Archive for News
02.24.10
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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02.19.10
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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02.14.10
Posted in Agreements, Family, Law in a Changing Society, News at 7:57 pm by admin
Queensland’s controversial surrogacy bill was passed on12th February 2010 by 45 votes to 36. Two Labor MPs crossed the floor to vote against the Bligh Government. Until this time, a contract for surrogacy had been unlawful in this state.
Surrogacy means substitute, and in this context the term is used for a substitute birth mother. Surrogacy is when a woman agrees to become pregnant and carry to term and deliver a baby for another party or parties. (known as gestational carrying)There are a range of ways this can occur including intercourse, artifical insemination or implanting an embryo. This may be done for altruistic reasons or for a sum of money (commercial surrogacy) which may be done through an agency. Given that altruistic surrogacy is now lawful in Queensland there will typically be a surrogacy contract drawn up. Surrogacy is an option when there are medical or other reasons for why a person cannot have a child in the natural way, for example, infertility, a medical condition that makes pregnancy risky for a woman, a desire to have a child but not go through a pregnancy, same sex couples and single people.
Debating this issue has been legally and morally difficult for many members of our Parliament .
Legally the presumption has been that a woman who gives birth to a child is the baby’s mother. In surrogacy, the mother is not the one who gives birth but the person who has acquired legal rights to the baby once born. So the law in Queensland will be changed so that the person or persons who contacted the surrogate birth are the baby’s legal parents.
Morally there are difficulties too. Some members of the Queensland Parliament believe that ideally children need parents of both sex and were morally concerned with babies being available through surrogacy to same-sex couples or to single men or women. Others felt it was discriminatory to exclude anyone from being a parent – essentially all people have a right to have a child to raise as their own and that Medicare payment should be equally available.
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Posted in Crime and Society, News at 5:04 pm by admin
Background:
In October 2003 Tina, and her new husband Gabe Watson, both from the American state of Alabama were on the 12th day of their honeymoon in Australia. Both were diving on the Great Barrier Reef when she died. Gabe Watson was an experienced diver and a certified rescue diver. His wife, a novice diver, experienced difficulty with her breathing apparatus on that day she died. He testified that his wife got caught in a current and panicked. He said he went to help but she tried to rip his mask off, and that he was unable to bring her to the surface. She sank to the bottom of the ocean. Video footage and photographs taken by other divers on the trip show her holding out her arms for him to help her. Gabe Watson argued that instead of going to her aid thought it better to return to the surface to get assistance from others. Another diver went to the ocean floor and brought up her body but she could not be resuscitated.
After an inquest and investigation in 2007, the Queensland coroner determined there was enough evidence to charge Watson with murder. This was because there were inconsistencies in his story – a total of 16 – and because of eyewitness evidence that he held his wife in a bear hug for a short period before she sank in an uncontrolled manner. Thus it was possible that Gabe Watson cut off her air supply from her oxygen cylinder during that time, bear-hugged her until she suffocated, then turned it back on the oxygen before he let go of her. This allowed him to surface whilst she sunk to the bottom of ocean. He argued he panicked.
Before the honeymoon, Gabe Watson asked Tina to increase her group life insurance to the maximum and name him as the sole beneficiary for her work insurance policy. This was seen as a possible motive for killing his wife, and he did contact the insurance company shortly after her death. He re-married.
Although Watson faced a murder trial in 2009, Queensland prosecutors did a plea deal which accepted a guilty plea from Watson to the lesser charge of manslaughter. [That means there was no trial – he pleaded guilty to the lesser charge and then was sentenced]. The court in sentencing him accepted that as an experienced rescue diver, he had breached his duty to his wife Tina but that there was no intention to kill or to do her any grievous bodily harm. Gabe Watson was sentenced to four-and-a-half years’ jail in June, to be suspended after 12 months. [See Legal Studies for Queensland Vol 1 10.5 pp 228-229] Many were concerned that he would serve only a year in prison. The leniency of the sentence for the unlawful killing of his wife was appealed by the Attorney–General of Queensland and was increased to 18 months. [Re criminal appeals see Legal Studies for Queensland Vol 1 9.9 p208] He is due for release this year.
Gabe Watson will have served his time in prison and that should be the end of the matter. He is not an Australian citizen and would not have a valid visa beyond his prison term. Hence, it is likely he will be transferred to an immigration detention centre until he can be put on a plane to either America or another country that will offer him a ‘safe haven’.
The family and friends of Tina Watson in her home state of Alabama remain unhappy with the outcome. They argue that only a jury trial for murder could determine his guilt or innocence. Her father said: “He should have gone to trial for murder before a jury. Had that happened I am confident that the judicial process in Australia would have worked.” [See Legal Studies for Queensland Vol 1 9.5 pp 190 –196 on the pros and cons of jury trials]
Currently
The Attorney-general’s department in Alabama commenced its own investigation into the death building a case against Watson that the death of his first wife, Tina, on the Great Barrier Reef was pre-mediated. They say they have evidence that he plotted and planned Tina’s murder. They want him on release from prison here to be extradited to Alabama to stand trial for first degree murder – despite the Queensland conviction for manslaughter. Alabama authorities have requested Watson’s case file from Queensland police in a bid to try him for murder and have indicated they will seek the death penalty. They have criticised the Queensland government for not providing necessary information. Their Attorney-General said: “If an Australian’s loved one was (killed) in Alabama, we’d be co-operating so fast their heads would spin.”
Death Penalty:
Australia does not have the death penalty for any offences. Alabama has the death penalty as a sentencing option for first degree (pre-mediated) murder. Extradition is a federal, not State, matter. Under Australian federal laws, the Extradition Act (Cth) 1988 prevents a minister from surrendering a person to be prosecuted for an offence that carries the death penalty. Hence, the only circumstances where Watson is likely to be sent back to the US is if there is an undertaking that the death penalty won’t be imposed or, if it is imposed, it will not be carried out.
See s22 (c) Extradition Act (Cth) 1988.
Is this double jeopardy?
Under the Queensland Criminal Code murder and manslaughter are alternative verdicts. Hence in Australia Watson cannot be tried a second time for a crime for which he had already been in jeopardy and punished as this double jeopardy. [On double jeopardy see Legal Studies for Queensland Vol 1 9.9 pp 208-212] However, Alabama lawyers argue that there is no “international standard” on double jeopardy, and that it is would not be prosecuting someone twice for the same offence, especially as Watson didn’t plead guilty to murder and was never tried for that offence before a jury.
Section 7 of the Extradition Act (Cth) 1988 states that there is an objection to extradition where: the person has been acquitted or pardoned by a competent tribunal or authority in the extradition country or Australia, or has undergone the punishment provided by the law of that country or Australia, in respect of the extradition offence or another offence constituted by the same conduct as constitutes the extradition offence.
The case of Gabe Watson remains one to watch.
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12.08.09
Posted in Crime and Society, News, The Legal System at 10:26 am by admin
In responding to the recommendations of Moynihan Report a bill was submitted to Queensland’s parliament on 24th November with the expressed aim of modernising Queensland’s civil and criminal justice system. The existing law is set out in Legal Studies for Queensland Chapter 9 – Going to Trial – pp180 216. However, if this bill becomes law, there will be some changes as part of the modernisation process.
Proposed changes include:
§ extending the general criminal jurisdiction of the District Court for indictable offences from a maximum penalty of 14 years’ imprisonment or less, to those with a maximum of 20 years or less
§ abolishing committal hearings,
§ abolishing defendant’s elections for summary trial,
§ requiring a range of indictable offences to be tried summarily, including, stealing, receiving stolen property, fraud, forgery, wilful damage, certain burglaries, dangerous driving and escaping from lawful custody.
§ changes to bail
§ extending the time limits for prosecution of a simple offence.
For more information see:
Media Release by the Attorney-General, Mr Cameron Dick.
http://statements.cabinet.qld.gov.au/MMS/StatementDisplaySingle.aspx?id=67572
Civil and Criminal Jurisdiction Reform and Modernisation Amendment Bill 2009
http://www.parliament.qld.gov.au/view/legislativeAssembly/tableOffice/documents/TabledPapers/2009/5309T1476.pdf
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12.02.09
Posted in News, The Legal System at 7:33 pm by admin
Today, the 2nd of December, 2009, the Senate did not pass the government’s ETS (Emissions Trading Scheme) bill. The Liberal Party, the Greens and the two independents in the Senate, Steven Fielding and Nick Xenaphon, rejected the bill. This was the second rejection of the ETS legislation. It gives the government the option, or the trigger, for a double dissolution of Parliament, if they so wish.
What this means is that in a bicameral system of Parliament (two Houses) it does happen on occasions that a deadlock arises in which the Senate rejects legislation successfully passed in the House of Representatives. Our founding fathers recognised this may occur from time to time and provided a mechanism for resolving such deadlocks, if and when, they arise. The mechanism is laid down in s57 of the Constitution.
S57 is a complex section and requires the following
· House of Representatives has passed bill
· The Senate votes to reject the bill
· An interval of three months must elapse
· After this time the House of Representatives passes bill again
· The Senate again rejects the bill.
· Prime Minister may advise Governor-General to dissolve both houses
· A general election for the Senate and the House of Representatives is held.
· If the House of Representatives again passes bill for the third time and the Senate rejects the bill for the third time
· Then a Joint Sitting of both houses occurs to resolve the disagreement. An absolute majority of the total numbers of members of Parliament either passed or rejects the bill.
· If passed by the majority of both houses the bill becomes law with the assent of the Governor General. If it is rejected, then it does not become law.
There have been six double dissolutions in the history of the Australian Parliament: 1914, 1951, 1974, 1975, 1983, 1987 with mixed results. The government can and they have lost in double dissolution elections (three out of the six) so it is always a risky strategy. But from the perspective of Constitutional law and politics it is always interesting.
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08.22.09
Posted in Crime and Society, Law in a Changing Society, News at 9:56 am by admin
The termination of pregnancy is unlawful (s224 -s226) in Queensland unless the defence in s282 applies.
s282 states:
A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for the patient’s benefit, or upon an unborn child for the preservation of the mother’s life, if the performance of the operation is reasonable, having regard to the patient’s state at the time and to all circumstances of the case.
However, the controversial drug RU486 is being increasingly used for abortions. The question whether drug-induced or medical terminations should be lawful has been raised as s282 specifically applies to surgical operation. Doctors in two Queensland’s hospitals have stopped performing drug-induced abortions until the law is changed.
Individuals using RU486 have been charged with the offence of illegally procuring an abortion.
The government has indicated that s282 will be amended. The Premier said: “What we are looking at is where a doctor provides medicine that is authorised for any purpose, that they should be entitled to the same protection already provided under the Criminal Code for any authorised surgery, whether it is in relation to termination of pregnancy or indeed any other surgery” .
See the article by Jamie Walker in The Weekend Australian August 22-23
at http://www.theaustralian.news.com.au/story/0,25197,25964134-23289,00.html
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07.24.09
Posted in News at 5:39 pm by admin
Looking forward to seeing you at the:
Queensland Law Society Legal Educator’s Conference on Thursday 30 July 2009 at the Mecure Hotel in Brisbane and
Click here for more details.
BEAQ Conference on Saturday 1 August 2009 at the Brisbane Convention Centre.
Click here for more details.
Our authors will be there to meet you and answer your questions.
Our guest contributor, Peter Black from QUT will be speaking on new technologies on Thursday 11-12pm at the Law Society’s Conference.
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06.30.09
Posted in News at 4:00 pm by admin
Our “Legal Studies for Queensland” blog went online today. Visit us regularly for the latest news regarding our educational resources developed specifically for teachers and students of the subject of Queensland Senior Legal Studies
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