The Queensland Government passed laws in May 2019, expanding the legal definition of murder so that it includes reckless indifference to human life.
The laws were introduced following controversial manslaughter cases in Queensland. Many unlawful child killings in Queensland have previously resulted in the offender being convicted of manslaughter rather than murder.
Why? The main difference between murder and manslaughter is the element of intent. The Prosecution must prove beyond a reasonable doubt, that the offender intended to kill the victim.
The decision of R v Moloney [1985] AC 905 held that the mental element in murder consists of an intention to kill or cause really serious injury – not merely foresight that death or serious injury will be a probable consequence. Therefore, if an unlawful killing occurs and the mental element is not proven, the offender will be guilty of manslaughter, per s 303(1) of the Criminal Code (Qld) 1899.
Hemi Goodwin-Burke was only 18 months old when he was “crushed like a coke can” by his babysitter. However, because intent could not be proven, the murder charge was downgraded to manslaughter. Hemi’s babysitter was sentenced to only eight and a half years imprisonment. He was eligible for parole after serving only 4 years.
Under the expanded definition, “death is caused by an act done, or omission made, with reckless indifference to human life”. An unlawful killing in that circumstance is known as murder by reckless indifference. The new laws mean that intent will no longer need to be proved for murder by reckless indifference and the offender will be facing murder’s mandatory life imprisonment penalty
The first offender charged under this new law was Kerri-Ann Conley. She was charged with two counts of murder after she left her one and two-year-old daughters inside a black station wagon at their home in Logan. Her daughters were declared dead at the scene – cause of death was exposure to extreme heat.
Willow Dunn’s father will be the second offender charged. The allegations emerging of reckless indifference suffered by Willow are too despicable to list.
Hemi’s parent’s believe the new laws are too long coming for justice to be served on Hemi’s babysitter, however the laws are a step in the right direction for other families who want justice for their vulnerable children.
In a controversial move, Senator Pauline Hanson, the leader of the One Nation party is threatening to take legal action against the Queensland government. Senator Hanson has imposed a deadline of Thursday 28 May 2020 on the Queensland Government to lift the border restrictions or face a constitutional challenge of the closures in the High Court.
The High Court challenge has not yet been filed, however Queensland law firm Mahoneys alongside New South Wales Barrister Guy Reynolds SC are expected to appear on behalf of a group of Queensland residents who have been affected by the ban.
There has been a GoFundMe page set up by Senator Hanson to raise money for the challenge. The page has a goal of raising 1 million dollars, as of midday 27 May 2020 the page has raised close to nine thousand dollars.
The letter was written to the Government requesting to revoke the border ban by 4:00pm Thursday 28 May 2020. The letter goes on to say “If you do not give that undertaking, and you do not otherwise satisfy us that the border ban is valid, we expect to receive instructions to commence proceedings in the High Court of Australia seeking a declaration that the border ban is invalid.”
In an interview Senator Hanson stated that 900 people died of the flu last year, no borders were closed as a result of death from the flu why should COVID-19 be any different. Senator Hanson referred to COVID-19 as a “virus we have to live with”, essentially going on to say if you are in the high risk category to stay home and focus on your own health so the rest of us can get back to life.
Senator Hanson has been leading the charge in Queensland tourism and jobs, stating the ban is “destroying” businesses, the tourism industry and economy in general.
The last statement by the Queensland Government emphasises the importance of taking “gradual and measured steps” and said they will not be bullied or lectured by a State with the highest number of cases in Australia.
Constitutional Challenge
The Constitutional challenge referred to by Senator Hanson is under Section 92 of the Constitution which deals with trade and movement of people between states.
Section 92 of the Constitution states:
Trade within the Commonwealth to be free
On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.
But notwithstanding anything in this Constitution, goods imported before the imposition of uniform duties of customs into any State, or into any Colony which, whilst the goods remain therein, becomes a State, shall, on thence passing into another State within two years after the imposition of such duties, be liable to any duty chargeable on the importation of such goods into the Commonwealth, less any duty paid in respect of the goods on their importation.
Constitutional law professor Nicholas Aroney has stated that the High Court would ultimately need to determine whether closing the borders and restricting the movement of people was a ‘proportionate response’.
Public health is a legitimate objective to border closures therefore the question to be determined is the proportionality of the borders remaining closed.
As the number of cases plummets the case for keeping borders closed will weaken.
In Western Australia, South Australia and the Northern Territory borders also remain closed.
What are your thoughts?
A vast majority of our casual employees are not eligible for the JobKeeper program. The people effected are those people who make our coffee in the morning, the saints that pour our beers at the local watering hole and those that cook our chicken parmis just right.
Why? Because they were not working for a full 12-months with their employer before the COVID-19 pandemic hit. Despite being casual employees, these people often work full time hours. Yes, they get paid a higher hourly rate than equivalent full-time or part-time employers- but they do not have the same security as full-time or part-time employees.
Right now, your favourite barista, who worked a 38-hour week, every week, for the past 9 months, is out of work and not eligible for the $750 per week JobKeeper benefit. Yet, their colleague, who was employed as a part-time employee, who only worked 10 hours a week, earning $200 a week, is now receiving $750 per week through the JobKeeper program.
Not fair, right?
To give our casual workers security going forward, the Federal Court on Wednesday ruled in the decision of WorkPac v Skene ruling in 2018 that casual employees, working regular and systematic hours with “predictable periods of working time” are entitled to annual leave, sick leave and other entitlements full-time employees get.
Before you get too excited for the important coffee brewing, beer pouring, parmi making people in your life, the Federal Government is considering appealing the decision. Why? Because it is estimated that the effect of the judgment could cost businesses $8 billion.
However, we agree with the President of Construction, Forestry, Mining and Energy Union, Tony Maher: – “Employers must now stop with the nonsense that calling a worker a casual makes them so. When a job is full-time, regular and ongoing, it is permanent and deserves the security and entitlements that come with permanent work.”
The decision on Wednesday might just force our business to provide our important casual workers the luxury of security by offering them an equivalent full-time or part-time position.
The Gold Coast man, Django who has been hailed a hero by onlookers and social media, is at risk of hefty financial penalty for interfering with shark control nets
Django was just off the Burleigh Heads coast when he saw the whale calf and was in awe before realising it was stuck in a net. He said he took off his shirt, chucked on his flippers and dived in with his knife to free the whale from the net which was cutting into its flesh.
The whale had been in distress for approximately 2 hours before the experienced diver spotted it in his tinny.
The whale was initially spotted at approximately 7am by a drone operator and a crew from the Department of Agriculture and Fisheries were notified, only arriving at the scene at 9:45am.
It is understood that crews from Seaworld were nearby in the water however were on standby due to a communication issue with the Department.
By the time officials attended Django had already released the whale from the nets.
Django was then intercepted by staff from Queensland Fisheries as he came to shore. Django said “yeah, I’m in trouble. I wasn’t going out there to see whale. It was an expensive day but whatever… you pay the price sometimes”. Django said “I got him just enough out of the rope so it could just break free… it was really cut up”.
Queensland Fisheries have since confirmed they are investigating Django but have stated no fine has been issued.
Fisheries Minister, Mark Furner made a controversial statement that the rescue was incredibly risky and “is dangerous without equipment. We have unfortunately seen the loss of life when people have themselves become entangled in this equipment… it will be up to the department to consider whether this gentleman will be prosecuted.”
This despicable move by Queensland fisheries has had minimal support and shows the Fisheries primary focus of protecting their equipment rather than the wildlife itself.
Sea Shepherd campaigner Jonathan Clark has released a statement saying the Django’s actions were brave and is calling on the government to remove the nets as the whales head north for annual migration to warmer waters.
Subsequently locals have rallied around him and started a GoFundMe page to cover his costs, with over 200 people already donating over $3,500 as of 20 May 2020.
We say enough is enough, prosecutions should not follow the rescuers brave actions.
What are your thoughts?
https://www.youtube.com/watch?v=Ne_BoNudtj4 – video link
COVID-19 and Deaths on our Roads
The death rate on our roads is down an average 25% because of the Covid-19 lockdowns. The lockdowns have meant less cars on the road. The COVID-19 pandemic has no doubt had an enormous impact, both socially and economically, on the Australian community and on the world. It’s arguable however that there are some areas of life that the pandemic has actually improved. One area in particular is that of Transport, Traffic and the encompassing death toll from road accidents each year caused by our increasing traffic on our roads.
The death toll on our roads has been increasing with the increasing volume or vehicles on our roads over the years. This is a crisis that we are continuing to fight everyday and the aim of the government is to aim for zero deaths on our roads. This crisis of the road toll injuries and deaths causes suffering, loss and economic hardship to countless numbers within our communities.
Currently, due to community lock downs and restrictions caused by COVID19, the majority of us are enjoying the lack of traffic on the roads, being able to reach our destinations in good time, waiting at red lights less frequently and not being stuck in a red sea of bumper lights trying to get home from work. The air is cleaner, the petrol prices have dropped. Most importantly, there have been less accidents on the road and therefore, less deaths.
Eventually, we will return to ‘life as usual’. Traffic will increase, petrol will go up in price and if we aren’t careful, things will return to normal with the death and injury toll due to road exposure increasing. The question is, will we learn anything from our experience during COVID19?
Some lessons for consideration after COVID-19 has passed:
1. Reducing the number of vehicles on the road ultimately reduces road fatality
Whilst lockdowns have had some negative impacts, the result of them has also led to less cars on the road and therefore less people being exposed to the possibility of injury and fatality. When life returns to “normal”, our exposure to road injury and fatality increases by our accessibility to the road. This brings into focus the value of exposure reduction as a proactive intervention to road safety. Previously, we have not addressed the concept of trying to reduce the actual number of cars on the road because we focused so narrowly on the road transport system itself when discussing safety i.e increasing road rules etc.
2. Reducing exposure to the road helps our community
We have had a taste of the community benefits already. Long-term, by reducing our exposure to the roads, we could in theory have cleaner air, less green-house gas emissions, less noise, cheaper fuel prices, less air pollution, less traffic, less road works and expense to tax payer funds, greater opportunities for transport to build in our communities.
3. Reducing the number of cars on the road helps us restructure our working lives
The pandemic has forced most of us to work and study from home where possible. Ever advancing internet connections and online capabilities have made this easier than ever with online conferences, classes, video links etc making the need for “face to face” interaction less essential. For many, working from home has proven to be more effective than expected, and has provided us a way to rethink our business models and society work operations. It has now easier than ever to imagine a society where you work from home 2-3 days a week and only attend the work place for face-to-face meetings on a needs basis. That leaves us with the remaining jobs and personnel that must be on the road frequently in order to complete their work and working from home is not an option. By staying home, those of us that can work from home will provide these essential road users safer access to transport, less traffic and congested roads all by limiting unnecessary exposure to the road.
4. Reducing the number of people on the road assists Police and Law Enforcement
The main cause of road fatalities are; Speeding, Drugs and Alcohol, Fatigue, Seatbelts and Mobile phones / Distractions (Called the “Fatal 5”). All of these five factors are easily prevented and within human control. The human element is the problem though. If there was a decrease in the number of vehicles on the road then in theory, Police and law enforcement would be more able to single out those acting dangerously on our roads. There would be greater capacity to conduct licence checks and more time and capability to conduct random breath testing.
5. Reducing road exposure could help support our public transport system
In Australia, we pay some of the most expensive rates for public transport than anywhere else in the world. There could be many reasons for this including our dependence on private vehicles to get us from A to B. If we were able to reduce the amount of exposure of private vehicles on the road, our public transport systems would be better supported and in turn, prices may reduce for everyone catching public transport.
The impacts of COVID19 will not last forever however the lessons we learn from this pandemic can. With restrictions being slowly lifted, we have a choice as to whether we are going to see a rise in the road death toll again. What we do know is that with less vehicles on the road, there are less fatalities.
Here are some interesting charts –
Road Fatalities – Deaths per 100,000 population (Country)
\
Interstate NRL players who have refused to be vaccinated against the flu, have been banned from playing in Queensland- and their reaction to this announcement is a jab at our front-line workers.
Last year, Australia experienced its worst flu season on record. Some 310 000 people presented themselves to hospitals and health services nationwide. This figure is seven times greater than Australia’s previous 18-year average and our health care system is still recovering from the repercussions.
There are many factors that contributed to the seven-fold increase, however medical professionals have attributed the unusually high rate of deaths and infections due the drop in the rate of adults who line up for their annual flu shot.
Our medical professionals are already working tirelessly to stay one step ahead COVID-19. To ease the burden, our entire community has been placed under Government mandated restrictions.
So far it has been going well. Australia alongside New Zealand has been paving the way in pandemic prevention.
However, in order to prevent the second wave of the COVID-19 coinciding with the flu season, we are being asked to please line up for our flu shot. This is not an unusual request.
For years, our Government have implemented strict No Jab No Pay policies regarding our children and childcare services. Our medical professionals, front-line workers and aged care service providers are also required to be immunized for the greater good of our community.
Being young, fit and healthy our NRL players are not being asked to vaccinate for their personal benefit. They’re being asked to vaccinate for the benefit of our vulnerable, our healthcare system and our community.
Who is Jackie Trad?
Jackie Trad is the current sitting Member of South Brisbane and up until recently was the Queensland’s Deputy Premier and Treasurer of Queensland from 2015 to 2020.
Crime and Corruption Commission
The Crime and Corruption Commission is an independent statutory body which is formulated to reduce the incidence of major crime and corruption in the public sector in Queensland.
The CCC investigate crime and corruption and have oversight of the public sector including Police and protected witnesses.
Between 1 July 2019 and 31 December 2019 there have been 55 people charged with 197 criminal offences, 1,620 corruption complaints received and $5,379,000.00 proceeds of crime confiscated due to the CCC’s involvement.
The CCC conduct investigations and hold special powers under the Crime and Corruption Act 2001 and the Police Powers and Responsibilities Act 2000.
Under the Crime and Corruption Act 2001, there are two types of corrupt conduct, Type A and Type B.
Type A corrupt conduct involves conduct that affects, or could affect, a public officer. Examples of Type A corrupt conduct include fraud and theft, extortion, unauthorised release of information, obtaining or offering a secret commission and nepotism.
Type B corrupt conduct involves specific types of conduct that impairs, or could impair, public confidence in public administration. Examples of Type B corrupt conduct include fraud relating to an application for a permit or licence, dishonesty obtaining public funds or State assets and evasion of State tax.
But why?
On 9 May 2020 the CCC released a short statement indicating it is in the public interest to investigate allegation of corrupt conduct relating to the principal of the Inner-City South State Secondary College.
Specifically, the formal investigation relates to the recruitment and selection process for the principal of the College and whether or not there was any interference in the process by Jackie.
Did Jackie Trad have to resign?
No, Premier Annastacia Palaszczuk announced the resignation and stated Jackie had “made the decision in the best interests of her family, the community and the party. She does not want there to be any distraction for the government as we respond to the COVID crisis, and where the government must be focused on recovery and jobs.”
This is Jackie’s second investigation in relation to her conduct within 12 months, previously she was investigated and cleared in relation to allegations of corruption over the purchase of a $700,000.00 investment property.
Possible Repercussions
The CCC investigates and makes recommendations about what should happen to the public official or body.
The CCC cannot find a public servant guilty of a crime or discipline them for misconduct. The CCC can simply recommend that the public servant be prosecuted for a crime or for the public official’s employer to discipline them.
In 2005 / 2006 the CCC (then called the Crime and Misconduct Commission) investigated the then Serving Health Minister Gordon Nuttall who was later charged with Corruption offences and sentenced to 7 years jail.
Well the world has been turned upside down in the last couple of months and everyone has had to very quickly learn to adapt to changes in their personal, social and work lives. We are so fortunate in Australia to have avoided the sad and tragic circumstances that we are seeing overseas. Our prayers and thoughts go out to the family and friends of the victims of this wicked virus. The year 2020 will most certainly be remembered and recorded in the history books as a very dark year indeed. Working through this Covid-19 Era has thrown up so many challenges for business and practice alike. Simply doing business is challenging in itself, but doing it successfully is a whole other ball game.
Events unfolded very quickly in March 2020. On Wednesday 8th March the first rumblings were heard amongst the legal fraternity in Queensland when Practice Direction 2 of 2020 was issued by the Chief Magistrate. Three days later the World Health Organisation (WHO) officially declared the virus a pandemic. Public safety quickly consumed and dominated the media cycle. On Friday 27th March 2020 a blow was struck amongst practitioners as a result of the release of Practice Direction 3 of 2020.
Whilst the direction was necessary, it effectively stopped most of the practitioners work in the Magistrates Court, effectively putting a halt on income. Most firms have high overheads just to keep the doors open, and much sleep was lost over the following days trying to navigate a way through these uncharted waters. Thankfully the Federal Government announced the JobKeeper program which meant that large numbers of people didn’t lose their jobs. In early April the practice Directions were amended allowing a lot more work to be done in the Magistrates Court. The court is now utilising technology to allow practitioners and clients to ‘appear’ remotely.
So, how are practitioners practically dealing with the strange new practice of appearing remotely in court?
Traditionally, a Criminal Lawyer will have a face to face initial consult with their client in their office, mapping out the path to deal with the police charge. These meetings are so important and allow the practitioner the opportunity to assess the capacity of the client, their actual understanding of the matter, and develop an insight into the client so that comprehensive instructions can be obtained. There will of course usually be preliminary court appearances and adjournments requiring the Solicitor to appear in court with or without their client. There will typically be subsequent face to face conferences with their client, and then the final court appearance in court at either a sentence or a trial.
On all of these occasions the lawyer will be in their traditional ‘uniform’ donned in a suit and their polished shoes. They look and act the part and display a professional persona which instils confidence in the client. The art of advocacy is a refined skill and the reading of subtle cues from the bench often defines the way in which the submission is delivered. There is so much more to communication other than just the spoken word.
With the recent Covid changes, the practitioner does not have the benefit of these interpersonal experiences which is so important in the work that we do. Times have clearly changed with the introduction of the Courts Practice Directions together with Social Distancing necessities, and we as practitioners must adapt. Many lawyers are now not meeting clients face to face and are obtaining instructions electronically (via the telephone or on videolink platforms such as Skype or Zoom). Court matters are conducted remotely with the client and Solicitor separately telephoning the court to appear remotely. The Solicitor is probably conducting the appearance in their home office or at their kitchen table, and probably in a T-shirt and shorts – and certainly not in their polished shoes. The client loses that psychological benefit of having a confident and well dressed lawyer standing next to them in court.
A plea of guilty is conducted remotely with all of the prosecution and defence material exchanged and provided to the court in advance of the appearance. Submissions are made over the telephone, with the practitioner often having an image in their mind of appearing physically in court – just to maintain their sense of perspective and reality. Those subtle cues are absent and sometimes replaced with pregnant pauses from all parties over the telephone.
But if conducted correctly, the substance and persuasiveness of the plea is not lost, and there is no nett detriment to the client. The technology clearly exists to allow for electronic appearances, it is working now, but will it continue to work post Covid-19? Is it appropriate for it to continue post Covid-19? No doubt there will be developments in the technology which will enhance the procedures. Will virtual appearances become the new norm? Things will return in some way to the way that they were, but how quickly and to what extent – well, only time will tell.
The QLS offer a fantastic support to all members through the Lawcare program which can be accessed through the QLS website. Lifeline also offers emergency support on 131 114. Stay safe and look after each other.
Brooke Winter
Brooke is a Criminal Lawyer on the Gold Coast and manages the practice Brooke Winter Solicitors
COVID-19 and Prisons: Are Governments Doing Enough to Protect Prisoners?
Earlier this week, National Cabinet agreed on a set of national guidelines to deal with the risk of COVID-19 spreading in prisons.
The states and territories agreed to provide personal protective equipment to prisoners as a priority, but only when more supplies are available and only if COVID-19 is found in prisons. National Cabinet also decided to create “safe travel plans” to help Indigenous prisoners return safely to their communities upon release from jail.
However, some advocates are arguing that keeping people in prison during the coronavirus pandemic is like sentencing them to death.
Debbie Kilroy from Sisters Inside, a prisoner advocacy group, has warned that there will inevitably be an outbreak in a prison, and it will have serious consequences. Prison staff are coming and going from prisons and, she argues, if a staff member brings the virus into a prison, it will spread in the same way that it has spread on cruise ships.
Ms Kilroy has said that prisoners are concerned for their welfare. She says they are lacking essentials such as soap to protect themselves from COVID-19 and argues that National Cabinet’s guidelines are “window dressing” and not enough is being done to protect the health of prisoners.
Corrections authorities have a duty of care to prisoners and staff
The Supreme Court of Victoria recently found that Corrections were not fulfilling their duty of care to prisoners. Authorities had failed to observe some hygiene guidelines to reduce the risk of prisoners contracting COVID-19.
Correctional officers are also at risk if there is an outbreak among prisoners and there are concerns that they are not being provided with enough personal protective equipment.
What could be done to address these concerns?
There have been calls for more personal protective equipment to be supplied to prisons.
Ms Kilroy wants independent boards to be established and provided with the ability to release some prisoners for the duration of the pandemic.
Dr Thalia Anthony from the University of Technology Sydney suggests that prisoners could be released into home detention or hotel rooms.
Dr Anthony notes that in New South Wales, laws have been passed in response to the pandemic to allow for the release of prisoners and reduce overcrowding. However, she says that the laws have not been properly applied to achieve this purpose, with no “systemic release” of prisoners taking place.
As COVID-19 restrictions are gradually eased, Dr Anthony is concerned that there could be further outbreaks of coronavirus and that prisons are particularly at risk. Along with other legal experts, she is calling on state and territory governments to quickly implement reforms to protect prisoners.
The Queensland Government has started easing COVID-19 restrictions. The general requirement to stay at home unless you have to leave the house to do something essential will still apply. However, from 2 May 2020 you will also be allowed to travel for recreation within 50km of your home.
If you leave your home for recreation or an essential activity, you should only go with people you live with, one person who does not live with you, or more than one person if you need assistance from more than one carer.
People aged 70 or over and those with chronic conditions should continue to avoid going outside.
Everyone should maintain appropriate social distancing.
What am I allowed to do now?
The Government has given some examples of recreational activities, including:
- Going for a picnic
- Going to the beach
- Visiting a national park, although some of these are still closed
- Driving a car, motorbike, boat, jet ski, or other vehicle for non-essential reasons
- Supervising a learner driver as long as they are a member of your household
- Shopping for non-essential items
You still cannot go camping at this stage and public playgrounds remain closed.
These recreational activities are in addition to the essential activities that people are already allowed to do. You are allowed to travel more than 50km from your house for work and other essential reasons, but not for recreational activities.
Although you are allowed to travel up to 50km for recreational activities, the Government is still encouraging people not to travel between major cities. You should also not stop to eat takeaway food at cafes or restaurants, but you can eat in a park.
You are allowed two visitors at your house at the same time. You can visit a parent, child, or partner who is more than 50km away if this is part of your normal routine and they require your assistance. You are also allowed to visit terminally ill relatives.
Police can issue fines of up to $1,330 for individuals and $6,670 for corporations if you do not comply with these rules.
We should all use common sense when deciding whether to go out and who to let into our homes so we can keep COVID-19 under control and avoid returning to tougher restrictions.
"*" indicates required fields
Criminal Law, Traffic Law and Domestic Violence related matters anywhere in Australia
Lorem ipsum dolor sit amet, consectetur adipiscing elit. Ut elit tellus, luctus nec ullamcorper mattis, pulvinar dapibus leo.
Lorem ipsum dolor sit amet, consectetur adipiscing elit. Ut elit tellus, luctus nec ullamcorper mattis, pulvinar dapibus leo.
Lorem ipsum dolor sit amet, consectetur adipiscing elit. Ut elit tellus, luctus nec ullamcorper mattis, pulvinar dapibus leo.
