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Serial rapist’s appeals against conviction & severe sentence dismissed

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Ashraf Kamal Makary

The facts

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.

Relevant law

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 [1982] 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.”

Court of Appeal decision

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.

Conclusion

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.

Time extension refused for runaway injury Claimant

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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.

car crash
The facts

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.

The law

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 decision

The District Court dismissed the application to extend the time for the following reasons:

  • 1. The Claimant’s failure to comply with his pre-proceeding obligations had been caused by his decision to not make contact with his solicitors
  • 2. The insurer may have been prejudiced by the Claimant’s long absence, because if his condition had improved or worsened it would now not be able to verify when this may have occurred
  • 3. The Court found that the Claimant probably had been advised of the three year time limit for filing his claim, and therefore would have been aware of the potential consequences of his long absence.

 

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.

Conclusion

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:

  1. 1. The need to be contactable by your solicitors throughout your claim
  2. 2. The need to avoid any undue delay of your claim
  3. 3. The importance of observing the three year time limit and being proactive where possible in avoiding the need to apply to Court to extend the time limit .

 

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.

Alan Jones, 2GB and 4BC ordered to pay Wagners for defamation

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Jones

The facts

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.

Relevant law

In order to establish that they have been defamed, a plaintiff must prove the following three elements:

  1. 1. That one or more defamatory imputations have been made.
  2. 2. That the defamatory imputations were published by the defendant.
  3. 3. That the plaintiff has been identified in relation to the defamatory imputations.

 

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 …”

Were the broadcasts defamatory?

Of the 32 matters complained of, Justice Flanagan determined that 76 of the pleaded imputations were conveyed from the abovementioned broadcasts, including the following:

  1. 1. That the Wagners orchestrated with others a high-level cover-up of involvement in the deaths of people at Grantham, in order to avoid being held to account for those deaths, and to protect their financial interests.
  2. 2. That the Wagners had plenty to hide in connection with the deaths of people at Grantham and in concert with others were knowingly involved in a high-level cover-up to ensure that their culpability for those deaths was never investigated.
  3. 3. That the Wagners were involved in orchestrating a disgusting campaign of vilification, bullying and intimidation to prevent the truth coming out at the Queensland Floods Inquiry and prevent being held accountable for the deaths of 19 poor, marginalised people in the Grantham flood disaster.
  4. 4. That the Wagners caused the deaths of 13 people by illegally constructing a dam wall across Lockyer Creek which collapsed, releasing a tsunami-like wall of water that engulfed Grantham.
  5. 5. That the Wagners were knowingly involved in a massive cover-up of the cause of the Grantham flood disaster, in order to protect themselves from being held to account for the deaths of 13 people in the disaster.
  6. 6. That the Wagners callously refused to admit legal liability for the deaths of 12 people in the Grantham flood disaster, when a man-made wall at his quarry burst, causing a veritable tsunami that killed 12 people.
  7. 7. That the Wagners sold their quarry in order to attempt to evade legal liability for causing the deaths of 12 people in the Grantham flood disaster
  8. 8. That the Wagners lied publicly in claiming that the embankment at his quarry was part of the natural landscape rather than being man-made, in order to evade his legal liability for the deaths of 12 people after the embankment collapsed.
  9. 9. That the Wagners were callous and selfish persons in that they built an airport without an environmental impact statement, a health impact statement, a community impact statement, a water impact statement, and without any compensation for people living in hopeless proximity to the airport.
  10. 10. That the Wagners in concert with the Bligh and Newman Governments and police, criminally conspired over a period of four years in a disgraceful and massive cover-up of the cause of the horrific and terrifying Grantham flood.
  11. 11. That the Wagners terrorised and vilified two ordinary people, Heather Brown and . David Pascoe, forcing them to change address and live in fear, because they threatened to expose the truth about their involvement in the horrific flooding of the town of Grantham and the deaths of a number of people, including a baby.

 

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.

Defences under the Defamation Act

Of the imputations concerning claims that the Wagners had constructed a damn 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.

Assessment of damages

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:

    1. 1. Jones and 2GB pay each of the Wagners $750,000 plus interest in the amount of $78,102.74 in damages for defamation;
    2. 2. Jones and 4BC pay each of the Wagners the sum of $100,000 plus interest in the amount of $10,643.84 in damages for defamation;
    3. 3. Jones, 2GB and 4BC each be restrained from republishing any of the defamatory imputations which they had previously published; and
    4. 4. The claim against Cater was dismissed.

 

Conclusion

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.

Inghams not liable for assault by former worker

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Inghams Enterprises

The facts

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.

Relevant law

Section 305B of the Workers’ Compensation and Rehabilitation Act 2003 (QLD) provides that:

“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.”

Section 305C of the Workers’ Compensation and Rehabilitation Act 2003 (QLD) provides that:

“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.”

Section 305D of the Workers’ Compensation and Rehabilitation Act 2003 (QLD) provides that:

“305D General principles

(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”).”

District Court decision

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.

Court of Appeal decision

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.

Conclusion

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.

QLD Government to criminalise revenge porn

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‘Revenge porn’ is an awful modern phenomenon made possible by technology. The laws in Queensland are however catching up with technology:

“Proposed changes to the Criminal Code to be introduced in Parliament this week would make revenge porn a criminal offence in Queensland.

Attorney-General and Minister for Justice Yvette D’Ath will this week introduce the Criminal Code (Non-consensual Sharing of Intimate Images) Amendment Bill 2018, delivering on an election promise to address the disturbing trend.

“These laws would apply to both sending, and threatening to send, intimate material without consent, and will come with a maximum penalty of three years jail,” Mrs D’Ath said.

“The definition will extend to photoshopped images – where an image has been altered to look like a person is portrayed in an intimate way.”

The Bill also allows courts to make a rectification order –the images must be removed or deleted, and if they aren’t a person faces a two-year jail term.

“Revenge porn is a horrible violation, designed to humiliate, and it speaks volumes about the person sharing the image.

“It is time for us to step in because this behaviour isn’t just abhorrent, it is criminal.

“And we also know that while sharing intimate images can affect anyone, it disproportionately affects women and girls,” Mrs D’Ath said.

The Bill also includes the threat to distribute – whether an image exists or not.

“Victims often don’t know whether there is material in existence; but a threat to distribute material—even material that may not exist— provokes extreme fear and can be used to control, coerce, and harm a person,” Mrs D’Ath said.

“I would hope this Bill also serves as a reminder for young Queenslanders, in particular, around the dangers in sharing such material.”

The Bill will now be considered by a parliamentary committee and will be open for public submissions in the near future.” 

 

 

Solicitor struck off for the second time

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Michael James Quinn has the dubious honour of being the first solicitor in Queensland legal history to be struck off twice.

Legal advice

Normally when a lawyer is removed from the roll (‘struck off’) that effectively ends their legal career, as they are permanently ineligible to obtain a practising certificate which would enable them to practice law again. In this case, the unusual history of the matter led to the practitioner being struck off twice.

The facts

From 1 April 2009, Michael James Quinn practised as sole practitioner in the firm Q5 Law Proprietary Limited until 4 May 2012 when his practising certificate was cancelled.

In 2015, Quinn was first struck off by the Queensland Civil and Administrative Tribunal (QCAT) after failing to appear and contest 64 charges arising from the trust account of Q5 Law Proprietary Limited.

In 2016, Quinn successfully appealed this decision because QCAT had failed to satisfy itself that the charges had been proven pursuant to section 453 of the Legal Profession Act 2007. The Court of Appeal set aside the QCAT orders and ordered a re-hearing.

On 12 October 2017 Quinn was convicted after trial by a District Court jury of one count of fraud with a circumstance of aggravation contrary to section 408C of the Criminal Code for trust account defalcations of Q5 Law Proprietary Limited. He was sentenced to 12 months imprisonment, with immediate suspension and an operational period of two years.

The Legal Services Commissioner applied to QCAT for another order that Quinn be struck off for the trust account defalcations conviction as well as unlawful drawing of trust moneys, retention of trust moneys in a general account contrary and a failure to keep records as required by the Legal Profession Act 2007.

The Law

Section 408C of the Criminal Code provides that:

“(1) A person who dishonestly

(a) applies to his or her own use or to the use of any person

(i) property belonging to another; or

(ii) property belonging to the person, or which is in the person’s possession, either solely or jointly with another person, subject to a trust, direction or condition or on account of any other person; or

(b) obtains property from any person; or

(c) induces any person to deliver property to any person; or

(d) gains a benefit or advantage, pecuniary or otherwise, for any person; or

(e) causes a detriment, pecuniary or otherwise, to any person; or

(f) induces any person to do any act which the person is lawfully entitled to abstain from doing; or

(g) induces any person to abstain from doing any act which that person is lawfully entitled to do; or

(h) makes off, knowing that payment on the spot is required or expected for any property lawfully supplied or returned or for any service lawfully provided, without having paid and with intent to avoid payment;

commits the crime of fraud.”

Section 419 of the Legal Profession Act 2007 states as follows:

419 Meaning of professional misconduct

(1)”Professional misconduct” includes

(a) unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; and

(b) conduct of an Australian legal practitioner, whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

Section 452 of the Legal Profession Act 2007 states as follows:

“Starting proceeding before a disciplinary body

(1) The commissioner may apply—

(a) to the tribunal for an order against an Australian legal practitioner in relation to a complaint against the legal practitioner or an investigation matter.”

Section 453 of the Legal Profession Act 2007 states as follows:

“Hearings

The disciplinary body must hear and decide each allegation stated in the discipline application.”

Section 456 of the Legal Profession Act 2007 relevantly provides as follows:

“456 Decisions of tribunal about an Australian legal practitioner

(1) If, after the tribunal has completed a hearing of a discipline application in relation to a complaint or an investigation matter against an Australian legal practitioner, the tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the tribunal may make any order as it thinks fit, including any 1 or more of the orders stated in this section.

(2) The tribunal may, under this subsection, make 1 or more of the following in a way it considers appropriate—

(a) an order recommending that the name of the Australian legal practitioner be removed from the local roll;

(b) an order that the practitioner’s local practising certificate be suspended for a stated period or cancelled;

(c) an order that a local practising certificate not be granted to the practitioner before the end of a stated period.”

QCAT’s decision

The charges and the facts supporting them were expressly admitted by Quinn.

As QCAT Member Justice Daubney noted, Quinn’s conduct clearly amounted to professional misconduct because it involved both a substantial and a consistent failure over a period of 16 months to keep reasonable standards of competence and diligence, and also justified a finding that the practitioner is not a fit and proper person to engage in legal practice. This was notwithstanding the fact that no client of Quinn’s had suffered any loss.

Justice Daubney then made the following observations:

“It is trite to observe that the clients of solicitors must be able to expect absolute probity from solicitors in relation to dealings with moneys held in trust. Various terms have been used to describe the level of that probity. Those terms have elevated the extent of that probity to levels such as it being a sacred trust. Whatever words one uses, the inherent relationship between a solicitor and their client must be founded on trust, and a necessary practical manifestation of that trust must be the absolute probity with which solicitors both theoretically and in practice approach their dealings with moneys that have been entrusted to them by or on behalf of clients.”

Due to the relative currency of Quinn’s conviction, the serious nature of the offending and the fact that that offending occurred in the course of his conduct of a legal practice, Justice Daubney determined that the appropriate sanction was removal from the roll.

Justice Daubney consequently ordered that Quinn’s name again be removed from the roll and that he pay the Commissioner’s costs.

Conclusion

This case is one of many that shows that trust account defalcations are a serious matter, and in cases where there are numerous or serious defalcations a solicitor can be struck off for them, even when their own clients are not left worse off.

Quinn’s win in the Court of Appeal, in which he managed to have an order that he be removed from the roll overturned, was a temporary victory. A subsequent fraud conviction in relation to some of the same trust accounting issues for which he had been struck off at first instance ensured that he would be struck off again.

Teacher’s claim against school for slipping on grape dismissed

Posted on Categories litigation, Negligence, Personal InjuryTags , , Leave a comment on Teacher’s claim against school for slipping on grape dismissed

The District Court’s decision to dismiss a teacher’s claim for slipping during a fruit break shows that a lack of previous incidents can be decisive on the question of liability.

risk

The facts

Debbie Deans was employed by Riverside Christian College in Maryborough when on 4 March 2015 she slipped over a grape during a ‘fruit break’ during the course of her employment, fracturing her left patella.

She sued her employer, claiming that it was negligent for failing to:

(a) take reasonable care for her safety;

(b) establish, maintain and enforce safe methods and systems for her to carry out her employment;

(c) supervise her so as to ensure she carried out her employment safely;

(d) warn her of the possibility of injury to her in carrying out her employment and instruct her in methods of work to avoid the possibility of such injury;

(e) provide a safe work environment within which her was required to perform her duties;

(f) not require her to perform work where the defendant knew, or ought to have known that the carrying out of the work may cause injury to her;

(g) failed to implement a system of inspection and cleaning following “fruit break” when it knew, or ought to have known, that there was a higher probability of slip hazards being created in the area due to the fact that five and six year old children were carrying fruit through the area;

(h) failing to make arrangements for the five and six year old children to store their “fruit break” snacks in an area that was not a high traffic pedestrian area.”

Relevant law

Section 305B of the Workers’ Compensation and Rehabilitation Act 2003 (QLD) provides that:

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.

Section 305C of the Workers’ Compensation and Rehabilitation Act 2003 (QLD) provides that:

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.”

District Court decision

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 [2005] 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.

Conclusion

This case demonstrates that where a defendant in Queensland has organised for a particular activity without any prior incident for some years, they will have a reasonable chance of defending the claim for personal injury on that basis alone, as the activity in question may not involve risks which are foreseeable or significant within the meaning of the law.

This decision is good news for schools, who can now have some comfort that activities which involve a small degree of risk of personal injury can still take place without the risk of being successfully sued as long as such activities are conducted as safely as practicable.

Judge Sandy Street denounced by Federal Court

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Sandy Street

Litigation is very tough on litigants. They find themselves in an environment where in spite of their strong feelings about their case, their emotions carry no weight and are seldom acknowledged by the court. Furthermore, their fate at trial is the hands of a third party who may rule against them, with disastrous consequences. Adverse findings can be made against them. There is an incredible amount of stress associated with such risks. And of course, there is the massive amount of money they have to pay towards their own legal costs.

In return, the least litigants are entitled to expect is a judge who properly hears their case and considers it in a fair minded way.

Unfortunately, this is not what has been happening for many cases before Judge Sandy Street:

A federal judge who has had at least 61 judgments overturned on appeal since his appointment 3½ years ago has been found in ­recent cases to have repeatedly failed to fulfil the basic judicial task of properly trying cases and giving adequate reasons for his decisions.

In a scathing appeal judgment two weeks ago, Federal Circuit Court judge Sandy Street was found to have “manifestly failed to give adequate reasons, and in places reached conclusions that were plainly wrong”, when he threw out a claim brought by a teacher who had been denied a termination payment promised by the Sydney Catholic school system.

Judge Street — whose father, Sir Laurence, grandfather and great grandfather were all former NSW chief justices — had delivered his decision “ex tempore”, or on the spot, without retiring from the bench for consideration.

He has been repeatedly criticised on appeal, including in at least seven recent cases uncovered by The Weekend Australian, for failing to give proper reasons when delivering judgments in this way.

Since his appointment by the Coalition on January 1, 2015, Judge Street has had at least 61 cases overturned, 14 of these since early March.

Many of his judgments have been delivered ex tempore, helping him to dispose of about 1370 cases in a 26-month period, while the other eight Sydney general federal law judges combined disposed of just 2290 cases.

But in his decision, Federal Court justice Robert Bromwich said the “perceived efficiency” of this approach could be “illusory”, and cause litigants to “suffer” in some cases.

“When ex tempore judgments are used inadequately or inappropriately, the quality of justice delivered may fall below acceptable standards, perceived efficiency may be illusory … costs may be greatly increased (especially due to an appeal) and the final resolution of a dispute may be delayed, rather than accelerated,” he said.”

 

Whilst the Federal Circuit Court does have an incredible workload given the number of family law matters and the variety of other federal matters which come before it, it is important for the interests of justice that litigants are afforded a fair hearing and have their cases considered in a fair and balanced manner.

 

Interestingly, when he was at the bar Judge Street called for a fairer process with respect to the appointment of barristers to silk. The Federal Court clearly wishes for fairer processes in Judge Street’s courtroom.

What if I know that my client is guilty?

Posted on Categories Criminal law, Legal professionTags , , , , , , Leave a comment on What if I know that my client is guilty?

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What if a lawyer knows that their own client is guilty of the offence(s) for which they have been charged? This is a question that lawyers are often asked, although perhaps surprisingly not often by criminal clients.

In short, the answer depends on whether a lawyer’s knowledge of their client’s guilt arises from the evidence against them, or whether it’s because the client has confessed their guilt to their lawyer.

In the first scenario, the lawyer’s knowledge could perhaps be better characterised as belief if the client disputes their guilt.

On the other hand, when a client confesses to their own lawyer there is almost always no reason for them doing so other than because they are in fact guilty. Their guilt can normally be safely assumed.

This post will address each scenario.

If the evidence against the client is so strong

If the evidence against the client is extremely strong and their lawyer believes as a result of the evidence that a conviction is certain, then the lawyer should advise their client to plead guilty. In practice, this is best done after the lawyer has listened to the client’s side of the story for two reasons. Firstly, hearing what the client has to say will ensure that there are no facts that the lawyer is aware or that they have overlooked or not previously been aware of. Secondly, by listening the lawyer will have hopefully built up some rapport so that the client will be more like to take the lawyer’s advice.

When advising the client to plead guilty, the lawyer would need to explain the basis of their opinion to the client so that he or she can make a fully informed decision. It is after all their decision, not the lawyer’s. It would also be important to mention that a guilty plea leads to a reduced sentence and avoids the stress of a trial. If the client takes the advice, then the lawyer has acted in the client’s best interests even though they have been convicted on their own plea. Of course, the interests of justice will also have been furthered in that a guilty person will have been convicted and a trial will have been avoided.

However, if the client listens to the lawyer’s advice and is adamant that they will nevertheless plead not guilty, the lawyer must accept their decision. It is an accused person’s right to plead not guilty, even if they did in fact commit the offence(s) they are charged with. The lawyer must not in any way seek to interfere with that right. Criminal defendant lawyers have often represented clients who they thought were guilty but who wished to plead not guilty. There is nothing wrong with defending a client who the lawyer believes is guilty, for the reasons set out below.

1. The lawyer is not the person who determines guilt or innocence

The first reason why it is perfectly ethical to defend a client who the lawyer knows or believes is guilty is that the lawyer is not the person whose role it is to decide whether or not the client is guilty. As Johnathan Goldberg has said, “a defending advocate is not there to stand in judgment upon his own client”. That role belongs to a judge or jury, as the case may be.

Assuming that no evidence is excluded from the trial, the judge or jury reaching the verdict will have all the evidence that the lawyer has to decide for themselves whether or not the client is guilty.

If the lawyer refuses to act for a client because they believe they are guilty, the lawyer is to a degree assuming the judge or jury’s role as being the decider of guilt. As David Whitehouse QC has pointed out:

“Usually I have my own view of the merits of the defence, but even if the prosecution case is very strong, if my client tells me he’s innocent I have to act for him, because it is a cardinal rule of the profession that we are not allowed to refuse to represent someone because we don’t like them or because we don’t believe in their case. Otherwise, some people wouldn’t get a barrister to defend them at all. The system is based on the idea that there’s a barrister on each side, the jury looks at the case from both angles and makes up its mind. It only works properly if both sides are represented.”

2. Possibility of error

Furthermore, what if the lawyer was wrong in their belief that the client was guilty, but continued to act for them and let that belief influence how well they defended the client? Then if the client was convicted, the lawyer would be at least partly responsible for a great injustice. Furthermore, whilst the client can appeal a judge or jury’s decision, if the lawyer decided their client was guilty and let that affect their performance, that would not be a ground for appeal unless that could somehow be proven (which in practice may be very hard to do). It would be extremely improper and dangerous for a lawyer to engage in such hubris.

What if my client tells me they are guilty?

In practice, a client confessing to their lawyer is almost unheard of, although it did happen in the infamous Lake Pleasant case. Nevertheless, in Australia there are clear rules for lawyers in this situation.

Client confidentiality

One important rule that applies is client confidentiality. Even if a client confesses to the lawyer, the lawyer is still bound by confidentiality to not disclose that communication to others. If the lawyer is ever called as a witness in court and asked about communications made by the client to the lawyer, the lawyer can and must claim privilege and refuse to answer the question. However, if a client confesses to someone who is not their lawyer (or an employee of a law firm), then such a confession can be disclosed and used in evidence. This is what occurred in the Max Sica trial. Sica was subsequently convicted of a triple murder.

There are sound reasons for client confidentiality. If the lawyer could or had to disclose such confidential communications, then the role of the lawyer would be closer to that of an impartial investigator (such as a police officer) than a lawyer. This could well result in clients not trusting their lawyers and not being frank to their lawyers, even when they are innocent. This in turn can seriously undermine the defence, as the lawyer is not aware of all the facts that may assist or hinder the client’s case.

There are many reasons why someone who is innocent of an offence may require confidentiality in order to have the confidence to reveal things to their lawyers which may assist his or her case. Weakening client confidentiality could result in innocent people being convicted, or mitigating facts not being raised during sentence.

Duty to not mislead the court

Notwithstanding client confidentiality, if the client admitted his or her guilt to the lawyer, the obligation to not mislead the court would still apply. However, in Australia this obligation would alter how the lawyer can defend the client.

If the client tells the lawyer they are guilty the lawyer can still defend them, although the lawyer is not obliged to if someone else can be found in proper time to represent the client and the client does not insist the lawyer represents them. However, in defending the client the lawyer is not allowed to advance a positive case which the lawyer knows to be untrue. This is dealt with in rule 20.2 of the Australian Solicitors Conduct Rules 2011. Those rules provide that in such a case, the lawyer:

(i) must not falsely suggest that some other person committed the offence charged;

(ii) must not set up an affirmative case inconsistent with the confession;

(iii) may argue that the evidence as a whole does not prove that the client is guilty of the offence charged;

(iv) may argue that for some reason of law the client is not guilty of the offence charged; and

(v) may argue that for any other reason not prohibited by (i) and (ii) the client should not be convicted of the offence charged

In other words, the lawyer can put the prosecution to proof (force them to prove their case) and argue that the evidence is not strong enough evidence for the client to be convicted. The lawyer can also try to weaken the evidence by cross-examining witnesses (without advancing a positive case), arguing that particular pieces of evidence prove little and so on. However, the lawyer is not permitted to submit to the court that my client has an alibi, has committed the offence in self-defence or advance some other evidence or explanation the lawyer knows to be false.

Conclusion

As this post demonstrates, the answer to the question of what s lawyer should do when they know or believe their client is guilty is somewhat complicated. And no doubt it is controversial. After-all, if a client has told the lawyer they are guilty and the lawyer’s  efforts helped them escape conviction, then the lawyer has helped a guilty person ‘get away with it’. However, the current requirements are justified when one looks beyond the circumstances of the case and looks at the broader considerations, including the lawyer’s  role as an advocate rather than an investigator or jury, and the importance of client confidentiality. However, the duty to not mislead the court is paramount. Whilst the lawyer is not permitted to disclose client confessions to the court, the lawyer is also prohibited from misleading the court by adducing evidence or making submissions that they know to be false.

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