The Queensland Supreme Court has in effect refused to allow the Noosa Temple of Satan to provide religious instruction to children.
The Noosa Temple of Satan is an unincorporated association preaching Satanism in Queensland.
The applicant, Trevor Bell, is a member of the Noosa Temple of Satan.
In March 2021, Bell and Robin Bristow, a fellow member of the Temple, applied for approval to deliver Satanic religious instruction at four Queensland State schools. Their application was refused on the ground that the Temple “has no entitlement to provide religious instruction” because it “is not a religious denomination or society for the purposes of” s 76(1) of the Education Act.
Bell sought a statutory order of review in relation to that “decision” under Part 3 of the Judicial Review Act 1991 (Qld) and, further, orders setting the “decision” aside along with a declaration to the effect that the Noosa Temple of Satan is a religious denomination or society for the purposes of s 76 of the Education Act.
76 Religious instruction in school hours
(1) Any minister of a religious denomination or society, or an accredited representative of a religious denomination or society, which representative has been approved by the Minister for the purpose, shall be entitled during school hours to give to the students in attendance at a State school who are members of the denomination or society of which the person is a minister or the accredited representative religious instruction in accordance with regulations prescribed in that behalf during a period not exceeding 1 hour in each week on such day as the principal of that school appoints.
(2) Instruction in accordance with a regulation may be given in State primary and special schools during school hours in selected Bible lessons.
(3) A separate reading book shall be provided for such purpose.
(4) Instruction of a kind mentioned in subsection (2) is not to include any teaching in the distinctive tenets or doctrines of any religious denomination, society or sect.
(5) Notwithstanding anything in this section, any parent of a student in attendance at a State school may withdraw such student from all religious instruction in such school by notification in writing to the principal that the parent desires the student to be so withdrawn.
(6) The provisions pursuant to this section shall not apply or extend to students enrolled in the preparatory year at a State school.
Section 4 of the Judicial Review Act 1991 provides that:
In this Act—
“decision to which this Act applies” means—
(a) a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion); or
(b) a decision of an administrative character made, or proposed to be made, by, or by an officer or employee of, the State or a State authority or local government authority under a non-statutory scheme or program involving funds that are provided or obtained (in whole or part)—
(i) out of amounts appropriated by Parliament; or
(ii) from a tax, charge, fee or levy authorised by or under an enactment.
Section 20 of the Judicial Review Act 1991 provides that:
20 Application for review of decision
(1) A person who is aggrieved by a decision to which this Act applies may apply to the court for a statutory order of review in relation to the decision.
In The Church of the New Faith v The Commissioner of Pay-Roll Tax (Vic), Mason ACJ and Brennan J of the High Court held that:
“… for the purposes of the law, the criteria of religion are twofold: first, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief, though canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion.”
In the same case, Wilson and Deane JJ held that belief in the supernatural was “one of the more important indicia of a ‘religion”’ and that another is “that the ideas are accepted by adherents as requiring or encouraging them to observe particular standards or codes of conduct or to participate in specific practices having supernatural significance”.
In Griffith University v Tang  HCA 7; (2005) 221 CLR 99, the High Court by a majority held that academic decisions of a university, such as whether to enrol or confer a degree were not subject to judicial review as such decisions were not “under an enactment” under the Judicial Review Act 1991.
In Lyons v Queensland  HCA 38; (2016) 259 CLR 518, Gageler J of the High Court held that the entitlement for administrative review does not allow for any “administrative choice”; the requirements are “either met or not met independently of any action, inaction, knowledge or opinion of a person administering” the relevant Act.
Justice Martin Burns considered that as s 76(1) of the Education Act does not confer any decision-making powers, it does not found a “reviewable decision” under the Judicial Review Act 1991.
Burns J held that s 76(1) does not allow for any “administrative choice” as the requirement of there being a religious denomination or society was not met, independently of any action, inaction, knowledge or opinion of a person administering the Education Act.
On the issue of whether the Temple is a religious denomination or society, Burns J indicated he was most unimpressed with the Application:
 Apart from Mr Bell and Mr Bristow, only one other person (the graphic designer) was identified by the evidence as a member of the Temple. Reliance on Facebook followers and page likers as members of the Temple and therefore adherents is an absurd notion. Similarly, reliance on the sending by three parents of emails to school principals as some measure of support for the assertion that the Temple was comprised of some followers who were interested in Satanism is unsound because there is no evidence that any of those parents were members of the Temple.
 The Temple has no genuine connection to anything pertaining to religion. There is certainly no evidence of a shared belief in a supernatural being, thing or principle, let alone canons of conduct to give effect to such a belief. To the extent that Mr Bell submitted that the Temple amounted to a “religious society”, no common element pertaining to or concerned with a religion (or religions) was in evidence. Indeed, as best I can ascertain on the evidence, the identified members of the Temple are wholly irreligious. None of this should be surprising because the Temple was not formed (and nor has it been conducted) as a religious denomination or society; the sole reason for its existence was (and remains) to push a political barrow.
 It was therefore concerning to wade through what was advanced about the Temple to the school principals, the Deputy Director-General and this court. For example, it was claimed in the Forms that the “Satanic Religious Instruction” to be provided to students will include “information about the religion of Satanism, including belief in Satan as a supernatural being, the canons of conduct and the tenets”. In Mr Bristow’s letter to the Deputy Director-General of 12 March 2021, the claim was made that “[w]e are a religion” and that the Temple was a “church” with a “religious purpose”. In his affidavit, Mr Bristow deposed that the Temple was “devoted to the education, practice, celebration and promotion of the religion of Satanism” and that the “Temple’s purpose” included the promotion of a “belief in Satan as a supernatural spirit” and a “commitment to follow the example of Satan”. Then, Mr Bristow affirmed that the “supernatural belief of Satan that the Temple aims to promote is the Satan of the Bible” and that “[t]his is the supernatural spirit we will preach to our students in religious instruction classes.”
 Aided by Mr Bell and perhaps another, Mr Bristow’s attempt to obtain approval to deliver “Satanic” religious instruction in State schools was nothing more glorified than a base political stunt. His persistence with that attempt through the medium of this proceeding has resulted in a deplorable waste of the resources of the State which had to be marshalled in opposition to the relief sought and the needless allocation of court time and resources to deal with it.
Whether Robin Bristow gets prosecuted for his evidence remains to be seen.
David Allan Baker had been charged with attempted murder and had sacked his barrister and solicitors on an earlier occasion when his trial came on for hearing.
Baker’s trial was set to commence before Justice Martin Daubney on 4 June 2012, but the day before he again sacked his legal representatives and the matter came on before the court on an application by his second set of legal representatives for leave to withdraw after he had dispensed with their services. Continue reading “Recalling the infamous “Order me a f*&%ing pizza while you’re at it” incident”
After a lengthy judge-only trial, Pentland was acquitted.
In 1996, Neil Pentland and his wife Dianne set up a company called ATNET Pty Ltd. Pentland was a director and the secretary of the company. The shares were held by him and his wife. The initial operation of the company involved assisting clients to set up email accounts and with basic internet functions. Mr Carlyle was employed by the company as its marketing manager from late 1996. He was not a shareholder but there was an agreement which would have allowed him to buy 30% of the company’s shares for $30,000 at a later time.
Philip Carlyle was murdered on 13 April 1997. He had been lured, or coerced, into a small, sound-proofed plant room in an office building at Robina. He was then shot in the head and neck with four .32 calibre steel jacket bullets. The weapon used to kill Mr Carlyle has never been found.
Continue reading “Neil Andrew Pentland found not guilty of murder of Philip Carlyle”
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”
For a very long time in Commonwealth legal systems, the legal profession has been regulated for the benefit of clients of lawyers and the public at large. Among other things, there has been a recognised public interest in protecting those liable to pay legal fees from overcharging by lawyers. One of those protections is and has been the legal requirement for a bill to be provided so that the client can seek advice on the fees and charges.
As a result, one of the many modern obligations that lawyers in English legal systems have to comply with in the course of legal practice is to provide clients and any other persons liable for their fees with proper bills before such persons can be liable for or sued for such fees. Continue reading “The law of lawyers bills in Queensland”
A Brisbane jury has today found John William Chardon guilty of manslaughter over his wife’s disappearance in 2013.
On 25 November 2014, the Plaintiff Glenn Garside was riding his motorcycle along the Gregory Highway travelling north from Emerald to Capella when an object fell from a truck (the truck) and struck him, causing personal injuries to him.
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.
It is common for workers in the mining industry to work long hours during long shifts, and to perform many such shifts in a short period of time. Exhaustion is therefore a real safety risk.
In this case, the Plaintiff Harold Kerle had been employed as a dump truck operator at the Norwich Park Mine near Dysart in Central Queensland and was severely injured after work in a one vehicle accident on his way home.
This case shows that the duty of care owed by employers and others is not always confined to the work hours or the place of work.
Harold Kerle had completed four consecutive 12 hours shifts at the Norwich Park Mine. He made the fateful decision to commence his journey home at about 6.30am on the morning of 30 October 2008, moments after he had finished his final shift. He lived in Monto, a five hour 430 kilometre drive away.
Shortly before 10am, Kerle crashed his car into a concrete wall after veering onto the right hand side of the road and colliding at high speed on an Armco rail on a bridge crossing at Alma Creek on the Burnett Highway. Kerle sustained significant injuries, including a brain injury and fractures of his ankle, nose and skull. Kerle had no memory of the accident or the events leading up to it.
Alleging the accident was caused by fatigue, Kerle sued his employer Axial HR Pty Ltd (“Axial”), his host employer, HMP Constructions Pty Ltd (“HMP”) and the operator of the Norwich Park Mine, BM Alliance Coal Operations Pty Ltd (“BMA”). Continue reading “Employers & Mine Operator liable for worker’s injuries after work”