Archive for November, 2009
11.26.09
Posted in Crime and Society at 3:38 pm by admin
Under s615 QCC:
(1) The court may make a no jury order if it considers it is in the interests of justice to do so.
(2) However, if the prosecutor applies for the no jury order, the court may only make the no jury order if the accused person consents to it.
(3) If the accused person is not represented by a lawyer, the court must be satisfied that the accused person properly understands the nature of the application.
4(a) the trial, because of its complexity or length or both, is likely to be unreasonably burdensome to a jury;
(b) there is a real possibility that acts that may constitute an offence under section 119B would be committed in relation to a member of a jury;
(c) there has been significant pre-trial publicity that may affect jury deliberations.
The Court may refuse a no jury order where:
The trial will involve a factual issue that requires the application of objective community standards including, for example, an issue of reasonableness, negligence, indecency, obscenity or dangerousness.
The Court may refuse a no jury order where:
The trial will involve a factual issue that requires the application of objective community standards including, for example, an issue of reasonableness, negligence, indecency, obscenity or dangerousness.
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Posted in Crime and Society, The Legal System at 3:33 pm by admin
s59A Jury Act now allows majority verdicts ….if the judge is satisfied jury cannot reach a unanimous verdict the judge can ask for a majority verdict.
(a) if the jury consists of 12 jurors – a verdict on which at least 11 jurors agree; or
(b) if the jury consists of 11 jurors – a verdict on which at least 10 jurors agree.
Prescribed period: a period of at least 8 hours (breaks excluded) after the jury retires or what judge finds is reasonable if complex trial.
Unanimous verdicts are still required for
(a) (i)murder;
(ii) an offence against s 54A(1) QCC … if the offender is liable to life imprisonment
(iii) an offence against a law of the Commonwealth or
(b) a trial before a jury of only 10 jurors when it gives its verdict
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Posted in Law in a Changing Society, Technology, The Legal System at 3:29 pm by admin
The Lord Chief Justice of the United Kingdom believes that the “jury system is threatened by the internet generation, who are so used to getting their information in text they won’t be able to grapple with the oral traditions of the court.” He says that in 15 years’ time the way information is delivered to juries will have to be rethought and jury members will have to be given evidence via computer.
To read the full article in The New Lawyer see:
http://www.thenewlawyer.com.au/article/jury-under-threat-top-judge/503273.aspx
Also Legal Studies for Queensland Vol One Ch 9.5 pp190-196.
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Posted in Crime and Society, The Legal System at 3:23 pm by admin
Consider the facts in the case of Harvey v Police [2009] SASC 302
Harvey was in a friend’s Fiesta car and his friend drove in a petrol station. Harvey had his seat belt fastened in the passenger seat of this manual car which was stationary at a petrol station. The friend went in the shop to pay for the petrol and left his keys in the ignition. Harvey reached across and attempted to turn keys to “accessories” position in order to operate the radio but accidentally turned key to “ignition” position, activating the starter motor. The engine cranked over but did not start but the car lurched forward, as it was in gear, and rolled towards the service station building. He moved the steering wheel to avoid hitting the building but was unsuccessful.
Harvey was charged with several offences [driving a vehicle while he had present in his blood the prescribed concentration of alcohol; driving a vehicle while he was disqualified from holding a licence; driving an unregistered vehicle; and driving an uninsured vehicle.
Each offence had the driving of a motor vehicle as a key element. The magistrate found that appellant had driven the motor vehicle and guilty of all four offences.
Harvey appealed to the Supreme Court of South Australia. (hereafter he is the appellant)
Justice White considered definitions on the meaning of ‘drive’ and notes that ‘drive includes be in control of’ and reviewed a range of cases where the meaning of ‘drive’ was in issue. On the facts at hand His Honour found that:
- “In the present circumstances, the appellant was exercising some control. It was his action in turning the ignition key one notch further than he intended which caused the Fiesta to move. Once it started moving, he attempted to control the direction of its travel by his movement of the steering wheel. In addition, if the appellant had wished to do so, he could have applied the handbrake. He said that he did not do so because of panic. In some of the cases reviewed above, even less control than that exercised by, or open to, the appellant in this case has been sufficient to amount to the driving of a vehicle.
- On the other hand, the appellant remained seat-belted in the passenger seat at all times. He could not operate the clutch, footbrake or accelerator and could not have changed gear. In addition, it would have been difficult for him to operate the other controls available to a driver of the Fiesta such as the indicator, lights or warning device. The engine of the car had not started and it moved only some five metres. In these circumstances it does not seem apt, using the ordinary meaning of the word “drive”, to describe the appellant as the driver of the Fiesta. It would be more natural to regard him as having interfered with the driving of the vehicle during the friend’s temporary absence from the vehicle…….
I do not consider that it can be concluded, beyond all reasonable doubt, that the appellant was a driver of the Fiesta. In my respectful opinion, the decision of the Magistrate was wrong.
- Accordingly, I will allow the appeal and set aside the convictions entered on 22 June 2009 and sentences imposed by the Magistrate on 24 June 2009.
I direct verdicts of acquittal on each of the charges.”
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Posted in Law in a Changing Society, The Legal System at 3:19 pm by admin
From January 2010 judges in the Supreme and District Courts of Western Australia will cease to wear wigs. Lawyers appearing before the court will also not be required to wear wigs.
The New Lawyer reports, that the Chief Justice explained that the Courts were vibrant, contemporary Australian institutions, and the changes reflected that fact:
“I have publicly stated since my appointment that I did not believe the wearing of traditional European court attire was appropriate in Western Australia in the 21st century,” he said.
Time will tell if the courts on Queensland follow suit.
For the report in The New Lawyer see:
http://www.thenewlawyer.com.au/article/Judges-to-lose-wigs/504994.aspx
See Legal Studies for Queensland Vol One 6.6 pp121
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Posted in Crime and Society, International Law, Law in a Changing Society, Uncategorized at 3:15 pm by admin
At various times, advocates for the return of capital punishment gain traction in public debate and in the media. However, a bill introduced on 19th November 2009 in the federal parliament will when enacted prohibit Australian states and territories from ever re-introducing the death penalty. Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009 (Cth).
Whilst the death penalty will never again be an option for Australian states, it continues to operate in many countries particularly in Asia, the Middle East, and USA. 90% of the world’s execution occur in Asia where there is popular support, in particular in China, Indonesia, and Singapore for its retention
See Legal Studies for Queensland Vol One 10.5 p230 and Legal Studies for Queensland Vol Two, Capital Punishment..
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Posted in Crime and Society, Technology at 3:12 pm by admin
A woman who is is being tried for the murder of her partner googled the internet to search “pre-meditated + murder + penalties” shortly before he was found strangled in a lounge chair in their home west of Brisbane. This is relevant inofrmation to establishing whether she had the required intention to kill or do GBH – the mental element required under s302 QCC.
This was reported in the Brisbane News at http://www.brisbanetimes.com.au/national/grandmother-googled-murder-penalties-before-expartners-death-court-20091125-jqzy.html?sms_ss=email
For information on murder see: Legal Studies for Queensland Vol 1 7:3 pp131-134.
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