to provide that consent must be freely and voluntarily agreed rather than ‘given’ and that no regard must be had to the voluntary intoxication of an accused person when considering whether they had a mistaken belief about consent to sexual activity. (Recommendation 43)

 

  • That an independent Sexual Violence Case Review Board be established and chaired by the proposed Victims’ Commissioner and that the Board will consist of representatives from the DPP, QPS, professionals with sexual violence experience, people with lived experience of sexual violence and Aboriginal and Torres Strait Islander peoples and that the Board will review reports prepared by the QPS and the DPP about the respective agencies’ involvement in sexual offence cases and make recommendations to the Queensland Government about practice, policy, performance and systemic improvement. (Recommendation 46)

 

  • That the DPP review guidelines dealing with downloading information from a mobile phone or other device of a victim of sexual violence and the disclosure of relevant information in accordance with legislative obligations and the process for Defence lawyers to obtain additional information they consider to be relevant. (Recommendation 47)

 

  • That the QPS liaise with relevant technology companies to explore the feasibility of establishing a mechanism to enable the partial download of information from mobile phones and other devices of victim-survivors to enable only relevant information to be obtained and to protect and promote a victim-survivors right to privacy. (Recommendation 47 and 48)

 

  • That there be amendments to the Evidence Act to provide that the evidence of a victim or special witnesses in sexual proceedings be video and audio recorded for use in any retrial.

 

  • That the Attorney-General introduce the use of “ground rules hearings” for domestic and family violence and sexual offences. (Recommendation 57)

 

  • That the Queensland Intermediary Scheme pilot program consider whether the scheme should be expanded to apply to proceedings involving adult victims of sexual violence. (Recommendation 62)

 

  • That there be a Specialist Accreditation Scheme in relation to sexual violence cases and issues related to women and girls as accused persons and offenders in the criminal justice system. (Recommendation 68)

 

  • That there be a specialist list for sexual violence cases in the District Court. (Recommendation 69)

 

  • That the DPP design and implement a new operating model for the prosecution of sexual violence cases. (Recommendation 74)

 

  • That the law relating to similar fact (coincidence) and propensity (tendency) evidence in relation to all offences of a sexual nature be changed by adopting relevant Sections of the Evidence Act 1995 (NSW). (Recommendation 75)

 

  • Expand admission of preliminary complaint evidence under the Criminal Law (Sexual Offences) Act to all domestic violence offences and that there be expanded use of preliminary complaint evidence generally including in sexual offence prosecutions. (Recommendation 76)

 

  • That there be revised jury directions to be given that address misconceptions about sexual violence. (Recommendation 77)

 

  • That the Evidence Act be amended to allow for the admission of expert evidence about the nature and effects of domestic and family violence and sexual violence. (Recommendation 79)

 

  • That the Department of Justice establish an expert evidence panel for sexual offence proceedings that can be used by the Prosecution, Defence and the Court. (Recommendation 80)

 

  • Remove the restriction on publication of the identity of an adult accused of a sexual offence before a committal hearing where it would not identify or tend to identify a victim-survivor. (Recommendation 83)

 

  • That a sustainable long term plan be developed for the expansion of adult restorative justice in Queensland for victim survivors to access. (Recommendation 90)

 

  • Repeal the offence of begging in a public place and being intoxicated in a public place. (Recommendation 101)

 

  • The Minister of Police be required to maintain a register to be regularly published about the number of adults and children held in police Watchhouses, the length of stays and compliance with minimum standards of care for people detained in police Watchhouses. (Recommendation 107)

 

  • That a police officer or a court considering bail have regard to the probable effect that a refusal of bail will have on a person’s family or dependants and to consider a person’s obligations to family responsibilities when making bail conditions. (Recommendation 110)

 

  • That the Chief Magistrate pilot a women’s list within the Court Link program operating within the Magistrates Court. (Recommendation 124)

 

  • That the Penalties & Sentences Act be amended to require the court to consider the hardship that any sentence would impose on the offender including requiring the court to consider the probable effect that any sentence would have on the person’s family or dependants and whether or not circumstances are ‘exceptional’. (Recommendation 106)

 

  • That the Queensland Government implement the recommendations of the Sentencing Advisory Council’s Community based sentencing orders, imprisonment and parole options report to support women being sentenced to community based orders rather than short periods of imprisonment. (Recommendation 127)

 

  • To provide that any person in participating in a program or a service while on remand in custody and anything said or done while participating in a program or engaging in a service cannot be used in evidence in any criminal, civil or administrative proceedings relating to the offence for which the detainee has been charged. (Recommendation 149)

 

  • That there be whole of criminal justice system oversight in strategic leadership including in relation to advising on evidence based whole of Government and whole of system solutions to reduce the rate of offending and re-offending in the rate of imprisonment. (Recommendation 179)

 

  • That the Queensland Government establish a Victims’ Commissioner. (Recommendation 181)

 

 

All of the above recommendations selected from the total of 188 recommendations will be considered in future articles.

 

 


Blog 1 - Women’s Safety & Justice Taskforce Report

In July of this year the Women’s Safety & Justice Taskforce released its report dealing with Women & Girls’ experiences across the criminal justice system.

 

This is a first of a series of short articles which will examine the main recommendations of the Report.  Any criticism of proposed changes will appear under the heading “Comment”.

 

The Taskforce was chaired by the Honourable Margaret McMurdo AC who was president of the Queensland Court of Appeal until March 2017.  The other members of the taskforce were:-

 

  • Dr Nora Amath from the Islamic Women’s Association of Australia
  • Deputy Commissioner Tracy Linford APM, Queensland Police Service
  • Di MacLeod, Deputy Chair, Queensland Sexual Assault Network
  • Philip McCarthy QC, Deputy Director of Public Prosecutions (Qld)
  • Gillian O’Brien, Manager of WWild, a sexual violence prevention association supporting people with intellectual or learning disabilities who have experienced sexual violence
  • Professor Patrick O’Leary, Griffith University who has worked in the area of gendered violence as a social worker and now researcher for over 25 years
  • Alexis Oxley, Solicitor Legal Aid Queensland who was admitted in 2002 and has practised in family law and criminal law for 8 years
  • Laura Reece, Barrister since 2006 and a member of the Criminal Law & Human Rights Committee of the Queensland Bar Association
  • Thelma Schwartz, Principal Legal Officer, Queensland Indigenous Family Violence Legal Service
  • Kelly-ann Tansley who has extensive experience delivering domestic violence services in Queensland.

 

In the Foreword, it was noted that the Taskforce received 19 submissions from women who are offenders and 250 submissions from victim-survivors of sexual assault. The Taskforce held 79 consultations with stakeholders.

 

The Foreword notes that victims of sexual assault told the Taskforce that they want changes to the laws about sexual assault including the way police, prosecutors and defence lawyers treat them and the way trials are conducted.

 

The report makes 188 recommendations described in the Foreword as “about changing the law relating to sexual assault and improving criminal justice responses…”

 

In the Introduction to the Report it was noted that victim-survivors told the Taskforce that it felt to them as if the legal system starts from the position that an accusation of sexual violence is a lie and works its way backwards to discover if that accusation is true.  The Introduction notes that ‘that is often a fair observation’.

 

The Introduction notes that victim-survivors of sexual violence experience the flipside of the presumption of innocence which will necessarily require some focus on the credibility of a person who makes an accusation of sexual violence against another person.

 

The Introduction notes that the Taskforce has agreed with the observation that it should not be necessary for the legal process to humiliate a victim-survivor in order to determine whether they are credible and reliable and that women and girls think courts, defence lawyers and prosecutors could do better.

 

This report, and its recommendations, might significantly change the way in which serious criminal allegations are investigated and litigated. It is vital the defence lawyers, and all persons who work in the criminal justice system, understand these significant recommendations.

 

The next in this series of short articles about the Taskforce Report will concentrate on the main recommendations for change arising out of the Taskforce’s work.

 

 

Terry O’Gorman

Robertson O’Gorman

 


Commemoration of abolition of death penalty Queensland 1922-2022.

Closing remarks by Terry O’Gorman

 

On Monday, 1 August 2022 an important seminar was held in the Premier’s Hall at Parliament House to commemorate the abolition of the death penalty in Queensland in 1922. 1 August 2022 was the centenary anniversary of that historic event. Robertson O’Gorman Solicitors proudly sponsored the seminar. I was invited to present some closing remarks. These are my remarks as they concern the opening and key note address by the Hon. Michael Kirby AC CMG, a retired Justice of the High Court of Australia.

 

Michael Kirby, in looking at the history of the High Court upholding a number of death sentences, looked to the future in terms of addressing miscarriages of justice today even though the death penalty in Queensland has now been abolished for over a century.

 

Mr Kirby examined the long established law that has effectively been in existence since the Criminal Code Act 1899 (Qld) came into effect in 1899 namely, that a person convicted in a Judge and jury trial has only one opportunity to appeal to the Queensland Court of Appeal.

 

Mr Kirby noted that this rule had thrown up a number of cases where apparent serious miscarriages of justice were unable to be reversed by the Court of Appeal. The apparent and historical justification for the rule is the requirement that there be a finality to criminal litigation. However, times have changed and advances in medical and forensic technology can cast serious doubt on convictions. So too can other forms of evidence uncovered after a conviction.

 

Mr Kirby noted that Tasmania, South Australia, Victoria and Western Australia have in the last number of years abolished this rule.  In those States, if an accused person can persuade a single Supreme Court Judge that evidence has emerged that is fresh and compelling a single Supreme Court Judge can then refer the matter to the Court of Appeal for a ‘second’ appeal hearing.

 

These States have found it necessary to introduce such a rule because the Pardon process in Australia is unwieldy and effectively requires the agreement of the Attorney-General to refer a matter back to the Court of Appeal if fresh evidence emerges.

 

Experience shows that in Queensland cases are very rarely referred back to the Court of Appeal by way of the Pardon process as the Attorney-General takes advice from the Director of Public Prosecutions (DPP) in deciding whether to refer a matter to the Court of Appeal and unsurprisingly, the DPP as the prosecuting body rarely, if ever, advise the Attorney-General to refer a matter back to the Court of Appeal.

 

With four of the eight criminal jurisdictions in Australia having changed the law to allow a person with fresh and compelling new evidence to be able to seek their case be further considered by the Court of Appeal, it is time for a similar reform to occur in Queensland.

 

Justice Kirby also highlighted the related importance of a Criminal Cases Review Commission being established in Australia.  He pointed out that a similar body exists in the United Kingdom, Scotland, Ireland, New Zealand and Canada.

 

The first Criminal Cases Review Commission was set up over 20 years ago in the United Kingdom following the Birmingham 6 awful miscarriage of justice where the various accused were ‘fitted up’ by the investigating police for the terrible bombing of a Birmingham pub during the so-called Irish ‘Troubles’.

 

The UK Criminal Cases Review Commission has had a reasonably successful track record in referring miscarriages of justice back to the Court of Appeal via a process where an accused person can approach the Commission and if that person’s case is taken on by the Commission, in-house investigators carry out enquiries. If a sufficiently strong case is established, they then refer the matter back to the UK equivalent of Queensland’s Court of Appeal for a further appeal and review of the conviction.

 

A Criminal Cases Review Commission is well overdue in Australia and is needed in conjunction with the law changes in those States which now permit the ‘leave’ of a single Supreme Court Judge to refer a second Appeal/Review to the Court of Appeal.

 

Most accused who can mount a case that they are wrongly convicted do not have the resources to engage lawyers and experts to prepare a case for referral back to the Court of Appeal. Access to justice is a Government responsibility. A Criminal Cases Review Commission should be established in Australia mirroring national bodies such as the Australian Federal Police and the Australian Criminal Intelligence Commission.

 

There is also a strong argument for a Criminal Cases Review Commission to be established as a Federal body. This is because the cost of establishing a separate State based Criminal Cases Review Commission would be prohibitive and duplicitous. Furthermore, having investigators from a national body, with no ties to Queensland Police or the Queensland criminal justice system, would give the necessary ‘distance’ and impartiality that is necessary for a reinvestigation of a credible miscarriage of justice prior to referring it back to the Court of Appeal in those States that have the machinery for a second appeal.

 

Mr Kirby, in his address, made it clear that the lessons to be learnt from miscarriages of justice in the death penalty era are just as applicable now as they were then namely, that miscarriages of justice occur and if there is no machinery to address these miscarriages it can hardly be said that Australia has a properly functioning and fair criminal justice system.


Whiskey Au Go Go Inquest - verballing allegations against police by Terry O'Gorman

Evidence given by a former Queensland Homicide Detective at this week’s Whiskey Au Go Go bombing inquest that verballing allegations against police were “what criminal lawyers did in those days” is a tired old almost 50 year refrain by senior former Queensland Police trying to rewrite history.

 

Former Detective Slatter who in 1973 was with the Brisbane Homicide Squad said that police would go to court with a signed confession by a suspect witnessed by a Priest and would still be accused of verballing.

 

In April 1977 an Inquiry into the Enforcement of Criminal Law in Queensland headed by Supreme Court Judge George Lucas listed as its most important recommendation “the mechanical recording of interrogations by police…this will eliminate or greatly reduce the protracted enquiries which take place in so many trials (on this topic)”.[1]

 

A large part of the Inquiry was devoted to the topic “Are changes in the law desirable to inhibit the fabrication of evidence by police officers or other persons”.[2]

 

The Inquiry found “…the allegations relating to the fabrication of evidence by police officers were many.  We have come to the conclusion that fabrication of evidence by police officers – particularly of confessional evidence – does occur.  The sad truth is that “verballing”, as it has become known, is a device that is not uncommonly employed by certain members of the police force…”[3]

 

Despite the mandatory tape recording of police interviews being the major recommendation of the 1977 Inquiry it did not happen for another 12 years.

 

Why? Because the powerful Queensland Police Union of the day opposed it.

 

And so the verbal flourished until part way through the Fitzgerald Inquiry after the Premier Joh Bjelke-Petersen-appointed Police Commission Terry Lewis was stood down on charges of corruption.

 

In 1989 my brother Frank who later retired at the rank of Assistant Commissioner quietly introduced the well overdue reform.

 

It is also to be noted that the Australian Law Reform Commission in a landmark report in 1975 recommended Australia wide mandatory tape recording of police interviews.

 

While the State Coroner has to decide whether Stuart and Finch who were later convicted of the murder of 15 people in the 1973 Whiskey bombing were verballed by police let history record that it was senior police who encouraged the ongoing practice of police verballing from 1977 onwards until 1989 by urging the then Premier Bjelke-Petersen not to introduce tape recording.

 

Bjelke-Petersen then said “if the Police Union don’t want it it’s not going to happen”.

 

The Aboriginal Legal Service where I worked between January 1976 and December 1980 introduced covert tape recording of police officers in police stations on an afterhours basis.  We were successful in convincing hitherto sceptical Judges that police verballing occurred by ALS lawyers producing tape recordings of police blatantly lying about the whereabouts of Aboriginal clients who were being denied access to their lawyers prior to ‘verballed’ confessions being typed up by police.  Many “verballed” confessions were excluded by Judges when confronted with the irrefutable tape recorded evidence produced by lawyers of police lying under oath about suspects confessing.

 

Therefore the ex-Detective Slatter’s comments that, effectively, verballing was the figment of the imagination of criminal lawyers ‘back in those days’ has to be seen for the historical absurdity it is having regard to the Queensland Police Service and the Queensland Police Union vehemently opposing Supreme Court Judge Lucas’ major recommendations during the period 1977 to 1989 that all police interrogations be tape recorded.

 

 

[1] See page iv of the Report of Committee of Inquiry into the Enforcement of Criminal Law in Queensland published 29 April 1977.

[2] Ibid Table of Contents page 1.

[3] See Report of Committee of Inquiry into the Enforcement of Criminal Law in Queensland page 14/paragraph 26.


Children's Detention by Terry O'Gorman

Two Mt Isa Childrens Court cases that have been published on the Queensland Courts website recently raise serious issues about detention conditions in the Cleveland Youth Detention Centre at Townsville.

 

In a Judgment published on 25 January 2022 the Mt Isa Childrens Court Magistrate noted in relation to a juvenile offender whose offending was caused by a lack of attachment to positive adult role models, grief, loss and exposure to domestic violence whose parents drank too much and he had a significant cognitive impairment that the conditions at Cleveland Youth Detention Centre were described by a worker there as follows:

 

  • “Accommodation sections (often) are in night mode, this means that the young people do not leave their cells. Night mode occurs where we have significant staff shortages and cannot bring young people out for daily routine.  When in night mode, young people are provided with basic and safe resources to utilise such as colouring in, find-a-word, puzzles, art and craft activities, trivia, literacy and numeracy activities…the accommodation sections are in continuous cell occupancy, that means that the young people are permitted outside of their cell on a rotational basis.

 

The Childrens Court Magistrate found that in a unit usually the size of 10 plus children only 4 children at a time would be allowed out of the unit.

 

The offender was charged with spitting at an officer at a Youth Detention Centre where the offender was aged 16 years.

 

The spitting occurred during a period of continuous cell occupancy and it has to be seen in the context of a 16 year old person with an intellectual disability in a confined space.

 

The Magistrate went on to observe “I am concerned that (this) Detention Centre is falling below the standards it ordinarily operates at and those standards must already be seen as the bare minimum of what might be acceptable in a civilised society and they are now falling short of that”

 

In another Childrens Court case involving Mt Isa where the decision was delivered on 3 February 2022 the same Magistrate observed in respect of that offender who was described as a moderately cognitively impaired 16 year old First Nations young man that in relation to conditions at the Cleveland Youth Detention Centre the Court had been advised that staff shortages meant that children detained there are spending 70% of their time either locked in their cells for 24 hours a day or locked in their units and only able to socialise with three others for a couple of hours at a time.  Children cannot access recreation or education.

 

Much has been said in the media over the last couple of years about the law and order problems caused in northern cities particularly Townsville by juveniles.

 

The above two cases provide a rare insight into the unacceptable conditions under which children are being kept at the Townsville Cleveland Youth Detention Centre.

 

It is no wonder that children kept in these conditions reoffend so shortly after they are released.

 


Criminal Lawyers Beware! – Cellebrite downloads can be compromised

Criminal Lawyers Beware! – Cellebrite downloads can be compromised

Cellebrite downloads of mobile phones are front and centre of criminal prosecutions in Queensland and throughout Australia.  Even half complex criminal cases are dependent on them.

Recently the Guardian newspaper and the tech publication Gizmodo reported that Signal, the world’s most encrypted app, claimed Cellebrite software is exposed and the data can be manipulated.

Cellebrite’s main feature is an extraction device which allows law enforcement agencies to download data from seized phones.

Among the Cellebrite flaws revealed by Signal is one that allows hackers to not just access Cellebrite software but also to manipulate the data thereby making it possible to change the evidence contained in the Cellebrite download.

These recent warnings about Cellebrite vulnerabilities could have significant ramifications for the widespread law enforcement practice of using Cellebrite downloads as evidence in criminal cases.

If it is possible to break into Cellebrite software and alter the data police are collecting how certain can it be for criminal lawyers that the Cellebrite evidence produced in Court has not been the subject of tampering and falsification of evidence?

What will be the legal ramifications for the high number of cases in Australia that hinge on Cellebrite software if its security is able to be breached?

Robertson O’Gorman has long adopted a rigorous and sceptical attitude to technical and scientific evidence in Prosecution briefs in criminal cases. That sceptical attitude will be maintained in this firm’s work in light of the worrying suggestion that Cellebrite evidence can be compromised.


Review into Accuracy and Reliability of Forensic Evidence Shelved

Review into Accuracy and Reliability of Forensic Evidence Shelved

A national review into the reliability of forensic evidence used in Australian Courts has recently been abandoned by the nation’s Attorneys-General despite mounting concerns that innocent people are being jailed using questionable science.

The investigation, announced in November 2019 by the Council of Attorneys-General, was recently cancelled before a team of top legal, forensic and scientific minds could conduct any significant work or develop a reform plan.

The review into the use of forensic evidence in the Australian criminal system was announced after international studies found five widely accepted forensic “sciences” (bullet, hair, footprint, bite marks and mixed sample DNA analyses) to not work or have no strong evidence proving they work.

Gary Edmond, Director of the University of New South Wales Expert Evidence in Law Program said in a recent newspaper article[1] “we are completely out of step with other comparable countries” in this area.

The exercise to push through a review of the use of forensic evidence in criminal investigations and the Australian Courts have been spearheaded by the then Victorian Attorney-General and by the Victorian Court of Appeal President Chris Maxwell who were outspoken in their concern about the integrity of the legal system’s dealing with forensic evidence and the potential for miscarriages of justice.

Edmond has observed that a recent series of high level independent reports in the US reveal that much evidence produced in Court lacks solid scientific foundation having not been shown to be valid and reliable[2].

Australian Governments thrive on law and order campaigns especially at election time calling for ever greater Police and Prosecution powers.  These same State Government actors show zero interest in remedying miscarriages of justice especially those caused by faulty scientific evidence commonly led in criminal cases.

 

[1] See Sydney Morning Herald 21/05/2021 Forensics Review

[2] See Forensic Science Evidence, Wrongful Convictions and Adversarial Process by David Hamer and Gary Edmond, University of Queensland Law Journal, Vol 38, No 2 (2019)