June 2019

“I’m expressing with my full capabilities, and now I’m living in correctional facilities”

Express Yourself, NWA, 1988

Happy children don’t do crime. They aren’t out late, rolling people for their Nikes or tagging the wall at the local train station. That’s because they’ve been busy with sport, music, homework, dating or social media.

Those happy kids reckon they’re blessed and they’re right — but for the wrong reasons. They reckon they’re privileged because their mums and dads buy them stuff. In fact, they’re lucky because they have parents who are constantly nurturing their strengths, blunting their weaknesses, and giving them a stable platform for learning. They have families who walk with them.

The young people who reach the youth justice system hardly ever come from those backgrounds. We see over 500 clients each year at the Youth Advocacy Centre and we calculate that about 70% have been affected by one or more of a cluster of factors: mental illness, homelessness, domestic violence, learning disorders or substance abuse ^[1] . They are not being offered an easy place to do homework or a yard to play sport. They have had disadvantage piled upon disadvantage so that, for instance, they dropped out of dysfunctional homes and challenging school experiences, and now they don’t have the support or the literacy to see a doctor, buy clothes or look for a job. They lack social networks but, more than that, they may lack the machinery to make their way in relationships with family, let alone with strangers.

All of this, of course, leads to the gloriously obvious conclusion that, if we are relying on our criminal justice system to address youth crime, that’s crazy. The underlying premise of that system is that we create penalties so that the cost of committing anti-social behaviour is greater than holding back. But the kids who hit the youth justice system were, for the most part, badly damaged way before they came to make choices, and the drivers are usually still in place. The knot of unhappiness, confusion and powerlessness that presents as offending is not going to be unravelled by the binary levers of a penal system. If all we do as grown-ups is to tell these children that some things are forbidden — and we never give them the equipment to find a healthy path – that is a lame exercise in merely delaying harm for tiny periods. Worse, we have squandered the opportunity to spare ourselves all the loss that damaged youth can bring later in life to themselves and to others.

These conclusions are not new. There was an article that came out of Queensland, published by the Australian Institute of Criminology, in September 2003 ^[2] which made similar findings (albeit in more scholarly terms!) and concluded, “by the time young people come to the attention of the juvenile justice system, it is difficult to modify a trajectory whose ‘direction’ has already been substantially determined by a very wide range of precursor factors that can no longer be effectively addressed by any single government agency.”

In my view, it comes to this: the best improvement you can make to the youth justice system is to make sure we rarely use it. That stance may jar with the opinions of talk-back radio callers but I can tell you it is a very widely held view amongst the people who actually have expertise in the area — whether they be judges, police or youth advocates.

Happily, the current government has developed policies which are entirely consistent with the views set out above. The Minister for Child Safety, Women and Youth, Di Farmer, engaged the former Commissioner of Police, Bob Atkinson AO, to head a team that would assess the state of youth justice and the report was published in June 2018. There were four underlying “pillars” in the recommendations, namely:

• Early intervention (that starts with ensuring that children are born healthy)
• Diverting kids from courts
• Diverting kids from custody
• Assessing policy by whether or not it reduces re-offending.

Beneath that high-level response, there were specific recommendations. They included focusing on towns or postcodes with high level offending and looking at “place-based” approaches, looking to schools as a means of identifying children in need of support, establishing alternative facilities to address offending behaviour where children have problems related to disability, substance abuse or mental illness, working across agencies to share information, supporting transition back to normal life after custody, and setting high targets for reducing the number of children entering detention for the first time. There are many more recommendations, but one can see the theme: if the need occurs in isolated pockets, identify it early and support families and children, rather than keeping with a reactive approach.

And the Government had implemented policies that go some way down this path. It has introduced a Transition 2 Success program which helps young people back to school or into the workforce, it has developed community youth responses for crime hotspots in Brisbane, Cairns and Ipswich, and it is rolling out youth and family wellbeing services to assist indigenous communities in developing their own solutions, amongst other policies. It has a Youth Justice Strategy called “Working Together, Changing the Story” which takes this State up to 2023 and is designed to implement Bob Atkinson’s recommendations by working on need long before it manifests as crime. That Strategy fits neatly with research I understand is coming out of Treasury to the effect that the best indicator of the quality of a child’s life is the first thousand days following birth.

The Government is dedicating considerable resources to a coherent plan and to a range of new or improved initiatives and it is to be strongly commended. But, for a number of reasons, I am unable to give it a gold star just yet. First, there are approximately 242 beds for children in youth detention in Queensland, and they are divided between the centres in Brisbane and Cleveland (near Townsville). That seems more than enough Queensland children being detained, especially since 80% of them are on remand and have not been found guilty. One would like to see a system where we are much more discerning about who is locked up, and how quickly they are processed, rather than expanding detention facilities. But the Government has now committed to building new facilities with 48 additional beds at a cost of $177 Million. And that, of course, is just the start-up cost; it doesn’t reflect the running expenses. It seems to sit uneasily with the initial vision, and many in the community sector would have liked to have been taken into the Government’s confidence — consulted in a substantive way – so that we can work together towards considering whether this measure (and the finer points of many others) were the best response. Suffice to say that in my experience the Department’s version of consultation could easily be improved.

Second, the experience at Youth Advocacy Centre (and with many other agencies) is that we are finding that, whilst youth offending is actually reducing, the numbers of children in custody with drug problems is increasing drastically. Sydney and Melbourne have sophisticated rehabilitation programmes but in Queensland, at best and if at all, we send our children to Coffs Harbour. We desperately need a rehabilitation centre in Queensland so that drug problems can be treated by professionals, and that idea needs to gain traction.

Third, and most immediately, it is desperately hard for people working in the youth justice system to give the Government credit when it presides over the terrible slur which is the watch house status quo in Queensland. It goes like this. The Department says that, for various reasons, the detention centres are full ^[3] . There are a host of potential remedies like building temporary accommodation at the centres, increasing staff ratios or processing the kids on remand quicker, but the Department maintains that no solutions work. Instead, it is placing the “overflow” children — around 60 to 90 around the State on any given night — in police watch-houses.

I have walked through the Brisbane watch house and seen the children, and it is a harrowing experience. The place is a cramped high security stopgap for dangerous prisoners, and it was certainly not built for children. There is no natural light. There is no exercise yard (just a tiled courtyard, 8 m x 8 m, where well-behaved children are permitted for 15 minutes per day). There is no privacy because there are 160 cameras through that place. Police officers will tell you that the nights on the weekends are the worst. It’s a dark, scary place with adult prisoners wailing and bleeding or yelling obscenities, and I can only imagine what they are whispering to the children in nearby cells. The watch house is nothing more than a cluster of heavily secured rooms, with glass walls, toilets and mattresses all on display. And when the fear is gone, it is replaced by a terrible boredom. The children sit in their cells for long, extended periods, sometimes remaining in the watch house for up to 5 weeks (when adults are invariably moved out within three days). The police call the children the “meerkats” and it’s easy to see why. When you walk past their cells, they rush up against the glass, anxious for some stimulation. They fight amongst themselves and damage property because they are so starved for activity or sense of purpose.

It is the Department that has made the decision to put these children in the watch-house but it is the Police that are left to make it happen. And the Police are truly distressed by the task. The watch house managers say that after three days you can see the mental health of the children visibly decline. And they say that it so awful to watch that they struggle to find police officers (particularly those who are parents) who are prepared to keep working there.

The Department has attempted to improve the conditions at the watch houses but, frankly, they are polishing something that will never come up shiny. So the children stay. Decompensating. Bored. Powerless. Isolated from their parents. Surrounded by adult prisoners. We are left with a situation where there is a major problem with the youth justice system in this State. And the burden of that problem seems to be falling on young children who — and keep this in mind — are all on remand and haven’t actually been convicted of an offence.

The Department has been asked to provide a plan or at least a deadline for removing the children, but neither has been forthcoming. I suspect that it is resigned to allowing the problem to continue until at least late 2020 when the new facilities may be built. But that’s outrageous. Even if there are only 50 kids in the watch house each week until that time, that’s roughly 3,000 Queensland children who will have been harmed, perhaps irreparably, and pressed down a path of miserable, criminal behaviour when they could have been diverted to much happier pursuits.

That is a very long way from a gold star performance.

Damian Atkinson OAM QC

Footnotes

[1] The State has disclosed broadly consistent statistics in Working Together, Changing the Story so that it found 58% of children in the youth justice system have a mental health or behavioural disorder, diagnosed or suspected.

[2] Youth Justice, Criminal Trajectories, Mark Lynch, Julianne Buckman and Leigh Krenske

[3] Oddly, whereas the build capacity of the Centres is 242, the Government and/or the Together Union consider that the safe capacity is only 206, so that alone accounts for 36 children in the watch houses.

The following is a selection of links to articles, papers and other items which may be of interest to readers.

Ceremonies

The President, Rebecca Treston QC, Welcome Ceremony for His Honour Judge Kenneth Barlow QC of the District Court of Queensland , delivered on behalf of the Bar Association on 26 July 2019.

The President, Rebecca Treston QC, Swearing-in Ceremony for His Honour Judge Terence Gardiner as Chief Magistrate of the Magistrates Court of Queensland , delivered on behalf of the Bar Association on 18 July 2019.

President’s Representative, Jim Murdoch QC, Swearing-in Ceremony for Commissioner John Dwyer, Commissioner Catherine Hartigan, Commissioner Jacqueline Power and Commissioner Roslyn McLennan , delivered on behalf of the Bar Association on 9 July 2019.

The President, Rebecca Treston QC, Swearing-in Ceremony for Magistrate Trinity McGarvie , delivered on behalf of the Bar Association on 5 July 2019.

The President, Rebecca Treston QC, Swearing-in Ceremony for Her Honour Magistrate Bronwyn Hartigan, His Honour Magistrate Kurt Fowler and His Honour Magistrate Peter Saggars , delivered on behalf of the Bar Association on 26 June 2019.

President’s Representative, Damien O’Brien QC, Valedictory Ceremony for Land Court Member Paul Smith , delivered on behalf of the Bar Association on 17 May 2019.

The President, Rebecca Treston QC, Valedictory Ceremony for the Deputy President Deirdre Swan of the Queensland Industrial Relations Commission delivered on behalf of the Bar Association on 10 May 2019.

The President, Rebecca Treston QC, farewell to the Honourable Justice Peter Murphy delivered on behalf of the Bar Association on 8 March 2019.

The President, Rebecca Treston QC, Welcome Ceremony for His Honour Judge John Allen QC and Her Honour Judge Vicki Loury QC delivered on behalf of the Bar Association on 8 February 2019.

The President, Rebecca Treston QC, Welcome Ceremony for Honourable Justice Wilson and the Honourable Justice Bradley delivered on behalf of the Bar Association on 8 February 2019.

The President, Rebecca Treston QC, Exchange of Christmas Greetings delivered on behalf of the Bar Association on 12 December 2018.

Judicial Speeches and Presentations

The Honourable Chief Justice Susan Kiefel AC, Convergence — the Courts of Singapore and Australia , joint keynote address with the Honourable Chief Justice Sundaresh Menon, Chief Justice of Singapore, ABA “Convergence 2019” Conference, Andaz Hotel, Singapore, 11 July 2019.

The Honourable Justice Peter Applegarth, Coverage and Criticism of Courts , Judicial Conference of Australia Colloquium, Darwin, 8 June 2019.

The Honourable Justice James Henry, his Honour Judge Dean Morzone QC, and his Honour Judge Gregory Lynham, Appellate Advocacy in Crime , 2019 NQLA Conference Townville, 24 May 2019.

His Honour Judge Bernard Porter QC, Forgiveness of Debt by Will: A Bone of Contention , STEP Australia National Conference, Brisbane, 17 May 2019.

His Honour Judge Paul Smith, Presentation on Sentencing , Magistrates Court Conference, Brisbane, 16 May 2019.

The Honourable Justice Virginia Bell AC, Cultural Change – The Shift from Party Autonomy to Court-Managed Litigation , Asia-Pacific Judicial Colloquium 2019, 28 May 2019.

The Honourable Chief Justice Allsop AO, The Foundation of Administrative Law , 12^th Annual Whitmore Lecture, 4 April 2019.

The Honourable Justice Anthe Philippides, Repositioning the Arts in our Lives , keynote speech delivered at the launch of The Legal Forecast, Brisbane, 26 March 2019.

The Honourable Chief Justice Allsop AO, Technology and the Future of the Courts , TC Beirne School of Law, University of Queensland, Brisbane, 26 March 2019.

The Honourable Justice James Douglas, Sir Harry Gibbs and Papua New Guinea , Hellenic Australian Lawyers Association, Brisbane, 15 March 2019.

The Honourable Chief Justice Susan Kiefel AC, Aspects of the Relationship between the Law, Economic Development and Social Change and the Importance of Stability , 2019 Queensland Bar Association Conference, Brisbane, 2 March 2019

The Honourable Justice Anthe Philippides, speech delivered at the launch of the Asian Australian Lawyer’s Association Mentoring Program, Brisbane, 21 February 2019.

The Honourable Justice Sarah Derrington, Law Reform — Future Directions , Supreme Court and Federal Courts Judges’ Conference 2019, 21 January 2019.

2019 Supreme Court of Queensland Oration

Her Excellency Margaret Beazley AO QC, 100 years after Federation. Is it different? , Brisbane, 13 May 2019.

The following summary notes of recent decisions of the Supreme Court of Queensland provide a brief overview of each case. For more detailed information, please consult the Reasons for Judgment which may be downloaded by clicking on the case name.

• • R v Freeman [2019] QCA 150
  • Radiology Partners Pty Ltd v Commissioner of State Revenue [2019] QSC 192

R v Freeman [2019] QCA 150

The applicant pleaded guilty to counts 1 and 2 on a three-count indictment on the eve of his trial. At issue on appeal was whether insufficient weight had been attached to his plea, which he contended was entered at the first reasonable opportunity. The applicant was sentenced to four years and six months’ imprisonment on count 1 and a concurrent term of six months’ imprisonment on count 2, for possession of a marketable quantity of a border controlled drug and failing to comply with an order to assist access. The third count, importing a marketable quantity of a border controlled drug, had been discontinued by the prosecution when the applicant offered his plea. The court found that in pleading guilty the appellant had “accepted the inevitable” and in all the circumstances he had not entered a plea at the earliest possible opportunity.

Fraser JA and Applegarth and Bradley JJ
2 August 2019

In examining the timing of the plea, the court undertook a detailed consideration of the case law in this area. It noted that the indictment charging the relevant offences was presented on 5 October 2016, [43], and the applicant entered his plea on 17 October 2018. [2]. In the interim, it was plainly the case that the applicant “had many opportunities to indicate his preparedness to plead, or to actually plead, to counts 1 and 2”. [43]. Instead, the applicant determined to plead to those counts only after the Crown accepted his offer to do so on the grounds that count 3 would be dropped and certain matters omitted from the statement of facts. [44].

In that regard, the court distinguished the matter from Cameron v The Queen (2002) 209 CLR 339, 345—346 [20]—[25], observing that it was not the case that the initial reasonable opportunity to enter a plea had only presented itself after the charges were correctly formulated. [45]. Applegarth J (Fraser JA and Bradley J concurring) also distinguished the matter from one in which a late plea is entered to remaining charges after the Crown concedes that it is unable to prove other, more serious counts and withdraws them due to lack of evidence: see for example Atholwood v The Queen (1999) 109 A Crim R 465. [46]. The court stressed that due to these nuances, the issue of whether an offender pleaded, or offered to plead, guilty at the first reasonable opportunity is more complex than simply examining the charges: see Cameron v The Queen (2002) 209 CLR 339, 345 [20]; Maybus v The Queen [2017] VSCA 125, [46].

In that regard, the court isolated the following relevant circumstances which might have a bearing upon the issue of whether a plea was entered at the first reasonable opportunity:

• Where there is a strong incentive for an offender who acknowledges his guilt on certain counts to continue in a not guilty plea to all counts, mindful of “the forensic prejudice that the offender would have suffered were he to have pleaded guilty to counts persisted in by the prosecution while others (that were subsequently withdrawn) remained pending against him”: see Atholwood v The Queen (1999) 109 A Crim R 465, 468 per Ipp J, cited in Cameron v The Queen at 345 [21]. In that scenario, the court noted “it should not be assumed, mechanically”, that the offender has delayed pleading guilty due to an absence of remorse, or that he has not pleaded guilty at the earliest possible opportunity.
• Where the offender sought to negotiate a plea: see Rinaldi v The State of Western Australia [2017] WASCA 48, [42], [51]. In that event, a delay in pleading guilty might be the result of the time expended on attempting to have other charges withdrawn.

In the court’s view, “[i]n this case, an offer to plead guilty to counts 1 and 2 would have been to accept the inevitable” [54], and the applicant had not demonstrated why his pleas were not reasonably available to him at an earlier junction than the eve of his “much-delayed trial”. [56]. In the court’s view, it appeared, based upon the available evidence and chronology of events, that the applicant had resolved to contest all counts until required to go to trial, and had only considered a resolution of the three counts he was facing on the eve of his imminent trial. That course of action afforded him the opportunity of remaining in the community for more than three years after he was charged and more than two years after an indictment was presented. Whilst the court acknowledged that he ought not to be penalised for taking that course, in its view, it equally disentitled him from obtaining the benefit of an early or timely plea. Accordingly, the court rejected the submission that his guilty pleas were made at the first reasonable opportunity. [57].

Radiology Partners Pty Ltd v Commissioner of State Revenue [2019] QSC 192

In this case, Wilson J was asked to adjudicate on the proper construction of s 30 of the Duties Act 2001 as it applied to the restructuring of the unitholders of the appellant’s unit trust. Essentially, the question was whether the fifteen dutiable transactions undertaken should be aggregated under s 30. In adjudicating on this point, her Honour engaged with an interesting and important discussion first on the nature of statutory appeals under the Tax Administration Act 2001 to the Supreme Court, and secondly on the proper construction of s 30 of the Duties Act 2001.

Wilson J
9 August 2019

The Trust, of which the (statutory) appellant is trustee, holds dutiable property valued at over $2 million. [4]. It is a unit trust. Prior to 15 May 2015, the Trust had six unit holders, each of whom was either a company or a natural person which held 1,000 units in the Trust as trustee for six family trusts. [4]. On 15 May 2015, the appellant and the six then-unitholders attended a meeting, where it was unanimously voted that all their units be redeemed, effective from 15 May 2015 (“the redemptions”). [5], [7]. It was then resolved that 1,000 units be distributed to each of nine new entities, each of which was trustee for a self-managed superannuation fund (“the acquisitions”). [7]. The ultimate beneficiaries of each of the six original unitholders were the ultimate beneficiaries of six of the nine new unitholders. [8].

On 9 June 2016, the Commissioner issued the appellant with an assessment on the basis that, pursuant to s 30 of the Duties Act 2001, the redemptions were aggregated and treated as a single dutiable transaction [10]. A separate assessment was made, applying s 30 to the acquisitions. [10]. The appellant objected to these assessments, but the Commissioner did not amend her assessments. [11], [15]. The appellant appealed from this decision under s 69 of the Taxation Administration Act 2001 (“TAA”). [1]. The following issues arose before Wilson J: [17]

1. What is the nature of an appeal under s 69?
2. What is the proper construction of s 30, and on what basis should any aggregation occur?

The Nature of the Appeal

On this question, Wilson J — and the parties — ultimately relied on the judgment of Bowskill J in Wakefield v Commissioner of State Revenue [2019] QSC 85. [18]. Several points of note arise: [19]

• the court “exercises its original jurisdiction to make such judgment as it considers ought to have been given, on the facts and the law, at the time of the hearing”;
• the court must give the Commissioner the opportunity to reconsider the objection if it is to admit new evidence;
• the scope of the court’s powers on appeal differs, depending on whether the decision being appealed related to a state of satisfaction being formed by the Commissioner, or cases where the law is applied to objective conclusions of fact. In the latter cases — such as the instant one — the exercise of the court’s powers is not dependent upon the demonstration of an error by the decision-maker; and
• where the question involves the Commissioner forming a state of satisfaction, the appellant will need to show an error of principle was made by the Commissioner; it is not for the court to “re-exercise any discretionary power conferred upon the Commissioner”. This differs from review by QCAT, which does involve the Tribunal standing in the shoes of the Commissioner and re-exercising the discretion.

The Proper Construction of Section 30

Wilson J identified a number of guiding principles which shape the court’s approach to the aggregation of transactions pursuant to s 30: [32]

1. it is a question of law as to whether the transactions satisfy s 30;
2. the factors considered by the respondent will involve a consideration of the conduct of the parties. The transferee(s)’ conduct will, therefore, be of primary significance;
3. in deciding whether the circumstances amount substantially to one arrangement, the respondent is required to “have regard to all relevant factors” and there will be “questions of degree involved”;
4. one must look at the whole facts of the situation, and the enquiry is not limited to the circumstances of the transactions themselves;
5. the substance of the transactions must be examined in order to determine whether they are “in substance” one transaction. Which is to say that the subject transactions need not be one arrangement, they only need to be substantially so; and
6. there must be an “integral and not [merely] fortuitous” relationship between the transactions before they will be viewed as being substantially the same. Looked at in the negative, to avoid aggregation, the transactions must be “separate and independent [and] unconnected with the others”.

On top of these principles, her Honour noted that there must be some unifying feature bringing the dutiable transactions within the section. [36]. In this context, “arrangement” “is a word of wide, but not unlimited meaning”, and refers not merely to contracts but to understandings or plans which may not be enforceable. [38]—[39]. Further, the court must look to the substance, not the form, of the arrangement. [41]. Ultimately, the determination under s 30(1) is a question of fact which takes into account “all relevant circumstances”, including the “objectives, actions or conduct” of the transferees. [42]—[44].

Having regard to these points, and the parties’ submissions, Wilson J noted that although, as “a matter of form, the acquisitions and redemptions may appear as separate transactions”, “the substance of the arrangement … shows there was some essential unity” between the transactions. [107]—[108]. Crucial to this finding were the Minutes of the meeting of 15 May 2015, which “evidence an arrangement between the parties”, with certain desired outcomes. [110]. This arrangement was “to restructure the unit trust” by transferring the units into self-managed superannuation funds for the existing unit holders, and to introduce three new unitholders. [115]. The restructure was effected by a single resolution with a “unity of purpose in the subject transactions”. [116]—[117]. It followed that the redemptions and the acquisitions should each be treated as substantially one arrangement under s 30. [118]. In the event, the statutory appeal was dismissed. [119].

Maneesha Prakash

The 72^nd Bar Practice Course was held at the Bar Association of Queensland from 25 March — 2 April 2019. The course was attended by 16 Queensland practitioners and the Association is delighted to announce that all of these practitioners have joined the Bar with 12 Pupils joining the private Bar and four Pupils joining the employed Bar. The Association also supported the training of three officers from Papua New Guinea in this course.

The six week course comprising of oral advocacy, written advocacy, alternate dispute resolution and ethics would not be possible without the support of the 124 presenters from the profession who generously volunteered their time. For BPC72 this included 15 members of the Judiciary, three retired members of the Judiciary, 27 Queen’s Counsel, 70 junior barristers, 41 witnesses (including police officers, readers and university students), one solicitor, three librarians and five financial partners. The course involved 43 session, including six mock hearing and the Advocacy Intensive Weekend.

Gillian Shepherd, a Pupil on the course, has provided her reflections of the course and her first few months at the private Nar:

“BPC72 already feels well and truly in the rear view mirror, something I don’t think a single one of us would have said if you had asked us that at about Easter this year!

From the dizzying highs and lows of the Bar Practice Course to the real life transition to the private Bar or the employed Bar, our BPC72 cohort have maintained a strong connection in these first few months following graduation. It has been a lovely, connected group to touch base with to discuss the good times, as well as those times where you’ve tripped over your words simply announcing your own appearance…

We had an eclectic group of backgrounds in our course, from criminal to commercial and to family, even specialist tax, which of course has led to a wide variety of practice areas at the Bar. A handy collective source of knowledge for us to each to call on when required no doubt.

A heartfelt thank you on behalf of all Readers of the recent BPC72 course: to all of the many esteemed Judges, presenters, instructors, mentors and volunteers who gave so freely and graciously of their time, both during the course itself, and now in guiding us through the transitory first few months at the Bar.”

Bar Practice Course 73 is currently underway and will conclude on 3 October with a class size of 21 Pupils including three officers from PNG.

BPC72 Pupils (l-r)

Daniel Steiner, Tom Illisa, Jason Dudley, Troy Mileng, Justin Byrne, James Hughes, Chau Donnan, Sophie Gibson, Rachael Taylor, Deborah Ambuk, San-Joe Tan, Iris Gajic-Pavlica, Thomas Ritchie, Halley Robertson, Danielle Tay, Gillian Shepherd, William Prizeman, Gavin Webber, Gail Cowen (Course Administrator)

Absent: Robert Gallo, Brooke Gibson (Course Manager)

View Propensity Evidence Reform paper

View the Commentary of Benedict Power

By coincidence, the day after the Current Legal Issues Seminar on propensity evidence the Court of Appeal handed down R v Dewey [2019] QCA 161 which affirmed the correctness of the admission of certain propensity evidence. The decision is an illustration of the liberal application of the Pfennig test by the Court of Appeal of Queensland that Professor Hamer commented upon in his paper.

In R v Dewey , the indictment contained three counts of armed robbery of service station attendants that were alleged to have been committed by the appellant. Two of the robberies occurred on the one night two hours apart, one at Beenleigh and the other at Mt Gravatt. The third robbery was committed eight days later at Coorparoo.

The robberies were similar in that they all involved a man entering a service station late at night and then demanding money from the lone attendant at knife-point. The CCTV from each robbery showed that a similar looking person had committed each of the three robberies, but could do no more than that.

There were some differences in the robberies. In the first robbery, a bandana was used to disguise the robber’s face after he had initially entered the store. In the second robbery, the robber did have a bandana around his neck and was wearing similar clothing to the robber in count 1, but he did not attempt to disguise his face. In the third robbery, the robber did not have a bandana and he did not attempt to cover his face. The most unusual feature of the robberies was a blue coloured knife being used for robberies 1 and 3. That unusual knife was not observed in robbery 2.

The appellant had been caught soon after the third robbery in grey ute that was consistent with the getaway car for the third robbery. He was in possession of a significant quantity of cash, clothing that matched that used by the robber and a blue coloured knife. Therefore, there was a strong case in relation to the third robbery.

The Crown case at trial was if the jury were satisfied of the appellant’s guilt on count 3, then they could use evidence of the appellant’s commission of that armed robbery, in combination with the cross-over of similar features between the robberies to determine that the appellant had also committed the other two robberies eight days earlier.

McMurdo JA (with whom Gotterson JA and Douglas J agreed) held that a proper application of the Pfennig test permitted the jury to use the evidence of the three robberies in that way. McMurdo JA also noted that the model directions in Bench Book direction 52 had not been given. The absence of that direction was not an appeal ground and the Court held that defence counsel had made a considered forensic choice not to seek such a direction and no miscarriage of justice arose.

Benedict Power, Barrister

Between 16 July 2018 and 21 July 2018 a group of 12 keen adventurers (and their East Timorese companions) hiked some of the mountainous regions of the eastern parts of East Timor. This tour, organised by Andrew Maher (from the charity “With One Seed”), was led by Justice Colin Forrest of the Family Court of Australia and included four members of the Bar Association of Queensland.

East Timor is one of our closest neighbours to the north, located a short distance to the north-west of Darwin, just to the east/south-east of Indonesia. East Timor was a Portuguese colony from the 16th Century until 1975, when it gained its independence. It is properly identified by its Portuguese name “Timor-Leste”. The country has two official languages — Portuguese and Tetum (a variation of a native language, heavily influenced by Portuguese) — although there are many local languages spoken throughout the country.

The purpose of the trip to Timor-Leste was four-fold: firstly, to learn more about East Timor, a fledgling country, which finally restored its independence on 20 May 2002 (after 3 years of UN administration that followed 23 years of Indonesian occupation); second, to raise funds and awareness for “With One Seed”, an organisation dedicated to improving both the wellbeing of the East Timorese people and the environment of Timor-Leste; third, to contribute to the East Timorese economy and to strengthen relations between the peoples of Australia and Timor-Leste; and, fourth, to enjoy a week of hard bushwalking, in good company, often in steep, wet and/or difficult conditions, visiting villages and local schools, and living, eating and sleeping in the simple homes of East Timorese families.

The group enjoyed a challenging and eye-opening week in part of the Bacau District of Timor Leste, trekking over much of the ground covered by the resistance fighters of East Timor during the long period of Indonesian occupation from 1976 and 1999. The trek included the mid-week scaling of the second highest mountain in East Timor, Matebian Mane (with an elevation of just over 2,300m).

The trip raised funds for “With One Seed”, a charity which, amongst other things, contributes to the reforestation of East Timor (to reduce climate change and local environmental degradation) through the education of the local community (including school students) in sustainable farming practices and by providing incentives for East Timorese farmers to plant, and then maintain, new trees in deforested or degraded areas. The charity currently operates around the Baguia region visited by the group. The charity (operating alongside the charities “With One Bean” and “With One Planet”) also promotes sustainably grown East Timorese coffee and organises hiking expeditions in Timor-Leste, such as that undertaken by this group in July 2018. It is hoped to expand the reforestation operations of “With One Seed” to other parts of Timor Leste in the near future.

Any BAQ members wishing to contribute to this charity, or keen to try some East Timorese coffee, or simply wishing to arrange an adventure tour in East Timor, are referred to the website of “With One Seed” at withoneseed.org.au.

The following commentary was delivered by Benedict Power, Barrister-at-Law, in response to the paper delivered by Professor David Hamer of the University of Sydney. Professor Hamer presented at the Current Legal Issues Seminar Series, Criminal Law — “Current issues in Propensity Evidence” on Thursday 22 August 2019 at the Banco Court. The seminar was chaired by the Honourable Justice Soraya Ryan of the Supreme Court.

View Propensity Evidence Reform paper

View note on R v Dewey [2019] QCA 161

Professor Hamer’s paper is a great resource for practitioners. I have it saved on my computer and plan to turn to it whenever a propensity evidence issue arises.

The paper provides context to the development of the common law position (now Queensland’s alone), the Uniform Evidence Legislation (UEL) position and importantly also discusses the likely development of the law in this area.

There are three parts of Professor Hamer’s paper that I wanted to highlight from a practitioner’s perspective.

They are:

1. The difficulty of predicting an outcome under the Pfennig test and the UEL;
2. What standard of proof applies to propensity evidence before it can be acted upon— particularly given the comments in Bauer; and
3. The likely changes to the law on propensity evidence arising from the Royal Commission into Institutional Responses into Child Sexual Abuse.

1. Uncertainty in predicting outcomes under the Pfennig test and the UEL

The admission of propensity evidence is the application of a rule of evidence, not an exercise of discretion.

Lawyers should be able to consider a set of facts and predict an outcome, but in the area of propensity evidence that is a very difficult task.

By contrasting the different outcomes in cases with seemingly similar facts, Professor Hamer’s paper demonstrates the difficulty in being able to predict the admissibility of propensity evidence.

No real differentiation can be discerned between outcomes under the apparently less onerous UEL regime and the common law. At page 20 of his paper Professor Hamer states that his review of cases across jurisdictions “… suggests that the precise details of the test don’t matter”.

Professor Hamer describes Queensland cases where propensity evidence has been admitted under the common law Pfennig test, and it would appear that the Court of Appeal took a robust approach to the application of the Pfennig test.

To the cases mentioned by Professor Hamer can be added the case of R v Brown [2011] QCA 16.

In Brown the defendant’s prior conviction for common assault (albeit with a sexual overtone) against another person two years earlier was admitted as evidence to prove identity in a burglary and rape case.

A legal test is of little utility if it does not allow you to predict the outcome of the application of that test with any degree of confidence.

Do any of the current tests allow us to predict what common features between offending are sufficient to show a special, particular or unusual feature allowing the admission of the evidence?

The case of Hughes case in the High Court is a good example of that — the majority found that the preparedness to take risks and act brazenly was a compelling unifying factor for the quite different offences against various complainants. Yet Nettle J found that feature to be of no significance at all. [1]

From this analysis, Professor Hamer sets up what might be seen as his ultimate proposition — if the precise nature of the test used makes so little difference to the outcome, do we need such complex tests under the common law or under the UEL.

2. Standard of proof — Bauer

The Queensland Supreme and District Court Benchbook (Direction 70) states that in single complainant cases that unless a jury is satisfied of the uncharged evidence (relied upon to show sexual interest) they must not use it to reason towards guilt.

The Benchbook makes this statement:

“The better view would seem to be that the jury should be instructed not to act upon evidence of a sexual interest unless they are satisfied of that fact beyond reasonable doubt.” [2]

Similar (although much more involved) model directions are given relation to the use of propensity evidence in multiple complainant cases. [3]

As noted at page 17 of Professor Hamer’s paper in the context of a single complainant case, the High Court in Bauer [2018] HCA 40 [86] was critical of such directions. In the UEL context, the HCA stated that “ordinarily” it should not be given.

The High Court in Bauer stated at the end of [86]:

Contrary to the practice which has operated for some time in New South Wales [4] , trial judges in that State should not ordinarily direct a jury that, before they may act on evidence of uncharged acts, they must be satisfied of the proof of the uncharged acts beyond reasonable doubt. Such a direction should not be necessary or desirable unless it is apprehended that, in the particular circumstances of the case, there is a significant possibility of the jury treating the uncharged acts as an indispensable link in their chain of reasoning to guilt. [5]   And, as explained earlier in these reasons, a trial judge is precluded from giving such a direction in Victoria. [6]

(footnotes as in the original)

What then does that comment in Bauer mean for directions about propensity evidence under the common law of Queensland. To answer that there seems to be three separate considerations:

1. Bauer was under the UEL — Bauer itself did note at [52] the distinction between the UEL and more stringent test under the common law — that may make the circumstances in Queensland different (and our Benchbook committee has considered that to be the case even post-Bauer)
2. Bauer was a single complainant case — the comment in Bauer at [86] was made in that context and under the heading of “Jury directions in single complainant sexual offences cases”;
3. Finally, the comment in Bauer was qualified by the stating that this was “ordinarily” the case.

Professor Hamer has observed that the ordinary conception of proof being built cumulatively by all the evidence in a case meant that a direction that individual facts (as opposed to elements of an offence) having to prove beyond reasonable doubt was generally wrong. Professor Hamer cited Shepherd (1990) 170 CLR 573 at 584-585 (as was also cited by the High Court in Bauer on this point).

That would also seem to be common sense in a single complainant case where all the evidence comes from the complainant. If the complainant gives evidence of an uncharged act relied upon to show sexual interest — it would seem artificial for a jury to determine if they accept that allegation beyond reasonable doubt before they can use that evidence to determine the charged offences. After all, there is no similar direction that the jury cannot use the complainant’s evidence of charged acts to determine whether the other charged act or acts occurred without first finding it proved beyond reasonable doubt.

In a multiple complainant case where the evidence has been ruled to be cross- admissible it would be contrary to the cross-admissibility ruling to require that the jury determine if they accept complainant 1 beyond reasonable doubt without considering the totality of the evidence which includes the evidence of complainants 2 and 3 before the evidence about complainant 1 can be used for complainant 2 and 3.

However, there may be circumstances where the evidence does stand sufficiently separately from the other evidence that it could logically be considered on a stand- alone basis. The question then would be — is it necessary for it to be considered that way — accepting that to do so would not be the ordinary way that evidence is considered collectively to determine guilt?

Before answering that, a second and related question should be considered. If a juror is satisfied that an act towards a complainant occurred which is not unequivocally sexual — is the character of the act to be assessed in isolation from the other evidence before it can be used to show sexual interest?

This is primarily a question for a judge to determine – as the gate-keeper for the admission of such evidence. However, should the jury also be directed to consider this issue separately from the other evidence in the case and beyond reasonable doubt?

If the nature of an act relied upon as propensity evidence is in question, then there is a risk of circular reasoning if a direct allegation of sexual misconduct has been made and that allegation is then used to determine the character of some unrelated act, which in turn is then used to support the truth of the direct allegation of sexual misconduct.

The issue of what basis the ‘sexual interest characterisation’ of an act should be considered has not been resolved — at least with regard to the judge’s determination of the admissibility of evidence.

In R v Douglas [2018] QCA 69 McMurdo JA (with whom Sofronoff P and Brown J agreed) at [56] — [57] noted that as yet, there was no majority view in the High Court as to whether evidence could be probative of a sexual interest if its interpretation in that way was dependent upon the acceptance of other evidence in the prosecution case.

McMurdo JA said at [56] — [57] of Douglas:

[56] As to the second of those instructions, in BBH there was a division of opinion as to how a certain piece of evidence, said to be probative of a sexual interest by the accused in the complainant, was to be assessed. The evidence was from the complainant’s brother, who said that he had witnessed an incident involving his sister and the appellant (who was their father), which the prosecution said was probative of a sexual interest by the father in his daughter, and in turn, of his guilt on a charge of maintaining a sexual relationship with her. The appellant argued that the brother’s evidence was equivocal, in that the event which he described could have been something which had no sexual character. Hayne J, with whom Gummow J agreed, said that the evidence of the brother itself had to show that the accused had a sexual interest. Their Honours’ view was unchanged from HML, where Hayne J had said that the evidence of uncharged conduct is not admissible to prove a sexual interest if its interpretation of showing a sexual interest “depends upon the prior acceptance of other evidence of separate events demonstrating that interest”. In BBH, French CJ said that the brother’s evidence was not to be interpreted by “reference to evidence which the brother’s testimony was adduced to support”. French CJ, Gummow and Hayne JJ were in dissent, in holding that the brother’s evidence was inadmissible as propensity evidence.

[57] Of the majority in BBH, Crennan and Kiefel JJ (in a joint judgment) and Bell J held that the brother’s evidence was not equivocal, when it was viewed, not in isolation, but in conjunction with other evidence in the prosecution case. The other majority judgment was that of Heydon J. In his Honour’s view, the brother’s evidence had the capacity, taken by itself, to support a finding beyond reasonable doubt that, in the incident witnessed by the brother, the accused had either committed an offence of a sexual nature, or carried out other conduct, in either way revealing his sexual passion for the complainant. Consequently, in BBH, there was no majority view as to whether evidence could be probative of a sexual interest if its interpretation in that way was dependent upon the acceptance of other evidence in the prosecution case.

(Emphasis added and footnotes removed)

Based on Professor Hamer’s paper, it does seem that although Bauer was a UEL case, it does require a re-consideration of the circumstances of when a direction that uncharged acts must be proved beyond reasonable doubt is appropriate, even under the common law. However, given the nature of propensity evidence under the common law — it may remain appropriate in certain cases:

1. Cases where the evidence about other offending, or acts alleged to show sexual interest, arise sufficiently separately from the other evidence in the case, so that that evidence can logically be considered separately;
2. Cases where the acts relied upon to show sexual interest are equivocal — such that the risk of circular reasoning arises in determining their nature; and
3. Cases where the propensity evidence is so important that it is truly a link in a chain rather than a strand in a rope — i.e. a true ‘Shepherd point.’ This last point would require the trial judge to determine the importance of the propensity evidence in the context of the other evidence in the case and whether in a practical sense it could be considered separately from the other evidence. Importantly, the comments in Bauer acknowledge that such circumstances may arise.

3. The likely changes to propensity evidence from the Royal Commission

Professor Hamer has been involved in advising both the Royal Commission and the CAG — the paper is a very good primer on the likely changes.

Professor Hamer’s paper discusses the tension between the awareness by lawyers that CSO are a not uncommon allegation in our courts and the fact that CSO are very unusual amongst the broader population.

Professor Hamer quotes from the Royal Commission’s report where it was said in relation to propensity evidence in CSO cases— ‘The two most important similarities are already present — sexual offending against a child”. [8]

It seems likely that at least some States will move to a presumption of admissibility of prior CSO convictions in trials for CSO.

That gives rise to the question — if changes to the rules of propensity evidence were to apply to CSO — logically shouldn’t these changes apply more broadly.

To put it another way — by applying changes only to CSO — would this be a sign that we giving way to ‘moral panic’ about CSO — or would this be the appropriately cautious approach, restricting the changes to a class of offence where circumstances (and perhaps legitimate societal pressure) demand those changes.

Professor Hamer’s ultimate suggestion for reform is for a very simple test of more probative than prejudicial — although combined with a set of judicial guidelines.

This is a challenging suggestion as the test has the appearance of a discretion to admit evidence rather than a test under which the admissibility of evidence was ruled upon. However, as Professor Hamer has pointed out, a review of cases over time and under different regimes “… suggests that the precise details of the test don’t matter” [9]

It is important to recognise that not all lawyers will see the prospect of change to the law on propensity evidence the same way. There may not be a majority view towards dramatic change, minor change or no change at all.

In conclusion, I think Professor Hamer’s paper and the parts of the Royal Commission’s report dealing with propensity evidence [10] are critical reading for those interested in this area of criminal law and evidence.

Change in this difficult area of the law appears inevitable — whether the law will become more or less certain in its application is much less clear.

Benedict Power, Barrister 

---

[1] Hughes (2017) 344 ALR 187; discussed in Professor Hamer’s paper at pages 15 and 24.

[2] Benchbook Direction 70 – Evidence of Other Sexual or Discreditable Conduct of the Defendant. The passage quoted above is footnoted (fn 7) as follows:

That being the majority view in HML (see, particularly, at [247]); cf Bauer at 869 [86], which referred to the position in New South Wales where “tendency” evidence of this kind is admissible on a less demanding test than common law test according to Pfennig. In HML, Hayne J (Gummow and Kirby JJ agreeing) held that the standard of beyond reasonable doubt had to be applied in order to “reflect the legal basis for … admission [of the evidence]”: at [132].

[3] Benchbook Direction 52 – Similar Fact Evidence (although the degree of satisfaction is not specified as being “beyond reasonable doubt”).

[4] See for example DJV v The Queen [2008] NSWCCA 272 ; (2008) 200 A Crim R 206 at 217 [30] per McClellan CJ at CL (Hidden J and Fullerton J agreeing at 227 [58], [59]); R v FDP [2008] NSWCCA 317 ; (2008) 74 NSWLR 645 at 654 [38] ; DJS v The Queen [2010] NSWCCA 200 at [54] – [55] per Hodgson JA (Kirby J and Whealy J agreeing at [86], [87]).

[5] Shepherd v The Queen [1990] HCA 56 ; (1990) 170 CLR 573 at 584-585 per Dawson J; Gipp v The Queen (1998) 194 CLR 106 at 133 [79] per McHugh and Hayne JJ; [1998] HCA 21; HML v The Queen [2008] HCA 16 ; (2008) 235 CLR 334 at 360-361 [31] – [32] per Gleeson CJ in diss on point, 490 [477] per Crennan J in diss on point.

[6] See Jury Directions Act , ss 61 , 62 ; Beqiri v The Queen [2017] VSCA 112 at [121] , [130].

[7] Professor Hamer’s paper at page 12

[8] Professor Hamer’s paper at page 22, fn 153

[9] Professor Hamer’s paper at page 20

[10] Royal Commission, Criminal Justice Report (Cth of Australia, 2017), Parts III-VI – https://www.childabuseroyalcommission.gov.au/sites/default/files/file-list/final_report_- _criminal_justice_report_-_parts_iii_to_vi.pdf

SCLQ exhibition

Supreme Court Library Queensland’s exhibition, ‘Overturning terra nullius: the story of native title’ is now open in Sir Harry Gibbs Legal Heritage Centre, ground floor, QEII Courts of Law.

With Captain James Cook’s declaration of sovereignty in 1770, all inhabitants of Australia became subject to the law of England and the native title rights of First Nation peoples to occupy, use and enjoy traditional lands were ignored. It would be over 220 years before the Native Title Act 1993 (Cth) would restore some legal recognition of these original and enduring rights nationwide.

Learn about the people and the two judgments that were particularly influential in shaping native title law reform—Mabo v Queensland (No. 2) [1992] HCA 23 and Wik Peoples v Queensland [1996] HCA 40.

Visit the exhibition Monday to Friday, 8.30am to 4.30pm—entry is free.

sclqld.org.au/native-title

Australia’s largest and most experienced Land Rover Dealer.