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 had 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.
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  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  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  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.”
The QLD 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.
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 or 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, his 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 the respondent 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.
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 Gerard Baden-Clay had intentionally killed his wife.
The Supreme Court of NSW has exercised its inherent jurisdiction to strike off a former federal Labor MP for misappropriation of trade union funds and the criminal and civil convictions which resulted from it.
Craig Thomson was admitted as a lawyer in NSW on 31 March 1995, although he never obtained a practising certificate.
From around 1988, Thomson was employed by the Health Services Union (HSU), initially as an industrial officer in the New South Wales branch.
On 16 August 2002, Thomson was elected as National Secretary of the HSU. Two months later, Thomson established a business account for the HSU National Office in Victoria with the Commonwealth Bank of Australia (CBA). He was the only signatory to this account, which included a CBA credit MasterCard with a cash withdrawal facility accessible by PIN. In accordance with HSU policy, that card was only to be used for work-related expenses. Irregularities in the accounts for the card were, however, revealed by an exit audit conducted after Thomson’s resignation as National Secretary.
On 24 November 2007, Thomson was elected as a Member of the Federal Parliament for the seat of Dobell. Although re-elected in 2010, public revelations concerning the misappropriation of HSU funds during his time as its Secretary led to him resigning from the Australian Labor Party in about 2012 and losing his seat at the 2013 federal election.
On 15 December 2014, in the proceeding in the County Court, Thomson was found guilty of 12 charges of stealing cash belonging to the HSU, amounting to at least $5,350 over a four-year period from October 2003 to October 2007: Director of Public Prosecutions v Thomson (County Court of Victoria, Judge Douglas, 15 December 2014).
On 17 December 2014, he was convicted and, by way of sentence, ordered to pay an aggregate fine of $25,000 and compensation to the HSU of $5,650: Director of Public Prosecutions v Thomson (County Court of Victoria, Judge Douglas, 17 December 2014). As at 13 June 2018, he had paid the fine, but not the compensation.
On 15 September 2015, the Federal Court found that Thomson had contravened ss 285, 286 and 287 of the Workplace Relations Act 1996 (Cth). On 15 September 2015 the Federal Court imposed an aggregate penalty of $175,550 on Thomson and also ordered him to pay compensation of $231,243 and pre-judgment interest of $146,937 to the HSU.
On 11 October 2016, Thomson applied to the Law Society of New South Wales for a practising certificate. His application disclosed “theft of between $3500 and $5500 from employer” and sentence by way of a “fine of $25,000”, but did not disclose the contraventions of the Workplace Relations Act.
On 19 December 2016, the Law Society Council notified him of its refusal to grant a practising certificate on the basis of his criminal convictions.
On 23 February 2017, the Law Society informed the Prothonotary of the Supreme Court of NSW of that refusal.
By summons filed on 15 March 2018, the Prothonotary applied for declarations that Mr Thomson has been guilty of professional misconduct, is not a person of good fame and character, and is not a fit and proper person to remain on the roll of legal practitioners of the Supreme Court.
At common law, the Supreme Court of NSW has an inherent jurisdiction to control and discipline lawyers admitted or operating within its jurisdiction.
Section 264 of the Legal Profession Uniform Law provides as follows:
264 Jurisdiction of Supreme Courts
(1) The inherent jurisdiction and powers of the Supreme Court with respect to the control and discipline of Australian lawyers are not affected by anything in this Chapter, and extend to Australian legal practitioners whose home jurisdiction is this jurisdiction and to other Australian legal practitioners engaged in legal practice in this jurisdiction.
(2) Nothing in this Chapter is intended to affect the jurisdiction and powers of another Supreme Court with respect to the control and discipline of Australian lawyers or Australian legal practitioners.
In deciding whether to remove a lawyer from the roll of legal practitioners, “the ultimate issue is whether the practitioner is shown not to be a fit and proper person to be a legal practitioner of [the] Court” as “at the time of the hearing”: A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253;  HCA 1 at , .
In determining such an application, the Court must satisfy itself that any orders made are appropriate in all the circumstances, even if the proceeding is uncontested: Prothonotary of the Supreme Court of New South Wales v Livanes  NSWCA 325 at  (McColl JA). The Court should also make appropriately detailed factual findings, both to advance public confidence in the control and discipline of the profession and to assist those tasked with determining any future application for readmission: Bridges v Law Society (NSW)  2 NSWLR 361 at 362 (Moffitt P); New South Wales Bar Association v Cummins (2001) 52 NSWLR 279;  NSWCA 284 at  (Spigelman CJ, Mason P and Handley JA agreeing); Council of New South Wales Bar Association v Power  NSWCA 135; (2008) 71 NSWLR 451 at – (Hodgson JA, Beazley and McColl JJA agreeing).
In New South Wales Bar Association v Cummins (2001) 52 NSWLR 279;  NSWCA 284 at , Spigelman CJ identified four “interrelated interests” which may be regarded as protected by such proceedings:
“Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.”
The Court held that three principles were particularly relevant to the determination of the application:
The Court found that Thomson’s conduct whilst National Secretary of the HSU included theft and other misappropriation of funds belonging to the HSU and abuse of a fiduciary or a quasi-fiduciary position, in each case over an extended period which involved “significant and prolonged dishonesty for personal gain”.
Furthermore, the Court noted Thomson had not suggested that he had undergone a period of reformation of character since his time at the HSU, and he had failed to disclose all of his convictions to the Law Society Council or pay the penalties imposed by the Federal Court.
This case demonstrates that even when misconduct occurred a long time ago and was not in connection with legal practice, it can still lead to a conclusion that someone is not a fit and proper person to engage in legal practice. In this case, Thomson’s misconduct involved dishonesty on a large scale over a long time, and his lack of candour to the Law Society Council also weighed against his fitness to practice.
Finally, this case also demonstrates the difference between the ethical standards of the union movement and the legal profession. The union movement and the ALP were (at least for a time) willing to tolerate Thomson’s dishonest misuse of HSU funds, whereas the Supreme Court of NSW held that such conduct was inconsistent with being a lawyer.
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.
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  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.”
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.
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.
A 2015 District Court case has demonstrated how important it is to ensure that your solicitors have your current contact details and are able to contact you to obtain your instructions. The Claimant’s failure to do so in that case resulted in him losing the right to pursue his claim.
The Claimant was injured in a motor vehicle accident on 4 August 2012. He subsequently sent to the insurer a Notice of Accident Claim form. The insurer confirmed that the form was compliant and later admitted liability in full for the accident.
In about March 2013, the Claimant lost contact with his solicitors and did not contact them again until 29 July 2015. There was evidence later adduced in the Court of Appeal that he may have been avoiding the authorities as a result of a suspected arson.
The Claimant applied to the District Court for leave (special permission) to extend the time for bringing his claim in a court so that he would have time to comply with the legislative pre-proceeding requirements.
Section 11(1) of the Limitation of Actions Act 1974 provides that:
“an action for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) in which damages claimed by the plaintiff consist of or include damages in respect of personal injury to any person… shall not be brought after the expiration of 3 years from the date on which the cause of action arose.”
However, the Claimant also had to comply with pre-proceeding steps provided by the Motor Accident Insurance Act 1994 prior to commencing his claim, including cooperating with the insurer, making himself available for independent medical examinations and attempting to resolve the claim by compulsory conference before his claim for damages could be filed in court.
Section 57 of the Motor Accident Insurance Act 1994 provides as follows:
“(1) If notice of a motor vehicle accident claim is given under division 3, or an application for leave to bring a proceeding based on a motor vehicle accident claim is made under division 3, before the end of the period of limitation applying to the claim, the claimant may bring a proceeding in court based on the claim even though the period of limitation has ended.
“(2) However, the proceeding may only be brought after the end of the period of limitation if it is brought within—
(a) 6 months after the notice is given or leave to bring the proceeding is granted; or
(b) a longer period allowed by the court.”
The District Court dismissed the application to extend the time for the following reasons:
The result of the District Court’s decision was that the Claimant missed the time limit and his claim was statute barred. This decision was upheld on appeal. As a result, the Claimant lost his right to pursue the claim. Costs were awarded against him in the District Court and the Court of Appeal.
This is an important case concerning a Claimant’s responsibilities and obligations in respect of his or her own claim.
This case provides a salutary lesson in terms of the following:
Personal injury claims are serious matters and must be taken seriously. In particular, it is extremely important for a Claimant to comply with their obligations at law, as failing to do so may jeopardise their claim.
Aaron Michael Brain had been dismissed from his employment with Inghams Enterprises Pty Ltd in early January 2013. On the night of 1 February 2013, Brain approached different female Asian workers as they left at the end of their shifts in the carpark of Inghams Enterprises’ Murrarie factory. The first three women he approached between about 11:00pm and 11:45pm found his behaviour to be strange and felt some apprehension, but managed to disengage and leave.
At 11:45pm Brain approached the Plaintiff Kim Yen Tat and gave her the false story about having a pregnant partner who needed help. She declined to accompany him, walked over to her car, and got into the driver’s seat. However, Brain stopped her from closing the car door. He then said “Can I give you a hug?” and tried to put his hand on her neck. She pushed his hand away and felt something stick into her hand. She then pushed him away, got out of the car screaming and ran away. Brain left the scene after workers came to her aid.
Immediately after this incident, Inghams Enterprises send a notice to all its employees warning them of the risks of being in or remaining in the carpark alone.
Brain, who was on parole for other violent offences at the time of the incident, had his parole suspended on 6 February 2013. He later pleaded guilty to assault occasioning bodily harm in respect of the incident and on 23 January 2014 was sentenced to two years imprisonment with a parole eligibility date after 6 months.
The Plaintiff suffered significant post-traumatic stress disorder injury from the incident and sued her employer for negligence.
“305B General Principles
(1) A person does not breach a duty to take precautions against a risk of injury to a worker unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things):
(a) the probability that the injury would occur if care were not taken;
(b) the likely seriousness of the injury;
(c) the burden of taking precautions to avoid the risk of injury.”
“305C Other Principles
In a proceeding relating to liability for a breach of duty—
(a) The burden of taking precautions to avoid a risk of injury includes the burden of taking precautions to avoid similar risks of injury for which the person may be responsible; and
(b) The fact that a risk of injury could have been avoided by doing something in a different way does not of itself give rise to or effect liability for the way in which the thing was done; and
(c) The subsequent taking of action that would (had the action been taken earlier) have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does of itself constitute an admission of liability in connection with the risk.”
(1) A decision that a breach of duty caused particular injury comprises the following elements—
(a) the breach of duty was a necessary condition of the occurrence of the injury (“factual causation” );
(b) it is appropriate for the scope of the liability of the person in breach to extend to the injury so caused (“scope of liability”).”
The primary judge noted that it did not matter that the precise manner in which the plaintiff received her injuries was not foreseeable, and that he was required to bring a prospective, rather than a hindsight analysis to bear on the question of foreseeability. He also acknowledged that the essence of the Inghams Enterprises’ argument was that the injury was not foreseeable due to the practical absence of any prior incidence of violence by a third party to an employee.
However, primary judge relied on expert evidence from engineers experienced in risk management and security assessments to the effect that the safety of workers from violence and assault should be managed proactively, and held that Inghams Enterprises should have engaged in an assessment of the risks of third party violence to its employees as well as how it should respond to those risks. According to the primary judge, Inghams Enterprises could and should have the installed duress alarms at regular intervals in the carpark and warned its employees in a similar way the way it did after the incident. Inghams Enterprises’ reliance on factually distinguishable cases was rejected because of evidence at trial that many female workers left the workplace late at night five times a week through a large, open car park in an industrial area.
As a result, the primary judge found that Inghams Enterprises had been negligent and had to pay damages to the plaintiff. Inghams Enterprises appealed against this judgment.
On appeal, Inghams Enterprises argued that the primary judge had erred in finding that Inghams Enterprises should have taken action to prevent the incident which caused the injury. It argued that the primary judge’s reference to the events after the incident were contrary to s305C(c) of the Workers’ Compensation and Rehabilitation Act because that approach treated the instruction which had been given to the staff as an admission of liability. Inghams Enterprises also contended that the findings erroneously involved the application of hindsight, because they were inherently specific to the unusual facts of the case, which did not involve a single assault, but a protracted course of abnormal conduct prior to an assault. The Court of Appeal held that these arguments did not take into account the abovementioned expert evidence led at trial.
Inghams Enterprises also submitted that the plaintiff had failed to prove that the installation of duress alarms and training of and warnings to staff would have prevented the incident, and therefore causation had not been established. It was argued that the primary judge’s conclusions on causation rested on the propositions that had duress alarms proper training and instructions been provided, at least one of the other workers involved in the earlier encounters with Brain would have been sufficiently concerned about him that they would have called security, the security guard receiving the report would have left the security office and found Brain, Brain would have been required to leave, and Brain in turn would have complied with that direction. Justice Bond held that it was not open on the evidence for the primary judge to reach such conclusions.
Furthermore, as Gotterson JA noted, the trial judge did not make findings that a failure to install duress alarms or upgrade of the CCTV monitoring was the cause of the respondent’s injuries.
Because the judge erred in finding that causation had been established, the appeal was allowed and the decision of the primary judge was set aside, with costs awarded to Inghams Enterprises.
This case is a good reminder that even if an employer has breached their duty of care, it is still necessary for a plaintiff to prove that the breach caused their loss. In this case, there was insufficient evidence to establish that training and warnings would probably have prevented Brain from approaching the Plaintiff in the carpark. Because causation at law was not proven at trial, the result was that the claim against Ingham Enterprises had to fail.
The Queensland Court of Appeal has upheld the convictions of a rapist whose prior rape convictions were admitted into evidence at his trial.
Mark Little had pleaded guilty to raping women on 2 November 1994, 12 November 1998 and 10 February 1999.
The complainant was a sex worker who was in a relationship with Little. On the morning of 19 November 2015 their relationship ended as a result of an exchange of acrimonious text messages between them.
Continue reading “Serial rapist’s prior convictions held to be admissible”
The Queensland Court of Appeal has recently determined that a solicitor who made a corrupt payment in 2002 is permanently unfit to practice and should be struck off.
Shand had been admitted as a solicitor in 1975 and practised full time from 1975 until 1997, when he became the chief executive officer of a company called Jellinbah Resources Pty Ltd. Between 1977 and 1997 he was a partner in three major law firms and acted for a wide range of clients. His practice focused initially on banking and finance, and later work for large corporate and government bodies in large scale commercial transactions including property, rural matters, hotels and mining.
In 2002, as Director of Jellinbah and on the instructions of a businessman named Jim Gorman, Shand caused an amount of $60,000 to be paid to Mr Gordon Nuttall, the then Minister for Mines in the Queensland Government.
On 1 April 2011, Shand was convicted by a jury of making a corrupt payment to a Minister of the Crown contrary to section 442BA of the Criminal Code (Qld). Shand had previously declined an offer to assist prosecutors against Nuttall in return for being spared prosecution. Shand was sentenced to 15 months imprisonment to be suspended after serving 4 months.
In an affidavit, Shand said that he had learnt an extremely painful and publicly humiliating lesson, which had taken a heavy toll on him and his family. He said that he was very remorseful and he would never engage in similar conduct again. He also said he had no intention of ever engaging in legal practice again.
Continue reading “Solicitor struck off on appeal for corrupt payment”
The matter concerned drug trafficking charges involving 3 co-defendants, including Mr Pham. Legal Aid provided the funding to private lawyers to represent the 3 co-accused at the trial. The co-defendants were all represented by the same firm of solicitors, although not by the same individual solicitors from within that firm.
At trial, one of Mr Pham’s co-defendants gave evidence that implicated Mr Pham in the drug-trafficking crime. Mr Pham did not give nor call any evidence, and relied solely on the evidence given by that co-defendant for his own defence.
Mr Pham was convicted of the drug-trafficking offence as a result of that trial. In making this appeal, Mr Pham alleged that the solicitors representing the co-defendants had failed to advise him about the content of this evidence before the trial. Mr Pham further alleged that this failure allowed him to be inculpated without being afforded the opportunity to explain himself, and that as a result he did not have a fair trial.