Archive for The Legal System
07.15.10
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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02.21.10
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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02.14.10
Posted in Crime and Society, International Law, The Legal System at 6:56 pm by admin
Seven months after being arrested Stern Hu, an Australian business man with Rio Tinto, one of Australia’s largest mining companies, has been officially charged with criminal offences. He was born in China but became an Australian citizen in 1994.
On July 5, 2009 along with three other Chinese colleagues of Rio Tinto he was detained ( in prison) by the Chinese government for suspected bribery and espionage. All four now have been charged with bribery and stealing commercial secrets. Chinese law provides for a maximum penalty of seven years’ jail and a fine for stealing commercial secrets, and more than five years’ jail for bribery.
Australian consular officials have been allowed to visit him once a month, meeting Hu for up to an hour, albeit in the presence of Chinese officials. Under Chinese law he cannot see his wife, children or family. Months had passed before he received any legal advice.
The case highlights the very different legal system that operates in China, which is a socialist, inquisitorial system. No system is perfect and there are strengths and weaknesses in both approaches.
In chapter 9 of Legal Studies for Queensland the procedure of going to trial in Queensland is set out. This is very similar to what occurs in other common law countries. However, the system in the People’s Republic of China, as in some other civil law and socialist systems, is quite different. Some of these are listed below.
§ A person does not have to be brought before the court and charged ‘as soon as is reasonably practicable’ which in Queensland is usually within a 24 hour period. As in the Hu case, the pre-trial period without charge can be lengthy.
§ There is no presumption that a person will be given bail whilst awaiting trial. It is rarely granted.
§ There is a legal duty on defendants to answer questions.
§ Legal counsel is not mandatory but usually will be provided.
§ There are no jury trials. A panel of three judges oversees both the trial and the prior investigation by police and prosecutors. The lengthy supervised pre-trial period is to weed out weak cases.
§ This results in a very high conviction rate – around 98% of criminal cases that come to trial end in a guilty verdict.
§ As there are no juries the rules of evidence are different from Australia and confessional evidence is very important.
§ A defendant has only one opportunity to appeal a conviction or sentence ie limited right of review by a higher tribunal.
§ The state procurators, victims and their lawyers are also given the same right of one appeal even if the panel of judges has acquitted the accused.
§ China has retained the death penalty for a range of criminal offences, including economic, political, and environmental crimes as well as drug and offences against the person. The People’s Supreme Court reviews all death penalty cases before execution is carried out.
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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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11.26.09
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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