The jury system depends upon compliance by jurors with judicial commands. More than that, it depends upon widespread public understanding and confidence that jury verdicts are derived from the assiduous application of the judge’s instructions about the law to the facts of the case – uncontaminated by extraneous information that was not before the court at trial. In R v Panozzo,[1]Vincent JA put it this way:

The integrity and the perception of the integrity of [the jury] system is a matter of considerable importance. Only if the community can be entirely confident that the proper procedures have been followed will the reality and perception of integrity of the process be maintained.

It has long been assumed that jurors do comply. In Gilbert v The Queen,[2] Gleeson CJ and Gummow J said:

The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges.[3]

Later in the same case, McHugh J put it bluntly:

…unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials.

But is that assumption correct? According to some, the internet represents an existential threat to the jury system. One former Lord Chief Justice of England and Wales reportedly went as far as to suggest that the sending of text messages from within a courthouse should be banned.[4]  

Whilst recognising the absolute importance of the assumption, this paper queries whether it is matched by reality. In Australia, there is a dearth of statistical data about the extent to which jurors break the rules. But we know from judgments and news articles that misbehaviour occurs sufficiently frequently to raise questions about what, if anything, still needs to be done – either by way of research, the provision of juror information, judicial direction, or legislative amendments. This paper will also address the approach that the High Court has recently decided should be taken by, respectively, a trial judge or Court of Appeal when juror misconduct is identified.

A 2010 study by the University College of London’s Jury Project showed that:

a small minority of jurors do not follow the rules on juror internet use; most jurors feel they need more information about how they should be conducting deliberations; and many jurors are uncertain or do not know what to do if something improper happens during the trial.[5]

Although there is an absence of hard data in Queensland, evidence from other jurisdictions suggests that some jurors find the urge to undertake their own research to be irresistible. The Tasmania Law Reform Institute described the rate of jurors turning to the internet as “high,” albeit that this conclusion was not based on any sort of statistical analysis,[6] whilst a NSW author observed that “juror misconduct looms increasingly large in the law reports.”[7]

The ubiquity of the internet, indeed its criticality to our daily existence, is part of the problem. It is second nature to look at your phone to find out what bus to catch or when the game starts. Who has not sat on the couch in front of the TV and found themselves undertaking a deep dive into some obscure topic?

The proliferation of TV shows about crime, criminal investigations and criminal trials tells us a lot about how interesting these topics are to the general public. Is it any surprise, then, that when confronted for the first time with engrossing concepts such as DNA,  motor vehicle crash analysis, or even accessorial liability, the first thing a juror wants to do when they have access to a computer or – more likely – their phone on the train home, is to look it up. Examples of this sort of thing include researching the meaning of “prudent,” “retinal detachment,” “livor mortis,” “rape trauma syndrome,” and “the feminist position on rape.”[8]

Jurors’ curiosity is not limited to those things, however, and the cases and news reports tell us that they google:

• The defendant;
• The complainant and witnesses;
• The judge and the lawyers;
• The scene;
• The law, including offences, defences, sentencing and “reasonable doubt.”

They also do extraordinary things. One juror conducted an online poll on Facebook in which she invited her friends to help her decide on her verdicts. [9] Another, on the first morning of a murder trial and whilst in front of the defendants and a full public gallery, posted “At court. Guilty!” on Facebook.[10] In the days before the internet was really a thing, one jury in a murder case decided to consult a Ouija board that was smuggled into their overnight accommodation.[11]

As far as can be ascertained, there has been no study in Australia that has attempted to determine the nature and extent of jury misconduct. Here in Queensland, whilst there are statistics kept on aborted trials, the reasons for why those trials “bombed” are not recorded. Accordingly, to try to get some idea of what might be going on that does not just involve googling for news articles, this paper looks to the UK, where a lot of work has been done in this area. To a limited extent, it also considers the position in the USA, where jurors seem to behave very similarly.

In Queensland, with proper approval, such a study would be lawful. Whilst section 70 of the Jury Act 1995 provides that jury deliberations are confidential, subsection 70(9) provides that, on application by the Attorney-General, the Supreme Court can authorise the conduct of a research project involving the questioning of jurors and the publication of results. No such study has ever been undertaken.

Apart from section 70, the only provision of the Act which specifically regulates juror conduct is section 69A, which provides that:

A person who has been sworn as a juror in a criminal trial must not inquire about the defendant in the trial until the jury of which the person is a member has given its verdict, or the person has been discharged by the judge.

Maximum penalty—2 years imprisonment.

It is curious as to why the prohibition is limited to inquiries about the defendant. Otherwise, the source of power to punish for disobedience to judicial direction is found in the law with respect to contempt.

Reference will be made to UK provisions which contain wider prohibitions, but other states also have similar provisions. In NSW it is an offence to make an inquiry for the purpose of obtaining information about the accused, or any matters relevant to the trial, except in the proper exercise the juror’s functions.[12] A trial judge who discovers that a juror has engaged in such misconduct must discharge that juror.[13]

Section 78A of the Juries Act 2000 (Vic) similarly prohibits the making of inquiries about a party to the trial or any matter relevant to it. None of the other States or Territories appear to have specific provisions dealing with the issue.

Obviously, we are never going to stop a determined juror from getting on the internet and searching for whatever they want. But in respect of those who are not wickedly disobedient, we should probably be asking why they are doing it?

• Are they being properly informed about their obligations as jurors in respect of the internet, that is to say, in a way that they, as people unfamiliar with the process, can understand?
• Are they worried about asking “dumb” questions?
• Do they respect judges as authoritative sources when it comes to the law?
• Do they properly understand their role, that is, to decide the case on the evidence the parties present rather than work out what actually happened?
• Are judicial directions readily comprehensible?

No discussion of juries in the modern age would be complete without consideration of artificial intelligence. Whilst no case has been identified where a juror was found to be consulting AI, the day when that happens cannot be far off. The dangers of AI are particularly acute. Whilst AI imagery is becoming increasingly convincing, and video is not far behind it, the real danger lies in answers to questions posed to AI chatbots. We know that self-represented litigants are resorting to AI – largely because of an increase in the number of requests made of the Supreme Court Library for the provision of non-existent cases. But chatbots also readily spew forth misinformation with a level of calm assurance that belies what can be wild inaccuracy.

For example, when asked to explain section 272 of the Queensland Criminal Code,[14] a section that has caused a division of opinion in the Court of Appeal and which is now the subject of an appeal to the High Court,[15] ChatGPT confidently asserted that:

Protection of Property: Section 272 also extends to the protection of property. A person is justified in using force to prevent the unlawful entry into, or occupation of, any land or premises or to prevent any unlawful interference with property in their possession.

Similarly, an enquiry of ChatGPT to explain section 23 of the Code resulted in the alarming advice that:

Overall, Section 23 of the Criminal Code Queensland provides for the defense of provocation in cases of murder, allowing for the mitigation of the charge to manslaughter under certain circumstances. It balances subjective considerations, such as the accused’s state of mind, with objective assessments of reasonableness in determining whether the defense applies.

When the error was pointed out to the bot, it “corrected” itself and started to tell me about accident, but it still got it terribly wrong:

No Negligence: In addition to lacking criminal intent, the accused must also show that they were not negligent in their actions. Negligence refers to a failure to exercise reasonable care or foresight, which leads to harm or injury. If the act was caused by the accused’s negligence, the defense of accident may not apply.

The United Kingdom Experience

UK research seems to confirm that intuitive propositions about jurors giving in to temptation are largely correct. The 2010 study[16] involving over 600 jurors revealed that:

• 26% of jurors in high profile cases admitted to seeing information about their trial on the internet. 12% of them admitted to actively seeking that information;
• 13% of jurors in standard cases also saw information on the internet, whilst 5% had gone looking for it;
• These numbers were likely to be conservative, given that those who had actively researched the case had done so in defiance of judicial direction and were arguably less likely to admit to it;
• Access to the internet for information was not confined to the young. Most jurors who did so were over 30 years of age.

Like in Queensland, the UK adopts a system of collective juror responsibility, in that the misconduct of an individual juror is required to be immediately reported by another to the trial judge.[17] However 48% of jurors in the 2010 study said that they either did not know or were uncertain of what to do if something went wrong during their time serving on a jury.[18]

A follow-up study in 2012-2013[19] showed that whilst 73% of jurors understood the rules with respect to internet use and contempt, the remainder of those who responded were confused in startlingly different ways. 16% thought that they could not use the internet for any purpose during the trial, 5% thought that there was no restriction at all, and 2% thought that they could research the case being tried as long as they did not permit it to affect their judgment! This was despite what was thought to be clear instruction in the form of:    

• An introductory video shown to all new jurors;
• A speech given by the “jury manager;” and
• Specific directions by the trial judge in accordance with a Bench Book.

Prior to the 2015 amendments to the Juries Act 1974 (UK), which will be discussed later, juror misconduct was dealt with as contempt.[20] In marked contrast to the Australian approach, the response of the UK courts to contempt by jurors has traditionally been unsparing.

In Attorney-General v Dallas,[21] a defendant was being tried on a charge of grievous bodily harm with intent. The prosecution was granted leave to adduce evidence of a previous conviction for assault occasioning bodily harm. The defendant had also been charged, but acquitted, of rape arising out of the same incident. Despite warning notices in the jury room and specific directions about the conduct of internet research, the juror searched for information about the defendant and discovered that his prior conviction “involved rape.” She then started to tell other jurors about it, however her conduct was reported to the trial judge who discharged the whole jury. The juror in question was charged with contempt. She was a mature woman with a master’s degree in health psychology who was in the process of completing her doctorate.

The juror was sentenced to six months imprisonment (with a requirement that she serve three). In imposing sentence, the Lord Chief Justice said:

[40] This species of contempt of court involves contempt of the jury, and of the jury system. The jury man or woman is vested with the heavy responsibility of doing justice according to law and returning a true verdict in accordance with the evidence produced in court. No more, and no less. We repeat what has already been said in R v Fraill [2011] EWCA Crim 1570:

“In every case the defendant and for that matter we add, the prosecution, is entitled as a matter of elementary justice not to be subject to a verdict reached on the basis of material or information known to the jury” (as we would add now for emphasis, or to any individual juror) “but which was not in evidence at the trial”.

[41] Jurors who perform their duties on the basis that they can pick and choose which principles governing trial by jury, and which orders made by the judge to ensure the proper process of jury trial they will obey, or who for whatever reason think that the principles do not apply to them, are in effect setting themselves up above the jury system and treating the principles that govern it with contempt. In the long run any system which allows itself to be treated with contempt faces extinction. That is a possibility we cannot countenance.

[42] Judges are perfectly well aware of the value of modern technology, and the use of the internet as a modern means of communication. Again, we repeat what was said in Fraill:

“We emphasise, even if we do so by way of repetition, that if jurors make their own enquiries into aspects of the trials with which they are concerned, the jury system as we know it, so precious to the administration of criminal justice in this country, will be seriously undermined, and what is more, the public confidence on which it depends will be shaken …. The revolution in methods of communication cannot change these essential principles. The problem therefore is not the internet; the potential problems arise from the activities of jurors who disregard the long-established principles which underpin the right of every citizen to a fair trial.”

[43] Misuse of the internet by a juror is always a most serious irregularity, and an effective custodial sentence is virtually inevitable. The objective of such a sentence is to ensure that the integrity of the process of trial by jury is sustained.

(emphasis added)

The juror later unsuccessfully complained to the European Court of Human Rights, arguing that she was found guilty of a criminal offence on the basis of an act that was not an offence at the relevant time. The court rejected her complaint as “manifestly ill-founded.”[22]

This has scarcely been the only prosecution of a juror for contempt. Several others met a similar fate, attracting significant publicity.[23] Despite this, the follow up study referred to above revealed that 62% of jurors were unaware of those cases – even though the courthouses where the study took place had news clippings concerning them posted in their jury lounges.[24]

The UK Jury Project led to the amendment of the Juries Act 1974 (UK). In 2015, three new offence provisions were inserted. Section 20A creates an offence of researching the case during the trial period, research being defined as meaning the intentional seeking of information in circumstances where the juror knows or ought reasonably to know that the information is or may be relevant to the case. Section 20B prohibits the sharing of the product of any such research. Section 20C is of broader application and criminalises a juror engaging in “prohibited conduct”, which is defined as meaning conduct from which it may reasonably be concluded that the person intends to try the issue otherwise than on the basis of the evidence presented in the proceedings on the issue. In each case, the maximum penalty is two years imprisonment.

Despite the introduction of the new provisions, new model judicial directions, pamphlets and an instructional video, some jurors remained confused, and others, undeterred. The Lord Chief Justice requested that the UCL Jury Project undertake further research to identify the true extent of the problem of juror misconduct and to then identify an effective solution.[25] 17 juries comprising 201 jurors were initially surveyed. Whilst 92% of jurors understood that they were not to discuss the case on social media, other findings were concerning:

• 37% thought that it was permissible to visit the crime scene;
• 27% thought that it was permissible to discuss the case with family and friends;
• 15% thought that they could look up information about the defendant;
• 24% thought that they could research other parties to the case;
• 11% thought that they could contact any person involved in the case; and
• 51% thought that they could look up information about legal terms in the case.

The authors of the Jury Project concluded that there was clearly a problem with the way in which information was being provided to jurors, with information overload on the first morning of jury duty being the most likely culprit. The result was an amended juror notice[26] which summarised jurors’ legal responsibilities (including by reference to the offences), urged them to take the time to read it and make sure that they understood it, and which explained what to do if they had any questions. It also included a rather striking image of a prison with an arrow pointing to the entrance, so as to bring home the serious risk of imprisonment in the event of a breach. After the introduction of this procedure between April and July 2017, a further 34 juries comprising 404 jurors were surveyed, with the result that jurors were found to have achieved close to a 100% understanding of the most critical categories of misconduct. Full implementation in all Crown Court jury trials followed, and subsequent studies revealed similarly high levels of juror understanding.

That did not, however, mean that jurors stopped googling. In March 2021, Carolyn Mitchell, a solicitor of more than 25 years’ standing,[27] was empanelled on a jury to try a historical sex case. During the course of the trial an issue arose as to the dimensions of a particular room in a dwelling. The jury were told that, due to the 40 years that had elapsed since the alleged offending, no independent evidence was available about that issue. In addition to the standard directions about research, the jury was told not to speculate about the size of the room. Ms Mitchell nonetheless used her iPad to access the UK equivalent of realestate.com.au, presumably to look at pictures of the room in question. She was observed by the clerk of the court as she did so, and also overheard discussing what she had found with her fellow jurors. The trial judge discharged the entire jury, with the result that the complainant and other witnesses had to give evidence again. In December 2021, Ms Mitchell pleaded guilty to disclosing information that she had obtained in breach of the Juries Act to other jurors. Despite the momentary nature of her breach and excellent antecedents, she was imprisoned for two months and ordered to serve four weeks of that term. On 13 December 2023, she was suspended from practice for eight years.[28]

As recently as April 2023, a former police officer caused a mistrial by carrying out research on a defendant and encouraging other jurors to do the same. He was jailed for six months.[29]

As far as is known, there have only been two cases in Australia where a juror or jurors have been dealt with by a court for misconduct.

The United States

The US authorities contain many statements of principle to the same effect as Gilbert. For example, in Patterson v Colorado,[30] (a case decided decades before the advent of the internet) Holmes J said:

The theory of our [legal] system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.

So prevalent was juror misconduct in the US that the term “Google mistrial” had been coined by at least 2010.[31] More recent examples are easy to find, although proved misconduct does not always result in appellate success. The approach in the US is that juror misconduct is presumptively prejudicial and the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that [it] was harmless to the defendant.[32] Surprisingly, there is a dearth of scholarly opinion on the subject post 2010, but articles up to that point make it clear that it has been a problem.[33]

Penalties in the US for jurors who disobey judicial instructions not to google seem to be less severe than in the UK. In 2016, California introduced laws permitting jurors to be fined USD$1,500 for social media or internet. But in 2021, a New Jersey man was fined USD$11,227 for undertaking internet research about a uniform patch and sharing the results with other jurors.[34] It was described as one of the most severe penalties to be visited upon a juror for this type of misconduct.

Australia

Whilst there is some academic literature in existence concerning this issue in Australia, this author has not found any recent study that attempts to identify the nature and extent of the problem, so we are forced to resort to such evidence as is afforded by, for example, appellate decisions and online news articles. Of course, these sources do not capture every event. Some misconduct is identified mid-trial, with the result that the trial is aborted or the juror discharged. Many cases probably do not make the news – particularly in regional centres. Others, like a recent trial in Canberra, attract widespread attention.

What follows is far from a detailed review of all of the examples of jury misconduct that Google and LexisNexis have revealed, but it does give some insight into the sorts of things that jurors get up to.

In R v Cant,[35] one juror informed others that the accused was facing further charges. When this was reported to the trial judge, his Honour refused to make any enquiries of the jury about what had happened or to discharge the juror in question, but rather gave firm directions about the necessity to decide the case on the evidence. On appeal, it was held that the trial judge had erred in both respects, and that the Webb test for bias[36] was made out because of a failure to comply with a direction to decide the case only on the evidence before the court.

R v K[37] was a case involving a man accused of murdering his first wife. It was discovered after the verdicts that several jurors had researched the matter and discovered that not only was this a retrial, but that the appellant had also been accused of murdering his second wife. That information had been shared with two other jurors. In allowing the appeal and ordering a retrial, Wood CJ at CL’s reasoning was that this was not a case of Webb bias, but rather procedural irregularity. Whilst knowledge of the fact of a retrial was insufficient to vitiate the conviction, it could not be said that the information regarding the murder of the second wife had not affected the verdict.

The case also raised an interesting question about the admissibility of affidavits from the jurors that is beyond the scope of this paper.

The opposite result occurred in the case of the unfortunate Kathleen Folbigg. In that case there were two separate acts of misconduct. The first involved a juror or jurors researching the fact that Ms Folbigg’s father had murdered her mother. The second was a juror enquiring of a friend who was a nurse about the length of time an infant’s body might remain warm to the touch after death. Applying the test in R v K, the court concluded that neither irregularity could have affected the verdicts, and the appeal was dismissed.[38]

During the 2014 Baden-Clay murder trial, a juror was discharged after it was discovered that he had downloaded a US guide to jury service. Other trials in this state have been aborted because a juror researched the victim and defendant on Facebook, where a juror used Google to try to break a deadlock, and where a juror circulated material concerning a defendant’s criminal history.[39]

In the Queensland case of R v Mazza,[40] it was discovered after the conclusion of the trial that the jury had brought into the jury room a document setting out a definition of “reasonable doubt” that was apparently based on United States jurisprudence. They also had brought in a two page document entitled “Traffic law” which had been sourced from a law firm’s website. Whilst the definition of reasonable doubt in the first document was essentially orthodox, the appellant contended, and the court accepted, that the information about traffic offences was deficient. Notwithstanding that, the court concluded that since the trial judge had given clear and correct directions both orally and in written form, the deficiencies in the internet information did not cause any measurable prejudice, and the appeal was dismissed.

In 2020, the NSW Court of Criminal Appeal quashed convictions and ordered a retrial after a juror was found to have shared a Facebook post the day before guilty verdicts were returned which said, “When a dog attacks a child it is put down. Shouldn’t we do the same with sex predators?” accompanied by a picture of an electric chair.[41]

In 2021 a perjury trial before the Brisbane District Court was aborted after a juror used their phone to look up the meaning of “intention”.[42]

In 2022, the High Court quashed convictions after a juror had undertaken online research for the requirements for a working with children check. Upon learning of this, the trial judge took verdicts on some counts where the jury said they were unanimous before  discharging the juror in question. Section 53A of the Jury Act 1977 (NSW) imposes a mandatory requirement to discharge a juror found to have engaged in misconduct constituting an offence against that Act. The High Court held that the judge ought to have immediately discharged the juror rather than taking verdicts.[43]

All of which is probably sufficient to demonstrate that jury misconduct remains a problem, but precisely how much of a problem involves speculation.

Penalties for contempt in Australia

Only two cases have been identified where jurors were dealt with for disobedience to judicial directions.

In Registrar of the Supreme Court of South Australia v S & C,[44] two jurors contravened a direction of the trial judge by conducting research on the internet about matters related to the trial. Those two jurors were members of the third jury that had been empanelled to try a charge of blackmail. On day four of the trial, having received information that jurors had conducted internet research, the judge enquired of the whole jury as to whether any of them had done so. S and C both identified themselves as the culprits and admitted communicating  what they had found to other jurors, resulting in the discharge of the whole jury.

Both S and C pleaded guilty on the first return of their respective summonses and expressed remorse. They explained that their searches were undertaken in order to confirm their own recollections of what they had earlier heard in media reports, and it was accepted that neither of them had any intention to sway other jurors.

Doyle J referred to the UK cases of Fraill and Dallas, but observed that the offending in those cases was more serious, and imposed a fine of $3,000 in each case. His Honour, however, emphasised the gravity of what the jurors had done:

[21] The widespread availability and usage of the internet, and search engines such as the one operated by Google, mean that information about accused people is often readily and widely accessible. However, this only serves to underscore the importance of directions, such as the one given by the judge in this case, being given, and being observed. For so long as criminal trials continue to be conducted on the premise that accused persons are tried solely on the evidence presented in court, it will continue to be fundamental to the achievement of a fair trial that jurors not conduct their own research on people or matters relevant to the trial.

[22] Such conduct by jurors also has the very real potential, which was realised in this case, to cause a mistrial and hence occasion delay, expense and inconvenience affecting not only the accused, but also the administration of justice more generally.

[23] For these reasons, considerations of general deterrence weigh heavily in determining the appropriate penalty for contempt by a juror in conducting their own research. In some cases, such conduct will warrant a term of imprisonment.

Very recently, in Attorney General for Western Australia v Marijanich,[45] the Supreme Court of Western Australia was concerned with a rather more serious case of misconduct. In that case, a juror communicated via Facebook Messenger with a number of other persons about the issues in contention in the trial, including the allegations against the accused, the matters raised by both sides, and the evidence of the complainant. The messages included observations about the strength of the case at trial and an opinion about whether the accused was innocent. In later messages, as he was about to “head into deliberations” he communicated his opinions regarding the absence of expert evidence, the strength of the case and his view as to whether the accused was guilty. Later again, he disclosed the content of jury deliberations and the numerical split regarding the verdict. This was all done despite repeated directions prohibiting conduct of this sort.

One of the persons with whom the juror communicated, Turner, made his own inquiries about the identity of the complainant, however when asked, the juror confirmed the complainant’s name. Unbeknownst to the juror, Turner subsequently contacted the complainant via Instagram, sending messages to the effect that the prosecution case was weak, there was no forensic evidence, the complainant had made a false allegation and had wasted taxpayers’ money. In one message he asserted that he spoke “on behalf of the jury.” Turner was charged with stalking, pleaded guilty and was fined $8,000.

The juror was guilty of contempt in two ways. First, he had communicated with third parties in contravention of clear directions. Second, he had breached the confidentiality of jury deliberations. Whilst he did not intend or request that Turner communicate with the complainant, his disclosure ensured that Turner had the information to do so. McGrath J observed that Turner’s conduct showed “the potential adverse impact of the contemnor’s jury misconduct on the justice system and in particular, for complainants in criminal trials,”[46] and that, therefore, “a paramount consideration in this case is the need for general deterrence and for denunciation of the contemptuous conduct.”[47]

The juror was a 35 year old man with no prior convictions, a good employment record, and was the sole provider for his wife and two young children. At the relevant time, he was suffering from depression and PTSD, the latter stemming from a sexual assault, although the court determined that there was no nexus between those conditions and the contempt. The juror pleaded guilty and was remorseful for the impact that his conduct had on the complainant.

In assessing the gravity of the conduct, the court noted that it was not undertaken to elicit information for use in the deliberative process, nor with the intention of gaining a benefit or sharing the information with other jurors. At no time did the juror inform the others that he was sharing information with a third party. Nevertheless, the conduct involved deliberately and persistently ignoring the trial judge’s directions. The juror was fined $8,000 and ordered to pay costs of slightly less than $7,000.

HCF v The Queen

Which brings us to HCF v The Queen (2023) 97 ALJR 978; [2023] HCA 35. This was a case involving serious sexual offences that resulted unanimous verdicts and a sentence of nine years imprisonment. After conviction, but before sentence, a juror wrote a letter to the Acting Deputy Registrar in which she revealed that another juror had initially stated that due to some “personal experience” with a child, he would not convict. Later in the trial, that position softened because he had undertaken some research on sentencing for the offence of unlawful carnal knowledge and thought that penalties were lighter. Later again, it was said that “he and others” had worked out that sentencing was not much different than for the more serious offences and he restated his absolute opposition. Despite this, the verdicts were unanimous. The trial judge ordered an investigation by the Sheriff pursuant to section 70(7) of the Jury Act.

That investigation only resulted in responses from five of the twelve jurors who delivered the verdicts. The upshot was that one juror (who was the author of the letter) confirmed the original account and was quite critical of the juror in question. Another confirmed that the juror had undertaken research and had told other jurors of the results of that research. Two said that the juror had indicated an unwillingness to convict, but did not mention anything about internet research, whilst the fifth denied knowledge of any bias, fraud or other offence arising from the jury’s deliberations.

Of course, the jury had been told in no uncertain terms by the trial judge that they should not undertake any independent research and also that they should report any such behaviour by another juror.

The appellant argued that the juror’s research, and the other jurors’ failure to report it amounted to wilful disobedience of the trial judge’s directions. This, it was said, gave rise to a reasonable apprehension that this jury might not have approached its function in accordance with judicial directions. The respondent countered by arguing that the primary question was whether there had been a miscarriage of justice in the sense that there was a real chance that the irregularity impacted the verdict.

The appeal was dismissed by a 3:2 majority. The majority rejected the approach adopted by the NSW Court of Criminal Appeal in R v K (and also Folbigg), which was to approach jury misbehaviour as a procedural error and to then enquire as to whether there was a possibility that it might have affected the verdicts. The majority in HCF concluded that the correct test is that posited in Webb v The Queen:

[11]…Irregular conduct by a jury or juror, whether described as procedural or otherwise, involves a miscarriage of justice if a fair‑minded and informed member of the public might reasonably apprehend that the jury (or juror) might not discharge its function of rendering a verdict according to law, on the evidence, and in accordance with the directions of the judge. If the jury or juror misconduct would give rise to such a reasonable apprehension then, for that reason, the misconduct will involve a “failure to observe the requirements of the criminal process in a fundamental respect”. In such a case, satisfaction of the reasonable apprehension test means that the “shadow of injustice over the verdict” cannot be dispelled, that the trial is “incurably flawed”, that there has been a “serious breach of the presuppositions of the trial”, and that “the irregularity [is] so material that of itself it constitutes a miscarriage of justice without the need to consider its effect on the verdict”.

(citations omitted, emphasis added)

The majority went on to make it clear that where the issue arises after conviction, the test is as follows:

[14]…“On the facts to be found on the balance of probabilities, might a fair‑minded and informed member of the public reasonably apprehend that the jury or a juror might not have discharged the function of deciding the appellant’s guilt according to law, on the evidence, and in accordance with the directions of the judge?”

But what about when misconduct is discovered mid-trial? In that case, what is required is a “prospective…assessment of the risk of the occurrence of a miscarriage of justice by reason of the reasonable apprehension test.”  Thus:

A proper exercise of power in such a prospective assessment would generally result in discharge of the jury if, by reason of the nature and extent of the misconduct, there was any real risk of a miscarriage of justice occurring (that is, any risk of satisfaction of the “double might” test for the requisite reasonable apprehension) that could not be ameliorated by further directions. The focus would be whether, despite any further direction, it was appropriate to discharge the jury or a juror because otherwise the trial realistically might miscarry.[48]

Trial judges can therefore be expected to take a fairly cautious approach in determining what to do when misconduct is identified. That is because any risk of satisfaction of the ”double might” test should now trigger the discharge of either a juror or the entire panel.

Applying the post-conviction test, however, the majority concluded that no miscarriage of justice had occurred. They noted that there was no case that stood as authority for the proposition “that mere disobedience by a jury or juror of a trial judge’s directions, in and of itself, is sufficient to give rise to a miscarriage of justice,” and that “the cases in which juror misconduct has resulted in the setting aside of the verdict have included consideration of the potential effect of the misconduct on the jury’s discharge of its function, with the most important considerations being the nature of the inquiries made and/or of the information obtained by the jury or juror.”[49]

Because of the divergence of accounts from the jurors, the court concluded that any finding on the balance of probabilities that there had been “wilful disobedience” of judicial directions was not available; rather, the more likely explanation was that there had been a “contravention” of the directions because “the jury failed fully to appreciate the true import of the trial judge’s earlier directions about internet research extending to the definition of the offences or sentencing unconnected to the facts of the immediate case.”[50] The evidence did not provide a basis for any more than speculation about whether the jury might not have discharged its function as required, but that would not satisfy the Webb test for bias.

Conclusion

This paper does not suggest any particular solutions to what may be an intractable problem. Jury duty is supposedly mandatory, but given the fairly narrow pool of people who end up being, in a practical sense, required to undertake jury duty, the idea of imprisoning those who engage in misconduct might be troubling to some. Having said that, the UK approach perhaps underscores the fundamental importance of the jury in the administration of criminal justice. And it is perhaps surprising that, despite offence provisions existing in three states, and the law of contempt applying more generally, on only two occasions have jurors been subject to criminal punishment. The usual sanction consists of no more than a stern talking-to.

It is impossible to prevent outrageous behaviour, some examples of which have been given, but experience tells us that most jurors actually do take their role as jurors extremely seriously. The UK study has shown that modification of how we convey information to jurors can have a significant effect on their level of understanding, and that this could reduce instances of the less malign misconduct. This paper suggests that any changes to how we instruct juries on the performance of their function should be based on a proper understanding of:

• What exactly it is that they are doing; and
• Why they are doing it.

Reactive responses to the behaviour revealed in individual cases are unlikely to get it right. It is argued that any changes ought to be based on data, whether it be a more granular version of that which is already maintained by the courts or derived from a study properly authorised under the Act.

Postscript

On 13 September 2024 – being the day of publication of Hearsay Issue 97 – the Queensland Court of Appeal handed down its decision in R v NAH [2024] QCA 170. In it the Court considers, inter alia, an allegation of jury misconduct relating to an alleged google search made by a juror or jurors involving hung juries during deliberations.

Dalton JA (with whom Mullins P and Burns J agreed on that ground) considers the jury irregularity issue at [104] – [116], with reference being made in some detail to HCF v The Queen. The appeal was dismissed.    

A link to this decision is here.

[1] (2003) 8 VR 548

[2] (2000) 201 CLR 414

[3]  At [13]

[4] BBC, 19 November 2010, “Top judge says internet ‘could kill jury system’”

[5] Prof Cheryl Thomas, Avoiding the Perfect Storm of Juror Contempt [2013] Crim LR 6, p 484

[6] Tas Law Reform Institute, Jurors, Social Media and the Right of an Accused to a Fair Trial, Issues Paper No 30, August 2019

[7] Professor Jill Hunter, Jury Deliberations and the Secrecy Rule. The Tail that Wags the Dog?, (2014) 35 Sydney LR 809

[8] Jurors, Social Media and the Right of an Accused to a Fair Trial, supra

[9] The Guardian, Juror shares trial details on Facebook, 24 November 2008

[10] WA Today, Calls to overhaul WA jury system after juror dismissed for Facebook post, 13 October 2016

[11] R v Young [1995] QB 324

[12] Jury Act 1977, s 68C

[13] Section 53A

[14] Self defence to a provoked assault

[15] See R v Dayney [2022] 10 QR 638; R v Dayney [2023] QCA 62

[16] Professor Cheryl Thomas, Are Juries Fair?  Ministry of Justice Research Series 1/10, February 2010

[17] Thompson [2011] 1 WLR 200

[18] Are Juries Fair, supra

[19] Professor Cheryl Thomas, Avoiding the Perfect Storm of Juror Contempt, [2013] Crim LR Issue 6, p 483

[20] The power to punish for contempt was then found in Order 52 RSC at Schedule 1 of the Civil Procedure Rules. It relevantly required, in connection with criminal proceedings “disobedience to an order of the court.”

[21] [2012] 1 WLR 991; [2012] EWHC 156

[22] Dallas v United Kingdom, No 38395/12, 6 June 2016

[23] See, for example, Attorney-General v Davey & Beard [2013] EWHC 2317 (Admin)

[24] Avoiding the Perfect Storm of Juror Contempt, pp 489-490

[25] Professor Cheryl Thomas, The 21st Century Jury: Contempt, Bias and the Impact of Jury Service[2020] Criminal Law Review (11) 987

[26] https://assets.publishing.service.gov.uk/media/5fbe9ee0e90e077ed7351b0a/j001-eng.pdf

[27] Solicitors can be jurors in the UK.

[28] Solicitors Regulation Authority v Mitchell, Case no 12473-2023, 13 December 2023

[29] Juror jailed for causing rape trial to collapse by researching defendant, The Guardian, 25 May 2023:

[30] 205 U.S. 454, 462 (1907)

[31] Paula Hannaford-Agor, Jury News, The Court Manager, Volume 24 Issue 2

[32] Remmer v United States, 347 US 227 (1954)

[33] Amanda McGee, Juror Misconduct in The Twenty-First Century: The Prevalence of

The Internet and Its Effect on American Courtrooms: The Internet and Its Effect on American Courtrooms, 30 Loy. L.A. Ent. L. Rev. 301 (2010

[34] United States Attorney’s Office press release: Juror Fined $11,000 for Conducting Outside Research During Criminal Trial and Causing Mistrial

[35] [2002] NTCCA 8

[36] (1994) 181 CLR 41, ie “a fair‑minded and informed member of the public might reasonably apprehend that the jury (or juror) might not have discharged or might not discharge its function of rendering a verdict according to law, on the evidence, and in accordance with the directions of the judge.”

[37] (2003) 59 NSWLR 431

[38] R v Folbigg [2007] NSWCCA 371

[39] Leighton-Jackson, Journlaw “Contempt”

[40] [2017] QCA 136

[41] Agelakis v R [2020] NSWCCA 72

[42] ABC, Jury dismissed in senior police officer’s perjury trial after juror ‘disobeyed’ judge’s directions, 9 June 2021

[43] Hoang v The Queen (2022) 399 ALR 631

[44] (2016) 125 SASR 207

[45] [2024] WASC 312

[46] At [52]

[47] At [53]

[48] At [45]

[49] At [48]

[50] At [60]

The term “Artificial Intelligence” is hardly new.  It’s been around since the 1950s when it was used to describe a machine’s ability to execute a job that would formerly have required the application of human intelligence.  It remains a broad-ranging term which is applied these days to a machine or software used to perform tasks that normally require human intelligence, such as understanding language, recognising patterns, solving problems, and making decisions.

AI can be trained through various methods, including machine learning and deep learning, to improve performance over time. AI is a broader concept than Machine Learning, which is currently one of the main species of AI technology capturing the public’s attention. 

Machine Learning is a more restricted term which applies to the application of AI in machines that obtain data and learn from it. Machine Learning often operates by using statistical methods to make classifications and predictions. By contrast, a wider concept is used for AI – one that encompasses a variety of technologies, including Machine Learning, natural language processing (or NLP – technology that trains computers to understand what humans write or say), and facial recognition.[1]

I won’t get bogged down in trying to refine these definitions, not least because I’m simply not qualified to do so.  What we all know, however, is that these technologies are evolving at a rapid pace, in part due to the increased access to large datasets (often referred as Big Data). 

Machine learning has evolved significantly in recent years in its ability to recognise patterns in data sets. It is confidently predicted that AI is now poised to reach human level in the imminent future. 

While the application of this technology can be very useful, it may also be disruptive as well as worrying if used inappropriately or for purposes such as limiting the autonomy of people. Consider, for example, technology used in the Chinese province of Xinjiang – a region with a Muslim majority that uses a facial recognition system that allows the government to carry out mass surveillance of its citizens.

It’s the sort of technology that’s portrayed in science fiction films to put us in fear of a dystopian future.  It has us living in a world in which government computers monitor and evaluate the behaviour of individuals, businesses, and government entities, and assign scores based on financial reliability, legal compliance, and social conduct, and in which high scores can lead to benefits like easier access to loans, while low scores can result in penalties such as travel restrictions. 

What I’ve just described isn’t science fiction.  It is, in fact, an accurate description of the Chinese Social Credit Scheme which has been operating for the last 10 years.

A couple of months ago, Chief Justice Andrew Bell, on the occasion of the bicentenary of the NSW Supreme Court, gave an interview to the ABC in which he specifically identified emerging AI as one of the significant challenges which his Court will need to face in the future.  He said that high on the agenda of challenges is the increasing sophistication of generative AI — programs like ChatGPTwhich can produce content like text and imagery— and the complex issues it creates for the legal system.  He cited a recent case in the ACT in which the court had been presented with a character reference which appeared to have been written with help from ChatGPT, which resulted in the court giving the reference little weight. 

The Chief Justice went on to say that his concerns weren’t limited to the prospect of fraud or attempted fraud on the court through the use of AI, but extended to the need for the courts and practitioners to be cautious about so called “hallucinations” – the phenomenon which occurs when the program, which is designed to assist the user, simply invents an answer so as to provide the user with an outcome.  Again, we have all heard of the notorious examples where AI generated submissions have been given to a court containing imaginary case references.

The recent emergence of applications such as ChatGPT has rapidly come to be a popular representation of AI.  ChatGPT was said to be the fastest growing consumer application in internet history, acquiring 100 million users in the first month after its release in late 2022.  In February 2023, Columbian Judge Juan Manuel Padilla Garcia posed several legal questions to ChatGPT, and included the chatbot’s replies alongside his own ruling.

Following extensive online debate, Judge Garcia remarked that while ChatGPT and other technology programs should not be used to replace judges, they can improve the efficiency of judicial proceedings by aiding in document drafting and performing other secretarial tasks: “by asking questions to the application, we do not stop being judges, thinking beings”, he said. Ironically, when asked by journalists abouts its role in the judicial system, ChatGPT itself appeared more reluctant than Judge Garcia, responding, “Judges should not use ChatGPT when ruling on legal cases … It is not a substitute for the knowledge, expertise and judgment of a human judge”.[2]

In a display of the intellectually rigorous and intensive research for which I am renowned, I asked ChatGPT to describe simply the ways in which AI could be used in mediations.  In seconds, it gave me a remarkably concise and lucid response:

The integration of artificial intelligence (AI) in mediations represents a significant advancement in dispute resolution, offering both opportunities and challenges. AI’s role in mediations primarily revolves around enhancing efficiency and accuracy. For instance, AI-powered tools can analyze vast amounts of data from previous cases to identify patterns and predict outcomes, helping mediators craft more informed strategies. They can also facilitate the mediation process by managing schedules, sending reminders, and even offering real-time translation services, thereby bridging communication gaps.

Moreover, AI can support mediators in evaluating the dynamics of negotiations through sentiment analysis and behavioural cues, providing insights into the parties’ emotional states and potentially guiding interventions. This could lead to more nuanced and empathetic handling of disputes.

However, there are challenges and ethical considerations. The reliance on AI might undermine the human element crucial in mediation, such as empathy and understanding, which are essential for resolving conflicts. Additionally, concerns about data privacy and the potential for algorithmic biases must be addressed to ensure fair and equitable outcomes.

I couldn’t have put it better myself! 

Then I asked it how AI could be used in evaluative mediations.  Again, within seconds it gave me a very useful answer, which identified the valuable tools AI could bring to such a mediation, including data analysis, legal research, scenario modelling, sentiment and behaviour analysis, document review and management, risk assessment, and even bias detection.

It gave a similar answer when I asked a general question “How does a mediator use AI”, but interestingly its answer to that question included a couple of important caveats.  One was that mediators must ensure that AI tools comply with data privacy laws and that sensitive information is securely managed.  The other was to highlight what it described as The Human Element: “While AI can provide valuable insights and support, the human element remains crucial. Mediators should use AI as a tool to complement their expertise rather than replace human judgment and empathy.”

Then when I asked the machine what role ChatGPT has in the judicial system, it reeled off a list of predictable responses, such as case management, document review, and precedent research.  But the response also included a confidentiality caveat and went on to state: “Decision-Making: ChatGPT is not used for decision-making in judicial processes. Judicial decisions are complex and require human judgment, empathy, and understanding that AI cannot fully replicate.”

Doing the best I can to read the tealeaves, I think we have to accept that the use of AI to help mediate disputes will be a feature of our practices in the near future.  It is not commonplace yet, but I certainly can see the time soon when it features regularly as a tool to which we have regular resort – just as we now unthinkingly look at our smartphones to do everything from checking our diaries to checking our bank balances.

Currently, the biggest risk of using AI in mediation is the possibility that it will introduce errors into the process, such as the so-called hallucinations.  And even ChatGPT itself seems to concede that when unchecked by human mediators, AI mediation risks running afoul of laws and ethical standards.

Generative AI is also ill-equipped to help parties cope with the strong emotions that often come up during mediation. One of our core skills as mediators is to manage emotions such as anger, frustration, and fear – which may be fuelling the conflict – and even assist the parties to channel those emotions in constructive ways to enable resolution of a dispute.

That being said, AI applications do provide us with valuable tools, such as in disputes involving large volumes of data, which AI can quickly sift through and analyse. 

Another example of a useful tool is that concerns about ensuring that non-English speaking participants are actively involved and understand what’s happening can be overcome by pulling out your smartphone and opening a simultaneous translator like Google Translate. 

AI chatbots can even be used to assist the mediator formulate the process of negotiation. For example, generative AI tools can pose questions aimed at identifying parties’ underlying interests, propose offers, and predict the likelihood that such offers will be accepted. You, as the human mediator, might opt to compare your own lists of questions to those generated by AI technology to make sure you haven’t missed anything.

Finally, just in case you’re wondering whether the future really is here, only a few weeks ago the Harvard Law School Program on Negotiation newsletter carried a report about the use of the ChatGPT chatbot in a mediation.[3]  It recounted a recent episode in which an experienced mediator was mediating a dispute over the wrongful termination of a lease.  The landlord was seeking $550,000 from the guarantor, who refused to pay more than $120,000.

With the parties at an impasse, the mediator asked ChatGPT for advice on what number to propose to the parties. The chatbot recommended $275,000. The mediator thought this was more than the guarantor would be willing to pay. Still, he asked the parties’ lawyers if their clients would agree to accept ChatGPT’s number—which would remain unknown to them—in the event of impasse. The parties agreed.

The prospect of abiding by ChatGPT’s advice motivated the parties to resume their settlement negotiations. Ultimately, the guarantor offered $270,000 – just $5,000 less than ChatGPT’s recommendation – and the landlord accepted. The two sides signed their settlement agreement, then asked what ChatGPT had recommended. After hearing the number, both sides remained satisfied with their negotiated deal.

Welcome to the new world of mediator’s bids!

[1] See generally Professor Pablo Cortes “Artificial Intelligence in Dispute Resolution”, CTLR, 2024, 30(5)

[2] R. Abbott & B. Elliott, “Putting the Artificial Intelligence in Alternative Dispute Resolution”, Amicus Curiae, 2023, 4(3),

[3] www.pon.harvard.edu/daily/mediation/ai-mediation-using-ai-to-help-mediate-disputes/

The Honourable Philip Morrison KC graduated from the University of Queensland in 1977 with a Bachelor of Laws. He was admitted as a barrister the same year, and was appointed Queen’s Counsel in 1989.

After admission, Mr Morrison immediately commenced practice as a barrister, and thereafter practised across the civil sphere, mainly in commercial cases involving contracts, real property, corporations, competition, insurance, banking and mining. He appeared in all of the state, interstate and federal courts, and the High Court.

In the mining sphere, Mr Morrison appeared in the 1986 and 1997 Moura disaster underground mining inquiries, and the mining inquiry into fatal and serious accidents between 1989 and 2001 at Mount Isa and South Blackwater.

Mr Morrison was appointed a judge of the Queensland Court of Appeal in 2013. He retired from that court in 2024, upon turning 70 years of age. He has since sat as an acting judge of that court.

Mr Morrison is well known – and well liked – in legal circles..

Mr Morrison chatted with the editor.

Trials are stressful. The mantra that “you have to look after yourself” is often told to us while we work long hours worrying over trial preparation. While we are told that a lot, it is not necessarily advice we are very good at following.

As barristers and solicitors practicing in criminal law we often find ourselves dealing with challenging situations. Clients, complainants and witnesses often present with mental health difficulties, social disadvantage, impairments and other vulnerabilities. Layer onto those difficulties the unpleasant subject matter we find ourselves dealing with, whether it be sexual violence, domestic and family violence, homicide or offences against children. This is before you factor in the usual chaos of last-minute issues that usually attach to trials, late instructions, witness issues, court requests or disclosure issues. In addition to those issues criminal law practitioners often deal with a variety of ethical issues that arise during the course of a trial. 

It is entirely natural to be nervous and/or stressed about running a criminal trial. Even the most organised or experienced advocate cannot prepare for everything. From a rogue juror, an uncooperative witness or an unhelpful client, trials involve people and they do not follow scripts. It does not matter which side of the bar table you are sitting at, whether it is a two-day trial or a two-month trial, they can take a toll on your wellbeing, both physically and psychologically.  

That stress will never entirely go away. Stress may be an important driver to some, it may even enhance your performance. Inevitably,  stress can become counterproductive – causing rumination and anxiety without any corresponding progress of or advantage to your case. So, what are some of the things you can do, or try to, during a trial to maintain your wellbeing.  

1. Your client or complainant’s predicament is not yoursIt can be easy to find yourself completely immersed in the case you are working on. The contents of it come home with you, both literally and metaphorically. You need to maintain your sense of self. The crimes alleged against your client, or committed against your complainant, fortunately are not happening to you.  You have an important job to do in advocating their interests, or those of the community. They are heavy obligations that rest on your shoulders, but only in so far as your obligation to do your job thoroughly.  You can not control the outcome. With all your best work, ultimately your case or client’s fate is in the hands of the jury.
2. Time management and preparation That leads into the need to manage your time and prepare your brief properly.  Keeping a well organised diary and forward planning are critical in this regard.  This simple step can tamp down the anxiety that builds in anticipation of the trial. Even the most voluminous briefs can be broken into bite pieces.
3. If you have a routine, to the extent you can, try to maintain itIf it’s exercising – exercise. If it’s a hobby you indulge in – do it. If you usually walk early in the morning before work, do not skip it. There is nothing more important than maintaining those matters that are important to your health, whether it be physically or mentally, including while you are in a trial.  Do not change your eating or drinking habits. Each of these things are easier said than done, and it’s easy to give yourself the excuse of ‘just while I’m in trial’ but we all know that disruption of a routine always makes things feel worse. The time you spend on those routines is never going to be fatal to your preparation for the next day of trial. It can always be made up, in fact the time away from trial tasks, often leads to greater efficiency when you take up the tasks again.
4. Have a ‘day off’It is not feasible to work all the time. Take a day off each weekend, or at least the morning.  It is important to maintain some distance between yourself and your work.  One of the biggest complaints is a lack of work / life balance but we each take some responsibility for achieving it ourselves. When you get in the trial and another lawyer asks: ‘How are you?’, we respond ‘busy’. Its almost like a badge of honour, a stereotype that the busier we are the more successful or important we must be.  Rest is an important part of maintaining your own wellbeing.
5. Talk to your colleaguesOne of our greatest supports is talking to each other. The bond between our community is our greatest strength. The ability to debrief on a lunch break or after court each day is invaluable. It helps remove little doubts that have arisen about your conduct and get some perspective that can sometimes be lost when you are invested in a trial. Frankly, they might just have some ideas that you have not thought of yourself, or alternatively it can just be cathartic to vent some of your frustrations.

The cumulative trauma and stress you experience in your role can lead to a lack of patience, including with those who instruct you and assist you in chambers. As justifiable as you may perceive your frustration to be, there can be no excuse for incivility or bullying in our workplace, whether that is in Chambers or the courtroom. The pressure on an advocate during a trial is significant but it can not become an excuse to speak poorly to others. It is unprofessional and has an impact on others, who are already experiencing their own levels of stress. 

If you are aware of any of your colleagues struggling, support them. There is a perception that to ask for help is a weakness. As a group we have a duty to help dispel that perception. The strength of the criminal law fraternity is the support and empathy we share with one another. Know that there is always someone you can talk to and advocate to your peers the benefit of looking after themselves.    

Further to the above, the Chief Justice has presented the two attached speeches on this subject matter, providing invaluable insight from her experience as a practitioner and from the bench. 

Mental Health and Wellbeing within the legal profession

Acknowledging and dealing with the cumulative trauma and stress of your role as Prosecutors

In this article Professor Yvette Tinsley* – from a New Zealand and Australian perspective – writes of the occupational stress suffered by criminal lawyers in confronting litigation. We thank newsroom. and Professor Tinsley for their consent to republish this article.

The link to the article is here.

*Professor Yvette Tinsley is in the Faculty of Law at Te Herenga Waka – Victoria University of Wellington.

On 8 February 2023, the High Court delivered judgment in Metal Manufactures Pty Ltd v Morton (as Liquidator of MJ Woodman Electrical Contractors Pty Ltd (In Liq)) deciding that set-off under s 553C of the Corporations Act was not available to a defendant to a liquidator’s unfair preference claim. This ended decades of uncertainty about this issue.

On 23 July 2024, John McKenna KC and Paul O’Brien who appeared for the liquidator, presented at the Bar Association of Queensland, on the issues in this case and more generally on the approach involved in matters before the High Court.

Read the paper here.

The above title was the salutation by Edward R Murrow at the conclusion of each episode of his 1950’s CBS current affairs “See it Now”.  It is apt in respect of the farewell and good wishes we bid to the raft of barristers – silk and non-silk – who have retired from practice in the last two years. Such retirees are persons who have practised as counsel – in most instances for many decades – but not been elevated to judicial office. The Bar Association of Queensland wishes all of them well. They are too many in number to mention, but as a celebration of the time all spent at the Bar, in respect of several of them only, the editor has solicited Association members to write valedictories. So much is intended to be representative, not selective, with our best wishes extended to all retirees.

Former District Court Judge Michael Rackemann has written on Robert Bain KC. The Honourable Justice John Logan RFD has written on Mal Varitimos KC. James Bell KC has written on Christopher Newton of counsel.

Robert (Bob) Bain KC

by Michael Rackemann

In his 46 years as a barrister, Robert Bain KC has been an ornament to and a loyal and diligent servant of, the Bar. His retirement in 2023 represented a substantial loss. I am blessed to have been mentored by Robert and to count him as a friend. I am humbled to have been asked to write this reflection on his career and contribution.

The son of a prosecutor, Robert was admitted to the Bar on 16 December 1976 and commenced practice in May 1977. The commencement of Robert’s practice fittingly coincided with the commencement of the Federal Court, which was established in 1976 and commenced sitting in February 1977. Robert was to establish a substantial practice in the jurisdiction of that court, amongst others. 1977 was also notable for ABBA’s tour of Australia, but I am sure that was of no interest to Robert, whose stereo is, in my experience, always tuned to ABC classic music.

Highly Intelligent, knowledgeable and hardworking as well as formal and fearless in court, Robert quickly earned a strong reputation for his outstanding advocacy and advice work. He worked closely with Fitzgerald QC (as he then was) during the famous royal commission. He went on to take silk in December 1992. He thereafter practiced as a popular and busy commercial silk for more than three decades until his retirement. He was, without question, one of the leading silks in this State. He was also sought after interstate and his practice extended to other capital cities, including Sydney and Melbourne. Always enthusiastic about his work, Robert derived much satisfaction from life at the Bar.

Although appearing in the criminal jurisdiction early in his career, major commercial litigation (including banking and insurance litigation and advice work) became Robert’s preferred area of practice. His expertise in that area is well known. He was also however, well capable of turning his talents to other areas (including, to take one example close to my heart, Planning and Environment Court cases), as he did from time to time. The ease with which he did so was aided by his imposing intellect and comprehensive knowledge of the law, as well as his skill as a trial lawyer. That intellect, together with his extensive vocabulary, love of the English language and fast paced delivery, could present a challenge to keep up with, but was also to marvel at.

Robert’s knowledge of caselaw is encyclopaedic. Robert’s ability to accurately and without reference to research, state the law and cite the relevant authority across an enormously broad range of topics is amazing. He could do so not only on a point in his area of expertise, but on a point in seemingly almost any other area of the law as well.  Ferrett KC, a chamber mate of Robert’s at Chambers33, said of him “I admit that he made me lazy when it came to legal research; who needed Lexis-Nexis when you could just ask Bain”. His command of the law makes it unsurprising that he served, for a period in the summer of 2013/14, as acting Solicitor-General for Queensland.

Robert’s impressive knowledge of history, including the history of existing and former judges as well as matters of general interest, make for educational and entertaining conversation. For example, Ferrett KC says of his conversations with Robert:

Robert is so learned; so widely read. He has a lifetime of tales about law in Brisbane to relate. I know a lot more about the battles of the World Wars. I heard tales about playing bridge with Peter Connolly and Brian Halligan. And I can tell you a story about how the senior copper in a regional town in the late 70’s would make the Friday night drunks in the lock up wash the police cars on Saturday morning.

Robert was sensible, but fearless in the proper advancement of his client’s interests. Alternative dispute resolution, including both mediation and arbitration, was very familiar to Robert. He was adept at using ADR. He was willing to be appropriately pragmatic and to make proper concessions when circumstances called for it. I sometimes however, complimented him as being a little “old school” in the sense of being very familiar with the inside of a courtroom, unafraid of it, skilled and fearless in running a trial and not shy to take his client’s case to trial if that was in their best interests. Perhaps that is what prompted one barrister to say of negotiating with Robert “if you’ve got a good case Robert won’t give you a lot. If you haven’t then he’ll give you nothing”. Doyle KC recently recalled to me a very long running case in which he was led by Robert in the late 1980’s. Robert was unflinching in his approach to the trial, notwithstanding difficulties arising from a relative paucity of resources. They were rewarded with success.

Robert’s service to the profession and his fellow barristers has been as outstanding as his own professional achievements. During his career at the Bar Robert mentored 15 readers. He provided tremendous encouragement and assistance not just to them, but to many others. Robert was extremely generous with the time he gave to any barrister, particularly junior barristers, who asked for assistance. I was one of the many beneficiaries of that. Although I was neither his pupil nor a member of his chamber group at the time, Robert was very good to me when I first came to the Bar, giving me guidance, devilling work and mentorship generally. Robert has always been a great promoter of the junior Bar in general, including of increased female entry to the Bar in particular.

Robert was an energetic and masterful chambers’ leader. In 1997 he moved from his then chambers on level 13 of 239 George Street to become a fellow founding member and the leader of a new group that formed on level 15. The group included members who were silk and others who were later to become silk and/or judges. Robert took his role as chambers’ leader seriously and worked diligently and well to ensure that the administration of the group, staff relations, group harmony and individual wellbeing were always in good shape. Another fellow member of that group, Doyle KC, recently

reminded me that we then referred to Robert as “the Major”, not just because of his military bearing and sense of chain of command, but because of his real sense that he was responsible for the chambers and the people within it. His door was always open.

He was held in the highest regard by all members, each of whom regularly sought his counsel.

When that group ultimately disbanded, Robert became a founding member and chamber’s leader of Chambers33, where he was similarly highly regarded through to his retirement. The members of that group describe him not just as their leader, but as a “paternal presence” and “enthusiastic teacher”. They are grateful to have had his guidance for so long and greatly miss his presence in chambers.

It was not only junior barristers and chamber colleagues who were the beneficiaries of Robert’s generosity and guidance. His counsel was sought by many barristers, at all levels of seniority, including Bar presidents. He was also very good to employees. His most recent long-term executive assistant, Rachel, describes herself as very lucky to have worked for a “boss in a million” and a “father figure”.

Robert also gave great service to the profession through his long service on committees of the Bar Association. Robert dedicated much time and energy to the preparation of young lawyers for practice at the Bar. He was a member (and generally the senior member) of the Bar Practice Course Management Committee for more than two decades, from 2000, until his retirement in 2023. During that time the course substantially developed, including in the substance, quality and rigour of its content, in ways that significantly benefit those preparing for practice as barristers. Highly trustworthy and ethical, Robert also gave similarly lengthy service in relation to the maintenance of proper professional standards, through his work, over decades, as the senior member of the Professional Conduct Committee.

The Bar in general and many barristers individually, owe a debt of gratitude to Robert. Fittingly, in November 2016, life membership of the Bar Association was conferred on Robert.

The Honourable Patrick Keane AC KC has provided the following observations, which I respectfully adopt:

Robert Bain loved being a barrister. He loved the English language; and he delighted in its subtleties and shadows. Practice at the Bar gave him plenty of opportunity to engage his passion for exploration of nuance and shades of emphasis in language. This passion, combined with his diligence in the presentation of his client’s cause, made him a formidable opponent. But he was also the most honourable and trustworthy of barristers so that appearing in cases against him made for a challenging contest but one entirely devoid of rancour.

Robert was a mentor to many at the Bar. He was kind and generous in his dealings with others, especially junior members of the Bar and also the solicitors’ branch of the profession. For myself, I am proud to have been able to call him “my learned friend”, but more important I am happy to be able to call him my friend.

Robert is a genuine and kind person with a good and caring heart. He is a loyal and good friend. Beyond the Bar he delights in his family and, until curtailed by health issues, pursued his recreational interests of fishing and golf. Although Robert had a long and successful career, his retirement was premature in that it was consequent upon ill-health. He is however, well supported by his loving family, particularly his wife Lana and daughter Alexandra (their son, Dugal, lives abroad). They are good hands to be in and he should be well satisfied with the tremendous contribution he made in his time at the Bar.

Manuel (Mal) Varitimos CBE KC

by the Honourable Justice John Logan RFD

There is a tide in the affairs of men, Which taken at the flood, leads on to fortune. Omitted, all the voyage of their life is bound in shallows and in miseries.

William Shakespeare, Julius Caesar, Act IV, scene ii

Manuel (Mal) Varitimos was reluctantly compelled by personal and family health considerations to wind down his practice at the Queensland Bar and abroad on and from mid-2024 at the relatively young age of 60. His career offers a proof perfect example that Brutus’ famous exhortation of Cassius is not Shakespearean dramatic licence.

After graduating from the then Queensland Institute of Technology Law School with Honours in 1986, Mal was admitted to the Queensland Bar on 16 May 1988. He commenced a general civil practice shortly thereafter. The late John Griffin QC and the late N M (Marshall) Cooke RFD KC – each of whom had a considerable practice in Papua New Guinea, as well as at the Queensland Bar – thought well of Mal. Via that association and patronage, Mal came to be admitted as a legal practitioner of the Supreme and National Courts of Justice of Papua New Guinea on 1 April 1997.

This admission date was not a coincidence. A Commission of Inquiry constituted by Justice Warwick Andrew of the PNG judiciary had latterly been appointed to inquire into the engagement of by the PNG government of the mercenary organisation, Sandline International, to train and assist the PNG Defence Force in relation to counter-insurgency operations on Bougainville Island. Led by Cooke QC, Mal appeared at this inquiry for the then Prime Minister, Sir Julius Chan, and the government of PNG.

Truly this proved to be the tide in Mal’s professional affairs. His embrace of the opportunity was wholehearted. His practice ever increasingly thereafter took on a PNG focus with frequent appearances in both PNG’s superior court of general jurisdiction, the National Court and its appellate court, the Supreme Court. In time, this also led to a wider South Pacific dimension to Mal’s practice.

Again led by Cooke QC, Mal again appeared for Sir Julius Chan, by then former Prime Minister, the following year in both the National Court and in the Supreme Court in a series of public law and electoral cases to which Sir Julius and either the Ombudsman Commission or the Electoral Commissioner were parties. Frequent appearances with either Cooke QC or Griffin QC or leading a local practitioner in a range of heavy commercial, other civil and public law cases in both original and appellate jurisdictions followed.

Papua New Guinea’s legal profession is fused. At present, there is no separate referral Bar. Local legal practitioners can, and do, act as both barristers and solicitors. By 2011, Mal was ever increasingly appearing as counsel leading practitioners in the heaviest of PNG cases. The latter included a constitutional case of the highest national importance, In re Reference to Constitution section 19(1) by East Sepik Provincial Executive [2011] PGSC 41; SC1154, which was decided in December that year, shortly after I first took up judicial office in PNG. The case concerned whether Sir Michael Somare had forfeited the office of Prime Minister such that the Hon Peter O’Neill and the Hon Belden Namah had become respectively Prime Minister and Deputy Prime Minister. Mal appeared for O’Neill and Namah in that case. In the result and by majority it was held that Somare had not forfeited the office.

As I observed from the bench firsthand throughout the ensuing decade – and ever more as Griffin QC and Cooke QC gradually wound down their practices in PNG – Mal became a leader of choice for many of PNG’s leading law firms. He was not without competition from the relatively confined class of non-resident legal practitioners. From the Queensland Bar, Ian Molloy and, until his appointment to the then Federal Circuit Court, Greg Egan, also had considerable PNG practices as leaders, as did from the New South Wales Bar, James Renwick SC. Mal was solicitous of his local juniors and never condescending. They repaid this with loyalty, respect and demand for his services.

Mal’s advocacy was always well received by the PNG judiciary, the product of meticulous research and well-focussed oral and written submissions. The PNG judiciary do not enjoy the same range of legal research resources which those in developed countries take for granted. Mal was invariably assiduous in ensuring that the bench was provided with a comprehensive authorities book containing pertinent legislation and authorities. This was greatly appreciated by the judges before whom he appeared. So, too, was Mal’s candour and transparent sincerity.

The two-year international border closure as between Australia and PNG, while a challenge for those with practices like Mal, was overcome by a ready embrace by the PNG judiciary of appearances by remote audio-visual means. As I also observed firsthand from the bench, Mal was adept in his mastery of this medium as an advocate.

The Sandline Commission of Inquiry proved to be but the first of many appearances by Mal, including as a counsel assisting on occasion, in a number of important public inquiries either in PNG or in Tonga: Commission of Inquiry into Transparency in Government Dealings and Accountability of Public Office Holders; Commission of Inquiry into National Provident Fund in Papua New Guinea; Commission of Inquiry into the Conduct Generally of the Privatisation; Commission and Matters Relating to the Privatisation of Finance Pacific Limited and the Sale of the Papua New Guinea Banking Corporation; Commission of Inquiry into the Sinking of the Rabaul Queen and Commission of Inquiry into the Sale and Purchase of the Motukea Wharf and Royal Commission of Inquiry into the Sinking of the Princess Ashika (Tonga).

Although as a Commonwealth realm it probably could, PNG has not to date adopted the practice of appointing Silk. However, in 2013, the Queensland Bar, in recognition of his eminence as counsel based in Queensland undertaking work in PNG and elsewhere in the South Pacific took the singular course of recommending to the Chief Justice that Mal’s name go forward to the Governor-in-Council for appointment as Queen’s Counsel. He was appointed as one of Her Majesty’s Counsel for the State of Queensland on 14 November 2013.

Mal was an early and zealous supporter of continuing professional education for the PNG legal profession. In this he was amply supported by Griffin QC, who had undertaken lecturing duties at the University of Papua New Guinea Law School for about eight years, from 1968 until shortly after Independence. When in 2012 after a request conveyed to us in person while in PNG by the then Chief Justice of Papua New Guinea, Sir Salamo Injia, John Bond SC (as Bond JA then was) and I presented a proposal to the Queensland Bar to deliver, with AusAid support, a commercial litigation workshop at the Legal Training Institute, Mal was an early and enthusiastic volunteer. His input was invaluable in ensuring that workshop problem scenarios and practice content were relevant to PNG. He took time off from his busy practice to assist the Queensland Bar team from the first such workshop in 2013 and in every subsequent year, engaging with students via video link during the border closure period. Mal also volunteered his time and talent in other South Pacific CPD activities conducted by the Queensland Bar’s South Pacific Region Education Committee. He was dined out from that committee earlier this year by committee President, Andrew Crowe KC at a memorable lunch at Tattersall’s Club hosted by Dr Joe Crowley.

Mal’s eminence in the profession in PNG and his voluntary contribution to legal professional education in that country were recognised by his appointment as a Commander of the Civil Division of the Most Excellent Order of the British Empire (CBE) in the Queen’s Birthday Honours List for Papua New Guinea of 11 June 2016 (London Gazette No. 61611). PNG has its own domestic orders of chivalry but also continues to use the Imperial Honours System, usually for appointments on the Monarch’s Birthday, and not liberally. Mal’s appointment as CBE was therefore a relatively rare and high honour in PNG.

Mal is conscious, and proud, of his Greek heritage. He combined this and his chosen profession in his membership of the Hellenic Australian Lawyers Association (National President 2017-2020 and Queensland Chapter Chair 2015-2018). In combination with his wife, Sylvia, Mal was the driving force in the delivery of a highly successful Hellenic Australian Lawyers conference on Rhodes in 2018, officially opened by the President of Greece in the presence of Australia’s Ambassador to Greece.

Mal Varitimos is by nature modest and self-effacing. However, as the reader may well think after reading this account, there is no reason other than innate character for that modesty. That said – and Mal’s character would make him the first to acknowledge it – it may be doubted whether he would ever have expected on his admission in 1988 that his career would have evolved in the direction it did. Mal did indeed take the tide of professional opportunity at the flood, thereby gaining the chance fully to display his innate ability.

Christopher (Chris) Newton

by James Bell KC

Circa 1984: Back (L-R): Bell KC, Chris Newton, Jackson KC; Front (L-R): Kirk KC, McGill SC; Gibson KC

When Chris Newton finished drinks and left our chambers on 27th June this year, I sat down to reflect on the 45 years that I had just completed sharing chambers with a very good man.

It was in April 1978 that I had joined Newton in chambers (with David Jackson, Tom Kirk, Graham Gibson and John McGill on 18th floor of what was then known as the MLC Building).

Newton was, from the very beginning, the reliable, grounded and thoughtful man who retired  in June this year after 48 years practicing at the Queensland Bar. These are not just words. The character of the man guaranteed his reliability, his integrity and his friendship over the years. It is something very special to have a friend at the Bar who is constantly a good person and predictable throughout the journey, one that inevitably involves the highs and lows of a life in practice as a barrister.

The barristers who were members of Carbolic chambers changed over the years, but they all valued their relationship with Chris or ‘Bomber’ as he was affectionately known to those close to him. It was easy to see when he led the fun and laughter of new members and old at chambers functions. He always did.

When we met, it was plainly apparent to me that he had the advantage of being from a strong family of country people. They had given him not just an education at TSS but the life lessons which arm young people with the skills to deal with the hard hits that too often arrive in life. I can vouch for him; he lived up to their expectations and those of all his friends.  

Chris was admitted at the end of 1974 and spent his first year in the Public Defender’s office before coming to the private bar. His early years involved him in criminal and family law, however, he soon developed a strong personal injuries practice with an interest in succession too. He was much involved in the education and practice of mediation and made an important contribution in his role with the Australian Lawyers Alliance and was appointed Chairman of the Settlement Week Committee.

Those that knew him in practice, considered Chris a valued, steadfast colleague and someone who epitomised the best traditions of the Bar.

Outside his life at the Bar, he shares a strong relationship with his wonderful wife Leonie. He is the father of three children and grandfather to four grandchildren.

He is certainly not finished yet, but he will be missed by many of us at the Bar.

Introduction

1. The shift towards an increasingly digital world has created a new and fertile environment in which scammers thrive at causing innocent victims to part with their money. The days of the Nigerian prince have passed; the swindlers are now using cutting edge technology (including AI) to convincingly pass themselves off as legitimate operators.
2. More and more, courts are having to grapple such schemes where cryptocurrency has been used. “Crypto” is an attractive medium into which allegedly ill-gotten gains can be funnelled. Readers will be familiar with the ins-and-outs of crypto from Crawford’s article in the last edition of Hearsay and will recall that tracing and identifying the owner of crypto is inherently very difficult.
3. The increasing sophistication of the frauds, and the enormous consumer losses they are causing, have seen a sharp rise in regulatory action. The reaction from the regulators and the courts has been appropriately stern. This response reflects the difficulty in investigating this kind of conduct and the potential for assets to be quickly rendered unrecoverable.
4. Acting for parties in proceedings involving these kinds of allegations present difficult strategic questions that often must be made with limited time, knowledge and access to resources. This note examines some of the more frequently encountered issues and considers how they might be approached.

First contact

5. The first contact will ordinarily come with the target being served with orders made ex parte. Section 1323 of the Corporations Act enables a court to make orders in addition to the classical Mareva procedural orders. Experience shows that generally ASIC will bring the application.
6. To obtain relief the applicant must establish that the orders are ‘necessary or desirable’. The threshold in s 1323(1)(a) is much easier to satisfy than the traditional test for an injunction: ASIC need not demonstrate a prima facie case nor establish a risk of dissipation of assets.[1]   
7. The courts have used s 1323 to its full extent when required.[2] ASIC has previously successfully sought broad orders in cases involving unregistered investment schemes trading in cryptocurrency. The orders can have immediate and profound effects on a respondent’s business, and include:
   • orders appointing receivers to not only the property of a corporation, but also individuals connected with a corporation or the impugned conduct.
   • orders restraining any dealing with property or incurring monetary liabilities, and requiring provision of credentials, passwords and cryptocurrency wallets.
   • disclosure orders.
   • travel restraint orders.
8. Such broad orders can be seen as necessary to secure the cryptocurrency and prevent access to it; cryptocurrencies are highly liquid and difficult to trace to a specific person.[3]
9. The effect of such broad orders well be to denude the person or entity for whom you are briefed of any assets and thus capacity to pay for legal advice and representation, both in respect of the proceeding in which the orders were made but also any allied investigative processes or criminal proceedings. Access to funding is even more important in cases involving crypto because of the (almost certain) need to have access to expert forensic information technology and accounting services.  
10. In addition, if receivers have been appointed to all property, then the client may no longer have access to important and relevant information stored or recorded on phones, computers and other property taken by the receivers.

Adjusting the landscape

11. The hearing of the first return or continuance of the orders is the best opportunity to facilitate access to funding and information for the client.
12. Generally, where all of a defendant’s property is restrained, they are entitled to a carve out in a freezing order permitting them to use their assets to pay for ordinary living expenses and the reasonable legal expenses of defending the claims made against them.[4] Orders that do not provide for that when made ex parte should be modified at the first opportunity.[5] Where only certain property has been restrained, a defendant must establish that they are unable to live or pay for reasonable legal expenses without access to the restrained property.
13. There have been instances where courts prescribe a sum for living expenses (e.g. $800 per week). It is important that this be struck at the right level at the first opportunity your client is heard on the matter; varying the order at a later point will not be given for the asking and if opposed, will require the moving party to establish a material change in circumstances.
14. The exception to the general position directs attention to whether the restrained assets are the client’s assets. If the claims are prima facie claims for proprietary relief or otherwise involve an allegation that the restrained assets are not “their assets” then the general position does not apply. In such cases the starting point is that a defendant is not entitled to access restrained assets to pay their living and legal expenses.
15. Courts are attentive to protecting trust property.[6] To circumvent that different starting point a defendant must demonstrate that the interests of justice weigh in their favour. This is a careful and anxious judgment[7] but will generally require the defendant to establish (at least) an arguable defence.  
16. We all know that these matters unfold quickly with little time for fulsome consideration. Constrained access to funding provides another form of limitation. The key issues to consider during this initial period are establishing with some precision the nature of the claims made and quantifying a justifiable amount for living expenses.
17. It goes without saying that negotiating with ASIC (and any receivers appointed) to agree a solution is desirable in terms of avoiding risk and expense but may obviously involve compromise. It is not only a professional obligation to keep those negotiations courteous, but it is also in both yours and your client’s best interests: in particular, providing timely and sensible estimates of legal fees to the receivers and ASIC will enhance the likelihood of avoiding a contest about whether the fees are reasonable.

Information

18. In addition to orders appointing receivers and otherwise restraining use of property, it is customary for orders to be made requiring defendants to provide specific information; in crypto cases the specific information is about “wallets”[8] or the keys to unlock them. Private keys are not easy to remember. They look like this:

E9873D79C6D87DC0FB6A5778633389F4453213303DA61F20BD67FC233AA33262

19. As identified above, these information provision orders are obtained simultaneously with either ASIC seizing property during search warrants or the appointment of receivers to all your client’s property. This means that your client may not have access to their phones, computers or other information. That makes compliance with any information provision orders difficult if not impossible.  
20. The only practical solution is to negotiate with ASIC (or the receivers as the case may be) for access to the devices so that the client can comply with the orders. Attempting to have those negotiations as soon as possible disarms the opponent from making any sensible claim that the client has failed to comply.
21. In truth, there is now no good reason why there should be any delay in ASIC or the receivers returning phones, laptops and other electronic devices promptly. Such devices are imaged quickly and easily and once imaged, there is no good reason why they should not be returned (assuming ASIC and the receivers have secured the relevant property).
22. Another reason to obtain that information is to properly prepare your client for the inevitable section 19[9] examination. The starting point of that process is to obtain a detailed statement (or statements) from your client, together with reviewing any available documentation. It is difficult to overstate the importance of proper preparation for ASIC examinations; to set the scene for the future conduct of any proceedings. But:
    • often there will be insufficient time to obtain a statement (or a detailed one); and
    • ASIC will not have completely developed its case and nor will it have been exposed in anything other than a summary form in the interlocutory material.
23. It is legitimate to request a delay to an examination so that the client can be properly prepared. But it cannot be expected that the delay will be of any great length. It may also be desirable to have early engagement with an expert to provide technical IT advice.

First in, best dressed?

24. Early on it may be identified that the person for whom you are briefed has significant exposure, or themselves fallen victim to a larger fraud. In that case, their best course of action might be cooperation.  
25. ASIC has an immunity policy which would be the starting point of any consideration. The next best step is to raise the potential for immunity with your client, and then informally with your opponent.
26. It should be noted that as a matter of policy, immunity will not extend to compensation actions but if the exposure is substantial, they may be the least of your client’s concerns.

Summary

27. Navigating the storm of regulatory intervention presents difficult challenges. That is especially so where crypto is involved because of the inclination to remove the target’s access to assets. The essential matters to consider and resolve are:
    • identifying with some precision your client’s requirements for living expenses and quantifying them in a way that will satisfy the regulator and the court.  
    • ensuring your client can fund legal representation for the proceeding and the investigation. This is best done through negotiation.
    • proactive management of compliance with obligations to provide information.
    • engaging with experts to ensure that the client properly complies with their obligations to provide information (either by reason of a court order or through an examination).
    • preparing the client, as best as possible, for any section 19 examinations.

[1] See Re Courtenay House Capital Trading Group Pty Ltd (in liq) [2018] NSWSC 1918 at [11].

[2] Examples include ASIC v NGS Crypto Pty Ltd [2024] FCA 373; ASIC v A One Multi Services Pty Ltd [2021] FCA 1297.

[3] Future regulation may make this easier. 

[4] Goumas v McIntosh [2002] NSWSC 713 at [27].

[5] Frigo v Culhaci [1998] NSWCA 88 at 9.  

[6] Birketu Pty Ltd v Westpac Banking Corporation (No 2) [2018] NSWSC 494 at [60] [64], referred to in Human Group (below).

[7] National Australia Bank Ltd v Human Group Pty Ltd (No 2) [2020] NSWSC 1900 at [109]-[111], [154] referred to in Westpac Banking Corporation v Forum Finance Pty Ltd (in liq) [2022] FCA 1206.

[8] Services or devices that record crypto holdings.

[9] Of the Australian Securities and Investments Commission Act 2001 (Cth).

The Opening of the Law Year ceremony – Cairns, 15 July 2024

Hope lives.

The sad, unrelenting work of a criminal defence lawyer takes its toll. It dulls the senses, dampens emotion and I have come to believe, tarnishes the soul. Too long in the profession makes hope hard to find, or at least hard to see.

In past years I attended traditional Opening of the Law Year ceremonies in search of a little hope. These church services provide an opportunity for legal practitioners and judicial officers to solemnly reflect on their professional obligations and their shared mission of delivering justice according to law. They offer a time and place to pray for guidance. For me, the ceremonies failed to resonate. Though there was one service in Rockhampton, memorable for the crow that found its way into the Church’s rafters and offered irreverent commentary on the proceedings below.

This year I attended an Opening of the Law Year ceremony that did resonate. This ceremony in Cairns was unlike any other I have attended. It was a powerful and moving secular ceremony. The ceremony owes its existence to the leadership of His Honour Justice Henry, in cooperation with other judicial officers, lawyers and First Nations Peoples. Its power came not from an elevated authority figure speaking down, but from people coming together as equals; its capacity to move came not merely from the words spoken, but from the symbolic reconciliation played out by First Nations People on one side, and judicial officers and lawyers on the other. The descendants of foes, looking each other in the eyes and exchanging possessions.

The ceremony, in the courtyard of the Cairns Court Complex, is the result of cooperation between the Gimuy Walubara Yidinji people, and members of the judiciary and legal profession.

The Invitation to the ceremony states:

In the middle ages, when the only law in operation at the land now occupied by the Cairns Courthouse was that of First Nations People, Judges in England would gather at Westminster Abbey to pray for guidance for the year ahead at a service marking the opening of the law year. In the modern age, here on the traditional land of the Gimuy Walubara Yidinji, we conduct an opening of the law year ceremony at which the judiciary and lawyers join with the Gimuy Walubara Yidinji in a ceremony of annual –

• acknowledgement of the Gimuy Walubara Yidinji people and their law, the Gimuy Walabaru Yininji being the Traditional Owners of the land upon which justice is administered in Cairns; and
• reflect on the important professional obligations the judiciary and practising lawyers owe to the entire community in administering the rule of law in the year ahead.

The elements of the ceremony are:

• entry of ceremonial maces;
• welcome to Country;
• the call out;
• the coming together of the law;
• addresses by Dr Henrietta Marrie AM and Her Honour Judge Fantin, District Court of Queensland;
• representative reciting of the practitioners’ oath of admission;
• representative reciting of the judicial officers’ oath of office;
• representative elders of Gimuy Walabara Yidinji declare the law year open.

For me, the smoking ceremony in particular was transformative. Three young Gimuy Walabara Yidinji men crouched together and made fire and then smoke. The men offered the smoke, aromatic with lemon myrtle, and in it, the audience bathed. So we were welcomed and cleansed. The call out, loudly spoken in language, summoned and prepared the spirits for the ceremony to come.

Next, Dr Henrietta Marrie AM spoke movingly of her connection to her traditional home, the place upon which Cairns now sits. She spoke of the authority, power and place of her ancestors and the coming of the colonists. The insight and story she offered is a testament to her generosity and that of the Gimuy Walabara Yidinji people.

Her Honour Judge Fantin (DCJ) offered some thoughts of particular relevance to criminal law practitioners in the audience. A link to Her Honour’s speech appears on her judicial profile on the Queensland Courts website.

Her Honour’s speech contemplated the meaning and importance of the judges’ oath of office, and the legal practitioners’ oath of admission. Her Honour referenced a recent lecture by Baroness Carr Of Walton-On-The-Hill, Lady Chief Justice of England and Wales. The lecture was entitled ‘To know the Law and Observe It Well – Magna Carta and Criminal Justice’. Her Honour Judge Fantin observed that Her Honour the Chief Justice made three points. Firstly, judges and legal practitioners must know the law and how to observe it well. Secondly, they must know its spirit. Thirdly, they must observe the law with moral courage.

Describing the second point, Her Honour Judge Fantin said:

Second, to know the law requires us to know its spirit. And the spirit of our law has always been one that draws on a diversity of experience. The common law is one that is made of many threads, and we have drawn them historically from many sources.

The spirit of the law must be one based on a recognition of and learning from diverse experiences and a proper understanding of our nation’s history and the consequences of colonialism on our First Peoples.

What does this mean for us?

I think that being true to our oaths requires us to reckon with the history of our nation. …

To be true to our oaths we must educate ourselves about the richness and complexity of our First Peoples’ history, culture and laws.

We must educate ourselves about our colonial settler history and its consequences for our First Peoples.

About the frontier massacres which occurred at the hands of the Native Police, a semi-military force which operated without the intervention of judge, jury or the law and whose role it was to ‘dispense’ (which became a euphemism for kill) Aboriginal people.

In Far North Queensland this history is painfully close to home, and relatively recent.

We must educate ourselves about what followed that: the system of reserves in Queensland that subjected Aboriginal people to total, arbitrary control for the next seventy years, and lasted into the 1970s.

We have become a carceral culture. Like every other jurisdiction across Australia, Queensland continues to disproportionately imprison First Nations adults and children.

The overrepresentation of First Nations people in Australia and Queensland prisons is evidence of a chronic failing in the administration of justice.

We know from the research that how likely someone is to end up in jail depends on a number of factors, underpinned by structural causes: being in foster care, poor education, early contact with police, unsupported mental health or cognitive disability, alcohol and drug problems, unstable housing and homelessness, coming from a poor and disadvantaged neighbourhood – and being Indigenous.

We know from the research that addressing these factors, and the underlaying structural ‘caused of these causes’ – such as early abuse, racism, discrimination and poverty – with early intervention and support materially reduces the risk of someone offending and ending up in jail.

Following the failed referendum on constitutional recognition and a Voice to Parliament we must strive to meaningfully recognise First Peoples and their rights.

We must continue to provide First Peoples with meaningful roles and decision-making power in matters that uniquely affect them.

A representative reciting of the practitioners’ oath of admission and a representative reciting of the judicial officers’ oath of office followed. Next the Law Year was declared open by representative elders of the Gimuy Walubara Yidinji.

Afterwards, those gathered to watch and learn mixed with those involved in the proceedings. There were handshakes, quick catch ups and thanks. Then, those gathered there gradually dispersed: to courtrooms and chambers, to offices, businesses and homes.

Soon, all that remained in the courtyard was the smoky scent of lemon myrtle and a little hope. That in future things will be different, that over time things will be better.

*Franklin Richards is a Legal Aid Queensland Assistant Public Defender based in Townsville. He was admitted to the bar in 1997 and has worked in private practice, with the Aboriginal and Torres Strait Islander Legal Service and the Qld ODPP.

Speech delivered by the Honourable Chief Justice Helen Bowskill at the Council of Australasian Tribunals National Conference, 6 June 2024.

Without Fear, Favour or Affection