Introduction

When a break in a 400 year old tradition of the wearing of judicial and legal apparel is contemplated, the onus is upon those seeking that change to justify their position, not upon those who would retain the status quo.

Whilst observing that no legal catastrophe nor diminution in respect for the law has resulted in those countries and jurisdictions which have abandoned the wig, Mr. O’Neill has not nominated what actual benefit has resulted from it. No practical improvement in the discharge of the Court’s business that would result from the proposed shedding of wigs has been advanced.

The fact that wigs have survived well past their supposed use by dates in many jurisdictions and have confounded the confident predictions of such judicial luminaries as Sir Garfield Barwick and various Law Reform Commissions as to their imminent demise, means that in many quarters they are still valued highly and the issue refuses to die.

Mr.O’Neill’s main arguments for change are inconsistencies between and within jurisdictions and the alleged anachronism of that particular component of legal attire.

Inconsistencies

One may question whether the existence of some variations and inconsistencies within and between our legal system/s is such a big problem or one demanding enforced uniformity. Comparison with the practices in other countries begs the question, “what is wrong with being unique or standing alone on this issue”. Heed Emerson’s famous dictum “A foolish consistency is the hobgoblin of little minds”.

To take some of the Queensland Courts as an example, the main inconsistencies in the wearing of wigs consist of Judges in the Court of Appeal who do not wear wigs combined with the requirement of Counsel to do so, and Judges in the higher and intermediate Courts who may either not wear a wig at all in Court or remove it within Court, thereby inviting Counsel to follow suit.

These so called inconsistencies are merely deviations from the norm and involve only form and not substance. The substantial work of the Court proceeds normally and the respect shown to the Court by its Judges and Practitioners is undiminished. Within those prescribed boundaries the inconsistencies in the practice of wearing of wigs is merely a manifestation of individual taste, causes no great inconvenience and is not a sound basis for enforcement one way or the other.

In any event those who created or supported the inconsistencies in the first place by abandoning the wig, can hardly be heard to then complain about the very inconsistency which has resulted. If consistency of legal apparel is paramount then restoring the wig would more easily restore that desired consistency.

Anachronisms

Traditional legal attire is not at all anachronistic within its rightful place. Having been worn for an unbroken period of hundreds of years, it of necessity remains contemporary in the forum where it was intended to be displayed namely the Courtroom and the approaches to and from the Court building and for the purpose for which it was intended, namely, a uniform for Judges and Barristers. The fact that such attire would look ridiculous elsewhere is simply to illustrate that most other forms of attire including ceremonial academic attire, sporting attire, or any other “activity specific” attire would also look ridiculous outside its own specific sphere of activity.

The Place of Legal Attire in Promoting Respect for the Courts

A person of kindred spirit to Mr.O’Neill, Chief Justice Martin of W.A., has purported to make legal attire in that State more contemporary by abandoning the wig and has made menacing mutterings about the place of robes in his State’s courtrooms. If wigs are to be abandoned then why indeed not robes also? What is the logical justification for any item of apparel? Why not adopt the American practice of counsel appearing in street clothes if contemporary apparel is the ultimate objective?

The fact that the safari suit was once the last gasp in contemporary men’s attire perhaps highlights the virtue of hundreds of years of uniformity of legal attire in resisting both the changing whims of fashion and the bizarre individualistic appearances of the eccentric and remains a constant reference point, another golden thread of continuity in the life and history of the English common law justice system which we have inherited and continue to use.

Just as robes make an individual’s personal clothing irrelevant, so does the wig produce an even playing field for the follicly challenged and the extravagantly hirsute.

Uniformity in legal attire illustrates a Barrister’s credentials to practice within in Court which sets him/her apart from others in a Courtroom who are not so qualified to practice. It also helps to reduce prejudicial influences of judgement which flow from superficial, stereotypical personal appearances so that litigants and their supporters can perceive equality before the law.

The Place of Legal Attire in Promoting Respect for the Legal Institutions

Judicial and legal attire does preserve and promote respect for, the status of, and appropriate solemnity in, our Courts. One has only to contrast the relatively informal atmosphere of a Magistrates Court where no legal attire is worn with that of the higher Courts where it is.

I challenge any admiration for the dress codes in the various European Courts that Mr. O’Neill listed. I once observed a surly Nordic thug in a Danish Court in Copenhagen being tried, convicted and sentenced to gaol for domestic violence. The female prosecutor wore a blouse, nondescript skirt and open sandals. The Defence lawyer wore a short sleeved shirt, light coloured slacks and casual shoes. The Judge and her two lay assistants were similarly attired. The Court room resembled a University tutorial room and the resultant atmosphere and sense of occasion were zero. It was a spectacle and process neither to be admired nor followed.

“Theatrical” components of courtroom procedure magnify the sense of occasion and solemnity and thereby help to maintain respect for the law. When the Courts insist on such “theatrical” language as “Your Honour” “May it please the Court”, “With the deepest respect”, “In my respectful submission”, “With the indulgence of the Court” “My learned friend” etc., and disapproves, as it has recently, of familiarity in addressing the Court, eg. “Good morning your Honour”, then equivalent “theatrical” attire, including the wig, sits comfortably alongside that Court sanctioned language to enhance the resultant “theatrical” product.

 How Legal Practitioners and Courts are Perceived by the Public

The American travel writer Bill Bryson when visiting Brisbane a few years ago spoke admiringly of cricket on the t.v. and the sight of bewigged and robed Barristers walking to and from Court as valuable cultural ornaments distinguishing Australian cities from American cities.

This perhaps reflects a cultural reality that today’s public still expects its Judges and Barristers to dress in their traditional garb. Occasional mockery of that garb really only disguises an underlying respect for and trust in the legal process and the persons who comprise it. Put another way the public expects its Barristers, (and Judges) to “look the part”; and nothing so “looks the part” as a Barrister or Judge fully robed and wigged.

Summary

That there is continuing debate on this topic illustrates the unlikelihood of ever achieving uniformity of opinion. Arguments put forward on this topic invariably amount merely to personal preferences.

Whatever may be the case in Civil Courts or in jurisdictions which are rarely visited by the public, in those jurisdictions where the legal system is most on public display, namely the Criminal jurisdiction and perhaps the Family Court jurisdiction, full legal attire including wigs should be retained to maintain and promote just those elements of solemnity and respect so necessary in those often highly charged forums.

Ron Swanwick

Office of Director of Public Prosecutions (Qld)

BAQ Mediators Conference 2011

The BAQ Mediators Conference 2011 will be held at the Hyatt Regency Sanctuary Cove from 22-23 October.

Speakers at this year’s conference include:

• Ian Hanger AM QC
• The Hon Robert Fisher QC, Auckland, New Zealand
• Peta Stilgoe, Member, Queensland Civil and Administration Tribunal
• Andrew Crowe S.C.
• The Hon Justice Daubney
• Kathryn McMillan S.C
• Dr Anne Purcell, Psychologist
• Doug Murphy S.C.
• Michael Klug, Partner, Clayton Utz
• The Hon Justice May, Family Court of Australia
• Charles Brabazon QC, Retired Judge of the District Court of Queensland
• Wallace Campbell

To download the full program and registration form visit the CPD website.  

QCAT Bar Update 2011

Date: Friday 4 November 2011

Time: 12.45pm — 1.45pm *Light lunch will be provided

Venue: Gibbs Room, Bar Association of Queensland

Presenters: The Hon Justice Wilson & panel members

Accreditation details: BAQ3111, 1 CPD point, advocacy strand

CLI Series: Criminal Law Reforms: One Year on

Date: Thursday 10 November 2011

Time: 5.30pm — 7.00pm

Venue: Banco Court, Supreme Court Complex, Brisbane

Presenters:

His Honour Judge Butler AM S.C., Supreme Court of Qld

Mr Peter Davis S.C.,

Mr Anthony Moynihan S.C., Director of Public Prosecutions

Accreditation details: CLI0311, 1.5 CPD points, non allocated strand

Pupils Session 8: Family Law

Date: Thursday 24 November 2011

Time: 5.30pm — 6.30pm

Venue: Gibbs Room, Bar Association of Queensland

Speakers: The Hon Justice Murphy and The Hon Justice Forrest, Family Court of Australia

Accreditation details: BAQ3211, 1 CPD point, non allocated strand

ABA Advanced Trial Advocacy Course

Date: 23-27 January 2012

Venue: Melbourne

Accreditation details: ABAC12, 10 CPD points, ethics and advocacy strands

Please click here Hyperlink: http://advocacytraining.com.au/

EXTERNAL EVENTS

2011 Mayo Lecture: Regulatory Reform

Date: Thursday 6 October 2011

Time: 6.00pm — 7.00pm

Venue: Townsville and Cairns

Accreditation details: JCU111006, 1 CPD point, non allocated strand

Court of Appeal 20th Anniversary Lecture

Date: Monday 24 October 2011

Time: 5.30pm – 7.00pm

Venue: Banco Court, Supreme Court Complex, Brisbane

Accreditation details: CA111024, 1 CPD point, non allocated strand

Criminal Law Conference

Date: Thursday 27 October 2011

Time: 9.00am — 5.00pm

Venue: Sebel and Citigate Hotel, King George Square, Brisbane

Accreditation details: QLS111027, 1 CPD point per hour, advocacy and non allocated strands

Please click here for further details http://qls.com.au/pd/events/111027

WA Lee Equity Lecture

Date: Thursday 18 November 2011

Time: 6.00pm — 7.00pm

Venue: Banco Court, Supreme Court Complex

Accreditation details: QUT111118, 1 CPD point, non allocated strand

Please email rsvplaw@qut.edu.au

2012 Environmental Law Enforcement Conference

Date: 3 — 7 July 2012

Venue: Dubrovnic, Croatia

Accreditation details: RP120703, 10 CPD points, ethics and advocacy strands

Please email Ralph RPDevlin@halsburychambers.com or Peter peter.kelly@halsburychambers.com for further information

(8th Australian Edition)

By J D Heydon1

Published by Lexis Nexis Butterworths Australia2

Reviewed by By James Mcnab

This text is the definitive text on evidence law in Australia.  It naturally enough deals with the laws of evidence and how they apply to Australia, but also compares and contrasts some areas of evidence law as it applies in overseas jurisdictions.

This authoritative and well respected text is comprised of 21 chapters with various sub sections within those chapters.  The book is 1570 pages in length.  The text canvasses all areas of the law of evidence from the history and development of the law of evidence to estoppel, from competence and compellability of witnesses to character and credibility, from privilege to documentary evidence.  These are just a few areas that are covered by the book. They do not, by any means, amount to an exhaustive list of the areas which are covered. 

The book, importantly, as it is written for Australia, deals with the law of evidence as it applies in all the various Australian jurisdictions.  It clearly analyses in more than sufficient detail the rules of evidence as they apply in Australian courts and tribunals.

The text of Evidence Acts in Australian jurisdictions mirror one another to a significant degree. The text was written taking into account legislation which was to come into force after the publishing of the book.  It should be noted that the book claims currency as at 28 October, 2009. 

There have been significant changes in the law since the publication of the 7th edition in 2004 and Justice Heydon has embraced those changes in the writing of the book.  Areas where significant extra analysis has been added include legal professional and other privilege; the admissibility and exclusion of records of interview; as well as a short guide on the best way to approach improperly admitted evidence.

In relation to the receipt of confessional statements made to police officers, the chapter analyses the statutory regimes in all jurisdictions which all now seem to incorporate the statutory duty of police to record police interviews by electronic means.  Many jurisdictions now have provisions that make confessions, prima facie, inadmissible unless recorded by electronic means. 

At a price of $285.00 from the publisher, the 8th Edition of Cross is both a vital tool for all practitioners and students and excellent value for money.

Footnotes

1. Justice Heydon AC is a Justice of the High Court of Australia. 
2.  The publisher’s web page for the text is here. The High Court bio for His Honour is here. The only slightly more informative Wikipedia page is here.

Not so many months ago I had to give some pointed advice to a client that his company was trading whilst insolvent. He did not agree with me, and pointed to his balance sheet for support. It quickly became evident that, although a very successful businessman, he had no idea how to read a financial statement. By my providing this warning, the company was able to regain its solvency. I suspect that his accountant was telling him the same story but, because of his personal lack of understanding, the client felt able to ignore both the advice and reality. When the advice was reinforced by an outsider, it was, fortunately, heeded.

Financial Literacy picks up on what I suspect is a common problem, namely, the inability of lawyers and lay people to understand the books of account of a company.

Some years ago, I read a book which explained the various terms used by accountants, for the benefit of a small business operator. At the time, I thought it a pity that there was not an accompanying book which dealt with companies. This gap has now been nicely filled.

Have you ever looked at and tried to understand a balance sheet of, say, a Japanese company or for that matter, a U.S. Company? Accounting standards, that is, the method used to prepare a balance sheet, can have a profound impact on its appearance.

That statement is obvious. The authors give an example of a company announcing a cost saving measure of retrenching a large number of employees. However, the company actually transfers the employees to an affiliate company. Would we be astute enough to pick up such a stratagem by examining the accounts? Do we know how to winkle information out of those comparisons with the previous year’s performance to uncover such a move? Have we ever thought why those previous year’s figures are there?

Does every reader of Hearsay understand the fundamental basis of double entry accounting as traditionally used in Australia?

When presented with a financial statement, do we really understand it? Do we know what questions to ask to properly enlighten ourselves?

Financial Literacy has the potential to change the answer even as the reader is discovering that the level of understanding was depressingly lower than we had imagined.

Financial Literacy is presented in three stages. The first identifies the accounting methods applied to preparation of books of account. The second actually looks at a number of financial statements, identifies what to look for and what they mean and explains the importance of the accompanying notes. The third stage is a type of guide, by which, by comparison, one can more readily understand what the accounts of a company actually mean.

The final part of the book contains the 2004 published accounts of a large Australian Publicly listed company. Many aspects of these accounts are referred to as demonstrating the way things should be done, whilst explaining the meaning of them.

There is also a particularly fascinating discussion of the balance sheet of Enron during the three years prior to its collapse. This discussion reveals an excellent example of “profitless growth” with obvious warning signs which were, alas, ignored by almost every regulator and financial journalist who saw them, almost all of whom should have done much better.

Financial Literacy is not a book whose contents can be absorbed in one simple scan. Rather, it is a keeper, a book to which one may profitably go back to, especially, when the “boring parts” of a brief are before us. Who knows? Those pages of accounts may not be quite so boring if we actually manage to extract useful forensic information from them.

Issue

The issue came to a head when Apotex Pty Ltd (Apotex), whom Servier alleged had infringed the patent, served a notice to produce on Servier seeking certain documents recording or referring to the lawyer’s views as expressed in his evidence in support of the application as well as the instructions from Servier. The basis for this request was that the supporting evidence referred to the identification by the solicitor of a gap in the patent’s claims, that being the subject matter of the application to amend. An example from his evidence was as follows:

Apotex contended that Servier had by its reliance on this evidence as the basis of it seeking the amendment, waived its privilege over the documents it now sought to claim.

Decision

Servier was required to produce certain documents which provided the background for the amendments sought, which would otherwise have been privileged.

Reasons

Before considering a number of other cases as examples, Bennett J stated the common law principle that a person who was entitled to claim legal professional privilege could waive that privilege. Waiver could be express or implied and was a matter for objective consideration regardless of the intention of the party who has lost the privilege (Mann v Carnell (1999) 201 CLR 1 at [29]).

Of telling relevance was an examination of whether there was an inconsistency between the conduct of the client and maintenance of the confidentiality of the relevant communications (Mann v Carnell at [28]).

Its application to the case was that her Honour considered that it was inconsistent for Servier to claim legal professional privilege with respect to the communications between Servier and their solicitor concerning the solicitor’s opinion, their instructions, the application for amendment and Servier’s reasons for making it, having disclosed the legal advice they were given by presenting that advice as the totality of its reasons for seeking amendment: [19].

Her Honour noted that Section 118 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) established privilege in relation to the provision of legal advice to a client.  Section 122 of the Evidence Act set out the circumstances in which this client legal privilege may be lost.

Bennett J observed that the Evidence Act applied to the adducing of evidence in proceedings to which the Evidence Act was applicable.  It did not however apply to pre-trial processes such as discovery or to the production of documents prior to the adducing of evidence (Mann; Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49).

As the documents sought in the notice to produce were for the purpose of inspection and not for being immediately adduced in evidence, the Evidence Act had no application to the production of documents pursuant to the notice to produce:  [27]

Her Honour noted that there was some uncertainty as to whether Order 33 rule 11 of the Federal Court Rules introduced the Evidence Act into pre-trial processes of the Court. Bennett J referred to the full court decision in Seven Network Ltd v News Ltd (2005) 144 FCR 379 at [17], where court held that O 33 r 11 of the Federal Court Rules did not so operate, concluding that the rule was limited to cases where the order to produce would result in immediately adducible evidence: ‘circumstances in which an order is made for production of a document or thing to the Court … at a time when the Court … is authorised to receive evidence.  That is, in circumstances in which the order to produce the document or thing is made to facilitate its being immediately adduced in evidence’.

Apotex Pty Ltd (ACN 096 916 148) v Les Laboratoires Servier [2008] FCA 1466 (Bennett  J, 30 September 2008)

Dimitrios Eliades

To discuss this article, visit the Hearsay Forum.

When Glenn Martin and Dan O’Connor chose this topic they must have been in a dark mood.

The focus on sins reminded me of my Catholic education in the 1950s.

We were thoroughly schooled on mortal sin, on venial sin, on heaven (for those who did not sin), on purgatory (for those who sinned a little) and on hell, for those who died in a state of mortal sin. Confession was the way out for sinners.

My task appears to be to identify the venial and mortal sins in oral advocacy. I cannot offer confession as the escape. But I will talk a little about repentance and reform.

I am well placed to talk about this topic.

When people ask me what I do, I tell them that I am a consumer of justice services. My alternative description of my role is as an author of non-fiction, although at times it seems more like fiction. I like to say that I have published extensively, but have yet to get on a book club list.

I am a consumer of justice services because for the last 13 years much of my time has been spent listening to advocates who are practising oral advocacy, to the evidence that they present, and assessing arguments that are put to me. The advocacy is aimed at me, unless there is a jury there. I sit on civil cases, criminal trials, single judge appeals and Full Court appeals. So I see the whole gamut.

I hear good advocacy, average advocacy and poor advocacy. I assume, diplomatically, that standards in Queensland are higher than in South Australia, but that the same problems exist here as exist in South Australia.

I emphasise, because the focus is on sins of advocacy, that the tone of what I am going to say will be negative. This should not be allowed to conceal the fact that I hear plenty of good advocacy. Today the focus is on the poor advocacy.

So what is good advocacy? What is not good advocacy?

In posing these questions I recognise that there are different styles of advocacy, and that a person’s personality influences their style of advocacy. I am not talking about styles of advocacy.

People often say that advocacy is the art of persuasion. They are right. But a statement like that should not cause us to focus our attention exclusively on examination and cross-examination, on closing addresses, or on appeal submissions.

Advocacy covers the whole trial process from start to finish. In the case of a civil trial, it covers the pleadings through to the end of the trial. I am going to refer mainly to trial advocacy, because David Bennett QC will deal with appellate advocacy, and Justice May will deal with written advocacy.

As I said, advocacy covers the conduct of a case from start to finish.

In a civil case it includes the pleadings. Pleadings should be clear. They should identify the issues of fact and law. But all too often, as I think you know, pleadings are uninformative and even confusing. That may not be the fault of trial counsel, but it is poor advocacy.

Advocacy includes making good use of discovery, to select the truly useful and pertinent material, and to discard the rest. All too often, as you know, the judge is given too much material, too little of which is directly relevant to the case. Sometimes the judge is left to navigate his or her own way through this material, with little guidance. This can lead to wasted effort and to frustration.

In civil and criminal trials good advocacy includes presenting a case at trial that includes the necessary and helpful evidence, oral and documentary, but that discards the unnecessary and unhelpful material. Too often counsel are unwilling to be appropriately selective, and trials, both civil and criminal, get bogged down on peripheral evidence.

Civil and criminal advocacy calls for the presentation of a case in an efficient and orderly fashion. In particular, in a manner that helps the judge or jury comprehend the case. Too often I get the impression that little thought has been given to the judge or jury, too little attention paid to the arrangement and sequence of the material presented.

Advocacy calls for counsel to make sensible concessions, and to make agreements that will shorten the length of a case, when that can be done. Some counsel appear afraid to make the most sensible of concessions.

Advocacy involves the sensible use of aids to understanding such as books of key documents, tables of relevant material, diagrams and charts. Often this is overlooked, especially in civil trials in my experience.

Cross-examination is vital to our system. Good advocacy calls for cross-examination to be to the point, and to be as brief as circumstances permit. I acknowledge how difficult it can be to tell, as a case is running, whether cross-examination is achieving its end. But too often, at the end of a case, a lot of the cross-examination proves to be irrelevant.

In a civil case good advocacy calls for an address that is well organised, that really gets to grips with the issues, and that has appropriate cross-references to transcript and to exhibits. Far too often, in the address, a mass of material is thrown at the judge with hardly any cross-referencing to transcript or to exhibits, and with little link between the issues of fact and issues of law. I get the impression at times in civil trials that by the time of the address counsel think they have done their part, and it is really up to the judge from then on. They drop the lot on the judge, with an address that is little more than a reminder of what they would like the judge to do. They take to heart that old saying:

But to my mind the closing address is one of the most important parts of a case. It should involve a lot of work by the advocate.

You may be thinking, I know all that, why is he going on about it? Well the answer is that too often advocacy does not pass these tests. The profession know that these are sins of advocacy, but they sin and sin again.

I go back to pleadings in particular. I have attended many conferences and seminars involving judges. When we discuss advocacy and trial management, most judges complain about pleadings being poorly drafted. Far from the pleadings identifying issues of fact and law that will fall for decision, judges say that they put the pleadings to one side and ask counsel to identify the real issues. Pleadings are not serving their purpose. Why is this? This is failure of advocacy, and it is a persisting one.

It is even worse when one finds at the start of a trial that counsel are unable to crystallise the real issues of fact and law, even when freed from the constraints of pleadings.

A good examination-in-chief is a joy to listen to. This is an area where the general standard is reasonably good, but still, too often, judges and juries hear slow and meandering examination-in-chief. Sometimes there will be a reason for this, which I recognise will not be known to the judge. But there are occasions when it is attributable to poor advocacy.

A similar comment applies to cross-examination. Perhaps judges get out of touch with the reality of trials. But apart from complaints about pleadings, the most common complaint I hear is about excessive cross-examination on peripheral issues, and about a failure to be bold and selective, and to deal boldly with the key issues.

As I have already mentioned, it is not uncommon for closing addresses in civil cases to float above the facts. I recognise that in jury trials a different style of address is called for, and most jury addresses that I have heard have been fairly effective. But in civil cases the address should be a summary of what counsel hopes the judge will decide, with a package of evidence and law linked together through proposed findings of fact, leading to the desired conclusion. But too often a closing address is little more than a series of rhetorical flushes, with reference to the things counsel hopes the judge will find, but with no signs of close attention to the way in which the judge will get there, except in the most broad brush sense.

In civil cases not uncommonly I get the feeling that counsel have forgotten that the ultimate aim is to persuade me to make particular findings of fact that they want, that will lead to conclusions of law that they need. Some trials become an exercise in point scoring between counsel, or an exercise in rhetorical statements without reference to the persuasive effect of these statements on the judge.

The bad practices that I have identified are happening in courts around Australia. They are not rare, although I do not want to give the impression that advocacy is usually bad advocacy. But why is there as much bad advocacy as there is?

That is the real question. We know what is bad advocacy. But why is it happening? How do we change things?

I realise that sometimes counsel are briefed with insufficient time to do what needs to be done. Sometimes counsel have insufficient resources to do what should be done. I do not overlook that.

I also realise that difficulties in getting clear and reliable instructions from the client can cause what seems poor advocacy, because counsel may be unsure of the stance that counsel ultimately have to take on important factual issues. And there can be all sorts of pressures attributable to a difficult client or a difficult or inadequate instructing solicitor.

I also recognise that judges differ in what they want and expect. One judge might not be interested in material that another judge will want. And I also realise that with a jury one is never sure what they are thinking, and the style of advocacy must adjust to that.

There are reasons why sometimes advocacy cannot be as good as one would like. But as I have said, allowing for that, I think there is more poor advocacy than there should be. There is lazy advocacy, the advocate who simply rolls the arms over with no great effort. There are advocates who do not know how to prepare good pleadings. There are advocates who cannot or will not really work at the law.

There are advocates who have forgotten that advocacy is the art of persuasion. They present their case on a “take it or leave it” basis, not on a “can I help you” basis. These advocates have forgotten that the judge or jury is a consumer of the justice services that they are providing.

So how might we change this? Unless we ask that question, what is the point of a session like this? Our aim must be to encourage improvement in advocacy standards.

A lot of advocacy is learned on the job. The same applies, I suppose, to flying and to surgery. But I suspect that pilots and surgeons are less tolerant of departures from good practice than we are.

I think that we need to encourage a stronger culture within the profession of best practice in advocacy. We need to be less tolerant of poor practice. We need to develop a culture of reflection, selfassessment and improvement.

We need to speak plainly about poor advocacy.

We need, I suggest, to put more into advocacy training than we are doing. That is my first point. I know that there is a lot of work being done in advocacy training. But the evidence suggests to me that more is needed. I think that as a profession we need to consider how we will respond to the problem.

We need to see advocacy training as a life-long thing. My impression is that at present it is mainly seen as something for beginners. There is always room for improvement. The sins of advocacy are not committed only by junior barristers. My remarks apply to experienced counsel as well. Advocacy training should be required at all levels of the law.

I know that it is easy for me to say this as a judge, but if there is too much poor advocacy, we must do something about it. We have a professional responsibility in that respect.

I suggest that we should consider establishing a structured and organised system for an exchange of information between the judiciary and advocates about advocacy. It could incorporate some form of peer review. Advocates need to be told when their advocacy is poor, and why, and to be told when their advocacy is good, and why. And judges are in a good position to contribute to that process, because advocacy is aimed at them. The profession should contribute to the process also.

I recognise that there are constraints, attributable to the judicial role. At the end of a case one can hardly call the counsel into chambers and bag one of them and praise the other. But just as it should not be beyond us to devise some form of peer review for judges, it should not be beyond us to devise some form of peer review for advocates.

In short, most advocates know what is good advocacy and what is bad advocacy. Most advocates are doing their best. But there are some who have forgotten what is bad advocacy, and some who do not care. We have the responsibility to do something about that.

We know that good advocacy can be learned, and that it requires constant effort.

Surely we can create a professional culture that calls for advocates to reflect on their performance and to improve it. If we do, we can make some progress.

I look forward to hearing your views on my assessment of the sins of advocacy, and in particular your views on how we might improve standards of oral advocacy. That, I suggest, is the real issue.

The time has come once again to close the conference and bid farewell to our visitors from both near and far.  The time-honoured tradition has this closing address delivered by the Central Judge.  For those of you who are relative newcomers I might say that this tradition commenced some time in the reign of my immediate predecessor, Justice Dutney.  It bears the hallmark of the time-honoured tradition that is now accepted in Mackay that on the first Monday of the sittings the Central Judge attends the Palace Hotel.  I very much doubt that the tenth Central Judge, Justice Alan Demack and a teetotaller, ever heard of that tradition, let alone followed it.

The year that was stirred some old memories.  Justice Robert Somma is probably not known to many of you.  He was a federal bankruptcy judge on Boston’s first federal circuit.  I mention him because of his manner of dress.  He was arrested during the year after crashing his Mercedes into another vehicle whilst allegedly drunk.  This was not so bad.  Unfortunately at the time he was dressed in a cocktail dress, fishnet stockings and stylish pumps.  This triggered some memories.  When I left here to pursue a career at the Bar in Brisbane in 2003 the Bar were good enough to have a small function to see me off.  It took the form of a murder party.  As those of you who are familiar with the concept will appreciate, you are supposed to go in character.  This was no difficulty for Justice Dutney.  Whilst he has no Mercedes to crash and would not of course drink and drive, he had no difficulty in retrieving from his closet the necessary accoutrements to come dressed as a prostitute.  Like Justice Somma of Boston’s first federal circuit, his Honour favoured a cocktail dress with fishnet stockings and stylish pumps.

Justice Somma resigned in disgrace and as he had served only three years of a fourteen year term was left without a pension.  Justice Dutney hasn’t suffered that fate although some might think something like it.  For those of you good enough to get up early today and hear his Honour’s paper you will appreciate that he now heads the Mental Health Tribunal.  I was reminded of Justice Dutney and his role in mental health when I saw the well-known actor, George Clooney, interviewed in relation to a recent film in which he performed, “Burn After Reading”.  Clooney reported that he was told by the writers, the Coen brothers, that the part had been especially written for him.  Clooney somewhat glumly informed the interviewer that he felt a bit down as the part was of a poor hapless character, a moronic bumbler, one of life’s perennial losers.  I do not say that the Mental Health Tribunal was made for Justice Dutney but he does seem to fit in well there.

So the first matter that I wish to note in reviewing the year that was is the change in guard — the eleventh Central Judge has been replaced by the twelfth.  I wish to acknowledge the contribution that Justice Dutney made to the legal life of the region, and not only the legal life.  Amongst many other attributes, including raconteur and semi professional golfer, he is, as many of you know, an enthusiastic cyclist and by dint of his influence a clutch of lawyers took up the sport.  As a result of his leaving Ross Lomonaco, Tom Polley, Geoff Clarke and John Shaw get to sleep in more often and if I’m not mistaken look the better for it.

In case any of you are thinking that there has been a dramatic change in style between the eleventh and the twelfth Central Judges — and no reports have yet reached me of any comparisons — some of you will be aware that I too have been known to dress in fishnet stockings and a corset.  Normally I would deny this but I am aware that photographic evidence exists and indeed is held by Judge Britton SC who I cannot trust not to use such evidence when it can do the most harm.  I can only say that should the photograph ever emerge from Judge Britton’s archives I have a photograph of him at the same function dressed in a nappy.

It is but a short step from Justice Dutney’s cross dressing as a prostitute to the High Court case of the of the brothel-keeper in Victoria, Wei Tang, whose conviction on a charge of intentionally possessing a slave and intentionally exercising a power of ownership over a slave resulted in a ten year prison term with a non-parole period of six years.  The legal issue concerned distinguishing between slavery and other exploitative relationships. Chief Justice Gleeson spoke of the exercise of powers of control over movement which extend well beyond powers exercised even in the most exploitative of employment circumstances;  and an absence or extreme inadequacy of payment for services. 

Perhaps surprisingly the president of Scarlet Alliance, an Australian sex workers’ association, was critical of the High Court decision.  She was concerned that there would be raids and forced rescue of sex workers.

Perhaps unsurprisingly Jennifer Byrne, the director of the Anti-Slavery Project of the University of Technology in Sydney considered the decision to be a good one.  She said ‘For me the decision is really significant because it clearly applies to slavery across the board … [the court] is looking to the condition of slavery, a constellation of facts that could be found in any kind of activity, including agriculture, cooking, hospitality, domestic servitude, or (and this is the part that concerns me) servile marriage.’ 

I note that in my case my wife exercises considerable power of control over my movements, pays me nothing and was the one responsible for dressing me in black togs, a corset and fishnet stockings and putting on my face black lipstick, mascara and rouge.  I will leave it to you to work out what sort of slave I am.

Then again perhaps I am an example of the Stockholm syndrome.  You will recall that that is when prisoners become loyal to their abusers and start justifying their actions in order to feel better about themselves.

District Court Judges are of course experts on sex.  Most of their lives are spent in running criminal trials involving allegations of indecent acts.  With that background I will mention the case of The Queen v Mills & Vig which came on before Judge Clive Wall QC of Southport on 1 July. 

For those who came in late I should give you some background on Judge Wall QC.  He is in a roundabout way connected with Central Queensland.  Judge Bob Hall practiced at the Rockhampton Bar for some fourteen years before being appointed to the District Court in Townsville.  He and Judge Wall QC were then brother judges on the District Court there.  One day a cub reporter for the Townsville Bulletin doing her first court report accurately reported the comments of Judge Wall QC but wrongly attributed them to Judge Clive Hall QC.  The cub reporter of course did not realise that there were two judges in town, one called Wall and the other called Hall.  Judge Bob Hall took umbrage at the attribution, as he saw it to him, of comments made by his brother judge and promptly sued the Townsville newspaper for defamation.  Bob Hall was not deterred by the fact that he was not named Clive and is not a QC, nor was he worried by the fact that the report was an accurate statement of what his brother judge had said.  So far as I am aware it is the only case in which a judge has sued a newspaper for attributing to him the words which were accurately reported but used by another judge.  I understand that eventually, after a number of visits to the courts, Judge Hall obtained a satisfactory settlement of his defamation action. 

But that is all past history.  Back to the case of Mills & Vig.  They were a 23 year old couple who came to court to plead guilty to a charge of doing an indecent act.  The indecent act was to engage in sexual intercourse on the Miami State High School oval in the middle of the night.  The only members of the public present were the two police officers who had been asked by a teacher to go and have a look at what was going on at the oval.  Ms Wilson of counsel was doing her first appearance in the District Court.  She asked that the pair be arraigned on one count of doing an indecent act. 

The transcript then reads as follows:

‘His Honour:  And what’s the indecent act? Ms Wilson:  Sexual intercourse in a public place your Honour. His Honour:  Is that an indecent act? Ms Wilson:  Yes your Honour. His Honour:  Why?  Just because it’s in a public place?  I mean I would have thought that the offence requires that the act to be indecent per se and it then is found to be committed in a public place.  I wouldn’t have thought intercourse per se is an indecent act. Mr Rosser:  If I can assist?  It was seen by police your Honour. His Honour:  I mean if anyone shouldn’t be offended by it you’d think it would be the police …’

After establishing that the alleged crime took place on a school oval his Honour said:  ‘Well I mean there but for the grace of God go a lot of people’.   Judge Wall refused to have the couple arraigned, adjourned the matter and Ms Wilson lost her first plea of guilty.

On 4 September last in the case of Cesan and Rivadia v The Queen the High Court ordered the retrial of two men convicted of drug trafficking.  For present purposes the appeal had a number of interesting features.  One was that between sentence and appeal one of the men wrote to the trial judge admitting his guilt and thanking him for conducting a fair trial.  Despite this burst of misplaced honesty the appeal succeeded and on the grounds that the judge’s conduct had led to a miscarriage of justice.  It took the two accused 3 years to realise how unfair the trial had been.

The successful ground of appeal was that the presiding judge, Judge Dodd, had been asleep for periods during the trial. 

It was claimed that the judge had fallen asleep for up to 45 minutes at a time, that his snoring had been noticed by the jury and that he was awoken only by loud noises from the Bar table.  Whilst the 45 minutes claimed is probably an exaggeration, it has now formally been held, contrary to the views that prevailed in the NSW Court of Appeal,  that a trial judge must remain conscious throughout a trial.  Judge Dodd could have done with the help of the three mystic dwarves that Justice Dutney mentioned last year — Armand, Luis and Angel — who helped a judicial officer in the Philippines to write judgments when in a trance.

I note too that in the course of argument in the Cesan case Justice Heydon observed that judges are not supposed to read books or work on other judgments or conduct correspondence when they are supposed to be attending to a trial.  All that I can say about this is that the practice in Central Queensland will not change following the High Court’s judgment in Cesan and Rivadia v The Queen.

The High Court was concerned in that case that there had been fundamentally a miscarriage of justice.  On that note and a more serious one I wish to draw to your attention the comments of Sir Gerard Brennan concerning the anti-terrorism laws that have been introduced into this country.  He was commenting on the case of Dr Mohammed Haneef who, as I am sure you all know, was detained and interrogated for twelve days in July 2007 and charged with terrorism offences but these charges were later dropped.  Sir Gerard, a former Chief Justice of the High Court, listed three areas of concern:  ‘unjustified discrimination which drives a wedge between elements of our society;  excessive interference with human rights;  an absence of judicial supervision which exposes individuals to oppressive exercises of power’.  Sir Gerard asked:  ‘Is it possible to devise an effective pathway to legal advice and to accord exercising habeas corpus jurisdiction, casting on the Commonwealth authorities the burden of justifying detention, compulsory questioning and isolation of individuals from contact with family and friends?’ 

When I was last a speaker at this conference I expressed my concerns about these anti-terrorism laws.  At that time Dr Haneef’s case was a year in the future.  His case, in my view, is a stark reminder that these anti-terrorism laws can go badly wrong.  There has never been a justification put forward for the need for these laws.  There has never been a case mounted to demonstrate that the existing laws and processes were not sufficient to enable proper investigation and judicial processes to be implemented.

Two events of great historical interest occurred this year.  The election this week of Barack Obama to the office of President of the United States was a momentous event.  He has proved to be a magnificent orator, one of the finest I have seen.  Let’s hope that his judgment on the issues that lie ahead of him is every bit as good. At the very least he should eclipse George Dubya’s efforts and we can only hope by a long, long way.  Let his example remind us too that race, religion, sexual orientation, disabilities of any kind, age and gender only divide us if we let it.

The second matter of interest is the passing of the Criminal Code and Jury and Another Act Amendment Act 2008 (Act No.50 of 2008), assented to on 19 September.  It introduced two things of interest – judge only criminal trials with an accused person’s consent and majority verdicts in Queensland, doing away with a 1000 years of tradition. A majority of 11 may now convict on charges other than murder or Commonwealth offences after at least 8 hours have passed since the jury retired to consider its verdict.   Justice Cullinane reports that there has already been one majority verdict in a trial he conducted at Mt Isa.  This presents a major shift in the approach of our society to the issue of our concern about avoiding the conviction of an innocent person.  We are not the first to go down this path.  But we would be foolish to think that it does not carry risks and risks that we might find unacceptable.

Legal fees are a constant source of concern for the practitioner to try and get the balance right.  One enterprising attorney in Chicago thought that he had stumbled upon a mutually agreeable way for a client to reduce legal fees.  The client happened to be a professional stripper and so in part payment of legal fees the attorney accepted nude dances from her in his office.  Whilst the details that I have do not indicate the hourly rate, the credit that he provided of $534 was not enough to avoid a complaint being made and the attorney receiving a fifteen month suspension for misconduct.

On the subject of fees I note that on 7 October The Age in Melbourne reported the results of a national survey concerning Legal Aid.  Legal Aid fees were described as ‘poor’, ‘shocking’ and ‘absurdly low’.  One Victorian barrister said that the fees were ‘enforced poverty for lawyers’ and stated that the barrister ‘would prefer to do it for free than be so insulted by low fees’.  Interestingly, according to the results of the survey, Victorian and Queensland barristers performed an average of between 51 and 70 hours of pro bono work during the year compared with a national of between 41 and 50 hours. I congratulate those here who donate their time and skill to those in need.

Whilst you might be alarmed at news that in your own back yard two Supreme Court judges and one District Court judge have a penchant for dressing a little differently things are far more serious in England where the news is that civil court judges have abandoned the horse hair wig and donned what is described as a modern robe.  The robe is dark blue in colour apparently gabardine with velvet facings and has been described as making judges look like warlords and the robes a cross between a Star Trek costume and a fascist storm trooper’s uniform.  No doubt we will follow suit in the fullness of time.  And Justice Dutney, Judge Britton and I will feel right at home.

Speaking of home the Deputy Chief Magistrate of South Australia is making some history of his own. Dr Canon held the interesting not to say novel idea that if he thought prisons were over crowded then he shouldn’t send people there. On 23 May he sentenced Michael Patrick Bieg to a four year jail term for non-aggravated serious criminal trespass, theft and common assault but suspended the jail term wholly on that ground warning that the courts ‘must take into account the current conditions in the prisons’. Whilst this approach is unlikely to catch on the interesting point for us is that Dr Canon took considerable umbrage when the Attorney-General for South Australia, Mr Michael Atkinson responded that he doubted whether any competent Magistrate would pay attention to Dr Canon’s ‘daft’ and ‘delusional’ views.  This prompted Dr Canon to sue for defamation.  This seems to be a first — the Deputy Chief Magistrate in court against the Attorney General in a defamation suit. 

Coming closer to home still, I had the task of presiding over a trial involving a Mr Wilkinson.  One of the issues that interested counsel — not all that interests counsel interests the judge — was whether Mr Wilkinson limped.  His good friend Mr Gleeson was questioned about it by the cross-examining counsel, Richard Morton as follows: 

Mr Gleeson finished his answer with the question “You know what I’m saying?’

All that I can say is that neither Richard Morton, nor Graeme Crow who was appearing for the plaintiff, nor myself had a clue what he was talking about.

We have at least two matters worth celebrating that I wish to comment on.

On 22 September Anne Demack, as she once was, became her Honour Federal Magistrate Demack.  Anne practised here for some eight years principally in the family law jurisdiction.  And she was of course well known to the profession prior to that due to her work as Associate to her father, the tenth Central Judge.  It goes without saying that her appointment was warmly received by the profession.

I don’t intend to let my old friend Hugh Grant off without a mention.  In the New Year’s Day honours list Hugh received the Order of Australia for services to the law and the community.  I was his neighbour for some 20 years and can attest to the many hours of his own time that he put into working on numerous Boards and Committees.  His lifetime of high ethical standards and outstanding achievement is a life that every lawyer can only hope to emulate. 

Hugh Grant joined his father’s firm in 1964.  He was the third generation of his family to become a solicitor and practice in the firm and his son Allan the fourth generation.  Of course back in 1964 there were older clients who well remembered his grandfather, also named Hugh Grant.  On one occasion an elderly client asked the receptionist if she could see Mr Grant and the receptionist inquired ‘Which Mr Grant’, to which the receptionist replied ‘The young Mr Grant’.  On being led into Hughie’s room she exclaimed ‘Not that young!’

For a new judge it is quite daunting to take over the running of the Supreme Court in Central Queensland. There are many facets of the people and practice that I know nothing about and I am deeply grateful for the assistance I get from Ben Cooke, my Registrar, and his excellent team in the registry.

For myself I have had a year full of novelty and interest.  As most of you I hope know, the Central Judge’s circuit encompasses as far south as Bundaberg and as far north as Mackay.  I know that I am a relatively inexperienced judge but there cannot have been too many of my colleagues who have had to trek their way to court in bare feet dressed in footy shorts and a tee shirt when Mackay was hit with the biggest flood since Brian Harrison last knocked back a paying brief.  Whilst I was ready to go at 9 o’clock for the application that was listed for that time, Harrison rang in with some limp excuse about being unable to open his garage door and so get his car out. 

And I was faced with a somewhat novel excuse in Bundaberg.  In a trial concerning the production of a cannabis crop, the counsel and solicitor representing the defendant asked to be excused on the grounds that they had now become potential Crown witnesses against their own client as they had seen him attack a co-accused with his walking stick in the precincts of the court after he had been told that the co-accused had pleaded guilty and turned Queen’s evidence.

As many of you know I practised in Rockhampton for some 25 years before taking a short sabbatical in Brisbane for five years.  In my five years away much changed here in Rockhampton.  The mining boom occurred, causing asset prices to rise dramatically.  Fortunately I had sold all my assets the year prior to the dramatic increase in value and so managed to preserve my unenviable reputation of having no financial skills whatsoever. 

So far as the profession is concerned the mining boom and consequent increased commercial and related activity brought with it new firms and new faces.  There are many in practice here now who were not here when I left.  The young lawyers of Rockhampton were kind enough to invite me to drinks recently.  I was astonished both at the number present and of the gender divide — out of 20-odd lawyers only three were males.  And I do not count Cameron Press, Justin Houlihan or myself in the youngsters’ category.  I mentioned the dearth of females in practise in 1977 last night. Then there were 4 females in practice — two solicitors and two articled clerks.  I make no complaint — far from it.  The profession needs to renew and refresh and it was exciting to see so many new and young people in practice.

Speaking of Cameron Press he and Cherie celebrated 25 years of marriage by travelling to Europe and travelling down the Rhine with the Dutney-Springers. They weren’t the only ones to travel.  The Grants were rewarded for their assistance to the Iwasaki family over three decades with a trip to Japan, have abandoned Bridge and now play mah-jong.  Harrison now practises out of the Punjabi chambers after his visit to India where the Loanes, Jill and Paul, will soon be going.  Judge Britton celebrates his 10th year in office and managed three weeks away in Europe in the mid year with wife Christine.  And John and Deidre Shaw are celebrating Dee’s 60th in a novel way.  Shawy is going to Tasmania with the boys and Dee to London on her own.

We had a new magistrate appointed during the year — Her Honour Magistrate Maxine Baldwin.  Unfortunately her welcome to town function was barely over before she left for Gympie.  A magistrate’s life has its ups and downs.  You never quite know what to do with some criminals. Along one of the main roads in the city of Rotherham the daffodils coming into bloom spelt out the words “Shag” and “Bollocks”. The bulbs had been planted the previous Autumn by a gang of thieves doing community service.  And I wonder what magistrates Hennessy, Springer and Judge Butler would make of the case of Mrs Julie Amiri, a 35 year old lady arrested for shoplifting in Oxford St London. Her defence was a novel one at least in my experience — she claimed that she was compelled to perform such illegal acts as were likely to lead to her arrest as only in such circumstances could she achieve orgasm. Doctors supported her contention and she was acquitted.

Enough of the law. It is time to go home exhausted from our labours. I would like to thank the conference organisers. Nicci Schmidt is attending her first conference and has been prepared to do so as President and chief organiser. She deserves our warmest congratulations for a job well done.  Thank you to all who have helped her.

It is now my pleasant task to close this conference, wish you all a safe journey home and look forward to your company again next year.

The Honourable Justice DVC McMeekin

To discuss this article, visit the Hearsay Forum.

Introduction

Criminal offences feature in numerous Commonwealth Acts and Regulations and cover many subject areas including aviation, corporations, taxation, customs, social security, money laundering and financial transactions, copyright and trade marks, fisheries, environmental law and offences relating to marriage.

 As a general rule, the Commonwealth Director of Public Prosecutions (CDPP) prosecutes Commonwealth offences.

The main offences prosecuted by the CDPP involve drug importation, offences against corporate law, fraud on the Commonwealth in its various guises (including tax fraud, medifraud and social security fraud), money laundering, people smuggling, sexual servitude and terrorism.

The Crimes Act 1914 deals, to the exclusion of state and territory law, with many evidentiary and procedural matters. For example, Part 1C governs the investigation of Commonwealth offences, providing for the obligations of investigating officials, investigation periods etc. Forensic procedures are dealt with by Part 1D and controlled operations by Part 1AB. Other sections refer to penalty units and calculation of penalties, whether matters are summary or indictable.

Importantly, all Commonwealth offenders are sentenced pursuant to Part 1B which sets out general sentencing principles and makes extensive provision in relation to the sentencing process and sentences that may be imposed.

On 1 January 1997, the Criminal Code was proclaimed and commenced operation. Its application was staged over a considerable period — initially it applied only to those acts which specifically provided for its application. It was not until 24 May 2001, when offences relating to theft, fraud, making false statements, forgery, bribery and related offences were inserted that it had a much broader application.

On 15 December 2001, the Criminal Code was made applicable to all Commonwealth offences and from this time it was fully operational. It applies across Australia, without variation, in relation to federal offences.

Application of State Laws to Commonwealth Offences 

Commonwealth Prosecutions in State Courts

Except for a limited class of offences which are prosecuted in the Federal Court all prosecutions for Commonwealth offences are conducted in State or Territory Courts using the criminal procedure of that State or Territory.

Section 68 of the Judiciary Act 1903 provides:

It is now settled that s 39(2) and s 68(2) of the Judiciary Act both operate to confer Federal jurisdiction in criminal matters on State and Territory Courts1.

It is also settled that by virtue of s 68(2) provisions in State Laws conferring a right of appeal on State Attorneys General in respect of State matters also confers an analogous right of appeal on the Commonwealth Attorney General in respect of Commonwealth matters2. However, the CDPP has no power to appeal against a sentence imposed in respect of a State offence which he has prosecuted3.

Choice of venue in Commonwealth Criminal Matters

(i)     Forum of trials

Section 80 of the Constitution requires that the trial on indictment of any offence committed within the State be held within that State. However, it does not prevent a person committed for sentence from entering a plea and being sentenced in Queensland in respect of an offence committed in another State.

An offence that is dealt with summarily pursuant to the provisions such as s 4J Crimes Act is not an indictable offence for the purposes of s 80 of the Constitution even though it is described as an indictable offence in the legislation which creates it4.

 (ii)    Summary offences and Sentences

There is no constitutional requirement that a summary hearing or sentence proceedings in any court upon a plea of guilty, summary or indictable, be held in the State in which the offence was committed.

The effect of sub-sections (5), (5A), (5B), (7), (8), (9), and (10) of s 68 of the Judiciary Act is that such a proceeding may be conducted in any State or Territory subject to a discretion in the court not to hear the matter.

Elements of Commonwealth Offences 

Chapter 2 is central to the Criminal Code. Its purpose is to codify the general principles of criminal responsibility in respect of the laws of the Commonwealth. It contains all the general principles that apply to all criminal offences against the laws of the Commonwealth.

Chapter 2 sets out the elements of offences and what is required to establish guilt in respect of offences, including the burden of proof. It sets out the circumstances in which there is no criminal responsibility, as well as circumstances where criminal responsibility may be extended. Provision is made with respect to the geographical jurisdiction of Commonwealth offences. Special provision is made with respect to corporate criminal responsibility.

Elements of an offence

An offence is defined by the Criminal Code to consist of physical elements and fault elements.5

Physical elements refer to the external elements of the crime i.e. the actus reus. Fault elements refer to the state of mind or fault of the accused which must be proven for guilt to attach – mens rea.

In order for a person to be found guilty of committing an offence the relevant physical and accompanying fault elements contained in the particular offence must be established.6 It is therefore necessary to ‘break down’ an offence to reveal the physical and fault elements that must be established in order to make out the offence.

A fault element will attach to each physical element of an offence unless the law creating the offence expressly provides for a particular fault element.7 Where a law creating an offence does not specify the fault element attaching to a physical element of an offence, and the provision does not expressly state that strict or absolute liability applies to the physical element, then a ‘default’ fault element will supply the relevant fault element.8 The Criminal Code sets the ‘default’ fault elements in s 5.6.

There may be different fault elements for the different physical elements.9

Physical elements

A physical element for an offence may be:

• conduct – defined as an act, omission to perform an act or a state of affairs (e.g. being in possession of something);
• a circumstance in which conduct occurs (e.g. where a person harmed is a Commonwealth public official); or
• a result of conduct (e.g. cause harm to a Commonwealth public official).10

Fault elements

The fault elements for an offence may be:

• intention;
• knowledge;
• recklessness;
• negligence; or
• another fault element specified by particular legislation.11

Intention and negligence can be the fault element applicable to any physical element. Knowledge and recklessness can only be fault elements applicable to a physical element consisting of a circumstance or a result.

The meaning of the four fault elements (intention, knowledge, recklessness and negligence) depends on the physical element to which they are being applied.

Conduct — a person will have intention with respect to conduct if he or she means to engage in that conduct.12 Circumstance — a person will have intention with respect to a circumstance if he or she believes that it exists or will exist.13

Result — a person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.14

Default fault elements

Where the law creating an offence does not specify the fault element relevant to the physical element concerned then s 5.6 supplies that fault element depending on whether the physical element concerned is conduct, a circumstance or a result. It does so in the following way:

• conduct: the default fault element is intention;
• circumstance or result: the default fault element is recklessness

Proof of intention, knowledge or recklessness will satisfy the fault element of recklessness.15

Strict and absolute liability

If an offence is one of strict liability there are no fault elements for any of the physical elements of the offence but the defence of mistaken but reasonable belief is available.16

If the offence is one of absolute liability, there are no fault elements for any of the physical elements of the offence, and there is no defence of mistaken but reasonable belief available.17

Proof Of Criminal Responsibility — Part 2.6

Section 13.1 provides that the prosecution bears a legal burden of proving every element of an offence relevant to the guilt of the person charged. The prosecution also bears a legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof imposed on the defendant.

A legal burden in relation to a matter, means the burden of proving the existence of the matter. A legal burden of proof on the prosecution must be discharged beyond reasonable doubt.18

A defendant who wishes to deny responsibility by relying on any defence (other than in relation to mental impairment), bears an evidential burden.19

An evidential burden means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.20 Significantly, a defendant no longer bears the evidential burden in relation to a matter if evidence sufficient to discharge the burden is adduced by the prosecution or the court.21

Similarly, a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter.22

In some instances a legal burden of proof may be placed on a defendant to establish a matter. This must be done expressly. The standard of proof on a defendant is on the balance of probabilities. 23

Commonwealth Sentencing Regime 

The Crimes Act 1914 contains the sentencing options in respect of federal offenders. A federal offender is defined by the Crimes Act as a person convicted of an offence against Commonwealth law.24 State sentencing options apply only to the extent that they are expressed to be applicable by virtue of a specific provision of the Crimes Act or its Regulations. Sections 68(1) and 79 of the Judiciary Act do not have the effect of making State sentencing options available to federal offenders25.

General Principles

A court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence: s 16A(1). An inclusive list of matters which must be taken into account where relevant and known to the court is set out in s 16A(2).

Although not referred to in s.16A(2) general deterrence is to be taken into account26.

A guilty plea must be taken into account under s.16A(2)(g)27.

Bond without Conviction: s 19B

This is the only section which does not necessitate the recording of a conviction.  The relevant factors to be considered are set out in s.19B(1)(b):

An offender can be discharged completely or discharged on a recognizance: s.19B(1)(d). The conditions of the recognizance may include good behaviour for a period of up to three years, restitution/reparation, probation for up to 2 years or any other condition that the court sees fit to impose.

Bond with conviction: s 20

The conditions provided for under this section include good behaviour for a period of up to five years, restitution/reparation, pecuniary penalties, probation for up to 2 years, or any other condition that the court sees fit to impose.

Community servicee may not be imposed as a condition of a bond under s 20 or s 19B28.

Fines

Before imposing a fine a court must take into account the financial circumstances of the offender: s.16C(1).

Section 4AA currently defines a “penalty unit” as $110.

Section 15A adopts the State law with respect to the enforcement of fines.

Probation

Probation can be ordered only as a condition of a bond imposed pursuant to either s 19B or s 20(1).

Intensive Correction Order

This option is available to be used as an “additional sentencing alternative” which is “picked up” by s 20AB.

Community Service

A Queensland court may impose a community service order upon a federal offender pursuant to s 20AB.

Imprisonment

Imprisonment is not to be imposed unless, after having taken into account such matters as are relevant in s 16A, no other sentence is appropriate in all the circumstances of the case29.

It is possible to fully or partly a sentence of imprisonment by making a recognizance release order under s 20(1)(b).

Jane Bentley

CORAL COAST CHAMBERS

Footnotes

1. Adams v Cleeve (1935) 53 CLR 185, R v Bull (1974) 131 CLR 203
2. Peel v R (1971) 125 CLR 447
3. Byrnes v R (1999) 164 ALR 520
4. R v Archdall (1928) CLR 128
5. Section 3.1(1). However, the law that creates the offence may provide that there is no fault element for one or more physical elements. The law may provide different fault elements for different physical elements — s3.2(2) and (3).
6. Section 3.2.
7. This is the practical effect of the combination of s3.1, 5.6, 6.1 and 6.2.
8. Sections 6.1(2), 6.2(2) and 5.6.
9. Section 3.1(3).
10. Sections 4.1(1) and (2).
11. Section 5.1(1).
12. S5.2(1).
13. S5.2(2).
14. S5.2(3).
15. S5.4(4).
16. s6.1(1)(a) and s9.2(1).
17. S6.2.
18. S13.2.
19. S13.3.
20. S13.3(6)
21. S13.3(4)
22. S13.3.(3)
23. S13.4 and s13.5
24. See s16(1) Crimes Act 1914.
25. see All Cars Ltd v McCann (1945) 19 ALJ 129, R v Mirkovic [1966] VR 371
26. DPP v El Karhani (1990) 97 ALR 373, Oancea (1990) 51 A Crim R 141 and R v Carroll  [1991] 2 VR 509
27. cf s.13 Penalties and Sentences Act 
28. R v Shambayati (1999) 105 A Crim R 373
29. s 17A(1)

John married Margery Newton on 4 January 1961. They had one son Mark, born on 29 December 1961, who became a lawyer practising at the Bar in Sydney, but more recently has devoted time to his interests as a playwright and author.

John’s older brother, Brian, became a Christian Brother and embarked on a teaching career. Now retired in Darwin, Brian was, for a period, headmaster at St Laurence’s College Brisbane during a career that took him to such exotic destinations as Mozambique.

John studied law at the University of Queensland and Exeter College Oxford where he obtained a Bachelor of Civil Laws. After a period serving in articles with his father, John was called to the Bar on 21 December 1951. He was appointed Queen’s Counsel in 1967.

While at the Bar John Macrossan was regularly retained as counsel for the State of Queensland. He acted as counsel in a number of leading cases including Unsworth v Commissioner for Railways (1958) 101 CLR 73, Hall v Busst (1960) 104 CLR 206, Queensland Bacon Pty Ltd v Rees (1965) 115 CLR 266, Schiller v Mulgrave Shire Council (1972) 129 CLR 116, Brisbane City Council v Valuer General (1978) 140 CLR 41, and Melwood Units Pty Ltd v Commissioner of Main Roads (1978) 19 ALR 453.

John Gallagher QC recalled when delivering the eulogy at John’s funeral that, as a barrister, John presented an image of absolute calmness and composure.

John was active in the Queensland Bar Association becoming a committee member in 1965, Vice President in 1974, and President in 1976 occupying that position until 1978.

John Macrossan became a Judge of the Supreme Court of Queensland on 4 February 1980 and was Chief Justice from 10 April 1989 until his retirement on 16 February 1998.

He had an insightful mind and was not shy of revealing a well developed sense of humour. At his swearing in as a Justice of the Supreme Court, John somewhat wryly observed that “it could be said that the solicitor’s branch lost me by revealing all too early, and the Bar won me by hiding its secrets from me for a longer period”.

As a judge, John participated in many other leading decisions including King v Coupland [1981] Qd R 121, Chitts v Allaine [1982] Qd R 319, Holts Corrosion Control Pty Ltd v C M L Fire & General Insurance Co Ltd (1983) 3 ANZ Ins Cas 60-559, Riches v Hogben [1986] 1 Qd R 315, and QIW Retailers Ltd v Felview Pty Ltd [1989] 2 Qd R 245.

The current Chief Justice, Paul de Jersey, has described John Macrossan as being a great servant of the law stating:

“He gave the legal system the benefit of his alert mind and brought great dignity to the office of Chief Justice.”

John was the Chairman of the Incorporated Council of Law Reporting from 1972 to 1978. He maintained a strong interest in education throughout his life. John contributed articles on a variety of topics including “Judicial Interpretation” (1984) 58 ALJ 547, “Queensland Judicial Perspective: A Century On” (1994) 3 Griffith Law Review, and “Griffith and the Constitution’s 100th Birthday” Royal Historical Society of Queensland 1998. He had close links with Griffith University, acting as its Deputy Chancellor from 1985, and Chancellor from 1988. He continued as Chancellor of Griffith University until his retirement in 2000, receiving the Degree of Doctor of the University on 7 April 2001. Ian O’Connor, the Vice-Chancellor of Griffith University, paid tribute to John’s passing stating:

“The successful development of Griffith in the 1990s owes much to the contributions, commitment and leadership of the Honourable John Macrossan during this period.”

John also received an Honorary Doctorate of Laws in 1993 from the University of Queensland.

John acted as Director and Chairman of the Queensland Committee of the Churchill Trust from 1985 to 1992, and was President of the Queensland Art Gallery Society from 1978 to 1982. He was made a Companion in the General Division of the Order of Australia in 1993.

In appearance John seemed somewhat aloof, perhaps due in part to his height and glasses. But that was quite opposite to the real position. He was unfailingly courteous and polite, had great personal charm and a store of experiences to call on. John was a frequent traveller, particularly to Italy and England, and spoke Italian and French. He and his wife of 47 years, Margery, and Mark enjoyed a strong and supportive family relationship. At his swearing in as Chief Justice, John recorded that his “small but cohesive family has always managed to convey to me a sense of solidarity”.

There are two observations which are appropriate to repeat here, both taken from his valedictory address. The first reflects the real respect and the vision he maintained for the role of the Supreme Court:

“The Court’s mission will be entrusted to those who remain and those who, over the years, will join the Bench. It must always be open to new ideas but yet not driven by every wind that blows.”

The second reflects his constancy after a life in the law:

“My feelings are best summed up by saying that although I now think it is time to leave, if I were to start again in life it is the same career I would choose. I would do it all again”.

To those observations should be added a quote from A. C. Grayling, from his introduction to “The Meaning of Things”:

“Socrates famously said that the unconsidered life is not worth living. He meant that a life lived without forethought or principle is a life so vulnerable to chance, and so dependent on the choices and actions of others, that it is of little real value to the person living it. He further meant that a life well lived is one which has goals, and integrity, which is chosen and directed by the one who lives it, to the fullest extent possible to a human agent caught in the webs of society and history.”

John Murtagh Macrossan’s life was indeed a life well lived.

Don Fraser QC

Over the duration of the course, however, the reticence to be there subsided and was replaced with the question:  “Why can’t we do more of this?”

The advocacy course was intensive.  It required the barristers to perform in a mock- court setting.  An advocate’s essential skills (an opening, examination-in-chief, cross-examination and closing address) were tested and reviewed.  

The barristers were coached by experienced counsel (drawn from all the Bars within Australia and the U.K. Bar) and Justice Glenn Martin.  The other Queensland coaches were Wensley QC and Boddice SC.   The co-ordinator of the course was Phil Greenwood SC from the New South Wales Bar.

The barristers participated in groups; each group would perform before a particular coach (coaches were regularly rotated).  Each performance was recorded.  That performance would then be reviewed by a separate coach viewing the recording.  Performance coaches were present to comment on aspects of speech and presentation.  Stenographers were also present to transcribe a particular performance; a barrister could then review their performance by examination of the transcript.  

Each performance session was preceded by a short talk by a coach on a particular topic.  Important things were learnt during these talks including which font styles Martin J prefers in written submissions!

The most fun part of the course was having dinner together each night.  After some imbibing, new discoveries were made such as Wensley QC’s passion for words, literature and Roget’s Thesaurus.

On the final night, dinner was held at the Terrey Hills Golf and Country Club, Terrey Hills.  Those present were privileged to hear a short talk given by the Chief Justice of the High Court on the importance of the independence of the bar and the sole practice rule.  Transport to and from dinner (in an old school bus) clearly marked the Bar’s move into the 21st century.  The highlight of this dinner was the French embrace between Gleeson CJ and Martin J.   

Relations between participants was at all times collegial; many friends were made across the various bars of Australia and it felt that we had spent many months together rather than just five days.  

The Queensland Bar was represented by:  Karen Carmody, Andrew Christie, Kathryn Cochrane, Mark Robertson, Hugh Scott-Mackenzie and myself.  

The next course will be run in Sydney from 19-23 January 2009; Brisbane will host the course in 2010.  I highly commend the course to anyone interested.    

Anand Shah