Hamish McLaren born Hamish Watson stole $7.6 million from 15 victims over a period of years.
Before the crimes for which he was sentenced, McLaren had swindled people in the US, Canada, Britain, and Hong Kong.
Yesterday, he was sentenced to 16 years imprisonment, with a non-parole period of 12 years.
Judge Charteris found that McLaren was unrepentant and had no genuine remorse for his crimes:
“His letter (read to the court last week) does not remotely persuade me that this man is sorry.
“I do not believe he has any remorse, I believe he is consumed by himself. He is driven by stealing the money of other citizens, all of whom trusted him. The focus was on his own wellbeing so he could live the high life, spending others’ retirement savings.”
Finding that this was the worst variety of white collar crime, Judge Charteris noted that:
“If the offender has received massive disapproval from the community — it’s appropriate that he should do so,
“How could he stand by and see people draw down their life super funds to be given to him? His behaviour is the most reprehensible one can imagine having regards to offences of this nature.”
$5.4M has never been recovered.
Catherine Holmes, the Chief Justice of Queensland has a piece in The Australian concerning some of the unfair and ill-informed criticisms of sentencing decisions in recent years:
Importantly, she does not say that decisions should not be criticised. However, given that judges are not supposed to respond to criticisms or defend their own decisions, personal attacks against judges and criticisms of decisions which do not show the reasons for the decisions undermine confidence in the Courts, and can threaten judicial independence:
“I am concerned about tendencies in media and political discourse to speak about courts and their decisions in ways which can, directly or indirectly, undermine judicial independence.
This may sound a little precious, so I had better start by emphasising that I am not suggesting that anyone should desist from criticising judicial decisions. Discussion and criticism are to be expected in a healthy democracy.
My plea is for better informed criticism, because public confidence is essential to the preservation of what I contend is a very good legal system; and for better targeted criticism, because there seems to be an increasing, damaging willingness to attack that system as a whole on the strength of dissatisfaction with a very small number of decisions.”
The article may be behind a paywall, so a subscription may be required.
On 4 June 2019, the Australian Federal Police raided the home of News Corp Australia journalist Annika Smethurst after she revealed in April last year that the Defence and Home Affairs departments had been discussing monitoring Australian citizens for the first time.
The following day, the Australian Federal Police raided the Australian Broadcasting Corporation’s Sydney offices as well after a number of stories known as the Afghan Files revealed allegations of unlawful killings and misconduct by Australian special forces in Afghanistan and were based on hundreds of pages of secret Defence documents leaked to the ABC.
Commissioner Gaughan said the raids were part of an investigation and alleged there had been an unauthorised leak of national security information to journalists.
Broadcaster Ben Fordham subsequently revealed he was the subject of a probe over his recent story about six asylum seeker boats attempting to reach Australia.
Section 79(3) of the Crimes Act 1914 (Cth) provided that:
(3) If a person communicates a prescribed sketch, plan, photograph, model, cipher, note, document or article, or prescribed information, to a person, other than:
(a) a person to whom he or she is authorized to communicate it; or
(b) a person to whom it is, in the interest of the Commonwealth or a part of the Queen’s dominions, his or her duty to communicate it;
or permits a person, other than a person referred to in paragraph (a) or (b), to have access to it, he or she commits an offence.
Section 79(6) of the Crimes Act 1914 (Cth) provided that:
(6) If a person receives any sketch, plan, photograph, model, cipher, note, document, article or information, knowing, or having reasonable ground to believe, at the time when he or she receives it, that it is communicated to him or her in contravention of subsection (3), he or she commits an offence unless he or she proves that the communication was contrary to his or her desire.
Penalty: Imprisonment for 2 years.
Last year, legislation was passed by the federal government which repealed section 79 of the Crimes Act but which inter alia expanded the definition of “national security” to include not just what we would normally think of as security matters but also Australia’s “political, military and economic relations with other countries”. Although this legislation provided a public interest defence to journalists, such protections were not afforded to whistleblowers who leaked to them.
Chris Merritt is not impressed:
“The Law Council last year suggested a mechanism to the government that, had it been adopted, could have removed the incentive to conduct those raids.
In the midst of the debate over changes to national security laws, the government changed tack and gave reporters a new defence that protects the publication of secrets that the reporter believes, on reasonable grounds, to be in the public interest.
But the government rejected the Law Council’s proposal for the same defence to be made available to those who provide such information to the media.
This gave rise to the current lunacy: public interest disclosures such as those made by Smethurst are defensible if made by a journalist, but the same information is not defensible if disclosed by a whistleblower in the federal public service. That inconsistency might explain why AFP officers targeted Smethurst and the ABC and why more reporters will inevitably be raided.
The main game, from the perspective of those who rejected the Law Council’s suggestion, appears to be all about finding reporters’ confidential sources and punishing them regardless of the public interest in what they revealed, and regardless of how many journalists and newsrooms are subjected to raids.”
Media lawyer Justin Quill believes that the warrants may be unconstitutional given that the chilling effect of the raids could be found to breach the implied right of political communication.
Whilst politicians and governments often pose as friends of free speech, press freedom and transparency, their actions demonstrate the opposite attitude. Powerful people will always have an incentive to entrench their own power and authority and reduce the power of others.
Who can forget Kevin Rudd’s promises of a new era of transparency, or the Gillard Government’s hamfisted attempt in its dying throes to regulate the media to make parts of it less critical of Labor?
On 23 April 2019, Opposition Leader Bill Shorten campaigned at the Queensland government-owned Gladstone Ports. At a free barbeque, an electrical engineer told Shorten that “It would be good to see higher-wage earners given a tax break’’. Shorten replied with “We’re going to look at that”, a claim which appeared to be at odds with his policy of slugging those with above average incomes with higher taxes.
The electrical engineer was subsequently suspended when he was told he had breached his employment contract for speaking to the media, and his pass did not work the following day when he arrived for work. His desk was also packed up and the contents returned to him.
Section 351 of the Fair Work Act 2009 (Cth) provides that:
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
(2) However, subsection (1) does not apply to action that is:
(a) not unlawful under any anti-discrimination law in force in the place where the action is taken…
(3) Each of the following is an anti-discrimination law:…
(c) the Anti-Discrimination Act 1991 of Queensland.
Section 7 of the Anti-Discrimination Act 1991 (Qld) provides that:
Discrimination on the basis of certain attributes prohibited
The Act prohibits discrimination on the basis of the following attributes—
(j) political belief or activity
By speaking with an elected politician running for Prime Minister who was attending an event at his work, the worker was arguably merely engaged in political activity and/or expressing a political belief. By taking adverse action against him, the employer appears to have contravened the general protections enshrined under the Fair Work Act 2009 as well as the Anti-Discrimination Act 1991. The employer’s claim that he was fired for “speaking with the media” at first glance appears to be spurious.
Given that he was not technically fired from his work, the worker may not be able to claim for unfair dismissal as he may not have been dismissed from his employment. However, given that he soon after found a new job, a claim for breach of a general protection under the Fair Work Act 2009 may not be worth pursuing if there is not a significant gap between what he was being paid with his former employer and what he is currently earning.
One can only speculate whether someone in the Labor Party (connected either with Bill Shorten or the QLD Labor Government) urged the employer to take action against the worker for causing political embarrassment to Bill Shorten.
Debbie Deans was employed as a specialist schoolteacher by Riverside Christian College in Maryborough when on 4 March 2015 she slipped over a grape on the linoleum flooring of a foyer in G Block during a ‘fruit break’ during the course of her employment, fracturing her left patella.
She sued her employer, claiming that it was negligent for failing to:
(a) take reasonable care for her safety;
(b) establish, maintain and enforce safe methods and systems for her to carry out her employment;
(c) supervise her so as to ensure she carried out her employment safely;
(d) warn her of the possibility of injury to her in carrying out her employment and instruct her in methods of work to avoid the possibility of such injury;
(e) provide a safe work environment within which her was required to perform her duties;
(f) not require her to perform work where the defendant knew, or ought to have known that the carrying out of the work may cause injury to her;
(g) failed to implement a system of inspection and cleaning following “fruit break” when it knew, or ought to have known, that there was a higher probability of slip hazards being created in the area due to the fact that five and six year old children were carrying fruit through the area;
(h) failing to make arrangements for the five and six year old children to store their “fruit break” snacks in an area that was not a high traffic pedestrian area.
305B General Principles
(1) A person does not breach a duty to take precautions against a risk of injury to a worker unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things):
(a) the probability that the injury would occur if care were not taken;
(b) the likely seriousness of the injury;
(c) the burden of taking precautions to avoid the risk of injury.
“305C Other Principles
In a proceeding relating to liability for a breach of duty—
(a) The burden of taking precautions to avoid a risk of injury includes the burden of taking precautions to avoid similar risks of injury for which the person may be responsible; and
(b) The fact that a risk of injury could have been avoided by doing something in a different way does not of itself give rise to or effect liability for the way in which the thing was done; and
(c) The subsequent taking of action that would (had the action been taken earlier) have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does of itself constitute an admission of liability in connection with the risk.”
Deans’ lawyers argued the general notoriety of young children dropping things and leaving them on the floor meant that this risk was foreseeable as defined in section 305B(1)(a).
Farr SC DCJ rejected this argument, noting there was no evidence of any previous incidents of people slipping on things dropped by children at Riverside Christian College, or at any other school. Nor was there any evidence that Riverside Christian College knew of this particular risk of injury. Therefore, the risk was held not to be foreseeable.
The argument that Riverside Christian College had conceded foreseeability by also pleading a defence of contributory negligence was also rejected because it ignored the statutory definition of “obvious risk” contained in section 305I of the Workers’ Compensation and Rehabilitation Act, and was contrary to the High Court’s decision in Thompson v Woolworths (Queensland) Pty Ltd  HCA 19.
A further issue which Farr SC DCJ considered was whether the risk was not insignificant within the meaning of s305(1)(b) of the Workers’ Compensation and Rehabilitation Act. Farr SC DCJ noted that the fruit break had been taking place for five years without any previous incident, and the relevant area would have been traversed by thousands if not tens of thousands of people at and around the fruit breaks. For these reasons, Farr SC DCJ held that the risk of injury arising from items being dropped on fruit breaks was insignificant.
As a result of these findings, Riverside Christian College had not breached its duty of care, and therefore the claim for negligence had to fail.
Deans appealed the District Court’s decision to find in favour of her former employer.
One ground concerned a challenge to Farr SC DCJ’s finding that Riverside Christian College had conceded foreseeability and that an obvious risk existed, however Justice Gotterson of the Court of Appeal held that finding was clearly correct.
Gotterson JA held that an absence of evidence concerning dropped fruit being allowed to remain on the floor, problems with fruit breaks at other schools and the alleged notoriety of such problems was an insufficient basis for a finding against foreseeability. According to Gotterson JA, it was forseeable that fruit would be dropped, that it may not be picked up and that someone would slip on it.
However, Gotterson JA also held that because the probability of occurrence of the relevant risk was very low, Farr SC DCJ was entitled to find that this risk was insignificant. As a result, there was no breach of the duty of care by Riverside Christian College.
Gotterson JA did not accept the grounds of appeal that Farr SC DCJ had proceeded on the basis that rostering for recess applied to fruit breaks.
Gotterson JA rejected the remaining grounds of appeal challenging Farr SC DCJ’s finding that no instruction was required and that Farr SC DCJ erred in not having regard for the replacement of the linoleum flooring with carpet given Deans’ familiarity with fruit breaks and the lack of evidence that carpet would have prevented the injury.
As a result, the appeal was dismissed with costs.
This case confirms that where a defendant in Queensland has organised for a particular activity without any prior incident for some years, they will have a reasonable chance of defending the claim for personal injury on that basis alone, as the activity in question may not involve risks which are significant within the meaning of the law.
This decision means that schools can have some comfort that activities which involve a small degree of risk of personal injury can still take place without the risk of being successfully sued, as long as such activities are conducted as safely as practicable.
Last year, Professor Peter Ridd was sacked by James Cook University after speaking out on issues relating to climate change research.
He took James Cook University to the Federal Circuit Court, arguing his termination of employment was unlawful.
Today, Ridd has won his case, with the Court awarding judgment in his favour:
“Handing down his decision today, judge Salvatore Vasta said that the 17 findings used by the university to justify the sacking were unlawful.
“The Court rules that the 17 findings made by the University, the two speech directions, the five confidentiality directions, the no satire direction, the censure and the final censure given by the University and the termination of employment of Professor Ridd by the University were all unlawful,” Judge Vasta said.
A penalty hearing will be set for a later date.
At a hearing last month, Professor Ridd’s barrister Stuart Wood argued his client was entitled to criticise his colleagues and the university’s perceived lack of quality assurance processes.”
This is a win for free speech and academic freedom.
Actor Geoffrey Rush has won his defamation case, with Justice Wigney that finding Nationwide News did not make out its truth defence:
“Geoffrey Rush has won his defamation case against a Sydney newspaper publisher and journalist over articles saying he’d been accused of inappropriate behaviour. The 67-year-old actor had sued The Daily Telegraph’s publisher and journalist Jonathon Moran over two stories and a poster published in late 2017.In Sydney’s Federal Court on Thursday, Justice Michael Wigney found Rush had been defamed.“Nationwide News and Mr Moran did not make out their truth defence,” the judge said.”
A plaintiff is said to have been defamed if a publication causes the reasonable person to think less of them: Reader’s Digest Services Pty Ltd v Lamb  HCA 4.
Truth is a defence at common law, however in order for such a defence to succeed, the defamatory matter must be true in substance and effect: Howden v ‘Truth’ & ‘Sportsman’ Ltd 1937 58 CLR 416. Therefore, the defendant must prove that the meaning of the defamatory imputations are true and accurate in all except the most minor details, they must also prove the correctness of any inference that a reasonable person may draw from the matter: Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1.
Furthermore, Section 25 of the Defamation Act 2005 provides that:
The Sydney Morning Herald reports:
“Oscar-winning actor Geoffrey Rush has been awarded $850,000 in damages and will receive further damages for economic loss after he won his defamation case against Sydney tabloid The Daily Telegraph over reports accusing him of “inappropriate behaviour” towards a female co-star.
In a judgment summary delivered in court on Thursday, Federal Court Justice Michael Wigney said the Telegraph had failed to establish a defence of truth to its claims and he was not satisfied the events occurred “as alleged”.
“This was, in all the circumstances, a recklessly irresponsible piece of sensational journalism of the worst kind. The very worst kind,” Justice Wigney said.”
The question of whether an injunction sought by Rush and the issue of costs will be decided at a later case management hearing.
Generally, indictable offences in Queensland are dealt with by the District or Supreme Courts, as they are usually serious offences. However, in some cases, indictable offences can or must be dealt with in the Magistrates Court.
Section 1 of the Criminal Code 1899 (Qld) defines an “indictment” to mean a written charge preferred against an accused person in order to the person’s trial before some court other than justices exercising summary jurisdiction. A “summary conviction” is defined as summary conviction before a Magistrates Court.
Section 3 of the Criminal Code provides that offences are of 2 kinds, namely, criminal offences and regulatory offences. Criminal offences comprise crimes, misdemeanours and simple offences. Crimes and misdemeanours are indictable offences, which means that the offenders cannot, unless otherwise expressly stated, be prosecuted or convicted except upon indictment. A person guilty of a regulatory offence or a simple offence may be summarily convicted by a Magistrates Court.
Sections 1 and 3 of the Code make it clear that the indictable offences are to be dealt with in the District or Supreme Courts, unless the Code provides otherwise. In the District or Supreme Courts, a jury is normally the trier of fact in a criminal trial. In contrast, a trial in the Magistrates Court is a called a summary trial, and the presiding Magistrate is the sole trier of fact. A matter dealt with summarily is dealt with in the Magistrates Court.
Chapter 58A of the Criminal Code (containing sections 552A -552BB inclusive) provides for when indictable offences must or can be heard summarily.
Section 552A of the Criminal Code provides for a list of indictable offences which must be dealt with summarily on Prosecution election.
Section 552B of the Criminal Code provides for a list of indictable offences which must be dealt with summarily, unless the defendant elects for a jury trial.
Section 552BA of the Criminal Code provides for a list of indictable offences which must be dealt with summarily, unless they are excluded offences under section 552BB of the Code.
Sections 552A, 552B and 552BA of the Criminal Code are all subject to section 552D, which provides that the Magistrates Court must abstain from hearing and determining a charge and must instead conduct a committal proceeding if it is an offence listed at Schedule 1C of the Penalties and Sentences Act 1992, the Court is of the view that the defendant may not be adequately punished on summary conviction after considering submissions or if exceptional circumstances exist.
Section 552H of the Criminal Code provides that the maximum period of imprisonment under section 552A , 552B or 552BA is three years, unless the court is constituted by a magistrate imposing a drug and alcohol treatment order, in which case the maximum penalty is four years imprisonment.
The list of indictable offences that must be dealt with summarily on Prosecution election is contained at section 552A(1) of the Criminal Code.
The offences listed include the commission, counselling or procuring, attempt or becoming an accessory after the fact of any of the following offences under the Criminal Code:
Section 141: Aiding persons to escape from lawful custody.
Section 142: Escaping from lawful custody.
Section 143: a person responsible for keeping someone in from lawful custody permitting escape from lawful custody.
Section 205A: Contravening order about information necessary to access information stored electronically.
Section 340: assaults committed with intent to commit a crime, or as part of an unlawful conspiracy in relation to any manufacture, trade, business, or occupation or committed against a police officer, a person performing a legal duty, a person aged over 60, or a person who relies on a guide, hearing or assistance dog, wheelchair or other remedial device.
The indictable offences that must be dealt with summarily unless the defence elects for a jury trial are listed at Section 552B(1) of the Code.
The offences listed include the commission, counselling or procuring, attempt or becoming an accessory after the fact of any of the following offences under the Criminal Code:
A sexual offence without a circumstance of aggravation for which the defendant has pleaded guilty, the complainant is at least 14 years of age and the maximum sentence is more than three years.
Section 339: assault occasioning bodily harm which is not committed in company, without the use of a dangerous or offensive weapon or instrument and not during the term of a community service order.
An offence involving an assault without a circumstance of aggravation and which is not of a sexual nature, and for which the maximum penalty is more than 3 years but not more than 7 years.
Section 60A: Participants in criminal organisation being knowingly present in public places.
Section 60B: Participants in criminal organisation entering prescribed places and attending prescribed events.
Section 76: Recruiting a person to become participant in criminal organisation.
Section 77B: Habitually consorting with recognised offenders.
Section 328A: Dangerous operation of a vehicle (with a circumstance of aggravation at Section 328A(2)).
359E Punishment of unlawful stalking if the maximum term of imprisonment for which the defendant is liable is not more than 5 years.
An offence against chapter 14 (Corrupt and improper practices at elections), division 2 (Legislative Assembly elections and referendums), if the maximum term of imprisonment for which the defendant is liable is more than 3 years.
An offence against chapter 22A (Prostitution), if the maximum term of imprisonment for which the defendant is liable is more than 3 years.
An offence against chapter 42A (Secret Commissions).
Section 552BA(4) of the Code provides that ‘relevant offences’ must be heard and dealt with summarily.
Relevant offences are defined as indictable offences which either:
The list of excluded offences contained in the table of Section 552BB includes the following offences:
The list of excluded offences contained in the table of Section 552BB also includes the following indictable offences if committed in the following circumstances:
Section 398: stealing – if:
the amount stolen, yield or detriment is equal or more than $30,000, and the offender does not plead guilty; or
the thing stolen was a firearm for use in another indictable offence.
Section 399: fraudulent concealment of documents – if the offence is not committed in relation to a document recording title to property, or the yield or detriment is equal or more than $30,000 and the offender does not plead guilty.
Section 403: Severing with intent to steal – if the amount in question is equal or more than $30,000 and the offender does not plead guilty.
Section 406: Bringing stolen goods into Queensland – if the amount in question is equal or more than $30,000 and the offender does not plead guilty.
Section 408A: Unlawful use or possession of motor vehicles, aircraft or vessels – if the value of the motor vehicle, aircraft or vessel is equal or more than $30,000 and the offender does not plead guilty, or if the offender is liable for at least 10 years imprisonment (ie if they used the vehicle for the commission of an indictable offence or intended to or did wilfully destroy, damage, remove or otherwise interfere with the mechanism (or part thereof) or other part of or equipment attached to the motor vehicle, aircraft or vessel).
Section 408C: Fraud – if the amount in question is at least $30,000 and the offender does not plead guilty.
Section 408E Computer hacking and misuse – If the offender causes a detriment or damage or obtains a benefit for any person to the value of more than $5,000, or intends to commit an indictable offence, and the offender does not plead guilty.
Chapter 38 Stealing with violence or extortion by threats – excluding sections 413 (Assault with intent to steal) and 414 (Demanding property with menaces with intent to steal).
Section 419 Burglary – if:
the offender uses or threatens to use actual violence;
the offender is or pretends to be armed;
the offender damages or threatens to damage any property by at least $30,000 in value and the offender does not plead guilty; or
the offender then commits an indictable offence in the dwelling.
the offender commits an indictable offence in the premises which must proceed on indictment; or
the offender enters by means of a break and the value of damage caused by the break is of at least $30,000.
Section 427 Unlawful entry of vehicle for committing indictable offence – if the offence is committed in the night or the offender uses or threatens violence, pretends to be armed, is in company or damages or threatens to damage any property.
Section 430 Fraudulent falsification of records – if the amount in question is equal or more than $30,000 and the offender does not plead guilty.
Section 433 Receiving tainted property – if the amount in question is equal or more than $30,000 and the offender does not plead guilty.
Section 435 Taking reward for recovery of property obtained by way of indictable offences – if the amount in question is equal or more than $30,000 and the offender does not plead guilty.
Chapter 44 Offences analogous to stealing related to animals – if the value of the animals is at least $30,000 and the offender does not plead guilty.
Section 468 Injuring animals– If the animal in question is stock, the value of the animals is at least $30,000 and the offender does not plead guilty.
Section 469 Wilful damage – if any of the following apply:
property is damaged or destroyed by explosion;
the property in question is—(i) a bank or wall of the sea or inland water; or(ii) a work relating to a port or inland water; or
if the property in question is any part of a railway, or any work connected with a railway
If the property in question is an aircraft or anything whatever either directly or indirectly connected with the guidance control or operation of an aircraft
If the property in question is a vessel, a light, beacon, buoy, mark or signal used for navigation or for the guidance of sailors, a bank, work or wall of the sea or inland water
If the property in question is a manufacturing or agricultural machine or another thing used, or intended for use, for manufacture or for performing a process connected with the preparation of agricultural produce and is destroyed or rendered useless
If the property in question is a well or bore for water or the dam, bank, wall, or floodgate of a millpond or pool.
Section 471 Damaging mines – if the value of the damage is at least $30,000 and the offender does not plead guilty.
Section 472 Interfering with marine signals – if the value of any damage or detriment is at least $30,000 and the offender does not plead guilty.
Section 473 Interfering with navigation works – if the value of any damage or detriment is at least $30,000 and the offender does not plead guilty.
Section 474 Communicating infectious diseases to animals – if the value of any damage or detriment is at least $30,000 and the offender does not plead guilty.
Section 488 Forgery and uttering – if the document is a valuable security, insurance policy, testamentary instrument (whether the testator is living or dead) or registration document or is evidence of an interest in land, or a power of attorney, contract or document kept or issued by lawful authority OR the value of any yield or detriment is at least $30,000 and the offender does not plead guilty.
Section 498 Falsifying warrants for money payable under public authority – if the value of any yield or detriment is at least $30,000 and the offender does not plead guilty.
514 Personation in general – If the representation is that the offender is a person entitled by will or operation of law to any specific property, and the person commits the offence with intent to obtain such property or possession thereof or the value of any yield or detriment is at least $30,000 and the offender does not plead guilty.
There a number of indictable offences in Queensland that can or must be dealt with summarily in the Magistrates Court. Generally speaking, an indictable offence must be dealt with summarily if it carries a maximum sentence of three years or less, or it is an offence under part 6 of the Code (excluding Chapter 42A) for which the monetary value is less than $30,000 or the offender pleads guilty, and the offender is liable for a maximum period of imprisonment which is less than 14 years imprisonment.
When considering whether an indictable offence could or should must be dealt with summarily, one should consider the following:
As the Magistrates Court deals with offences more quickly and can normally only sentence an offender for up to three years imprisonment, there are potential advantages for a defendant in having a matter dealt with summarily. However, such a course is subject to section 552D, which requires the Magistrate to abstain from exercising its jurisdiction if the offender may not be adequately sentenced or if there are exceptional circumstances.
In December of last year, controversial Catholic Church Cardinal George Pell was convicted of one count of sexual penetration of a child under the age of 16 and four counts of an indecent act with a child under the age of 16 over allegations of abusing choirboys at Melbourne’s St Patrick’s Cathedral in the 1990s. This followed a previous trial that resulted in a hung jury.
The complainant said he and another choirboy left the liturgical procession at the end of one Sunday mass and went fossicking in the off-limits sacristy where they started swilling altar wine. Pell allegedly arrived unaccompanied, castigated them, and then, while fully robed in his copious liturgical vestments, proceeded to commit three sexual acts, including oral penetration of the complainant. The complainant said the sacristy door was wide open and altar servers were passing along the corridor. The complainant said he and the other boy then returned to choir practice.
Prior to both trials, Pell had been subject of substantial adverse pre-trial publicity, including a Royal Commission into child sex abuse, a book by Louise Milligan described as a hatchet job and an abusive song by Tim Minchin.
At common law, a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law (Woolmington v DPP  AC 462; Howe v R (1980) 32 ALR 478). The presumption is not that the accused is not guilty, it is that the accused is innocent (R v Palmer (1992) 64 A Crim R 1).
The presumption of innocence has been enshrined in s25(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). The presumption of innocence is only relevant to the accused. It is a misdirection to tell the jury that witnesses are presumed to be innocent (Howe v R (1980) 32 ALR 478).
Section 141(1) of the Evidence Act 2008 (Vic) provides that:
“In a criminal proceeding, the court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt.”
Section 49B of the Crimes Act 2008 (Vic) provides that:
(1) A person (A) commits an offence if—
(a) A intentionally—
(i) sexually penetrates another person (B);…
(b) B is a child under the age of 16 years.
(2) A person who commits an offence against subsection (1) is liable to level 4 imprisonment (15 years maximum).
“Here is why I don’t believe this gothic story — or not enough to think this conviction reasonable.
One of the boys, now dead, denied he’d been abused.
The other, whose identity and testimony remain secret, didn’t speak of it for many years.
The attack is meant to have happened straight after Mass, when Pell is known to have traditionally spoken to worshippers leaving Mass.
It allegedly happened in the sacristy, normally a very busy room, where Pell would have known people were almost certain to walk in.
The boys had allegedly slipped away from the procession after Mass to break into the sacristy, but none of the other choristers who gave evidence said they’d noticed them doing so, or noticed them rejoining the choir later.
Pell was normally followed everywhere during and after Mass by the master of ceremonies, Monsignor Charles Portelli, who testified that he escorted the then Archbishop from the moment he arrived at the cathedral, until the moment he left. He declared the assault impossible. Not a single witness from what was a busy cathedral at the time of the alleged abuse noticed a thing during the estimated 10 minutes of this alleged attack.”
“The second boy was once asked by his mother if he had ever been abused by anybody and he said he had not…
Anyone familiar with the conduct of a solemn cathedral mass with full choir would find it most unlikely that a bishop would, without grave reason, leave a recessional procession and retreat to the sacristy unaccompanied.
Witnesses familiar with liturgical vestments were called. They gave compelling evidence it was impossible to produce an erect penis through a seamless alb. An alb is a long robe, worn under a heavier chasuble. It is secured and set in place by a cincture, which is like a tightly drawn belt. An alb cannot be unbuttoned or unzipped, the only openings being small slits on the side to allow access to trouser pockets.
The complainant’s initial claim to police was that Pell had parted his vestments, but an alb cannot be parted; it is like a seamless dress.
Later, the complainant said Pell moved the vestments to the side. An alb secured with a cincture cannot be moved to the side. The police never inspected the vestments during their investigations, nor did the prosecution show that the vestments could be parted or moved to the side as the complainant had alleged. The proposition that the offences charged were committed immediately after mass by a fully robed archbishop in the sacristy with an open door and in full view from the corridor seemed incredible to my mind.
I was very surprised by the verdict. In fact, I was devastated. My only conclusion is the jury must have disregarded many of the criticisms so tellingly made by Richter of the complainant’s evidence…
Pell has been in the public spotlight for a very long time. There are some who would convict him of all manner of things in the court of public opinion, no matter what the evidence. Others would never convict him of anything, holding him in the highest regard. The criminal justice system is intended to withstand these preconceptions. The system is under serious strain, when it comes to Pell.”
“The main institutions involved here are the media and the police. The media must report cases fairly, abide by the letter and spirit of the law, and not barrack for either side. The police present evidence impartially, working for justice, not conviction. Media and police never combine to form a pro-conviction cheer squad.
This is where the Pell case has gone terribly wrong. Impartial judge and jury accepted, parts of the media — notably the ABC and former Fairfax journalists — have spent years attempting to ensure Pell is the most odious figure in Australia. They seemed to want him in the dock as an ogre, not a defendant.
Worse, elements of Victoria Police, including Chief Commissioner Graham Ashton, co-operated in this. Ashton’s repeated announcements of impending charges and references to “victims” rather than “alleged victims” were matched only by the coincidences in timing between police pronouncements and favoured media exclusives…
So what we have witnessed is a combined effort by much of the media, including the public broadcaster, and elements of Victoria’s law enforcement agency, to blacken the name of someone before he went to trial…
This is not a story about whether a jury got it right or wrong, or about whether justice is seen to prevail. It’s a story about whether a jury was ever given a fair chance to make a decision, and whether our justice system can be heard above a media mob.”
“There have been two trials of Cardinal George Pell — in the court of justice to decide if he was guilty of sexual abuse of children, and in the court of public opinion over nearly two decades that saw him accused of indifference, deception and ultimately evil compliance in the monumental sins of the Catholic Church.
The tests in these trials are different. The test in the first trial was whether the evidence showed Pell guilty “beyond reasonable doubt” as a sexual predator who abused his authority to brutally exploit two choirboys. There is no test in the second trial — no judge or jury — just the hardening of opinion towards Pell and then his demonisation as the nation’s senior Catholic during the long and climactic revelations of unforgivable sexual abuse within the church.
The law requires these trials to be separate. Indeed, justice depends upon it. Yet how realistic is this?…
Pell cannot escape responsibility for the failures of the church but the sustained visceral hostility towards Pell transcends institutional accountability. The vile hatred towards him is worse than displayed towards a serial killer. Veteran lawyers said privately they had never seen anything like it in their careers. What does this tell us not just about Pell but about ourselves? The Pell story goes beyond the institutional and cultural failure of the Catholic Church. It is far bigger, more complicated and dangerous…
Pell arrived suddenly, censured them and then, with the sacristy door open, people passing in the corridor, and still in his heavy mass vestments including the alb, a long secured vestment without front buttons or zipper, proceeded to sexually assault the boys, whom he did not know, in an extremely brief period of time. There was no witness to support the complainant. The former choirboy’s evidence was given in secret. Brennan called the entire scenario “incredible”.”
“For many it is clear that Pell’s jailing is a watershed moment that has delivered some kind of catharsis, some sense that the system finally worked — perhaps even some sense of revenge. For many others — including the dead — it is far too little, far too late.
Certainly it has been clear from many responses, by survivors and commentators alike, that they see Pell as being punished for many other crimes on top of the one confirmed in the Victorian County Court.
But by conflating one incident at St Patrick’s Cathedral in the mid-1990s with the myriad atrocities committed by Catholic clergymen throughout the decades — including Pell’s own sins of omission — the sense of justice may be short lived.
As satisfying as it may be for victims of church abuse to see Pell punished, it is vital that he is punished for the right thing.”
If the above reports are true (and there are no important facts which would have supported the convictions), it seems likely that it was not open to the jury to be satisfied of Pell’s guilt beyond reasonable doubt and he should have his conviction overturned on appeal. It is unsurprising that legal experts assess Pell’s chances of having his conviction overturned on appeal as quite good.
Victoria (unlike NSW and QLD) does now allow for judge only trials. Serious consideration should be given to changing this, as the Pell case demonstrates the need for defendants who have received such awful pre-trial publicity to have their case tried in a way where such adverse publicity will not affect the result of the trial.
And given that this is the case, a successful appeal should probably lead to a verdict of not guilty being entered instead of another retrial.