Susan Anderson David Andrews SC Peter Applegarth SC James Bell QC David Boddice SC Helene Breene Sue Brown Mark Burdon Peter Callaghan SC Phillip Canning Jo Chapple Anthony “the Northern” Collins Lauren Coman Chris Crawford Gary Crooke QC Martin Daubney SC The Honourable Paul de Jersey AC, Chief Justice of Queensland Cameron Dick Greg Egan Dimitrios Eliades Lisbeth Elvery Ken Fleming QC Dr Toby Ford Colin Forrest Peter Franco Don Fraser QC Hugh Fraser QC Graham Gibson QC John Griffin QC Jim Henry Melanie Hindman Darin Honchin His Honour Michael Jarrett FM Nathan Jarro Dominic Katter Stephen Keim SC Declan Kelly David Kent Michael Kent Her Honour Fleur Kingham DCJ Madelaine Luchich Richard Lynch Andrew Lyons Peter Lyons QC John McKenna SC Dr Blake McKimmie Chris McGrath Glenn Martin SC Mark Martin Dr Lauren May Tony Morris QC Philip Morrison QC Robert Mulholland QC Peter Munro Lee Nevison Patrick O’Shea SC Fiona Rafter His Honour Anthony Rafter SC DCJ Aladin Rahemtula Peter Rowsell Professor Regina Schuller Andrew Swindells Professor Deborah Terry Roger Traves SC Samantha Traves Sydney Williams Jnr.

Hearsay is also indebted to the Chief Executive Officer of the Association, Dan O’Connor, along with the staff of the Association, the Department of Justice and Attorney-General and the Supreme Court Library for their ongoing assistance and support.

Lastly, but by no means least, special thanks are extended to Emma Macfarlane, whose tireless work and enthusiasm for the publication made all the difference, and Gregory Hale, our designer, who survived our often unreasonable demands with patience and understanding.

I wish everyone the compliments of the Season and look forward to the publication of the next edition — in mid-February 2007.

Martin Burns Editor

The first seminar was conducted in Lae on Friday, 17 November, and the second in Port Moresby on Saturday, 18 November.

 Mal’s sessions were entitled “Etiquette and Ethics” and “Appellate Advocacy”. I gave sessions on “Trial Preparation” and “Trial Advocacy”.

Over 40 lawyers attended the sessions in Lae. Almost every lawyer practising in the Lae area attended. The conference was officially opened by Justice Kirriwom.

His Honour is the resident National and Supreme Court Judge in Lae. As Lae is something of a “trouble spot”, the practitioners there are rarely graced by visiting speakers. As a result, they were extremely appreciative of the seminar, and sought many autographs and photographs.

The photographs that accompany this article were taken in Lae.

Over 100 lawyers attended the Port Moresby sessions. The profession in Papua New Guinea is not a divided profession, and there are no specialist advocates. Most of the admitted lawyers appear in court from time to time.

Overseas barristers are still permitted to appear in the courts of Papua New Guinea and to do so, they must be admitted in Papua New Guinea, hold a current practising certificate, and have a certificate from the Attorney-General expressly authorising them to appear in the case.

John Griffin QC

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}

In a speech delivered by the Honourable Chief Justice, His Honour welcomed the Speaker of the Legislative Assembly who returned a portrait of the Hon. TJ Byrnes to the Court after what was described as a “serendipitous saga”. His Honour also spoke of the prospect of a new Courthouse for the Supreme and District Courts, the re-hanging of Sir Harry Gibbs’ GCMG banner and the Society of Notaries. To download a copy of the speech made by the Honourable Chief Justice, CLICK HERE.

The Association was represented at the ceremony by the President, whose speech is reproduced below.

“The Bar has significant interest in each of the four topics specifically mentioned by Your Honour the Chief Justice this morning. Standing here, as we do, in regalia which itself preserves hundreds of years of history, we are very pleased to see the presentation by the Society of Notaries of their historical records for safe keeping by the Supreme Court Library. It is not merely a gesture — it is a public sign of the depth and strength of the confidence in, and affection for, this Court which is shared by the profession in this State.

We also respectfully associate ourselves with Your Honour’s observations about the prospect of a new Court House for Brisbane. We can speak with some authority on the subject, given that this is our professional home. This building has served us well, but its time has well and truly come and gone. The Courts of our State deserve better; and so do the people of Queensland.

The other two matters have, of course, a personal connection for the Bar. Thomas Joseph Byrnes, who was born in Spring Hill in 1860, read for the Bar with Mr Patrick Real (later a judge of this Court for nearly 20 years). It is said that Byrnes was quickly successful as a barrister, and within a few years was making a large income (we are speaking of barristers a long time ago!).

After only five years at the Bar, he was appointed Solicitor-General by Sir Samuel Griffith. Only a few years later, he stood for the Legislative Assembly, was elected, and was appointed Attorney-General. He died of pneumonia at the age of 38 — a life of so much achievement, and so much expectation, cut tragically short.

Sir Harry Gibbs, known to many in this courtroom, was a modern-day icon for the Queensland Bar. A past president and life member of the Bar Association of Queensland, Sir Harry held the highest judicial office in the land, and served the country with great distinction. We are honoured to witness the re-hanging here of his GCMG banner.

But back to the present. 2006 has been a busy year for the Bar Association, which now has more than 1,100 members, more than 850 of whom are in private practice. Much of the Association’s work these days is directed towards its functions as a regulatory body under the Legal Profession Act, and to the provision of important member services, such as a comprehensive Continuing Professional Development program. Yet we remain, as we have always been, an independent body of independent professionals.

We are most fortunate to enjoy a strong collegiate professional relationship with our new Attorney-General, the Hon Kerry Shine, as we did with his predecessor, the Hon Linda Lavarch, and we wish him well in his pivotal leadership role in the administration of justice in this State. It is more than a little regrettable that the occasional disagreements which will inevitably occur under our democratic system, and which I might also add are handled with utmost professional courtesy, tend to receive more airplay than the vast bulk of the good work between us, which is done with tremendous good faith and cooperation.

Only in the last week, for example, I have, on behalf of the Bar Association, subscribed to the Fremantle Declaration, to which the Attorney-General was a signatory, affirming our support for fundamental rights of accused persons on the fifth anniversary of the detention of David Hicks. I also acknowledge with gratitude the co-operation of all officers of the Department, led by example, as they have been, by Ms Rachel Hunter and now Mr Jim McGowan.

Barristers and solicitors work hand in glove every day in these Courts for the benefit of the people in Queensland. I am pleased to report that relations between the Bar Association and the Queensland Law Society are at an all time high, resulting in high levels of co-operation on matters affecting the profession and the administration of justice generally. Again, that is due in no small part to the positive and co-operative leadership of my friend Mr Pinder, and his recent predecessors Mr Davis and Mr Ferguson, who continues to serve on the Executive of the Law Council of Australia.

Finally, we acknowledge with gratitude the respect which the Courts of this State have shown us over the last twelve months. We serve the Courts willingly, and appreciate the interest and concern which the judges collectively and individually have for us. Just one example of the way in which the Courts and the profession have collaborated over the last twelve months is the promulgation by each of the Courts of Practice Directions concerning direct access briefs. Regulation of this relatively recent phenomenon, whilst covered by the Bar Rules, needed some positive reinforcement with the authority of the Courts, and each of the Courts responded by working with us to formulate appropriate Practice Directions – all of which, of course, is ultimately for the benefit of those who come to the Courts utilizing the services of counsel to seek justice.

It remains only for us to extend to the judges and staff of this Court, and all the Courts and tribunals before which we have the honour to appear, our sincere best wishes for this Christmas season and for the year which lies ahead.”

Martin Daubney S.C . President , Bar Association of Queensland

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.

 

Opening of the Upgraded Bowen Courthouse – 19 December 2006 The Hon. Chief Justice delivered a speech to commemorate the opening by the Attorney General of the upgraded Bowen Courthouse on 19 December 2006. Click to download a copy of His Honour’s address.

New ARC Rules – OAK Law Project – Legal Open Access The Australian Research Council (ARC) has announced that it encourages researchers whose projects it has funded to deposit their data and any publications arising from their research projects in open repositories like QUT’s eprints (www.eprints.qut.edu.au). Further, researchers are required to inform the ARC of the reasons for not doing so. While not a mandatory requirement, the effect will be that research material and associated publications will be accessible to all. Professor Brian Fitzgerald, who heads the Open Access to Knowledge (OAK) Law Project based at QUT, has welcomed the announcement which follows the launch by the Hon. Justice James Douglas of the OAK Law Project Report No. 1.

To download the ARC Discovery Projects – Funding Rules for funding commenced in 2008, CLICK HERE.

To download the OAK Law Project Report No. 1

High Court Silks Dinner – Canberra – 29 January 2007 The Australian Bar Association has extended an invitation to all members to attend a dinner to mark the occasion of the recently appointed Silks taking their bows in the High Court. The High Court Justices have also been invited to attend as guests of the Association. The dinner will be held in the Great Hall of the High Court on 29 January 2007. To obtain an acceptance slip please contact the Bar Association on 3238 5100 . Underprivileged Children’s Education Program If you wish to make a donation to the Underprivileged Children’s Fund Educational Program – Bangladesh in 2007, download a remittance form.

Summer 2006/2007 Arrangements in Applications – Supreme and District Courts Click to download a copy of the Notice to Practitioners, Supreme Court – Summer 2006/2007 Arrangements in Application

Annual BAQ Conference – 16-18 March 2007 The Annual BAQ Conference 2007 will take place at the Sheraton Mirage, Gold Coast from 16 to 18 March 2007. Topics will include Advocacy, Evidence, Ethics and Practice Management, and full attendance will be rewarded with 10 CPD Points. Further details including the Conference Registration Form will be made available to members later this month.

CPD Points for Contributions to Hearsay Members are reminded of the following ruling of the CPD Accreditation Committee:

“The CPD Committee will allow 2 CPD points per article published in Hearsay and the Queensland Bar Journal. Additional points may be available on specific request from authors of substantive works.”

CPD Calendar 2006/2007 To download the CPD Calendar 2006/2007. To place an advertisement in Hearsay Contact Emma Macfarlane on (07) 3236 4020 email hearsay@www.hearsay.org.au

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