MEDIA RELEASE BY TERRY O’GORMAN VICE-PRESIDENT, QUEENSLAND COUNCIL FOR CIVIL LIBERTIES

The Civil Liberties Council has called on the Premier Annastacia Palaszczuk to immediately reverse her decision to strip Katter’s Australia Party of its three parliamentary staff and two extra electorate officers following KAP Senator Fraser Anning’s contentious maiden speech in the Federal Parliament.

Civil Liberties Vice President Terry O’Gorman said the Premier’s stance was completely contrary to one of the major pillars of the Fitzgerald Inquiry report delivered to the Queensland Parliament in July 1989.

Mr O’Gorman said that Tony Fitzgerald QC looked at then Labour Opposition complaints that the Bjelke-Petersen Government throughout the 70’s and 80’s had vindictively cut Labour’s parliamentary staff as a means of stifling Labour’s criticism of Government excesses.

In the chapter of Fitzgerald’s report dealing with The Role of Parliament Fitzgerald said:

  • In order to be an effective forum, Parliament must have sufficient resources to enable it properly to research topics and evaluate Government proposals. Parliament can easily be prevented from properly performing its role by being denied time and resources. Any Government may use its dominance in the Parliament and its control of public resources to stifle and neuter effective criticism by the Opposition.
  • Non-government party members must be provided with appropriate resources and detailed information to enable them to supervise and criticise, just as Governments naturally are well equipped and staffed.
  • Without information about Government activities and research staff to properly assess it, the opposition party or parties have no basis on which to review or criticise the activities. (Emphasis added)[1]

“For the Premier to cut KAP’s State Parliament resources because a Federal KAP Senator in the Federal Parliament made an appalling maiden speech referencing the ‘final solution’ in his criticismof Muslim immigration is illogical and fails to heed the lessons of the Fitzgerald Inquiry.” Mr O’Gorman said.

Mr O’Gorman said that the Premier was not a Member of Parliament at the time of the delivery of the landmark Fitzgerald Report and perhaps is unaware of the history of the Bjelke-Petersen Government preventing the then Labour Opposition from doing its job by stripping it of Parliamentary resources.

“But there must be older members of the Labour Party organisational wing and Branches who remember that era who should speak out against the Premier’s fundamentally wrong and anti- democratic measure in stripping KAP of necessarily Parliamentary resources” Mr O’Gorman said.

Mr O’Gorman said that the Premier’s own justification for the move is inherently contradictory while supposedly supporting free speech and then punishing State KAP for the actions of its Federal body in exercising free speech.

The fact that the Premier has stripped State KAP of Parliamentary resources after pressure from the LNP with Deputy Opposition Leader Tim Mander saying the LNP had ‘shamed’ the Government into taking this action suggests petty politics and a desire to diminish KAPs public profile is behind the move, Mr O’Gorman said.

While the Civil Liberties Council was ‘awfully appalled’ by Senator Anning’s speech and equally critical of Federal KAP Leader Bob Katter’s support for Senator Anning, the protection of free speech means having to cop the drivel in Anning’s maiden speech.

 

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

 

 

[1] See Report of a Commission of Inquiry (Fitzgerald Report) 3 July 1989 at page 123 – 124.


Criticism of Judges

Ex High Court of Australia Judge Dyson (Dyson Heydon) in a speech in London in February 2018 examined the issue of contempt of Court in the context of political criticism of Judges[1]

Mr Heydon concentrated his speech on the approach of the Victorian Court of Appeal in dealing with criticism of that Court when it was hearing a terrorist sentence appeal in June 2016

Three Federal Ministers criticised the Court of Appeal during legal argument on the sentence appeal calling them hard-left activist Judges, ideological experiments and Judges divorced from reality

Mr Heydon argued that those who attacked the Minister’s comments “were either leading members of the party opposing the Ministers’ party or professional organisations of lawyers, including the Judges’ Trade Union, the Judicial Conference of Australia. This reaction tends to weaken the idea that Judges are not adequately defended and hence should be immune from criticism”.  (See JD Heydon “Does Political Criticism of Judges Damage Judicial Independence – A Policy Exchange Judicial Power Project Paper February 2018 at page 6.)

The reference to the Judicial Conference of Australia as being the Judge’s Trade Union says something about Mr Heydon’s personal political views.

Mr Heydon mounted an interesting argument to the effect that the Court of Appeal made findings of contempt against the Ministers without a formal hearing being conducted as to whether the Minister’s comments were in fact contempt at law.

Mr Heydon raised the question of why can’t politicians criticise Judges.

Mr Heydon makes some interesting observations about Australian Judges. He said:

  • “There are many admirable Australian Judges, with respect. But Australian Courts have several faults. Some Judges lack the capacity to have merited appointment. A few are unjustifiably rude. A few are bullies. Some are appallingly slow through inefficiency or laziness or indecisiveness. Some are insensitive. Some are ignorant. Some are undignified. As a result, some judicial work is poor. The whole system is rotten with excessive delay, some of which, but certainly not all of which, Judges are responsible for. It is in the public interest for these failings, whether they are widespread or not, to be exposed with a view to their eradication.”

Mr Heydon also observed that it is one thing for Courts to dislike a stream of criticism from the media and from politicians – well informed or not, weighty or not. It is another thing to seek to dam this stream by threatening or actually initiating contempt proceedings.

Mr Heydon cited with approval the former British Prime Minister David Cameron who told the House of Commons on 18 April 2012 that there are “occasions where Judges make critical remarks about politicians and there are times when politicians make critical remarks about Judges. To me, this is part of life in a modern democracy. We should try to keep these things as far as possible out of the Courts”.

In concluding his speech Mr Heydon asks a rhetorical questions: “where Judges seek to preserve judicial independence in response to political criticism by threatening use of the contempt power, do they actually strengthen the hands of those who oppose judicial independence.” [2]

Mr Heydon’s UK speech is an interesting perspective on the role of criticism of Judges in Australia. What is notably absent from his speech, though, is the problem caused by the convention when Judges are attacked they are not permitted to publicly respond to the attack.

Perhaps it is time for Heads of Court in every jurisdiction in Australia, including Queensland, to become much more proactive in responding to criticism of Judges in the media.

The fact that Heads of Jurisdiction rarely defend attacks on individual judicial officers has the effect of lowering respect for the judiciary simply because there is no judicial response to criticism of an individual Judge or Magistrate, no matter how unfair or unjustified such criticisms may be.

By Terry O’Gorman

23 April 2018

[1] See JD Heydon “Does Political Criticism of Judges Damage Judicial Independence – A Policy Exchange Judicial Power Project Paper February 2018 at page 6.)

[2] Page 17


Media's behaviour in the vicinity of Courts

The case of Sydney property developer Salim Mehajer who has been charged with assault of a television journalist highlights the necessity for regulation of media behaviour, particularly television crews, in the vicinity of Courts generally including Queensland Courts.

Mehajer has been charged with assault occasioning actual bodily harm over an incident that occurred in April 2017 when he fronted a central city police station in relation to an allegation of assaulting a taxi driver.

On leaving the police station television footage shows Mehajer getting into a taxi which was surrounded by a group of reporters.  As a result of this the taxi driver refused to take Mehajer as a passenger and a journalist then started asking questions of Mehajer through the open taxi window.

Mehajer was ordered out of the taxi by a police officer who had been monitoring the situation after the taxi driver apparently declined to drive him further because of the media scrum that surrounded the taxi.

Mehajer then called a friend to pick him up and on entering the friend’s car journalists then fired various questions at Mehajer namely whether he had “hit rock bottom” and whether he had “no mates” or “no chauffeur to pick you up”.

Mehajer responded to media questions while sitting in his friend’s car saying “will you have some respect.  I am on the phone”.

Mehajer then closed the door of his friend’s car with considerable force and the journalist’s arm was caught in the process.

While the Sydney Magistrate has to hand down a decision on the charge, what happened to Mehajer is repeated at Courts around the country on a weekly and often more frequent basis.

Last year a defendant left the Brisbane Supreme Court having been sentenced on a quite serious charge and was pursued up the street.  On available reports he maintained a stony face and refused to respond to a number of provocative media questions.  Having been pursued more than 100 metres up the road from the Court a television journalist then fell over as he was walking backwards intrusively filming the defendant.  At that stage the defendant laughed and the picture of his laughter was then posted in the media as a flippant reaction to his Court sentencing prompting the usual suspects to call for an appeal against his sentence because of his apparent flippancy.

Aggressive confrontation and highly intrusive questioning of defendants as they leave criminal Courts has become a real problem and if the media do not start regulating themselves there is a case for government regulation of media in the vicinity of Courts.

While the media should be free to report Court proceedings aggressive and provocative and often downright insulting questions that are asked by media representatives of defendants as they walk up the street from Court are becoming increasingly prevalent.

If the media cannot regulate itself in its increasingly unacceptable behaviour in the vicinity of Courts then the State must step in to control the situation.


NO POLICE INQUIRY ‘AT THIS STAGE’

The Queensland Premier has responded to calls for an Inquiry into the Rick Flori affair by asserting that ‘there are no plans for an Inquiry at this stage’ (emphasis added).

Sooner or later, the fundamental flaws highlighted by the Flori affair are going to have to be independently examined.

The Flori affair is the best example in a long time as to what is wrong with the police discipline process in Queensland.

Former Sergeant Rick Flori was criminally charged for releasing a video of a police bashing in the carpark of the Surfers Paradise police station in 2012 while the perpetrators of the bashing escaped criminal charges.

In 2012 chef Noa Begic was charged with the most minor of police charges, namely public nuisance.

He was taken to the Surfers Paradise police station, and a video camera in the police station carpark showed him being mercilessly bashed while his hands were cuffed behind his back.

In full view of their own CCTV camera, one of the police then nonchalantly washed away the bloodied floor with a bucket of water.  That police officer in Flori’s criminal trial before a Southport District Court Judge and Jury this week said he washed the blood away because it was ‘a biohazard’.

After this incident, there then followed a failure at every level of the police accountability process set up by Tony Fitzgerald QC in his landmark 1989 Police and Corruption Inquiry Report.

The supervisors of the relevant police should have immediately acted upon the scandal.

Flori then leaked the video to the media asserting that there was inaction on the matter.

According to evidence in the District Court trial, Noa Begic made a criminal complaint about the bashing but then withdrew it after he received a large financial settlement from the Queensland Police Service believed to be in the hundreds of thousands.

That civil settlement is Court sealed, and Begic is prohibited from publicly discussing the settlement.

The issue of police settlement of civil cases is a long festering problem in Queensland and calls, particularly by the Civil Liberties Council, for redacted details of each Queensland police civil settlement case to be included in the Queensland Police Service Annual Report has fallen on deaf ears over a period of years.

The Police Commissioner’s explanation for not launching criminal charges against the offending police who appear to have absolutely no defence to a charge of assault occasioning bodily harm is on the laughable and absurd basis that no charge could be laid because Begic declined to make a complaint.

It appears that Begic made a complaint but then withdrew it contemporaneously with receiving a large secret financial payout.

Amazingly the then Crime and Misconduct Commission approved and signed off on the QPS decision, thereby completely abrogating its role of properly monitoring the investigation of complaints against police.

If the Commissioner’s ‘explanation’ for not laying charges was applied across the board, most domestic violence charges would never be prosecuted nor would murders.

Every day of the week in Queensland domestic violence charges are prosecuted by police even where the victim (usually a woman) does not wish to make a complaint.

To state the obvious, murders are investigated and prosecuted where the ‘complainant’ is clearly not in the position to make a complaint.

It is almost 30 years since the Fitzgerald police reform process blueprint was laid out, and while there has been tinkering at the edges with the Fitzgerald blueprint in that time, there has been no Independent Inquiry into how the police discipline process is working, particularly as to how well the now CCC performs its role of monitoring the ongoing scenario of police investigating police.

It is all very well for the Premier to say there are ‘no plans at this stage’ for an Inquiry.  The Premier should look at the history of the years leading up to the 1987-1989 Fitzgerald Inquiry.  There were numerous Flori type incidents and fundamental failures of the police discipline process.  Those incidents reached critical mass which resulted in the Fitzgerald Inquiry and the fundamental reforms which followed.

30 years after the Fitzgerald Inquiry, a separate Inquiry should be conducted specifically into the Flori affair but also in relation to ongoing flaws with the police discipline process.  The Premier can say there are ‘no plans at this stage’ but a stage is going to be reached where the irresistible cumulative force of arguments for an Inquiry will reign supreme.


Media Release - The Australian Newspaper Attacks Southport Magistrate Joan White

MEDIA RELEASE BY TERRY O'GORMAN

PRESIDENT, AUSTRALIAN COUNCIL FOR CIVIL LIBERTIES

An attack in the Australian newspaper today on Southport Magistrate Joan White is one‑sided and part of a pattern of the Courier Mail and the Australian of targeting individual Judges and Magistrates.

ACCL President Terry O’Gorman said that the Australian's report of “outrage after Magistrate spares a thug for giving a New Zealand born thug just 12 months probation for punching a teenager unconscious during last November’s schoolies festival has a history of soft sentences”, is unbalanced and one‑sided.

“Once a reader gets beyond the sensationalist headline and photos of the sentenced man’s assault actions, deep in the article it is reported that the assault video was not even played in Court”, Mr O’Gorman said.

Mr O’Gorman said the article also totally fails to refer to the Prosecutor’s submissions on sentence with the article lamely stating that “it is not known why the Court was not shown the video”.

“It is a simple thing for the Australian to pick up the phone and talk to the Prosecutor or the defendant’s lawyer to ascertain precisely what was said by all parties in the sentence hearing, yet this basic step appears not to have been taken”, Mr O’Gorman said.

Mr O’Gorman said the description of the Magistrate having a history of soft sentencing is similarly exaggerated and misleading.

“There is a reference to a case Magistrate White was involved in 6 years ago and reference to the fact that in 2015 Magistrate White had nine appeals lodged against her with five successful and three unsuccessful”, Mr O’Gorman said.

Southport Magistrates Court is the busiest Court in Queensland.  A Magistrate can preside over at least 20 sentences a day in that Court totalling 200 sentences a week, and in a 40 week year a Magistrate sitting full time in the sentencing Court can preside over 4,000 sentences.

“Nine appeals over even half that number is a low appeal rate”, Mr O’Gorman said.

As individual Magistrates and Judges are prevented from defending themselves over media targeted attacks, the Civil Liberties Council is determined to present the other side of the picture to balance unfair and sensationalist attacks on individual judicial officers.

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


Child sex abuse inquiry’s stance on recovered memories raises fears as report release nears

Earlier in the week Terry O'Gorman participated in an article with the Weekend Australian concerning the National Royal Commission into Child Sexual Abuse. The article is set out in full below:

The Weekend Australian, 2 December 2017

In January last year the Royal Commission into Institutional Responses to Child Sexual Abuse began a wide-ranging public investigation into the Church of England Boys Society, the Anglican Church’s equivalent of the Boy Scouts. On the fifth day of those hearings, in a courtroom of the Commonwealth Law Courts building in Hobart, a 63-year-old man known only as BYA entered the witness box and made disturbing allegations about a pedophile ring in the upper reaches of the South Australian CEBS.

BYA recalled that in 1967, as a shy and religiously inclined 15-year-old, he became leader of his local CEBS group in inner-suburban Adelaide. At about that time, he said, the chief commissioner of CEBS in South Australia, Bob Brandenburg, began sexually abusing him during sleepovers at Brandenburg’s house and on expeditions to look for campsites.

Between 1967 and 1971, BYA said, four other CEBS leaders from South Australia abused or sexually accosted him, including two branch governors and a district commissioner. The five men, he said, “were operating as some sort of group and perhaps exchanged information on which boys were vulnerable or approachable for sexual contact”.

Despite this, BYA remained active in the CEBS for six years after the abuse ended, becoming an assistant district commissioner and even inviting two of his alleged abusers to his wedding in 1974. The explanation for this came later in BYA’s testimony, when he revealed he had completely forgotten the sexual abuse for more than 40 years. It was only in 2010 — 11 years after Brandenburg’s highly publicised suicide while under police investigation for child abuse — that BYA began having “flashbacks” following a car accident, and sought the help of a psychologist and psychiatrist.

“I repressed all memories of this sexual abuse for many years,” he said.

Such long-forgotten memories of sexual abuse have been treated with extreme caution in the legal arena during the past 20 years. Numerous authorities have warn­ed that repressed memories recovered through counselling can be unreliable or even false; the Wood Royal Commission into the NSW Police Service in 1996, a Victorian Health Services Commission inquiry in 2005, the Australian Psychological Society and several appeals court judgments have urged caution when dealing with such memories. The National Health and Medical Research Council endorses the view that “in the absence of corroboration, it is not possible to unequivocally determine the validity of recovered memories”.

The current royal commission, headed by Justice Peter McClellan, has departed from this approach by accepting recovered-memory allegations without ques­tioning them. It’s a stance that highlights a broader issue about the commission’s work that may not be widely understood: its policy was to ask “minimal” questions of the approximately 8000 people who approached it with allegations, a gentle approach that in turn was taken up by the churches and other institutions that were accused. Virtually no cross-examination took place, and McClellan’s public statements — which refer to all 8000 claimants as “survivors” — suggest the inquiry accepted their evidence without requiring corroboration.

Asked by this newspaper whether that is the case, the royal commission says it has never made a finding of abuse without evidence of a “relevant conviction” but says its terms of reference do did not require it to “resolve any issue with respect to the evidence of most individual survivors”. “But for a few witnesses,” the statement says, “the evidence of individuals has not been challenged before the royal commission.”

This issue is now causing consternation among some lawyers and trauma experts as the royal commission prepares its final report and the spotlight shifts to paying compensation and prosecuting the approximately 2000 cases that have been referred to police.

Ian Coyle, a veteran forensic psychologist who assesses abuse claims for the courts and is an adjunct professor at University of Southern Queensland, says the royal commission appears to have adopted an uncritical and unscientific approach that could potentially blow out the cost of the compensation scheme and lead to failed prosecutions.

“I understand why the royal commission took a non-critical approach to these allegations,” says Coyle. “They simply did not have the skill set to vet all those people. I have no doubt the overwhelming majority of compensation claims will be genuine, but we have 8000 potential claimants plus an unknown number of others who may come forward, applying for payments of up to $150,000 each. It will require highly skilled staff to assess those claims. And a large number of these cases are being referred to the criminal justice system, where the standard of proof required is beyond reasonable doubt. The implications are beyond profound.”

Former NSW attorney-general Greg Smith, now a barrister in private practice, says the royal commission is offering “a pretty weak excuse” for failing to vet allegations. “I have been very concerned about the lack of cross-examination by the royal commission,” says Smith, who previously work­ed as a prosecutor and counsel assisting the NSW Independent Commission Against Cor­ruption.

“It’s all very well to say you are being compassionate and witnesses have been through enough, but where there is a so-called ‘target’ who is challenging the truth of the allegations there should be cross-examination, particularly with historical cases, whether it’s recovered memory or whatever.

“In cases like this there could be fabrications, there could be the promise or wish of future compensation … I very much feel sympathy for people who have been molested, but I’m concerned about the sorts of statements that are being made about people who have had no opportunity to cross-examine.”

Brisbane criminal lawyer Terry O’Gorman voices a broader concern about the royal commission’s recommendations for sweeping changes to court processes, such as restricting a defendant’s right to separate trials when facing multiple accusers. “I find it extremely worrying that the royal commission is proposing the most fundamental change in the balance between prosecution and defence in 100 years, based on the untested evidence of people whose allegations, by the commission’s own admission, were not subject to critical examination,” O’Gorman says.

Since its public hearings began in April 2013, the royal commission has been lauded for exposing systemic child sexual abuse in schools, orphanages and church organisations. Many institutions have acknowledged their failures, which included cover-ups and callous treatment of victims.

McClellan has said the commission adopted a policy of “minimal questioning” of the 8000 people who gave unsworn testimony in private sessions, to avoid re-traumatising them.

A lawyer representing the Catholic Church, Peter Gray SC, told the commission in 2015 the church groups “do not intend to question witnesses about the detail of their recollections of various events, even where, for instance, someone associated with a church party may have a different recollection of an event or conversation”.

O’Gorman points out that previous royal commissions did test the claims of witnesses, notably the 1990s inquiry by Justice James Wood that investigated allegations that NSW police had protected pedophiles. In his 1996 report, Wood specifically warned about the dangers of false and distorted claims of child abuse after he investigated reports of “satanic ritual abuse” made by adults and children undergoing counselling.

These apparently eyewitness accounts of pedophile crimes involving sacrificial child murders were so widespread that many government health bodies and sexual assault centres accepted them, and NSW Labor MP Franca Arena aired allegations that a NSW judge was a satanic axe murderer. Wood devoted two chapters to the phenomenon, concluding there was almost no supporting evidence and attributing it to the inappropriate questioning of young children, the recovered memories of adult therapy patients, the influence of media reports and the spread of conspiracy theories about pedophilia.

In a speech 11 years ago to a legal conference, McClellan himself warned that repressed memories could be false and that children were more susceptible to suggestion than adults. But the judge’s thinking on these issues appears to have shifted significantly. In September he told a psychotherapy conference some victims could forget their abuse entirely, saying he had been “somewhat startled” during private interview sessions with survivors to discover some had no memory of their abuse, even though the perpetrator had pleaded guilty.

Whether childhood sexual abuse can be blocked from consciousness, then remembered accurately years later, is a subject that has divided the psychiatric and psychology professions for decades. The satanic abuse scare in the 1980s and 90s discredited the theory, but many psychotherapists and social workers insist that children often “dissociate” when subjected to trauma, repressing events that can return decades later in the form of flashbacks. How accurate those memories are is hotly disputed, and memory researchers have shown it is surprisingly easy to contaminate people’s recollections with false informa­tion and suggestive questioning.

One royal commission witness whose recovered memories appeared to be corroborated was a former state ward from Victoria who testified that at age 50 he began remembering that he had been raped repeatedly in his youth by a staff member at a Salvation Army boys home, Bill Willemsen. After the former state ward went to police in 2005, Willemsen admitted molesting several boys and pleaded guilty, although he denied raping them.

On other occasions the commission has aired evidence of extensive crimes based on untested recovered memories. Last year a former state ward in his 60s testified in Newcastle that between the ages of 10 and 14 he was violently abused on a weekly or fortnightly basis by Anglican priest Peter Rushton, who on occasions cut his back with a knife while raping him. The witness said Rushton, who died in 2007, delivered him into the hands of other pedophiles who repeatedly raped him and other boys in a room at the St Alban’s Home for Boys, but he remembered none of this until 2010, after media reports prompted the church to acknowledge Rushton had been a child molester.

The royal commission did not question this testimony, or the evidence of BYA, the witness who recovered memories of being abused by five leaders of the South Australian CEBS. The commission’s interim report on the CEBS, released in May, details multiple instances of CEBS personnel in various states pleading guilty to child abuse offences, and describes BYA as one of the “survivors” of Brandenburg’s abuse. The report does not mention that BYA’s allegations were entirely based on repressed memories.

The royal commission insists that this is not a “finding of fact” about BYA’s evidence. “The royal commission has never made a finding of fact based on evidence of repressed memory,” it says in a statement. “The royal commission has never made a finding that a person has been abused by a named individual in the absence of a relevant conviction.”

John Agius SC, a Sydney criminal barrister who was counsel assisting the Wood royal commis­sion, says he would be “very surprised” if the commission accepted uncorroborated repressed memory evidence as reliable, particularly if it involved allegations from decades past. Agius says a key difficulty with recovered memories is that although they can be false or unreliable, the people experiencing them “are not lying and actually believe their recollections to be true”. “It’s an area where I would be much more cautious than the royal commission appears to be,” Agius says.

Coyle is strongly critical of the royal commission for accepting such testimony without cross-examination, and for endorsing the counselling practices of organisations such as Blue Knot Foundation, whose president, Cathy Kezelman, has written a book detailing her own recovered memories of ritualistic cult abuse.

In 2015, Kezelman appeared alongside McClellan when he addressed a Sydney conference of the International Society for the Study of Trauma and Dissociation, an organisation that played a key role in spreading satanic abuse claims in the 90s. Two of the ISSTD’s past presidents, psychiatrists Colin Ross and Bennett Braun, were sued by former patients who accused them of implanting false memories of satanic abuse, and Braun was stripped of his medical licence in Illinois.

Coyle says Blue Knot — one of many organisations that received government funding to counsel alleged victims testifying to the royal commission — is largely staffed by people with little or no forensic or clinical experience in psychology or psychiatry. He says the proposed compensation scheme will need to be staffed by far more highly qualified personnel or it will be “a disaster of such mammoth proportions that it will make the vocational education scheme pale into insignificance”.

The draft bill for the proposed redress scheme makes no mention of an evidentiary standard required but says compensation will be paid if there is a “reasonable likelihood” the claimant is eligible. The total cost of redress has been projected to reach $4 billion, including ongoing counselling ser­vices for abuse survivors, although how it will be administered and who contributes are yet to be determined. The West Australian government has already indicated it is reluctant to participate in the scheme as devised at present.

Within some church organisations there also have been murmurings of dissent about the royal commission’s methods. In a speech earlier this year to the Australian Lawyers Alliance, Jesuit priest and lawyer Frank Brennan criticised the royal commission’s report on alleged abuses in a Queensland orphanage, which he said singled out the Catholic Church for its lack of compassion “while remaining silent on the moral vice of all other participants including public servants”.

He said it was not the royal commission’s job to be judging whether the church lived up to its Christian principles, adding that “the commission will need to be very careful about taking on the mantle of royal commission infallibility and lecturing to the church about its structure, theology and doctrine”.

Among criminal lawyers there is widespread concern about the low standard of evidence the commission required, and its implications for the nearly 2000 cases that have been referred to police.

Greg Walsh, a Sydney solicitor who has represented many accused sex offenders, says dubious prosecutions are already emerging from the inquiry, citing two of his clients, both elderly and ailing former religious brothers who are charged with decades-old offences. One man is comatose and in palliative care, having already been deemed mentally unfit to face trial seven years ago on separate charges; the other is 85, suffers Parkinson’s disease and dementia, and already has served a jail term for indecent assault.

Walsh says he fails to see the public good in pursuing such cases and says the royal commission’s unquestioning acceptance of people’s allegations is creating an atmosphere in which the presump­tion of innocence is being jet­tisoned. “The public is being conditioned to accept that any allegation made by any complainant must be true,” he says. “But that can’t be right.”

O’Gorman says the royal commission’s use of the term survivor to describe anyone making allegations reflects an uncritical approach to its task of assessing whether institutions responded adequately to alleged offences.

He is particularly uneasy about the inquiry’s recommendations to curtail a number of defendants’ rights such as the option for separate trials when facing multiple accusers. He questions how the royal commission can assert that there have been a number of “unwarranted acquittals” in child sexual abuse cases given that its own testing of evidence was so limited.

“One of the extremely worrying things about the royal commission’s recommendations on the justice system is that they are based not only on contested academic evidence, including a mock-trial that was criticised for its methodology, but also on the untested allegations of people the commission calls ‘survivors’, who found the court process difficult,” says O’Gorman.

The royal commission, he adds, “has effectively been insulated from criticism by virtue of the fact that just about all the institutions that appeared before it gave their lawyers riding instructions not to cross-examine or take a critical approach.”

On December 15, the commission is scheduled to hand in its final report, more than five years after Julia Gillard as prime minister announced its formation. The commission, which is estimated to have cost $500 million, has generally not responded to specific criticisms of its work.

In September several senior figures in psychology — including Richard Bryant, director of the Traumatic Stress Clinic in Sydney — warned that the commission was endorsing counselling prac­tices and research findings that potentially could be harmful to the people it was set up to help.

McClellan has not responded to those criticisms, and the commission declined to allow anyone to be interviewed for this article, saying its approach was contained in its reports and public statements.

“Any finding made by the royal commission has followed a process whereby all relevant persons have had the opportunity to be represented and ask questions of witnesses,” the commission states. “Where witnesses made allegations against institutions in relation to their responses to com­plaints of child sexual abuse, these institutions have had the opportunity to be represented and challenge that evidence if they wish to do so.”


Terry O'Gorman on the No Body, No Parole Laws: Warns of Potential Injustices

The Corrective Services (No Body, No Parole) Amendment Bill was passed by the Queensland Parliament last week. It provides for the refusal of parole in cases where the prisoner has not provided the location of the deceased victim’s body.

Terry O’Gorman spoke out against this bill at the Public Hearing in Queensland Parliament, warning of the potential injustices that this law could produce. In particular, he advocated for the implementation of vital safeguards such as allowing the cross-examination of a police officer who compiles the Police Commissioner’s Report, upon which the Parole Board relies, mandating legal representation and having an appropriate avenue for merits based appeals to the Court of Appeal.

“We submit that the police report that is to be prepared should be given to the prisoner and the prisoner should have a full right to cross-examine the police who have prepared the report at a parole hearing. The prisoner should have the right to place independent material before the Parole Board. The prisoner should be legally represented, which means an amendment of section 198 of the Corrective Services Act, because the Corrective Services Act currently provides that with the board’s leave a prisoner’s agent, generally not a lawyer, can appear to make representations” Mr O’Gorman said at the Committee hearing in June.

No such amendments were made to the Bill that was passed last week. This continues to raise questions about the fairness of the new laws and puts in jeopardy the rights of a prisoner.


Media Release by Terry O'Gorman, President, Australian Council for Civil Liberties

The Australian Council for Civil Liberties has this morning seriously questioned fundamental accountability issues which will arise from today’s announcement of a Super Security Ministry comprising ASIO, the AFP and Immigration and Border Force.

Council President Terry O’Gorman said the fact that it follows within a matter of days on the announcement that Australian Defence Force Special Forces will for the first time in Australia’s history be used in a domestic terrorist incident raise important questions whether the balance between adequate terrorism powers and protecting civil liberties is being wrongly and badly skewed.

Mr O’Gorman said that the accountability concerns were further deepened when the history and role of the proposed Super Minister, Peter Dutton, is examined.

As Minister for Immigration and Border Control, Mr Dutton has demonstrated a secrecy mindset attacking those who criticise Australia’s off shore immigration detention centres and settling a large detention centre lawsuit which has the convenient consequence that the publicity flowing from a Court case which would have run for weeks is avoided.

“The fact that ASIO supervision will be taken from the Attorney-General’s domain for the first time since ASIO was created in 1949 shows a worrying ignorance of ASIO’s controversial history in wrongly spying on legitimate domestic political protestors and dissenters”, Mr O’Gorman said.

Mr O’Gorman said that Mr Dutton’s frequent foray into Queensland’s legal system, including calling judicial officers ‘lefties’ and other derogatory terms, shows he is the least balanced Minister in the Turnbull Government to take on the Super Ministry.

“This Super Ministry is a threat to civil liberties, is apparently opposed by a number of senior Ministers within the Federal Government, and should not go ahead”, Mr O’Gorman said.

 

Mr O’Gorman can be contacted during business hours on 07 3034 0000


Meet your Queensland Law Society Senior Counsellor – Terry O’Gorman AM (1)

The Queensland Law Society (QLS) interviewed Terry O’Gorman, a QLS Senior Counsellor and the Legal Director at Robertson O’Gorman, on his experience and motivations surrounding his role as a Senior Counsellor.

Mr O’Gorman accepted the request to become a QLS Senior Counsellor because he felt it was important, particularly for younger practitioners, to be able to have access to advice from experienced lawyers.

Mr O’Gorman expressed the importance of the availability of professional and ethical guidance to young practitioners. He said he generally receives inquiries from young solicitors seeking advice on issues they haven’t encountered before, such as conflicts of interest.

Mr O’Gorman emphasised that, particularly in criminal law, it is extremely important that young lawyers seek advice to novel problems before making important decisions.

Read more about Terry’s interview here.

View Terry's profile here.


Terry O'Gorman on Juries

Terry O'Gorman spoke to The Australian's Chris Merritt about the upcoming trial of Cardinal George Pell. You can read the original article here.

_______________________________________

Victoria’s legal system is built on the premise that jurors are impervious.

Cardinal George Pell would hate the association, but the question of whether he can ever receive a fair trial will turn on what happened to a notorious pedophile.

The fate of that pedophile, Father Michael Glennon, will not help the cardinal. It established that as far as the law is concerned, massive adverse publicity does not necessarily make it impossible to find an unbiased jury.

In Victoria, where Pell has been charged with historical sexual offences, “adverse publicity” barely begins to describe what has happened to this conservative Catholic cleric. Tearing him down has almost taken on the trappings of an industry.

Yet now that the justice system has become involved, the frenzy of the past few years is supposed to be set aside and forgotten, particularly by those who would sit on the jury that will decide his fate.

In the view of some, that is little more than a heroic assumption from another era.

The state’s justice system has a range of tools at its disposal that are aimed at ensuring that Pell’s trial will be fair. But in the face of the modern world, the effectiveness of those tools has been questioned.

Civil libertarian Terry O’Gorman believes a fair trial for Pell is extremely unlikely — particularly after the Royal Commission into Institutional Responses to Child Sexual Abuse.

“It comes after a parliamentary inquiry and a royal commission with intense publicity,’’ says O’Gorman, who is president of the Australian Council for Civil Liberties.

“Pell’s trial will be one of the biggest media circuses since Lindy Chamberlain.’’ Like most common law jurisdictions, Victoria’s criminal justice system is built around the belief that juries are capable of setting aside everything they may have come to know and that they will decide cases based only on what they see and hear in court. This belief is so pervasive in Victoria that the state government has chosen not to follow NSW, which has long had a system in place designed to address circumstances when people have been subjected to so much adverse publicity that the risk of a biased jury is simply too great.

That system, in which judges decide criminal trials without a jury, was preceded by a 1986 report that exploded the myth about juries.

That report, by the NSW Law Reform Commission, should send a chill down the spine of Pell and his lawyers.

It found that in some cases “it may be that publicity which is adverse to the accused person is so prolonged and widespread that it is clearly impossible to eliminate its impact upon potential jurors”.

“There will be cases in which the publicity has been so extensive that the conduct of a fair trial may only be possible if it is by judge alone.

“For these reasons, we consider that an accused person should have the right, where legitimate grounds are shown, to make an application to be tried by judge alone.” So in Victoria, the first Australian jurisdiction with a Charter of Rights, this method of protecting the fundamental right to a fair trial is simply not available.

But while this mechanism is available in NSW, it is not commonly used — even for those cases where pre-trial publicity has been intense. Former Labor politicians Eddie Obeid and Ian Macdonald, for example, were sent to prison after jury trials.

O’Gorman believes Victoria needs to confront the question of whether the extraordinary circumstances surrounding the Pell case mean the time has arrived for judge-alone trials.

John Dowd, who introduced judge-alone trials in NSW when he was state attorney-general, says the system works “very well” but imposes a very heavy responsibility on judges, particularly in high-profile cases.

Dowd, who is also a former judge of the NSW Supreme Court, believes juries, properly instructed, can work fairly. But he says one of the great problems in high-profile cases is discussions between jurors and their families.

“The juror goes home, discusses it with their spouse, and the spouse says ‘well I think …’,” Dowd says. “Jurors are subject to pressures, but of course so are judges.” In Victoria, problem jurors can be excused. They can be excused if they volunteer that they are incapable of bringing an impartial mind to bear. Judges also instruct them to decide the issues based only on the evidence.

They are also warned that it is a criminal offence to use the internet to research the case and to discuss their deliberations outside the jury room.

O’Gorman believes that is only an incremental improvement. It falls short of the intense questioning of jurors that takes place in the US when their impartiality is in doubt.

“In the States, when you have this amount of intense, highly prejudicial pre-trial publicity, you can question the jurors. It’s the trade-off that has been built in over there,” he says.

“Here, you have a media free-for-all with blokes like Pell … and in most Australian states it is a criminal offence to even inquire about a juror’s background, let alone being able to question them in the US mode,” O’Gorman says.

The courts also can impose suppression orders that limit what can be said until after the case is decided. Extensive delays before trial also can be used in the hope that this may dissipate any prejudicial effect.

The reality, however, is that potential jurors with a smartphone can sidestep suppression orders and revisit all sorts of anti-Pell material. The damage has been done.

It may be too late for Pell, but Nick Xenophon’s move for a Senate inquiry into the law of contempt has the potential to resolve an apparent inconsistency in the way the law deals with pre-trial publicity.

At the moment, the law governing contempt of court can result in convictions for prejudicing the right to a fair trial — which is what happened to Derryn Hinch in the 1980s when he was a broadcaster, not a senator, and took an interest in Glennon the pedophile priest.

Hinch made three broadcasts about the priest’s earlier convictions that were found to have prejudiced the pedophile’s right to a fair trial. Glennon then tried to use this to argue that his latest trial should be stayed.

The High Court disagreed, which means Hinch was punished for threatening Glennon’s right to a fair trial, but our highest court also believed Glennon would receive a fair trial.

But it is worth pointing out that Victoria’s Court of Criminal Appeal had ruled in favour of Glennon, only to see its concern for a fair trial given less weight by the High Court majority.

The Court of Criminal Appeal had considered the effect of the pre-trial publicity in the Glennon case to be “an extreme and exceptional or singular one in which neither the lapse of time nor directions of the trial judge obviated an unacceptable — in the sense of significant or substantial — risk that the trial was unfair by reason of illegitimate prejudice and prejudgment on the part of the jury”.

Seventeen years ago, the inconsistency did not escape the notice of the Alternative Law Journal. “In Glennon the High Court drew a legalistic distinction between its earlier finding that Hinch was responsible for a real or substantial risk of prejudicing Glennon’s trial, and its finding that Glennon was able to get a fair trial despite the extent of the contemptuous pre-trial publicity,” wrote legal academic Allan Ardill.

“On the one hand Hinch was guilty of a real and substantial risk of prejudicing Glennon’s right to a fair trial, but on the other Glennon was still able to get a trial sufficiently free of prejudice,” Ardill wrote.

O’Gorman says he does not suggest that jurors would deliberately conduct themselves in a biased manner and disregard the instructions given by a judge. But he says there have been several studies in the US into what he described as “the myth that jurors can put things out of their mind”.

“The rest of us can’t in relation to other matters. Asking a jury to do so is absurd,” O’Gorman says.

He says concern for better protection for the right to a fair trial should not depend on popular attitudes towards those facing potentially biased juries.

“I would just say to those in the media who are sympathetic to Pell’s position that there were not many people who were sympathetic to Glennon’s position,” O’Gorman says.“There has to be a change to the system.”