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John William Chardon guilty of manslaughter

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

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

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

Relevant law

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

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

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

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

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

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

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

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

 

Eurydice Dixon’s killer sentenced to life imprisonment

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Jaymes Todd 1
The facts

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

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

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

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

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

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

Relevant law

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

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

(a)     level 1 imprisonment (life); or

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

as the court determines.

(2)     The standard sentence for murder is—

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

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

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

(b)     in any other case, 25 years.”

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

“Sentencing guidelines

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

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

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

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

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

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

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

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

“Standard sentence scheme

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

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

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

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

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

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

Supreme Court decision

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

Former Magistrate Bill Randall struck off for child sex abuse

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

 

Bill Randall4
The facts

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

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

Relevant law

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

(1) Professional misconduct includes –

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

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

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

Starting proceeding before a disciplinary body

(1) The commissioner may apply—

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

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

Hearings

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

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

“456 Decisions of tribunal about an Australian legal practitioner

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

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

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

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

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

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

Tribunal decision

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

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

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

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

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

The result was that Randall was struck off.

Conclusion

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

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

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

George Pell’s appeal against convictions dismissed

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Pell
The facts

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

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

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

Relevant law

At common law, a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law (Woolmington v DPP [1935] AC 462; Howe v R (1980) 32 ALR 478). The presumption is not that the accused is not guilty, it is that the accused is innocent (R v Palmer (1992) 64 A Crim R 1).

The presumption of innocence has been enshrined in s25(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). The presumption of innocence is only relevant to the accused. It is a misdirection to tell the jury that witnesses are presumed to be innocent (Howe v R (1980) 32 ALR 478).

Section 141(1) of the Evidence Act 2008 (Vic) provides that:

“In a criminal proceeding, the court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt.”

Section 49B of the Crimes Act 2008 (Vic) provides that:

(1)     A person (A) commits an offence if—

(a)     A intentionally—

(i)     sexually penetrates another person (B);…

and

(b)     B is a child under the age of 16 years.

(2)     A person who commits an offence against subsection (1) is liable to level 4 imprisonment (15 years maximum).

Court of Appeal decision

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

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

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

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

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

An appeal to the High Court is likely.

 

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

That footage is ©Supreme Court of Victoria.

Paul Pisale sentenced to 2 years imprisonment

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Paul Pisasale
The facts

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

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

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

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

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

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

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

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

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

Relevant law

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

415 Extortion

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

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

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

commits a crime.

(2) It is immaterial that—

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

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

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

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

District Court decision

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

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

Conclusion

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

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

Fraudster Hamish McLaren sentenced to 16 years jail

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Hamish McLaren born Hamish Watson stole $7.6 million from 15 victims over a period of years.

Before the crimes for which he was sentenced, McLaren had swindled people in the US, Canada, Britain, and Hong Kong.

Yesterday, he was sentenced to 16 years imprisonment, with a non-parole period of 12 years.

Judge Charteris found that McLaren was unrepentant and had no genuine remorse for his crimes:

“His letter (read to the court last week) does not remote­ly persuade me that this man is sorry.

“I do not believe he has any ­remorse, I believe he is consumed by himself. He is driven by stealing the money of other citizens, all of whom trusted him. The focus was on his own wellbeing so he could live the high life, spending others’ retirement savings.”

Finding that this was the worst variety of white collar crime, Judge Charteris noted that:

“If the ­offender has received massive disapproval from the community — it’s appropriate that he should do so,

“How could he stand by and see people draw down their life super funds to be given to him? His ­behaviour is the most reprehensi­ble one can imagine having ­regards to offences of this nature.”

$5.4M has never been recovered.

 

Chief Justice of Queensland speaks out for judicial independence

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Catherine Holmes, the Chief Justice of Queensland has a piece in The Australian concerning some of the unfair and ill-informed criticisms of sentencing decisions in recent years:

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

Importantly, she does not say that decisions should not be criticised. However, given that judges are not supposed to respond to criticisms or defend their own decisions, personal attacks against judges and criticisms of decisions which do not show the reasons for the decisions undermine confidence in the Courts, and can threaten judicial independence:

 

“I am concerned about tendencies in media and political discourse to speak about courts and their decisions in ways which can, directly or indirectly, undermine judicial independence.

This may sound a little precious, so I had better start by emphasising that I am not suggesting that anyone should desist from criticising judicial decisions. Discussion and criticism are to be expected in a healthy democracy.

My plea is for better informed criticism, because public confidence is essential to the preservation of what I contend is a very good legal system; and for better targeted criticism, because there seems to be an increasing, damaging willingness to attack that system as a whole on the strength of dissatisfaction with a very small number of decisions.”

The article may be behind a paywall, so a subscription may be required.

Indictable offences in the Magistrates Court of QLD

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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.

The Criminal Code

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.

Indictable offences which Prosecution can elect for summary trial

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.

Indictable offences which must be dealt with summarily unless defence elects jury trial

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).

 

Indictable offences which must be dealt with summarily

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:

  1. 1. carry maximum sentences of three years or less; or
  2. 2. are an offence under part 6 of the Code, excluding an offence under Chapter 42A (secret commissions) or an ‘excluded offence’ listed at Section 552BB.

 

The list of excluded offences contained in the table of Section 552BB includes the following offences:

Section 461: Arson

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.

Conclusion

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:

    1. 1. Whether it is an offence referred to in sections 552A, 552B and 552BA of the Code;
    2. 2. If the offence is mentioned at section 552A(1) of the Code, whether the Prosecution has or will elect to have it dealt with summarily;
    3. 3. If the offence is mentioned at section 552BA of the Code, whether it is an excluded offence under section 552BB of the Code; and
    4. 4. Whether the Magistrates Court may decide under section 552D of the Code that the offender may not be adequately sentenced or if there are exceptional circumstances.

 

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.

Was Cardinal George Pell wrongly convicted?

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Pell

The facts

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

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

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

Relevant law

At common law, a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law (Woolmington v DPP [1935] AC 462; Howe v R (1980) 32 ALR 478). The presumption is not that the accused is not guilty, it is that the accused is innocent (R v Palmer (1992) 64 A Crim R 1).

The presumption of innocence has been enshrined in s25(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). The presumption of innocence is only relevant to the accused. It is a misdirection to tell the jury that witnesses are presumed to be innocent (Howe v R (1980) 32 ALR 478).

Section 141(1) of the Evidence Act 2008 (Vic) provides that:

“In a criminal proceeding, the court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt.”

Section 49B of the Crimes Act 2008 (Vic) provides that:

(1)     A person (A) commits an offence if—        

(a)     A intentionally—             

(i)     sexually penetrates another person (B);…

and       

(b)     B is a child under the age of 16 years.   

(2)     A person who commits an offence against subsection (1) is liable to level 4 imprisonment (15 years maximum).

Criticisms of the jury’s decision

Andrew Bolt:

“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.”

Frank Brennan:

“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.”

Greg Craven:

“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.”

Paul Kelly:

“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”.”

Joe Hildebrand:

“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.”

Conclusion

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.

Lawyer X confirmed to be Nicola Gobbo

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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.”

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