Author adminPosted on Categories Criminal lawLeave a comment on Indictable offences in the Magistrates Court of QLD
Generally, indictable offences in Queensland are dealt with by the District or Supreme Courts, as they are usually serious offences. However, in some cases, indictable offences can or must be dealt with in the Magistrates Court.
Section 1 of the Criminal Code 1899 (Qld) defines an “indictment” to mean a written charge preferred against an accused person in order to the person’s trial before some court other than justices exercising summary jurisdiction. A “summary conviction” is defined as summary conviction before a Magistrates Court.
Section 3 of the Criminal Code provides that offences are of 2 kinds, namely, criminal offences and regulatory offences. Criminal offences comprise crimes, misdemeanours and simple offences. Crimes and misdemeanours are indictable offences, which means that the offenders cannot, unless otherwise expressly stated, be prosecuted or convicted except upon indictment. A person guilty of a regulatory offence or a simple offence may be summarily convicted by a Magistrates Court.
Sections 1 and 3 of the Code make it clear that the indictable offences are to be dealt with in the District or Supreme Courts, unless the Code provides otherwise. In the District or Supreme Courts, a jury is normally the trier of fact in a criminal trial. In contrast, a trial in the Magistrates Court is a called a summary trial, and the presiding Magistrate is the sole trier of fact. A matter dealt with summarily is dealt with in the Magistrates Court.
Chapter 58A of the Criminal Code (containing sections 552A -552BB inclusive) provides for when indictable offences must or can be heard summarily.
Section 552A of the Criminal Code provides for a list of indictable offences which must be dealt with summarily on Prosecution election.
Section 552B of the Criminal Code provides for a list of indictable offences which must be dealt with summarily, unless the defendant elects for a jury trial.
Section 552BA of the Criminal Code provides for a list of indictable offences which must be dealt with summarily, unless they are excluded offences under section 552BB of the Code.
Sections 552A, 552B and 552BA of the Criminal Code are all subject to section 552D, which provides that the Magistrates Court must abstain from hearing and determining a charge and must instead conduct a committal proceeding if it is an offence listed at Schedule 1C of the Penalties and Sentences Act 1992, the Court is of the view that the defendant may not be adequately punished on summary conviction after considering submissions or if exceptional circumstances exist.
Section 552H of the Criminal Code provides that the maximum period of imprisonment under section 552A , 552B or 552BA is three years, unless the court is constituted by a magistrate imposing a drug and alcohol treatment order, in which case the maximum penalty is four years imprisonment.
The list of indictable offences that must be dealt with summarily on Prosecution election is contained at section 552A(1) of the Criminal Code.
The offences listed include the commission, counselling or procuring, attempt or becoming an accessory after the fact of any of the following offences under the Criminal Code:
Section 141: Aiding persons to escape from lawful custody.
Section 142: Escaping from lawful custody.
Section 143: a person responsible for keeping someone in from lawful custody permitting escape from lawful custody.
Section 205A: Contravening order about information necessary to access information stored electronically.
Section 340: assaults committed with intent to commit a crime, or as part of an unlawful conspiracy in relation to any manufacture, trade, business, or occupation or committed against a police officer, a person performing a legal duty, a person aged over 60, or a person who relies on a guide, hearing or assistance dog, wheelchair or other remedial device.
The indictable offences that must be dealt with summarily unless the defence elects for a jury trial are listed at Section 552B(1) of the Code.
The offences listed include the commission, counselling or procuring, attempt or becoming an accessory after the fact of any of the following offences under the Criminal Code:
A sexual offence without a circumstance of aggravation for which the defendant has pleaded guilty, the complainant is at least 14 years of age and the maximum sentence is more than three years.
Section 339: assault occasioning bodily harm which is not committed in company, without the use of a dangerous or offensive weapon or instrument and not during the term of a community service order.
An offence involving an assault without a circumstance of aggravation and which is not of a sexual nature, and for which the maximum penalty is more than 3 years but not more than 7 years.
Section 60A: Participants in criminal organisation being knowingly present in public places.
Section 60B: Participants in criminal organisation entering prescribed places and attending prescribed events.
Section 76: Recruiting a person to become participant in criminal organisation.
Section 77B: Habitually consorting with recognised offenders.
Section: 316A: Unlawful drink spiking.
Section 328A: Dangerous operation of a vehicle (with a circumstance of aggravation at Section 328A(2)).
359E Punishment of unlawful stalking if the maximum term of imprisonment for which the defendant is liable is not more than 5 years.
An offence against chapter 14 (Corrupt and improper practices at elections), division 2 (Legislative Assembly elections and referendums), if the maximum term of imprisonment for which the defendant is liable is more than 3 years.
An offence against chapter 22A (Prostitution), if the maximum term of imprisonment for which the defendant is liable is more than 3 years.
An offence against chapter 42A (Secret Commissions).
Section 552BA(4) of the Code provides that ‘relevant offences’ must be heard and dealt with summarily.
Relevant offences are defined as indictable offences which either:
The list of excluded offences contained in the table of Section 552BB includes the following offences:
Section 462: Endangering particular property by fire.
Section 463: Setting fire to crops and growing plants
Section 467: Endangering the safe use of vehicles and related transport infrastructure
Section 469A: Sabotage and threatening sabotage
Section 470: Attempts to destroy property by explosives
The list of excluded offences contained in the table of Section 552BB also includes the following indictable offences if committed in the following circumstances:
Section 398: stealing – if:
the amount stolen, yield or detriment is equal or more than $30,000, and the offender does not plead guilty; or
the thing stolen was a firearm for use in another indictable offence.
Section 399: fraudulent concealment of documents – if the offence is not committed in relation to a document recording title to property, or the yield or detriment is equal or more than $30,000 and the offender does not plead guilty.
Section 403: Severing with intent to steal – if the amount in question is equal or more than $30,000 and the offender does not plead guilty.
Section 406: Bringing stolen goods into Queensland – if the amount in question is equal or more than $30,000 and the offender does not plead guilty.
Section 408A: Unlawful use or possession of motor vehicles, aircraft or vessels – if the value of the motor vehicle, aircraft or vessel is equal or more than $30,000 and the offender does not plead guilty, or if the offender is liable for at least 10 years imprisonment (ie if they used the vehicle for the commission of an indictable offence or intended to or did wilfully destroy, damage, remove or otherwise interfere with the mechanism (or part thereof) or other part of or equipment attached to the motor vehicle, aircraft or vessel).
Section 408C: Fraud – if the amount in question is at least $30,000 and the offender does not plead guilty.
Section 408E Computer hacking and misuse – If the offender causes a detriment or damage or obtains a benefit for any person to the value of more than $5,000, or intends to commit an indictable offence, and the offender does not plead guilty.
Chapter 38 Stealing with violence or extortion by threats – excluding sections 413 (Assault with intent to steal) and 414 (Demanding property with menaces with intent to steal).
Section 419 Burglary – if:
the offender uses or threatens to use actual violence;
the offender is or pretends to be armed;
the offender damages or threatens to damage any property by at least $30,000 in value and the offender does not plead guilty; or
the offender then commits an indictable offence in the dwelling.
Section 421 Entering or being in premises and committing indictable offences – if:
the offender commits an indictable offence in the premises which must proceed on indictment; or
the offender enters by means of a break and the value of damage caused by the break is of at least $30,000.
Section 427 Unlawful entry of vehicle for committing indictable offence – if the offence is committed in the night or the offender uses or threatens violence, pretends to be armed, is in company or damages or threatens to damage any property.
Section 430 Fraudulent falsification of records – if the amount in question is equal or more than $30,000 and the offender does not plead guilty.
Section 433 Receiving tainted property – if the amount in question is equal or more than $30,000 and the offender does not plead guilty.
Section 435 Taking reward for recovery of property obtained by way of indictable offences – if the amount in question is equal or more than $30,000 and the offender does not plead guilty.
Chapter 44 Offences analogous to stealing related to animals – if the value of the animals is at least $30,000 and the offender does not plead guilty.
Section 468 Injuring animals– If the animal in question is stock, the value of the animals is at least $30,000 and the offender does not plead guilty.
Section 469 Wilful damage – if any of the following apply:
property is damaged or destroyed by explosion;
the property in question is—(i) a bank or wall of the sea or inland water; or(ii) a work relating to a port or inland water; or
if the property in question is any part of a railway, or any work connected with a railway
If the property in question is an aircraft or anything whatever either directly or indirectly connected with the guidance control or operation of an aircraft
If the property in question is a vessel, a light, beacon, buoy, mark or signal used for navigation or for the guidance of sailors, a bank, work or wall of the sea or inland water
If the property in question is a manufacturing or agricultural machine or another thing used, or intended for use, for manufacture or for performing a process connected with the preparation of agricultural produce and is destroyed or rendered useless
If the property in question is a well or bore for water or the dam, bank, wall, or floodgate of a millpond or pool.
Section 471 Damaging mines – if the value of the damage is at least $30,000 and the offender does not plead guilty.
Section 472 Interfering with marine signals – if the value of any damage or detriment is at least $30,000 and the offender does not plead guilty.
Section 473 Interfering with navigation works – if the value of any damage or detriment is at least $30,000 and the offender does not plead guilty.
Section 474 Communicating infectious diseases to animals – if the value of any damage or detriment is at least $30,000 and the offender does not plead guilty.
Section 488 Forgery and uttering – if the document is a valuable security, insurance policy, testamentary instrument (whether the testator is living or dead) or registration document or is evidence of an interest in land, or a power of attorney, contract or document kept or issued by lawful authority OR the value of any yield or detriment is at least $30,000 and the offender does not plead guilty.
Section 498 Falsifying warrants for money payable under public authority – if the value of any yield or detriment is at least $30,000 and the offender does not plead guilty.
514 Personation in general – If the representation is that the offender is a person entitled by will or operation of law to any specific property, and the person commits the offence with intent to obtain such property or possession thereof or the value of any yield or detriment is at least $30,000 and the offender does not plead guilty.
There a number of indictable offences in Queensland that can or must be dealt with summarily in the Magistrates Court. Generally speaking, an indictable offence must be dealt with summarily if it carries a maximum sentence of three years or less, or it is an offence under part 6 of the Code (excluding Chapter 42A) for which the monetary value is less than $30,000 or the offender pleads guilty, and the offender is liable for a maximum period of imprisonment which is less than 14 years imprisonment.
When considering whether an indictable offence could or should must be dealt with summarily, one should consider the following:
As the Magistrates Court deals with offences more quickly and can normally only sentence an offender for up to three years imprisonment, there are potential advantages for a defendant in having a matter dealt with summarily. However, such a course is subject to section 552D, which requires the Magistrate to abstain from exercising its jurisdiction if the offender may not be adequately sentenced or if there are exceptional circumstances.
Author adminPosted on Categories Industrial relations, Legal profession, litigation, Professional disciplineLeave a comment on Law firm partner sued for sexual harassment
The legal profession gets rocked by a #metoo claim.
The partner of the firm has at a minimum acted unprofessionally in this case and the implications for his career could be serious.
Author adminPosted on Categories Criminal lawLeave a comment on Was Cardinal George Pell wrongly convicted?
In December of last year, controversial Catholic Church Cardinal George Pell was convicted of one count of sexual penetration of a child under the age of 16 and four counts of an indecent act with a child under the age of 16 over allegations of abusing choirboys at Melbourne’s St Patrick’s Cathedral in the 1990s. This followed a previous trial that resulted in a hung jury.
The complainant said he and another choirboy left the liturgical procession at the end of one Sunday mass and went fossicking in the off-limits sacristy where they started swilling altar wine. Pell allegedly arrived unaccompanied, castigated them, and then, while fully robed in his copious liturgical vestments, proceeded to commit three sexual acts, including oral penetration of the complainant. The complainant said the sacristy door was wide open and altar servers were passing along the corridor. The complainant said he and the other boy then returned to choir practice.
Prior to both trials, Pell had been subject of substantial adverse pre-trial publicity, including a Royal Commission into child sex abuse, a book by Louise Milligan described as a hatchet job and an abusive song by Tim Minchin.
At common law, a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law (Woolmington v DPP [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).
“Here is why I don’t believe this gothic story — or not enough to think this conviction reasonable.
One of the boys, now dead, denied he’d been abused.
The other, whose identity and testimony remain secret, didn’t speak of it for many years.
The attack is meant to have happened straight after Mass, when Pell is known to have traditionally spoken to worshippers leaving Mass.
It allegedly happened in the sacristy, normally a very busy room, where Pell would have known people were almost certain to walk in.
The boys had allegedly slipped away from the procession after Mass to break into the sacristy, but none of the other choristers who gave evidence said they’d noticed them doing so, or noticed them rejoining the choir later.
Pell was normally followed everywhere during and after Mass by the master of ceremonies, Monsignor Charles Portelli, who testified that he escorted the then Archbishop from the moment he arrived at the cathedral, until the moment he left. He declared the assault impossible. Not a single witness from what was a busy cathedral at the time of the alleged abuse noticed a thing during the estimated 10 minutes of this alleged attack.”
“The second boy was once asked by his mother if he had ever been abused by anybody and he said he had not…
Anyone familiar with the conduct of a solemn cathedral mass with full choir would find it most unlikely that a bishop would, without grave reason, leave a recessional procession and retreat to the sacristy unaccompanied.
Witnesses familiar with liturgical vestments were called. They gave compelling evidence it was impossible to produce an erect penis through a seamless alb. An alb is a long robe, worn under a heavier chasuble. It is secured and set in place by a cincture, which is like a tightly drawn belt. An alb cannot be unbuttoned or unzipped, the only openings being small slits on the side to allow access to trouser pockets.
The complainant’s initial claim to police was that Pell had parted his vestments, but an alb cannot be parted; it is like a seamless dress.
Later, the complainant said Pell moved the vestments to the side. An alb secured with a cincture cannot be moved to the side. The police never inspected the vestments during their investigations, nor did the prosecution show that the vestments could be parted or moved to the side as the complainant had alleged. The proposition that the offences charged were committed immediately after mass by a fully robed archbishop in the sacristy with an open door and in full view from the corridor seemed incredible to my mind.
I was very surprised by the verdict. In fact, I was devastated. My only conclusion is the jury must have disregarded many of the criticisms so tellingly made by Richter of the complainant’s evidence…
Pell has been in the public spotlight for a very long time. There are some who would convict him of all manner of things in the court of public opinion, no matter what the evidence. Others would never convict him of anything, holding him in the highest regard. The criminal justice system is intended to withstand these preconceptions. The system is under serious strain, when it comes to Pell.”
“The main institutions involved here are the media and the police. The media must report cases fairly, abide by the letter and spirit of the law, and not barrack for either side. The police present evidence impartially, working for justice, not conviction. Media and police never combine to form a pro-conviction cheer squad.
This is where the Pell case has gone terribly wrong. Impartial judge and jury accepted, parts of the media — notably the ABC and former Fairfax journalists — have spent years attempting to ensure Pell is the most odious figure in Australia. They seemed to want him in the dock as an ogre, not a defendant.
Worse, elements of Victoria Police, including Chief Commissioner Graham Ashton, co-operated in this. Ashton’s repeated announcements of impending charges and references to “victims” rather than “alleged victims” were matched only by the coincidences in timing between police pronouncements and favoured media exclusives…
So what we have witnessed is a combined effort by much of the media, including the public broadcaster, and elements of Victoria’s law enforcement agency, to blacken the name of someone before he went to trial…
This is not a story about whether a jury got it right or wrong, or about whether justice is seen to prevail. It’s a story about whether a jury was ever given a fair chance to make a decision, and whether our justice system can be heard above a media mob.”
“There have been two trials of Cardinal George Pell — in the court of justice to decide if he was guilty of sexual abuse of children, and in the court of public opinion over nearly two decades that saw him accused of indifference, deception and ultimately evil compliance in the monumental sins of the Catholic Church.
The tests in these trials are different. The test in the first trial was whether the evidence showed Pell guilty “beyond reasonable doubt” as a sexual predator who abused his authority to brutally exploit two choirboys. There is no test in the second trial — no judge or jury — just the hardening of opinion towards Pell and then his demonisation as the nation’s senior Catholic during the long and climactic revelations of unforgivable sexual abuse within the church.
The law requires these trials to be separate. Indeed, justice depends upon it. Yet how realistic is this?…
Pell cannot escape responsibility for the failures of the church but the sustained visceral hostility towards Pell transcends institutional accountability. The vile hatred towards him is worse than displayed towards a serial killer. Veteran lawyers said privately they had never seen anything like it in their careers. What does this tell us not just about Pell but about ourselves? The Pell story goes beyond the institutional and cultural failure of the Catholic Church. It is far bigger, more complicated and dangerous…
Pell arrived suddenly, censured them and then, with the sacristy door open, people passing in the corridor, and still in his heavy mass vestments including the alb, a long secured vestment without front buttons or zipper, proceeded to sexually assault the boys, whom he did not know, in an extremely brief period of time. There was no witness to support the complainant. The former choirboy’s evidence was given in secret. Brennan called the entire scenario “incredible”.”
“For many it is clear that Pell’s jailing is a watershed moment that has delivered some kind of catharsis, some sense that the system finally worked — perhaps even some sense of revenge. For many others — including the dead — it is far too little, far too late.
Certainly it has been clear from many responses, by survivors and commentators alike, that they see Pell as being punished for many other crimes on top of the one confirmed in the Victorian County Court.
But by conflating one incident at St Patrick’s Cathedral in the mid-1990s with the myriad atrocities committed by Catholic clergymen throughout the decades — including Pell’s own sins of omission — the sense of justice may be short lived.
As satisfying as it may be for victims of church abuse to see Pell punished, it is vital that he is punished for the right thing.”
If the above reports are true (and there are no important facts which would have supported the convictions), it seems likely that it was not open to the jury to be satisfied of Pell’s guilt beyond reasonable doubt and he should have his conviction overturned on appeal. It is unsurprising that legal experts assess Pell’s chances of having his conviction overturned on appeal as quite good.
Victoria (unlike NSW and QLD) does now allow for judge only trials. Serious consideration should be given to changing this, as the Pell case demonstrates the need for defendants who have received such awful pre-trial publicity to have their case tried in a way where such adverse publicity will not affect the result of the trial.
And given that this is the case, a successful appeal should probably lead to a verdict of not guilty being entered instead of another retrial.
Author adminPosted on Categories Criminal law, Legal professionLeave a comment on Lawyer X confirmed to be Nicola Gobbo
Nicola Gobbo, the barrister at the centre of the scandal that sparked the Victorian Royal Commission into the Management of Police Informants has been publicly identified, after orders made to conceal her identity were lifted today.
Ms Gobbo’s history:
“A former legal counsel to some of Australia’s most notorious criminals, Ms Gobbo is understood to have helped Victoria Police in at least 386 cases involving Melbourne’s underworld during her time acting as a paid police informant, following her initial recruitment in 1995.
The information she provided helped lead to the arrest and conviction of many, including some of her clients such as gangland boss Tony Mokbel, who in 2012 was sentenced to 30 years’ for his head role in the infamous multimillion-dollar drug syndicate known as ‘The Company’.
Following the December announcement that there would be a Royal Commission into the Management of Police Informants, largely centred around a female barrister who the public now knows to be Ms Gobbo, Victoria’s Director of Public Prosecutions, Kerri Judd QC, wrote to 20 criminals — including Mokbel — to tell them their convictions may have been affected as a result of Ms Gobbo’s role in acting as a police informant.
“EF [the barrister’s pseudonym], while purporting to act as counsel for the convicted persons, provided information to Victoria Police that had the potential to undermine the convicted persons’ defences to criminal charges of which they were later convicted”, the December High Court judgment noted.
“EF’s actions in purporting to act as counsel for the Convicted Persons while covertly informing against them were fundamental and appalling breaches of EF’s obligations as counsel to her clients and of EF’s duties to the court.
“Likewise, Victoria Police were guilty of reprehensible conduct in knowingly encouraging EF to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will.
“As a result, the prosecution of each convicted person was corrupted in a manner which debased fundamental premises of the criminal justice system.”
In first announcing the royal commission, the Andrews government issued a statement, saying that the integrity of the criminal justice system is paramount, and all people charged with crimes are entitled to a fair trial, no matter who they are.
The same statement acknowledged that while Victoria Police assured the state government that “its practices have changed since the barrister’s recruitment as an informant”, the Victorian community “has a right to further independent assurance that these past practices have been stamped out, as well as an understanding of what happened in this instance”.
“The royal commission will provide that assurance,” the state government said.”
Author adminPosted on Categories Criminal lawLeave a comment on Pell conviction suppression order lifted
Cardinal George Pell, Australia’s most senior Catholic and formerly the third highest ranking official in the Vatican, was charged with historical child sex offences in June 2017.
In December of last year he 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.
Due to a trial for further sex offences, a suppression order was made preventing the media in Australia from reporting on the matter.
That suppression order has now been lifted due to the dropping of charges against him related to the alleged indecent assault of boys at the Eureka swimming pool in Ballarat in the 1970s:
“Cardinal George Pell has become the world’s most senior Catholic official to be convicted of child sexual abuse, after a jury found him guilty of abusing two choirboys at a Melbourne cathedral just months into his appointment as Archbishop in 1996…
Some details of the allegations against him were made public in a committal hearing in March, 2018, but the criminal cases against him have proceeded in secret, due to court-ordered suppression orders.
Pell was tried twice over allegations of abusing choirboys at Melbourne’s St Patrick’s Cathedral in the 1990s. The first trial in August resulted in a hung jury. At a second trial in December he 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.
The December jury took three-and-a half days to find Pell guilty of orally raping a 13-year-old choirboy and molesting his friend after Sunday Solemn Mass at St Patrick’s Cathedral in 1996.”
Father Frank Brennan is not sure the jury got it right. Unsurprisingly, an appeal against conviction has been filed.
Author adminPosted on Categories DefamationLeave a comment on Law of Defamation in Australia
This article outlines the elements of the tort of Defamation in Australia and the various defences available at law.
Previously, different Australian states had different Defamation laws, which often resulted in plaintiffs ‘forum-shopping’ by commencing their claim in the jurisdiction in which the law of defamation was most favourable to their case.
Now in Australia there are uniform Defamation Acts which have been designed to overcome this problem.
Section 6 of the Defamation Act 2005 provides that “This Act does not affect the operation of the general law in relation to the tort of defamation except to the extent that this Act provides otherwise (whether expressly or by necessary implication)”. Therefore, the common law still applies to the extent that it is not extinguished expressly or by necessary implication by legislation.
Section 8 of the Defamation Act 2005 provides that:
“A person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the matter.”
In order to establish a prima facie claim for defamation, a plaintiff must prove that there was a defamatory matter, that they were identified in defamatory matter and that the defamatory matter was published. These three elements will now be discussed.
MEANING OF DEFAMATORY
A plaintiff is said to have been defamed if a publication causes the reasonable person to think less of them: Reader’s Digest Services Pty Ltd v Lamb [1982] HCA 4.
In Random House Australia Pty Ltd v Abbott [1999] FCA 1538, Beaumont J stated:
“The test for what may be defamatory at common law is well established. A publication, without justification or lawful excuse, exposing a person to hatred, contempt or ridicule, calculated to injure that person’s reputation, is a libel. But this is not to be taken as an exhaustive statement. A person may be defamed by an imputation of a disability in the performance of the functions of his or her office, although the imputation does not expose him or her to hatred, contempt or ridicule. A false statement about a person to his or her discredit is defamatory. Thus to attribute to a person a want of capacity as the holder of an office will be defamatory. The mere imputation of a lack of ability to discharge the duties of that office is sufficient. It is not necessary that there should be an imputation of immoral or disgraceful conduct (per Brennan J in John Fairfax v Punch [1980] FCA 100; (1980) 31 ALR 624 at 632 – 633 citing Lord Herschell in Alexander v Jenkins [1892] 1 QB 797 at 800). Thus, the substantive legal issue here may be expressed as whether the material complained of was defamatory of the plaintiffs in that it was to his or her “discredit … [tended] to lower him [or her] in the estimation of others … to expose him [or her] to hatred, contempt or ridicule, or to injure his [or her] reputation in his [or her] trade or profession” (see Chakravarti v Advertiser Newspapers (1998) 193 CLR 519 per Gaudron and Gummow JJ at 545 quoting Gatley on Libel and Slander, 8th ed. (1981), par 31)”
To be defamatory, the matter must injure the plaintiff’s reputation by lowering them in the estimation of others, exposing them to hatred, contempt or ridicule or causing them to be shunned or avoided.
Defamatory meaning can arise from the natural and ordinary meaning or true innuendo of the matter. True innuendo refers to matter which is defamatory as a result of an audience’s knowledge of certain extrinsic facts.
The case law shows what is and is not defamatory.
In John Fairfax & Sons Ltd v Punch [1980] FCA 100, it was held that implying that the leader of a political party had lost the confidence of a significant number of its members was defamatory because it questioned their ability to lead the party and imputed incompetence.
However, in Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6, it was held that stating an airline was the target of a terrorist attack was not defamatory, as although it may damage the business of the airline, the statement did not disparage the airline.
In Byrne v Deane [1937] 2 All ER 204, a poem placed on the wall of a golf club implying that the plaintiff had reported illegal poker machines to the police was held by a majority of the Court not to be defamatory because reporting illegal activity would raise the plaintiff’s estimation in the eyes of society in general.
In Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449, it was held that a newspaper article describing the plaintiff as ‘fat’ and ‘slow’ was held not to disparage him because no blameworthiness was implied.
On the other hand, in Berkoff v Burchill [1996] 4 All ER 1008, a majority of the English Court of appeal held that describing the plaintiff was ‘hideously ugly’ was defamatory because it was capable of making him an object of ridicule.
In Ettinghausen v Consolidated Press Ltd (1991) 23 NSWLR 443, a photograph of the plaintiff in the shower capable of being interpreted as showing his genitals was defamatory because it was capable of subjecting him to a non-trivial degree of ridicule.
Describing someone as insane has been held to be defamatory because it would cause the person to be shunned: Morgan v Lingen (1863) 8 LT 800. For the same reason, an imputation that a person has Hepatitis B is also defamatory: Henry v TVW Enterprises Ltd (1990) 3 WAR 474.
Whether matter is defamatory is a question of law to be determined by reference to the hypothetical referee or ‘ordinary reasonable reader’, who “is a person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal’: Farquar v Bottom [1980] 2 NSWLR 380. See also Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158.
Whether the defendant intended to defame the plaintiff is immaterial, the question is whether the ordinary right-minded remember of society would consider the matter to be defamatory. A relevant consideration is what are the community standards of the time that the matter was published. As Kirby said in John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 201 ALR 77:
“In most circumstances, it ought not to be the case in Australia that to publish a statement that one adult was involved in consenting, private homosexual activity with another adult involves a defamatory imputation. But whether it does or does not harm a person’s reputation to publish such an imputation is related to time, personality and circumstance. Once, it was highly defamatory in many countries to allege, or suggest, that a person was a communist[110]. Now, in most circumstances, it would be a matter of complete indifference. The day may come when, to accuse an adult of consenting homosexual activity is likewise generally a matter of indifference. However, it would ignore the reality of contemporary Australian society to say that that day has arrived for all purposes and all people[111]. At least for people who treat their sexuality as private or secret, or people who have presented themselves as having a different sexual orientation, such an imputation could, depending on the circumstances, still sometimes be defamatory.”
IDENTIFICATION
A plaintiff must establish that the defamatory matter is about them: Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6.
If the plaintiff is named in the defamatory matter, they will have been identified. On the other hand, a person may be impliedly identified. In Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331, a newspaper of the plaintiff’s husband with another women accompanied by a statement that they were engaged to be married was held to be referrable to the plaintiff as those who knew her would think she was her husband’s mistress.
In Lee v Wilson (1934) 51 CLR 276, the High Court held that if defamatory matter is capable of referring to more than one person, then all who may be considered to have been referred may bring an action, even if the defendant intended to refer to someone else.
However, if the defamatory imputation is related to a group of individuals or a class, the plaintiff must show that the matter is reasonably referrable to them: Godhard v James Inglis & Co Ltd (1904) 2 CLR 78. In Knupher v London Express Newspaper Ltd [1944] it was stated by Lord Atkin that libel concerning a large of indeterminate number of people would be difficult to sue on because “the habit of making unfounded generalisations is ingrained in ill-educated or vulgar minds, or the words are occasionally intended to be facetious exaggerations”.
See also Mann v Medicine Group Pty Ltd (1991) 105 FLR 419, in which allegedly defamatory matter in respect of bulk billing doctors was held to not identify the plaintiff.
PUBLICATION
Publication in defamation law refers to communication of the defamatory material to persons other than the plaintiff. If the defamatory material is not seen, heard or read by a person other than the plaintiff there is no action in defamation.
There are also exceptions. Unauthorised interceptions of communications do not amount to publication: Huth v Huth [1915] 3 KB 32. Neither does publication by one spouse to another: Wennhak v Morgan (1888) 20 QBD 635.
Also, the person to who the defamatory material was published must comprehend it to be defamatory. Therefore. no publication will have occurred if the person(s) receiving the defamatory material have no knowledge of special facts which would allow for knowledge of its defamatory meaning: Cross v Denley (1952) 52 SR (NSW) 112.
Every time the defamatory material is repeated or again communicated it will have been republished. Each republication results in another cause of action: Truth (NZ) Ltd v Holloway [1960] 1 WLR 997 at 1002.
A defendant bears the onus of proof of establishing any defences available under the law of defamation. If established, the defence will defeat the plaintiff’s claim to the extent that the defence applies.
TRUTH
Truth is a defence at common law, however in order for such a defence to succeed, the defamatory matter must be true in substance and effect: Howden v ‘Truth’ & ‘Sportsman’ Ltd 1937 58 CLR 416. Therefore, the defendant must prove that the meaning of the defamatory imputations are true and accurate in all except the most minor details, they must also prove the correctness of any inference that a reasonable person may draw from the matter: Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1.
ABSOLUTE PRIVILEGE
Statements made in parliament cannot be the basis of any claim for defamation: Stockdale v Hansard (1839) 9 Ad & E1 at 114. This defence extends to documents produced in parliamentary debates (Holdings v Jennings (1979) VR 289) and speeches and statements by witnesses before a committee of parliament: Griffin v Donnelly 1881 6 QBD 307.
The common law also confers absolute privilege in judicial and quasi-judicial proceedings: Mann v O’Neill (1997) 191 CLR 204, including professional bodies such as the Solicitor’s Board: Hercules v Phease [1994] 2 VR 411.
Communications which are also protected by absolute privilege include the following:
QUALIFIED PRIVILEGE
The common law also confers qualified privilege in situations where the relationship between the parties is that the publisher has an interest such is paramount to the reputation of the plaintiff. Such situations include where there is a duty to communicate believed to be true to a person who has an interest in receiving the information, an interest of the speaker to a person honestly believed to have a duty to protect that interest, and a common interest in and reciprocal duty in respect of the subject matter of the communication between speaker and recipient.
The defence will be lost if the plaintiff proves malice. Malice is established if the defendant has used the occasion to publish the defamatory matter for a purpose other than that for which the privilege was given, or the defendant did not have an honest belief in the truth of what was published: Barbaro v Amalgamated Television Services Pty Ltd (1885) 1 NSWLR 30 at 50-4.
Qualified privilege extends to the publication of specified reports if they are fair and accurate. The defence is afforded to reports of judicial proceedings, reports of proceedings in parliament and reports of other bodies where there is public interest.
The implied right to political communication also extends the defence of qualified privilege. In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, the High Court extended qualified privilege to statements made in discussion of political and government matters. For the defence to be successful, the defamatory matter must be about government or political matters, the publication must be reasonable in all the circumstances and the defendant must not be actuated by malice.
HONEST OPINION
Another common law defence is that of honest opinion. This may be established if:
The defence only applies to expression of opinion, not fact: Illawarra Newspapers v Butler [1981] 2 NSWLR 502, and the relevant test is whether a reasonable person would understand the statement to be the defendant’s opinion: Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245.
INNOCENT DISSEMINATION
A publisher can also rely on the defence of innocent dissemination. His defence is available if a publisher can show they were not aware of the defamatory matter and published it through no negligence of their own.
TRIVIALITY
At common law, the defence of triviality meant that if spoken words (slander) are such in the circumstances that the defendant is unlikely to suffer harm, the claim must fail.
CONSENT
If a plaintiff consents to the publication, this acts as a bar to a defamation claim: Cookson v Harewood [1932] 2 KB 478.
Section 24(1) of the Defamation Act 2005 provides that:
“A defence under this Division is additional to any other defence or exclusion of liability available to the defendant apart from this Act (including under the general law) and does not of itself vitiate, limit or abrogate any other defence or exclusion of liability.”
TRUTH
Section 25 of the Defamation Act 2005 provides that:
“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.”
CONTEXTUAL TRUTH
Section 26 of the Defamation Act 2005 provides that:
“26 Defence of contextual truth
It is a defence to the publication of defamatory matter if the defendant proves that:
(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (“contextual imputations”) that are substantially true, and
(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.”
ABSOLUTE PRIVILEGE
Section 27(1) of the Defamation Act 2005 provides that:
“(1) It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege.”
Section 27(2) of the Defamation Act 2005 says that court proceedings and parliamentary proceedings are occasions of absolute privilege.
PUBLIC DOCUMENTS AND PROCEEDINGS OF PUBLIC CONCERN
Section 28 of the Defamation Act 2005 provides that:
“28 Defence for publication of public documents
(1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was contained in:
(a) a public document or a fair copy of a public document, or
(b) a fair summary of, or a fair extract from, a public document.”
Section 28(4) of the Defamation Act 2005 says that “public document” means:
“(a) any report or paper published by a parliamentary body, or a record of votes, debates or other proceedings relating to a parliamentary body published by or under the authority of the body or any law, or
(b) any judgment, order or other determination of a court or arbitral tribunal of any country in civil proceedings and including:
(i) any record of the court or tribunal relating to the judgment, order or determination or to its enforcement or satisfaction, and
(ii) any report of the court or tribunal about its judgment, order or determination and the reasons for its judgment, order or determination, or
(c) any report or other document that under the law of any country:
(i) is authorised to be published, or
(ii) is required to be presented or submitted to, tabled in, or laid before, a parliamentary body, or
(d) any document issued by the government (including a local government) of a country, or by an officer, employee or agency of the government, for the information of the public, or
(e) any record or other document open to inspection by the public that is kept:
(i) by an Australian jurisdiction, or
(ii) by a statutory authority of an Australian jurisdiction, or
(iii) by an Australian court, or
(iv) under legislation of an Australian jurisdiction, or
(f) any other document issued, kept or published by a person, body or organisation of another Australian jurisdiction that is treated in that jurisdiction as a public document under a provision of a law of the jurisdiction corresponding to this section, or
(g) any document of a kind specified in Schedule 2.”
Section 29 of the Defamation Act 2005 provides that:
““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 the advancement of education.”
Section 28(4) of the Defamation Act 2005 says that “proceedings of public concern” means any proceedings in public of a parliamentary body, any local government body in Australia, international body of governments, international conference of governments, International Court of Justice, or any court, judicial or arbitral tribunal or inquiry, learned society, sport or recreational association, trade association or public meeting of shareholders of a public company.
QUALIFIED PRIVILEGE
Section 30 of the Defamation Act 2005 provides that:
“30 Defence of qualified privilege for provision of certain information
(1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the “recipient”) if the defendant proves that:
(a) the recipient has an interest or apparent interest in having information on some subject, and
(b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and
(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.
(2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.
(3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account:
(a) the extent to which the matter published is of public interest, and
(b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and
(c) the seriousness of any defamatory imputation carried by the matter published, and
(d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and(e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and
(f) the nature of the business environment in which the defendant operates, and
(g) the sources of the information in the matter published and the integrity of those sources, and
(h) whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and
(i) any other steps taken to verify the information in the matter published, and
(j) any other circumstances that the court considers relevant.
(4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.”
HONEST OPINION
Section 31(1)-(3) of the Defamation Act 2005 provides that it is a defence to the publication of defamatory matter if the defendant proves that:
(a) the matter was an expression of opinion of the defendant, an employee or agent of the defendant or another person rather than a statement of fact, and
(b) the opinion related to a matter of public interest, and
(c) the opinion is based on proper material.
Section 31(4) of the Defamation Act 2005 says that a defence under this section is only defeated if the opinion was not honestly held by the defendant at the time the defamatory matter was published, or if the defendant did not believe the opinion was honestly held by the person who expressed it.
Section 31(5) of the Defamation Act 2005 says that “proper material” means material that:
(a) is substantially true, or
(b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law), or
(c) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.
In addition, Section 31(5) of the Defamation Act 2005 provides that “An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material”.
INNOCENT DISSEMINATION
Section 32 of the Defamation Act 2005 provides that:
“(1) It is a defence to the publication of defamatory matter if the defendant proves that:
“(a) the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor, and
(b) the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory, and
(c) the defendant’s lack of knowledge was not due to any negligence on the part of the defendant.”
TRIVIALITY
Section 33 of the Defamation Act 2005 provides that “It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm”.
Other statutes which are not concerned with the law of defamation can in some cases offer a potential defence to a defamation claim. A few examples include the following.
PARLIAMENTARY PRIVILEGES ACT
Section 10 of the Parliamentary Privileges Act 1987 (Cth) provides that:
“It is a defence to an action for defamation that the defamatory matter was published by the defendant without any adoption by the defendant of the substance of the matter, and the defamatory matter was contained in a fair and accurate report of proceedings at a meeting of a House or a committee.”
Section 16(1) of the Parliamentary Privileges Act enshrines article 9 of the English Bill of Rights, which in turn provides “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”. Meanwhile, section 16(3) of the Parliamentary Privileges Act provides that:
“In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:
(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;
(b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or
(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.”
Section 197A(2) of the Child Protection Act (Qld) provides that a person acting honestly and reasonably is not liable, civilly or criminally for giving a notification or information concerning a child to the Department of Child Safety or the police. Section 197A(4) of the Child Protection Act 1999 further provides that “in a proceeding for defamation, the person has a defence of absolute privilege for publishing the information”.
Section 487(2) of the Legal Profession Act (Qld) provides that a person is not liable, civilly (including in an action for defamation), criminally or under an administrative process for making a complaint, or otherwise giving information to the commissioner, the law society or the bar association relating to the conduct of a lawyer, law practice employee or unlawful operator.
The common law elements of the tort of defamation remain unaffected by statute, save for the abolition of the distinction between libel and slander. Therefore, a plaintiff must still prove there was defamatory matter about which they were identified and which was published to persons other than themselves. The common law defences also remain in law. The state Defamation Acts do supplement the defences at common law, and in doing so provide defendants with greater access to various defences.
Author adminPosted on Categories Legal profession, Professional fees1 Comment on Why lawyers are so expensive
Most complaints about lawyers concern how high their legal fees are. The professional fees charged by lawyers are notorious. When many clients earn an average of $20-40 per hour, it can seem unfair that your lawyers charge you hundreds of dollars per hour. However, as this article will demonstrate, there are reasons why legal fees are so high.
The main reason legal fees are so high is because it costs a lot of money to lawfully run and operate a law firm. Law firms incur all of the costs normally associated with operating an office (rent, wages, photocopy leases, furniture, power, stationary, paper, ink, tax etc). Inner city law firms pay massive amounts of rent and of course this cost gets passed onto you. Additionally, there are extra costs that law firms have to pay, mainly because the legal profession is so highly regulated.
In addition to normal business costs, lawyers also incur the following costs:
Professional indemnity insurance – this is liability insurance that all law practices are required to have. The costs of this depends on the size of the practice, but it is invariably expensive. This insurance is ultimately to the clients’ benefit, as it ensures that in cases where lawyers make mistakes, clients can be compensated for this.
Practicing certificate fees – lawyers also must pay thousands of dollars every year to the Law Society in order to renew their practicing certificates. The cost of a practicing certificate depends on the type of certificate which is granted. Included in the cost of a practicing certificate is a fidelity fund contribution fee of several hundred dollars in order to reimburse clients who are defrauded of money by a small number of unscrupulous members of the profession.
Continuing Professional Development – every year, lawyers are required to complete 10 points CPD as part of their continuing legal education. This typically costs thousands of dollars per practitioner as the seminars/courses that must be attended or undertaken are rather dear. Lawyers can be severely disciplined for not complying with the above requirements. Because a solicitor’s time is worth a lot of money, the monies spent on CPD are arguably small compared to the time expended on CPD which could be used on chargeable activities.
Trust account expenses – most firms hold at least one trust account, which is a bank account where monies which do not belong to the firm are deposited. Examples of trust monies include funds used for paying house deposits or outlays, and monies paid upfront by clients or third party payers on account of the firm’s professional fees. Firms have to pay for annual external audits of their trust accounts, which usually cost a minimum of $1,500. Firms also have to deposit 2/3 of the lowest balance held in their general trust account of the previous year into a separate account. In addition, firms can be audited by the Queensland Law Society, with the costs of such audit being passed onto them. And of course, banks impose monthly account keeping and other fees on solicitors’ trust accounts. Finally, the costs of keeping and maintaining records, including trust accounting software and the time spent by members of the firm also add up.
As a result, the financial costs of practicing law are enormous. There are however other reasons why legal fees are high.
Being a lawyer is one of the most demanding occupations. Lawyers have to negotiate competing demands placed on them by their clients, the courts, their employers, disciplinary bodies and their families. Some clients are difficult or have unrealistic expectations, and this ensures that they walk away unhappy with their lawyer, even when their lawyer has done an OK job.
The law is a competitive, adversarial and aggressive environment. Lawyers typically are required to work long hours, including sometimes on weekends. The consequences of mistakes and failures can be severe, including embarrassment, loss of reputation, being sued and even being disciplined.
As a result of these pressures, lawyers are one of the occupations whose members most prone to suffering depression.
For these reasons it is unsurprising that lawyers expect to be adequately compensated for the work they do.
The process of becoming a lawyer is a long and expensive one. The reality is that lawyers become qualified and eligible for practice at enormous personal and financial cost.
Lawyers have typically gone to university for many years in order to obtain a law degree and have then undertaken a diploma in legal practice in order to become a solicitor, or undergone training and mentoring to become a barrister. Before being able to practice law, they must be admitted to the legal profession. This is an expensive and time-consuming process which involves paying a large fee to the Legal Admissions Board, and filing an application and affidavit in the Supreme Court.
Even when they are admitted to the profession and commence legal practice, it takes years before a lawyer becomes sufficiently experienced and knowledgeable to practice without any supervision.
Put simply, lawyers are so expensive because the financial and other costs of practicing law are enormous. Many of these costs are due to the onerous regulation of the profession. The costs of legal practice inevitably must be passed onto the legal consumer, ie the client.
The good news is that clients can minimise their legal fees, as this article explains.
Author adminPosted on Categories Criminal law, Terrorism1 Comment on Bourke Street killer James Gargasoulas’ criminal history
It seems the jury that convicted Bourke Street killer James Gargasoulas, who was found guilty of 6 counts of murder and 27 counts of reckless conduct endangering life, got it right:
“Prosecutors said Gargasoulas had relevant criminal history of violent offending with nine relevant cases between 2009 and 2014 including five assault charges and four charges of reckless conduct endangering serious injury.
Court documents show he also offended at age 14 when he brought a stick of gelignite onto school property in Coober Pedy.”
Unsurprisingly, the Prosecution says Gargasoulas should be locked up indefinitely:
“In sentencing submissions presented to the Supreme Court today prosecutors claimed Gargasoulas’ crimes represented the worst examples of murder in Victoria…
“Like the unspeakable crimes committed by Martin Bryant at Port Arthur, Bourke Street, Melbourne, will never be the same again,” the submission stated.
In their submission, prosecutors said Justice Mark Weinberg should sentence Gargasoulas to life without parole based on the number of murders, the deaths of two children, his criminal history and the need for deterrence.”
The defence on the other hand is arguing that Gargasoulas’ mental illness resulted in reduced culpability:
“In submissions tendered to the court, the defence said specific deterrence has a limited role because of his condition and a prison term would weigh more on Gargasoulas than other prisoners because he is confined to his cell for 23 hours a day.
The defence also claimed Justice Weinberg should set a non-parole period and said Gargasoulas’ prior offending was more representative of an anti-social pathology fuelled by drug use than an inherently cruel, callous or barbarous.
“In relation to the nature of the offence, whilst deliberate, tragic and destructive, was borne of a deluded desire to ‘save the world’ underscored by the prisoner’s belief that he had lived many lives and if he, or others died, for that purpose, that rebirth was possible (the concept of reduplication of time),” the submission stated.”
Author adminPosted on Categories Criminal lawLeave a comment on Online dating rapist sentenced to 10 years
One suspects the sentence would have been more severe if he hadn’t been suffering from muscular dystrophy, although the guilty plea no doubt also helped:
Callum Joseph Haggerty was slumped in the dock, unable to look at the judge as she delivered her verdict in the Brisbane District court this morning saying that the acts were “despicable”.
On two occasions in 2015, victims were women that he had met online, where he used misleading information to lure them in, claiming he was a wealthy business owner.
He then used physical violence on multiple occasions to overpower the women, resulting in their respective rapes.
While on bail in 2016 for the previous offences he claimed a third victim.
The court heard that Haggerty used language such as, “It could be a lot worse for you” and “suck it up b**ch,” as a means to intimidate and humiliate his victims.
Prosecutor Matthew Hynes said in his submission that the rapist had an “appalling attitude towards women” and that his remarks were “cold blooded”.
Presumably once he is released in 8-10 years time, he will no longer be able to physically attack women.
Haggarty intends to appeal his sentence, although recent precedent would suggest his prospects are poor.
Author adminPosted on Categories Administrative lawLeave a comment on Australian Information Commissioner ordered by Court to remake review decision
The Information Commissioner’s failure to take into account relevant factors and exercise its discretion was an error of law.
The Australian Information Commissioner is the head of the Office of the Australian Information Commissioner, an independent Australian Government agency established under the Australian Information Commissioner Act 2010. One of its primary functions is oversight of the operation of the Freedom of Information Act 1982.
The Australian Human Rights Commission (AHRC) is a statutory body inter alia responsible for investigating alleged infringements of Australia’s anti-discrimination legislation.
The applicants were Jackson Powell and Calum Thwaites, two former students of the Queensland University of Technology who were the subject of complaints over some Facebook posts made by Aboriginal woman Cindy Prior, which ended up being dismissed by the Federal Circuit Court. Prior to those court proceedings, the AHRC controversially handled the complaints.
On 1 August 2016 the applicants through their senior counsel Tony Morris QC made a request to the AHRC for eight categories of documents relating to complaints it had handled. The initial response from the AHRC indicated that the officer authorised to determine the request intended to refuse access to documents under s.24AA of the Freedom of Information Act 1982 (Cth) in five of the nominated categories because the work involved in processing the request in its then form would substantially and unreasonably divert the resources of the AHRC from its other operations due to the scope of the request. This led to correspondence between the applicants’ senior counsel and the AHRC with a view to narrowing the scope of the applicants’ requests.
By 30 August 2016 the AHRC had released to the applicants documents within three of the eight categories requested. but refused access to the remaining categories of documents.
The relevant categories of documents subject to the refusal decision were:
(2) Documents recording each instance on which the AHRC has, in the case of a respondent other than an employee respondent [as defined in the applicants’ request] or a wayward respondent, [as defined in the applicants’ request] either:
given the respondent no opportunity to respond to a complaint (other than a decidedly unmeritorious complaint [as defined in the applicants’ request]); or
allowed to the respondent less than 21 days to respond to a complaint (other than a decidedly unmeritorious complaint).
(3) In respect of each instance mentioned in paragraph (2), documents explaining, recording, reflecting or discussing the reasons why the AHRC either (as the case may be):
gave the respondent no opportunity to respond to the complaint; or
allowed to the respondent less than 21 days to respond to the complaint.
(5) Documents recording each instance on which the AHRC has, in the case of a respondent other than an employee respondent or a wayward respondent, and in the case of a complaint other than a decidedly unmeritorious complaint:
1. failed either to inform the respondent, or to ensure that the respondent was informed by somebody other than the AHRC, prior to a conciliation conference in respect of a complaint against the respondent, of the complaint against the respondent; or
2. failed either to notify the respondent, or to ensure that the respondent was notified by somebody other than the AHRC, prior to a conciliation conference in respect of a complaint against the respondent, of the conciliation conference; or
3. first informed the respondent of a complaint against the respondent, or caused or allowed the respondent to be first so informed, less than 21 days prior to a conciliation conference in respect of the complaint against the respondent; or
4. first notified the respondent of a conciliation conference in respect of a complaint against the respondent, or caused or allowed the respondent to be first so notified, less than 21 days prior to the conciliation conference.
(6) In respect of each instance mentioned in paragraph (5), documents explaining, recording, reflecting or discussing the reasons why the AHRC either (as the case may be):
1. failed either to inform the respondent, or to ensure that the respondent was informed by somebody other than the AHRC, prior to a conciliation conference in respect of a complaint against the respondent, of the complaint against the respondent; or
2. failed either to notify the respondent, or to ensure that the respondent was notified by somebody other than the AHRC, prior to a conciliation conference in respect of a complaint against the respondent, of the conciliation conference; or
3. first informed the respondent of a complaint against the respondent, or caused or allowed the respondent to be first so informed, less than 21 days prior to a conciliation conference in respect of the complaint against the respondent; or
4. first notified the respondent of a conciliation conference in respect of a complaint against the respondent, or caused or allowed the respondent to be first so informed, less than 21 days prior to the conciliation conference.
(8) Documents illustrating, by comparison or contrast with the complaint lodged by Ms Prior with the AHRC on or about 27 May 2014, the parameters of what is meant by the expression, “complaints … that require a response to long and detailed allegations”.
On 30 August 2016 the applicants applied to the Office of the Australian Information Commissioner for a review of the AHRC’s decision to refuse access to the five categories of documents the subject of the AHRC’s refusal.
On 19 October 2016 the AHRC wrote to Ms Nicolaou, the delegate handling the review for the Australian Information Commissioner expressing its view that, even if the scope was narrowed, the applicants’ request would still substantially divert the resources of the AHRC. This view was not communicated to the applicants at the time.
On both 7 December and 9 December 2016, the applicants emailed Ms Nicolaou enquiring as to the progress of the review. In response, on 13 December 2016 Ms Nicolaou apologised for the delay and confirmed the matter had been allocated to Ms Raewyn Harlock, who was described as the “case review officer”.
On 5 January 2017 Ms Harlock emailed the applicants informing them that she had prepared a “preliminary view” after reviewing the application and the AHRC’s submissions.
On 17 January 2017 Ms Harlock wrote to the applicants informing them that, before providing her “preliminary view” to them, the Information Commissioner had asked the AHRC for further information about the electronic document management system and its reporting capacity. She also informed the applicants that once the information was in her possession the Information Commissioner would consider the position and advise the applicants accordingly.
On 18 January 2017 the AHRC responded to Ms Harlock’s queries regarding its electronic document management system. The applicants were not party to the communications between the AHRC and Ms Harlock, and copies of that correspondence were not at that time provided to them.
On 20 January 2017 Ms Harlock provided her “preliminary view” to the applicants. The view expressed was in the following terms:
“I have formed the preliminary view, as case officer in this matter, that the AHRC has no documents falling within the scope of your request. I therefore intend recommending to the Information Commissioner that the decision under review should be affirmed….
My preliminary view
Accordingly, it is my preliminary view that the AHRC does not hold the documents you seek and cannot produce them using a computer or other equipment ordinarily available for retrieving or collating stored information.
Next steps
In light of the above, can you please let me know in writing whether you wish to withdraw this application for Information Commissioner review by close of business on Friday 3 February 2017. If you wish to proceed with your application for Information Commissioner review, please provide submissions in response to the above by close of business on Friday 3 February 2017. If this matter proceeds to a decision by the Information Commissioner, a recommendation in line with this preliminary view will be provided to him.”
After submissions were made to Ms Harlock, further delay on her part, and significant correspondence exchanged between the parties, on 5 June 2017 a delegate for the Information Commissioner advised the applicants and the AHRC that a decision had been made to not continue to undertake the review before the Information Commissioner.
On 13 June 2017 the applicants sought a judicial review of this decision, seeking an order that the impugned decision be set aside and the Information Commissioner be directed to hear and determine the principal review that was not continued by the decision under review.
Section 24AA(1) of the Freedom of Information Act 1982 (Cth) provides that:
When does a practical refusal reason exist?
(1) For the purposes of section 24, a practical refusal reason exists in relation to a request for a document if either (or both) of the following applies:
(a) the work involved in processing the request:
(i) in the case of an agency–would substantially and unreasonably divert the resources of the agency from its other operations.
Section 54W(b) of the Freedom of Information Act 1982 (Cth) provides that:
Decision to review–discretion not to review
The Information Commissioner may decide not to undertake an IC review, or not to continue to undertake an IC review, if:
(b) the Information Commissioner is satisfied that the interests of the administration of this Act make it desirable that the IC reviewable decision be considered by the Tribunal.
Section 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) provides that:
5 Applications for review of decisions
(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:
(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed;
(c) that the person who purported to make the decision did not have jurisdiction to make the decision;
(d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;
(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;
(g) that the decision was induced or affected by fraud;
(h) that there was no evidence or other material to justify the making of the decision;
(j) that the decision was otherwise contrary to law.
(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:
(a) taking an irrelevant consideration into account in the exercise of a power;
(b) failing to take a relevant consideration into account in the exercise of a power;
(c) an exercise of a power for a purpose other than a purpose for which the power is conferred;
(d) an exercise of a discretionary power in bad faith;
(e) an exercise of a personal discretionary power at the direction or behest of another person;
(f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
(g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;
(h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and
(j) any other exercise of a power in a way that constitutes abuse of the power.
(3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless:
(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or
(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.
Brennan CJ in Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 stated that:
“when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised”.
The Hardiman principle has been held to require that the “usual course” when an administrative decision is subjected to judicial review “is for a tribunal to submit to such order as the court may make” and that “other than in exceptional cases, a tribunal should not take an active role in judicial review proceedings challenging its decisions”.
The Applicants submitted that the Information Commissioner’s active participation in the proceedings was “plainly and grossly inappropriate”. However, due to the “exceptional” nature of the case (involving allegations of an abuse of power predicated on ceasing discomfiture, criticism or embarrassment on the part of the Office of the Information Commissioner), the lack of a contradictor (the AHRC refused to oppose the application for judicial review), and the Information Commissioner having a legitimate interest and being the natural contradictor, Judge Jarrett held that he should consider parts of the Information Commissioner’s submissions.
Commenting on the Information Commissioner‘s reasons for its decision, Judge Jarrett observed that:
“the reasons of the Information Commissioner’s delegate demonstrate that the only matter of any significance considered by him was the finding that he was satisfied that the interests of the administration of the FOI Act made it desirable that the review then under consideration be considered by the AAT. There appears to have been no separate consideration of the power not to continue the review then before the Information Commissioner, nor any reasons why that course was taken…
“In the uncontroversial factual circumstances just described, clear reasons for the decision to no longer continue the review could be expected. But there were none. All the statement of reasons suggests is that the requisite satisfaction was reached for the purposes of s.54W(b) and as a consequence – “Consequently” – the decision was made not to undertake the review.”
Consequently, Judge Jarrett concluded that the decision was legally unreasonable and the decision maker failed to take into account relevant considerations.
However, Judge Jarrett disagreed with the applicants’ contention that the preliminary view expressed by Ms Harlock amounted to a denial of natural justice which further impugned the decision.
The result was that an order referring the matter to the decision maker for further consideration was made, in addition to orders that the Information Commissioner pays the costs of the applicants to be agreed or failing agreement to be later determined by the Court.
This case shows that an administrative decision of a Federal Government body to not make a decision or proceed with a review is itself a reviewable decision. The Information Commissioner’s decision to not proceed because it thought that the Administrative Appeals Tribunal (AAT) should instead determine the matter was held to be an error of law.
Perhaps above all else, this case demonstrates the flagrant and consistent incompetence of the public servants at the Office of the Information Commissioner. Not only were there many inexplicable and inexcusable delays, the decision to not proceed with the review was clearly wrong at law, and was another instance of bureaucratic ineptitude. Furthermore, like the AHRC, the Information Commissioner’s processes appear to be particularly unsound, with copies of submissions and correspondence not being shared with the applicants in a timely way and their matter being passed along the line to three separate case managers.
