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Baden-Clay and the perils of giving evidence in murder trials

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Baden Clay

The facts

Allison Baden-Clay was reported missing by her husband Gerard Baden-Clay on the morning of 20 April 2012. Her body was found on 30 April 2012 under a bridge on a bank of Kholo Creek, some 13 kilometres from her home. Leaves found on the body were from trees of six species that grew at the Baden-Clay and his wife’s home; four of these did not grow at the site at which the body was found. Baden-Clay and his wife’s eldest child thought that her mother was wearing a “sloppy jacket” and pyjama pants at the time she was watching television. Her body was found clothed in three-quarter length pants, socks, sneakers and a singlet top which had a bra built into it. Blood matching her DNA profile was found in the rear section of her car, which had only been acquired in February 2012. Tests on Baden-Clay’s mobile phone showed that it had been placed on a charger, adjacent to the side of the bed on which he slept, at 1.48am, at a time when he claimed he was asleep.

Gerard Baden-Clay had observable injuries to his right cheek when he reported his wife missing.

Prior to Allison Baden-Clay’s disappearance, Gerard Baden-Clay had been having an affair with Ms Toni McHugh since August 2008. He and his wife were due to go to a conference on 20 April 2012 that Ms McHugh would also attend.

Baden-Clay was also in financial difficulty at the time of his wife’s death.

Baden-Clay gave evidence at his own trial in 2014, in which he denied any involvement in his wife’s disappearance, death or the disposal of her body. He said that he went to bed at about 10pm, leaving his wife, who was watching television, in the living room. He awoke just after 6am on 20 April 2012. His wife was not at home, but she often went for an early morning walk. That morning, he was responsible for getting the children ready for school and taking them there. He testified he was “under the pump a little bit”, was “rushing that morning” and that he cut himself shaving.

Three experts gave evidence that there were two categories of injuries to the Baden-Clay’s right cheek. Their evidence was that it was most likely that fingernails caused one set of scratches and it was implausible that those scratches had been caused by a shaving razor. A second set of marks appeared to be different. They were fresher, and were consistent with having been caused by a razor “particularly if moved from side to side as it was drawn from front to back or back to front across the face.”

Gerard Baden-Clay was convicted of his wife’s murder by the jury. He appealed his conviction pursuant to s 668E(1) of the Criminal Code 1899 (Qld) on the ground that the verdict was unreasonable, and two grounds concerning the adequacy of the trial judge’s summing up to the jury.

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”.”

Section 668E(1) of the Criminal Code (Qld), which concerns appeals in ordinary cases, provides that:

“The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or can not be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal.”

In Barca v The Queen [1975] HCA 42, Gibbs, Stephen and Mason JJ said:

“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v The Queen; see also Thomas v The Queen.”

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.”

Court of Appeal decision

The Queensland Court of Appeal allowed the appeal. It held that “there was no evidence of motive in the sense of a reason to kill”, and therefore it was not open for the jury to find that Baden-Clay had intended to kill or cause grievous bodily harm to his wife.

The Court of Appeal held that the evidence at trial was not able to exclude a reasonable hypothesis that:

“there was a physical confrontation between [Baden-Clay] and his wife in which he delivered a blow which killed her (for example, by the effects of a fall hitting her head against a hard surface) without intending to cause serious harm; and, in a state of panic and knowing that he had unlawfully killed her, he took her body to Kholo Creek in the hope that it would be washed away, while lying about the causes of the marks on his face which suggested conflict.”

Remarking on Baden-Clay’s facial injuries, the Court of Appeal opined that:

“There is nothing about the facial scratches to indicate the circumstances in which they were inflicted; whether they occurred in the course of a heated and perhaps physical argument or in resisting a murderous attack.”

The Court of Appeal also said that:

“The jury could properly have rejected every word [Baden-Clay] said as a lie. But that would, with the exception of his explanation of the scratches on his face, have done nothing to advance the Crown case. Conclusions that he had lied in that regard and that he had taken steps to dispose of his wife’s body were properly to be taken into account, as evidence of a consciousness of guilt, in the context of all the evidence in the case. But the lies, or the lies taken in combination with the disposal of the body, would not enable the jury to draw an inference of intent to kill or do grievous bodily harm if there were, after consideration of all the evidence, equally open a possibility that all of that conduct was engaged in through a consciousness of a lesser offence; in this case, manslaughter.”

The two grounds concerning the adequacy of the trial judge’s summing up to the jury were rejected.

The result in the Court of Appeal was that the conviction of murder was set aside, and a conviction for manslaughter was instead imposed.

High Court decision

The Crown appealed to the High Court.

In the High Court, the Crown argued that because no hypothesis of unintentional death caused by Baden-Clay was raised by the defence at trial and there was no evidence to support such a hypothesis, it was not a hypothesis which could form the basis of a reasonable doubt in the jury’s minds. The Crown also argued that the evidence of Baden-Clay’s ongoing relationship with McHugh, his wife’s “venting and grilling” concerning that relationship and the imminent meeting of McHugh and his wife at the conference on the day after her disappearance could fairly lead to the jury inferring an intent to kill. Baden-Clay’s post-offence lies and deceptions were also said to support such a conclusion.

Baden-Clay submitted that as the case for murder depended entirely upon circumstantial evidence and the onus of proof of murderous intent was always upon the Crown, the jury could not return a verdict of guilty. He argued that a hypothesis consistent with innocence of murder was open on the evidence. Baden-Clay’s post-offence lies and deceptions were submitted to be neutral on the question of whether he had intended to cause his wife’s death.

The High Court noted that Baden-Clay’s own evidence at trial was that he was not present and had no involvement in his wife’s death, and held that that evidence had the following effect:

“The evidence given in the present case by the respondent narrowed the range of hypotheses reasonably available upon the evidence as to the circumstances of the death of the respondent’s wife. Not only did the respondent not give evidence which might have raised the hypothesis on which the Court of Appeal acted, the evidence he gave was capable of excluding that hypothesis.

The Court of Appeal’s conclusion to the contrary was not based on evidence. It was mere speculation or conjecture rather than acknowledgment of a hypothesis available on the evidence. In this case, there was no evidence led at trial that suggested that the respondent killed his wife in a physical confrontation without intending to kill her. There were “no positive proved facts from which the inference” drawn by the Court of Appeal could be made. There was no evidence at trial of any injury to the wife’s body that might have killed her… Not only were there no fractures to the head, which might have suggested the wife had fallen and hit her head on a hard surface (as in the example given by the Court of Appeal), there were no other fractures on the body.”

The significance of Baden-Clay’s own evidence at trial was further explained by the High Court as follows:

“To say that the respondent’s evidence was disbelieved does not mean that his evidence could reasonably be disregarded altogether as having no bearing on the availability of hypotheses consistent with the respondent’s innocence of murder. His evidence was important, even if it was disbelieved, because it was open to the jury to consider that the hypothesis identified by the Court of Appeal was not a reasonable inference from the evidence when the only witness who could have given evidence to support the hypothesis gave evidence which necessarily excluded it as a possibility.

The Court of Appeal should not have treated the case as one in which it was open to it to identify a hypothesis as to the circumstances of the death of the deceased on the basis that the respondent’s evidence could be disregarded as if it had not been given at all.”

The High Court also observed that a further problem with the Court of Appeal’s approach was that at trial the case was conducted on the basis that Baden-Clay was either guilty of murder or had no part to play in his wife’s death, and neither the Crown nor the defence had ever suggested that Baden-Clay may be guilty of manslaughter rather than murder. Indeed, Baden-Clay’s Counsel admitted this approach had been adopted by the defence as a “considered tactical position”.

Furthermore, the High Court held that it was open for the jury on the evidence to find beyond reasonable doubt that Baden-Clay had intent to kill or cause grievous bodily harm when he killed his wife. The jury were entitled to conclude “that it tested credulity too far to suggest that his evident desire to be rid of his wife was fortuitously fulfilled by her unintended death”.

Citing the above comment of Major J in R v White with approval, the High Court held that:

“[Baden-Clay’s] false denials to police about his ongoing affair, his suggestion to Ms McHugh that she should “lie low”, and his enquiry of her as to whether she had revealed the affair to the police were all capable of being regarded by the jury as evidencing a strong anxiety to conceal from police the existence and true nature of his affair with Ms McHugh. This anxiety could reasonably be seen as indicative that, in his mind, the affair and the killing were inter-related, and that the killing was not an unintended, tragic death of his wife, but an intentional killing…

It was open to the jury, in this case, to regard the lengths to which [Baden-Clay] went to conceal his wife’s body and to conceal his part in her demise as beyond what was likely, as a matter of human experience, to have been engendered by a consciousness of having unintentionally killed his wife.”

Finally, the jury was also entitled to consider and rely on “the absence of any signs that a weapon was used to cause the death”, combined with “the difficulty involved in killing a human being without the use of a weapon unless the act of killing is driven by a real determination to cause death or grievous bodily harm” in support of the necessary element of intent.

The result was Baden-Clay’s murder conviction was reinstated.

Conclusion

The High Court found that the Court of Appeal erred because it held that there was sufficient evidence of intent, and that due to a lack of evidence to support the hypothesis that Baden-Clay has accidentally killed his wife such a hypothesis was mere conjecture. As a result, the Court of Appeal’s decision was set aside and the murder conviction was re-instated.

Significantly, Baden-Clay’s own evidence at trial was held by the Court to support a finding that he did intend to kill his wife, even though that very evidence was obviously rejected by the jury. According to the High Court, the jury were entitled to conclude that Baden-Clay’s false testimony that he had no part whatsoever in his wife’s death would not have been given if he had not intended to kill her. In other words, Baden-Clay would have been expected to admit his role rather than give evidence denying it he had accidentally killed his wife.

The result is, as Baden-Clay’s lawyer Peter Shields has pointed out, many people accused of murder now are strongly advised to not give evidence at their own trials, because “if an accused doesn’t give evidence then they’re not subject to that forensic criticism.” In other words, the false testimony provided by a person accused of murder can according to the High Court be legitimately used by jurors to help conclude that they did intend to kill, and therefore that they are guilty of murder rather than manslaughter.

Conversely, if an accused person does decide to give evidence at their own murder trial, they should ensure that their evidence is truthful and (if possible) does not provide a jury with a belief that their evidence consists of self-serving lies. According to the High Court, Baden-Clay’s decision to give evidence at his own trial denying any involvement whatsoever in his wife’s death could be used by the jury to conclude that such an attempt to conceal his involvement inferred murder, and that such false evidence would not have been provided if her death was an accident on his part. The effect of this decision is that those accused of murder are in effect encouraged to ‘come clean’ and admit their involvement (if any) if they wish to be acquitted of murder.

Finally, the High Court’s decision confirms that evidence of intent can be proven beyond reasonable doubt even if it is based entirely on circumstantial evidence. In this case, Baden-Clay’s stated intention to be rid of his wife, the lack of evidence suggesting accidental death and Baden-Clay’s post-offence conduct provided a sufficient basis for the jury to conclude that Baden-Clay had intentionally killed his wife.

Royal Commission into lawyer informants in Victoria

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jail

This case reflects very badly on both the Victorian police and the lawyer who turned police informant on her own clients:

“Victorian Premier Daniel Andrews has announced a royal commission into the recruitment and management of police informants, following revelations Victoria Police used a defence lawyer as a registered informant at the height of Melbourne’s gangland war.

The announcement comes after legal suppressions were lifted on a High Court decision which described Victoria police’s use of the lawyer as an informant as “reprehensible conduct” which corrupted potentially dozens of high profile convictions of central gangland players.

“I am left in no doubt that a royal commission is the right thing to do,” Mr Andrews said…

The High Court judgment raised serious issues relating to the “management of informants, or shall I say the mismanagement of informants”, as well as potential impacts upon the safety or the integrity of criminal convictions, he said.

The $7.5 million inquiry will examine how many cases were directly impacted; what — if any — changes need to be made in the management of informants, and will make recommendations and provide advice on a process for dealing with those affected, Mr Andrews said…

Earlier, the High Court savaged a decision by Victoria Police to use the lawyer as a registered informant, describing it as “reprehensible conduct’’ which corrupted potentially dozens of high profile convictions of central players in Melbourne’s gangland war.

In an excoriating judgment, the High Court found the lawyer committed “fundamental and appalling’’ breaches of professional obligations to clients, and the court and Victoria Police command was sanctioned “atrocious’’ breaches by police their sworn duty to act faithfully according to the law.

The Commonwealth Director of Public Prosecutions has written to some of Australia’s most notorious criminals — including gangland drug baron Tony Mokbel — informing them their convictions and lengthy prison sentences are based on evidence provided by their defence lawyer when the lawyer was a police informant.

The extraordinary revelation follows a protracted and highly secretive legal saga played out within the Victorian Supreme Court, Court of Appeal and High Court of Australia.

It has plunged Victoria Police into crisis, with the legitimacy of potentially hundreds of criminal convictions now in doubt.”

What a mess.

The High Court was understandably extremely unimpressed:

“[[the lawyer]’s actions in purporting to act as counsel for the Convicted Persons while covertly informing against them were fundamental and appalling breaches of [[the lawyer]’s obligations as counsel to her clients and of [[the lawyer]’s duties to the court. Likewise, Victoria Police were guilty of reprehensible conduct in knowingly encouraging [[the lawyer] to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will. As a result, the prosecution of each Convicted Person was corrupted in a manner which debased fundamental premises of the criminal justice system. It follows, as Ginnane J and the Court of Appeal held, that the public interest favouring disclosure is compelling: the maintenance of the integrity of the criminal justice system demands that the information be disclosed and that the propriety of each Convicted Person’s conviction be re-examined in light of the information. The public interest in preserving [[the lawyer]’s anonymity must be subordinated to the integrity of the criminal justice system.” 

It seems clear that the barrister will have to enter into witness protection with her children as a result of her reckless and foolish decision to betray some very dangerous clients.

Bourke Street killer James Gargasoulas found guilty

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A Victorian Supreme Court jury has found Bourke Street driver James Gargasoulas guilty of murder.  

Gargasoulas

The facts

On 20 January 2017 James Gargasoulas accelerated a car he was driving down a footpath in Bourke Street Melbourne, deliberately targeting pedestrians. He killed 6 people and injured many others during his rampage.

Gargasoulas was suffering from paranoid schizophrenia and drug induced psychosis at the time of the offences.

Relevant law

Section 3 of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) provides:

“offence” includes conduct that would, but for the perpetrator’s mental impairment or unfitness to be tried, have constituted an offence.

Section 20 of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) provides: 

Defence of mental impairment

    (1)     The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that—

        (a)     he or she did not know the nature and quality of the conduct; or

        (b)     he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).

    (2)     If the defence of mental impairment is established, the person must be found not guilty because of mental impairment.

Victorian Supreme Court trial

At the trial, the jury listened three days of evidence and watched harrowing CCTV footage of the rampage.

Gargasoulas gave evidence about his state of mind at the time of the offences:

“I had a premonition and I followed my instinct to do what I did… I wasn’t intending to kill anyone as I was driving to the city.”

Gargasoulas apologised for his actions but said saying sorry or a lengthy sentence would not “fix what I have done”.

His barrister Dr Theo Alexander started his three minute closing submission with a quote from Hamlet:

“Our wills and fates do so contrary run

That our devices still are overthrown

Our thoughts are ours

their ends none of our own.”

In her closing, Director of Public Prosecutions Kerri Judd QC said it was a clear case of criminal liability:

“There’s no issue of identity, the conduct itself is captured on the CCTV. The CCTV really in this case says it all.”

The jury were sent away this morning at 11.43am to deliberate.

Jury’s decision

In less than an hour, the jury found Gargasoulas guilty of 6 counts of murder and 27 counts of reckless conduct endangering life.

Gargasoulas displayed no emotion as the verdicts were announced while family members of the victims who were in the court wiped their eyes. Later, Gargasoulas appeared to be twitching his leg and rocking slightly in his seat.

Conclusion

The jury’s verdict should not have come as a surprise given there was no dispute that Gargasoulas was the driver of the car and had intended to kill or injure, and a jury had earlier found that he was fit to stand trial.

There is no doubt that Gargasoulas’ mental illness was a cause or contributing factor to the crimes he perpetrated on 20 January 2017. This case shows that even when someone is suffering from a mental illness and/or a drug induced psychosis, they ordinarily still are held criminally responsible for their actions. The legal question for a jury or judge is whether they knew what they were actually doing, or whether they knew that what they were doing was wrong. The jury’s answer to both questions was in the affirmative.

Alleged Bourke Street killer to stand trial

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A jury has decided that accused Bourke Street driver James Gargasoulas should stand trial.

Gargasoulas

Relevant law

Section 6 of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) provides: 

When is a person unfit to stand trial?

    (1)     A person is unfit to stand trial for an offence if, because the person’s mental processes are disordered or impaired, the person is or, at some time during the trial, will be—

        (a)     unable to understand the nature of the charge; or

        (b)     unable to enter a plea to the charge and to exercise the right to challenge jurors or the jury; or

        (c)     unable to understand the nature of the trial (namely that it is an inquiry as to whether the person committed the offence); or

        (d)     unable to follow the course of the trial; or

        (e)     unable to understand the substantial effect of any evidence that may be given in support of the prosecution; or

        (f)     unable to give instructions to his or her legal practitioner.

    (2)     A person is not unfit to stand trial only because he or she is suffering from memory loss.

Jury’s decision

Two psychiatrists and a psychologist gave evidence at a Victorian Supreme Court hearing to determine Gargasoulas’ current mental state and his fitness to stand trial.

All three experts agreed that Gargasoulas was suffering from paranoid schizophrenia and delusions. Forensic psychiatrists Andrew Carroll and Lester Walton opined that Gargasoulas could not enter a plea, give instructions to his lawyers or understand the substantial effect of the evidence. However, Michael Daffern, a psychologist was of the view that Gargasoulas was fit.

The jury determined that Gargasoulas was fit for trial and should face six counts of murder and 28 counts of attempted murder.

QLD Criminal lawyers accused of criminality

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Adam Magill3

 
Some high profile Queensland criminal defence lawyers are being accused of serious fraud offences:

“A cadre of high-profile Brisbane criminal defence lawyers have been charged with defrauding the taxpayer-funded Legal Aid Queensland and laundering money for “serious and organised crime”.

The lawyers — Adam Magill, Corey Mullen and Mitchell Cunningham, all of whom worked at law firm Lawler Magill — and another man were arrested yesterday following an 18-month joint investigation codenamed “Operation Stockade”.

More arrests were expected overnight.

The Crime and Corruption Commission alleged some of the men were involved in defrauding Legal Aid Queensland of about $340,000, and fraud by failing to deposit more than $765,000 into a trust account.

Investigators also alleged some of the men laundered the proceeds of serious criminal offences.”

If these charges are proven, these lawyers may be spending time in prison with some of their former clients. In fact, one of them maybe already has:

“Mr Magill, 47 — a former policeman whose clients have included footballer Karmichael Hunt and Hells Angels member Chris Bloomfield — will appear in Brisbane Magistrates Court today on counts of aggravated fraud, fraudulent falsification of records and aggravated money laundering. He has been remanded in custody.”

Magill has this morning been granted bail on strict conditions. The allegations are denied.

Serial rapist’s appeals against conviction & severe sentence dismissed

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Ashraf Kamal Makary

The facts

From late 2010 until April 2011, Ashraf Kamal Makary met with three young Korean women who had recently arrived in Australia and responded to an advertisement he placed on a website offering English language lessons in return for Korean lessons. He would make contact with them by phone using a false name, meet with them and offer them alcohol. According to each the three Korean women, they soon after lost consciousness. One of them woke up and saw his penis and that he was only wearing a t shirt. Another woke up at home with sore genitals and breasts, and made a complaint to police before going to hospital to obtain vaginal swabs. The other woke up while she was being raped and had pain all over her body. She also made a complaint to police and obtained vaginal swabs.

When Makary was visited by police on 11 April 2011, in his car they found two mobile phones, a box of Temazepam tablets, a box of condoms, a box of “Temtabs”, a pair of purple underpants belonging to one of the victims and a broken wine glass with residue in it. In his house police found Temazepam and a laptop containing the phone numbers and email addresses of the three Korean women.

The DNA evidence obtained from the swabs showed that some of the DNA obtained matched Makary’s. The two women who had obtained blood tests tested positive for Oxazepam, Temazepam, Aminonitrazepam and Nitrazepam. There was expert evidence that when Temazepam is ingested a part of it metabolises into Oxazepam and that when a person ingests Nitrazepam it is metabolised into Aminonitrazepam.

While on bail for these charges, Makary was charged with a further rape he committed on 13 April 2012 against another Korean woman he had contacted through the same website, breaching his bail condition of not being on the internet. He was remanded in custody as a result of this offence.

In 2014, Farr DCJ ruled that the charges against Makary in respect of the three women should be joined due to the striking similarity and underlying unity in the following relevant facts of each of the charges:

(a) the complainants are all young Korean women;

(b) the complainants all contacted Makary in response to an advertisement he placed on a website seeking to meet someone for the purposes of exchanging language skills;

(c) the same website was used on each occasion;

(d) Makary used a false name on each occasion;

(e) email correspondence then occurred, culminating the arrangement of a meeting;

(f) Makary selected the meeting place and time;

(g) Makary arrived at the meeting in his car;

(h) Makary indicated on each occasion that the complainant should get in his car after which he drove off to a park or park-like location at night;

(i) there had been no pre-arrangement in that regard;

(j) Makary brought drinks with him in the car which he offered to each complainant;

(k) each complainant felt dizzy or suffered amnesia after consuming some drinks or was found to have sedative-type drugs in their urine; and

(l) sexual activity subsequently occurred with each complainant, with the exception of one complainant who due to her presence of mind was able to resist his advances.

Makary gave evidence at his own trial.

On 3 June 2016, Makary was sentenced by Clare DCJ to 18½ years imprisonment after being convicted of three counts of administering a stupefying thing with intent to commit an indictable offence, two counts of rape and one count of attempted rape by a jury. The sentencing remarks included the following:

“You are a true serial predator who deliberately embarked on a course of hunting women to rape… In this case there is another aggregating factor and that is the fear of the unknown. His opportunity and capacity to do a great deal of perversion to the people he had captive There are two types of rapes. Is it more frightening for a victim, or worse for a victim, to be hit than it is to be drugged unconscious and detained for a number of hours?.. It’s not just the psychological trauma, it’s the physical risk involved. The risks from the drugs themselves … Death could have been the results of your client’s actions as well…

“The Prosecution has proved that you raped two women and came perilously close to raping the third. After weeks of scheming, the women were at your mercy to do with what you would. By that time, you had demonstrated that your only interest in them was malevolent. It defies credibility to consider that you did not exploit the opportunity you had created. In the absence of credible evidence to the contrary, this can only be viewed as protracted offending. [Amy] was with you for six hours. [Linda] had 12 hours unaccounted for. Both of those women bore indications of forceful or protracted violations and rough mistreatment. [Linda] had the additional injuries. For [Emma] who was not raped, there was extra danger in the way that you left her.”

Makary was subsequently also convicted and sentenced for the further rape committed whilst on bail. He was sentenced to a further term of imprisonment to be served cumulatively with the other offences.

Makary appealed both the conviction and sentence. Unusually, he self-represented in the appeal against conviction but was legally represented in the appeal against sentence.

Relevant law

Section 24 of the Criminal Code (Qld) provides that:

“A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.”

Section 95A of the Evidence Act 1977 (Qld) provides that:

“(3) A certificate, in the approved form, purporting to be signed by a DNA analyst and stating any of the following matters is evidence of the matter—

(a) that a stated thing was received at a stated laboratory on a stated day;

(b) that the thing was tested at the laboratory on a stated day or between stated days;

(c) that a stated DNA profile has been obtained from the thing;

(d) that the DNA analyst—

(i) examined the laboratory’s records relating to the receipt, storage and testing of the thing, including any test process that was done by someone other than the DNA analyst; and

(ii) confirms that the records indicate that all quality assurance procedures for the receipt, storage and testing of the thing that were in place in the laboratory at the time of the test were complied with.”

A sentencing judge may not take into account other offences in respect of which the accused has not been convicted even if the evidence at trial discloses the commission of such offences: R v Cooksley [1982] Qd R 405 at 418 per McPherson J.

Section 668E(3) of the Criminal Code provides that:

“On an appeal against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.”

Section 159A of the Penalties and Sentences Act 1992 provides as follows:

“If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence and for no other reason must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders.”

Court of Appeal decision

Appeal against conviction

In respect of in the appeal against conviction, Makary’s complaints in respect of section 24 of the Criminal Code were rejected because it was his sworn evidence that he had not had sexual intercourse with any of the three women, and none of the facts he pointed to could give rise to any inference that he held a reasonable and honest belief that one of the women did consent.

Makary argued the DNA evidence given by Ms Amanda Reeves, a senior reporting scientist in the Forensic DNA Analysis Unit of Queensland Health should have been excluded because it was hearsay evidence. However, this argument ignored section 95A of the Evidence Act 1977.

Makary argued that Clare DCJ erred by misdirecting the jury about the offence of attempted rape of which he was convicted as he contended that the Prosecution had to prove beyond reasonable doubt that he had not fulfilled his intention to rape. However, this proposition had been rejected in R v Barbeler.

The Court held that Makary’s criticisms of his Counsel’s failure at trial to directly ask one of the complainants that she had not had sexual intercourse with him in all the circumstances of the case could not be characterised as a failure, and in any event it fell nowhere near what must be shown to establish incompetence in legal representation of a character as to amount to a miscarriage of justice.

Makary argued that Farr DCJ’s decision to join the six charges was incorrect, however the Court rejected this submission because “more remarkably similar set of circumstances in which the same offences (or attempted offence) were committed would be difficult to imagine” meant that Farr DCJ’s decision to join the charges was correct.

As none of Makary’s arguments against his conviction had any merit, the appeal against conviction was dismissed.

Appeal against sentence

The Court opined that Clare DCJ’s reference to the Makary’s offending as “protracted offending” involving “protracted violations” could not be read otherwise than as a reference to multiple rapes, or the commission of some other unspecified and uncharged sexual offences, committed by Makary against his unconscious victims. Therefore Clare DCJ had erred and leave should be given to Makary to appeal against his sentence.

As a result, Makary had to be resentenced. The Court in resentencing Makary noted the following:

“The six offences of which [Makary] was convicted were the culmination of some weeks of effort by him to put these three young women at his mercy. His efforts to that end were calculated, methodical and sustained. He set out to hunt down three women who, by reason of their youth, their presence in a foreign land and their lack of proficiency in English were particularly vulnerable to entrapment and violation. He pretended to be willing to assist them, he exploited their solitariness here and he abused their preparedness to trust him. He devised a rape kit consisting of alcoholic drinks, innocuous looking orange juice, wine glasses, drugs and a car in which to transport his unconscious victims to his bedroom. The evidence showed that he roughly raped two of his victims and was ready to rape the third. He wanted to have them and he did have them at his mercy for hours. He drugged them by suspending the stupefying drug in an alcoholic drink which exacerbated the effect of the drugs. He was prepared to, and did, induce them into incoherence and illness. He had not the slightest concern for their safety or well-being. He let Emma out of his car in a drug-induced, inebriated state into an unfamiliar street, leaving her to crawl to some form of safety if she could, or into danger if that is what happened. He left his other two victims at their home careless of their ability to look after themselves and careless of their health. Linda was ill to the point of vomiting violently. All of them suffered unconsciousness, disorientation, inability to move and confusion. He drugged them not caring whether any of them had suffered from any condition that might have rendered her ingestion of the drugs he gave her particularly dangerous. He did these awful things to these women because he wanted to rape three different women on three successive nights. Indeed, as it happened, at the very time that Amy was being examined at the hospital, [Makary]  was undertaking the subjugation and rape of Linda.

Furthermore, each of these women has been affected by the crimes committed against them. Because they were each rendered unconscious before they were raped, or in the case of Emma, before [Makary] attempted to rape her, they suffer from their lack of knowledge of what might have been done to them at [Makary’s] will. Each has suffered an enduring vulnerability. One of the complainants terminated a pregnancy for fear that the child might have been fathered by [Makary]. Amy suffers from post-traumatic stress disorder. Linda has changed from being a bubbly and bright young woman into a person who is more guarded. Notwithstanding this ongoing suffering, each of them had the great moral courage to submit themselves to the distress of legal process in a foreign country.

It could be said that this case is remarkable because there are no factors at all in mitigation of [Makary’s] guilt of these offences.

He did not plead guilty and even now maintains his innocence of these crimes. He has evinced not the slightest remorse or even empathy. He put the Crown to strict proof at the trial, including proof of continuity of the handling of DNA samples. He is a man who has shown no cooperation with authorities. There is not the slightest suggestion that he is amenable to rehabilitating himself. Indeed, on the contrary, while on bail for these offences we now know that he committed yet another, almost identical, offence against yet another Korean victim for which he has since been convicted.

[Makary] is mature and well educated. He cannot absolve himself by pointing to the callowness of youth as a factor. He did not submit that he committed these offences by reason of the effect upon him of any disorder, illness or other explicable compulsion.

Rehabilitation is always possible but there is no evidence of any hope for it here.”

Due to these numerous aggravating factors and the lack of mitigating factors in respect of the offending, Makary’s offending was more serious than the cases his lawyers attempted to rely on to show that Clare DCJ’s sentence was manifestly excessive. Accordingly, a majority of the Court (Sofronoff P & Bond J) held that the appeal against sentence should be dismissed.

McMurdo JA agreed with the majority in respect of the appeal against conviction, however, he dissented in respect of the appeal against sentence. McMurdo JA opined that because Clare DCJ had incorrectly taken into account the possibility that Makary’s offending involved further offences against the complainants, the correct sentence should be lower than the one imposed by Clare DCJ, particularly when taking into account the fact that Makary had served four years on remand prior to conviction which could not be declared pre sentence custody and he would also be required to serve at least 80 per cent of his sentence. McMurdo JA held that the appropriate sentence was therefore 16 years imprisonment.

Conclusion

Makary’s arguments against his conviction were evidently lacked merit. In addition, his appeal against conviction was hopeless because of the overwhelming evidence that pointed to his guilt.

Makary’s offending was extremely serious and was committed on three separate occasions over a fairly lengthy period of time. In addition, there were plenty of aggravating factors, and the only mitigating factor was his lack of prior criminal history. As a result, a severe sentence was warranted in order to denounce the offending, deter others and to protect the community from a dangerous serial sexual predator. As the further rape committed whilst on bail showed, Makary’s offending would have more than likely continued if he had not been incarcerated.

QLD Government to criminalise revenge porn

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

Solicitor struck off for the second time

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

Legal advice

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

The facts

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

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

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

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

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

The Law

Section 408C of the Criminal Code provides that:

“(1) A person who dishonestly

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

(i) property belonging to another; or

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

(b) obtains property from any person; or

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

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

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

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

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

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

commits the crime of fraud.”

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

419 Meaning of professional misconduct

(1)”Professional misconduct” includes

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

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

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

“Starting proceeding before a disciplinary body

(1) The commissioner may apply—

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

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

“Hearings

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

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

“456 Decisions of tribunal about an Australian legal practitioner

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

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

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

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

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

QCAT’s decision

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

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

Justice Daubney then made the following observations:

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

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

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

Conclusion

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

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

What if I know that my client is guilty?

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

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

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

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

This post will address each scenario.

If the evidence against the client is so strong

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

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

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

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

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

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

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

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

2. Possibility of error

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

What if my client tells me they are guilty?

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

Client confidentiality

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

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

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

Duty to not mislead the court

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

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

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

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

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

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

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

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

Conclusion

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

The pro-pedophile, out of touch ‘Human Rights’ Commission

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The Human Rights Commission’s decision to award compensation to a man convicted of child pornography offences shows that it is an out of touch organisation that sides with pedophiles over businesses.

Rosalind Croucher

The Australian ‘Human Rights’ Commission has courted significant controversy in recent years as a result of its decision to delay an enquiry into children in immigration detention until after the Liberal-National Coalition was elected in 2013, its former President’s repeatedly false and misleading evidence in Senate estimates and its failure to notify the students in the QUT case that a complaint had been made against them for 14 months.

The most recent controversy is the Commission’s awarding of compensation of $2,500 against bank and insurance company Suncorp for refusing to employ a man convicted and sentenced to 12 months’ jail in 2008 for accessing child pornography via a “carriage service” and for possession of child pornography.

To make matters worse, when applying for the role the man intentionally failed to disclose his criminal history.

If any organisation (other than the EU) typifies the foolish and dangerous worldview of the elites, it is the ‘Human Rights’ Commission. This organisation seems not to realise that people with serious criminal convictions usually are not of good character, particularly if they then try to deceive or mislead prospective employers as the man in this case did.

According to the Commission, a person convicted of accessing and viewing child porn should not be ‘discriminated against’ by employers when applying for jobs. On the other hand, students who complain on Facebook about being kicked out of an Indigenous only computer lab, and columnists and cartoonists who dare to express controversial opinions about Indigenous affairs should be sued, punished, dragged through the Commission’s Kaffkaesque processes and/or silenced.

This is precisely the sort of outcome we can expect more of if the ‘Human Rights’ Commission is given real power, or a Bill of Rights is ever implemented, as we warned some time ago. The ‘human rights’ of criminals, illegal immigrants and extremists will inevitably take precedence over the rights and interests of others.

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