Media Release by Terry O'Gorman, Vice-President, Queensland Council for Civil Liberties: Bail

Criticisms of a Cairns Magistrate’s bail decision yesterday as a ‘cop bashing bail outrage’ is sensationalist and ignores the ‘balancing’ provisions of the Queensland Bail Act.

Civil Liberties Vice-President Terry O’Gorman said that three men accused of bashing a police officer after attending a wake were entitled to bail, and criticisms of the Magistrate’s bail decisions are misinformed.As Chief Magistrate Ray Rinaudo said in a media interview earlier this week, bail decisions are a balancing exercise requiring considerations of the seriousness of the offence on the one hand and the likelihood of a person turning up for Court on the other.“Bail decisions are made soon after an arrest and months, sometimes years, before a Court, after weighing the prosecution and defence evidence, comes to a verdict”, Mr O’Gorman said.

Mr O’Gorman said that it has been recognised for decades that the grant of bail is an important process in a free society which rejects any right of the Government or the Police to imprison a citizen upon mere allegations before a trial.

“While the allegations against the three men are serious, they are just that at this early stage in the Court process, untried untested and unproven allegations”, Mr O’Gorman said.

“If the three men are found guilty they are likely to be jailed as Appeal Court cases dictate that serious assaults on Police Officers should attract a jail term”, Mr O’Gorman said.

Mr O’Gorman accused critics of this and other Queensland Court bail decisions of effectively demanding that people accused of certain criminal offences be jailed long before their trial, and not caring if a person is found not guilty after spending months or years in jail awaiting their trial date.

“The Bail Act clearly provides that the Police or a Prosecutor can appeal to a Supreme Court Judge against the Magistrate’s decision granting bail”, Mr O’Gorman said.


Federal Government Ministers to appear before the Victorian Court of Appeal

On Thursday June 15 Terry O’Gorman was asked by ABC Radio Current Affairs to comment on reports in the Australian that morning that the Registrar of the Victorian Court of Appeal had called on various Federal Government Ministers to appear before the Victorian Court of Appeal to make submissions as to why they should not be prosecuted for contempt.

The letter from the Judicial Registrar of the Victorian Court of Appeal asserted that statements attributed to various Federal Government Ministers appeared to intend to bring the Court into disrepute.  The Ministers’ comments appeared to assert the Judges have and will apply an ideologically based predisposition in deciding a sentence appeal in a terrorism case and that the Judges will not apply the law.

Mr O’Gorman in his interview with ABC Current Affairs distinguished between legitimate, even robust criticism of Judges on the one hand and comments that may be found to be in contempt on the other.

Mr O’Gorman said that criticism of Court decisions was a regular, if not daily, event in Australia.

Criticism is one thing but to suggest, particularly, that Judges in a current Appeal Court hearing would not properly apply the law but would apply their individual ideology in deciding a case is a serious allegation.

Mr O’Gorman said that the Victorian Court of Appeal appearance was the first step in the proceedings.  If the Court found that cause had been shown as to why a matter should not be referred for prosecution for contempt, that would be the end of the matter.

If, on the other hand, the Victorian Court of Appeal does refer the Federal Ministers for prosecution for contempt, it is then up to the prosecution authorities to themselves make the decision as to whether they will prosecute.

Mr O’Gorman said that strong criticism of Court Judgments is one thing, but to attack a Judge let alone three Judges on a Court of Appeal suggesting that their approach was ideological and that they would not properly apply the law was very close to a contempt of Court.

Mr O’Gorman said that prosecution for contempt of Court particularly in respect of politicians was a relatively rare event, but a prosecution of this type may well be necessary in order to delineate the boundaries between robust free speech on one hand and comments by Senior Ministers in Federal Government which may be said to deliberately and calculatedly challenge the integrity of the Court itself.

 

By Terry O’Gorman

15 June 2017


Facial Recognition in Queensland

The Toowoomba City Council is trialling facial recognition technology, alarming privacy advocates who fear such a development could lead to bigger databanks of stored personal information.

The Toowoomba Regional Council has begun trialling the software on behalf of the Brisbane, Gold Coast and other Councils.

A roll-out of similar software has been supported by the Federal Government for passport processing in Australia and the Northern Territory Police are already using something similar.

Dr Monique Mann, a law lecturer at the Queensland University of Technology and member of the Australian Privacy Foundation said the Toowoomba Council’s decision was alarming.

Dr Mann has taken up a position adopted by Civil Liberties lawyer Terry O’Gorman for a substantial period namely that the facial recognition implementation scheme is being administratively carried out with no legislative framework and the increased scrutiny that the matter being debated by Parliament as a separate Act of Parliament entails.

Dr Mann said that the facial recognition technology could be used from a distance and that it can be integrated with existing surveillance systems through CCTV in public places enabling tracking through public faces in public places.

Civil Liberties lawyer Terry O’Gorman said that Dr Mann’s concerns were justified and reflected the stance of the Civil Liberties Council for many years namely significant extra powers given to Police are often implemented without any amendment to the Police Powers and Responsibilities.

“The use of pepper spray and tasers are a particular case in point where those processes have been administratively implemented by the Queensland Police Service over the last decade or more without there being the slightest debate in Parliament as to their efficacy and a proper supervision framework”, Mr O’Gorman said.

Mr O’Gorman said that there is a subtle and little publicised spread of CCTV surveillance in public places in Queensland affected not only by the facial recognition technology trial currently being undertaken in Toowoomba but also by the recent announcement of the Moreton Regional Council that CCTV cameras in public places in that Council’s area will have the facility to pick up what is being said by people subject to CCTV surveillance.[i]

By Terry O’Gorman

13 March 2017


[i] Some of the material from this blog has been taken from the ABC News of 8 March 2017.


International Warrants Needed to Deal with Growing Surveillance Techniques

The UN Independent Expert on Privacy this week called for a new international treaty to protect people’s privacy from unfettered cyber-surveillance which is being pushed by populist politicians preying on fear of terrorism.

The UN Independent Expert, Joe Cannataci, said traditional privacy safeguards such as rules on phone tapping were outdated in the digital age.

The UN Independent Expert said that with governments worldwide demanding data from firms such as Microsoft, Google, Facebook, Apple and Twitter it was time to look at creating an “”International Warrant” for data access or surveillance.

Civil Liberties lawyer Terry O’Gorman said that the existing national law in Australia was inadequate to deal with what Mr Cannataci has described as “the menace of over-surveillance”.

Mr O’Gorman called on the Federal Attorney-General to lay out Australia’s response to the call by Mr Cannataci for increased privacy safeguards in relation to national surveillance carried out throughout Australia by both the AFP and Intelligence Services.[i]

By Terry O’Gorman

13 March 2017


[i] Part of this article is derived from ITNews.com.au on 9 March 2017.


Legal Update: The New Mental Health Act 2016

The new Mental Health Act 2016 commenced on the 5thMarch 2017.  It will replace the Mental Health Act 2000[i].

The new Act rectifies a perceived deficiency in the previous mental health legal framework in Queensland by now expressly enabling Magistrates to discharge persons who appear to have been of unsound mind at the time of an alleged offence or unfit for trial.

Under the new Act, if a person is charged with a civil offence (eg. traffic offences, disorderly behaviour and minor criminal offences) and a Magistrates Court is satisfied that they were of unsound mind at the time of the offence or unfit to stand trial, the Court may dismiss the charge or, if the person is temporarily unfit, adjourn the hearing.  To assist the Court in determining the person’s soundness of mind or fitness to stand trial, a mental health assessment may be conducted by the Court Liaison Service.

If the Court dismisses the charge or adjourns the hearing, or otherwise believes it would benefit the person, the Court may make an examination order.  To make an examination order the Court must be satisfied the person has a mental illness or is unable to decide whether the person has a mental illness or another mental condition.

An examination order allows the person to be temporarily detained for examination in a public sector health service facility or an authorised mental health service.  A mental health examination is used to decide whether to:

  • Make a treatment authority for the person – providing lawful authority to treat them if they lack the capacity to consent to treatment;
  • Make a recommendation for the person’s treatment and care; or
  • Change the nature and extent of treatment and care provided to the person under an existing authority or order.

A mental health examination is intended to inform clinical decision-making about the person’s mental health care and treatment, not to inform the Court about criminal responsibility or fitness to stand trial.

However, under Section 180 of the new Act the examination report, including details of the examination, would be admissible against the person in the criminal proceedings for which the examination order was made and any future proceeding to which it is relevant.

Following the Act receiving assent, Queensland Health has undertaken implementation work including the involvement of a steering committee which raised concerns about the current admissibility in evidence of statements made by a person during a mental health examination in criminal proceedings against a person’s interests.  Similar concerns were raised regarding the admissibility of statements made during mental health assessments.

The steering committee considered that allowing statements to be admitted in evidence may deter individuals from being open and honest about the circumstances of the alleged offence, comprising the mental health assessment or mental health examination process, to the person’s detriment.  The steering committee has recommended amendments to the new Act and that has been supported by the Chief Magistrate.

There is currently a Mental Health Amendment Bill 2016 before the Queensland Parliament which brings into effect the proposed above changes of note see the Mental Health Amendment Bill 2016 Parliamentary Committee Report tabled February 2017.

 

By Terry O’Gorman

6 March 2017


[i] The observations in this note are taken from the Report of the Queensland Parliamentary Committee which reported on the amendments last week.


Legal Affairs Committee Approves Changes to Justices Act

The Legal Affairs Committee of the Queensland Parliament this week approved proposed changes to the Justices Act which:

  • Inserts an authority to allow Magistrate to order the joinder of trials;
  • Allows for admissions of fact in summary trials for simple offences or breaches of duty;
  • Allows for Registry Committals for legally represented defendants who are remanded in custody; and
  • Enables the defendant to enter a plea in bulk in the Magistrates Court.

These are important and practical changes to the way the Magistrates Court operates on a daily basis throughout Queensland.

In her Introductory Speech, the Attorney-General (Yvette D’ath) noted that these changes reflect practices from the Supreme and District Courts and apply them to the Magistrates Court.’

By Terry O’Gorman

23 February 2017


Abolition of 'Gay Panic' Defence

The Queensland Legal Affairs and Community Safety Committee this week recommended that legislation be passed abolishing the ‘gay panic’ defence in murder cases.

The ‘gay panic’ defence particularly applies in murder cases whereby evidence of an unwelcome sexual advance by the purportedly gay victim towards the accused is lead in support of establishing the defence of provocation.

In November 2011 a Committee chaired by retired Queensland Court of Appeal Judge John Jerrard recommended this change to the law.

The Legal Affairs committee this week approved a law change before the Queensland Parliament to exclude an unwanted sexual advance, other than in exceptional circumstances, from the provocation defence to a murder charge.

The ‘gay panic’ defence (or the defence of provocation) has been abolished in every Australian State or Territory except for Queensland and South Australia and in most jurisdictions the defence has been abolished in either one of two ways:

  • By abolishing the defence of provocation entirely; or
  • By enacting a specific exception to the ‘gay panic’ defence in circumstances where a non-violent sexual offence is the only provocative conduct experienced by the defendant.

The law change is expected to be passed by the Queensland Parliament in the next month.

By Terry O’Gorman

23 February 2017


Update to Queensland Bail Laws

This week the Legal Affairs Committee of the Queensland Parliament approved changes to the Queensland Bail Act that encourage police to exercise their discretion with regard to bail where a person cannot be taken promptly before a Court.

It is important for practitioners to be aware of this law change as particularly on weekends and especially on long weekends, too often watchhouse keepers refuse to allow an arrested person watchhouse bail only for the Police Prosecutor not to oppose bail in Court on the next Court working day.

It should be remembered that watchhouse keepers when deciding a question of bail are performing a quasi-judicial function and therefore ought to be asked for reasons if watchhouse bail is intended to be denied.

Lawyers should also realise that they have a right to make submissions to the watchhouse keeper addressing the same sort of matters in respect of watchhouse bail as would be addressed in an ordinary Court bail hearing.

By Terry O’Gorman

23 February 2017


Terry O'Gorman comments on Senate calls for Pell to return to Australia

Civil Liberties’ lawyer Terry O’Gorman today criticised the Australian Senate motion calling on Cardinal George Pell to return to Australia to assist Police with child sexual abuse investigations.

Mr O’Gorman said that the Australian Senate motion was yet another example of politicians politicising the criminal investigation and related Court processes.

“Great care has to be taken, particularly by politicians using the ‘coward’s castle’ of Parliament, to prevent the current Royal Commission into Institutional Response to Child Sexual Abuse from becoming a witch hunt”, Mr O’Gorman said.

“It is obvious to anyone who has followed the Royal Commission since its establishment that Cardinal Pell has fully cooperated with the Royal Commission both by giving evidence in Australia and in giving evidence from Rome”, Mr O’Gorman said.

“The wording of the Senate motion namely calling on Cardinal Pell to return to Australia to assist Victorian Police and the Office of Public Prosecutions was totally misguided and reflected the total lack of appreciation by those who voted for the Senate motion of the importance of observing the separation of powers doctrine which is fundamental to Australian democracy but also indicates an appalling, and one suspects, a wilful ignorance of the processes of Police investigations and decisions to prosecute by the DPP”, Mr O’Gorman said.

Mr O’Gorman said that it was imperative that politicians and other community leaders not whip up hysteria in relation to matters arising from the Royal Commission as that will negatively affect balanced and serious consideration by the community of the Royal Commission in respect of its final recommendations which are due in the next number of months.

 

By Terry O’Gorman

9 February 2017


Support and Opposition for Domestic Violence Bail changes

Civil Liberties’ lawyer Terry O’Gorman said the aptly described “extraordinary change”[1] proposed to the bail system reversing the onus of the proof and forcing alleged perpetrators to prove to a Magistrate or Judge that they should be given bail is unnecessary and would see alleged perpetrators spend many months on remand before their cases are heard, some of whom will be found not guilty.

“Denial of bail is a significant factor causing overcrowding in Queensland jails” Mr O’Gorman said.

Mr O’Gorman said that research sponsored by the Australian Criminology Research Council shows that over the last 5 years unsentenced prison numbers in Australia have increased by 81%.  This trend has been properly described as socially irresponsible and unsustainable[2].

Mr O’Gorman said the existing Bail law which gave Magistrates powers to adjourn a bail hearing to allow the mental health of an accused to be comprehensively assessed could be extended to serious domestic violence offenders while still keeping the onus of proof to convince a Court that a domestic violence accused should be refused bail on the prosecution.

“To shift the onus of proof for bail release to an accused person is to further aggravate the significant, indeed huge, inequality of arms (resources) between the Prosecution and the Defence” Mr O’Gorman said.

“The overwhelming number of domestic violence bail applications are done by overworked and under resourced Legal Aid Duty Lawyers where often a whole squad of police have had many hours to put together a case overnight before a domestic violence accused first faces Court” Mr O’Gorman said.

Mr O’Gorman said that while the Teresa Bradford tragedy cannot and should not be ignored, one bail hearing that resulted in her alleged killer being granted bail does not demonstrate a systemic problem with the domestic violence bail system.

“False allegations of domestic violence are frequently made including to advance the Family Court cases of warring spouses.  Shifting the onus of proof on domestic violence bail hearings will further aggravate the problem and cause innocent domestic violence accused to spend many long months in jail only to be acquitted or have the case later dropped” Mr O’Gorman said.

 

By Terry O'Gorman

2 February 2017


[1] See Courier Mail, Thursday 2 February 2017 “Review to place onus on accused”.

[2] See Rick Sarre, Professor of Law University of South Australia – The Conversation – 23 January 2017.  Note alsothe Australia wide figures are applicable to Queensland.