In December of last year, controversial Catholic Church Cardinal George Pell was convicted of one count of sexual penetration of a child under the age of 16 and four counts of an indecent act with a child under the age of 16 over allegations of abusing choirboys at Melbourne’s St Patrick’s Cathedral in the 1990s. This followed a previous trial that resulted in a hung jury.
The complainant said he and another choirboy left the liturgical procession at the end of one Sunday mass and went fossicking in the off-limits sacristy where they started swilling altar wine. Pell allegedly arrived unaccompanied, castigated them, and then, while fully robed in his copious liturgical vestments, proceeded to commit three sexual acts, including oral penetration of the complainant. The complainant said the sacristy door was wide open and altar servers were passing along the corridor. The complainant said he and the other boy then returned to choir practice.
Prior to both trials, Pell had been subject of substantial adverse pre-trial publicity, including a Royal Commission into child sex abuse, a book by Louise Milligan described as a hatchet job and an abusive song by Tim Minchin. His conviction was highly controversial, and criticised by a number of commentators.
At common law, a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law (Woolmington v DPP  AC 462; Howe v R (1980) 32 ALR 478). The presumption is not that the accused is not guilty, it is that the accused is innocent (R v Palmer (1992) 64 A Crim R 1).
The presumption of innocence has been enshrined in s25(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). The presumption of innocence is only relevant to the accused. It is a misdirection to tell the jury that witnesses are presumed to be innocent (Howe v R (1980) 32 ALR 478).
Section 141(1) of the Evidence Act 2008 (Vic) provides that:
“In a criminal proceeding, the court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt.”
Section 49B of the Crimes Act 2008 (Vic) provides that:
(1) A person (A) commits an offence if—
(a) A intentionally—
(i) sexually penetrates another person (B);…
(b) B is a child under the age of 16 years.
(2) A person who commits an offence against subsection (1) is liable to level 4 imprisonment (15 years maximum).
A majority of the Victorian Court of Appeal has dismissed the appeal against conviction:
“By a majority of two to one, Victoria’s Supreme Court dismissed the appeal ordering Pell to “return to prison”.
“He will continue to serve his sentence of six years imprisonment,” Chief Justice Anne Ferguson said.
“He will remain eligible to apply for parole after he has served three years and eight months of the sentence.”
Cheers were heard from inside the courtroom and outside as dozens of supporters watching the appeal on the livestream heard the three judges slap down Pell’s appeal.”
An appeal to the High Court is likely.
UPDATE: footage of the Victorian Court of Appeal decision being handed down can be found here.
That footage is ©Supreme Court of Victoria.
Former Ipswich lord mayor Paul Pisale, a Singaporean friend named Yutian Li and a lawyer named Cameron McKenzie were accused of participating in a bizarre extortion plot:
“Prosecutors claim Yutian told Pisasale she wanted to punish Xin after learning he was married during their relationship.
Pisasale then allegedly posed as a private investigator in a series of phone calls in which he told Xin he needed to pay Yutian between $5000 and $10,000, saying she has “a very, very good case” against him and “could go after you”.
The money, Pisasale said, was reimbursement for Yutian’s private investigation fees.
“She was so upset. You could just see her whole world had been destroyed,” he told the court.
“She was a beautiful person. She was a very caring person and she would have given her 100 per cent to this bloke.
“She was broke, she was in Australia and she had nowhere to turn.
“All he had to do was reimburse her and let her start again but he was so determined not do.””
Pisale, Li and McKenzie were all found guilty by a jury of extortion.
Section 415 of the Criminal Code (Qld) provides that:
(1) A person (the “demander”) who, without reasonable cause, makes a demand—
(a) with intent to—(i) gain a benefit for any person (whether or not the demander); or(ii) cause a detriment to any person other than the demander; and
(b) with a threat to cause a detriment to any person other than the demander;
commits a crime.
(2) It is immaterial that—
(a) the demand or threat is made in a way ordinarily used to inform the public rather than a particular person; or
(b) the threat does not specify the detriment to be caused; or
(c) the threat does not specify the person to whom the detriment is to be caused or specifies this in a general way.
(d) the detriment is to be caused by someone other than the demander.
Judge Brad Farr sentenced Pisale to 2 years imprisonment to be suspended after 12 months for the two counts of extortion.
Judge Farr sentenced Li to 15 months for each charge, partially suspended. She will serve seven months in prison and is likely to be deported following that sentence. McKenzie received 18 months’ jail suspended after serving nine months.
Paul Pisale’s fall from grace is now almost complete, although he does face further charges which will take their own course.
It will be interesting to see whether McKenzie remains a lawyer for very long.
Why do you need a lawyer? On some level this is a basic and obvious question, but there is a lot more to the answer than first meets the eye. Although it seems like a pretty obvious question, there are in fact a number of advantages of having a lawyer.
1. Lawyers have knowledge and experience
A lawyer usually has special knowledge and experience acquired from their qualifications and their years of legal practice. A lawyer knows the law, should know the procedures, and will be able to prepare documents and handle your case in the most effective way. By engaging a lawyer, you are taking advantage of the knowledge and skills that he or she possesses, which should benefit your case enormously.
Lawyers know what points and arguments are most relevant and effective, and which ones are less so. Experienced lawyers know of the temperament and expectations of particular judges, and are able to tailor their approach accordingly. Lawyers can effectively advise you of the advantages and disadvantages of a proposed course of action.
In contrast, relying on the advices of people who are not legally qualified is a very dangerous thing to do, even if such people mean well. There are a lot of myths in the community about the legal system and how it works. By speaking with a lawyer, you can find out whether what you have heard is in fact true, and if not your understanding of your matter will become more accurate and realistic.
2. Lawyers can help prevent disputes
One of the popular and enduring myths about lawyers is that they create and promote conflict. In reality, lawyers issue try to prevent conflict and attempt to resolve conflict without the need for final judicial determination. Disputes can and often are resolved through the sending of constructive correspondence, negotiation and participation in alternative dispute resolution.
By protecting your rights and interests, getting the agreement into writing and ensuring that everything is legally sound, a lawyer can significantly reduce the likelihood of having a costly dispute arise in the first place. And even if a dispute does eventuate, the number of uncertainties and the risks of a seriously bad outcome are substantially less the earlier a lawyer is retained.
3. The other party will take you more seriously
Because lay people representing themselves are at such a disadvantage, the lawyers for the other party(ies) might be less likely to put forward decent offers to settle the case, which can result in you settling for less than you otherwise would. Without the benefit of legal advice, you are unlikely to know whether an offer you receive is reasonable, or whether you are likely to get a better outcome by rejecting it.
Even if you know the offers the other side have been prepared to put forward are inadequate, you may be less likely to settle your case because the other side know that you will struggle to prove your case as a self-represented litigant, which means more time, stress and risk.
4. Lawyers take the stress out the situation
Having someone on your side who is handling the situation for you can be rather reassuring, and reduces the stress you are feeling about your case. It saves you from having to read every piece of correspondence that comes in about your matter, feeling like you are in it alone or having to think about it constantly.
5. Lawyers save you time
For most people, time is valuable. By doing most of the work for you, the lawyer allows you to have the time to live your life. As a result, that you can spend time with your family and friends, and not have to take substantial time off work.
6. Lawyers are not emotionally involved
Because your lawyers are not you, there is a benefit of detachment that exists that allows your lawyer to view your case objectively and provide you with sound advice and recommendations. There’s an old legal truism that “he who acts for himself has a fool for a client”. This applies even to lawyers who represent themselves, because a self-represented litigant is usually too emotionally involved to see things objectively and make rational judgments. This is particularly the case in family law, where emotions are heightened.
7. If you win, you can get your costs
In civil litigation, the general rule is that the loser usually pays the winner’s costs. So if you win, you get (partly) compensated for the legal bills you have paid with a costs order in your favour. In contrast, if you are self-represented you are only entitled to claim for disbursements such as filing fees, and therefore cannot be compensated for your time and effort.
8. Lawyers have insurance
In Australia, all lawyers are required to have professional indemnity insurance. If your lawyer makes a critical error which costs you a lot of money, you can sue your lawyer for this. In contrast, if you mess up your own case you only have yourself to blame and therefore are not entitled to any compensation.
Of course, all this is not to say that you need a lawyer in every legal dispute you ever have. If for instance you have a dispute over a small sum in a tribunal where costs cannot be awarded, you would probably best be served by representing yourself. But in most other cases, the benefits of having a lawyer in a legal dispute far outweigh the costs.
Hamish McLaren born Hamish Watson stole $7.6 million from 15 victims over a period of years.
Before the crimes for which he was sentenced, McLaren had swindled people in the US, Canada, Britain, and Hong Kong.
Yesterday, he was sentenced to 16 years imprisonment, with a non-parole period of 12 years.
Judge Charteris found that McLaren was unrepentant and had no genuine remorse for his crimes:
“His letter (read to the court last week) does not remotely persuade me that this man is sorry.
“I do not believe he has any remorse, I believe he is consumed by himself. He is driven by stealing the money of other citizens, all of whom trusted him. The focus was on his own wellbeing so he could live the high life, spending others’ retirement savings.”
Finding that this was the worst variety of white collar crime, Judge Charteris noted that:
“If the offender has received massive disapproval from the community — it’s appropriate that he should do so,
“How could he stand by and see people draw down their life super funds to be given to him? His behaviour is the most reprehensible one can imagine having regards to offences of this nature.”
$5.4M has never been recovered.
Catherine Holmes, the Chief Justice of Queensland has a piece in The Australian concerning some of the unfair and ill-informed criticisms of sentencing decisions in recent years:
Importantly, she does not say that decisions should not be criticised. However, given that judges are not supposed to respond to criticisms or defend their own decisions, personal attacks against judges and criticisms of decisions which do not show the reasons for the decisions undermine confidence in the Courts, and can threaten judicial independence:
“I am concerned about tendencies in media and political discourse to speak about courts and their decisions in ways which can, directly or indirectly, undermine judicial independence.
This may sound a little precious, so I had better start by emphasising that I am not suggesting that anyone should desist from criticising judicial decisions. Discussion and criticism are to be expected in a healthy democracy.
My plea is for better informed criticism, because public confidence is essential to the preservation of what I contend is a very good legal system; and for better targeted criticism, because there seems to be an increasing, damaging willingness to attack that system as a whole on the strength of dissatisfaction with a very small number of decisions.”
The article may be behind a paywall, so a subscription may be required.
On 4 June 2019, the Australian Federal Police raided the home of News Corp Australia journalist Annika Smethurst after she revealed in April last year that the Defence and Home Affairs departments had been discussing monitoring Australian citizens for the first time.
The following day, the Australian Federal Police raided the Australian Broadcasting Corporation’s Sydney offices as well after a number of stories known as the Afghan Files revealed allegations of unlawful killings and misconduct by Australian special forces in Afghanistan and were based on hundreds of pages of secret Defence documents leaked to the ABC.
Commissioner Gaughan said the raids were part of an investigation and alleged there had been an unauthorised leak of national security information to journalists.
Broadcaster Ben Fordham subsequently revealed he was the subject of a probe over his recent story about six asylum seeker boats attempting to reach Australia.
Section 79(3) of the Crimes Act 1914 (Cth) provided that:
(3) If a person communicates a prescribed sketch, plan, photograph, model, cipher, note, document or article, or prescribed information, to a person, other than:
(a) a person to whom he or she is authorized to communicate it; or
(b) a person to whom it is, in the interest of the Commonwealth or a part of the Queen’s dominions, his or her duty to communicate it;
or permits a person, other than a person referred to in paragraph (a) or (b), to have access to it, he or she commits an offence.
Section 79(6) of the Crimes Act 1914 (Cth) provided that:
(6) If a person receives any sketch, plan, photograph, model, cipher, note, document, article or information, knowing, or having reasonable ground to believe, at the time when he or she receives it, that it is communicated to him or her in contravention of subsection (3), he or she commits an offence unless he or she proves that the communication was contrary to his or her desire.
Penalty: Imprisonment for 2 years.
Last year, legislation was passed by the federal government which repealed section 79 of the Crimes Act but which inter alia expanded the definition of “national security” to include not just what we would normally think of as security matters but also Australia’s “political, military and economic relations with other countries”. Although this legislation provided a public interest defence to journalists, such protections were not afforded to whistleblowers who leaked to them.
Chris Merritt is not impressed:
“The Law Council last year suggested a mechanism to the government that, had it been adopted, could have removed the incentive to conduct those raids.
In the midst of the debate over changes to national security laws, the government changed tack and gave reporters a new defence that protects the publication of secrets that the reporter believes, on reasonable grounds, to be in the public interest.
But the government rejected the Law Council’s proposal for the same defence to be made available to those who provide such information to the media.
This gave rise to the current lunacy: public interest disclosures such as those made by Smethurst are defensible if made by a journalist, but the same information is not defensible if disclosed by a whistleblower in the federal public service. That inconsistency might explain why AFP officers targeted Smethurst and the ABC and why more reporters will inevitably be raided.
The main game, from the perspective of those who rejected the Law Council’s suggestion, appears to be all about finding reporters’ confidential sources and punishing them regardless of the public interest in what they revealed, and regardless of how many journalists and newsrooms are subjected to raids.”
Media lawyer Justin Quill believes that the warrants may be unconstitutional given that the chilling effect of the raids could be found to breach the implied right of political communication.
Whilst politicians and governments often pose as friends of free speech, press freedom and transparency, their actions demonstrate the opposite attitude. Powerful people will always have an incentive to entrench their own power and authority and reduce the power of others.
Who can forget Kevin Rudd’s promises of a new era of transparency, or the Gillard Government’s hamfisted attempt in its dying throes to regulate the media to make parts of it less critical of Labor?
On 23 April 2019, Opposition Leader Bill Shorten campaigned at the Queensland government-owned Gladstone Ports. At a free barbeque, an electrical engineer told Shorten that “It would be good to see higher-wage earners given a tax break’’. Shorten replied with “We’re going to look at that”, a claim which appeared to be at odds with his policy of slugging those with above average incomes with higher taxes.
The electrical engineer was subsequently suspended when he was told he had breached his employment contract for speaking to the media, and his pass did not work the following day when he arrived for work. His desk was also packed up and the contents returned to him.
Section 351 of the Fair Work Act 2009 (Cth) provides that:
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
(2) However, subsection (1) does not apply to action that is:
(a) not unlawful under any anti-discrimination law in force in the place where the action is taken…
(3) Each of the following is an anti-discrimination law:…
(c) the Anti-Discrimination Act 1991 of Queensland.
Section 7 of the Anti-Discrimination Act 1991 (Qld) provides that:
Discrimination on the basis of certain attributes prohibited
The Act prohibits discrimination on the basis of the following attributes—
(j) political belief or activity
By speaking with an elected politician running for Prime Minister who was attending an event at his work, the worker was arguably merely engaged in political activity and/or expressing a political belief. By taking adverse action against him, the employer appears to have contravened the general protections enshrined under the Fair Work Act 2009 as well as the Anti-Discrimination Act 1991. The employer’s claim that he was fired for “speaking with the media” at first glance appears to be spurious.
Given that he was not technically fired from his work, the worker may not be able to claim for unfair dismissal as he may not have been dismissed from his employment. However, given that he soon after found a new job, a claim for breach of a general protection under the Fair Work Act 2009 may not be worth pursuing if there is not a significant gap between what he was being paid with his former employer and what he is currently earning.
One can only speculate whether someone in the Labor Party (connected either with Bill Shorten or the QLD Labor Government) urged the employer to take action against the worker for causing political embarrassment to Bill Shorten.
Debbie Deans was employed as a specialist schoolteacher by Riverside Christian College in Maryborough when on 4 March 2015 she slipped over a grape on the linoleum flooring of a foyer in G Block during a ‘fruit break’ during the course of her employment, fracturing her left patella.
She sued her employer, claiming that it was negligent for failing to:
(a) take reasonable care for her safety;
(b) establish, maintain and enforce safe methods and systems for her to carry out her employment;
(c) supervise her so as to ensure she carried out her employment safely;
(d) warn her of the possibility of injury to her in carrying out her employment and instruct her in methods of work to avoid the possibility of such injury;
(e) provide a safe work environment within which her was required to perform her duties;
(f) not require her to perform work where the defendant knew, or ought to have known that the carrying out of the work may cause injury to her;
(g) failed to implement a system of inspection and cleaning following “fruit break” when it knew, or ought to have known, that there was a higher probability of slip hazards being created in the area due to the fact that five and six year old children were carrying fruit through the area;
(h) failing to make arrangements for the five and six year old children to store their “fruit break” snacks in an area that was not a high traffic pedestrian area.
305B General Principles
(1) A person does not breach a duty to take precautions against a risk of injury to a worker unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things):
(a) the probability that the injury would occur if care were not taken;
(b) the likely seriousness of the injury;
(c) the burden of taking precautions to avoid the risk of injury.
“305C Other Principles
In a proceeding relating to liability for a breach of duty—
(a) The burden of taking precautions to avoid a risk of injury includes the burden of taking precautions to avoid similar risks of injury for which the person may be responsible; and
(b) The fact that a risk of injury could have been avoided by doing something in a different way does not of itself give rise to or effect liability for the way in which the thing was done; and
(c) The subsequent taking of action that would (had the action been taken earlier) have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does of itself constitute an admission of liability in connection with the risk.”
Deans’ lawyers argued the general notoriety of young children dropping things and leaving them on the floor meant that this risk was foreseeable as defined in section 305B(1)(a).
Farr SC DCJ rejected this argument, noting there was no evidence of any previous incidents of people slipping on things dropped by children at Riverside Christian College, or at any other school. Nor was there any evidence that Riverside Christian College knew of this particular risk of injury. Therefore, the risk was held not to be foreseeable.
The argument that Riverside Christian College had conceded foreseeability by also pleading a defence of contributory negligence was also rejected because it ignored the statutory definition of “obvious risk” contained in section 305I of the Workers’ Compensation and Rehabilitation Act, and was contrary to the High Court’s decision in Thompson v Woolworths (Queensland) Pty Ltd  HCA 19.
A further issue which Farr SC DCJ considered was whether the risk was not insignificant within the meaning of s305(1)(b) of the Workers’ Compensation and Rehabilitation Act. Farr SC DCJ noted that the fruit break had been taking place for five years without any previous incident, and the relevant area would have been traversed by thousands if not tens of thousands of people at and around the fruit breaks. For these reasons, Farr SC DCJ held that the risk of injury arising from items being dropped on fruit breaks was insignificant.
As a result of these findings, Riverside Christian College had not breached its duty of care, and therefore the claim for negligence had to fail.
Deans appealed the District Court’s decision to find in favour of her former employer.
One ground concerned a challenge to Farr SC DCJ’s finding that Riverside Christian College had conceded foreseeability and that an obvious risk existed, however Justice Gotterson of the Court of Appeal held that finding was clearly correct.
Gotterson JA held that an absence of evidence concerning dropped fruit being allowed to remain on the floor, problems with fruit breaks at other schools and the alleged notoriety of such problems was an insufficient basis for a finding against foreseeability. According to Gotterson JA, it was forseeable that fruit would be dropped, that it may not be picked up and that someone would slip on it.
However, Gotterson JA also held that because the probability of occurrence of the relevant risk was very low, Farr SC DCJ was entitled to find that this risk was insignificant. As a result, there was no breach of the duty of care by Riverside Christian College.
Gotterson JA did not accept the grounds of appeal that Farr SC DCJ had proceeded on the basis that rostering for recess applied to fruit breaks.
Gotterson JA rejected the remaining grounds of appeal challenging Farr SC DCJ’s finding that no instruction was required and that Farr SC DCJ erred in not having regard for the replacement of the linoleum flooring with carpet given Deans’ familiarity with fruit breaks and the lack of evidence that carpet would have prevented the injury.
As a result, the appeal was dismissed with costs.
This case confirms that where a defendant in Queensland has organised for a particular activity without any prior incident for some years, they will have a reasonable chance of defending the claim for personal injury on that basis alone, as the activity in question may not involve risks which are significant within the meaning of the law.
This decision means that schools can have some comfort that activities which involve a small degree of risk of personal injury can still take place without the risk of being successfully sued, as long as such activities are conducted as safely as practicable.
Last year, Professor Peter Ridd was sacked by James Cook University after speaking out on issues relating to climate change research.
He took James Cook University to the Federal Circuit Court, arguing his termination of employment was unlawful.
Today, Ridd has won his case, with the Court awarding judgment in his favour:
“Handing down his decision today, judge Salvatore Vasta said that the 17 findings used by the university to justify the sacking were unlawful.
“The Court rules that the 17 findings made by the University, the two speech directions, the five confidentiality directions, the no satire direction, the censure and the final censure given by the University and the termination of employment of Professor Ridd by the University were all unlawful,” Judge Vasta said.
A penalty hearing will be set for a later date.
At a hearing last month, Professor Ridd’s barrister Stuart Wood argued his client was entitled to criticise his colleagues and the university’s perceived lack of quality assurance processes.”
This is a win for free speech and academic freedom.
Actor Geoffrey Rush has won his defamation case, with Justice Wigney that finding Nationwide News did not make out its truth defence:
“Geoffrey Rush has won his defamation case against a Sydney newspaper publisher and journalist over articles saying he’d been accused of inappropriate behaviour. The 67-year-old actor had sued The Daily Telegraph’s publisher and journalist Jonathon Moran over two stories and a poster published in late 2017.In Sydney’s Federal Court on Thursday, Justice Michael Wigney found Rush had been defamed.“Nationwide News and Mr Moran did not make out their truth defence,” the judge said.”
A plaintiff is said to have been defamed if a publication causes the reasonable person to think less of them: Reader’s Digest Services Pty Ltd v Lamb  HCA 4.
Truth is a defence at common law, however in order for such a defence to succeed, the defamatory matter must be true in substance and effect: Howden v ‘Truth’ & ‘Sportsman’ Ltd 1937 58 CLR 416. Therefore, the defendant must prove that the meaning of the defamatory imputations are true and accurate in all except the most minor details, they must also prove the correctness of any inference that a reasonable person may draw from the matter: Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1.
Furthermore, Section 25 of the Defamation Act 2005 provides that:
The Sydney Morning Herald reports:
“Oscar-winning actor Geoffrey Rush has been awarded $850,000 in damages and will receive further damages for economic loss after he won his defamation case against Sydney tabloid The Daily Telegraph over reports accusing him of “inappropriate behaviour” towards a female co-star.
In a judgment summary delivered in court on Thursday, Federal Court Justice Michael Wigney said the Telegraph had failed to establish a defence of truth to its claims and he was not satisfied the events occurred “as alleged”.
“This was, in all the circumstances, a recklessly irresponsible piece of sensational journalism of the worst kind. The very worst kind,” Justice Wigney said.”
The question of whether an injunction sought by Rush and the issue of costs will be decided at a later case management hearing.