Generally, indictable offences in Queensland are dealt with by the District or Supreme Courts, as they are usually serious offences. However, in some cases, indictable offences can or must be dealt with in the Magistrates Court.
Section 1 of the Criminal Code 1899 (Qld) defines an “indictment” to mean a written charge preferred against an accused person in order to the person’s trial before some court other than justices exercising summary jurisdiction. A “summary conviction” is defined as summary conviction before a Magistrates Court.
Section 3 of the Criminal Code provides that offences are of 2 kinds, namely, criminal offences and regulatory offences. Criminal offences comprise crimes, misdemeanours and simple offences. Crimes and misdemeanours are indictable offences, which means that the offenders cannot, unless otherwise expressly stated, be prosecuted or convicted except upon indictment. A person guilty of a regulatory offence or a simple offence may be summarily convicted by a Magistrates Court.
Sections 1 and 3 of the Code make it clear that the indictable offences are to be dealt with in the District or Supreme Courts, unless the Code provides otherwise. In the District or Supreme Courts, a jury is normally the trier of fact in a criminal trial. In contrast, a trial in the Magistrates Court is a called a summary trial, and the presiding Magistrate is the sole trier of fact. A matter dealt with summarily is dealt with in the Magistrates Court.
Chapter 58A of the Criminal Code (containing sections 552A -552BB inclusive) provides for when indictable offences must or can be heard summarily.
Section 552A of the Criminal Code provides for a list of indictable offences which must be dealt with summarily on Prosecution election.
Section 552B of the Criminal Code provides for a list of indictable offences which must be dealt with summarily, unless the defendant elects for a jury trial.
Section 552BA of the Criminal Code provides for a list of indictable offences which must be dealt with summarily, unless they are excluded offences under section 552BB of the Code.
Sections 552A, 552B and 552BA of the Criminal Code are all subject to section 552D, which provides that the Magistrates Court must abstain from hearing and determining a charge and must instead conduct a committal proceeding if it is an offence listed at Schedule 1C of the Penalties and Sentences Act 1992, the Court is of the view that the defendant may not be adequately punished on summary conviction after considering submissions or if exceptional circumstances exist.
Section 552H of the Criminal Code provides that the maximum period of imprisonment under section 552A , 552B or 552BA is three years, unless the court is constituted by a magistrate imposing a drug and alcohol treatment order, in which case the maximum penalty is four years imprisonment.
The list of indictable offences that must be dealt with summarily on Prosecution election is contained at section 552A(1) of the Criminal Code.
The offences listed include the commission, counselling or procuring, attempt or becoming an accessory after the fact of any of the following offences under the Criminal Code:
Section 141: Aiding persons to escape from lawful custody.
Section 142: Escaping from lawful custody.
Section 143: a person responsible for keeping someone in from lawful custody permitting escape from lawful custody.
Section 205A: Contravening order about information necessary to access information stored electronically.
Section 340: assaults committed with intent to commit a crime, or as part of an unlawful conspiracy in relation to any manufacture, trade, business, or occupation or committed against a police officer, a person performing a legal duty, a person aged over 60, or a person who relies on a guide, hearing or assistance dog, wheelchair or other remedial device.
The indictable offences that must be dealt with summarily unless the defence elects for a jury trial are listed at Section 552B(1) of the Code.
The offences listed include the commission, counselling or procuring, attempt or becoming an accessory after the fact of any of the following offences under the Criminal Code:
A sexual offence without a circumstance of aggravation for which the defendant has pleaded guilty, the complainant is at least 14 years of age and the maximum sentence is more than three years.
Section 339: assault occasioning bodily harm which is not committed in company, without the use of a dangerous or offensive weapon or instrument and not during the term of a community service order.
An offence involving an assault without a circumstance of aggravation and which is not of a sexual nature, and for which the maximum penalty is more than 3 years but not more than 7 years.
Section 60A: Participants in criminal organisation being knowingly present in public places.
Section 60B: Participants in criminal organisation entering prescribed places and attending prescribed events.
Section 76: Recruiting a person to become participant in criminal organisation.
Section 77B: Habitually consorting with recognised offenders.
Section 328A: Dangerous operation of a vehicle (with a circumstance of aggravation at Section 328A(2)).
359E Punishment of unlawful stalking if the maximum term of imprisonment for which the defendant is liable is not more than 5 years.
An offence against chapter 14 (Corrupt and improper practices at elections), division 2 (Legislative Assembly elections and referendums), if the maximum term of imprisonment for which the defendant is liable is more than 3 years.
An offence against chapter 22A (Prostitution), if the maximum term of imprisonment for which the defendant is liable is more than 3 years.
An offence against chapter 42A (Secret Commissions).
Section 552BA(4) of the Code provides that ‘relevant offences’ must be heard and dealt with summarily.
Relevant offences are defined as indictable offences which either:
The list of excluded offences contained in the table of Section 552BB includes the following offences:
The list of excluded offences contained in the table of Section 552BB also includes the following indictable offences if committed in the following circumstances:
Section 398: stealing – if:
the amount stolen, yield or detriment is equal or more than $30,000, and the offender does not plead guilty; or
the thing stolen was a firearm for use in another indictable offence.
Section 399: fraudulent concealment of documents – if the offence is not committed in relation to a document recording title to property, or the yield or detriment is equal or more than $30,000 and the offender does not plead guilty.
Section 403: Severing with intent to steal – if the amount in question is equal or more than $30,000 and the offender does not plead guilty.
Section 406: Bringing stolen goods into Queensland – if the amount in question is equal or more than $30,000 and the offender does not plead guilty.
Section 408A: Unlawful use or possession of motor vehicles, aircraft or vessels – if the value of the motor vehicle, aircraft or vessel is equal or more than $30,000 and the offender does not plead guilty, or if the offender is liable for at least 10 years imprisonment (ie if they used the vehicle for the commission of an indictable offence or intended to or did wilfully destroy, damage, remove or otherwise interfere with the mechanism (or part thereof) or other part of or equipment attached to the motor vehicle, aircraft or vessel).
Section 408C: Fraud – if the amount in question is at least $30,000 and the offender does not plead guilty.
Section 408E Computer hacking and misuse – If the offender causes a detriment or damage or obtains a benefit for any person to the value of more than $5,000, or intends to commit an indictable offence, and the offender does not plead guilty.
Chapter 38 Stealing with violence or extortion by threats – excluding sections 413 (Assault with intent to steal) and 414 (Demanding property with menaces with intent to steal).
Section 419 Burglary – if:
the offender uses or threatens to use actual violence;
the offender is or pretends to be armed;
the offender damages or threatens to damage any property by at least $30,000 in value and the offender does not plead guilty; or
the offender then commits an indictable offence in the dwelling.
the offender commits an indictable offence in the premises which must proceed on indictment; or
the offender enters by means of a break and the value of damage caused by the break is of at least $30,000.
Section 427 Unlawful entry of vehicle for committing indictable offence – if the offence is committed in the night or the offender uses or threatens violence, pretends to be armed, is in company or damages or threatens to damage any property.
Section 430 Fraudulent falsification of records – if the amount in question is equal or more than $30,000 and the offender does not plead guilty.
Section 433 Receiving tainted property – if the amount in question is equal or more than $30,000 and the offender does not plead guilty.
Section 435 Taking reward for recovery of property obtained by way of indictable offences – if the amount in question is equal or more than $30,000 and the offender does not plead guilty.
Chapter 44 Offences analogous to stealing related to animals – if the value of the animals is at least $30,000 and the offender does not plead guilty.
Section 468 Injuring animals– If the animal in question is stock, the value of the animals is at least $30,000 and the offender does not plead guilty.
Section 469 Wilful damage – if any of the following apply:
property is damaged or destroyed by explosion;
the property in question is—(i) a bank or wall of the sea or inland water; or(ii) a work relating to a port or inland water; or
if the property in question is any part of a railway, or any work connected with a railway
If the property in question is an aircraft or anything whatever either directly or indirectly connected with the guidance control or operation of an aircraft
If the property in question is a vessel, a light, beacon, buoy, mark or signal used for navigation or for the guidance of sailors, a bank, work or wall of the sea or inland water
If the property in question is a manufacturing or agricultural machine or another thing used, or intended for use, for manufacture or for performing a process connected with the preparation of agricultural produce and is destroyed or rendered useless
If the property in question is a well or bore for water or the dam, bank, wall, or floodgate of a millpond or pool.
Section 471 Damaging mines – if the value of the damage is at least $30,000 and the offender does not plead guilty.
Section 472 Interfering with marine signals – if the value of any damage or detriment is at least $30,000 and the offender does not plead guilty.
Section 473 Interfering with navigation works – if the value of any damage or detriment is at least $30,000 and the offender does not plead guilty.
Section 474 Communicating infectious diseases to animals – if the value of any damage or detriment is at least $30,000 and the offender does not plead guilty.
Section 488 Forgery and uttering – if the document is a valuable security, insurance policy, testamentary instrument (whether the testator is living or dead) or registration document or is evidence of an interest in land, or a power of attorney, contract or document kept or issued by lawful authority OR the value of any yield or detriment is at least $30,000 and the offender does not plead guilty.
Section 498 Falsifying warrants for money payable under public authority – if the value of any yield or detriment is at least $30,000 and the offender does not plead guilty.
514 Personation in general – If the representation is that the offender is a person entitled by will or operation of law to any specific property, and the person commits the offence with intent to obtain such property or possession thereof or the value of any yield or detriment is at least $30,000 and the offender does not plead guilty.
There a number of indictable offences in Queensland that can or must be dealt with summarily in the Magistrates Court. Generally speaking, an indictable offence must be dealt with summarily if it carries a maximum sentence of three years or less, or it is an offence under part 6 of the Code (excluding Chapter 42A) for which the monetary value is less than $30,000 or the offender pleads guilty, and the offender is liable for a maximum period of imprisonment which is less than 14 years imprisonment.
When considering whether an indictable offence could or should must be dealt with summarily, one should consider the following:
As the Magistrates Court deals with offences more quickly and can normally only sentence an offender for up to three years imprisonment, there are potential advantages for a defendant in having a matter dealt with summarily. However, such a course is subject to section 552D, which requires the Magistrate to abstain from exercising its jurisdiction if the offender may not be adequately sentenced or if there are exceptional circumstances.
In December of last year, controversial Catholic Church Cardinal George Pell was convicted of one count of sexual penetration of a child under the age of 16 and four counts of an indecent act with a child under the age of 16 over allegations of abusing choirboys at Melbourne’s St Patrick’s Cathedral in the 1990s. This followed a previous trial that resulted in a hung jury.
The complainant said he and another choirboy left the liturgical procession at the end of one Sunday mass and went fossicking in the off-limits sacristy where they started swilling altar wine. Pell allegedly arrived unaccompanied, castigated them, and then, while fully robed in his copious liturgical vestments, proceeded to commit three sexual acts, including oral penetration of the complainant. The complainant said the sacristy door was wide open and altar servers were passing along the corridor. The complainant said he and the other boy then returned to choir practice.
Prior to both trials, Pell had been subject of substantial adverse pre-trial publicity, including a Royal Commission into child sex abuse, a book by Louise Milligan described as a hatchet job and an abusive song by Tim Minchin.
At common law, a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law (Woolmington v DPP  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);…
(b) B is a child under the age of 16 years.
(2) A person who commits an offence against subsection (1) is liable to level 4 imprisonment (15 years maximum).
“Here is why I don’t believe this gothic story — or not enough to think this conviction reasonable.
One of the boys, now dead, denied he’d been abused.
The other, whose identity and testimony remain secret, didn’t speak of it for many years.
The attack is meant to have happened straight after Mass, when Pell is known to have traditionally spoken to worshippers leaving Mass.
It allegedly happened in the sacristy, normally a very busy room, where Pell would have known people were almost certain to walk in.
The boys had allegedly slipped away from the procession after Mass to break into the sacristy, but none of the other choristers who gave evidence said they’d noticed them doing so, or noticed them rejoining the choir later.
Pell was normally followed everywhere during and after Mass by the master of ceremonies, Monsignor Charles Portelli, who testified that he escorted the then Archbishop from the moment he arrived at the cathedral, until the moment he left. He declared the assault impossible. Not a single witness from what was a busy cathedral at the time of the alleged abuse noticed a thing during the estimated 10 minutes of this alleged attack.”
“The second boy was once asked by his mother if he had ever been abused by anybody and he said he had not…
Anyone familiar with the conduct of a solemn cathedral mass with full choir would find it most unlikely that a bishop would, without grave reason, leave a recessional procession and retreat to the sacristy unaccompanied.
Witnesses familiar with liturgical vestments were called. They gave compelling evidence it was impossible to produce an erect penis through a seamless alb. An alb is a long robe, worn under a heavier chasuble. It is secured and set in place by a cincture, which is like a tightly drawn belt. An alb cannot be unbuttoned or unzipped, the only openings being small slits on the side to allow access to trouser pockets.
The complainant’s initial claim to police was that Pell had parted his vestments, but an alb cannot be parted; it is like a seamless dress.
Later, the complainant said Pell moved the vestments to the side. An alb secured with a cincture cannot be moved to the side. The police never inspected the vestments during their investigations, nor did the prosecution show that the vestments could be parted or moved to the side as the complainant had alleged. The proposition that the offences charged were committed immediately after mass by a fully robed archbishop in the sacristy with an open door and in full view from the corridor seemed incredible to my mind.
I was very surprised by the verdict. In fact, I was devastated. My only conclusion is the jury must have disregarded many of the criticisms so tellingly made by Richter of the complainant’s evidence…
Pell has been in the public spotlight for a very long time. There are some who would convict him of all manner of things in the court of public opinion, no matter what the evidence. Others would never convict him of anything, holding him in the highest regard. The criminal justice system is intended to withstand these preconceptions. The system is under serious strain, when it comes to Pell.”
“The main institutions involved here are the media and the police. The media must report cases fairly, abide by the letter and spirit of the law, and not barrack for either side. The police present evidence impartially, working for justice, not conviction. Media and police never combine to form a pro-conviction cheer squad.
This is where the Pell case has gone terribly wrong. Impartial judge and jury accepted, parts of the media — notably the ABC and former Fairfax journalists — have spent years attempting to ensure Pell is the most odious figure in Australia. They seemed to want him in the dock as an ogre, not a defendant.
Worse, elements of Victoria Police, including Chief Commissioner Graham Ashton, co-operated in this. Ashton’s repeated announcements of impending charges and references to “victims” rather than “alleged victims” were matched only by the coincidences in timing between police pronouncements and favoured media exclusives…
So what we have witnessed is a combined effort by much of the media, including the public broadcaster, and elements of Victoria’s law enforcement agency, to blacken the name of someone before he went to trial…
This is not a story about whether a jury got it right or wrong, or about whether justice is seen to prevail. It’s a story about whether a jury was ever given a fair chance to make a decision, and whether our justice system can be heard above a media mob.”
“There have been two trials of Cardinal George Pell — in the court of justice to decide if he was guilty of sexual abuse of children, and in the court of public opinion over nearly two decades that saw him accused of indifference, deception and ultimately evil compliance in the monumental sins of the Catholic Church.
The tests in these trials are different. The test in the first trial was whether the evidence showed Pell guilty “beyond reasonable doubt” as a sexual predator who abused his authority to brutally exploit two choirboys. There is no test in the second trial — no judge or jury — just the hardening of opinion towards Pell and then his demonisation as the nation’s senior Catholic during the long and climactic revelations of unforgivable sexual abuse within the church.
The law requires these trials to be separate. Indeed, justice depends upon it. Yet how realistic is this?…
Pell cannot escape responsibility for the failures of the church but the sustained visceral hostility towards Pell transcends institutional accountability. The vile hatred towards him is worse than displayed towards a serial killer. Veteran lawyers said privately they had never seen anything like it in their careers. What does this tell us not just about Pell but about ourselves? The Pell story goes beyond the institutional and cultural failure of the Catholic Church. It is far bigger, more complicated and dangerous…
Pell arrived suddenly, censured them and then, with the sacristy door open, people passing in the corridor, and still in his heavy mass vestments including the alb, a long secured vestment without front buttons or zipper, proceeded to sexually assault the boys, whom he did not know, in an extremely brief period of time. There was no witness to support the complainant. The former choirboy’s evidence was given in secret. Brennan called the entire scenario “incredible”.”
“For many it is clear that Pell’s jailing is a watershed moment that has delivered some kind of catharsis, some sense that the system finally worked — perhaps even some sense of revenge. For many others — including the dead — it is far too little, far too late.
Certainly it has been clear from many responses, by survivors and commentators alike, that they see Pell as being punished for many other crimes on top of the one confirmed in the Victorian County Court.
But by conflating one incident at St Patrick’s Cathedral in the mid-1990s with the myriad atrocities committed by Catholic clergymen throughout the decades — including Pell’s own sins of omission — the sense of justice may be short lived.
As satisfying as it may be for victims of church abuse to see Pell punished, it is vital that he is punished for the right thing.”
If the above reports are true (and there are no important facts which would have supported the convictions), it seems likely that it was not open to the jury to be satisfied of Pell’s guilt beyond reasonable doubt and he should have his conviction overturned on appeal. It is unsurprising that legal experts assess Pell’s chances of having his conviction overturned on appeal as quite good.
Victoria (unlike NSW and QLD) does now allow for judge only trials. Serious consideration should be given to changing this, as the Pell case demonstrates the need for defendants who have received such awful pre-trial publicity to have their case tried in a way where such adverse publicity will not affect the result of the trial.
And given that this is the case, a successful appeal should probably lead to a verdict of not guilty being entered instead of another retrial.
Nicola Gobbo, the barrister at the centre of the scandal that sparked the Victorian Royal Commission into the Management of Police Informants has been publicly identified, after orders made to conceal her identity were lifted today.
Ms Gobbo’s history:
“A former legal counsel to some of Australia’s most notorious criminals, Ms Gobbo is understood to have helped Victoria Police in at least 386 cases involving Melbourne’s underworld during her time acting as a paid police informant, following her initial recruitment in 1995.
The information she provided helped lead to the arrest and conviction of many, including some of her clients such as gangland boss Tony Mokbel, who in 2012 was sentenced to 30 years’ for his head role in the infamous multimillion-dollar drug syndicate known as ‘The Company’.
Following the December announcement that there would be a Royal Commission into the Management of Police Informants, largely centred around a female barrister who the public now knows to be Ms Gobbo, Victoria’s Director of Public Prosecutions, Kerri Judd QC, wrote to 20 criminals — including Mokbel — to tell them their convictions may have been affected as a result of Ms Gobbo’s role in acting as a police informant.
“EF [the barrister’s pseudonym], while purporting to act as counsel for the convicted persons, provided information to Victoria Police that had the potential to undermine the convicted persons’ defences to criminal charges of which they were later convicted”, the December High Court judgment noted.
“EF’s actions in purporting to act as counsel for the Convicted Persons while covertly informing against them were fundamental and appalling breaches of EF’s obligations as counsel to her clients and of EF’s duties to the court.
“Likewise, Victoria Police were guilty of reprehensible conduct in knowingly encouraging EF to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will.
“As a result, the prosecution of each convicted person was corrupted in a manner which debased fundamental premises of the criminal justice system.”
In first announcing the royal commission, the Andrews government issued a statement, saying that the integrity of the criminal justice system is paramount, and all people charged with crimes are entitled to a fair trial, no matter who they are.
The same statement acknowledged that while Victoria Police assured the state government that “its practices have changed since the barrister’s recruitment as an informant”, the Victorian community “has a right to further independent assurance that these past practices have been stamped out, as well as an understanding of what happened in this instance”.
“The royal commission will provide that assurance,” the state government said.”
Cardinal George Pell, Australia’s most senior Catholic and formerly the third highest ranking official in the Vatican, was charged with historical child sex offences in June 2017.
In December of last year he was convicted of one count of sexual penetration of a child under the age of 16 and four counts of an indecent act with a child under the age of 16.
Due to a trial for further sex offences, a suppression order was made preventing the media in Australia from reporting on the matter.
That suppression order has now been lifted due to the dropping of charges against him related to the alleged indecent assault of boys at the Eureka swimming pool in Ballarat in the 1970s:
“Cardinal George Pell has become the world’s most senior Catholic official to be convicted of child sexual abuse, after a jury found him guilty of abusing two choirboys at a Melbourne cathedral just months into his appointment as Archbishop in 1996…
Some details of the allegations against him were made public in a committal hearing in March, 2018, but the criminal cases against him have proceeded in secret, due to court-ordered suppression orders.
Pell was tried twice over allegations of abusing choirboys at Melbourne’s St Patrick’s Cathedral in the 1990s. The first trial in August resulted in a hung jury. At a second trial in December he was convicted of one count of sexual penetration of a child under the age of 16 and four counts of an indecent act with a child under the age of 16.
The December jury took three-and-a half days to find Pell guilty of orally raping a 13-year-old choirboy and molesting his friend after Sunday Solemn Mass at St Patrick’s Cathedral in 1996.”
Father Frank Brennan is not sure the jury got it right. Unsurprisingly, an appeal against conviction has been filed.
One suspects the sentence would have been more severe if he hadn’t been suffering from muscular dystrophy, although the guilty plea no doubt also helped:
Callum Joseph Haggerty was slumped in the dock, unable to look at the judge as she delivered her verdict in the Brisbane District court this morning saying that the acts were “despicable”.
On two occasions in 2015, victims were women that he had met online, where he used misleading information to lure them in, claiming he was a wealthy business owner.
He then used physical violence on multiple occasions to overpower the women, resulting in their respective rapes.
While on bail in 2016 for the previous offences he claimed a third victim.
The court heard that Haggerty used language such as, “It could be a lot worse for you” and “suck it up b**ch,” as a means to intimidate and humiliate his victims.
Prosecutor Matthew Hynes said in his submission that the rapist had an “appalling attitude towards women” and that his remarks were “cold blooded”. Continue reading “Online dating rapist sentenced to 10 years”
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.
A jury has decided that accused Bourke Street driver James Gargasoulas should stand trial.
Section 6 of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) provides:
When is a person unfit to stand trial?
(1) A person is unfit to stand trial for an offence if, because the person’s mental processes are disordered or impaired, the person is or, at some time during the trial, will be—
(a) unable to understand the nature of the charge; or
(b) unable to enter a plea to the charge and to exercise the right to challenge jurors or the jury; or
(c) unable to understand the nature of the trial (namely that it is an inquiry as to whether the person committed the offence); or
(d) unable to follow the course of the trial; or
(e) unable to understand the substantial effect of any evidence that may be given in support of the prosecution; or
(2) A person is not unfit to stand trial only because he or she is suffering from memory loss.
Two psychiatrists and a psychologist gave evidence at a Victorian Supreme Court hearing to determine Gargasoulas’ current mental state and his fitness to stand trial.
All three experts agreed that Gargasoulas was suffering from paranoid schizophrenia and delusions. Forensic psychiatrists Andrew Carroll and Lester Walton opined that Gargasoulas could not enter a plea, give instructions to his lawyers or understand the substantial effect of the evidence. However, Michael Daffern, a psychologist was of the view that Gargasoulas was fit.
The jury determined that Gargasoulas was fit for trial and should face six counts of murder and 28 counts of attempted murder.
Michael James Quinn has the dubious honour of being the first solicitor in Queensland legal history to be struck off twice.
Normally when a lawyer is removed from the roll (‘struck off’) that effectively ends their legal career, as they are permanently ineligible to obtain a practising certificate which would enable them to practice law again. In this case, the unusual history of the matter led to the practitioner being struck off twice. Continue reading “Solicitor struck off for the second time”
What if a lawyer knows that their own client is guilty of the offence(s) for which they have been charged? This is a question that lawyers are often asked, although perhaps surprisingly not often by criminal clients.
In short, the answer depends on whether a lawyer’s knowledge of their client’s guilt arises from the evidence against them, or whether it’s because the client has confessed their guilt to their lawyer.
In the first scenario, the lawyer’s knowledge could perhaps be better characterised as belief if the client disputes their guilt.
On the other hand, when a client confesses to their own lawyer there is almost always no reason for them doing so other than because they are in fact guilty. Their guilt can normally be safely assumed.
This post will address each scenario.
If the evidence against the client is extremely strong and their lawyer believes as a result of the evidence that a conviction is certain, then the lawyer should advise their client to plead guilty. In practice, this is best done after the lawyer has listened to the client’s side of the story for two reasons. Firstly, hearing what the client has to say will ensure that there are no facts that the lawyer is aware or that they have overlooked or not previously been aware of. Secondly, by listening the lawyer will have hopefully built up some rapport so that the client will be more like to take the lawyer’s advice.
When advising the client to plead guilty, the lawyer would need to explain the basis of their opinion to the client so that he or she can make a fully informed decision. It is after all their decision, not the lawyer’s. It would also be important to mention that a guilty plea leads to a reduced sentence and avoids the stress of a trial. If the client takes the advice, then the lawyer has acted in the client’s best interests even though they have been convicted on their own plea. Of course, the interests of justice will also have been furthered in that a guilty person will have been convicted and a trial will have been avoided.
However, if the client listens to the lawyer’s advice and is adamant that they will nevertheless plead not guilty, the lawyer must accept their decision. It is an accused person’s right to plead not guilty, even if they did in fact commit the offence(s) they are charged with. The lawyer must not in any way seek to interfere with that right. Criminal defendant lawyers have often represented clients who they thought were guilty but who wished to plead not guilty. There is nothing wrong with defending a client who the lawyer believes is guilty, for the reasons set out below.
The first reason why it is perfectly ethical to defend a client who the lawyer knows or believes is guilty is that the lawyer is not the person whose role it is to decide whether or not the client is guilty. As Johnathan Goldberg has said, “a defending advocate is not there to stand in judgment upon his own client”. That role belongs to a judge or jury, as the case may be.
Assuming that no evidence is excluded from the trial, the judge or jury reaching the verdict will have all the evidence that the lawyer has to decide for themselves whether or not the client is guilty.
If the lawyer refuses to act for a client because they believe they are guilty, the lawyer is to a degree assuming the judge or jury’s role as being the decider of guilt. As David Whitehouse QC has pointed out:
“Usually I have my own view of the merits of the defence, but even if the prosecution case is very strong, if my client tells me he’s innocent I have to act for him, because it is a cardinal rule of the profession that we are not allowed to refuse to represent someone because we don’t like them or because we don’t believe in their case. Otherwise, some people wouldn’t get a barrister to defend them at all. The system is based on the idea that there’s a barrister on each side, the jury looks at the case from both angles and makes up its mind. It only works properly if both sides are represented.”
Furthermore, what if the lawyer was wrong in their belief that the client was guilty, but continued to act for them and let that belief influence how well they defended the client? Then if the client was convicted, the lawyer would be at least partly responsible for a great injustice. Furthermore, whilst the client can appeal a judge or jury’s decision, if the lawyer decided their client was guilty and let that affect their performance, that would not be a ground for appeal unless that could somehow be proven (which in practice may be very hard to do). It would be extremely improper and dangerous for a lawyer to engage in such hubris.
In practice, a client confessing to their lawyer is almost unheard of, although it did happen in the infamous Lake Pleasant case. Nevertheless, in Australia there are clear rules for lawyers in this situation.
One important rule that applies is client confidentiality. Even if a client confesses to the lawyer, the lawyer is still bound by confidentiality to not disclose that communication to others. If the lawyer is ever called as a witness in court and asked about communications made by the client to the lawyer, the lawyer can and must claim privilege and refuse to answer the question. However, if a client confesses to someone who is not their lawyer (or an employee of a law firm), then such a confession can be disclosed and used in evidence. This is what occurred in the Max Sica trial. Sica was subsequently convicted of a triple murder.
There are sound reasons for client confidentiality. If the lawyer could or had to disclose such confidential communications, then the role of the lawyer would be closer to that of an impartial investigator (such as a police officer) than a lawyer. This could well result in clients not trusting their lawyers and not being frank to their lawyers, even when they are innocent. This in turn can seriously undermine the defence, as the lawyer is not aware of all the facts that may assist or hinder the client’s case.
There are many reasons why someone who is innocent of an offence may require confidentiality in order to have the confidence to reveal things to their lawyers which may assist his or her case. Weakening client confidentiality could result in innocent people being convicted, or mitigating facts not being raised during sentence.
Duty to not mislead the court
Notwithstanding client confidentiality, if the client admitted his or her guilt to the lawyer, the obligation to not mislead the court would still apply. However, in Australia this obligation would alter how the lawyer can defend the client.
If the client tells the lawyer they are guilty the lawyer can still defend them, although the lawyer is not obliged to if someone else can be found in proper time to represent the client and the client does not insist the lawyer represents them. However, in defending the client the lawyer is not allowed to advance a positive case which the lawyer knows to be untrue. This is dealt with in rule 20.2 of the Australian Solicitors Conduct Rules 2011. Those rules provide that in such a case, the lawyer:
(i) must not falsely suggest that some other person committed the offence charged;
(ii) must not set up an affirmative case inconsistent with the confession;
(iii) may argue that the evidence as a whole does not prove that the client is guilty of the offence charged;
(iv) may argue that for some reason of law the client is not guilty of the offence charged; and
(v) may argue that for any other reason not prohibited by (i) and (ii) the client should not be convicted of the offence charged
In other words, the lawyer can put the prosecution to proof (force them to prove their case) and argue that the evidence is not strong enough evidence for the client to be convicted, or argue that the client’s alleged conduct does not amount to a criminal offence for legal reasons. The lawyer can also try to weaken the evidence by cross-examining witnesses (without advancing a positive case), arguing that particular pieces of evidence prove little and so on. However, the lawyer is not permitted to submit to the court that my client has an alibi, has committed the offence in self-defence or advance some other evidence or explanation the lawyer knows to be false.
As this post demonstrates, the answer to the question of what s lawyer should do when they know or believe their client is guilty is somewhat complicated. And no doubt it is controversial. After-all, if a client has told the lawyer they are guilty and the lawyer’s efforts helped them escape conviction, then the lawyer has helped a guilty person ‘get away with it’. However, the current requirements are justified when one looks beyond the circumstances of the case and looks at the broader considerations, including the lawyer’s role as an advocate rather than an investigator or jury, and the importance of client confidentiality. However, the duty to not mislead the court is paramount. Whilst the lawyer is not permitted to disclose client confessions to the court, the lawyer is also prohibited from misleading the court by adducing evidence or making submissions that they know to be false.
The 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”