Robertson O’Gorman Solicitors now has six accredited criminal law specialists.
 

As the leading Queensland Criminal Law firm, we are pleased to congratulate another two of our remarkable team of criminal law specialists!  Dominic Brunello and Remy Kurz are the latest of our team to be awarded Queensland Law Society Specialist Accreditation in the field of Criminal Law. Dominic also won the award for the highest achiever in the criminal law stream.
In another fantastic achievement, Terry O’Gorman has been awarded the prize for outstanding accredited specialist. This award recognises Terry’s outstanding contributions as a long-standing accredited specialist in criminal law.
The Specialist Accreditation Scheme gives solicitors an opportunity to formally recognise their high level of competency and knowledge in their chosen area of legal practice. It also provides excellent guidance to the public and the profession as to which legal practitioners are truly leaders in their area of expertise.
We are also pleased to announce that Criminal Law Accredited Specialist, Eric Halden will be joining our firm in January 2021.  His appointment means that the team at Robertson O’Gorman Solicitors will be comprised of six practitioners who hold Specialist Accreditations in Criminal Law.   This is a truly remarkable panel of expertise and skill and aligns with our culture of excellence and true commitment to superior customer service.  We are the only Criminal Law Firm in Queensland with this large number of accredited specialists.
For more information on any of Robertson O’Gorman’s services or to read more about our team – please visit our website https://www.robertsonogorman.com.au/
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Investigation of war crimes and the recommendations of the Inspector-General of the ADF
The Inspector General of the ADF Afghanistan Inquiry Report was released following a lengthy investigation by Major General Brereton.
The Report made a number of recommendations for further investigation and in particular, the report recommended that 36 matters be referred to the Australian Federal Police for criminal investigation.
The inquiry had broad powers to investigate these matters. The inquiry is not a criminal trial and cannot find guilt in any individual case.  Any matters where the Inquiry Report recommends an investigation by the AFP must then be independently investigated by the federal police and a decision made as to whether or not to prosecute the matter.
It is important that in the context of any criminal investigation by the AFP, the individuals the subject of any investigation are reminded of their rights to remain silent and to obtain legal advice before answering any question put to them.
War crimes and the Commonwealth Criminal Code
Division 268 of the Commonwealth Criminal Code sets out a number of offences against humanity including genocide, crimes against humanity and war crimes.  Of importance in considering the recommendations made by the Major Brereton, is the war crime – murder which appears at section 268.70.  A person accused of the war crime of murder commits an offence if:
(a)  the accused causes the death of one or more persons; and
(b)  the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and
(c)  the accused knows of, or is reckless as to, the factual circumstances establishing that the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and
(d)  the accused person’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
 
In addition to the war crime of murder, the report made recommendations around investigation of cruel treatment and torture both of which are also offences under the Commonwealth Criminal Code.
 
A person accused of cruel treatment, pursuant to section 268.72, commits an offence if:
(a) the perpetrator inflicts severe physical or mental pain or suffering upon one or more persons; and
(b) the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict. Penalty: Imprisonment
 
Similarly in relation to the war crime of torture, pursuant to section 268.25, a person commits that offence if:
(a) the perpetrator inflicts severe physical or mental pain or suffering upon one or more persons; and
(b) the perpetrator inflicts the pain or suffering for the purpose of:
(i) obtaining information or a confession; or
(ii) a punishment, intimidation or coercion; or
(iii) a reason based on discrimination of any kind; and
(c) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and
(d) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected; and
(e) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Beyond reasonable doubt 
In Australia the criminal standard of proof, beyond reasonable doubt, applies to war crimes prosecuted under the Commonwealth Criminal Code.  The nature of the evidence collected by the inquiry throws up a number of questions concerning the admissibility of some of that evidence ultimately in criminal proceedings.
There are a number of defences available to individuals charged with the war crime of murder. Specifically to section 268.70 of the Criminal Code, the person will not be guilty of the offence if it can be demonstrated that:
(a)  the death of the person or persons occurs in the course of, or as a result of, an attack on a military objective; and
(b)  at the time the attack was launched:

the perpetrator did not expect that the attack would result in the incidental death of, or injury to, civilians that would have been excessive in relation to the concrete and direct military advantage anticipated; and
it was reasonable in all the circumstances that the perpetrator did not have such an expectation.

Many persons who are affected by the recommendations within this report would feel that the nature of the inquiry and their role within the ADF impacted greatly on their decisions and process.  The report noted the potential for accused persons to raise mental health defenses and disorders as relevant to culpability and abnormal mental functioning.  In each case of a recommendation for prosecution by the AFP, the mental health of the individual at the time of the alleged incident will be relevant not only to the exercise of the prosecutorial discretion but also ultimately to any potential defences or excuses which might be available to the accused person.
What to take away
There are a number of matters which should be taken away from this report:

Firstly, the inquiry is not a criminal trial and recommendations are not charges.
Secondly, the process for the individuals the subject of the report will be a long an arduous once and it is important that appropriate legal advice is obtained at the earliest opportunity.
Thirdly, the investigation to be conducted by the AFP will involve different rules and rights for individuals;
Fourthly, the process of proceeding to trial involves a number of strategic decisions best made by individuals with lawyers who understand the criminal process and are able to develop a strategy for their individual situation.

 
If you or a family member require any advice about matters arising from this report, please contact Dan Rogers, a specialist in international criminal law.
A redacted copy of the report can be found here. If you require support, The Defence all-hours Support Line is a confidential telephone and online service for ADF members and their families 1800 628 036.
 
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ASIC administers a number of different pieces of legislation. Where conduct is generally alleged however, to amount to fraudulent conduct the Criminal Code 1899 (Qld) and other local jurisdiction criminal laws may be involved.
Fraud is an offence under the Queensland Criminal Code that involves a person dishonestly:

Applying property belonging to another (which may be in their possession subject to a trust or condition) to their own use or to another person’s use; or
Obtaining property from any person;
Inducing any person to deliver property to another;
Gaining a benefit or advantage (including non-monetary) for any person;
Causing a detriment (including non-monetary) to any person;
Inducing any person to do something that the person is lawfully allowed to abstain from doing;
Inducing any person to abstain from doing something that they are lawfully allowed to do; or
Intentionally makes off without paying for a lawfully provided service (which requires on-the-spot payment) or lawfully supplied property.

In circumstances where the person is a director or officer of a corporation and the victim is the corporation, the offender is an employee or employer of the victim, or the property came into the possession and control of the person as a result of a trust, direction or condition the offending is aggravated and a maximum sentence of 14 years may be imposed.
Moreover, where the property value dishonestly obtained is $100,000 or more or the person carries on the business of committing fraud, the offending is further aggravated and a maximum penalty of 20 years imprisonment may be imposed.
A recent example of an ASIC investigation which resulted in Queensland fraud offences arose when a former Townsville financial adviser who was the subject of an ASIC investigation, was sentenced to eight years’ imprisonment with a non-parole period of two years and eight months.
He pleaded guilty to eleven counts of dishonestly applying to his own use property belonging to another under various provisions of section 408C of the Queensland Criminal Code, being offences of fraud.
In particular, he had accessed and transferred approximately $1.1 million from his clients’ superannuation, pension and personal savings accounts between 2006 and 2017.
In considering the appropriate penalty, Her Honour Judge Dick described the offending as significantly impacting the victims and diminishing public trust in the financial services industry.
In circumstances where ASIC investigators have made contact with you or your company, it is important that you receive advice from the earliest opportunity.  The consequences for you personally and for your business generally may be significant, as exemplified by this recent matter.
If you would like further information about the ASIC investigation process, see our ASIC page and helpful fact sheet about ASIC compelled interviews.
This article is authored by Emma Higgins
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Dan Rogers, Principal, Robertson O’Gorman has been named as a finalist in the Lawyers Weekly Partner of the Year Awards for Criminal Partner of the Year.
Lawyers Weekly’s Partner of the Year Awards showcases outstanding performance by partners, or partners equivalent, across individual practice areas within the Australian legal profession.
The fifth annual Partner of the Year Awards, run in partnership with principal partner Taylor Root, offers finalists and winners a range of experiences and opportunities that extends far beyond their winning moment.
This year’s finalists which was announced from Tuesday 6 September, features 250 high-achieving legal professionals across 31 submission-based categories.
“The Partner of the Year Awards is all about acknowledging those at the top of their game — the best partners in Australia who exude the highest level of technical expertise, finesse and leadership capabilities,” said Lawyers Weekly editor Emma Ryan.
“This year’s finalists represent the elite in each practice area, with their work making an invaluable contribution to their firms, clients and the community alike.
“On behalf of Lawyers Weekly, I’d like to congratulate each of the finalists on their achievements. We look forward to celebrating with you soon.”
Dan Rogers, Principal at Robertson O’Gorman Solicitors said that he was humbled to be recognised and proud to be named as a finalist in the Partner of the Year Awards 2020.
“Robertson O’Gorman Solicitor’s recognition for our excellent contribution to the criminal law industry reinforces the strength of our service and dedication to connecting with the community and engaging with clients,” he added.
 
 
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Last week, Robertson O’Gorman was again recognised as a ‘First Tier Criminal Defence Firm’. Congratulations to our newest edition to The Doyle’s Guide, solicitor Emma Higgins!  Emma has been recognised in the 2020 Queensland Criminal Law Rising Star rankings.  Doyle’s is curated by fellow criminal lawyers and barristers, recognising the expertise of our firm’s criminal defence lawyers and we are proud of our firm’s commitment to excellence and the continuing professional development and mentoring we provide throughout our lawyers’ career.

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Robertson O’Gorman Principal recognised in national Doyle’s List for White Collar and Corporate Crime Professionals and Criminal Defence  Lawyers
The Doyle’s Guide is an independent organisation that rates and recommends law firms and individuals based on interviews with clients, peers, and relevant industry bodies.  The Doyle’s 2020 rankings are in and we congratulate our Principal, Dan Rogers for being recognised nation-wide as a Leading Criminal Defence Lawyer, in addition to a national recognition in the White Collar Crime, Corporate Crime and Regulatory Investigations Category.  Congratulations also to Terry O’Gorman; another one of our team awarded nation-wide recognition as a Leading Criminal Defence Lawyer. All of the solicitors at Robertson O’Gorman strive for quality and superior customer service and we are very proud of their commitment to excellence.

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DEFENCE PERSONNEL AND WEAPONS PROHIBITION ORDERS
Protection orders are official documents made by a court or police service for the protection of one person (the aggrieved) against another (the respondent). They include domestic violence orders – visit our Domestic Violence page for more information.  Other examples of protection orders include:

Apprehended Domestic Violence Orders
Apprehended Personnel Violence Orders
Intervention Orders
Family Violence Intervention Orders
Personnel Safety Intervention Orders
Violence Restraining Orders
Misconduct Restraining Orders
Personnel Protection Orders
Family Violence Orders
Police Family Violence Orders

Protection orders can be for a temporary period pending a court hearing. They may also involve voluntary undertakings given by the person that has a similar restraining effect as a formally-imposed protection order. For information regarding the kinds of conditions that may be imposed in a protection order, visit our Domestic Violence page.
Weapons prohibition orders (WPOs) are protection orders that limit or restrain access, possession or use of a weapon, often in relation to a protection order.
Weapons licences will be affected by protection orders. Temporary protection orders suspend weapon licences and final protection orders cancel weapons licences.[1]  Within one day of the court making an order, the respondent must surrender their weapons and licences to a police officer. The respondent will also be prevented from applying for a weapons licence for five years from the date of the final protection order.
DEFENCE MEMBERS AS THE AGGRIEVED
Where a Defence member becomes the aggrieved person in a protection order, they should notify their commanding officer where the circumstances are likely to influence their performance, duty or daily work routine. They should also notify their commanding officer where the respondent to the protection order is another Defence member or employee or where the order is likely to affect Defence business or reputation. Commanding officers are then to take all reasonable steps to support and assist the aggrieved person.
DEFENCE MEMBERS AS RESPONDENTS
Where a Defence member becomes the respondent to a protection order, they must immediately report it to their commanding officer, who is to manage the Defence member as appropriate to the situation.
Notification must be in writing and provided within 24 hours of becoming aware of the protection order. For Reserve members not on duty, it must be provided within first period of duty after becoming aware of the protection order. Along with a copy of the protection order, the written advice must contain:

Details regarding the circumstances of the issue of the protection order;
Duration and conditions of the protection order; and
Any impact it may have on the effectiveness of the member in carrying out their assigned duties.

Where a WPO is issued, the member must also include whether information regarding any services weapons in their possession and any personal firearms and/or ammunition stored in any ADF armoury.
If the Defence member’s ability to perform their duties is restricted by the WPO, the commanding officer must consult with the member’s career management agency to consider if the member can continue serving in the ADF. The Military Personnel Policy Manual also outlines that any privately-owned weapons stored in an ADF armoury must not be released to the Defence member. If the WPO requires the weapons be surrendered, this must be carried out by the officer-in-charge of the armoury direct to the police, in the presence of the Defence member.
Where the Defence member is permitted to continue serving in the ADF, they are not permitted to gain unsupervised access to armoury or magazines.
ADF Recruitment are responsible for seeking declarations regarding any WPOs to which applicants are subject at the time of their application and any time after before their enlistment/appointment. Depending on the circumstances, WPOs may be sufficient for an applicant to be declined or deferred entry into the ADF. Failure to advise of a WPO prior to enlistment/appointment may result in termination at a later date.
[1] Weapons Act 1990 (Qld) ss 27A, 28A.
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Our Principal and Legal Director, Dan Rogers presented today at the Legal Wise Seminar – Criminal Law: Hot Topics.  He spoke about Criminal law and the Human Rights Act 2019 (Qld) with a particular focus on statutory interpretation and the right to a fair hearing; along with reviewing Sections 32 to 35 of the Act which set out certain specific rights that relate to those accused of a criminal offence.  Case Studies were examined to provide context to these important areas.  It is vital for anyone facing a criminal charge to get considered advice about how the Human Rights Act 2019 (Qld) may affect the best conduct of their case. Our solicitors are available to discuss your case.
 

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The Queensland Government and Opposition have jointly committed to develop shield law that protect journalists from being compelled to reveal their confidential sources. The proposal comes after the Attorney-General Yvette D’Ath withdrew legislation that would impose jail terms or significant fines on journalists who report on corruption allegations made to the CCC during state elections.
Queensland is the only state in Australia that has not enacted these laws, and this commitment has been welcomed by various groups like the Media, Entertainment and Arts Alliance (MEAA), as well as lawyers like Terry O’Gorman and Justin Quill. Without the proposed shield, journalists are exposed to prosecution for contempt if they refuse to reveal their sources.
Terry O’Gorman spoke to the Courier Mail regarding the proposed laws, stating that while these laws were long ‘overdue’, the drafting of the legislation should not be left to the government due to the risk of politicisation. The position is that the government of the day should not be drafting legislation that is likely to be utilised to criticise the government itself.
Mr O’Gorman further commented that it is necessary that any proposed legislation account for the fact that journalists should be required to disclose their sources in certain criminal cases where it is ‘in the interest of justice’.
Associations like the MEAA continue to lobby for uniform legislation at the Commonwealth level that addresses the existing disparities between state shield laws.
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We are pleased to announce for the sixth straight year, Robertson O’Gorman Solicitors has been recognised as a First Tier Queensland Criminal Defence Firm in the 2020 Doyle’s Guide..  The Doyle’s Guide is curated by fellow criminal lawyers and barristers, recognising the expertise of our firm’s criminal defence lawyers. The list can be accessed here.  Terry O’Gorman and Dan Rogers have also been named as Preeminent Queensland Criminal Defence Lawyers. As a result, together, Terry and Dan make up two of only six places on the highest individual category. Leigh Rollason was also among the list of Recommended Queensland Criminal Defence Lawyers.
Congratulations to Dan, Terry, Leigh and all ROG solicitors who continue to strive for excellence!

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On Friday, 14 February RSE licensees received a letter from ASIC and APRA jointly written to address the proposed law […]

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Insolvent trading by companies is a source of considerable attention and the regulator is actively investigating matters where allegations of […]

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The search practices of the New South Wales Police Service have come under scrutiny following a recent report by the […]

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The powers of a Coroner in conducting an inquest are far reaching. In 2003 when the Coroner’s Act 2003 commenced, section 39 introduced a provision which allows the Coroner to direct and require a witness to give evidence that would tend to incriminate the witness. A Coroner may only make such a requirement if satisfied that it is in the public interest for the witness to do so.
There are any number of acts of parliament which seek to abrogate this privilege. The right to claim privilege against self-incrimination is the right of an individual to refuse to answer a question or produce any document or thing that might tend to bring the person into the peril and possibility of being convicted of a crime.  It is a fundamental and substantive common law right and not just a rule of evidence.  The right to silence protects the right not to be made to give evidence against oneself whether that evidence is incriminating or not.
In order to balance the abrogation of this right, the Coroner’s Act 2003 makes clear that the evidence which tends to incriminate the witness is not admissible against the witness in any other proceeding, other than a proceeding for perjury.  In addition, the Coroner’s Act 2003 states that derivative evidence, being information, documents or other evidence obtained as a direct or indirect result of the evidence of the witness, is not admissible against the witness in a criminal proceeding.
It is as a result of these provisions that the Coroner’s Act 2003 has sought to strike a balance between the abrogation of this basic privilege and the uses which can be made of any evidence provided because of it.
On 20 May 2020, the Justice and Other Legislation Amendment Bill 2019 was passed by the Queensland Parliament.  The bill introduces provisions to the Coroner’s Act 2003 that allow the repealed Coroner’s Act 1958 to continue to apply to a pre-commencement fire or an unfinished inquest.  The amendments allow a Coroner to stop an unfinished inquest under the repealed legislation and reopen the inquest under the Coroner’s Act 2003.  If a death occurred before the Coroner’s Act 2003 commenced, and an inquest is reopened under the current legislation the provisions and powers which allow a Coroner to require evidence that would tend to incriminate the person will apply.
It is important to remember though that, although this will remove the privilege against self-incrimination for many who may be required to appear before the Coronial Court in relation to an inquest, the use that can be made of any evidence given in criminal proceedings against the person is limited. These protections provide an important balance in the coronial jurisdiction.
If you would like any further information about the coronial process, please see our Coronial Inquests page, here.
If you would like to discuss a coronial inquest and the impact of these legislative changes on a pre-2003 inquest that you or your family have been involved in, please contact our office on 07 3034 0000 
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Today our Principal, Dan Rogers presented a Queensland Law Society On-Demand Video about how to run a bail hearing in a COVID-19 world. The presentation will be available shortly. Topics covered include:

important preparation for bail hearings
key differences between bail applications in the higher and lower courts
new developments in the past month and how they affect bail applications
how to articulate a COVID-19 related case in a bail hearing
other Human Rights Act 2019 considerations to make.

Persons in custody are highly vulnerable during the current pandemic. If you need advice or assistance in a bail application or a special circumstances parole application, contact Robertson O’Gorman Solicitors on (07) 3034 0000
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A good friend who isn’t a lawyer messaged me in the wake of the Pell decision and asked for my thoughts. I shot back:
”Legally speaking absolute no brainer, there was so much unchallenged evidence that he couldn’t have had time to commit the offences they said he did.
It is not a case about whether the complainant’s should have been believed but whether even if they were believed, could a reasonable doubt co-exist. Clearly the court has found it did exist and should have led to an acquittal.
A win for common sense.”
Those criminal lawyers amongst us might have guessed the inevitable next question: “yeah but did he actually do it?”
It’s at that point where we descend into more esoteric territory.
Many feel that the justice system is premised on unearthing ‘the truth’. I understand that sentiment but cannot subscribe to it blindly. The truth should be the desired destination but to get there we must work within a robust framework that protects the innocent. As a result, I explained to my friend that I wasn’t greatly concerned with the answer as we rarely ever know these things definitely. I am was more interested in the system and the need to maintain, regardless of the profile of the case, the presumption of innocence. In this case there was certainly enough evidence to establish a reasonable doubt and, most importantly for the High Court, this doubt was not displaced by the Crown.
The illusion of a fair trial
The above analysis pays no heed to the prevailing public sentiment- nor should it. In the wake of the Royal Commission those abused by the Church have, quite rightly, been galvanised in their quest to ensure those responsible for institutional abuse receive the full force of the law. I for one certainly didn’t believe Pell was entitled to any special treatment. But, and it is a big ‘but’, if he was to face the full force of the law he was also entitled to be protected by the law. This means receiving a fair trial. Could such a prominent figure – the personification of all the church’s failings – ever receive a fair trial? We must acknowledge that the impact of the Royal Commission and the media coverage of such high profile cases are not contained in a vacuum. Every juror, consciously or otherwise, must have felt the weight of this expectation, so too the Victorian Court of Appeal. What does this matter? Well it highlights that there are often understandable reasons (none of which are framed by malice) that might impermissibly impact a jury’s decision. In those circumstances appellate intervention acts as a necessary bulwark against injustice.
But what about the sanctity of a jury’s verdict?
I anticipate a lot will be said about the High Court effectively usurping the jury’s verdict. Generally speaking such a criticism is fair, it being well established that the
jury’s verdict should not lightly be dispensed with. However, on reading the judgment it is apparent that the Court was awake to this concern. The judgment stresses the necessity for the Crown to eradicate reasonable doubt and that its failure to do so impacted the jury’s verdict. In a football game the result can turn on the way in which the game is refereed; spectators might form the wrong impression on who should have won the match as they witnessed the game through a distorted lens. The same goes for juries – they can only be expected to adjudicate on what evidence they receive and the directions they are given. It follows that while a jury’s verdict ought not be meddled with, such a principle is underpinned by a precondition that a jury must be properly instructed on the law. In this case the High Court recognised that this precondition had not been established leading to a verdict which was not supported by the whole of the evidence.
Compelling complainant cannot overwhelm objective unlikelihood 
In the future this case will be cited where the complainant might prove to be a compelling witness but where other evidence, particularly unchallenged evidence, suggests that the offending was inherently improbable.
That takes a little bit of mental gymnastics to get your head around but it is a sound proposition. When we assess the reliability of a witness we can so often be blinkered on the consistency of that evidence, rather than its plausibility. In this sense we, like the jury or Victorian Court of Appeal, may hastily conclude that the reliability of that evidence overrides any doubts about its probability.
Many victims’ advocates will cry foul over this distinction. How can a complainant be a believable witness but the defendant be acquitted? While I am sympathetic to this argument, it is simplistic. While I accept this decision may have a negative impact on the rates of reporting sexual abuse, I unapologetically say that this is the lesser of two evils.
Ultimately, we are aware that false complaints are made. The possibility of an innocent person being convicted is far graver than the potential reticence of victims to come forward. The distinction drawn by the Court was a vital one and in cases where the allegations are historical in nature, goes some way to redressing the prejudice which has been occasioned by the delay in complaint.
A win for judicial independence & Justice Weinberg
More broadly speaking, the decision underscores the importance of an independent judiciary. The decision is undoubtedly unpopular within the general public. Not many tears would have been shed had the conviction been upheld. However, much like in the earlier decisions of Fennell and Coughlan, the High Court has demonstrated that they are not averse to dipping their toes into criminal cases to ensure that miscarriages of justices are not perpetuated. An emboldened High Court demonstrates a robust separation of powers – never a bad thing as we edge closer to the partisanship of the US.
The second takeaway may well be the importance of having judges with extensive criminal experience consider such complex appeals. The dissent of Justice Weinberg QC in the Victorian Court of Appeal was much cited in the High Court’s decision. It seemed he understood what the trial judge and the other members of the Court of Appeal did not- that the way in which the jury was encouraged to reason downplayed the importance of, and perhaps even reversed, the onus of proof. It is fair to comment then that Pell benefited from his matter being heard by Justice Weinberg QC who dissent provided a roadmap to his ultimate acquittal.
Remy Kurz 7 April 2020
The views expressed above, including any errors, are that of the author and do not necessarily represent the views of Robertson O’Gorman Solicitors
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CORONAVIRUS, THE LAW AND COMPLIANCE WITH SELF-ISOLATION AND QUARATINE RULES
We are all well aware that more and more of us are being told to self-isolate due to the spread of novel coronavirus (COVID-19). Governments are readily imposing shutdown measures across Australia to curb the spread of the virus, with the closure of borders, the banning of gatherings, forced closure of pubs and clubs, entertainment venues, gyms, indoor places of worship, sporting venues, you name it.
What we have also been noticing is that some people have not been taking these directions as seriously as others.
In Italy for example, more than 40,000 have been charged for violating the lockdown since the national quarantine was imposed on 9 March 2020.
In Australia, we are seeing specific police taskforces assembled dedicated to enforcing the shutdown measures.  A multiagency taskforce was announced for Queensland with police commencing compliance checks in entertainment precincts.
So where do these powers come from?
Biosecurity Act 2015 (Cth)
On 18 March 2020, the Governor-General declared that a human biosecurity emergency exists.  This declaration was made under section 475 of the Biosecurity Act 2015 (Cth) and is the first time that the powers under the Biosecurity Act have been used.
The Biosecurity Act provides the Health Minister with very broad powers, including any requirement that he or she is satisfied is necessary to prevent or control the emergence, establishment or spread of the declaration listed human disease in Australia.[1]  These powers are subject to safeguards that the requirement must be “likely to be effective”, is “appropriate and adapted” to its purpose and is “no more restrictive or intrusive than is required in the circumstances”.[2]
This includes the power to impose general requirements on people entering or leaving specific places, to restrict or prevent the movement of people within places and to evacuate places.[3]
Further, specific officers can make a “human biosecurity control order”[4] to require individuals to do or not do certain things, including:

Requiring a person to provide their contact information and health details including body samples for diagnosis;
Restricting a person’s behavior including restrictions on movement;
Requiring a person to isolate from the community for specific periods of time;
Requiring a person to undergo other risk-minimisation interventions including wearing protective equipment;
Requiring a person to undergo decontamination and/or undertake treatment. [5]

There is no requirement for a person to actually be infected or for the officer to even reasonably believe or suspect that a person is or may be infected for a control order to be issued.[6]
If a person does not consent to a control order, the Biosecurity Act provides a power for the Director of Human Biosecurity (the chief medical officer) to compel them to comply.[7]
What happens if you don’t comply?
A person who fails to comply with any requirement or direction made pursuant to the powers under the Biosecurity Act may be charged with a criminal offence.
Offences for failing to comply carry maximum penalties of five years imprisonment or 300 penalty units (approximately $63,000), or both.[8]
The same penalties apply to a person who fails to comply with a control order.[9]
In some cases, a person may be detained by police, particularly in the instance that a person refuses to comply with a requirement to stay at a particular place to isolate themselves.[10]  Escaping from detention is a criminal offence and the same penalties above apply.[11]  However, the Attorney-General has stated that detention of individuals is intended as a “last resort”.
Public Health Act 2005 (Qld)
There are similar separate ‘emergency powers’ under State law allowing an officer responding to a declared public health emergency to direct a person to do, or refrain from doing, certain things.[12]
These powers are in line with the National law and include directing people to stay in their home, or another isolation area.  It also includes directions to an owner or operator of a business to close or limit visitor access for a specified period.
It is criminal offence for a person not to comply with the requirement or direction.  The maximum penalty is 100 penalty units (approximately $13,345).[13] Further, an officer may under certain circumstances take action to enforce the requirement or direction.[14]
There is no doubt that these measures at both the National and State level have the potential to significantly impact upon a person’s liberty, including the obvious restrictions on movement and self-isolation requirements.
The next blog in this series will discuss the human rights and civil liberties concerns stemming from these extensive powers under Commonwealth and State law.
[1] Biosecurity Act 2005 (Cth), ss 477, 478.
[2] Biosecurity Act 2005 (Cth), ss 477(4), 478(3).
[3] Biosecurity Act 2005 (Cth), s 477(3).
[4] Biosecurity Act 2005 (Cth), s 60.
[5] Biosecurity Act 2005 (Cth), ss 85-97.
[6] The officer does have to be satisfied as to the principles provided for in Biosecurity Act 2005 (Cth), s 34.
[7] Biosecurity Act 2005 (Cth), s 72.
[8] Biosecurity Act 2005 (Cth), s 479
[9] Biosecurity Act 2005 (Cth), s 107.
[10] Biosecurity Act 2005 (Cth), s 103.
[11] Biosecurity Act 2005 (Cth), s 106.
[12] Public Health Act 2005 (Qld), s 345.
[13] Public Health Act 2005 (Qld), s 346.
[14] Public Health Act 2005 (Qld), s 345(3).
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In my days prior to becoming a lawyer I profess that I was a sucker for all things Law & Order. Not the high-minded ‘concerned citizen’ use of that phrase but rather the fictional inner workings of two separate but equally important groups: the police, who investigate crime, and the district attorneys, who prosecute the offenders … in neat 40 minute episodes.
In those tightly written episodes the defendant was often baited into participating in an inculpatory interview with Police with his seemingly mute public defender by his side. In contrast to this legal ineptitude, what I really pined for was the courtroom scenes. Like those Tom Cruise cross examining Jack Nicholson moments (“You can’t handle the truth!” Mixing my references here, indulge me) where the wily prosecutor swayed the jury through devastating cross examination of the cocky defendant.
As I eagerly awaited these mic-drop moments I learned something else which, I am more confident in saying, is reflected more commonly in criminal practice…. Science is King. Whenever the State wheeled out a scientific expert their evidence was afforded significant weight as the jurors looked on nodding and taking fervent notes. Science, it seemed, was the backbone of every good prosecution.
Far more eminent minds than mine have spoken about the ‘Lab Coat’ and ‘CSI’ (a far inferior show, BTW) effects on jurors. Suffice to say, the evidence of an expert witness with all its real and imagined objectivity can cut through the clouds of lawyerly excrement and provide the jury with compelling evidence upon which to base their verdicts.
In the case of DNA juries have become increasingly exposed to the use of probability statistics and, when faced with competing arguments from either side of the bar table, jurors could be excused for falling back on those verifiable scientific figures as a sort of universal truth which trumps the fallibilities of the ‘human’ evidence.
‘Good Science’, therefore, helps both the Prosecution and the Defence. I am not going out on a limb by saying that advances in forensic science have led to a reduction in miscarriages of justice and, equally, helped convict offenders who might otherwise have escaped prosecution.
It was with all of this in mind that I read the recent Court of Appeal decision in R v Lang[1]. In their joint judgment the Court overturned a murder conviction and ordered a retrial.
In Lang the Appellant successfully argued that the jury had received statistics from an expert which were “irrelevant and hence inadmissible”.
The deceased, who was in a romantic relationship with the Applicant at the time of her death, had been found with a knife protruding from her chest. The defence case was that she had committed suicide, the Prosecution alleged that she was murdered by the Applicant. It was common ground at the trial that the deceased had Bi-Polar Disorder.
During the trial statistical evidence of the rates of suicide in women and, further, statistics about the use of sharp implements in such suicides, was adduced from an expert witness. The Court of Appeal explained the problem with such evidence:
[40] A death caused by a knife wound is itself a rare occurrence, whether the wound is self-inflicted or otherwise. This event having occurred, there were two hypotheses which had to be considered by the jury. The prosecution case was that it was very rare for a woman, even with bipolar disorder, to kill herself, particularly by stabbing herself, which, whilst not of itself proving the fact, made it more probable that she had been murdered. The fallacy in that argument is that the evidence signified nothing about the relative likelihood of the alternative hypothesis, namely that she was murdered….[42] In a case where the jury had to consider two alternative hypotheses, evidence which was said to indicate the likelihood of one hypothesis could mean nothing without evidence of the likelihood of the alternative…
Counsel for the Applicant in Lang cited the UK case of R v Clark.[2] When I noticed that name I was reminded of another example of how statistics can prove to be extremely dangerous in the jury room. It is here I must again digress. True to my clichéd middle-aged white male existence, I am now quite interested in podcasts. It was during an episode of They Walk Among Us, a fantastic podcast focusing on UK criminal justice, that I was first exposed to the harrowing story of Sally Clark.
In 1999 Sally Clark was convicted of the murder of her two infant sons. The first had lived for 2 months before being found unresponsive. At the time she was not charged with this child’s death as it was ruled the death was the result of a SIDs related illness. The second child, born the following year, tragically also passed away at a similar age. This time the expert opinion was that the child had died as a result of being shaken. The same expert re-examined the death of the first child and made new findings, ultimately resulting in the Mother being charged and later convicted of the murder of her children.
Vital to those convictions was the use of statistics. For example, at trial one expert suggested the likelihood of two children from the same family passing away due to SIDs was “1 in 73 million’. With such a statistic being front and centre in the minds of the jury it was perhaps unsurprising that Ms Clark was convicted.
It was therefore not without a healthy dose of irony that, after spending more than 2 years in jail, science –which had played a pivotal role in her conviction- came to Ms Clark’s rescue. It turned out that scientific evidence had existed at the time of the original trial which provided a compelling basis to suggest the deaths were as a result of an infection, rather than by an overt act of the Mother. Problem was, this evidence was not disclosed to the defence and their experts.
More importantly for present purposes the Court of Appeal also found that the use of statistics in the conviction of Ms Clark were ‘misleading’, ‘irrelevant’ and dangerous.
The Appeal was upheld and to their credit, the Crown did not seek a retrial. The case would go on to have profound effects on the way SIDs deaths were investigated in the United Kingdom.
The Takeaway
Statistics are powerful.
When either side of the bar table seeks to rely on them great care should be taken in questioning their underlying presumptions, the data upon which they rely and, most importantly, whether they are in fact probative in the case.
Both Lang and Clark demonstrate that even if statistics are accurate, they have the power to distract the jury to the point of appellable error. It would seem then that if there is any doubt about the probative nature of a statistic it is best that it not be put before the jury.
Statistics then, it seems, can be misleading. Much like a Law & Order episode they can be enticing at first blush but, upon closer inspection, may not stand up to scrutiny.
******
Remy Kurz
24 January 2020
The views of this author are his own and do not necessarily reflect the views of Robertson O’Gorman

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Following a report in the Daily Mail (Australia) in late December 2019 that Facebook is watching Australians as they shop at physical stores to target them with ads thanks to shops sharing data with Facebook, it has been claimed that under current Australian laws there is no way for the average Australian to escape this form of corporate surveillance.
In an interview with Channel 10 on Monday, 6 January 2020 Terry O’Gorman said that while theoretically users can opt out of being targeted by Facebook in this manner by selecting ‘ads’ in Settings in reality a significant law change was needed on a national level to deal with the increasing surveillance of Australians by tech giants such as Facebook and Google.
Terry O’Gorman told Channel 10 that in July 2019 a final report from Australia’s competition watchdog (the Australian Competition and Consumer Commission), Federal Treasurer Josh Frydenberg is now considering the ACCC’s proposal for a significant crackdown on Google and Facebook in Australia.
Terry O’Gorman told Channel 10 that tech companies are collecting personal data from the average Australian through the widespread possession and use of mobile phones without people knowing that is occurring.
US technology firm Oracle indicated recently that users are unwittingly uploading a gigabyte of data for Google to analyse.
Terry O’Gorman told Channel 10 that the legislation that will flow from the Australian Competition and Consumer Commission’s July 2019 report should be expanded to ensure that there are significantly increased penalties for breaches of privacy laws by tech giants.
Mr O’Gorman told Channel 10 that Facebook is currently the subject of a US investigation in relation to an alleged breach of US anti-trust law.
In Australia the head of the ACCC was quoted late last year that “there is no way in the world I would have a Google Home or the equivalent in my home”.
Mr O’Gorman said that there needed to be a national strengthening of privacy laws following the ACCC’s July 2019 report as regulating the might of overseas tech giants to protect the privacy of individual Australian’s was a task beyond the power of any individual State or Territory.
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Case Example: Police powers and exclusion of evidence – R v Shaheed [2002] NZLR 377
This is the fifth blog in our Human Rights Act Series, looking at the case of R v Shaheed[1] regarding police powers and exclusion of evidence.
As discussed in our previous blog, courts have discretion to exclude unlawfully or improperly obtained evidence.[2] In Victoria, this discretion is enlivened by a breach of right/s as contained in the Charter.[3] In New Zealand, which has analogous legislation, the Court of Appeal have ruled that the test of admissibility is one of balancing the seriousness of the breach of the right against securing convictions.[4] The Queensland Act will operate in a similar way.
Facts
Mr Shaheed was charged with offensive behaviour and requested to provide a blood sample for the police database. He was told that if he refused to do so, authorisation from the court would be sought so that the sample could be taken by force. No such power existed to require a blood sample under the relevant legislation. Mr Shaheed was not provided the opportunity to consult a lawyer, and provided a sample that linked him to a rape case of which he was not previously a suspect. He was then identified by the rape complainant from a photo-board.
Decision
The New Zealand Court of Appeal overruled previous decisions that provided for exclusion of evidence obtained in breach of the NZBORA. They replaced the exclusionary rule with a new ‘balancing test’, summarised by Blanchard J as:[5]
The Judge must make that determination by means of a balancing process in which the starting point is to give appropriate and significant weight to that breach but which also takes proper account of the need for an effective and credible justice system.
The majority of the Court of Appeal also identified six key factors to be considered in applying the balancing test:

the nature of the right and the nature of the breach;
whether the right was breached in bad faith, recklessly, negligently or due to a genuine misunderstanding of the law by the police;
whether other investigatory techniques were available but not used by the police;
the reliability, cogency and probative value of the evidence obtained in violation of the Bill of Rights;
the seriousness of the crime; and
the importance and centrality of the evidence to the Crown’s case.

The result, though with judges providing considerably varied reasons, was that the blood sample was rendered inadmissible while the photo-board identification evidence was admissible.[6] The ‘balancing test’ was essentially codified in the Evidence Act 2006 (NZ).[7] Significant academic debate is present in New Zealand as to whether this test affords sufficient consideration of human rights.
This decision makes it clear that where police breach the requirement to act compatibly with and give proper consideration to human rights, this will be an important consideration when deciding whether to exclude evidence. Further, it confirms that police conduct that breaches a person’s rights is conduct that is both improper, for being ‘inconsistent with the standards expected in our society of law enforcement officers’, and unlawful.[8] The gravity of the human rights violation will be relevant in assessing whether to admit the evidence.[9]
[1] [2002] NZLR 377.
[2] Bunning v Cross (1978) 141 CLR 54; R v Swaffield (1998) 192 CLR 159; R v Thomas (2006) 14 VR 475.
[3] Alistair Pound and Kylie Evans, An Annotated Guide to the Victorian Charter of Human Rights and Responsibilities (Thomson Lawbook Co, 2008), 525-53 citing Simon Evans and Carolyn Evans, ‘Legal Redress under the Victorian Charter of Human Rights and Responsibilities’ (2006) 17 Public Law Review 264, 272.
[4] See generally: Simon Consedine, ‘R v Shaheed: the first twenty months” (2004) 10 Canterbury Law Review 77.
[5] R v Shaheed [2002] 2 NZLR 377, [156].
[6] Elias C held all evidence should be admissible (at 383). Richardson P, Tipping and Blanchard JJ excluded all evidence (at 423-4). Gault and Anderson JJ admitted all evidence (at 428 and 431). McGrath J excluded sample 3 but admitted the photo-board identification evidence (at 430).
[7] See generally Law Commission, The 2013 Review of the Evidence Act 2006 (Report No 127, February 2013) 68-74.
[8] Ibid at [333].
[9] Ibid at [348], [479].
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