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.
A 2015 District Court case has demonstrated how important it is to ensure that your solicitors have your current contact details and are able to contact you to obtain your instructions. The Claimant’s failure to do so in that case resulted in him losing the right to pursue his claim.
The Claimant was injured in a motor vehicle accident on 4 August 2012. He subsequently sent to the insurer a Notice of Accident Claim form. The insurer confirmed that the form was compliant and later admitted liability in full for the accident.
In about March 2013, the Claimant lost contact with his solicitors and did not contact them again until 29 July 2015. There was evidence later adduced in the Court of Appeal that he may have been avoiding the authorities as a result of a suspected arson.
The Claimant applied to the District Court for leave (special permission) to extend the time for bringing his claim in a court so that he would have time to comply with the legislative pre-proceeding requirements.
Section 11(1) of the Limitation of Actions Act 1974 provides that:
“an action for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) in which damages claimed by the plaintiff consist of or include damages in respect of personal injury to any person… shall not be brought after the expiration of 3 years from the date on which the cause of action arose.”
However, the Claimant also had to comply with pre-proceeding steps provided by the Motor Accident Insurance Act 1994 prior to commencing his claim, including cooperating with the insurer, making himself available for independent medical examinations and attempting to resolve the claim by compulsory conference before his claim for damages could be filed in court.
Section 57 of the Motor Accident Insurance Act 1994 provides as follows:
“(1) If notice of a motor vehicle accident claim is given under division 3, or an application for leave to bring a proceeding based on a motor vehicle accident claim is made under division 3, before the end of the period of limitation applying to the claim, the claimant may bring a proceeding in court based on the claim even though the period of limitation has ended.
“(2) However, the proceeding may only be brought after the end of the period of limitation if it is brought within—
(a) 6 months after the notice is given or leave to bring the proceeding is granted; or
(b) a longer period allowed by the court.”
The District Court dismissed the application to extend the time for the following reasons:
The result of the District Court’s decision was that the Claimant missed the time limit and his claim was statute barred. This decision was upheld on appeal. As a result, the Claimant lost his right to pursue the claim. Costs were awarded against him in the District Court and the Court of Appeal.
This is an important case concerning a Claimant’s responsibilities and obligations in respect of his or her own claim.
This case provides a salutary lesson in terms of the following:
Personal injury claims are serious matters and must be taken seriously. In particular, it is extremely important for a Claimant to comply with their obligations at law, as failing to do so may jeopardise their claim.
The four Plaintiffs in this matter were brothers from Toowoomba known as ‘the Wagners’. Through Wagner Investments Pty Ltd, they had purchased a quarry at Grantham in November 1998 which they later sold on 8 December 2011.
The Wagners also owned a large parcel of land (310 hectares) at Toowoomba Cecil Plains Road, Wellcamp and had constructed Toowoomba Airport on that land.
On 10 January 2011, significant flooding occurred in the Lockyer Valley which resulted in 12 people, including young children being drowned.
The second defendant was Alan Jones, a famous radio broadcaster. On radio station 2GB (which was the first defendant) on 28 October 2014, Jones claimed on his radio program that a ‘Grantham cover-up’ had been ‘orchestrated’. He then claimed that the Wagners were in partnership with entities for whose benefit the cover up was for, and asked whether the Wagners were ‘untouchable’. The following day he again spoke of a ‘Grantham cover up’, suggested that the reasons for the cover up included the Wagners, and said that those doing the covering up had a lot to hide.
On 24 February 2015 Jones broadcast the following words on the radio station of the third defendant 4BC:
“So in July/August last year Alex Douglas met with Palaszczuk re- grant them [Grantham] and gave support to Clive Palmer’s federal parliamentary inquiry into Queensland. Palaszczuk reportedly told Dr Douglas she knew all about Grantham, knew it was a cover up but quoted; it didn’t happen on my watch and she wanted to move on. When the Palmer inquiry was passed by the Senate in September last year Palaszczuk told the media yes she’d be happy to appear before it. By November last year she refused to appear. Why? What was going on? Now we hear that Wagner’s people have been visiting Palaszczuk convincing her or trying to that everything about Grantham is a conspiracy. The whole Grantham thing and she needs to lie low and let it pass. And I understand that Stewart the Police Commissioner is terrified that Grantham will be reopened as an inquiry. Annastacia Palaszczuk the new Premier needs to get a judicial inquiry into Grantham up and running immediately.”
Two days later, Jones followed up on 4BC by asserting that the Wagners had ‘mates’ both in town hall and George Street, including Campbell Newman and Jeff Seeney, and implied that the construction of the Toowoomba airport was anything but legal.
On 2GB on 9 March 2015 Jones asserted there was ‘a massive coverup’, suggested that the dam wall on the Wagners’ property had collapsed, linked the construction of the wall to the Wagners doing what they liked and called for a ‘major inquiry’. The following day Jones in an accusatory tone on 2GB stated that:
“Marty Warburton pointed out how it happened. He’d seen 14 floods in 21 years. He said it wasn’t a normal wall of water. He said the water had been diverted out of Lockyer Creek at the Wagners sand plant quarry where a dam wall had been constructed across the creek and the dam wall in the Wagner quarry had collapsed through the force of water.”
On 2GB on 11 March 2015, Jones returned to the Grantham issue and then stated the following:
“This is the airport mob, Wagner used to get his own way, no longer. No admission has been forthcoming from Wagners, the owners of the quarry. As soon as they knew they were in trouble though, they sold it. And that was the quarry – they were the quarry walls that burst and a veritable tsunami ensued…
“You see, the Wagner Brothers are used to getting their own way, doing as they liked. Build an airport – no environmental impact statement, no health impact statement, no community impact statement, no water impact statement, nothing, just build it. No compensation for those living in hopeless proximity to the airport. “As soon as they knew they were in trouble though, they sold it”.
On 11 March 2015, Jones on 2GB said that:
“… it now appears that the Toowoomba-based Wagners are in the eye of the storm. They thought they could get away with building an airport without seeking proper approvals because they had a gutless council, The Toowoomba Regional Council, and they had the Newman Government’s ear so the community were walked all over. Then the quarry; they created a wall around the Grantham sand quarry. Typically Wagners; what they didn’t need from the process they just parked alongside the quarry and built it up, and up, and up, and up, creating a massive wall. Wagners dishonestly have said it was part of the natural landscape; that’s a lie, it was man made. The quarry then became a bathtub, and at a focal point in the 2011 floods the weight of the water collapsed the embankment wall, and a tsunami happened in seconds.”
On 17 March 2015, Jones had an interview with the fourth Defendant and journalist, Nick Cater on 2GB. Jones largely repeated his comments from 11 March 2015. Cater stated that:
“It never seemed to make any sense at all to me, the line that was being put by the official flood commissions that this was simply an act of God, that nothing could be done to avoid this because when you go there and look at the evidence on the ground, you talk to people, everything points to one thing and that is this massive wall of water two to two-and-a-half metres high that just came sweeping through the town with no warning whatsoever.
“That had to be started by something and all the evidence points as you just said to the wall at the quarry that collapsed. It was like a break in a dam. The water gushes out with huge velocity and huge force and that was in the end what caused the damage, what kills people.
“It’s very hard to escape the conclusion that if it was not for the quarry wall twelve people would not have lost their lives that day and yet it’s taken so long as you know, Alan, more than four years now of battling to try and get close to the truth, to try and establish the truth. I believe that we are close now and that the [DHI] report backs us all the way on this. It’s still a long way to go.”
Jones and Cater then proceeded to make various criticisms of the Queensland Floods Inquiry and cast doubt on the findings of the hydrologist engaged by the Inquiry, Dr Phillip Jordan. Cater concluded the interview with Mr Jones by calling for a fresh inquiry.
On 27 April 2015, Jones interviewed the then newly elected Queensland Premier, Annastacia Palaszczuk on 2GB. In that interview, Jones stated that:
“In Grantham in your state in 2011, 12 people died when the weight of water, allegedly from a quarry owner owned by the Wagners, became a bathtub. And the weight of the water collapsed the embankment, 12 people had no hope. Will you be calling a long overdue inquiry so that these poor people who are the survivors of this massive tragedy at Grantham can have their say?”
On 6 May 2015 on 2GB, Jones interviewed Mr Warburton, and stated during that interview that:
“You said many locals raised the issue regarding Wagner’s dam and its effect at several community meetings after the event but the issue was always dismissed by authorities… “And you’re convinced that it was the result of a man-made construction in a designated water course and you’ll be making those points.”
On 15 May 2015, Jones claimed on 2GB that a discussion about the inquiry into the Grantham floods had recently occurred in Rockhampton between John Wagner, Barnaby Joyce and Warren Truss, I which it was said “that we need to cover each other’s backs in this, you look after us and we’ll look after you”. Jones then claimed they were ‘running scared’.
On 25 May 2015, Jones again claimed on 2GB there was a cover up and suggested it was for the benefit of ‘Wagner and Co’. He also suggested the Wagers were involved in ‘dirty deals’, that crimes had been committed, and that Heather Brown and her husband Dr David Pascoe had been burgled for pursuing the truth.
On 26 May 2015, Jones suggested on 2GB that the approval for the Wagner’s airport involved the stealing of airspace from the Oakey air base which would eventually lead to its closure for their “own selfish, greedy purposes”. Jones also described the Wagers as ‘hypocrites of the year’ who were on “a little comedy routine to convince the poor old Darling Downs punter that they really care” and that “they’ve got as much hide as Jessie the elephant”.
Whilst on Sky News on 2 June 2015, Jones stated that:
“But the big thing that she’s done to date is the whole question of Grantham; the inquiry into the floods, and the feeling by many that the quarry dam wall broke. Well quite extraordinarily I had a call this week from someone who was on the Lockyer Council back in 1989 – I’ve got to be careful in terms of what I say – but he was telling me that if his memory served him correctly Wagner’s were never meant to have any overburden left on the site, let alone use it as a wall. In other words what you didn’t want had to be carted away. And this is of course the wall that broke, and the tsunami that followed. And my caller said that either of two things had occurred; that Wagners deliberately ignored that ruling that they were never meant to leave any overburden on the site, or they had it specially altered or changed with some of their mates in Government.”
On 4 June 2015, Jones stated on 2GB that:
“… I made this point on television the other night but with this Grantham inquiry in Queensland being all the talk in that part of the world.I was talking to someone who was on the Lockyer Council back in 1989. And he told me that if memory served him correctly, Wagners were never meant to have any over-burden left on the site – let alone used as a wall. This, of course, is the wall that the locals argued broke and the tsunami followed and people were dead.And my informant told me that either of two things have occurred: Wagners deliberately ignored the ruling that they were never meant to leave any overburden on the site, or some of the mates changed the rules. Either way, it starts to explain why people are running for cover. And why in fact there may have been a cover up.”
On 16 June 2015, Jones stated on 2GB that:
“So how many sweetheart deals are this mob worried about that will be unearthed by the Grantham Inquiry? Mr Sofronoff will be examining everything. Might it extend to the Wagner Airport, and how they were given the airspace over Oakey for nothing – national air space? I’m telling you they’re all in this, and there’s Federal money. And who is picking over the Federal money to look after themselves? There was a conference in Canberra yesterday, big money being talked, big gifts, big money to hand out. Who’s going to get it? As was said at Beef Week we need to cover each other’s backs, you look after us and we’ll look after you. Well I for one will be watching closely where this Federal Government money goes. Does Mr Wagner have his hand out again? Mr Truss yesterday in Canberra was talking about planned beef roads and dams; who’s going to build them? Where’s the money going to go? Is that what was meant by we need to cover each other’s backs, you look after us and we’ll look after you? Well I’ve got news for all of them; whether in Canberra or not these sweetheart deals with Wagner or anybody else will be closely examined in the light of the Grantham Inquiry and they will be revealed. And if the boys are in on the deals then the deals and the boys will be made public.”
On 22 June 2015, Jones stated on 2GB that:
“Just on the Grantham inquiry, I won’t go into detail of the unspeakable cover ups that have occurred in relation to the tragedies of 2011… all withheld evidence. I mean you’ve started with Golder Associates undertaking this geotechnical work on the Wagner quarry. Interesting the geotechnical investigation has the full cooperation of Boral to whom Wagner sold the quarry in a hurry after the flood, so it will be interesting…”
On 20 July 2015, Jones on 2GB referred to the Toowoomba-based company, Wagners, as “the darlings of the Coalition in Queensland and in Canberra” who built the airport in Toowoomba, remember, without seeking proper approvals.” With a particular vocal emphasis, he asserted the Wagers were “gifted Oakey air space”. Jones went on to suggest that over burden had created a massive wall along the quarry which had collapsed due to the weight of water, and that an inquiry was commencing that day “to end the cover up”.
On 21 July 2015, Jones had an interview with Cater on 2GB concerning the first day of hearings of the Grantham Floods Inquiry. Jones once again referred to a ‘cover up’ and quoted Sault Holt QC saying that “the suggestion that the quarry wall, the Wagner quarry, didn’t have a substantial impact on the behaviour of the flood waters is something that at least on its face may not pass the sanity test”.
On 22 July 2015 on 2GB, Jones was effusive in his praise of the inquiry’s’ witnesses and the Commissioner, whilst directing derogatory comments and tone for the Wagners, including references to Denis Wagner “covering his face” and the Wagners being “finished”.
On 24 July 2015, Jones among other statements again asserted on 2GB that there was ‘a cover up at Grantham’ which was related to an alleged conversation in Rockhampton between John Wagner and Warren Truss.
On 28 July 2015, Jones, in a sensationalist tone, suggested on 2GB that the Wagners had intimidated potential witnesses and referred to Wagner’s account of the wall being part of the landscape as “rubbish”.
On 29 July 2015, Jones again discussed the inquiry on 2GB and made numerous remarks, including the following:
“Yesterday it was quite clear from all the aerial footage, the pictures, and the verbal descriptions that the quarry wall held back a massive amount of water. When the wall collapsed the water went straight across the full quarry and cannoned north east, hit Tommy Friend’s house, Johnny Sippel’s house, and then cannoned down to Grantham… It’s down to one question that now hangs over the whole thing; did Wagners build the wall by not taking the rubbish away? Clearly the eye witnesses who’ve testified believe that they did. Wagners will now say it was there when they bought the quarry. Someone’s not telling the truth. Denis Wagner’s in the dock today, this is straight out of MGM.”
On 31 July 2015, Jones asserted on 2GB that Denis Wagner “was admitting everything he’d previously denied” and that the Wagners had dumped overburden along the creek “contrary to the conditions which allow them to mine the quarry” and that Wagners were at their very, very worst”. Jones also ridiculed Denis Wagner’s assertion that the flood had impacted on their business and asked of the Wagners “What kind of selfish, insensitive grubs are these people?”.
On 4 August 2015, Jones provided commentary on 2GB about Denis Wagner’s evidence at the flood inquiry, claiming that “it wasn’t a pretty sight” and asserting that Wagner had now admitted on oath what he had previously denied. Jones asserted that there was footage which showed what happened at Grantham and again spoke of a cover up in which people were being protected.
On 11 August 2015, Jones spoke with Amanda Gearing on 2GB about her submission to the flood inquiry and her view that the Wagners’ quarry exacerbated the flood, a view that Jones explicitly endorsed.
On 18 August 2015, Jones, after reading various opening statements from the flood inquiry, opined on 2GB that it was:
“… inevitable that 12 people would be killed. There have been floods of that kind in Grantham before, no one died. But here was this wall, massive wall – it shouldn’t have been built – illegal. The water, water, building up, billions of litres of water, the wall cracks goes whoosh, bang, nowhere to go, heads towards the railway line, nowhere to go, but the wall, the water wouldn’t have been near the railway line if it hadn’t been banked up behind the quarry wall. We’ve had similar floods in Grantham, of the same dimension, no one lost their life. But of course, the defence that the wall didn’t contribute to the flooding reminded me of Mandy Rice-Davies, way back in the 60s, in the famous Profumo affair, when she said oh Profumo, well he would say that, wouldn’t he. And they would say that.”
On 20 August 2015, Jones discussed the hydrology report and evidence given by Dr John Macintosh to the Grantham Floods Inquiry on 2GB. Jones opined that “you put in a levee bank to solve one problem, and you can cause another”, and that Dr Macintosh’s report “didn’t pass the sanity test”, among other things.
The Wagners sued Jones, 2GB, 4BC and Cater in respect of the above broadcasts.
In order to establish that they have been defamed, a plaintiff must prove the following three elements:
Once a plaintiff has established these three elements, the defendant must in order to successfully defend the claim establish one of the available defences under the Defamation Act 2005 (Qld).
Section 18 of the Defamation Act provides as follows:
“Effect of failure to accept reasonable offer to make amends
(1) If an offer to make amends is made in relation to the matter in question but is not accepted, it is a defence to an action for defamation against the publisher in relation to the matter if—
(a) the publisher made the offer as soon as practicable after becoming aware that the matter is or may be defamatory; and
(b) at any time before the trial the publisher was ready and willing, on acceptance of the offer by the aggrieved person, to carry out the terms of the offer; and
(c) in all the circumstances the offer was reasonable.”
Section 25 of the Defamation Act provides as follows:
“Defence of justification
It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.”
Section 29 of the Defamation Act provides as follows:
“29 Defences of fair report of proceedings of public concern
(1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern.
(2) It is a defence to the publication of defamatory matter if the defendant proves that –
(a) the matter was, or was contained in, an earlier published report of proceedings of public concern; and
(b) the matter was, or was contained in, a fair copy of, a fair summary of, or a fair extract from, the earlier published report; and
(c) the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair.
(3) A defence established under subsection (1) or (2) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or for the advancement of education.
(4) In this section –
proceedings of public concern means –
(f) any proceedings in public of an inquiry held under the law of any country or under the authority of the government of any country …”
Of the 32 matters complained of, Justice Flanagan determined that 76 of the pleaded imputations were conveyed from the abovementioned broadcasts, including the following:
Whilst Justice Flanagan determined that many of the imputations alleged by the Wagners were made out, some were not made out. Furthermore, with respect to the broadcast of 27 April 2015, Justice Flanagan held that it did not contain any defamatory imputations.
The Wagner’s claim against Cater was dismissed as Justice Flanagan found that he did not expressed agreement nor conduce with Jones’ defamatory statements.
Of the imputations concerning claims that the Wagners had constructed a dam wall which had exacerbated the floods and caused/were responsible for the deaths of 12/13 people, 2GB and Jones pleaded a defence of justification under section 25 of the Defamation Act. Justice Flanagan rejected the conclusions of the expert evidence led for the defendants at trial and determined that the defendants had failed to establish the substantial truth of these imputations.
Of the imputations concerning claims that the Wagners had engaged in a cover up, 2GB and Jones again pleaded a defence of justification under section 25 of the Defamation Act. Justice Flanagan found Denis Wager to be a reliable and honest witness and determined that 2GB and Jones had failed to establish the substantial truth of these imputations.
Similarly of the imputation concerning claims that the Wagners had engaged in bullying and intimidation, 2GB and Jones again pleaded a defence of justification under section 25 of the Defamation Act. Justice Flanagan accepted the evidence of John and determined that 2GB and Jones had failed to establish the substantial truth of this imputation.
Of the imputations concerning claims that the Wagners had built an airport illegally or otherwise improperly, 2GB and Jones again pleaded a defence of justification under section 25 of the Defamation Act. Justice Flanagan once again determined that 2GB and Jones had failed to establish the substantial truth of these imputations.
Of the imputations concerning claims that the Wagners were selfish and greedy, 2GB and Jones again pleaded a defence of justification under section 25 of the Defamation Act. Justice Flanagan once again determined that 2GB and Jones had failed to establish the substantial truth of these imputations.
The defendants also sought to rely on the defence of fair report of proceedings of public concern under section 29 of the Defamation Act for 10 of the defamatory imputations, however Justice Flanagan held that they had failed to establish this defence with respect of any of the 10 defamatory imputations in question.
The defendants also sought to rely on the defence of failure to accept reasonable offer to make amends under section 18 of the Defamation Act. The offer in question was to apologise to the Wagners, pay them $50,000 each and pay their reasonable expenses. Justice Flanagan determined that the sum of $50,000 for each of the Wagners was ‘wholly inadequate’ and therefore this defence failed.
As a result of the above findings, the amount of damages to be awarded to the Wagners was the remaining question which had to be determined. Justice Flanagan found that the publican of the defamatory matters was ‘very extensive’, based on the audience figures (which only included city listeners) and the evidence of the ‘grapevine effect’ resulting in the Wagners being regularly asked about the matters concerning the defamatory publications. Justice Flanagan also found that “The 80 imputations conveyed are, in my view, extremely serious and of the gravest kind”. Justice Flanagan also observed that the Wagners’ evidence concerning their hurt feelings, including humiliation and feelings of helplessness were not challenged by the defendants.
Justice Flanagan determined that Jones had engaged in unjustifiable conduct and was motivated by a desire to damage the plaintiff’s reputation. In particular, Jones had acted with wilful blindness to the truth or falsity of what was broadcast, and the tone of the matters and their content were self-evidently vicious and spiteful. He had also failed to make any inquiry of the Wagners, to ascertain responses or to inform the Wagners. Jones’ conduct in repeating a number of defamatory assertions in the course of his evidence was also found to be unjustifiable. For these reasons, the awarding of aggravated damages was appropriate.
As a result of these factors, the court ordered that:
This matter arose out of Alan Jones’ apparent conviction that a wall on the Wagners’ quarry had caused the deaths of 12 people and that a high-level cover up had occurred to hide this (among other claims). The problem for Jones, 2GB and 4BC was that there was insufficient evidence to support these claims, and in fact two flood inquiries had found that the Wagners property had not exacerbated the flood at Grantham. Compounding this were the gratuitous and unfair attacks on the Wagners’ characters, as well Justice Flanagan’s findings that Jones was motivated by malice and had shown wilful blindness to the truth or falsity of what was broadcast. All of these factors contributed to a substantial sum in damages being awarded in favour of each of the Wagners.
2GB and 4BC were vicariously liable for Jones’ conduct whilst broadcasting on their radio stations. This case is a good example of how serious allegations should be made and presented as fact by publishers when there is little or no evidence to support them. Such conduct can destroy the reputation of others, as it did in this case. The Wagners had little other recourse than to sue for defamation in order to salvage their reputations. Because the allegations turned out to be untrue and/or unproven, liability was established.
Aaron Michael Brain had been dismissed from his employment with Inghams Enterprises Pty Ltd in early January 2013. On the night of 1 February 2013, Brain approached different female Asian workers as they left at the end of their shifts in the carpark of Inghams Enterprises’ Murrarie factory. The first three women he approached between about 11:00pm and 11:45pm found his behaviour to be strange and felt some apprehension, but managed to disengage and leave.
At 11:45pm Brain approached the Plaintiff Kim Yen Tat and gave her the false story about having a pregnant partner who needed help. She declined to accompany him, walked over to her car, and got into the driver’s seat. However, Brain stopped her from closing the car door. He then said “Can I give you a hug?” and tried to put his hand on her neck. She pushed his hand away and felt something stick into her hand. She then pushed him away, got out of the car screaming and ran away. Brain left the scene after workers came to her aid.
Immediately after this incident, Inghams Enterprises send a notice to all its employees warning them of the risks of being in or remaining in the carpark alone.
Brain, who was on parole for other violent offences at the time of the incident, had his parole suspended on 6 February 2013. He later pleaded guilty to assault occasioning bodily harm in respect of the incident and on 23 January 2014 was sentenced to two years imprisonment with a parole eligibility date after 6 months.
The Plaintiff suffered significant post-traumatic stress disorder injury from the incident and sued her employer for negligence.
“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.”
(1) A decision that a breach of duty caused particular injury comprises the following elements—
(a) the breach of duty was a necessary condition of the occurrence of the injury (“factual causation” );
(b) it is appropriate for the scope of the liability of the person in breach to extend to the injury so caused (“scope of liability”).”
The primary judge noted that it did not matter that the precise manner in which the plaintiff received her injuries was not foreseeable, and that he was required to bring a prospective, rather than a hindsight analysis to bear on the question of foreseeability. He also acknowledged that the essence of the Inghams Enterprises’ argument was that the injury was not foreseeable due to the practical absence of any prior incidence of violence by a third party to an employee.
However, primary judge relied on expert evidence from engineers experienced in risk management and security assessments to the effect that the safety of workers from violence and assault should be managed proactively, and held that Inghams Enterprises should have engaged in an assessment of the risks of third party violence to its employees as well as how it should respond to those risks. According to the primary judge, Inghams Enterprises could and should have the installed duress alarms at regular intervals in the carpark and warned its employees in a similar way the way it did after the incident. Inghams Enterprises’ reliance on factually distinguishable cases was rejected because of evidence at trial that many female workers left the workplace late at night five times a week through a large, open car park in an industrial area.
As a result, the primary judge found that Inghams Enterprises had been negligent and had to pay damages to the plaintiff. Inghams Enterprises appealed against this judgment.
On appeal, Inghams Enterprises argued that the primary judge had erred in finding that Inghams Enterprises should have taken action to prevent the incident which caused the injury. It argued that the primary judge’s reference to the events after the incident were contrary to s305C(c) of the Workers’ Compensation and Rehabilitation Act because that approach treated the instruction which had been given to the staff as an admission of liability. Inghams Enterprises also contended that the findings erroneously involved the application of hindsight, because they were inherently specific to the unusual facts of the case, which did not involve a single assault, but a protracted course of abnormal conduct prior to an assault. The Court of Appeal held that these arguments did not take into account the abovementioned expert evidence led at trial.
Inghams Enterprises also submitted that the plaintiff had failed to prove that the installation of duress alarms and training of and warnings to staff would have prevented the incident, and therefore causation had not been established. It was argued that the primary judge’s conclusions on causation rested on the propositions that had duress alarms proper training and instructions been provided, at least one of the other workers involved in the earlier encounters with Brain would have been sufficiently concerned about him that they would have called security, the security guard receiving the report would have left the security office and found Brain, Brain would have been required to leave, and Brain in turn would have complied with that direction. Justice Bond held that it was not open on the evidence for the primary judge to reach such conclusions.
Furthermore, as Gotterson JA noted, the trial judge did not make findings that a failure to install duress alarms or upgrade of the CCTV monitoring was the cause of the respondent’s injuries.
Because the judge erred in finding that causation had been established, the appeal was allowed and the decision of the primary judge was set aside, with costs awarded to Inghams Enterprises.
This case is a good reminder that even if an employer has breached their duty of care, it is still necessary for a plaintiff to prove that the breach caused their loss. In this case, there was insufficient evidence to establish that training and warnings would probably have prevented Brain from approaching the Plaintiff in the carpark. Because causation at law was not proven at trial, the result was that the claim against Ingham Enterprises had to fail.