The Information Commissioner’s failure to take into account relevant factors and exercise its discretion was an error of law.
The Australian Information Commissioner is the head of the Office of the Australian Information Commissioner, an independent Australian Government agency established under the Australian Information Commissioner Act 2010. One of its primary functions is oversight of the operation of the Freedom of Information Act 1982.
The Australian Human Rights Commission (AHRC) is a statutory body inter alia responsible for investigating alleged infringements of Australia’s anti-discrimination legislation.
The applicants were Jackson Powell and Calum Thwaites, two former students of the Queensland University of Technology who were the subject of complaints over some Facebook posts made by Aboriginal woman Cindy Prior, which ended up being dismissed by the Federal Circuit Court. Prior to those court proceedings, the AHRC controversially handled the complaints.
On 1 August 2016 the applicants through their senior counsel Tony Morris QC made a request to the AHRC for eight categories of documents relating to complaints it had handled. The initial response from the AHRC indicated that the officer authorised to determine the request intended to refuse access to documents under s.24AA of the Freedom of Information Act 1982 (Cth) in five of the nominated categories because the work involved in processing the request in its then form would substantially and unreasonably divert the resources of the AHRC from its other operations due to the scope of the request. This led to correspondence between the applicants’ senior counsel and the AHRC with a view to narrowing the scope of the applicants’ requests.
By 30 August 2016 the AHRC had released to the applicants documents within three of the eight categories requested. but refused access to the remaining categories of documents.
The relevant categories of documents subject to the refusal decision were:
(2) Documents recording each instance on which the AHRC has, in the case of a respondent other than an employee respondent [as defined in the applicants’ request] or a wayward respondent, [as defined in the applicants’ request] either:
given the respondent no opportunity to respond to a complaint (other than a decidedly unmeritorious complaint [as defined in the applicants’ request]); or
allowed to the respondent less than 21 days to respond to a complaint (other than a decidedly unmeritorious complaint).
(3) In respect of each instance mentioned in paragraph (2), documents explaining, recording, reflecting or discussing the reasons why the AHRC either (as the case may be):
gave the respondent no opportunity to respond to the complaint; or
allowed to the respondent less than 21 days to respond to the complaint.
(5) Documents recording each instance on which the AHRC has, in the case of a respondent other than an employee respondent or a wayward respondent, and in the case of a complaint other than a decidedly unmeritorious complaint:
1. failed either to inform the respondent, or to ensure that the respondent was informed by somebody other than the AHRC, prior to a conciliation conference in respect of a complaint against the respondent, of the complaint against the respondent; or
2. failed either to notify the respondent, or to ensure that the respondent was notified by somebody other than the AHRC, prior to a conciliation conference in respect of a complaint against the respondent, of the conciliation conference; or
3. first informed the respondent of a complaint against the respondent, or caused or allowed the respondent to be first so informed, less than 21 days prior to a conciliation conference in respect of the complaint against the respondent; or
4. first notified the respondent of a conciliation conference in respect of a complaint against the respondent, or caused or allowed the respondent to be first so notified, less than 21 days prior to the conciliation conference.
(6) In respect of each instance mentioned in paragraph (5), documents explaining, recording, reflecting or discussing the reasons why the AHRC either (as the case may be):
1. failed either to inform the respondent, or to ensure that the respondent was informed by somebody other than the AHRC, prior to a conciliation conference in respect of a complaint against the respondent, of the complaint against the respondent; or
2. failed either to notify the respondent, or to ensure that the respondent was notified by somebody other than the AHRC, prior to a conciliation conference in respect of a complaint against the respondent, of the conciliation conference; or
3. first informed the respondent of a complaint against the respondent, or caused or allowed the respondent to be first so informed, less than 21 days prior to a conciliation conference in respect of the complaint against the respondent; or
4. first notified the respondent of a conciliation conference in respect of a complaint against the respondent, or caused or allowed the respondent to be first so informed, less than 21 days prior to the conciliation conference.
(8) Documents illustrating, by comparison or contrast with the complaint lodged by Ms Prior with the AHRC on or about 27 May 2014, the parameters of what is meant by the expression, “complaints … that require a response to long and detailed allegations”.
On 30 August 2016 the applicants applied to the Office of the Australian Information Commissioner for a review of the AHRC’s decision to refuse access to the five categories of documents the subject of the AHRC’s refusal.
On 19 October 2016 the AHRC wrote to Ms Nicolaou, the delegate handling the review for the Australian Information Commissioner expressing its view that, even if the scope was narrowed, the applicants’ request would still substantially divert the resources of the AHRC. This view was not communicated to the applicants at the time.
On both 7 December and 9 December 2016, the applicants emailed Ms Nicolaou enquiring as to the progress of the review. In response, on 13 December 2016 Ms Nicolaou apologised for the delay and confirmed the matter had been allocated to Ms Raewyn Harlock, who was described as the “case review officer”.
On 5 January 2017 Ms Harlock emailed the applicants informing them that she had prepared a “preliminary view” after reviewing the application and the AHRC’s submissions.
On 17 January 2017 Ms Harlock wrote to the applicants informing them that, before providing her “preliminary view” to them, the Information Commissioner had asked the AHRC for further information about the electronic document management system and its reporting capacity. She also informed the applicants that once the information was in her possession the Information Commissioner would consider the position and advise the applicants accordingly.
On 18 January 2017 the AHRC responded to Ms Harlock’s queries regarding its electronic document management system. The applicants were not party to the communications between the AHRC and Ms Harlock, and copies of that correspondence were not at that time provided to them.
On 20 January 2017 Ms Harlock provided her “preliminary view” to the applicants. The view expressed was in the following terms:
“I have formed the preliminary view, as case officer in this matter, that the AHRC has no documents falling within the scope of your request. I therefore intend recommending to the Information Commissioner that the decision under review should be affirmed….
My preliminary view
Accordingly, it is my preliminary view that the AHRC does not hold the documents you seek and cannot produce them using a computer or other equipment ordinarily available for retrieving or collating stored information.
In light of the above, can you please let me know in writing whether you wish to withdraw this application for Information Commissioner review by close of business on Friday 3 February 2017. If you wish to proceed with your application for Information Commissioner review, please provide submissions in response to the above by close of business on Friday 3 February 2017. If this matter proceeds to a decision by the Information Commissioner, a recommendation in line with this preliminary view will be provided to him.”
After submissions were made to Ms Harlock, further delay on her part, and significant correspondence exchanged between the parties, on 5 June 2017 a delegate for the Information Commissioner advised the applicants and the AHRC that a decision had been made to not continue to undertake the review before the Information Commissioner.
On 13 June 2017 the applicants sought a judicial review of this decision, seeking an order that the impugned decision be set aside and the Information Commissioner be directed to hear and determine the principal review that was not continued by the decision under review.
Section 24AA(1) of the Freedom of Information Act 1982 (Cth) provides that:
When does a practical refusal reason exist?
(1) For the purposes of section 24, a practical refusal reason exists in relation to a request for a document if either (or both) of the following applies:
(a) the work involved in processing the request:
(i) in the case of an agency–would substantially and unreasonably divert the resources of the agency from its other operations.
Section 54W(b) of the Freedom of Information Act 1982 (Cth) provides that:
Decision to review–discretion not to review
The Information Commissioner may decide not to undertake an IC review, or not to continue to undertake an IC review, if:
(b) the Information Commissioner is satisfied that the interests of the administration of this Act make it desirable that the IC reviewable decision be considered by the Tribunal.
Section 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) provides that:
5 Applications for review of decisions
(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:
(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed;
(c) that the person who purported to make the decision did not have jurisdiction to make the decision;
(d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;
(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;
(g) that the decision was induced or affected by fraud;
(h) that there was no evidence or other material to justify the making of the decision;
(j) that the decision was otherwise contrary to law.
(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:
(a) taking an irrelevant consideration into account in the exercise of a power;
(b) failing to take a relevant consideration into account in the exercise of a power;
(c) an exercise of a power for a purpose other than a purpose for which the power is conferred;
(d) an exercise of a discretionary power in bad faith;
(e) an exercise of a personal discretionary power at the direction or behest of another person;
(f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
(g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;
(h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and
(j) any other exercise of a power in a way that constitutes abuse of the power.
(3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless:
(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or
(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.
Brennan CJ in Kruger v Commonwealth  HCA 27; (1997) 190 CLR 1 stated that:
“when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised”.
The Hardiman principle has been held to require that the “usual course” when an administrative decision is subjected to judicial review “is for a tribunal to submit to such order as the court may make” and that “other than in exceptional cases, a tribunal should not take an active role in judicial review proceedings challenging its decisions”.
The Applicants submitted that the Information Commissioner’s active participation in the proceedings was “plainly and grossly inappropriate”. However, due to the “exceptional” nature of the case (involving allegations of an abuse of power predicated on ceasing discomfiture, criticism or embarrassment on the part of the Office of the Information Commissioner), the lack of a contradictor (the AHRC refused to oppose the application for judicial review), and the Information Commissioner having a legitimate interest and being the natural contradictor, Judge Jarrett held that he should consider parts of the Information Commissioner’s submissions.
Commenting on the Information Commissioner‘s reasons for its decision, Judge Jarrett observed that:
“the reasons of the Information Commissioner’s delegate demonstrate that the only matter of any significance considered by him was the finding that he was satisfied that the interests of the administration of the FOI Act made it desirable that the review then under consideration be considered by the AAT. There appears to have been no separate consideration of the power not to continue the review then before the Information Commissioner, nor any reasons why that course was taken…
“In the uncontroversial factual circumstances just described, clear reasons for the decision to no longer continue the review could be expected. But there were none. All the statement of reasons suggests is that the requisite satisfaction was reached for the purposes of s.54W(b) and as a consequence – “Consequently” – the decision was made not to undertake the review.”
Consequently, Judge Jarrett concluded that the decision was legally unreasonable and the decision maker failed to take into account relevant considerations.
However, Judge Jarrett disagreed with the applicants’ contention that the preliminary view expressed by Ms Harlock amounted to a denial of natural justice which further impugned the decision.
The result was that an order referring the matter to the decision maker for further consideration was made, in addition to orders that the Information Commissioner pays the costs of the applicants to be agreed or failing agreement to be later determined by the Court.
This case shows that an administrative decision of a Federal Government body to not make a decision or proceed with a review is itself a reviewable decision. The Information Commissioner’s decision to not proceed because it thought that the Administrative Appeals Tribunal (AAT) should instead determine the matter was held to be an error of law.
Perhaps above all else, this case demonstrates the flagrant and consistent incompetence of the public servants at the Office of the Information Commissioner. Not only were there many inexplicable and inexcusable delays, the decision to not proceed with the review was clearly wrong at law, and was another instance of bureaucratic ineptitude. Furthermore, like the AHRC, the Information Commissioner’s processes appear to be particularly unsound, with copies of submissions and correspondence not being shared with the applicants in a timely way and their matter being passed along the line to three separate case managers.
On 25 November 2014, the Plaintiff Glenn Garside was riding his motorcycle along the Gregory Highway travelling north from Emerald to Capella when an object fell from a truck (the truck) and struck him, causing personal injuries to him.
The truck did not stop. Its registration number was not taken and, therefore, there was doubt as to the identity of the truck.
The Plaintiff believed that the truck from which the object fell was one operated by JJ Richards & Sons Ltd (JJ Richards), so he sued the three drivers of JJ Richards and QBE, the compulsory third party insurer of JJ Richards’ vehicles. The Plaintiff also sued the Nominal Defendant because if the truck was not found to belong to JJ Richards then it was an unidentified vehicle.
QBE denied liability for the accident on the ground that the truck was not one that belonged to JJ Richards, and could therefore not be identified. The Nominal Defendant denied liability on the ground that the truck in question was owned and operated by JJ Richards.
Section 31 of the Motor Accident Insurance Act 1994 (Qld) provides that:
(1) If personal injury is caused by, through or in connection with a motor vehicle, the insurer for the statutory insurance scheme is to be decided in accordance with the following principles—
(d) if the motor vehicle, or insurer under its CTP insurance policy, can not be identified—the Nominal Defendant is the insurer.
(2) In any legal proceedings, it is to be presumed that a motor vehicle can not be identified if it is established by affidavit or oral evidence that proper inquiry and search have been made and have failed to establish the identity of the motor vehicle.
Section 33(1) of the Motor Accident Insurance Act 1994 (Qld) provides that:
The Nominal Defendant’s liability for personal injury caused by, through or in connection with a motor vehicle is the same as if the Nominal Defendant had been, when the motor vehicle accident happened, the insurer under a CTP insurance policy under this Act for the motor vehicle.
The general rule in civil litigation is that the unsuccessful party must pay the costs of the successful party or parties, normally on the relevant court scale. This rule is contained in rule 681 of the Uniform Civil Procedure Rules 1999 (Qld) which provides that:
681 General rule about costs
(1) Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.
(2) Subrule (1) applies unless these rules provide otherwise.
In Sanderson v Blyth Theatre Company  2 KB 533 it was held that the court has a discretion to order the unsuccessful defendant to pay the costs of the claimant in pursuing the successful defendant and the costs of the successful defendant or defendants. Romer LJ said:
“the Court has full power over the costs of all parties of such an action; and, in my opinion, it has jurisdiction to order the plaintiff to pay the costs of the defendant against whom the action fails, and to add those costs to his own to be paid by the defendant against whom the action has succeeded, and whose conduct has necessitated the action. The costs so recovered over by the plaintiff are in no true sense damages, but are ordered to be paid by the unsuccessful defendant, on the ground that in such an action as I am considering those costs have been reasonably and properly incurred by the plaintiff as between him and the last-named defendant. Of course, in exercising the jurisdiction, a judge should have regard to the circumstances of the case, and be satisfied that it is just that the unsuccessful defendant should, either directly or indirectly, have to pay the costs of the successful defendant.”
In Bullock v London General Omnibus Company  1 KB 264, the plaintiff had been unable before litigation to assess which of the defendants might be liable. An order was made for the payment of the successful defendants’ costs, but with liberty to the plaintiff to include those costs in the costs of the action recoverable by the plaintiff from the unsuccessful defendant.
In Dominello v Dominello  NSWCA 257, the plaintiff was injured when a vehicle in which she was travelling, and which was driven by her husband, crashed. The vehicle slipped on oil that had been dropped onto the roadway. The plaintiff sued her husband’s insurer alleging negligence against him and also sued the Nominal Defendant, being liable as the insurer of the unidentified vehicle which dropped the oil. The result after the appeal was that the plaintiff was unsuccessful against her husband but successful against the Nominal Defendant. On the question of a Bullock or Sanderson order, the Court of Appeal refused to order the Nominal Defendant to pay the costs of the successful defendant, namely the insurer of the plaintiff’s husband.
After hearing the evidence at trial, Davis J of the Supreme Court found that the truck was not one that belonged to JJ Richards, and it could therefore not be identified. The result was that the claim against the three drivers and QBE was dismissed, but the claim was entirely successful against the Nominal Defendant, who was ordered to pay the sum of $723,761.64 in damages to the Plaintiff inclusive of interest.
After the trial, the issue of parties’ costs of the claim had to be determined. In respect of the costs of the three drivers and QBE, the Plaintiff submitted that the Court should “order otherwise” than that costs follow the event under rule 681 of the Uniform Civil Procedure Rules, and that a Bullock or Sanderson order ought to be made.
Davis J accepted this submission:
“Dominello is a very different case to the present. Here, there is only one cause of action, being negligence against the driver of the truck from which the object fell. The case was one of alternative liability of either the QBE defendants (if the truck was a JJ Richards truck) or the Nominal Defendant (if the truck could not be identified as a JJ Richards truck)…
It was obviously appropriate for Mr Garside to join all the defendants. The Nominal Defendant took a positive stance that the vehicle was one operated by JJ Richards. It could have conceded that the vehicle was unidentified.
In pleading positively as against Mr Garside that the vehicle was one driven by one of Mr Rohan, Mr Miles or Mr Robertson and in advancing that case and the wider case that the truck may have been some other JJ Richards truck, the Nominal Defendant clearly engaged with the QBE defendants on the critical issue between them. Unlike Dominello, this was a case of alternative liability. The Nominal Defendant sought to avoid liability by attempting to identify the truck as one insured by QBE. That is the conduct which satisfies the second requirement for a Bullock or Sanderson order.”
It was therefore ordered that:
This case shows that in cases where a plaintiff sues multiple defendants and is not successful against all of them, the court will consider the individual facts of the case in determining whether the successful defendants’ costs should be paid by the plaintiff or the unsuccessful defendant(s). The reasonableness of the plaintiff’s decision to sue the successful defendant(s) in all the circumstances will be the central issue in the exercise of the costs discretion in such cases. In this case, because the plaintiff’s claim against QBE and the Nominal Defendant was a case of alternative liability, and because the Nominal Defendant defended the claim on the basis that one of the drivers of JJ Richards insured by QBE was liable, the plaintiff’s decision to sue the three drivers and QBE was found to be plainly reasonable, even though it was ultimately unsuccessful.
On the other hand, the decision of the Nominal Defendant to defend the claim on the basis that the truck belonged to JJ Richards helped result in the costs of QBE being ordered against it. With the benefit of hindsight, such a decision turned out to be a mistake, although prior to trial it may have been unclear that the Court would find that the truck could not be identified. This case shows that the decision of a defendant to “point the finger” at other defendants in the proceeding can come at a cost.
Allison Baden-Clay was reported missing by her husband Gerard Baden-Clay on the morning of 20 April 2012. Her body was found on 30 April 2012 under a bridge on a bank of Kholo Creek, some 13 kilometres from her home. Leaves found on the body were from trees of six species that grew at the Baden-Clay and his wife’s home; four of these did not grow at the site at which the body was found. Baden-Clay and his wife’s eldest child thought that her mother was wearing a “sloppy jacket” and pyjama pants at the time she was watching television. Her body was found clothed in three-quarter length pants, socks, sneakers and a singlet top which had a bra built into it. Blood matching her DNA profile was found in the rear section of her car, which had only been acquired in February 2012. Tests on Baden-Clay’s mobile phone showed that it had been placed on a charger, adjacent to the side of the bed on which he slept, at 1.48am, at a time when he claimed he was asleep.
Gerard Baden-Clay had observable injuries to his right cheek when he reported his wife missing.
Prior to Allison Baden-Clay’s disappearance, Gerard Baden-Clay had been having an affair with Ms Toni McHugh since August 2008. He and his wife were due to go to a conference on 20 April 2012 that Ms McHugh would also attend.
Baden-Clay was also in financial difficulty at the time of his wife’s death.
Baden-Clay gave evidence at his own trial in 2014, in which he denied any involvement in his wife’s disappearance, death or the disposal of her body. He said that he went to bed at about 10pm, leaving his wife, who was watching television, in the living room. He awoke just after 6am on 20 April 2012. His wife was not at home, but she often went for an early morning walk. That morning, he was responsible for getting the children ready for school and taking them there. He testified he was “under the pump a little bit”, was “rushing that morning” and that he had cut himself shaving.
Three experts gave evidence that there were two categories of injuries to the Baden-Clay’s right cheek. Their evidence was that it was most likely that fingernails caused one set of scratches and it was implausible that those scratches had been caused by a shaving razor. A second set of marks appeared to be different. They were fresher, and were consistent with having been caused by a razor “particularly if moved from side to side as it was drawn from front to back or back to front across the face.”
Gerard Baden-Clay was convicted of his wife’s murder by the jury. He appealed his conviction pursuant to s 668E(1) of the Criminal Code 1899 (Qld) on the ground that the verdict was unreasonable, and two grounds concerning the adequacy of the trial judge’s summing up to the jury.
Section of 302 the Criminal Code (Qld) provides that:
“if the offender intends to cause the death of the person killed or that of some other person or if the offender intends to do to the person killed or to some other person some grievous bodily harm… is guilty of “murder”.”
Section 668E(1) of the Criminal Code (Qld), which concerns appeals in ordinary cases, provides that:
“The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or can not be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal.”
In Barca v The Queen  HCA 42, Gibbs, Stephen and Mason JJ said:
“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v The Queen; see also Thomas v The Queen.”
In Weissensteiner v The Queen  HCA 65, it was said that:
“in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.”
In R v White  2 SCR 72, in the Supreme Court of Canada, Major J said that:
“As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury’s exclusive fact-finding role.”
The QLD Court of Appeal allowed the appeal. It held that “there was no evidence of motive in the sense of a reason to kill”, and therefore it was not open for the jury to find that Baden-Clay had intended to kill or cause grievous bodily harm to his wife.
The Court of Appeal held that the evidence at trial was not able to exclude a reasonable hypothesis that:
“there was a physical confrontation between [Baden-Clay] and his wife in which he delivered a blow which killed her (for example, by the effects of a fall hitting her head against a hard surface) without intending to cause serious harm; and, in a state of panic and knowing that he had unlawfully killed her, he took her body to Kholo Creek in the hope that it would be washed away, while lying about the causes of the marks on his face which suggested conflict.”
Remarking on Baden-Clay’s facial injuries, the Court of Appeal opined that:
“There is nothing about the facial scratches to indicate the circumstances in which they were inflicted; whether they occurred in the course of a heated and perhaps physical argument or in resisting a murderous attack.”
The Court of Appeal also said that:
“The jury could properly have rejected every word [Baden-Clay] said as a lie. But that would, with the exception of his explanation of the scratches on his face, have done nothing to advance the Crown case. Conclusions that he had lied in that regard and that he had taken steps to dispose of his wife’s body were properly to be taken into account, as evidence of a consciousness of guilt, in the context of all the evidence in the case. But the lies, or the lies taken in combination with the disposal of the body, would not enable the jury to draw an inference of intent to kill or do grievous bodily harm if there were, after consideration of all the evidence, equally open a possibility that all of that conduct was engaged in through a consciousness of a lesser offence; in this case, manslaughter.”
The two grounds concerning the adequacy of the trial judge’s summing up to the jury were rejected.
The result in the Court of Appeal was that the conviction of murder was set aside, and a conviction for manslaughter was instead imposed.
The Crown appealed to the High Court.
In the High Court, the Crown argued that because no hypothesis of unintentional death caused by Baden-Clay was raised by the defence at trial and there was no evidence to support such a hypothesis, it was not a hypothesis which could form the basis of a reasonable doubt in the jury’s minds. The Crown also argued that the evidence of Baden-Clay’s ongoing relationship with McHugh, his wife’s “venting and grilling” concerning that relationship and the imminent meeting of McHugh and his wife at the conference on the day after her disappearance could fairly lead to the jury inferring an intent to kill. Baden-Clay’s post-offence lies and deceptions were also said to support such a conclusion.
Baden-Clay submitted that as the case for murder depended entirely upon circumstantial evidence and the onus of proof of murderous intent was always upon the Crown, the jury could not return a verdict of guilty. He argued that a hypothesis consistent with innocence of murder was open on the evidence. Baden-Clay’s post-offence lies and deceptions were submitted to be neutral on the question of whether he had intended to cause his wife’s death.
The High Court noted that Baden-Clay’s own evidence at trial was that he was not present and had no involvement in his wife’s death, and held that that evidence had the following effect:
“The evidence given in the present case by the respondent narrowed the range of hypotheses reasonably available upon the evidence as to the circumstances of the death of the respondent’s wife. Not only did the respondent not give evidence which might have raised the hypothesis on which the Court of Appeal acted, the evidence he gave was capable of excluding that hypothesis.
The Court of Appeal’s conclusion to the contrary was not based on evidence. It was mere speculation or conjecture rather than acknowledgment of a hypothesis available on the evidence. In this case, there was no evidence led at trial that suggested that the respondent killed his wife in a physical confrontation without intending to kill her. There were “no positive proved facts from which the inference” drawn by the Court of Appeal could be made. There was no evidence at trial of any injury to the wife’s body that might have killed her… Not only were there no fractures to the head, which might have suggested the wife had fallen and hit her head on a hard surface (as in the example given by the Court of Appeal), there were no other fractures on the body.”
The significance of Baden-Clay’s own evidence at trial was further explained by the High Court as follows:
“To say that the respondent’s evidence was disbelieved does not mean that his evidence could reasonably be disregarded altogether as having no bearing on the availability of hypotheses consistent with the respondent’s innocence of murder. His evidence was important, even if it was disbelieved, because it was open to the jury to consider that the hypothesis identified by the Court of Appeal was not a reasonable inference from the evidence when the only witness who could have given evidence to support the hypothesis gave evidence which necessarily excluded it as a possibility.
The Court of Appeal should not have treated the case as one in which it was open to it to identify a hypothesis as to the circumstances of the death of the deceased on the basis that the respondent’s evidence could be disregarded as if it had not been given at all.”
The High Court also observed that a further problem with the Court of Appeal’s approach was that at trial the case was conducted on the basis that Baden-Clay was either guilty or murder or had no part to play in his wife’s death, and neither the Crown nor the defence had ever suggested that Baden-Clay may be guilty of manslaughter rather than murder. Indeed, his Counsel admitted this approach had been adopted by the defence as a “considered tactical position”.
Furthermore, the High Court held that it was open for the jury on the evidence to find beyond reasonable doubt that Baden-Clay had intent to kill or cause grievous bodily harm when he killed his wife. The jury were entitled to conclude “that it tested credulity too far to suggest that his evident desire to be rid of his wife was fortuitously fulfilled by her unintended death”.
Citing the above comment of Major J in R v White with approval, the High Court held that:
“[Baden-Clay’s] false denials to police about his ongoing affair, his suggestion to Ms McHugh that she should “lie low”, and his enquiry of her as to whether she had revealed the affair to the police were all capable of being regarded by the jury as evidencing a strong anxiety to conceal from police the existence and true nature of his affair with Ms McHugh. This anxiety could reasonably be seen as indicative that, in his mind, the affair and the killing were inter-related, and that the killing was not an unintended, tragic death of his wife, but an intentional killing…
It was open to the jury, in this case, to regard the lengths to which the respondent went to conceal his wife’s body and to conceal his part in her demise as beyond what was likely, as a matter of human experience, to have been engendered by a consciousness of having unintentionally killed his wife.”
Finally, the jury was also entitled to consider and rely on “the absence of any signs that a weapon was used to cause the death”, combined with “the difficulty involved in killing a human being without the use of a weapon unless the act of killing is driven by a real determination to cause death or grievous bodily harm” in support of the necessary element of intent.
The result was Baden-Clay’s murder conviction was reinstated.
The High Court found that the Court of Appeal erred because it held that there was sufficient evidence of intent, and that due to a lack of evidence to support the hypothesis that Baden-Clay has accidentally killed his wife such a hypothesis was mere conjecture. As a result, the Court of Appeal’s decision was set aside and the murder conviction was re-instated.
Significantly, Baden-Clay’s own evidence at trial was held by the Court to support a finding that he did intend to kill his wife, even though that very evidence was obviously rejected by the jury. According to the High Court, the jury were entitled to conclude that Baden-Clay’s false testimony that he had no part whatsoever in his wife’s death would not have been given if he had not intended to kill her. In other words, Baden-Clay would have been expected to admit his role rather than give evidence denying it he had accidentally killed his wife.
The result is, as Baden-Clay’s lawyer Peter Shields has pointed out, many people accused of murder now are strongly advised to not give evidence at their own trials, because “if an accused doesn’t give evidence then they’re not subject to that forensic criticism.” In other words, the false testimony provided by a person accused of murder can according to the High Court be legitimately used by jurors to help conclude that they did intend to kill, and therefore that they are guilty of murder rather than manslaughter.
Conversely, if an accused person does decide to give evidence at their own murder trial, they should ensure that their evidence is truthful and (if possible) does not provide a jury with a belief that their evidence consists of self-serving lies. According to the High Court, Baden-Clay’s decision to give evidence at his own trial denying any involvement whatsoever in his wife’s death could be used by the jury to conclude that such an attempt to conceal his involvement inferred murder, and that such false evidence would not have been provided if her death was an accident on his part. The effect of this decision is that those accused of murder are in effect encouraged to ‘come clean’ and admit their involvement (if any) if they wish to be acquitted of murder.
Finally, the High Court’s decision confirms that evidence of intent can be proven beyond reasonable doubt even if it is based entirely on circumstantial evidence. In this case, Baden-Clay’s stated intention to be rid of his wife, the lack of evidence suggesting accidental death and Baden-Clay’s post-offence conduct provided a sufficient basis for the jury to conclude that Gerard Baden-Clay had intentionally killed his wife.
This case reflects very badly on both the Victorian police and the lawyer who turned police informant on her own clients:
“Victorian Premier Daniel Andrews has announced a royal commission into the recruitment and management of police informants, following revelations Victoria Police used a defence lawyer as a registered informant at the height of Melbourne’s gangland war.
The announcement comes after legal suppressions were lifted on a High Court decision which described Victoria police’s use of the lawyer as an informant as “reprehensible conduct” which corrupted potentially dozens of high profile convictions of central gangland players.
“I am left in no doubt that a royal commission is the right thing to do,” Mr Andrews said…
The High Court judgment raised serious issues relating to the “management of informants, or shall I say the mismanagement of informants”, as well as potential impacts upon the safety or the integrity of criminal convictions, he said.
The $7.5 million inquiry will examine how many cases were directly impacted; what — if any — changes need to be made in the management of informants, and will make recommendations and provide advice on a process for dealing with those affected, Mr Andrews said…
Earlier, the High Court savaged a decision by Victoria Police to use the lawyer as a registered informant, describing it as “reprehensible conduct’’ which corrupted potentially dozens of high profile convictions of central players in Melbourne’s gangland war.
In an excoriating judgment, the High Court found the lawyer committed “fundamental and appalling’’ breaches of professional obligations to clients, and the court and Victoria Police command was sanctioned “atrocious’’ breaches by police their sworn duty to act faithfully according to the law.
The Commonwealth Director of Public Prosecutions has written to some of Australia’s most notorious criminals — including gangland drug baron Tony Mokbel — informing them their convictions and lengthy prison sentences are based on evidence provided by their defence lawyer when the lawyer was a police informant.
The extraordinary revelation follows a protracted and highly secretive legal saga played out within the Victorian Supreme Court, Court of Appeal and High Court of Australia.
It has plunged Victoria Police into crisis, with the legitimacy of potentially hundreds of criminal convictions now in doubt.”
What a mess.
The High Court was understandably extremely unimpressed:
“[[the lawyer]’s actions in purporting to act as counsel for the Convicted Persons while covertly informing against them were fundamental and appalling breaches of [[the lawyer]’s obligations as counsel to her clients and of [[the lawyer]’s duties to the court. Likewise, Victoria Police were guilty of reprehensible conduct in knowingly encouraging [[the lawyer] to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will. As a result, the prosecution of each Convicted Person was corrupted in a manner which debased fundamental premises of the criminal justice system. It follows, as Ginnane J and the Court of Appeal held, that the public interest favouring disclosure is compelling: the maintenance of the integrity of the criminal justice system demands that the information be disclosed and that the propriety of each Convicted Person’s conviction be re-examined in light of the information. The public interest in preserving [[the lawyer]’s anonymity must be subordinated to the integrity of the criminal justice system.”
It seems clear that the barrister will have to enter into witness protection with her children as a result of her reckless and foolish decision to betray some very dangerous clients.
Former Labor leader Mark Latham will file no evidence in his defence of a defamation claim by former Greens candidate and political journalist Osman Faruqi.
Osman Faruqi, the son of Greens senator Mehreen Faruqi, is suing Mark Latham over a video.
Faruqi had earlier shared on his Twitter, speaking to Yassmin Abdel-Magied:
“The white people are getting f..ked Yas, it’s happening.”
Latham in August, 2017 said of Mr Faruqi in his Outsiders video program:
“These people are fermenting (sic) hatred of white people,” he said, according to a transcript of the show supplied to the Federal Court. “As such, they are effectively encouraging terrorists in this political environment to do their worst.”
The video was viewed more than 30,000 times, according to Mr Faruqi.
Faruqi has argued Mr Latham’s comments made him out to be someone who “knowingly assists terrorist fanatics who want to kill innocent people” and “condones the murder of innocent people”.
Latham has elected not to file any evidence in chief in defence of Faruqi’s claim against him.
This morning, Justice Wigney set the matter down for a mediation, as well as a 2 day trial on 11-12 April 2019 if the matter is not resolved at mediation.
A Victorian Supreme Court jury has found Bourke Street driver James Gargasoulas guilty of murder.
On 20 January 2017 James Gargasoulas accelerated a car he was driving down a footpath in Bourke Street Melbourne, deliberately targeting pedestrians. He killed 6 people and injured many others during his rampage.
Gargasoulas was suffering from paranoid schizophrenia and drug induced psychosis at the time of the offences.
Section 3 of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) provides:
“offence” includes conduct that would, but for the perpetrator’s mental impairment or unfitness to be tried, have constituted an offence.
Section 20 of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) provides:
Defence of mental impairment
(1) The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that—
(a) he or she did not know the nature and quality of the conduct; or
(b) he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).
(2) If the defence of mental impairment is established, the person must be found not guilty because of mental impairment.
At the trial, the jury listened three days of evidence and watched harrowing CCTV footage of the rampage.
Gargasoulas gave evidence about his state of mind at the time of the offences:
“I had a premonition and I followed my instinct to do what I did… I wasn’t intending to kill anyone as I was driving to the city.”
Gargasoulas apologised for his actions but said saying sorry or a lengthy sentence would not “fix what I have done”.
His barrister Dr Theo Alexander started his three minute closing submission with a quote from Hamlet:
“Our wills and fates do so contrary run
That our devices still are overthrown
Our thoughts are ours
their ends none of our own.”
In her closing, Director of Public Prosecutions Kerri Judd QC said it was a clear case of criminal liability:
“There’s no issue of identity, the conduct itself is captured on the CCTV. The CCTV really in this case says it all.”
The jury were sent away this morning at 11.43am to deliberate.
In less than an hour, the jury found Gargasoulas guilty of 6 counts of murder and 27 counts of reckless conduct endangering life.
Gargasoulas displayed no emotion as the verdicts were announced while family members of the victims who were in the court wiped their eyes. Later, Gargasoulas appeared to be twitching his leg and rocking slightly in his seat.
The jury’s verdict should not have come as a surprise given there was no dispute that Gargasoulas was the driver of the car and had intended to kill or injure, and a jury had earlier found that he was fit to stand trial.
There is no doubt that Gargasoulas’ mental illness was a cause or contributing factor to the crimes he perpetrated on 20 January 2017. This case shows that even when someone is suffering from a mental illness and/or a drug induced psychosis, they ordinarily still are held criminally responsible for their actions. The legal question for a jury or judge is whether they knew what they were actually doing, or whether they knew that what they were doing was wrong. The jury’s answer to both questions was in the affirmative.
A jury has decided that accused Bourke Street driver James Gargasoulas should stand trial.
Section 6 of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) provides:
When is a person unfit to stand trial?
(1) A person is unfit to stand trial for an offence if, because the person’s mental processes are disordered or impaired, the person is or, at some time during the trial, will be—
(a) unable to understand the nature of the charge; or
(b) unable to enter a plea to the charge and to exercise the right to challenge jurors or the jury; or
(c) unable to understand the nature of the trial (namely that it is an inquiry as to whether the person committed the offence); or
(d) unable to follow the course of the trial; or
(e) unable to understand the substantial effect of any evidence that may be given in support of the prosecution; or
(2) A person is not unfit to stand trial only because he or she is suffering from memory loss.
Two psychiatrists and a psychologist gave evidence at a Victorian Supreme Court hearing to determine Gargasoulas’ current mental state and his fitness to stand trial.
All three experts agreed that Gargasoulas was suffering from paranoid schizophrenia and delusions. Forensic psychiatrists Andrew Carroll and Lester Walton opined that Gargasoulas could not enter a plea, give instructions to his lawyers or understand the substantial effect of the evidence. However, Michael Daffern, a psychologist was of the view that Gargasoulas was fit.
The jury determined that Gargasoulas was fit for trial and should face six counts of murder and 28 counts of attempted murder.
Some high profile Queensland criminal defence lawyers are being accused of serious fraud offences:
“A cadre of high-profile Brisbane criminal defence lawyers have been charged with defrauding the taxpayer-funded Legal Aid Queensland and laundering money for “serious and organised crime”.
The lawyers — Adam Magill, Corey Mullen and Mitchell Cunningham, all of whom worked at law firm Lawler Magill — and another man were arrested yesterday following an 18-month joint investigation codenamed “Operation Stockade”.
More arrests were expected overnight.
The Crime and Corruption Commission alleged some of the men were involved in defrauding Legal Aid Queensland of about $340,000, and fraud by failing to deposit more than $765,000 into a trust account.
Investigators also alleged some of the men laundered the proceeds of serious criminal offences.”
If these charges are proven, these lawyers may be spending time in prison with some of their former clients. In fact, one of them maybe already has:
“Mr Magill, 47 — a former policeman whose clients have included footballer Karmichael Hunt and Hells Angels member Chris Bloomfield — will appear in Brisbane Magistrates Court today on counts of aggravated fraud, fraudulent falsification of records and aggravated money laundering. He has been remanded in custody.”
The Supreme Court of NSW has exercised its inherent jurisdiction to strike off a former federal Labor MP for misappropriation of trade union funds and the criminal and civil convictions which resulted from it.
Craig Thomson was admitted as a lawyer in NSW on 31 March 1995, although he never obtained a practising certificate.
From around 1988, Thomson was employed by the Health Services Union (HSU), initially as an industrial officer in the New South Wales branch.
On 16 August 2002, Thomson was elected as National Secretary of the HSU. Two months later, Thomson established a business account for the HSU National Office in Victoria with the Commonwealth Bank of Australia (CBA). He was the only signatory to this account, which included a CBA credit MasterCard with a cash withdrawal facility accessible by PIN. In accordance with HSU policy, that card was only to be used for work-related expenses. Irregularities in the accounts for the card were, however, revealed by an exit audit conducted after Thomson’s resignation as National Secretary.
On 24 November 2007, Thomson was elected as a Member of the Federal Parliament for the seat of Dobell. Although re-elected in 2010, public revelations concerning the misappropriation of HSU funds during his time as its Secretary led to him resigning from the Australian Labor Party in about 2012 and losing his seat at the 2013 federal election.
On 15 December 2014, in the proceeding in the County Court, Thomson was found guilty of 12 charges of stealing cash belonging to the HSU, amounting to at least $5,350 over a four-year period from October 2003 to October 2007: Director of Public Prosecutions v Thomson (County Court of Victoria, Judge Douglas, 15 December 2014).
On 17 December 2014, he was convicted and, by way of sentence, ordered to pay an aggregate fine of $25,000 and compensation to the HSU of $5,650: Director of Public Prosecutions v Thomson (County Court of Victoria, Judge Douglas, 17 December 2014). As at 13 June 2018, he had paid the fine, but not the compensation.
On 15 September 2015, the Federal Court found that Thomson had contravened ss 285, 286 and 287 of the Workplace Relations Act 1996 (Cth). On 15 September 2015 the Federal Court imposed an aggregate penalty of $175,550 on Thomson and also ordered him to pay compensation of $231,243 and pre-judgment interest of $146,937 to the HSU.
On 11 October 2016, Thomson applied to the Law Society of New South Wales for a practising certificate. His application disclosed “theft of between $3500 and $5500 from employer” and sentence by way of a “fine of $25,000”, but did not disclose the contraventions of the Workplace Relations Act.
On 19 December 2016, the Law Society Council notified him of its refusal to grant a practising certificate on the basis of his criminal convictions.
On 23 February 2017, the Law Society informed the Prothonotary of the Supreme Court of NSW of that refusal.
By summons filed on 15 March 2018, the Prothonotary applied for declarations that Mr Thomson has been guilty of professional misconduct, is not a person of good fame and character, and is not a fit and proper person to remain on the roll of legal practitioners of the Supreme Court.
At common law, the Supreme Court of NSW has an inherent jurisdiction to control and discipline lawyers admitted or operating within its jurisdiction.
Section 264 of the Legal Profession Uniform Law provides as follows:
264 Jurisdiction of Supreme Courts
(1) The inherent jurisdiction and powers of the Supreme Court with respect to the control and discipline of Australian lawyers are not affected by anything in this Chapter, and extend to Australian legal practitioners whose home jurisdiction is this jurisdiction and to other Australian legal practitioners engaged in legal practice in this jurisdiction.
(2) Nothing in this Chapter is intended to affect the jurisdiction and powers of another Supreme Court with respect to the control and discipline of Australian lawyers or Australian legal practitioners.
In deciding whether to remove a lawyer from the roll of legal practitioners, “the ultimate issue is whether the practitioner is shown not to be a fit and proper person to be a legal practitioner of [the] Court” as “at the time of the hearing”: A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253;  HCA 1 at , .
In determining such an application, the Court must satisfy itself that any orders made are appropriate in all the circumstances, even if the proceeding is uncontested: Prothonotary of the Supreme Court of New South Wales v Livanes  NSWCA 325 at  (McColl JA). The Court should also make appropriately detailed factual findings, both to advance public confidence in the control and discipline of the profession and to assist those tasked with determining any future application for readmission: Bridges v Law Society (NSW)  2 NSWLR 361 at 362 (Moffitt P); New South Wales Bar Association v Cummins (2001) 52 NSWLR 279;  NSWCA 284 at  (Spigelman CJ, Mason P and Handley JA agreeing); Council of New South Wales Bar Association v Power  NSWCA 135; (2008) 71 NSWLR 451 at – (Hodgson JA, Beazley and McColl JJA agreeing).
In New South Wales Bar Association v Cummins (2001) 52 NSWLR 279;  NSWCA 284 at , Spigelman CJ identified four “interrelated interests” which may be regarded as protected by such proceedings:
“Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.”
The Court held that three principles were particularly relevant to the determination of the application:
The Court found that Thomson’s conduct whilst National Secretary of the HSU included theft and other misappropriation of funds belonging to the HSU and abuse of a fiduciary or a quasi-fiduciary position, in each case over an extended period which involved “significant and prolonged dishonesty for personal gain”.
Furthermore, the Court noted Thomson had not suggested that he had undergone a period of reformation of character since his time at the HSU, and he had failed to disclose all of his convictions to the Law Society Council or pay the penalties imposed by the Federal Court.
This case demonstrates that even when misconduct occurred a long time ago and was not in connection with legal practice, it can still lead to a conclusion that someone is not a fit and proper person to engage in legal practice. In this case, Thomson’s misconduct involved dishonesty on a large scale over a long time, and his lack of candour to the Law Society Council also weighed against his fitness to practice.
Finally, this case also demonstrates the difference between the ethical standards of the union movement and the legal profession. The union movement and the ALP were (at least for a time) willing to tolerate Thomson’s dishonest misuse of HSU funds, whereas the Supreme Court of NSW held that such conduct was inconsistent with being a lawyer.
From late 2010 until April 2011, Ashraf Kamal Makary met with three young Korean women who had recently arrived in Australia and responded to an advertisement he placed on a website offering English language lessons in return for Korean lessons. He would make contact with them by phone using a false name, meet with them and offer them alcohol. According to each the three Korean women, they soon after lost consciousness. One of them woke up and saw his penis and that he was only wearing a t shirt. Another woke up at home with sore genitals and breasts, and made a complaint to police before going to hospital to obtain vaginal swabs. The other woke up while she was being raped and had pain all over her body. She also made a complaint to police and obtained vaginal swabs.
When Makary was visited by police on 11 April 2011, in his car they found two mobile phones, a box of Temazepam tablets, a box of condoms, a box of “Temtabs”, a pair of purple underpants belonging to one of the victims and a broken wine glass with residue in it. In his house police found Temazepam and a laptop containing the phone numbers and email addresses of the three Korean women.
The DNA evidence obtained from the swabs showed that some of the DNA obtained matched Makary’s. The two women who had obtained blood tests tested positive for Oxazepam, Temazepam, Aminonitrazepam and Nitrazepam. There was expert evidence that when Temazepam is ingested a part of it metabolises into Oxazepam and that when a person ingests Nitrazepam it is metabolised into Aminonitrazepam.
While on bail for these charges, Makary was charged with a further rape he committed on 13 April 2012 against another Korean woman he had contacted through the same website, breaching his bail condition of not being on the internet. He was remanded in custody as a result of this offence.
In 2014, Farr DCJ ruled that the charges against Makary in respect of the three women should be joined due to the striking similarity and underlying unity in the following relevant facts of each of the charges:
(a) the complainants are all young Korean women;
(b) the complainants all contacted Makary in response to an advertisement he placed on a website seeking to meet someone for the purposes of exchanging language skills;
(c) the same website was used on each occasion;
(d) Makary used a false name on each occasion;
(e) email correspondence then occurred, culminating the arrangement of a meeting;
(f) Makary selected the meeting place and time;
(g) Makary arrived at the meeting in his car;
(h) Makary indicated on each occasion that the complainant should get in his car after which he drove off to a park or park-like location at night;
(i) there had been no pre-arrangement in that regard;
(j) Makary brought drinks with him in the car which he offered to each complainant;
(k) each complainant felt dizzy or suffered amnesia after consuming some drinks or was found to have sedative-type drugs in their urine; and
(l) sexual activity subsequently occurred with each complainant, with the exception of one complainant who due to her presence of mind was able to resist his advances.
Makary gave evidence at his own trial.
On 3 June 2016, Makary was sentenced by Clare DCJ to 18½ years imprisonment after being convicted of three counts of administering a stupefying thing with intent to commit an indictable offence, two counts of rape and one count of attempted rape by a jury. The sentencing remarks included the following:
“You are a true serial predator who deliberately embarked on a course of hunting women to rape… In this case there is another aggregating factor and that is the fear of the unknown. His opportunity and capacity to do a great deal of perversion to the people he had captive There are two types of rapes. Is it more frightening for a victim, or worse for a victim, to be hit than it is to be drugged unconscious and detained for a number of hours?.. It’s not just the psychological trauma, it’s the physical risk involved. The risks from the drugs themselves … Death could have been the results of your client’s actions as well…
“The Prosecution has proved that you raped two women and came perilously close to raping the third. After weeks of scheming, the women were at your mercy to do with what you would. By that time, you had demonstrated that your only interest in them was malevolent. It defies credibility to consider that you did not exploit the opportunity you had created. In the absence of credible evidence to the contrary, this can only be viewed as protracted offending. [Amy] was with you for six hours. [Linda] had 12 hours unaccounted for. Both of those women bore indications of forceful or protracted violations and rough mistreatment. [Linda] had the additional injuries. For [Emma] who was not raped, there was extra danger in the way that you left her.”
Makary was subsequently also convicted and sentenced for the further rape committed whilst on bail. He was sentenced to a further term of imprisonment to be served cumulatively with the other offences.
Makary appealed both the conviction and sentence. Unusually, he self-represented in the appeal against conviction but was legally represented in the appeal against sentence.
Section 24 of the Criminal Code (Qld) provides that:
“A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.”
Section 95A of the Evidence Act 1977 (Qld) provides that:
“(3) A certificate, in the approved form, purporting to be signed by a DNA analyst and stating any of the following matters is evidence of the matter—
(a) that a stated thing was received at a stated laboratory on a stated day;
(b) that the thing was tested at the laboratory on a stated day or between stated days;
(c) that a stated DNA profile has been obtained from the thing;
(d) that the DNA analyst—
(i) examined the laboratory’s records relating to the receipt, storage and testing of the thing, including any test process that was done by someone other than the DNA analyst; and
(ii) confirms that the records indicate that all quality assurance procedures for the receipt, storage and testing of the thing that were in place in the laboratory at the time of the test were complied with.”
A sentencing judge may not take into account other offences in respect of which the accused has not been convicted even if the evidence at trial discloses the commission of such offences: R v Cooksley  Qd R 405 at 418 per McPherson J.
Section 668E(3) of the Criminal Code provides that:
“On an appeal against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.”
Section 159A of the Penalties and Sentences Act 1992 provides as follows:
“If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence and for no other reason must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders.”
Appeal against conviction
In respect of in the appeal against conviction, Makary’s complaints in respect of section 24 of the Criminal Code were rejected because it was his sworn evidence that he had not had sexual intercourse with any of the three women, and none of the facts he pointed to could give rise to any inference that he held a reasonable and honest belief that one of the women did consent.
Makary argued the DNA evidence given by Ms Amanda Reeves, a senior reporting scientist in the Forensic DNA Analysis Unit of Queensland Health should have been excluded because it was hearsay evidence. However, this argument ignored section 95A of the Evidence Act 1977.
Makary argued that Clare DCJ erred by misdirecting the jury about the offence of attempted rape of which he was convicted as he contended that the Prosecution had to prove beyond reasonable doubt that he had not fulfilled his intention to rape. However, this proposition had been rejected in R v Barbeler.
The Court held that Makary’s criticisms of his Counsel’s failure at trial to directly ask one of the complainants that she had not had sexual intercourse with him in all the circumstances of the case could not be characterised as a failure, and in any event it fell nowhere near what must be shown to establish incompetence in legal representation of a character as to amount to a miscarriage of justice.
Makary argued that Farr DCJ’s decision to join the six charges was incorrect, however the Court rejected this submission because “more remarkably similar set of circumstances in which the same offences (or attempted offence) were committed would be difficult to imagine” meant that Farr DCJ’s decision to join the charges was correct.
As none of Makary’s arguments against his conviction had any merit, the appeal against conviction was dismissed.
Appeal against sentence
The Court opined that Clare DCJ’s reference to the Makary’s offending as “protracted offending” involving “protracted violations” could not be read otherwise than as a reference to multiple rapes, or the commission of some other unspecified and uncharged sexual offences, committed by Makary against his unconscious victims. Therefore Clare DCJ had erred and leave should be given to Makary to appeal against his sentence.
As a result, Makary had to be resentenced. The Court in resentencing Makary noted the following:
“The six offences of which [Makary] was convicted were the culmination of some weeks of effort by him to put these three young women at his mercy. His efforts to that end were calculated, methodical and sustained. He set out to hunt down three women who, by reason of their youth, their presence in a foreign land and their lack of proficiency in English were particularly vulnerable to entrapment and violation. He pretended to be willing to assist them, he exploited their solitariness here and he abused their preparedness to trust him. He devised a rape kit consisting of alcoholic drinks, innocuous looking orange juice, wine glasses, drugs and a car in which to transport his unconscious victims to his bedroom. The evidence showed that he roughly raped two of his victims and was ready to rape the third. He wanted to have them and he did have them at his mercy for hours. He drugged them by suspending the stupefying drug in an alcoholic drink which exacerbated the effect of the drugs. He was prepared to, and did, induce them into incoherence and illness. He had not the slightest concern for their safety or well-being. He let Emma out of his car in a drug-induced, inebriated state into an unfamiliar street, leaving her to crawl to some form of safety if she could, or into danger if that is what happened. He left his other two victims at their home careless of their ability to look after themselves and careless of their health. Linda was ill to the point of vomiting violently. All of them suffered unconsciousness, disorientation, inability to move and confusion. He drugged them not caring whether any of them had suffered from any condition that might have rendered her ingestion of the drugs he gave her particularly dangerous. He did these awful things to these women because he wanted to rape three different women on three successive nights. Indeed, as it happened, at the very time that Amy was being examined at the hospital, [Makary] was undertaking the subjugation and rape of Linda.
Furthermore, each of these women has been affected by the crimes committed against them. Because they were each rendered unconscious before they were raped, or in the case of Emma, before [Makary] attempted to rape her, they suffer from their lack of knowledge of what might have been done to them at [Makary’s] will. Each has suffered an enduring vulnerability. One of the complainants terminated a pregnancy for fear that the child might have been fathered by [Makary]. Amy suffers from post-traumatic stress disorder. Linda has changed from being a bubbly and bright young woman into a person who is more guarded. Notwithstanding this ongoing suffering, each of them had the great moral courage to submit themselves to the distress of legal process in a foreign country.
It could be said that this case is remarkable because there are no factors at all in mitigation of [Makary’s] guilt of these offences.
He did not plead guilty and even now maintains his innocence of these crimes. He has evinced not the slightest remorse or even empathy. He put the Crown to strict proof at the trial, including proof of continuity of the handling of DNA samples. He is a man who has shown no cooperation with authorities. There is not the slightest suggestion that he is amenable to rehabilitating himself. Indeed, on the contrary, while on bail for these offences we now know that he committed yet another, almost identical, offence against yet another Korean victim for which he has since been convicted.
[Makary] is mature and well educated. He cannot absolve himself by pointing to the callowness of youth as a factor. He did not submit that he committed these offences by reason of the effect upon him of any disorder, illness or other explicable compulsion.
Rehabilitation is always possible but there is no evidence of any hope for it here.”
Due to these numerous aggravating factors and the lack of mitigating factors in respect of the offending, Makary’s offending was more serious than the cases his lawyers attempted to rely on to show that Clare DCJ’s sentence was manifestly excessive. Accordingly, a majority of the Court (Sofronoff P & Bond J) held that the appeal against sentence should be dismissed.
McMurdo JA agreed with the majority in respect of the appeal against conviction, however, he dissented in respect of the appeal against sentence. McMurdo JA opined that because Clare DCJ had incorrectly taken into account the possibility that Makary’s offending involved further offences against the complainants, the correct sentence should be lower than the one imposed by Clare DCJ, particularly when taking into account the fact that Makary had served four years on remand prior to conviction which could not be declared pre sentence custody and he would also be required to serve at least 80 per cent of his sentence. McMurdo JA held that the appropriate sentence was therefore 16 years imprisonment.
Makary’s arguments against his conviction were evidently lacked merit. In addition, his appeal against conviction was hopeless because of the overwhelming evidence that pointed to his guilt.
Makary’s offending was extremely serious and was committed on three separate occasions over a fairly lengthy period of time. In addition, there were plenty of aggravating factors, and the only mitigating factor was his lack of prior criminal history. As a result, a severe sentence was warranted in order to denounce the offending, deter others and to protect the community from a dangerous serial sexual predator. As the further rape committed whilst on bail showed, Makary’s offending would have more than likely continued if he had not been incarcerated.