Thank you to all who supported the first online edition of Hearsay.

As discussed in more detail in the article published elsewhere in this edition concerning the launch of Hearsay, the online version has been well received and I hope that members will continue to provide active support for it in the form of contributions for publication and posts on the Forum.

Frequent visits to the Forum during the currency of each online edition should ensure that the publication grows in worth during the month of its publication. As I have said previously, that is the real purpose of the Forum; to facilitate healthy debate among members for our mutual benefit.

So far as contributions for publication are concerned, in future editions of Hearsay a new approach will be taken. Although contributions from any member will always be welcomed, the responsibility for providing the bulk of the contributions for each edition shall be assigned to a featured set of chambers. 

There will be a short note about the featured chambers, listing past and present members, areas of practice and other points of interest, and the current members of that group will contribute articles for publication in that edition of Hearsay.

It is hoped that, through this innovation, the future life and worth of the publication will be assured.

I am especially grateful to Michael Liddy for advancing the idea and agreeing to co-ordinate it as the featured chambers sub-editor. 

Martin Burns

1 May 2007 

Welcome to the first online edition of Hearsay.

The President of the Association, Martin Daubney SC, has already written in this edition’s  ‘From the President’ of the resolutions made by the Council of the Association earlier this year to make Hearsay the official journal of record for the Association, as well of the migration of the publication to the Web.

While that means, of course, that a hard copy journal will no longer be published, as the President observed,  the move to a website provides much greater scope for live interaction between all members than anything that has gone before. A new edition will be published each month throughout the year and, although it will therefore be published less frequently than the PDF bulletin, it may be expected to be double the size in terms of content, as this edition attests.

In addition – and unlike its predecessor – once published, each edition will remain on the Web until the next edition is published; thus obviating the need to print off or otherwise save a copy of each issue. Individual articles may be printed as before – albeit more easily and quickly – but, now, they may also be emailed at the click of a button.

Among the many new features, the one that I hope will gain most acceptance is the Forum. If that hope is realised, it will ensure that the publication grows in worth during the month of its publication through the posting of comments about published articles as well as any other topics of interest. That is the real purpose of the Forum; to facilitate healthy debate amongst us for our mutual benefit.

Although the website will be open to the public, only registered members will be permitted to post in the Forum, but I urge each of you to register – a simple procedure – and thereby make full use of the facility.

Again as the President explained, the website is fully searchable by word, author or topic. Indeed, the search page will also extend, should you choose, to a full Google search. To date, only one of the previous 15 editions of Hearsay has been uploaded in searchable form – the balance may be located in the Archive in their PDF form – but, over the coming months, all previous editions will come online.

So far as the inclusion of content is concerned, you will find a similar philosophy to that which was adopted last year – in addition to news of current professional affairs, articles of real practical benefit to the most number of members are preferred. I hope though that you will find a little more balance this year with a number of lighter articles as well as a couple of innovations. Two bear mentioning.

First, in additon to summary notes and links to decisons of the Queensland Court of Appeal, the same approach has been adopted so far as decisions of the High Court of Australia are concerned.  

Secondly, we have incorporated a Common Room where news and views from the regional Bars as well as segments of the Bar may be found. In this edition, reports are included from the Gold Coast, from the South-Western Darling Downs and from the ‘junior, junior’ Bar. The Common Room provides a real opportunity for us to become closer than our geography (or seniority) would otherwise dictate. I hope that, in time, we will see contributions in each edition from all regions as well as from other segments of the Bar so that we may all better understand the challenges that face the Bar as a whole and, in the process, be better able to offer each other support or assistance.

Otherwise, I encourage all members to contribute to Hearsay. Although it has been said before, it bears repeating that it is only through your support that the publication will endure.

Before closing, it would be remiss of me not to make special mention of Sir George Street and his kindness in agreeing to provide responses to this edition’s Prism. For our older members, Sir George needs no introduction but, for the younger members, a separate article is published in this edition to provide some background information about one of this State’s most eminent, but enigmatic, former jurists.

Lastly, I would like to extend my sincere thanks to the President and the Council of the Association for their unqualified support of Hearsay  and to web developer Brett Young, designer Greg Hale and my secretary, Emma Macfarlane, for their unstinting dedication to the, at times, daunting task of moving Hearsay online. We got there in the end!

Martin Burns

 

 

 

Question 1: Are you a: Barrister?

Judge? Other? Magistrate? Total

Question 2: How important to you is a publication such as Hearsay? Extremely

Very Not very Not at all Total

Question 3: What do you see as Hearsay’s proper role? As a common link between members

As a source of bar news As an aid to continuing professional development As a source of occasional amusement All of the above Total

Question 4: When you download Hearsay, do you: Read the whole issue?

Read only what interests you? Total

Question 5: After you have read Hearsay, do you save a copy of it for future reference? Yes

Sometimes No Total

Question 6: How often do you use the interactive features of Hearsay (e.g., web links)? Often

Sometimes Never Total

Question 7: Which feature area/s of Hearsay do you find to be of the most assistance to you professionally? In Brief – current affairs

Reports of events Articles – legal Articles – lifestyle Opinion pieces Case notes CPD News Ct of Appeal summary notes The Prism Total

Question 8: Which feature area/s of Hearsay do you find to be of the most enjoyable? In Brief – current affairs

Reports of events Articles – legal Articles – lifestyle Opinion pieces Case notes CPD News Ct of Appeal summary notes The Prism Total

Question 9: Which feature area/s of Hearsay do you always read? In Brief – current affairs

Reports of events Articles – legal Articles – lifestyle Opinion pieces Case notes CPD News Ct of Appeal summary notes The Prism Total

Question 10: Which feature area/s of Hearsay do you never read? In Brief – current affairs

Reports of events Articles – legal Articles – lifestyle Opinion pieces Case notes CPD News Ct of Appeal summary notes The Prism Total

Question 11: Which feature area/s of Hearsay would you like to find more of in each issue? In Brief – current affairs

Reports of events Articles – legal Articles – lifestyle Opinion pieces Case notes CPD News Ct of Appeal summary notes The Prism Total

Question 12: Which feature area/s of Hearsay would you like to find less of in each issue? In Brief – current affairs

Reports of events Articles – legal Articles – lifestyle Opinion pieces Case notes CPD News Ct of Appeal summary notes The Prism Total

Question 13: Is it easy for you to navigate through each issue? Yes

No Total

Question 14: Is the size of the text easy for you to read? Yes

No – could be larger No – could be smaller Total

Question 15: Are you satisfied with the clarity/resolution of the images? Yes

No Total

Question 16: Are you satisfied with how frequently each issue is released? Yes

No – should be released monthly No – should be released quarterly Total

Question 17: How likely is it that you would contribute an article for publication? Very likely

Maybe Unlikely Never Total

Question 18: Given the regular publication of Hearsay, do you see the need for a hard copy journal similar to Queensland Bar News? Yes

No Undecided Total

Question 19: If a hard copy journal is published in addition to Hearsay, how often should that occur? Yes – quarterly

Yes – biannually Yes – annually Total

Question 20: If a hard copy journal is published in addition to Hearsay, would you like to see a selection of some of the articles that appeared in Hearsay re-published in that format? Yes

No Undecided Total A number of readers also took the opportunity to provide some additional comments.

Most were complimentary …

“Hearsay is an excellent publication providing just the right quantity and type of information. The links are great for further reading if necessary. Thank you”

“Overall, I think Hearsay is excellent, and well balanced. Well done. “

“I was initially sceptical of Hearsay but I now look forward to receiving my copy. The format was initially unusual, but now I am used to it, I like it. There was a survey question re “what do you NEVER read” didn’t allow for a non-selection answer = there is not a piece of Hearsay that I NEVER read.”

“Excellent journal – electronic version is extremely useful.”

“I enjoy Hearsay. The distribution by e-mail is, I believe, the most efficient means of distributing such information quickly, state-wide.”

“Excellent work. I appreciate that time and effort is put into a publication such as this and express my thanks to those involved.”

“You are all doing a sensational job in putting it together, it is an excellent publication. I wish I had more time to read it. Keep up the good work!”

Some were not …

“The bar has become increasingly regulated over the past 10 years with the ridiculous introduction of compulsory CLE. Now members are having to pay for the cost of a magazine which really serves no purpose. All of the information is readily available via the internet. The photos of social functions are of interest to those who like to look at themselves. Why don’t you cut the publication and just maintain important notices to members via email. This way there may be a reduction in annual fees.”

“Bad points: It runs too slowly on even fast links (5-6 minutes to download on even the fast link I’m using now, don’t ask me about dial up). I have on a number of occasions had to cancel trying to open it and then delete it from my email because it is taking too much space. I wish you kept at least 4-6 back copies on the bar association website. [All back issues are available for downloading from www.barweb.com.au . Ed.] You need to take into account that people are accessing this from a variety of links (especially those who work in regional areas or are travelling to regional courts) and cut down the graphics content or at least have a graphics free version. There are times when I would like to download the file and read it off-line on the laptop or print it out and read it when I am travelling or sitting at the back of a courtroom, I can’t do either at the moment. I think the screens are too small, if I want to quickly scan all the articles I can’t, I have to step through each small screen at a time. In busy periods it just means that reading Hearsay is too time inefficient.” 

Others also criticised the format in which Hearsay is published and delivered …

“Whenever I try to read Hearsay, it causes much grief to my computer. It does not crash, but it is far from a seamless process. Therefore I have not read the last 5 issues. The only way I could see that changing is for Hearsay to be offered in HTML format as well as its present PDF format. Otherwise I simply won’t be able to read it. Hence the reason why I only became aware of this survey when (an) email arrived reminding people of it. In my case, not a reminder but the first notification.”

“Good points: runs on several platforms. Interesting reports on recent appeals. Generally engaging articles. Smart use of technology in terms of content (which should supplement paper journals) however use of technology with respect to form is another matter. I think you are onto a great idea that deserves nurturing and for which you deserve our great thanks, but I think the format is wrong and strangling a potentially wonderful e-journal at birth.”

“I think it should be published online rather than by having to download it in PDF and then opening the file.”

“I am a Mac user. I would prefer not to have the Adobe file open in full screen format. In addition, the “exit” button at the end of the document doesn’t work once I am in the document, and I always have to “force quit” to close the file once I have read it.”

“The advice on the link for Windows users doesn’t seem to work in my system (Outlook & XP Pro) ~ unable to save as (doesn’t even appear as text which it is possible to select (and I’ve been using computers etc since 1980) .. so I don’t think its me!”

“Very time consuming to download at times.”

On the format of the Online Survey …

“There should have been an option to click showing there were no parts of Hearsay I did not read since that is the case. The clicking of that which I did was only done because without choosing one option I was unable to complete the survey. Your results might wish to reflect that the questions could have been worded better in the survey. For example I did not want to see less of any area but here was no option.”

“You asked questions about things I never read and things I would like to see less of. I would have preferred to answer ‘none’ but that was not an option.“

“The survey required a response to each ‘dot point’, whereas, for example, there is nothing I don’t read in Hearsay, but had to select something in order to move through the survey… just passing that on as comment, in case it has some bearing on the statistics…thanks.”

So far as the current mix of content is concerned …

“I do not think any particular part should be diminished …”

 “One thing which it does not deal with and which I would like to see included in future, is reports of Bar Council meetings and Sub-Committee reports.”

“Case notes on federal jurisdiction cases would be of value.”

“I would like to see more criminal law content.”

As to the frequency of publication …

“It’s almost too frequently delivered, so no more frequently please.”

On the topic of whether a hard copy journal should be published in addition to, or in substitution for, Hearsay …

“The survey did not let me say that I do not think a hard copy should be published at all. No need for it. It is costly and produces much less than the electronic journal. I think Hearsay is a great innovation and should only be expanded.”

“I like Hearsay, but I love the Bar News in magazine format.”

“I don’t read Hearsay as much as I would like as it gets lost in all my other emails; I hope to go back to it, but often don’t. If it was a magazine, I could take it with me somewhere. I do struggle with the fact of having to read it on a screen at some point in chambers.”

Hearsay is grateful to each of the readers who took the time to participate in the Survey. All feedback will be taken into account in the planning of the publication’s future.

Martin Burns Editor

{mos_sb_discuss:2}

So what is an undertaking? Section 13A of the Penalties and Sentences Act 1992 provides a mechanism whereby a person being sentenced for an offence may give an undertaking to cooperate with law enforcement agencies, which in turn is taken into account by the Court in sentencing the offender.

The procedure is a simple one and well explained by the provisions of s. 13A.

Importantly, after imposing the sentence the presiding judicial officer must (pursuant to s. 13A(7)) close the court and then state in closed court that the sentence is being reduced under this section and state what the sentence would have been but for the undertaking. The Court must cause to be sealed and place on file a record of evidence or submissions made relevant to the reduction of the sentence and the sentencing remarks made in closed court. This is accompanied by an order of the court that the envelope may only be opened with an order of a court. The usual form of an undertaking is to give evidence in accordance with a statement previously given by the person (though they may also simply be to ‘give assistance to the Office of the Director of Public Prosecutions’).

Often the offender will be a co-offender who has been dealt with earlier, and at other times they will give evidence in a wide variety of trials because of their contact with the defendants on trial (a police informant) also having been dealt with earlier by the courts. A person who fails to comply with their undertaking can have their sentence re-opened under s. 188 of the Penalties and Sentences Act 1992 and another sentence imposed. Furthermore, depending upon what has occurred, a perjury charge may be open (the statement previously given will usually be on oath).

Recently in R v Evans, Robu and Bivolaru [2006] QCA 5271 the Court of Appeal (Keane and Holmes JJA, Atkinson J) was asked to consider a range of grounds including the effect of a refusal by a trial judge to allow s. 13A undertakings of Crown witnesses to be opened.

The appellants had been charged with trafficking dangerous drugs and tried in Cairns. Two witnesses, Ferguson and McReaddie, had also been charged and convicted of related offences and had undertaken to give evidence against the appellants. For their undertaking, each had received a substantial reduction in sentence (Ferguson for example was given 5 years’ imprisonment wholly suspended but faced the prospect of 6 years’ imprisonment with no recommendation for release if re-sentenced).

The trial judge ruled that the s.13A material was not relevant to the proceedings and refused the application.

It is apparent from the transcript of proceedings in the Court of Appeal that very experienced southern counsel, Mr Callaghan SC (and not meaning to draw any distinction between those practicing south of the Tropic of Capricorn and those to the north), was surprised that the s.13A material had not been given to the appellants at trial as it “had never been an issue” in his experience.

It is unfortunate that there may be a different practice operating in different parts of the State. That is because, as the Court of Appeal recognised, such material often has important forensic value in eroding the credit of witnesses who have given an undertaking. It is also unfair that a defendant’s geographical location would determine the degree of fairness of his or her trial.

However, having said that, the Court of Appeal identified that in that case there was no good reason not to allow the defence access to the material, and every good reason to do just that (para [92]).

Quoting from Grey v R (2001) 184 CLR 593, Keane JA (with whom the other judges agreed) said (para [91]) that the witnesses had a:

“real ongoing incentive to ‘minimise his [or her] own criminality and maximise that of others, including the appellant[s]’;  and making this point to the jury to undermine the credibility of Ferguson and McReadie was “a most obvious forensic way to lead the jury to a reasonable doubt” as to the reliability of the evidence of Ferguson and McReaddie against the appellants.’

The Court described the trial judge’s decision as an “erroneous denial to the appellants of a forensic advantage which should have been made available to them” (para [93]). This was held to be a significant irregularity. However, because of the other irregularities in the trial, the convictions were quashed and a new trial ordered.

This decision should be contrasted with the decision in R v Lowrie and Ross [2000] QCA 405, where a similar application was refused at trial and the Court of Appeal (McPherson and Thomas JJA and Muir J) held there was no error.

Upon retrial, the appellants were convicted of murder. The witness Nowlan was an inmate of Brisbane Women’s Correctional Centre and shared a cell with Ross and gave evidence that Ross had certain admissions to her. Nowlan had given a 13A undertaking.

The difficulty seemed to be that counsel at trial had applied for permission to cross-examine the witness Nowlan on whatever was in the sealed envelope. It was put to the witness that she was a police informer and had given police information about crimes committed by others and that this had been taken into account in her favour by the courts. It seems that the sealed envelope had come into existence by way of s. 13A.

Thomas JA was of the view the application to cross-examine was an attempt to get the contents of the confidential exhibit before the jury and thereby impugn the credit of the witness. His Honour said the application should have failed because it attempted to adduce collateral evidence on a question of credit and secondly an attempt to present hearsay evidence.

It is respectfully suggested that the reasoning in R v Evans, Robu and Bivolaru is to be preferred. In R v Smillie [2002] QCA 341 Holmes J recognised that it was important for trial judges to give very clear and specific directions to juries on the “practical effect” of a failure by the Crown witness to comply with their undertaking (para [24]). It is difficult to see how this can be achieved unless the specifics of the undertaking and the sentence which will be faced by the witness if he or she does not give evidence in accordance with their statement is not known.

The incentive offered to a witness to give evidence is clearly a matter of relevance for the jury. The defence should not be denied the right to know about the incentive, or to properly and effectively cross-examined on that incentive.

Darin Honchin 

1. At the time of writing, the decision had not been made available on the Queensland Courts website — the writer is indebted to Mr Anthony Collins for a copy of the decision.