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Israel Folau settles claim with Rugby Australia

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Following a marathon mediation, former Wallabies star Israel Folau and Rugby Australia have settled their dispute over the termination of Folau’s employment with Rugby Australia after he made controversial comments on Twitter about homosexuality.

 

The case was notable and of political significance because it highlighted the tensions between the rights of employers to dismiss workers to preserve their own reputational interests, freedom of religion, and employees being able to publicly express their own opinions outside of work.

 

It’s understood it’s a favourable result for Folau, who not only will receive an undisclosed sum in damages, but who also received a public apology from Rugby Australia.

 

Read the full Rugby Australia statement here.

 

Janet Albrechtsen reports:

 

“On Wednesday afternoon, following marathon mediation negotiations, RA wholeheartedly apologised to Folau. In fact, the humiliating settlement overseen by Castle saw RA “acknowledge and apologise for any hurt or harm caused” to both Israel and his wife, Maria. It reads like a mea culpa from RA for being part of the pile-on that Maria endured when she publicly supported her husband during this battle.

“Folau received money from RA, too. That’s in addition to the $2.1m fighting fund to cover his legal expenses from Australians who support Folau’s right to express his religious views, even if many — like me — disagree vehemently with his views. That, after all, is the real test of our commitment to freedom of expression, and religious freedom, in a liberal democracy.”

 

Reading between the lines, Rugby Australia’s legal position may not have been as strong as they were claiming. But another explanation is that the ongoing drama with the player who used to be their biggest star overshadowing the game itself would have proven very costly in itself.

 

 

Sterling Law sets leading precedent on itemised bills

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With its latest big win, Sterling Law is establishing its place as an elite Queensland litigation firm, and a force to be reckoned with.

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The facts

When Joanne Murdock deliberately remained uncontactable to her solicitors for an extended period of time, she received a bill from them for all the work they had done for her.

The bill set out the charges item by item, particularising the date, the time spent and the person who performed the work, but for most items only provided very concise descriptions of the work performed. Examples later complained of included “attendance with you”, and “telephone attendance with you”.

Nearly a month later, Joanne Murdock saw another firm named Whitehead Crowther Lawyers for advice on the bill. They wrote to her former solicitors requesting “a bill in itemised format prepared in accordance with the law society rules (sic)”. Because of Joanne Murdock’s failure to make any part payment, secure the costs of her former solicitors or even accept instructions for service, her former solicitors commenced proceedings in the Magistrates Court of Queensland for recovery of their fees and disbursements.

A few months later, her former solicitors obtained summary judgment at a hearing before Magistrate Noel Nunan, who also refused to order a costs assessment.

Joanne Murdock then appealed this decision, appointing Rose Litigation Lawyers to do so. Rose Litigation Lawyers filed a Notice of Appeal, in summary contending that Magistrate Nunan had erred in finding the bill was an itemised bill and for refusing to order a costs assessment.

Legal Profession Act 2007 (Qld)

Section 300 of the Legal Profession Act 2007 (Qld) defines the following terms:

“itemised bill” means a bill stating, in detail, how the legal costs are made up in a way that would allow the legal costs to be assessed under division 7.

“lump sum bill” means a bill that describes the legal services to which it relates and specifies the total amount of the legal costs.

Section 332 of the Legal Profession Act 2007 (Qld) relevantly provides that:

332 Request for itemised bill

(1) If a bill is given by a law practice in the form of a lump sum bill, any person who is entitled to apply for an assessment of the legal costs to which the bill relates may request the law practice to give the person an itemised bill.

A bill in the form of a lump sum bill includes a bill other than an itemised bill.

(2) The law practice must comply with the request within 28 days after the date on which the request is made.

(5) If the person makes a request for an itemised bill within 30 days after receiving the lump sum bill, the law practice must not commence proceedings to recover the legal costs from the person until 30 days after complying with the request.

The Legal Profession Act 2007 (and the many statutes before it) provides for a process where an independent person known as a costs assessor goes through a lawyer’s bill and decides which charges on a bill are fair and reasonable, and should be allowed. This process is known as a costs assessment, and is primarily intended to protect clients of solicitors.  Section 335 of the Legal Profession Act 2007 (Qld) relevantly provides that:

335 Application by clients or third party payers for costs assessment

(1) A client may apply for an assessment of the whole or any part of legal costs.

(10) Subject to this section, a costs application under subsection (1) or (2) must be made in the way provided under the Uniform Civil Procedure Rules.

Uniform Civil Procedure Rules 1999

Rule 740 of the Uniform Civil Procedure Rules 1999 relevantly provides that:

(1) After a certificate of assessment is filed, the registrar of the court must make the appropriate order having regard to the certificate.

(2) The order takes effect as a judgment of the court.

Rule 743A of the Uniform Civil Procedure Rules 1999 relevantly provides that:

743A Application for costs assessment

(1) A person applying for a costs assessment must apply to the relevant court.

(2) The application must—

(a) be in the approved form; and

(b) state the names of any persons to whom notice must be given under the Legal Profession Act 2007, section 339 (1); and

(c) if practicable—

(i) nominate a particular costs assessor for the assessment; and

(ii) state the applicable hourly rate of the nominated costs assessor; and

(d) be accompanied by the following—

(i) an affidavit;

(ii) if applicable, the nominated costs assessor’s consent to appointment to carry out the costs assessment and confirmation that, if appointed, there would be no conflict of interest;

(iii) the prescribed fee.

(3) If the applicant has an itemised bill for all of the costs to be assessed under the application, a copy of the itemised bill must be an exhibit to the affidavit.

(4) If the applicant does not have an itemised bill for all of the costs to be assessed under the application, the best information the applicant has as to the costs to be assessed must be included in the affidavit.

(5) The affidavit must also—

(a) state whether the applicant disputes or requires assessment of all or what part of the costs; and

(b) if the applicant disputes all or part of the costs, state the grounds on which the applicant disputes the amount of the costs or liability to pay them.

Relevant Case Law

In Keene v Ward [1849] EngR 1210, The Queen’s Bench held that a solicitor’s bill must contain sufficient information for him to obtain advice about taxation, but that an exactness of form was not required.

In Cook v Gillard [1852] EngR 942, the House of Lords held that a solicitor’s bill which failed to specify in which Court the business was done was still valid, as such information would presumably already be within the knowledge of the client.

In Haigh v Ousey (1857) 7 El. & Bl. 578 119EngRep, it was held that the question of whether a bill was sufficient for a client to be advised about whether to seek taxation of the solicitor’s costs depended on what further information the client was able to tell their advisors about the charges.

In Clayton Utz Lawyers v P & W Enterprises Pty Ltd [2011] QDC 5, Judge Reid of the District Court of Queensland held that the generalised and incomplete descriptions of the work in the bills provided by the law firm were not itemised bills within the meaning of the Legal Profession Act 2007 as they provided “a wholly inadequate explanation of the work actually performed”. Consequently, the law firm was ordered to deliver itemised bills.

On the other hand, in Pott v Clayton Utz [2012] QSC 167 it was held by the Supreme Court of Queensland that the client has an onus to show what further information they require to get advice about applying for a cost assessment, otherwise the solicitor’s bills would be presumed to be itemised bills, and that merely swearing to a generalised concern of overcharging is insufficient to discharge this onus.

Decision of the District Court

At the hearing, Judge Porter QC immediately identified that the central issue of the appeal was whether the bill provided was an itemised bill within the meaning of the Legal Profession Act 2007, as all of the grounds of appeal depended on the bill being found to not be an itemised bill. His Honour also correctly noted that the central problem for Joanne Murdock was that she had not sworn any affidavit in the Magistrates Court proceedings concerning the extent of her knowledge of the charges contained in the bill. An adjournment application to adduce fresh evidence at the hearing was dismissed ex tempore.

Whilst Judge Porter QC held that a proper request for an itemised bill had been made within 30 days as required to enliven the prohibition on suing in section 332(5) of the Legal Profession Act, he also held that the bill was an itemised bill, and therefore there was no prohibition on the law practice commencing recovery proceedings when it did. The reasons why the bill was an itemised bill were because it specifically identified all the work performed and the names of other persons involved, most of the unparticularised attendances involved relatively short periods of time, and that Joanne Murdock would be expected to know much about the work performed for her. In any event, the absence of evidence by Joanne Murdock as to the extent of her knowledge meant that she had failed to discharge the onus of showing she did not have sufficient information to obtain advice about the bill.

Judge Porter QC rejected other arguments in support of the appeal, including that Magistrate Nunan should have ordered a costs assessment, that the terms of the mandatory costs disclosure provided to Joanne Murdock formed a part of the contract between herself and the firm, and that the Defence filed for Joanne Murdock constituted evidence of the truth of its contents because it was exhibited to an affidavit filed by the firm.

Because there was no error on the part of Magistrate Nunan, the appeal was dismissed with costs.

Conclusion

This case is the latest in a long case history of clients being sued for outstanding fees complaining about the sufficiency of the contents of the bill in order to avoid judgment being entered or standing against them. Applying the established principles derived from the case law, the District Court held that the client had failed to discharge her onus to show that the bill was not an itemised bill, because she had not provided any evidence of the extent of her knowledge of the work done for her. As a result, the appeal had to be dismissed.

This case again shows how whether a bill is sufficient will vary from case to case, depending on the client’s own knowledge or presumed knowledge. The (common) view that it is only the information that is contained on the face of the bill itself that matters is erroneous, because the test is whether another solicitor can provide advice based on the contents of bill supplemented by the client’s own knowledge of the matter. It is only when the sum of these two factors still means that the client cannot make an informed decision of whether to seek a costs assessment that the bill can be deemed inadequate and (upon a proper request) the prohibition on the law firm suing provided in section 332(5) of the Legal Profession Act applies.

 

John William Chardon guilty of manslaughter

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A Brisbane jury has today found John William Chardon guilty of manslaughter over his wife’s disappearance in 2013.

John Chardon
The facts
Novy Chardon went missing the same day her husband John Chardon received a legal letter from her solicitors about custody of their children. Her body has never been found. John Chardon has consistently denied any involvement.

Chardon told police that when he woke up on February 7 his wife was gone, with him suggesting she might have sold $70,000 worth of jewellery to fund her departure. However, investigators found Ms Chardon’s passport and she hadn’t used her bank accounts or social media accounts.

Relevant law

Section of 302 the Criminal Code (Qld) provides that:

“if the offender intends to cause the death of the person killed or that of some other person or if the offender intends to do to the person killed or to some other person some grievous bodily harm… is guilty of “murder”.”

In Weissensteiner v The Queen [1993] HCA 65, it was said that:

“in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.”

In R v White [1998] 2 SCR 72, in the Supreme Court of Canada, Major J said that:

“As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury’s exclusive fact-finding role.”

In The Queen v Baden-Clay [2016] HCA 35 (31 August 2016), the High Court held that a jury is entitled to take into account the false denials of an accused in involvement in a person’s death to find that they did intend to cause the death and are therefore guilty of murder.   That case also confirms that no direct evidence of the element of intent is required.

Supreme Court jury’s decision
By reaching the verdict it did, the jury has rejected Chardon’s claims of innocence and found that he did in some way cause his wife’s death. But the jury has also determined that it was not satisfied beyond reasonable doubt that he intended to cause his wife’s death, or grievous bodily harm.

 

Eurydice Dixon’s killer sentenced to life imprisonment

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Jaymes Todd 1
The facts

Eurydice Dixon was a young comedian who performed at the Highlander Club on the evening before the offences.

On 13 June 2018, Eurydice Dixon was on her way home walking across Princes Park, Carlton North shortly after midnight. Jaymes Todd had been following over a distance of 4.2 kms and for a period of almost one hour as she made her way on foot from Flinders Street, Melbourne to Princes Park. As Eurydice Dixon walked across the soccer fields in the park, Todd violently set upon her, committed the offences of rape, attempted rape and sexual assault, and murdered her by choking her to death with his bare hands.

Todd eventually went home and googled the term ‘strangulation and rape porn’, and watched various categories of a pornography websites. He also searched for ‘Princes Park’ and read the first reports about the murder he had committed.

That afternoon, a friend informed him that he had been captured on CCTV in relation to the murder. Because the friend urged him to go to the police and said she would report him if he didn’t, at 7.09 pm he contacted the Broadmeadows Police Station and told the policeman, who took his call, that he had seen your image on the news, but denied he was involved in the death of Eurydice Dixon. He also said that he would attend the police station.

At 8.29 pm he attended Broadmeadows Police Station with his mother and when interviewed gave at least three different and conflicting accounts, all of which were lies.

He later plead guilty to murder, one charge of rape, one charge of attempted rape, and one charge of sexual assault.

Relevant law

Section 3 of the Crimes Act 1958 (Vic) provides that:

“(1)     Notwithstanding any rule of law to the contrary, a person convicted of murder is liable to—

(a)     level 1 imprisonment (life); or

(b)     imprisonment for such other term as is fixed by the court—

as the court determines.

(2)     The standard sentence for murder is—

(a)     30 years if the court, in determining sentence, is satisfied that the prosecution has proved beyond reasonable doubt that—

(i)     the person murdered was a custodial officer on duty or an emergency worker on duty; and

(ii)     at the time of carrying out the conduct the accused knew or was reckless as to whether that person was a custodial officer or an emergency worker; and

(b)     in any other case, 25 years.”

Section 5 of the Sentencing Act 1991 (Vic) provides that:

“Sentencing guidelines

(1)     The only purposes for which sentences may be imposed are—

(a)     to punish the offender to an extent and in a manner which is just in all of the circumstances; or

(b)     to deter the offender or other persons from committing offences of the same or a similar character; or

(c)     to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated; or

(d)     to manifest the denunciation by the court of the type of conduct in which the offender engaged; or

(e)     to protect the community from the offender; or

(f)     a combination of two or more of those purposes.”

Section 5A of the Sentencing Act 1991 (Vic) provides that:

“Standard sentence scheme

(1)     If the Act that creates an offence, or prescribes the maximum penalty for an offence, specifies a period as the standard sentence for the offence, then—

(a)     the offence is a standard sentence offence; and

(b)     the period specified as the standard sentence for the offence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.

(3)     For the purposes of subsection (1)(b), objective factors affecting the relative seriousness of an offence are to be determined—

(a)     without reference to matters personal to a particular offender or class of offenders; and

(b)     wholly by reference to the nature of the offending.”

Supreme Court decision

Commenting on Todd’s rape/murder fantasies, Justice Kaye said:

“I am satisfied, beyond reasonable doubt, that the offences of rape, attempted rape, sexual assault and murder, were each motivated by the overwhelming urge that you had to enact the fantasy with which you had become obsessed. In other words, you intentionally killed Eurydice Dixon by choking her to death, in order to gratify your perverted and depraved sexual desires. As such, the offending by you was totally and categorically evil. Your conduct, and your intentions and motivation, struck at the very heart of the most basic values of a decent civilised society. In the absence of any mitigating circumstances, the objective gravity of, and your moral culpability for, each offence — and in particular, for the crime of murder — falls into one of the highest categories of such offences…

The victim impact statements are a salutary reminder of the extent and depth of the grief and suffering which have been, and which will continue to be, the inevitable consequence of the offences which you have committed. While you are to be sentenced based on a rational analysis of the facts of the case, and the application of relevant sentencing principles, it is important not to lose sight of the enormity of the crimes which you have committed, and the profound grief and pain caused to so many as a direct consequence of your offending.59 As I have already stated, the maximum sentence for the offence of murder is life imprisonment, the maximum sentence for the offence of rape is 25 years’ imprisonment, and the maximum sentence for the offence of attempted rape is 20 years’ imprisonment. I should add that the maximum sentence for the offence of sexual assault, to which you pleaded guilty, is 10 years’ imprisonment. The relevant provisions of the Crimes Act 1958 provide that the standard sentence for the crime of murder is 25 years’ imprisonment, and for the crime of rape is 10 years’ imprisonment.”

Justice Kaye also noted this was a particularly serious case of murder for the following reasons:

“(1) The murder committed by you was not spontaneous. Throughout the period in which you trailed behind her on her way to Princes Park, you were seriously contemplating, and indeed obsessed with the thought of, raping and choking her to death. During the whole of that period, you had ample opportunity to come to your senses, to desist from following her, and to prevent the happening of the dreadful events that ensued.

(2) At the time you attacked, raped and killed her, Eurydice Dixon was totally vulnerable, defenceless and helpless. You set upon her after she had crossed two soccer fields, so that you were well secluded from the view of any person who might be passing along Royal Parade. You had the advantage of surprise, and it would seem, quite clearly from what occurred, superior strength.

(3) The murder by you of Eurydice occurred in the context of the events that immediately preceded it, namely, the rape, attempted rape and sexual assault that you had committed on her.

(4) The method by which you murdered Eurydice was appalling. The act of choking her to death, so that she suffocated, was callous, cruel and brutal.

(5) Your actions, in the period that followed the murder, aggravated the objective seriousness of your offending. There is no evidence that the vicious acts, by which you had raped and murdered your victim, troubled your conscience at all. Rather, you used Eurydice’s mobile phone, slept and ate, and accessed pornographic websites, including a website of videos that involved acts of brutal rape culminating in the death of a victim by strangulation. In the immediate aftermath of your offending, you had an entire and utter lack of concern for what you had done to an innocent and decent young woman.

64 In that context, the murder by you of Eurydice Dixon was far in excess of what could be described as falling within the middle range of seriousness of such an offence, by reason of the objective factors that attended that murder alone. “

Rejecting Prosecution submissions with respect to the murder for a lengthy period of imprisonment that fell short of life, Justice Kaye held that:

“In the end, and after giving this matter truly anxious consideration, and giving full weight to the mitigating circumstances to which I have referred, I have come to the conclusion that the only appropriate sentence, for the offence of murder in this case, is one of life imprisonment, with a fixed minimum period of years before you are eligible to be considered for release on parole. I have reached that conclusion because of the enormity of your offending, and the extremely high level of the objective gravity of, and your subjective culpability for, that offending. In my view, only a sentence of life imprisonment, with a fixed non-parole period, could properly vindicate the central sentencing purposes of general deterrence, denunciation and community protection.”

For the other offences, he was sentenced to lesser periods to be served concurrently with the murder sentence. A minimum non-parole period of 35 years’ imprisonment was also imposed.

Conclusion

Justice Kaye’s sentence clearly was intended to reflect the gravity of Todd’s offending, which was obviously heinous. It also reflected what one may suppose most members of the community would consider an adequate sentence. Interestingly, it exceeded the sentence recommended by the Prosecution, and this suggests there may be an appeal against the sentence imposed.

Former Magistrate Bill Randall struck off for child sex abuse

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William ‘Uncle Bill’ Randall has been struck off as a lawyer following his convictions for numerous child sex offences.

 

Bill Randall4
The facts

William John Randall was admitted as a solicitor of the Supreme Court of Queensland on 9 June 1981. He never practised as a solicitor, and never held a practising certificate. He was however appointed a Magistrate in 1985 and served for a long time in the small claims tribunal until his retirement in 2016.

On 21 November 2017 he was convicted by a jury of a range of serious sexual offences committed against a child. The child was just five when the abuse started in 1990 at Randall’s home at Wynnum, on Brisbane’s bayside. It continued for almost 12 years, and the victim was 30 before he finally gathered the courage to tell police. Randall was initially sentenced to 9 years imprisonment but on appeal this was increased to 11 years imprisonment. He continued to deny his offending throughout and never showed any remorse.

Relevant law

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

(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 if not a fit and proper person to engage in legal practices.

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.”

In Legal Services Commissioner v Quinn [2008] QLPT 19, the solicitor had pleaded guilty to and been convicted of one count of importing child pornography, one count of possessing child abuse computer games, and one count possessing child abuse photographs. The offending was detected after Quinn attempted to re-enter Australia while carrying Category 1 magazines and compact discs he purchased in Japan. At the hearing of the discipline application, Fryberg J found him guilty of professional misconduct and recommended that his name be removed from the local roll without giving any reasons.

Tribunal decision

In considering whether Randall should be removed from the roll of legal practitioners in Queensland, the Tribunal held that:

“Whilst this offending did not occur in connection with the practice of law, regard must be had to s 419(1)(b) and s 419(2) of the LPA. By s 9(1)(d) of the LPA, “suitability matter” relevantly includes whether a person has been convicted of an offence, and if so the nature of the offence, how long ago the offence was committed, and the person’s age when the offence was committed.

“The conduct for which the respondent was convicted was heinous and repugnant to the moral sensibilities of all right-thinking members of the community. It was conduct which, of itself, amply supports a finding that the respondent is not a fit and proper person to engage in legal practice.

“There will accordingly be a finding that the respondent engaged in professional misconduct.

“The nature, and extent, of the conduct is also such as to inform the order which ought be made as a consequence of that finding. It was conduct which is incompatible with the personal qualities essential for practice as a legal practitioner. By engaging in this conduct, the respondent effectively forfeited the privilege of ongoing membership of an honourable profession.
“Noting again that this course of action is consented to by the respondent, the Tribunal considers it appropriate in the present case to recommend that the respondent’s name be removed from the roll of practitioners.”

The result was that Randall was struck off.

Conclusion

The case of William John Randall concerns a spectacular fall from grace as a result of his sinister double life that finally caught up with him. He went from a Magistrate who stood in judgment of others to someone who found himself in the dock, followed by prison.

This case also is also an application of the long-established principle that a lawyer can get struck off for conduct unrelated to legal practice, particularly if the conduct is of a serious criminal nature.

Randall’s convictions made it unnecessary to prove the conduct the subject of his crimes, as proof of his convictions was sufficient to prove the criminal conduct. The serious nature of his crimes, the fact they occurred over a long period of time, the breach of trust they involved and his lack of remorse necessitated a conclusion that he should be struck off.

George Pell’s appeal against convictions dismissed

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Pell
The facts

In December of last year, controversial Catholic Church Cardinal George Pell was convicted of one count of sexual penetration of a child under the age of 16 and four counts of an indecent act with a child under the age of 16 over allegations of abusing choirboys at Melbourne’s St Patrick’s Cathedral in the 1990s. This followed a previous trial that resulted in a hung jury.

The complainant said he and another choirboy left the liturgical procession at the end of one Sunday mass and went fossicking in the off-limits sacristy where they started swilling altar wine. Pell allegedly arrived unaccompanied, castigated them, and then, while fully robed in his copious liturgical vestments, proceeded to commit three sexual acts, including oral penetration of the complainant. The complainant said the sacristy door was wide open and altar servers were passing along the corridor. The complainant said he and the other boy then returned to choir practice.

Prior to both trials, Pell had been subject of substantial adverse pre-trial publicity, including a Royal Commission into child sex abuse, a book by Louise Milligan described as a hatchet job and an abusive song by Tim Minchin. His conviction was highly controversial, and criticised by a number of commentators.

Relevant law

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 [1935] 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);…

and

(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).

Court of Appeal decision

A majority of the Victorian Court of Appeal has dismissed the appeal against conviction:

“By a majority of two to one, Victoria’s Supreme Court dismissed the appeal ordering Pell to “return to prison”.

“He will continue to serve his sentence of six years imprisonment,” Chief Justice Anne Ferguson said.

“He will remain eligible to apply for parole after he has served three years and eight months of the sentence.”

Cheers were heard from inside the courtroom and outside as dozens of supporters watching the appeal on the livestream heard the three judges slap down Pell’s appeal.”

An appeal to the High Court is likely.

 

UPDATE: footage of the Victorian Court of Appeal decision being handed down can be found here.

That footage is ©Supreme Court of Victoria.

Paul Pisale sentenced to 2 years imprisonment

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Paul Pisasale
The facts

Former Ipswich lord mayor Paul Pisale, a Singaporean friend named Yutian Li and a lawyer named Cameron McKenzie were accused of participating in a bizarre extortion plot:

“Prosecutors claim Yutian told Pisasale she wanted to punish Xin after learning he was married during their relationship.

Pisasale then allegedly posed as a private investigator in a series of phone calls in which he told Xin he needed to pay Yutian between $5000 and $10,000, saying she has “a very, very good case” against him and “could go after you”.

The money, Pisasale said, was reimbursement for Yutian’s private investigation fees.

“She was so upset. You could just see her whole world had been destroyed,” he told the court.

“She was a beautiful person. She was a very caring person and she would have given her 100 per cent to this bloke.

“She was broke, she was in Australia and she had nowhere to turn.

“All he had to do was reimburse her and let her start again but he was so determined not do.””

Pisale, Li and McKenzie were all found guilty by a jury of extortion.

Relevant law

Section 415 of the Criminal Code (Qld) provides that:

415 Extortion

(1) A person (the “demander”) who, without reasonable cause, makes a demand—

(a) with intent to—(i) gain a benefit for any person (whether or not the demander); or(ii) cause a detriment to any person other than the demander; and

(b) with a threat to cause a detriment to any person other than the demander;

commits a crime.

(2) It is immaterial that—

(a) the demand or threat is made in a way ordinarily used to inform the public rather than a particular person; or

(b) the threat does not specify the detriment to be caused; or

(c) the threat does not specify the person to whom the detriment is to be caused or specifies this in a general way.

(d) the detriment is to be caused by someone other than the demander.

District Court decision

Judge Brad Farr sentenced Pisale to 2 years imprisonment to be suspended after 12 months for the two counts of extortion.

Judge Farr sentenced Li to 15 months for each charge, partially suspended. She will serve seven months in prison and is likely to be deported following that sentence. McKenzie received 18 months’ jail suspended after serving nine months.

Conclusion

Paul Pisale’s fall from grace is now almost complete, although he does face further charges which will take their own course.

It will be interesting to see whether McKenzie remains a lawyer for very long.

Why do you need a lawyer?

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Why do you need a lawyer? On some level this is a basic and obvious question, but there is a lot more to the answer than first meets the eye. Although it seems like a pretty obvious question, there are in fact a number of advantages of having a lawyer.

advantages of having a lawyer

1. Lawyers have knowledge and experience

A lawyer usually has special knowledge and experience acquired from their qualifications and their years of legal practice. A lawyer knows the law, should know the procedures, and will be able to prepare documents and handle your case in the most effective way. By engaging a lawyer, you are taking advantage of the knowledge and skills that he or she possesses, which should benefit your case enormously.

Lawyers know what points and arguments are most relevant and effective, and which ones are less so. Experienced lawyers know of the temperament and expectations of particular judges, and are able to tailor their approach accordingly. Lawyers can effectively advise you of the advantages and disadvantages of a proposed course of action.

In contrast, relying on the advices of people who are not legally qualified is a very dangerous thing to do, even if such people mean well. There are a lot of myths in the community about the legal system and how it works. By speaking with a lawyer, you can find out whether what you have heard is in fact true, and if not your understanding of your matter will become more accurate and realistic.

2. Lawyers can help prevent disputes

One of the popular and enduring myths about lawyers is that they create and promote conflict. In reality, lawyers issue try to prevent conflict and attempt to resolve conflict without the need for final judicial determination. Disputes can and often are resolved through the sending of constructive correspondence, negotiation and participation in alternative dispute resolution.

By protecting your rights and interests, getting the agreement into writing and ensuring that everything is legally sound, a lawyer can significantly reduce the likelihood of having a costly dispute arise in the first place. And even if a dispute does eventuate, the number of uncertainties and the risks of a seriously bad outcome are substantially less the earlier a lawyer is retained.

3. The other party will take you more seriously

Because lay people representing themselves are at such a disadvantage, the lawyers for the other party(ies) might be less likely to put forward decent offers to settle the case, which can result in you settling for less than you otherwise would. Without the benefit of legal advice, you are unlikely to know whether an offer you receive is reasonable, or whether you are likely to get a better outcome by rejecting it.

Even if you know the offers the other side have been prepared to put forward are inadequate, you may be less likely to settle your case because the other side know that you will struggle to prove your case as a self-represented litigant, which means more time, stress and risk.

4. Lawyers take the stress out the situation

Having someone on your side who is handling the situation for you can be rather reassuring, and reduces the stress you are feeling about your case. It saves you from having to read every piece of correspondence that comes in about your matter, feeling like you are in it alone or having to think about it constantly.

5. Lawyers save you time

For most people, time is valuable. By doing most of the work for you, the lawyer allows you to have the time to live your life. As a result, that you can spend time with your family and friends, and not have to take substantial time off work.

6. Lawyers are not emotionally involved

Because your lawyers are not you, there is a benefit of detachment that exists that allows your lawyer to view your case objectively and provide you with sound advice and recommendations. There’s an old legal truism that “he who acts for himself has a fool for a client”. This applies even to lawyers who represent themselves, because a self-represented litigant is usually too emotionally involved to see things objectively and make rational judgments. This is particularly the case in family law, where emotions are heightened.

7. If you win, you can get your costs

In civil litigation, the general rule is that the loser usually pays the winner’s costs. So if you win, you get (partly) compensated for the legal bills you have paid with a costs order in your favour. In contrast, if you are self-represented you are only entitled to claim for disbursements such as filing fees, and therefore cannot be compensated for your time and effort.

8. Lawyers have insurance

In Australia, all lawyers are required to have professional indemnity insurance. If your lawyer makes a critical error which costs you a lot of money, you can sue your lawyer for this. In contrast, if you mess up your own case you only have yourself to blame and therefore are not entitled to any compensation.

Conclusion

Of course, all this is not to say that you need a lawyer in every legal dispute you ever have. If for instance you have a dispute over a small sum in a tribunal where costs cannot be awarded, you would probably best be served by representing yourself. But in most other cases, the benefits of having a lawyer in a legal dispute far outweigh the costs.

This blog also has recommendations on how to minimise your legal fees and how to help your own case when you have a lawyer representing you.

Fraudster Hamish McLaren sentenced to 16 years jail

Posted on Categories Criminal lawTags , , , , Leave a comment on Fraudster Hamish McLaren sentenced to 16 years jail

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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.

 

Chief Justice of Queensland speaks out for judicial independence

Posted on Categories Criminal law, JudiciaryTags , , , , , Leave a comment on Chief Justice of Queensland speaks out for judicial independence

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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:

https://specialreports.theaustralian.com.au/1437724/cover/

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.

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