07.16.10
Posted in Crime and Society, Torts at 7:15 pm by admin
In what circumstances should the negligence of a surgeon be regarded as criminal?
This question was answered on 30 June 2010 after six and a half days of deliberation by the 12 members (six men and six women) of the jury in the Brisbane Supreme Court trial of former Bundaberg Hospital surgeon, Jayant Patel. As the jury’s verdicts of guilty on three manslaughter charges (75 year old Mervyn Morris, 77 year old Gerardus Kemps and 46 year old James Phillips) and guilty on one count of grievous bodily harm (62 year old Ian Vowles) were read out, there were cheers and hugging between former patients and family members who were watching via live video link. Two days later, Justice John Byrne sentenced Dr. Patel to seven years imprisonment, although he is eligible for parole in less than four years. An appeal against the conviction was lodged by Dr. Patel’s lawyers on July 15 2010.
In arriving at their guilty manslaughter verdicts, the jurors had to consider whether or not Dr. Patel had been criminally negligent under the Queensland Criminal Code by breaching his duty to have reasonable skill and use reasonable care when doing acts which may by dangerous to life or health, particularly medical and surgical treatment, or acts in the course of employment. Although it took the jurors almost a week to agree as a whole group, they decided that Dr. Patel had been guilty of ‘recklessness involving grave moral guilt’, which is the standard of criminal negligence required by the Queensland Supreme Court precedent of R v Jackson & Hodgetts [1990] 1 Qd R 456 (see pages 134 and 135 of Chapter 7 (Criminal Offences) in the Crime and Society section of Legal Studies for Queensland, Volume 1, Fifth Edition).
Whistleblower nurse Toni Hoffman said she felt vindicated by the decision. “It’s vindication and it’s relief, but the price that you have to pay is too great and we shouldn’t have to do that,” she said. Ms Hoffman said it is the end of a chapter she can now close, but the verdict is a warning to others. “This is a message to dodgy doctors everywhere,” she said.
During the trial, Patel’s defence counsel claimed Patel had always acted in the best interests of his patients, who had consented to the operations. Prosecutor Ross Martin, however, who characterised Patel as a “bad surgeon motivated by ego and suffering from lack of insight”, urged the jury to return guilty verdicts on all charges. He told the jury the trial was about “judgements” and that Patel’s negligence extended to his poor decisions about when to operate, and his choices about appropriate post-operative care.
In summing up, Justice John Byrne reminded the jury that Mr Martin neatly summarised the crown’s allegations when he said, “Over 19 to 20 months, there had been poor decision-making, misdiagnosis, performing surgery on patients who could not withstand it, performing surgery at the wrong hospital and the removal of healthy organs”.
Timeline:
- April 2003: Dr Jayant Patel begins work as a surgeon at the Bundaberg Hospital
- June 2003: Toni Hoffman raises concerns about Patel’s conduct as a surgeon
- March 2005: Opposition MP Rob Messenger raises concerns in Parliament about Patel’s competence
- April 2005: Patel resigns and is flown back to Portland by Qld. Health
- April 2005: Media scrutiny reveals Patel banned from performing some surgery in USA
- April 2005: Premier Peter Beattie announces inquiry, headed by Tony Morris
- September 2005: Inquiry headed by Geoff Davies begins after Morris inquiry axed over bias
- November 2006: Warrants issued for Patel’s arrest on charges including manslaughter
- July 2008: Patel extradited to Brisbane from the USA
- June 2010: Patel found guilty of three counts of manslaughter and one count of grievous bodily harm; sentenced to seven years jail.
View the ABC News website at http://www.abc.net.au/news/stories/2010/06/29/2940352.htm for a news report entitled ‘Patel guilty on all charges’, which describes the scenes in Brisbane and Bundaberg as the verdicts were handed down by the jury.
Other useful sources contained at this website address are as follows:
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07.15.10
Posted in Rights and Responsibilities at 7:08 pm by admin
World Refugee Day, which is June 20 each year, is promoted by the Office of the United Nations High Commissioner for Refugees (UNHCR) as a way of leading and coordinating international action to protect refugees worldwide. According to the UNHCR, there are 42 million people throughout the world who have been uprooted from their homelands.
The international theme for the 2010 World Refugee Day was ‘Home’, while the Australian theme for Refugee Week (June 20-26) in 2010 was ‘Freedom from Fear’.
The aims of Refugee Week in Australia include the following:
• To educate the Australian public about who refugees are and why they have come to Australia.
• To helping people understand the many challenges faced by refugees coming to Australia.
• To celebrate the contribution refugees make to our community.
• To focus on how the community can provide a safe and welcoming environment for refugees.
• For community groups and individuals to do something positive for refugees, asylum seekers and displaced people within Australia and around the world.
According to Article 1 of the 1951 Convention Relating to the Status of Refugees, a refugee is a person who ‘owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country …’.
An asylum seeker is a person who has left his or her country of origin, has sought refugee status in another country, but has not yet been granted refugee status and is awaiting a decision on his or her application.
For more information relating to the legal rights of refugees and the moral and legal responsibilities of countries, including Australia, to provide them with a new, safe homeland, click on the following links:
• United Nations High Commissioner for Refugees (www.unhcr.org)
• Refugee Council of Australia (www.refugeecouncil.org.au)
• Amnesty International Australia (www.amnesty.org.au)
• Human Rights Watch (www.hrw.org)
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Posted in Crime and Society, Rights and Responsibilities at 7:07 pm by admin
Brisbane’s Caxton Legal Centre Inc. has recently published a booklet, called ‘Police Powers: Your Rights’, which is a clear and logical practical guide to your rights when dealing with the police. Collaborating with the Queensland Council for Civil Liberties, the Caxton Legal Centre has produced a resource that will, on a day-to-day basis, make the public aware of the powers conferred upon police officers and the limits of those powers.
Caxton Legal Centre may be contacted by telephone on 07 3254 1811 or fax on 07 3254 1356 or by email at caxton@caxton.org.au to request copies of the booklet. Alternatively, the booklet may be downloaded from the website at www.caxton.org.au
Contents of this new up-to-date resource include the following:
• Where do I look for information or legal advice?
• What if I’m under 17?
• Your first contact with police: questions and directions
• Getting arrested
• Police searches
• Going to the police station or watch-house
• Legal proceedings
• Offences and penalties
• Complaints and referrals
• Checklist: dealing with police – first contact, interviews, arrest and physical interactions with police, court process, referral points (including contact details for the Queensland Council for Civil Liberties, Legal Aid Qld, Crime and Misconduct Commission and Aboriginal and Torres Strait Islander Legal Service.
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Posted in Crime and Society at 7:05 pm by admin
In June 2010, Susan Falls, 42, was found not guilty of murder by a Supreme Court jury after it had deliberated for just 90 minutes, despite having intentionally killed her husband, Rodney Falls, by drugging him and then shooting him twice in the head in their Caloundra family home in 2006. Three men were found not guilty of helping Ms Falls dispose of her husband’s body.
Mrs Falls admitted to shooting Mr Falls but claimed she acted in self defence after years of abuse, fearing he would harm her or her children. Ms Falls’ Supreme Court trial heard expert testimony that the breaking point came when her husband threatened to kill one of their children.
Under Section 272 of the Queensland Criminal Code, people are only able to use an amount of force that is ‘reasonably necessary’ to defend themselves. If, in defending yourself, you use more force than is reasonably necessary, you cannot rely on ‘self defence’ as an excuse for your response. (see pages 174 and 175 of Legal Studies for Queensland, Volume 1, Fifth Edition in Chapter 8 (Excuses and Defences)).
As reported at www.adelaidenow.com.au/news/national/, Lawyer Debbie Kilroy, founder of women prisoner support group Sisters Inside, said the verdicts should not encourage the public to take the law into their own hands. “This does not mean ‘open season’,” Ms Kilroy said. “I think (the Falls verdict) is a message to all battered women and victims of serious domestic violence that there is justice in the legal system,” she said. “Even though a life has been lost, it says to us that violence is still occurring against women at a horrendous level.”
Ms Falls’ two-week trial heard evidence she drugged Rodney Falls by putting sleeping tablets in his favourite meal of curried prawns before shooting him in the right temple at point-blank range with a silenced 0.22 calibre pistol. After cowering in the kitchen for about two hours she fired a second shot into his throat. Ms Falls’ legal team used the “battered woman defence” to argue their client should be acquitted of murder and manslaughter. “Battered woman syndrome” is a condition that renders the victim unable to take independent action to escape the abuse or seek assistance.
Related Coverage
Why I killed my husband – wife reveals Perth Now, 29 Jun 2010
What made Susan kill husband? Courier Mail, 4 Jun 2010
Curried prawn murder accused not guilty Adelaide Now, 3 Jun 2010
Susan Falls not guilty of murder Courier Mail, 3 Jun 2010
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Posted in The Legal System at 7:04 pm by admin
On 24 June 2010, Australia’s first female Prime Minister, Julia Gillard, was sworn in by Australia’s first female Governor-General, former Queensland Governor, Quentin Bryce. Julia Gillard was not elected to this position directly by the Australian people but, rather, together with other Government Ministers and backseaters in the Australian Labor Party, forced Kevin Rudd to resign due to poor opinion polls.
In 2007, as the Leader of the Australian Labor Party, Kevin Rudd was elected as Prime Minister by a majority of the Australian people, defeating John Howard’s Liberal-National Coalition parties. Is it truly democratic for a political party’s elected representatives in the parliament to replace the elected Prime Minister with another party member or should Prime Ministers be decided only by the vote of the people in an election? This question is particularly significant in the light of the presidential style of election campaigns that occur in modern Australian politics where the leaders of the major opposing political parties essentially ask Australians to decide which of the two high profile candidates they would like to have as the next Prime Minister or Premier.
Another important question, which will soon be answered by the Australian people, is: Will girl power be enough for Julia Gillard to remain as Prime Minister beyond 2010 when people power flexes its muscle and the Australian voters have their say at the ballot box in the looming Federal Election? This was something that Queensland’s first female Premier, Anna Bligh, managed to do when she won an election in 2009 after having been voted unopposed by her Labor Party colleagues as the successor to Peter Beattie when he retired as Premier.
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02.24.10
Posted in The Legal System at 12:03 pm by admin
On 23rd February 2010 the Queensland Parliament amended the state’s Constitution to include a Preamble. Unlike the Commonwealth Constitution which requires a referendum (see Legal Studies for Queensland Vol 1 p 40) to amend the Constitution this is not required in Queensland. A majority vote in the unicameral Queensland Parliament is sufficient.
The opposition has criticised the government for not taking this constitutional change to a state plebiscite or referendum. This would have brought people together rather than dividing them. Some Indigenous groups have also been critical arguing that it is purely symbolic and gives no benefits or legal rights to Indigenous Queenslanders.
For reaction to the preamble see:
http://www.abc.net.au/news/stories/2010/02/23/2828065.htm
Read the Preamble:
Constitution (Preamble) Amendment Bill 2009
http://www.rqi.org.au/constitution_preamble_amendment_bill_explanatory_notes_09exp.pdf
http://www.austlii.edu.au/au/legis/qld/bill/cab2009342/
The memorandum explains that:
the objective of the Constitution (Preamble) Amendment Bill 2009 (the
Bill) is to amend the Constitution of Queensland 2001 (the Constitution) to
provide a preamble containing an aspirational statement in commemoration
of the 150th anniversary year of the establishment of Queensland, and to
provide due recognition to Queensland’s Aboriginal and Torres Strait
Islander peoples.
The new section explicitly clarifies that the preamble is an aspirational
statement and it is not Parliament’s intention for it to either:
• grant any legal right or create any liability; or
• be used as an aid to statutory interpretation of either the Constitution
or any other law in Queensland.
http://www.rqi.org.au/constitution_preamble_amendment_bill_explanatory_notes_09exp.pdf
What is a Preamble?
Preamble is a term given to an introduction to a constitution or a statute that states the reasons for it and its purpose. It may give an explanation of what is to follow. Preambles are part of the Act and are used for purposes of statutory interpretation although this can be excluded, as is the case with the Queensland one.
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Posted in Crime and Society, News at 11:02 am by admin
Brisbane’s ‘bikeway rapist’ was convicted of sexual offences including five of (digital) rape of 11 victims and he was sentenced for 25 years imprisonment (non-parole period of 15 years). He appealed to the Court of Appeal to have his sentence reduced. The Court of Appeal accepted the argument by counsel that the sentence was manifestly excessive. The court reasoned that mitigating factors such as having no prior convictions, his guilty plea, his remorse and his co-operation with the police were not properly taken into account by the sentencing judge. His sentence was accordingly reduced to 16 years with a non-parole period of 12.8 years. Many in the community, the government (including the Premier) and opposition, the police, community groups working in the area of sexual violence and several of his victims have expressed disappointment, even anger, with this decision.
The Chief Justice, the Hon Paul de Jersey, who was a member of the Court of Appeal which heard the appeal, gave an interview in which he urged people to read the decision (before attacking it) and rejected the notion that judges were out of touch with the community. He did not comment on the decision itself in keeping with established judicial practice.
Read the decision of the Court of Appeal:
R v Colless [2010] QCA 026 (09/0223) Brisb Chief Justice Holmes JA Muir JA 23/02/2010
http://www.sclqld.org.au/qjudgment/2010/QCA/026
Listen to an Audio file of the Chief Justice.
Download the audio file
http://blogs.abc.net.au/files/de-jersey.mp3
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02.21.10
Posted in Law in a Changing Society, Technology at 6:02 pm by admin
The challenges which arise when the law tries to keep up with rapid technological developments are explored in Topic VII – Technology and the Law in Legal Studies for Queensland Vol 2. One recurring issue arising from the global nature of the internet is which courts have jurisdiction over material on the internet, that is, which courts have the right and authority to hear a case and have the law of their nation apply to it.
Several significant cases on this issue were canvassed in Legal Studies for Queensland Vol 2, including the case of Yahoo! Inc v LICRA and the Australian case of Gutnick.
A new case from England on this topic is R v Sheppard & Whittle [2010] EWCA Crim 65 Crim.
Two Englishmen wrote a pamphlet called Tales of the Holohoax which contained derogatory remarks about Jewish people and black people and set up a website which contained it and other racially inflammatory material in that was it threatening, abusive or insulting towards various racial groups. The server for the website was in California, USA. The material was available to any internet user in the world.
The two men were convicted by a jury (majority verdict 10:1) on multiple counts of possessing, publishing and distributing racially inflammatory material per the Public Order Act 1986 and sentenced to imprisonment. They appealed on the ground that the courts in England did not have jurisdiction to try the case as the material on that internet site was California, USA – the place where the web server upon which it is hosted is located. None of the material on that internet website was illegal in the United States of America. It did not constitute a criminal offence in the United States of America because it was not only not a criminal act but was specifically protected by the ‘freedom of speech’ protections guaranteed to all Americas through the First Amendment to the American Constitution
The court upheld the conviction and dismissed their appeal. The court explored what was required for a nation’s courts to have jurisdiction over internet publications. The court held that the test for jurisdiction was not based on the place of publication [“country of origin” test], nor the jurisdictions where it can be downloaded [“destination’ test] but the “substantial measure” test needed to be applied. On the facts of the case the court found that a substantial measure of the activities constituting the crime took place in England as the material was written, edited and uploaded from England, and parts of it were targeted specifically at a readership in the UK.
See: R v Sheppard & Whittle [2010] EWCA Crim 65
http://www.bailii.org/ew/cases/EWCA/Crim/2010/65.html
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Posted in Law in a Changing Society, The Legal System at 5:59 pm by admin
Mr. Wayne Swile has worked in the court system for 27 years, with the last seven years in the Drug Court as the South-East Queensland Coordinator. In October 2009, Mr. Swile gave a visiting Year 12 Legal Studies class the following information and insights into the purposes and processes of this new sentencing court for their final unit, ‘Law in a Changing Society’.
The Drug Court is an alternate sentencing option to the Magistrates Court. It deals with criminals, many of whom were drug-addicted. Given the sheer volume of offenders facing sentencing in the Magistrates Court, it could not adequately deal with the rehabilitation of offenders. The Drug Court is an example of ‘therapeutic jurisprudence’, which means that drug-addicted criminal offenders are treated as patients deserving of support and empathy in order to help them break free from the drug-crime-prison cycle while at the same time recognising in the sentencing process the need for justice in relation to the crimes committed.
In Queensland, the Drug Court has been a permanent sentencing option since 2006, with its pilot year being 2000. There are five Drug Courts operating in Queensland, one in NSW, one in Victoria, and in Western Australia there are a pilot Aboriginal Drug Court and a Juvenile Drug Court in operation.
Each Queensland Drug Court consists of the following partner agencies:
• Queensland Police (prosecutor)
• Legal Aid (defence counsel/lawyer)
• Corrective Services officer
• Queensland Health officer
Prior to each Drug Court sitting, there is a meeting of the Drug Court Magistrate, along with a representative from each of the partner agencies. All matters to be heard before the Drug Court are discussed at the team meeting and the progress of each participant is discussed.
There are three phases in the Drug Court program specifically designed to rehabilitate the offender:
• Phase 1: ‘Illicit Drug-Free’ (12-24 weeks: 3 to 6 months).
• Phase 2: Stabilisation (12 to 24 weeks: 3 to 6 months).
• Phase 3: Reintegration (12 to 24 weeks: 3 to 6 months).
Queensland’s Drug Courts have a 29% success rate, which is based on IDRO (Intensive Drug Rehabilitation Order) programs being successfully completed, culminating in the graduation of participants from the Drug Court program. 14 months is the average period for successful completion of the program. In order to successfully complete the program, participants must be:
• drug-free;
• crime-free; and
• ready to engage as productive members of society.
The Drug Court sentences offenders who have been charged with crimes for which they will receive a custodial sentence, including charges of break and enter, stealing, fraud and driving/traffic offences. Offences involving violence against another or of a sexual nature disqualify offenders from the Drug Court. In order to be eligible to be a participant in the Drug Court program, an offender must plead guilty and must face a maximum term of imprisonment of three years (although it can increase to four years with police consent). Most offenders have committed more than 10 offences when they come before the Drug Court. Some have committed between 200 and 400 offences. Offenders must be at least 17 years old, although there are not many 17 and 18 year old offenders who appear before the Drug Court due to convicted persons having to be liable for prison terms, which is unlikely in most cases of young offenders. To be eligible for the Drug Court program, an offender must also live within prescribed postcodes as provided for under the Drug Court Regulations 2006, which are generally within 25 kilometres of the relevant Drug Court. This allows for partner agencies to be able to provide services for the rehabilitation of offenders as well as for the offenders to be able to return to court for review by the Drug Court Magistrate. The phase the offender is in determines the number of times he or she must return to the Drug Court for review; Phase 1 – weekly, Phase 2I – fortnightly, and Phase 3 – monthly.
Every person who is accepted onto the Drug Court program receives a sentence of imprisonment which, in most instances, is a period greater than six months. Defendants are referred to the Drug Court for their suitability to undertake the program. Following the referral, the defendant’s charges are adjourned for a six week period before initial Drug Court sentencing. This allows for Queensland Health to assess whether or not the offender is still drug-dependant, as well as assessing the need for the offender to have residential rehabilitation. On the Gold Coast, there are three places with residential rehabilitation accommodation: Fairhaven (soon moving to Mt. Tamborine), Mirikai and Goldbridge. It also takes 30 days for a pre-sentencing report to be compiled by Corrective Services.
At the initial Drug Court Sentencing Hearing, the prosecutor and the defence lawyer (Legal Aid) make submissions. The Magistrate hands down the initial prison sentence (maximum of three to four years) which is suspended whilst the offender undertakes an Intensive Drug Rehabilitation Order (IDRO). This order has many specific conditions attached to it, such as random urine testing for drugs (starting at up to five times per fortnight), attending court hearings (weekly at first), writing and handing up a journal to the Magistrate, and residential rehabilitation accommodation. Many of the participants have already been in some form of pre-sentencing custody. All of the participants write in a weekly journal.
As the ‘participants’ work their way through the three phases of the Drug Court program, they can receive sanctions (such as custody/prison periods, ‘no contact’ with certain people and removal of weekend leave) from the Magistrate for non compliance with their program. If their breaches of the order are serious, they can have their Drug Court program terminated by the Magistrate and be required to appear for final sentencing (which in most instances include a prison term). The Magistrate also makes orders for rewards such as weekend leave, reduced community service and contact with certain people (e.g. a partner or children) where participants satisfactorily comply with their program. One concern is that participants are rewarded for merely doing what they’re supposed to do under their order (i.e. complete the program by getting off drugs and learning to become law-abiding and productive members of society). Once the Drug Court program is successfully completed, the Drug Court Magistrate hands down a final sentence, usually in the form of a suspended sentence (based on the initial prison term) or a probation order.
A maximum of 221 people throughout Queensland are on the Drug Court’s IDROs at any time. There is a 141 person cap in South-East Queensland. Recidivism (repeat offending) is not being stopped in the general criminal justice system. There is a general lack of deterrence from a young age for many offenders. Although there have not been recent comparisons of the costs between imprisonment and Drug Court, past findings have indicated that there is little difference, however Drug Court offers a program which specifically targets the rehabilitation of offenders.
In response to a question about statistics in relation to the effectiveness of the Drug Court program, Wayne Swile referred to reports that have been compiled and published by the Australian Institute of Criminology (2008 – focusing on the first 100 graduates from the Queensland Drug Court) and the Queensland Department of Justice & Attorney-General.
Observation of a Drug Court sitting at Southport (October 2009):
Before Magistrate Tynan (a female Magistrate – most of the Drug Court Magistrates currently sitting are females), the Drug Court opened with appearances given by the prosecutor, Corrective Services officer, a Queensland Health officer and a Legal Aid lawyer. As each participant’s name is called by the Drug Court officer, he or she walks up to the Magistrate’s Bench and hands up documents including a weekly journal that is required to be kept and shown on each court visit. The Magistrate speaks directly to each participant, who sits in a chair to the left side of the bar table instead of behind it. At the end of each hearing, the other participants and the court personnel applaud if there has been some progress made in the program.
1. Participant “P” (male)
• He admitted to using Speed but assured the magistrate that he was clean today.
• He is still having anxiety attacks and hearing voices.
• An outpatient for three days per week at Mirikai (residential drug rehabilitation facility at Burleigh).
• The Magistrate gave the following advice to all the Drug Court participants who were present in the courtroom to help them make a fresh start free from drug users and dealers: “Get rid of all phone numbers from your mobile phone by getting a new SIM card and starting with a new set of numbers.”
• The Magistrate gave the participant a sanction of 14 days in custody (prison) for testing positive to using Speed and told him that he will be subjected to a Queensland Health reassessment as to whether or not he is clean from drugs so that he can return to program
2. This male participant received a ‘head’ sentence of two years and three months. He has been in custody (jail) for eight days so far and his application to the Drug Court to be accepted onto an Intensive Drug Rehabilitation Order (IDRO) program was adjourned by the magistrate until next week.
3. Participant “L” (female)
• She last did community service on Friday the 9th of October 2009 (3 days ago).
• She has today made a $5 restitution payment, for which she has a receipt from the filing registry of the Southport Law Courts.
• She still has 17¼ hours of community service to do which she’ll do quickly so she can move onto the next phase.
• Everyone clapped her for making progress as she left her seat and returned to the public gallery at the back of the courtroom.
4. Participant “H” (female)
• Working five days per fortnight.
• She now has new accommodation (no longer in residential rehab.).
• Hoping to graduate in about eight weeks.
• It will be two years on 25 October since she started the Drug Court program.
• The Magistrate reminded her that she was not to take any drugs or medication other than those permitted in writing. She is still under Queensland Health case management.
• She is under the case management at Burleigh.
• Still has eight hours of community service to do.
• Restitution still to be paid.
• She needs to bring her journal to the court next Monday.
• She is attending NA (Narcotics Anonymous) meetings.
• The Magistrate said, “It’s all in your hands now. You have a lot more responsibility.”
5. This male person was brought into the dock through the side door of the courtroom by a Corrective Services officer. He has been missing from the IDRO program for six months. The Magistrate gave him a sanction (penalty) of 22 days in custody. He wishes to be reassessed for the Drug Court program but the Magistrate sternly told him, “You’ll need to convince us that you’re committed to the program.”
6. Participant “M” (male)
• 28 years old.
• Was sentenced in September 2008.
• The Magistrate briefly read through the participant’s journal which he had handed up to her personally. She paused and read a quote of his from the journal: “I have been clean for 37 days.”
• Magistrate: “Good to see. Keep on counting. Good to see.”
• The participant explained that he had not been clean for so long. He was 12 years old when he had started using pot and other drugs
• Magistrate: “Why bother with this program?”
• Participant “Because I want to be clean and be with my little girl.”
• Clapping by all in courtroom after this positive hearing.
7. Participant “P” (male)
• Handed up his journal to the Magistrate but it was not fully completed.
• He explained that he is finding it hard to adjust to life ‘on the outside’ (of jail).
• He is schizophrenic and anxious but the Magistrate said he has made a good start on the program.
• Again, clapping after this hearing to encourage him to keep pressing on with his rehab. Program.
8. This Drug Court participant was granted weekend leave from Mirikai for having good reports on his progress through the program. He said, “I’ll be a Senior next week.” The Magistrate noted that he had made a strange request to her in his journal that he wanted to go back to weekly court visits on a Monday morning instead of fortnightly appearances. He said this was because he didn’t know what to do with himself when the other participants in the program come weekly to the Drug Court but the Magistrate suggested ways he could otherwise occupy himself on the non-court Monday mornings and finished with, “See you in a fortnight.”
9. This male Drug Court participant is shy and, although he has a buddy, things are not going very well at Mirikai.
10. Participant “P” (female)
• The Magistrate told this participant that she had made a much bigger effort than last week, including the doing of some community service.
• still has 66 hours of community service to do
• The Magistrate concluded by saying that this participant has had a better week than last week and encouraged her to keep doing community service and writing in her journal.
11. Participant “J” (male)
• A heroin user who wishes to apply for eligibility for the Drug Court program.
• In custody since July (brought into dock through side door by Corrective Services officer and then handcuffed and taken away once hearing finished).
• Queensland Health and Queensland Corrective Services reports are due on 9 November.
• Proposed date for Drug Court sentencing hearing: 23 November.
12. Participant “W” (male)
• Has recently tested positive to cannabis.
• The Magistrate said, “No poppy seeds!”
• He told the Magistrate he had a good weekend with his son and learned some parenting skills.
• The Magistrate imposed a sanction of 10 hours extra community service.
• No clapping after this hearing.
13. This male participant missed a random drug test (referred to as a ‘random’) and has been receiving messages from old drug associates on his mobile phone. The Magistrate told him, “Get a new SIM card from Woolies for $2”. Drug tests have been sent away so the Magistrate told him that she’d have to wait until the results are in. Her parting words to him were, “Get to your meetings.”
14. “A blast from the past” – a graduate of the Drug Court program
This young man was invited by the Magistrate from the public gallery at the back of the courtroom up to the chair next to the bar table and invited to share what has happened in his life since successfully completing the program. He proudly explained that he has his own marketing business, ‘UFO Industries’, with five full-time staff and two part-timers. He is clean and is still undergoing monthly drug testing. He is back with his family and has actually been given a key to the house. He is boxing every day to keep fit. His final words were sobering: “I’d be dead if it wasn’t for this program.”
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02.19.10
Posted in Crime and Society, News, Technology, The Legal System at 10:06 am by admin
Kaihana Tahseen Hussain, 20, stood trial for the murder of her mother, Shaheda Yasmeen Hussain, and the attempted murder of her father, Dr Muhammad Nurual Hussain, in the family’s Gold Coast apartment on October 9, 2006. She was 17 at the time.
The case for the prosecution was centered on the father’s evidence that she attacked and stabbed them both. She blindfolded her father, telling him she had a surprise for him, before she stabbed him in the upper abdomen with a knife. She had minutes before stabbed her mother in the stomach who died from blood loss at the scene.
Crown prosecutor Michael Byrne SC told the jury the accused was angry because her parents “restricted her lifestyle” by wanting her to complete school and go on to university, rather than move to Sydney to be close to her 20-year-old lover, Ben Brady. The two talked regularly via MSN Messenger and on-line. On-line chats were read out in court in which Kaihana told Ben Brady that her mum was a ‘religious freak’, that she felt she was ‘born into the wrong family’ and hated ‘the life they are inflicting on me’.
Earlier, whilst the family was living in Adelaide, Kaihana had run away to be with him for some months. Ben Brady gave evidence that she had injuries consistent with her claim that her mother had punched her and tried to strangle her after she caught her talking to him on the phone. Because of these injuries she had taken out an AVO order against her father and mother. After intervention of a family counsellor, the police and family, she returned home. Shortly after that she had a trip with her mother to Bangladesh and the Hussains moved to the Gold Coast to “start afresh”.
She wanted to convert from her family’s Islamic faith to Christianity. This distressed both her parents. Her father said in court that “I told her [if you convert] you will not find me as your father. I was very angry.”
The case for the accused was that there was a violent argument between the three of them in the apartment. The father had had threatened to kill the daughter [in the honour killing tradition] and take his own life if she converted to Christianity. He had a knife and there was evidence from neighbours hearing Kaihana screaming: “Help, help me, They want to kill me”. This was linked in evidence to the practice of ‘honour killings’ which still occur in some parts of Bangladesh and elsewhere. In the melee he stabbed his wife. As Kaihana ran out of the apartment to seek help and safety for herself, he wounded himself in the chest so that his daughter, not him, would be blamed for the injuries/death of the wife. The first words he said to the police when they arrived on the scene is that his daughter did this.
The father was taken to hospital to be treated for his wounds. A nurse at the hospital gave evidence that he said to her that as a Muslim he needed to pray because of what he had done to his wife,
Before he would answer questions, the father wanted assurance from police that anything he told them would not be used against him. Only when he was provided with a document declaring he was not a suspect in the murder of his wife and no charges would be laid against him would be assist the police with their enquires.
DNA evidence showed the knife – the murder weapon – had only the father’s DNA on it.
The Verdict: It took the jury just one hour to reach a verdict of not guilty of any offence. As she left the court precinct some jurors even embraced her.
Issues: As the media has pointed out, there were only two people who were in the apartment when Mrs Hussain was killed. One of them was the murderer. Both have different explanations of the events. One has gone to trial and been acquitted. The other has been told by police that he was given written assurance by the police that he not a suspect and would not be investigated. Hence he could not or tried for any offence. The question is whether this amounts to a legal immunity from prosecution? A spokesperson for Director of Public Prosecutions has said it is not.
This raises the possibility that the father may be now be investigated and possibly charged for the murder. However, he has made statements and given testimony in court on the understanding this would not occur. His right to silence therefore has been compromised and the evidence he gave used against him. Does this matter? Or is getting to the truth of what happened in the apartment that day that lead to the death of Shaheda Hussain more important.
Right to silence was a “hot topic” in Legal Studies for Queensland Vol 1 Chapter 9 pp199-202.
It is also worth considering whether the police should give any such assurances to individuals when investigating a murder?
In addition, the media has reported that some evidence was not presented to the jury, including the fact Kaihana visited a website “how to kill your parents?”. This was on the ground that it would be too prejudicial.
Double jeopardy prevents Kaihana being tried again for the events that occurred on that day unless there is new and compelling evidence. For details on the amendments to the Criminal Code on double jeopardy – see •Chapter 68 Exceptions to double jeopardy rules
•s 678B –Court may order retrial for murder—fresh and compelling evidence or
•678C –Court may order retrial for 25 year offence—tainted acquittal.
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