‘Revenge porn’ is an awful modern phenomenon made possible by technology. The laws in Queensland are however catching up with technology:
“Proposed changes to the Criminal Code to be introduced in Parliament this week would make revenge porn a criminal offence in Queensland.
Attorney-General and Minister for Justice Yvette D’Ath will this week introduce the Criminal Code (Non-consensual Sharing of Intimate Images) Amendment Bill 2018, delivering on an election promise to address the disturbing trend.
“These laws would apply to both sending, and threatening to send, intimate material without consent, and will come with a maximum penalty of three years jail,” Mrs D’Ath said.
“The definition will extend to photoshopped images – where an image has been altered to look like a person is portrayed in an intimate way.”
The Bill also allows courts to make a rectification order –the images must be removed or deleted, and if they aren’t a person faces a two-year jail term.
“Revenge porn is a horrible violation, designed to humiliate, and it speaks volumes about the person sharing the image.
“It is time for us to step in because this behaviour isn’t just abhorrent, it is criminal.
“And we also know that while sharing intimate images can affect anyone, it disproportionately affects women and girls,” Mrs D’Ath said.
The Bill also includes the threat to distribute – whether an image exists or not.
“Victims often don’t know whether there is material in existence; but a threat to distribute material—even material that may not exist— provokes extreme fear and can be used to control, coerce, and harm a person,” Mrs D’Ath said.
“I would hope this Bill also serves as a reminder for young Queenslanders, in particular, around the dangers in sharing such material.”
The Bill will now be considered by a parliamentary committee and will be open for public submissions in the near future.”
Michael James Quinn has the dubious honour of being the first solicitor in Queensland legal history to be struck off twice.
Normally when a lawyer is removed from the roll (‘struck off’) that effectively ends their legal career, as they are permanently ineligible to obtain a practising certificate which would enable them to practice law again. In this case, the unusual history of the matter led to the practitioner being struck off twice.
From 1 April 2009, Quinn practised as sole practitioner in the firm Q5 Law Proprietary Limited until 4 May 2012 when his practising certificate was cancelled.
In 2015, Quinn was first struck off by the Queensland Civil and Administrative Tribunal (QCAT) after failing to appear and contest 64 charges arising from the trust account of Q5 Law Proprietary Limited.
In 2016, Quinn successfully appealed this decision because QCAT had failed to satisfy itself that the charges had been proven pursuant to section 453 of the Legal Profession Act 2007. The Court of Appeal set aside the QCAT orders and ordered a re-hearing.
On 12 October 2017 Quinn was convicted after trial by a District Court jury of one count of fraud with a circumstance of aggravation contrary to section 408C of the Criminal Code for trust account defalcations of Q5 Law Proprietary Limited. He was sentenced to 12 months imprisonment, with immediate suspension and an operational period of two years.
The Legal Services Commissioner applied to QCAT for another order that Quinn be struck off for the trust account defalcations conviction as well as unlawful drawing of trust moneys, retention of trust moneys in a general account contrary and a failure to keep records as required by the Legal Profession Act 2007.
Section 408C of the Criminal Code provides that:
“(1) A person who dishonestly
(a) applies to his or her own use or to the use of any person
(i) property belonging to another; or
(ii) property belonging to the person, or which is in the person’s possession, either solely or jointly with another person, subject to a trust, direction or condition or on account of any other person; or
(b) obtains property from any person; or
(c) induces any person to deliver property to any person; or
(d) gains a benefit or advantage, pecuniary or otherwise, for any person; or
(e) causes a detriment, pecuniary or otherwise, to any person; or
(f) induces any person to do any act which the person is lawfully entitled to abstain from doing; or
(g) induces any person to abstain from doing any act which that person is lawfully entitled to do; or
(h) makes off, knowing that payment on the spot is required or expected for any property lawfully supplied or returned or for any service lawfully provided, without having paid and with intent to avoid payment;
commits the crime of fraud.”
Section 419 of the Legal Profession Act 2007 states as follows:
419 Meaning of professional misconduct
(1)”Professional misconduct” includes
(a) unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; and
(b) conduct of an Australian legal practitioner, whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
Section 452 of the Legal Profession Act 2007 states as follows:
“Starting proceeding before a disciplinary body
(1) The commissioner may apply—
(a) to the tribunal for an order against an Australian legal practitioner in relation to a complaint against the legal practitioner or an investigation matter.”
Section 453 of the Legal Profession Act 2007 states as follows:
The disciplinary body must hear and decide each allegation stated in the discipline application.”
Section 456 of the Legal Profession Act 2007 relevantly provides as follows:
“456 Decisions of tribunal about an Australian legal practitioner
(1) If, after the tribunal has completed a hearing of a discipline application in relation to a complaint or an investigation matter against an Australian legal practitioner, the tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the tribunal may make any order as it thinks fit, including any 1 or more of the orders stated in this section.
(2) The tribunal may, under this subsection, make 1 or more of the following in a way it considers appropriate—
(a) an order recommending that the name of the Australian legal practitioner be removed from the local roll;
(b) an order that the practitioner’s local practising certificate be suspended for a stated period or cancelled;
(c) an order that a local practising certificate not be granted to the practitioner before the end of a stated period.”
The charges and the facts supporting them were expressly admitted by Quinn.
As QCAT Member Justice Daubney noted, Quinn’s conduct clearly amounted to professional misconduct because it involved both a substantial and a consistent failure over a period of 16 months to keep reasonable standards of competence and diligence, and also justified a finding that the practitioner is not a fit and proper person to engage in legal practice. This was notwithstanding the fact that no client of Quinn’s had suffered any loss.
Justice Daubney then made the following observations:
“It is trite to observe that the clients of solicitors must be able to expect absolute probity from solicitors in relation to dealings with moneys held in trust. Various terms have been used to describe the level of that probity. Those terms have elevated the extent of that probity to levels such as it being a sacred trust. Whatever words one uses, the inherent relationship between a solicitor and their client must be founded on trust, and a necessary practical manifestation of that trust must be the absolute probity with which solicitors both theoretically and in practice approach their dealings with moneys that have been entrusted to them by or on behalf of clients.”
Due to the relative currency of Quinn’s conviction, the serious nature of the offending and the fact that that offending occurred in the course of his conduct of a legal practice, Justice Daubney determined that the appropriate sanction was removal from the roll.
Justice Daubney consequently ordered that Quinn’s name again be removed from the roll and that he pay the Commissioner’s costs.
This case is one of many that shows that trust account defalcations are a serious matter, and in cases where there are numerous or serious defalcations a solicitor can be struck off for them, even when their own clients are not left worse off.
Quinn’s win in the Court of Appeal, in which he managed to have an order that he be removed from the roll overturned, was a temporary victory. A subsequent fraud conviction in relation to some of the same trust accounting issues for which he had been struck off at first instance ensured that he would be struck off again.
The District Court’s decision to dismiss a teacher’s claim for slipping during a fruit break shows that a lack of previous incidents can be decisive on the question of liability.
Debbie Deans was employed by Riverside Christian College in Maryborough when on 4 March 2015 she slipped over a grape 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.
This case demonstrates 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 foreseeable or significant within the meaning of the law.
This decision is good news for schools, who can now 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.
Litigation is very tough on litigants. They find themselves in an environment where in spite of their strong feelings about their case, their emotions carry no weight and are seldom acknowledged by the court. Furthermore, their fate at trial is the hands of a third party who may rule against them, with disastrous consequences. Adverse findings can be made against them. There is an incredible amount of stress associated with such risks. And of course, there is the massive amount of money they have to pay towards their own legal costs.
In return, the least litigants are entitled to expect is a judge who properly hears their case and considers it in a fair minded way.
Unfortunately, this is not what has been happening for many cases before Judge Sandy Street:
“A federal judge who has had at least 61 judgments overturned on appeal since his appointment 3½ years ago has been found in recent cases to have repeatedly failed to fulfil the basic judicial task of properly trying cases and giving adequate reasons for his decisions.
In a scathing appeal judgment two weeks ago, Federal Circuit Court judge Sandy Street was found to have “manifestly failed to give adequate reasons, and in places reached conclusions that were plainly wrong”, when he threw out a claim brought by a teacher who had been denied a termination payment promised by the Sydney Catholic school system.
Judge Street — whose father, Sir Laurence, grandfather and great grandfather were all former NSW chief justices — had delivered his decision “ex tempore”, or on the spot, without retiring from the bench for consideration.
Many of his judgments have been delivered ex tempore, helping him to dispose of about 1370 cases in a 26-month period, while the other eight Sydney general federal law judges combined disposed of just 2290 cases.
“When ex tempore judgments are used inadequately or inappropriately, the quality of justice delivered may fall below acceptable standards, perceived efficiency may be illusory … costs may be greatly increased (especially due to an appeal) and the final resolution of a dispute may be delayed, rather than accelerated,” he said.”
Whilst the Federal Circuit Court does have an incredible workload given the number of family law matters and the variety of other federal matters which come before it, it is important for the interests of justice that litigants are afforded a fair hearing and have their cases considered in a fair and balanced manner.
Interestingly, when he was at the bar Judge Street called for a fairer process with respect to the appointment of barristers to silk. The Federal Court clearly wishes for fairer processes in Judge Street’s courtroom.
What if a lawyer knows that their own client is guilty of the offence(s) for which they have been charged? This is a question that lawyers are often asked, although perhaps surprisingly not often by criminal clients.
In short, the answer depends on whether a lawyer’s knowledge of their client’s guilt arises from the evidence against them, or whether it’s because the client has confessed their guilt to their lawyer.
In the first scenario, the lawyer’s knowledge could perhaps be better characterised as belief if the client disputes their guilt.
On the other hand, when a client confesses to their own lawyer there is almost always no reason for them doing so other than because they are in fact guilty. Their guilt can normally be safely assumed.
This post will address each scenario.
If the evidence against the client is extremely strong and their lawyer believes as a result of the evidence that a conviction is certain, then the lawyer should advise their client to plead guilty. In practice, this is best done after the lawyer has listened to the client’s side of the story for two reasons. Firstly, hearing what the client has to say will ensure that there are no facts that the lawyer is aware or that they have overlooked or not previously been aware of. Secondly, by listening the lawyer will have hopefully built up some rapport so that the client will be more like to take the lawyer’s advice.
When advising the client to plead guilty, the lawyer would need to explain the basis of their opinion to the client so that he or she can make a fully informed decision. It is after all their decision, not the lawyer’s. It would also be important to mention that a guilty plea leads to a reduced sentence and avoids the stress of a trial. If the client takes the advice, then the lawyer has acted in the client’s best interests even though they have been convicted on their own plea. Of course, the interests of justice will also have been furthered in that a guilty person will have been convicted and a trial will have been avoided.
However, if the client listens to the lawyer’s advice and is adamant that they will nevertheless plead not guilty, the lawyer must accept their decision. It is an accused person’s right to plead not guilty, even if they did in fact commit the offence(s) they are charged with. The lawyer must not in any way seek to interfere with that right. Criminal defendant lawyers have often represented clients who they thought were guilty but who wished to plead not guilty. There is nothing wrong with defending a client who the lawyer believes is guilty, for the reasons set out below.
The first reason why it is perfectly ethical to defend a client who the lawyer knows or believes is guilty is that the lawyer is not the person whose role it is to decide whether or not the client is guilty. As Johnathan Goldberg has said, “a defending advocate is not there to stand in judgment upon his own client”. That role belongs to a judge or jury, as the case may be.
Assuming that no evidence is excluded from the trial, the judge or jury reaching the verdict will have all the evidence that the lawyer has to decide for themselves whether or not the client is guilty.
If the lawyer refuses to act for a client because they believe they are guilty, the lawyer is to a degree assuming the judge or jury’s role as being the decider of guilt. As David Whitehouse QC has pointed out:
“Usually I have my own view of the merits of the defence, but even if the prosecution case is very strong, if my client tells me he’s innocent I have to act for him, because it is a cardinal rule of the profession that we are not allowed to refuse to represent someone because we don’t like them or because we don’t believe in their case. Otherwise, some people wouldn’t get a barrister to defend them at all. The system is based on the idea that there’s a barrister on each side, the jury looks at the case from both angles and makes up its mind. It only works properly if both sides are represented.”
Furthermore, what if the lawyer was wrong in their belief that the client was guilty, but continued to act for them and let that belief influence how well they defended the client? Then if the client was convicted, the lawyer would be at least partly responsible for a great injustice. Furthermore, whilst the client can appeal a judge or jury’s decision, if the lawyer decided their client was guilty and let that affect their performance, that would not be a ground for appeal unless that could somehow be proven (which in practice may be very hard to do). It would be extremely improper and dangerous for a lawyer to engage in such hubris.
In practice, a client confessing to their lawyer is almost unheard of, although it did happen in the infamous Lake Pleasant case. Nevertheless, in Australia there are clear rules for lawyers in this situation.
One important rule that applies is client confidentiality. Even if a client confesses to the lawyer, the lawyer is still bound by confidentiality to not disclose that communication to others. If the lawyer is ever called as a witness in court and asked about communications made by the client to the lawyer, the lawyer can and must claim privilege and refuse to answer the question. However, if a client confesses to someone who is not their lawyer (or an employee of a law firm), then such a confession can be disclosed and used in evidence. This is what occurred in the Max Sica trial. Sica was subsequently convicted of a triple murder.
There are sound reasons for client confidentiality. If the lawyer could or had to disclose such confidential communications, then the role of the lawyer would be closer to that of an impartial investigator (such as a police officer) than a lawyer. This could well result in clients not trusting their lawyers and not being frank to their lawyers, even when they are innocent. This in turn can seriously undermine the defence, as the lawyer is not aware of all the facts that may assist or hinder the client’s case.
There are many reasons why someone who is innocent of an offence may require confidentiality in order to have the confidence to reveal things to their lawyers which may assist his or her case. Weakening client confidentiality could result in innocent people being convicted, or mitigating facts not being raised during sentence.
Duty to not mislead the court
Notwithstanding client confidentiality, if the client admitted his or her guilt to the lawyer, the obligation to not mislead the court would still apply. However, in Australia this obligation would alter how the lawyer can defend the client.
If the client tells the lawyer they are guilty the lawyer can still defend them, although the lawyer is not obliged to if someone else can be found in proper time to represent the client and the client does not insist the lawyer represents them. However, in defending the client the lawyer is not allowed to advance a positive case which the lawyer knows to be untrue. This is dealt with in rule 20.2 of the Australian Solicitors Conduct Rules 2011. Those rules provide that in such a case, the lawyer:
(i) must not falsely suggest that some other person committed the offence charged;
(ii) must not set up an affirmative case inconsistent with the confession;
(iii) may argue that the evidence as a whole does not prove that the client is guilty of the offence charged;
(iv) may argue that for some reason of law the client is not guilty of the offence charged; and
(v) may argue that for any other reason not prohibited by (i) and (ii) the client should not be convicted of the offence charged
In other words, the lawyer can put the prosecution to proof (force them to prove their case) and argue that the evidence is not strong enough evidence for the client to be convicted. The lawyer can also try to weaken the evidence by cross-examining witnesses (without advancing a positive case), arguing that particular pieces of evidence prove little and so on. However, the lawyer is not permitted to submit to the court that my client has an alibi, has committed the offence in self-defence or advance some other evidence or explanation the lawyer knows to be false.
As this post demonstrates, the answer to the question of what s lawyer should do when they know or believe their client is guilty is somewhat complicated. And no doubt it is controversial. After-all, if a client has told the lawyer they are guilty and the lawyer’s efforts helped them escape conviction, then the lawyer has helped a guilty person ‘get away with it’. However, the current requirements are justified when one looks beyond the circumstances of the case and looks at the broader considerations, including the lawyer’s role as an advocate rather than an investigator or jury, and the importance of client confidentiality. However, the duty to not mislead the court is paramount. Whilst the lawyer is not permitted to disclose client confessions to the court, the lawyer is also prohibited from misleading the court by adducing evidence or making submissions that they know to be false.
The Human Rights Commission’s decision to award compensation to a man convicted of child pornography offences shows that it is an out of touch organisation that sides with pedophiles over businesses.
The Australian ‘Human Rights’ Commission has courted significant controversy in recent years as a result of its decision to delay an enquiry into children in immigration detention until after the Liberal-National Coalition was elected in 2013, its former President’s repeatedly false and misleading evidence in Senate estimates and its failure to notify the students in the QUT case that a complaint had been made against them for 14 months.
The most recent controversy is the Commission’s awarding of compensation of $2,500 against bank and insurance company Suncorp for refusing to employ a man convicted and sentenced to 12 months’ jail in 2008 for accessing child pornography via a “carriage service” and for possession of child pornography.
To make matters worse, when applying for the role the man intentionally failed to disclose his criminal history.
If any organisation (other than the EU) typifies the foolish and dangerous worldview of the elites, it is the ‘Human Rights’ Commission. This organisation seems not to realise that people with serious criminal convictions usually are not of good character, particularly if they then try to deceive or mislead prospective employers as the man in this case did.
According to the Commission, a person convicted of accessing and viewing child porn should not be ‘discriminated against’ by employers when applying for jobs. On the other hand, students who complain on Facebook about being kicked out of an Indigenous only computer lab, and columnists and cartoonists who dare to express controversial opinions about Indigenous affairs should be sued, punished, dragged through the Commission’s Kaffkaesque processes and/or silenced.
This is precisely the sort of outcome we can expect more of if the ‘Human Rights’ Commission is given real power, or a Bill of Rights is ever implemented, as we warned some time ago. The ‘human rights’ of criminals, illegal immigrants and extremists will inevitably take precedence over the rights and interests of others.
Climate blogger Jennifer Marohasy provides an interesting report on Dr Peter Ridd’s case against James Cook University in the Federal Circuit Court. Ridd’s employment as an academic of the university was terminated in May due to him speaking out and defying a gag order imposed by the university.
Continue reading “JCU in Court for adverse actions against academic freedom”
The Queensland Court of Appeal has upheld the convictions of a rapist whose prior rape convictions were admitted into evidence at his trial.
Mark Little had pleaded guilty to raping women on 2 November 1994, 12 November 1998 and 10 February 1999.
The complainant was a sex worker who was in a relationship with Little. On the morning of 19 November 2015 their relationship ended as a result of an exchange of acrimonious text messages between them.
Continue reading “Serial rapist’s prior convictions held to be admissible”