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Types of appeals in Queensland and the Federal Courts

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Legal advice

Appeals in the law are creatures of statute: Attorney-General v Sillem [1864] EngR 352; (1864) 10 HLC 704 at 720-721, Mickelberg v The Queen [1989] HCA 35, Deane J at [4], R v Ferguson; ex parte A-G (Qld) [2008] QCA 227 at [20]. In other words, they never existed at common law, but were instead created by legislation. Therefore, appeals can only be made and determined in accordance with statutory provisions and Court rules about appeals, and primary regard must be had to them. The “common law” of appeals is the case law of interpretation of such provisions.

The joint judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (2003) 214 CLR 118 distinguished between four types of appeals:

“[20] Appeal is not, as such, a common law procedure. It is a creature of statute. In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd, Mason J distinguished between (i) an appeal stricto sensu, where the issue is whether the judgment below was right on the material before the trial court; (ii) an appeal by rehearing on the evidence before the trial court; (iii) an appeal by way of rehearing on that evidence supplemented by such further evidence as the appellate court admits under a statutory power to do so; and (iv) an appeal by way of a hearing de novo. There are different meanings to be attached to the word “rehearing”. The distinction between an appeal by way of rehearing and a hearing de novo was further considered in Allesch v Maunz. Which of the meanings is that borne by the term “appeal”, or whether there is some other meaning, is, in the absence of an express statement in the particular provision, a matter of statutory construction in each case.”

It is important for practitioners to understand the different types of appeals in order to be able to know the nature of each type, and therefore how they will be considered and determined. Such knowledge is a prerequisite for practitioners to appraise themselves of the prospects of success in such appeals they may act in.

APPEAL IN THE STRICT SENSE

What is it?

An appeal in the strict sense, also known as an appeal stricto sensu, is the traditional type of appeal: in common law cases, the appellate court could ordinarily review only rulings of law. In England, the Criminal Appeal Act of 1907 introduced the right to criminal appeals against conviction on a question of law.

An appeal in the strict sense is an appeal where the issue is whether the judgment below was right on the material before the trial court: Ponnamma v. Arumogam (1905) AC 383, at p 388. Essentially, the appeal is on a question of law and the central issue is whether the primary judge has committed an error of law.

In Mickelberg v The Queen [1989] HCA 35, Mason CJ noted that:

“an appellate court, in hearing an appeal in the proper sense of the term, is called upon to redress error on the part of the court below. In deciding whether there was error, the appellate court looks to the materials which were before the court below…

“in an appeal in the strict sense the appellate court is confined to the question whether “the order of the Court from which the appeal is brought was right on the materials which that Court had before it”

In such an appeal, the parties are bound by the way they conducted their cases at first instance. The Court may  only set aside the judgment below on a ground not previously raised if the circumstances of the case are such as to justify that exceptional course: Chalmers Leask Underwriting Agencies v. Mayne Nickless Ltd (1983) 155 CLR 279, at p 283.

However, no new facts or evidence can ordinarily be admitted: R v Ferguson; ex parte A-G (Qld) [2008] QCA 227 at [20].

Discretionary decisions will not be set aside, unless there is a clear error by the primary judge. As the High Court stated in the often-quoted decision of House v The King (1936) 55 CLR 499:

“It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

Also, findings of fact based on the credibility of witness testimony will only be reversed if the trial judge “has failed to use or has palpably misused his advantage”, or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or the findings are “glaringly improbable”: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 (Brennan and Gaudron JJ).

Which appeals?

In Queensland, a person convicted in the Supreme or District Court may appeal to the Court against the person’s conviction on any ground which involves a question of law alone. Also, appeals brought by the Attorney-General against sentence under s 669A(1) of the Criminal Code are strict appeals: R v Ferguson; ex parte A-G (Qld) [2008] QCA 227 at [20].

In civil matters, rule 765(2) of the Uniform Civil Procedure Rules 1999 provides that an appeal from a decision, other than a final decision in a proceeding, or about the amount of damages or compensation awarded by a court, is brought by way of an appeal in the strict sense.

An appeal against a decision not to extend a limitation period falls within this category: Kambarbakis v G & L Scaffold Contracting Pty Ltd [2008] QCA 262, [31] (Holmes JA).

APPEAL BY WAY OF REHEARING ON THE EVIDENCE BEFORE THE PRIMARY JUDGE

What is it?

An appeal by rehearing on the evidence before the trial court is similar to an appeal in the strict sense. Again, findings of fact based on the credibility of witness testimony will only be reversed if the trial judge “has failed to use or has palpably misused his advantage”, or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or the findings are “glaringly improbable”: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 (Brennan and Gaudron JJ).

As the High Court said in Fox v Percy (2003) 214 CLR 118:

“The “rehearing” does not involve a completely fresh hearing by the appellate court of all the evidence…

“The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.

Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”. In Warren v Coombes, the majority of this court reiterated the rule that:

‘[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.””

As McGill DCJ observed in Barry v. Queensland Nursing Council [2001] QDC 146, the appeal can be described as:

“an appeal where the appellate tribunal was entrusted with making its own determination on the evidence before it, whether or not new evidence was received. The position was not one where the decision under appeal was to be disregarded, and the proceedings conducted as if there had not already been any decision, but the Misconduct Tribunal was required to make up its own mind on the matter, although being entitled to have regard to the views expressed on a relevant point by the original decision maker.”

It follows from the above that the main difference between an appeal by way of rehearing on the original evidence and a strict appeal is the requirement in the rehearing that the appeal Court draws its own conclusions from the undisputed facts and the factual findings of the trial judge from the disputed facts.

However, an error on the part of the primary judge still needs to be demonstrated in order for the appeal to be successful: Norbis v Norbis (1986) CLR at 518- 519 (per Mason and Deane JJ); Allesch v Maunz (2000) 203 CLR 172 (Majority), Williams v The Minister [2000] NSWCA 255 at [61] per Heydon JA, Scrivener v Director of Public Prosecutions [2001] QCA 454 at [10]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 at [30]; Coster v Bathgate [2005] QCA 210, Teelow v Commissioner of Police [2009] QCA 84; [2009] 2 Qd R 489 at [4]; Commissioner of Police v Al Shakarji [2013] QCA 319 at [7], [65]; White v Commissioner of Police [2014] QCA 121 at [8], Berge v Thanarattanabodee [2018] QDC 121; Hemelaar & Anor v Walsh & Ors [2017] QDC 151 at [7]. However, “a sufficiently clear difference of opinion may necessitate that conclusion.”: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 at [29].

Furthermore, parties are largely bound by the way they conducted their cases at first instance. If a new matter is raised and evidence could have been given which by any possibility could have prevented the point from succeeding, the point cannot be taken: Coulton v Holcombe at [7]-[8]. When an appellate court is faced with a fresh point, it must consider the importance of the finality of litigation, the difficulty of the party against whom the new point is raised reaching back in time to hypothetically assess how their conduct of the trial would or may have been different, the related potential unfairness on counsel conducting an appeal and whether allowing the new point would be in the interests of justice: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 at [38].

Which appeals?

Nowadays, appeals to the Federal Court are by way of rehearing: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 at [20].

Section 93A(2) of the Family Law Act 1975 provides that “in an appeal the Family Court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact”.

In Queensland criminal matters, an appeal against a decision in relation to a criminal offence dealt with summarily in the Magistrates Court can be made to the District Court under section 222 of the Justices Act 1886, and such an appeal is by way of a rehearing: see section 223 of the Justices Act 1886.

Section 118(8) of the District Court Act (Qld) provides that an appeal from the District Court in its original jurisdiction is by way of rehearing, save for its original criminal jurisdiction, providing it relates to an amount or claim for more than the Magistrates Courts jurisdictional limit of $150,000.

In Queensland civil matters, rule 765(1) of the Uniform Civil Procedure Rules 1999 provides that an appeal against a final decision on liability to the Court of Appeal under chapter 18 is an appeal by way of rehearing. This provision also applies to appeals from the Magistrates Court to the District Court: see rule 785(1).

In Murdock v Sterling Law (Qld) Pty Ltd [2019] QDC 226, an appeal against a summary judgment was dealt with by way of rehearing, possibly because summary judgment was considered to be a final judgment.

APPEAL WITH FURTHER EVIDENCE ALLOWED

Discretion of appeal Court

Section 93A(2) of the Family Law Act 1975 provides that the Family Court may in its discretion receive further evidence when exercising its appellate jurisdiction.

In Queensland, rule 766 of the Uniform Civil Procedure Rules 1999 provides that the Court of Appeal may, on special grounds, receive further evidence as to questions of fact, either orally in court, by affidavit or in another way. This provision also applies to appeals from the Magistrates Court to the District Court: see rule 785(1).

Rule 766 therefore confers on the Court of Appeal and the District Court a discretion of whether or not to admit further evidence on appeal.

When further evidence will be allowed

The principles upon which further evidence will be received was discussed by the Court of Appeal in Thomson v Smith [2005] QCA 446 where Muir JA cited the reasons of Lord Wilberforce in Mulholland v Mitchell [1971] AC 666:

I do not think that, in the end, much more can usefully be said than, in the words of my noble and learned friend, Lord Pearson, that the matter is one of discretion and degree. Negatively, fresh evidence ought not to be admitted when it bears upon matters falling within the field or area of uncertainty, in which the trial judge’s estimate has previously been made. Positively, it may be admitted if some basic assumptions common to both sides, have clearly been falsified by subsequent events, particularly if this has happened by the act of the defendant. Positively, too, it may be expected that courts will allow fresh evidence when to refuse it would affront common sense, or a sense of justice.”

Similarly, in Pickering & Anor v McArthur [2010] QCA 341 it was said that:

“Guidance on the exercise of discretion to admit further evidence can also be found by consideration of decisions on preceding rules of court which require firstly that the further evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that if given it would probably have an important influence on the result of the case although it need not be decisive: third, the evidence must be such as to be apparently credible”

Should such evidence be received, the appeal Court may then give judgment as it thinks proper, or order a retrial, as the Court of Appeal did in Wiltshire v Amos [2010] QCA 294.

APPEAL DE NOVO

What is it?

An appeal de novo is the most unfettered type of appeal where the matter is heard afresh, as though the original decision had never been made. Therefore, parties are not bound by the findings at first instance or the way they presented their case at first instance. Parties may lead different evidence, and have a different case than at first instance. The decision-maker on appeal must hear and consider all of the evidence and re-decide the matter on the evidence before them.

Which appeals?

Section 96 of the Family Law Act 1975 provides that appeals from courts of summary jurisdiction shall proceed by way of a hearing de novo, unless the appeal is referred to a Full Court of the Family Court, in which case the Family Court may decide to have the appeal determined de novo.

Such appeals allowed for in Queensland are rare. The Uniform Civil Procedure Rules 1999 does not provide for any such appeals.

In criminal matters, a magistrate’s decision to dismiss a private complaint can be appealed against to the Supreme Court, and such an appeal is by way of an appeal de novo: see section 102D of the Justices Act 1886. Similarly, bail applications to the Supreme Court are usually made after bail has been refused by the Magistrates or District Court. Although technically a new application, it could be said in such cases to be a de facto appeal de novo.

Appeals under the Workers’ Compensation and Rehabilitation Act 2003 to the industrial commission are appeals de novo. However, appeals from the industrial commission to the industrial court are by way of rehearing on the evidence below unless the court orders that additional evidence be heard: see section 561 of the Workers’ Compensation and Rehabilitation Act 2003.

APPEAL SUBJECT TO LEAVE

An appeal in the strict sense or an appeal by rehearing on the evidence before the trial court can be subject to leave.

In other words, leave will be required in order for the appeal to be considered proper and determined on the merits. This is a barrier which restricts the number of matters that can be appealed from. There is case law that explains when leave may be granted.

When is leave required?

Section 45 of the Magistrates Courts Act 1921 provides that for Magistrates Court proceedings that are less than the minor civil dispute limit (currently $25,000), an appeal shall lie only by leave of the District Court, which will only be granted if some important principle of law or justice is involved.

Section 118 of the District Court Act 1967 provides that a party who is dissatisfied with a judgment of the District Court, whether in the court’s original or appellate jurisdiction, may appeal to the Court of Appeal, however should the judgment be for an amount or property worth less than the Magistrates Courts jurisdictional limit (currently $150,000), the appeal can only proceed with the leave of the Court of Appeal: see s118(3).

Furthermore, under section 150(3)(b) of the QCAT Act, the Court of Appeal’s leave to appeal will be required to appeal to it against a decision of QCAT’s appeal tribunal.

In a criminal law appeal to the Federal Court of Australia, leave is required unless the appeal involves a question of law alone: see sections 30AA and 30AB of the Federal Court of Australia Act.

For an appeal to the Federal Court under the Federal Court Rules 2011, any appeal against an interlocutory decision is subject to leave: see rules 35.10 and 35.11.

Section 94AA of the Family Law Act 1975 provides that leave is required to appeal against a prescribed decree by the Family Court or Supreme Court of a State or Territory constituted by a single Judge, or by the Federal Circuit Court of Australia and the Magistrates Court of Western Australia.

As is well known, before any appeal to the High Court can be dealt with on the merits, there is a need to apply for and then obtain the leave of one or more High Court judges. In most cases, once leave is granted a separate hearing will be conducted to determine the appeal.

When leave will be granted

The oldest leading authority of this test is the decision of Griffiths CJ in Johansen v. City Mutual Life Assurance Society Ltd 1904 12 C.L.R. 186, at p. 188, later quoted and applied in Wanstall v Burke [1925] St R Qd 295:

“The practice we have always laid down… [is] of not granting special leave to appeal unless we are of the opinion that the case is one of gravity, or involving some important questions of law, or affecting property of considerable value; or unless it is a case which is otherwise of public importance, or is of a very substantial character.”

In Ramzy v Body Corporate for GC3 CTS38396 & Anor [2012] QDC 397, McGill DCJ also commented that:

“It has also been said that an important principle of justice requires that there be a question going beyond the consequence of the decision for the immediate parties to the proceeding: American Express International Inc v Hewitt [1993] 2 Qd R 352.”

In the Federal Court of Australia, the key principle informing the determination of whether to grant leave to appeal from a decision of a single judge is the decision that best promotes the overarching purpose, being the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible:Nationwide News Pty Limited v Rush [2018] FCAFC 70 at [1]. An applicant must usually show that in all the circumstances, the decision to be appealed is attended with sufficient doubt to warrant its reconsideration on appeal and that supposing the decision to be wrong, substantial injustice would result if leave were refused: Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCAFC 844; (1991) 33 FCR 397 at 398-399 (Sheppard, Burchett and Heerey JJ). The sufficiency of the doubt in respect of the decision to be appealed and the question of substantial injustice bear upon each other so that the degree of doubt which is sufficient in one case may be different from that required in another. It has also been said that the considerations are cumulative such that leave ought not be granted unless each limb is made out: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139; (2010) 81 ATR 36 at 38 [5] (Ryan, Stone and Jagot JJ); Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd [2017] FCAFC 98; (2017) 252 FCR 1 at 4 [3] (Jagot, Yates and Murphy JJ).

Similarly, in order to secure leave to appeal in the Family Court of Australia, the appellants need to establish that the decision of the primary judge is attended by sufficient doubt to warrant it being reconsidered, and that substantial injustice would result if leave was refused: Medlow & Medlow (2016) FLC 93-692; E Pty Ltd and Ors & Zunino and Anor [2020] FamCAFC 216 at [3].

The very nature of the test shows that leave is not ordinarily granted. There must be some special feature of the proposed appeal concerning an important principle or point of law, or it must be a matter of significant gravity compared with other cases. The leave requirement is a barrier that restricts the appeals that can be heard and determined on their merits.

CONCLUSION

There are multiple types of appeals which exist in Queensland and the Federal Courts, depending on the body appealed from, the Court or body appealed to, and the value in dispute. Understanding which type of appeal applies, and nature of each appeal is essential to advising on the prospects of success on appeal, as well as how the appeal should be conducted in order to maximise the chances of success.

Strict appeals and appeals by way of rehearing are substantially similar because in both cases error needs to be established at first instance, however there are subtle differences. In appeals which are rehearings, there is a greater scope to admit further evidence, review findings made from undisputed facts, and assess the credibility of witnesses who gave evidence in court, subject to due allowance for the primary judge’s views.

An appeal de novo on the other hand means that the matter is heard afresh, and the decision at first instance is immaterial. There is therefore no need to demonstrate any error, and parties can run their cases differently and present new evidence, because they are not bound by the proceedings at first instance.

An appeal subject to leave needs to identify an important principle or a significant injustice in order for leave to be granted. In many cases, that if a difficult barrier to overcome. Appeals subject to leave are typically the most difficult types of appeals to succeed in for that reason.

Appeal bail refused for Kleenmaid director despite Covid-19 risks

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jail

The facts

Former Kleenmaid director Andrew Eric Young was convicted after a trial of two counts of fraud with circumstances of aggravation and 17 counts of insolvent trading. Prior to trial the Mental Health Court held he was fit for trial and the proceedings should continue according to law, and the trial judge refused to put that issue to the jury.
Continue reading “Appeal bail refused for Kleenmaid director despite Covid-19 risks”

George Pell convictions quashed on appeal to High Court

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Today, the High Court has allowed former Cardinal George Pell’s appeal against his convictions.

Pell

THE FACTS

In December 2018, controversial Catholic Church Cardinal George Pell was convicted by a jury 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 had resulted in a hung jury.
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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. Continue reading “George Pell’s appeal against convictions dismissed”

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.

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

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Baden Clay

The facts

Allison Baden-Clay was reported missing by her husband Gerard Baden-Clay on the morning of 20 April 2012.

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

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

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

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

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

Relevant law

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

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

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

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

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

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

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

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

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

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

Court of Appeal decision

The 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.

High Court decision

The Crown appealed to the High Court.

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

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

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

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

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

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

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

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

The High Court also observed that a further problem with the Court of Appeal’s approach was that at trial the case was conducted on the basis that Baden-Clay was either guilty 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.

Conclusion

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

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

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

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

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

Serial rapist’s appeals against conviction & severe sentence dismissed

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Ashraf Kamal Makary

The facts

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

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

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

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

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

(a) the complainants are all young Korean women;

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

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

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

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

(f) Makary selected the meeting place and time;

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

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

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

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

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

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

Makary gave evidence at his own trial.

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

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

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

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

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

Relevant law

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

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

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

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

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

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

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

(d) that the DNA analyst—

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

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

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

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

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

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

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

Court of Appeal decision

Appeal against conviction

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

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

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

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

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

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

Appeal against sentence

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

Serial rapist’s prior convictions held to be admissible

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The Queensland Court of Appeal has upheld the convictions of a rapist whose prior rape convictions were admitted into evidence at his trial.

jail

The facts

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.
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