Passing of the Honourable Justice Peter Dutney
Yesterday (7 September 2009), the Chief Justice, the Hon Paul de Jersey AC, and the Attorney-General, the Hon Cameron Dick, paid tribute to the Honourable Justice Peter Dutney who died suddenly in South Australia last Friday evening. His Honour was 54 years old.
Justice Dutney was appointed to the Supreme Court on 20 March 2000, after more than 20 years working as a barrister and solicitor in Queensland.
His legal career started in 1975, as an articled clerk at Morris Fletcher and Cross. He went on to complete his Bachelor of Laws degree at the University of Queensland in 1978, was admitted to the Bar in 1979, and in 1990 was appointed Queen’s Counsel.
Justice Dutney served as Central Court Judge in Rockhampton for eight years from 19 May 2000 to 14 January 2008.
In July, His Honour was named as the inaugural President of the Queensland Civil and Administrative Tribunal, which commences operation on 1 December 2009.
The Chief Justice said, “Justice Dutney’s colleagues and friends in the judiciary and legal community had been shocked by his sudden death”.
“The Supreme Court mourns the tragic loss of a fine judge, of brilliant judicial accomplishment and indefatigable in the discharge of his judicial duties”.
The Attorney-General said, “Justice Dutney’s sudden passing would be a great loss to both the legal profession and the State”.
“Justice Dutney had a deep understanding of the Queensland Justice System, and was held in high esteem across the profession as both a judicial officer and advocate”.
“He was passionate about alternative dispute resolution and was well qualified to be the inaugural President of the new Queensland Civil and Administrative Tribunal”.
“Justice Dutney demonstrated his commitment to the administration of justice in Queensland during his nine years on the bench, first as Central Court Judge in Rockhampton, and as an eminent commercial judge in Brisbane.
“On behalf of the State Government, I would like to offer my condolences to Justice Dutney’s family at this difficult time.”
Members will be advised by the Association of details of the funeral arrangements as soon as they are known.
Courtroom Portrayal of Women Who Kill Too Narrow
Women charged with homicide are more likely to be found innocent or be sentenced leniently if they showed remorse and concern for the person immediately after the crime, a QUT criminology researcher has found.
Debra Robertson-Stainsby a PhD researcher from QUT’s School of Justice analysed the transcripts and judges’ comments in 19 Queensland cases in which women were on trial for homicide – ie they were charged with either murder or manslaughter.
“How a woman reacts immediately after the event appears to have an effect on the verdict,” Ms Robertson-Stainsby said.
“If her defence can point out that she made admissions to police and showed concern for the victim, this increases the defence’s ability to highlight her ‘domesticity’ and her caring nature.”
Ms Robertson-Stainsby said that highlighting a woman’s domestic, emotional nature was one of two stock stories told in court about accused women – the defence portrays the woman as a victim and the prosecution portrays her as an angry, vengeful, self-serving person.
“The two stories compete in court. The woman who can be painted as a homely, nurturing, stereotypical woman is the one who is less likely to be convicted, or receive a shorter sentence,” she said.
“When there are equal stories of victimisation and volition told to describe the accused woman and her actions, the fall back story for the defence tends to pathologise the woman’s actions and argue that she was depressed or had some form of mental illness.
“Most criminology research has focused on men’s patterns of offending and there is a ready acceptance of men’s rationality but the dominant theories on women’s offending suggest that they are victims and offend as a reaction to being victimised.
“My research examined the ‘stories’ used to explain women’s complex offending and also looked at the anger and intent that can occur with or without victimisation.”
She said the tendency to portray women as victims and therefore less culpable came about as a reaction to the era when domestic abuse was not recognised as a potential mitigating factor in women’s violence.
“But it is time to move on from that and realise we can’t use that dichotomy – it’s much more complicated than that and we have to gain a more realistic and informed understanding of what is happening in the courtroom for women who kill.
“Mainstream criminology needs to widen its thinking on women’s offending as it is these theories which help determine the policy that guides law making.”
In the Courts …
The following exchange between the Bench and a member of the Sydney Bar appearing for the Commonwealth arose in the context of the relevance, and application of, s.435A of the Corporations Act 2001 to the grant of an extension of time to convene a second creditors’ meeting.
HIS HONOUR: But there’s no prospect of that happening, is there? In the sense that everybody seems to accept that there’s no way in the world in which the business can be handed back to the directors of the company.
SENIOR COUNSEL: Correct. But everyone also accepts that there is a real possibility that the businesses, albeit under the control of other people — and, at this point in time, unidentified other people — can continue to exist as businesses, doing what they do, and we perceive that to be good for the community. If that’s correct â â â
HIS HONOUR: But you don’t make any submission as to how I resolve the matter.
SENIOR COUNSEL: I don’t. I know that’s unhelpful, but I â â â
HIS HONOUR: It is, totally. Yes.
SENIOR COUNSEL: I have clear — well, what I do submit is, in this case, when your Honour is weighing up the various discretionary matters that have to be taken into account, that particular matter ought be given weight, either in the way I have â â â
HIS HONOUR: But that’s what the section says though.
SENIOR COUNSEL: I’m sorry, your Honour?
HIS HONOUR: All you’re saying is that I should read the section. Yes.
SENIOR COUNSEL: Your Honour should read the section.
HIS HONOUR: And I do propose to.
TC Beirne School of Law – Current Legal Issues Seminar Series 2009
Current Legal Issues is a new series of seminars which commenced in 2009. The series brings together leading scholars, practitioners and members of the Judiciary in Queensland and from abroad, with a view to:
⢠providing a forum for the critical analysis and discussion of current legal issues;
⢠bringing to bear upon those issues the different perspectives offered by leading members of the Academy, profession and Judiciary;
⢠forging stronger links between academic and practising lawyers in Queensland.
Each seminar comprises a chair, speaker, and commentator. The chair will introduce the speaker and commentator. A paper will then be presented by a leading practising or academic lawyer, and will be subject to a brief, expert commentary. Subsequent debate and contributions from the floor will be facilitated by the chair. Seminar papers will be available in advance at www.law.uq.edu.au/current-legal-issues-series, a website hosted by the University of Queensland. Details of forthcoming seminars are below.
17 September 2009: “Judicial attitudes to judicial review: A comparative examination of justifications offered for restricting the scope of judicial review in Australia, Canada and England”
Speaker: Dr Anthony Cassimatis, TC Beirne School of Law
Commentator: The Hon Justice Kiefel, High Court of Australia
Chair: Walter Sofronoff QC, Solicitor General for Queensland
The Dangers of Smoking
A young barrister recently accepted into new chambers was taken to lunch by his chamber colleagues at the Queensland Club one recent Friday. After having placed his order he excused himself politely and ducked downstairs and outside to have a cigarette.
When returning to the Club through the rear entrance he observed an elderly gentleman in a wheelchair with whom he attempted to make passing but non-committal eye contact. The elder gentleman obviously wished to speak but unfortunately his powers of speech appeared to be compromised by a recent stroke. Noting that, the young barrister stopped, crouched down beside the wheelchair and attempted to understand what was being said – expecting it to be some brief form of greeting.
After a short amount of time and an unfortunate and slightly, for the old gentleman, embarrassing exchange it was readily apparent that the older fellow was requesting some assistance to have the footrests on his wheelchair put down.
The young barrister obliged and then further intimations were interpreted as assistance to place the feet on the footrests. The first leg, perhaps affected by the stroke that has so greatly impeded this lovely gentleman’s powers of speech took a bit of wrangling but was soon accommodated on the foot rest. The other leg was slightly more problematic and less responsive until, you guessed it, it came off in the hands of the assistant. It was a prosthetic limb extending from the knee. Our erstwhile Florence Nightingale found himself in a position that was quite embarrassing for the old gentleman but there was still some work to be done. He notified one of the members of the staff who tracked down a friend of the old gentleman and soon enough things were righted.
The Forum
The following post was made in the Forum by Darren Honchin in response to the article in the August edition of Hearsay by the Honourable Geoffrey Davies AO on the Expert Evidence Regime:
“I appear regularly in the Administrative Appeals Tribunal, Veterans’ Division on issues of entitlement to pensions under the Veterans Entitlements Act 1986 (Cth). The majority of my clients have mental disorders. A single expert rule would effectively deny each of them a pension because the Commission’s expert always seem to find they either have no disorder or that (in the case of post traumatic stress disorder) have not suffered a stressor of the nature and type required to meet DSM IV (Diagnostic and Statistical Manual of Mental Disorders IV edn (now Text Revised) – usually the very reason the decision is being appealed.
Under DSM IV(TR) PTSD requires the person to suffer an event where he or she experiences the threat of death or serious injury to him/herself (or another) and experience intense fear, helplessness or horror, it is followed by a series of symptoms. Whilst the symptom may be readily identifiable, minds may difer on whether the stressor is sufficient to meet the DSM IV test. It is always necessary to seek to rebutt the Repatriation Comission’s expert with cross examination and your own witness.
The single expert witness rule seems to me, akin to saying you can only have the advice of one lawyer (we are afterall experts too) and the parties must agree to it (rather than have their own).
We as a profession would not countenance that and would argue till we dropped that a person is entitled to the legal representation of their choice – why should we accept that there is one expert view on a matter when there in fact may not be. Does that mean that the early experts who said smoking did not cause cancer would win over today? Would we accept them as the single expert? What about those who say overhead electrical transmission lines do not cause health problems, or those experts who say mobile phone use does not cause tumors, and don’t forget there is no green house problem or ozone problem either. Today they may hold sway, but what about tomorrow. I can imagine how Galileo Galilei and Nicolaus Copernicus felt as they espoused their theory of heliocentrism.
The single expert may have a place in adversarial litigation though I can not see it, but for me a litigant should be entitled to bring to Court the evidence they say supports the relief they seek. To limit their right to certain evidence is but the thin edge of the wedge. Perhaps, we might limit witnesses who saw the car crash to one independent witness on the side of the road, or perhaps in criminal cases we limit the evidence to police and prosecution witnesses, after all they are not likely to be in the camp of the defendant. What’s done is done, but it does not mean it cannot be undone.”
It is always good to see the comments posted in the Forum – it is the place for constructive debate and Hearsay hopes that, one day, more members will be prepared to participate with this publication in that way.
To post a comment in the Forum, click on tool bar at the top of this page.
QUT Learning Potential Fund – Riverfire Fundraiser – 12 September 2009
The QUT Learning Potential Fund provides ï¬nancial support through scholarships and bursaries to disadvantaged students. Members are invited celebrate Riverfire at a fundraising dinner to be held at the Owen J Wordsworth Room, QUT Gardens Point Campus on 12 September 2009. Media personality Tracey Spicer will interview students who have overcome ï¬nancial and personal hardship to gain an education and how the Learning Potential Fund has helped them.
For more information contact Melissa Lee, phone 07 3138 1838 or email melissa.lee@qut.edu.au
