Publication of Names in Sexual Assault Matters in Tasmania
People charged with sexual crimes can often experience great shame and embarrassment. It is unsurprising that those charged sexual crimes can be concerned about whether their name will be published in the news media or online, this is especially the case when there is media attention surrounding case. One such recent example is the trial, and successful High Court Appeal of Cardinal George Pell.
The Parliament of Tasmania has recently amended section 194K of the Evidence Act 2001 (Tas), in relation to the naming of persons who are victims of sexual crimes committed against the law of Tasmania, the amendments do not relate to Commonwealth crimes. Following the amendments, there can be no reporting or publishing of identifying information, nor can a person or corporation cause identifying information to be published about the alleged victim, or any witness in the case. However, the name of a person accused of a sexual offence in Tasmania can be published in the media.
For the purposes of section 194K of the Evidence Act, the Parliament has defined identifying information as including the name, address, school, place of employment and any other reference or allusion that identifies, or is likely to lead to the identification of, the alleged victim or witness, and also includes pictures or images of the alleged victim or witnesses.
The word publish has also been given a specific legal definition. Publish means to make available to the public, or a section of the public, by any means, including but not limited to –
(a) publication in a newspaper, journal, periodical, book or other document; and
(b) broadcast by radio, television, wireless or other telegraphy; and
(c) publication or broadcast, by means of the internet, in any format; and
(d) in print, or electronic, communication meant for one or more persons; and
(e) public exhibition, spectacle or event; and
(f) such other prescribed means of making information available to the public.
This will mean that commentary online, for example, a Facebook or Twitter post, or even a private email, may breach the prohibition if a post or email includes identifying information of any alleged victim or witness.
However, the most important amendment relates to publication of names after the completion of the criminal trial process. A person or corporation may publish the names of victims, and witnesses, if:
- The person publishing the information has a Court order; or
- The alleged victim is over age 18, freely consents to the publication of the information in writing, and the criminal proceedings have been finalised.
Importantly, a person who breaches the prohibition on reporting on the identifying information of any alleged victim or witness is committing a Contempt of Court, which is a serious crime. The penalty for Contempt of Court includes imprisonment.
If you require information or advice how s194K Evidence Act 2001 (Tas) might apply in your case, or if you need advice in relation to a sexual offence please contact us to obtain legal advice catered to your situation on 1300 066 669.
How to Stay Safe Online While Working from Home During the COVID-19 Crisis
Many people are working from home for the first time due to the restrictions put in place during the current COVID-19 pandemic. Working from home can put us all at risk of cybercrime, which can have serious impacts for us personally and for our employers. It is therefore important for all of us to take precautions to protect ourselves online.
What can I do to protect my cyber security?
There are some simple steps suggested by the Australian Cyber Security Centre that we can take to improve our cyber security.
- Keep a look out for scams.
The upheaval in work arrangements brought about by COVID-19 has made businesses an appealing target for online criminals, who may see this as an opportunity to take advantage of new and potentially unsophisticated systems.
Cybercriminals are likely to attempt scams to get people’s money and information, and to access their online systems. To avoid being the victim of a scam, ensure that you are attentive and use your critical thinking if you receive suspicious calls, texts, or emails. Do not open attachments or click on links unless you trust the sender. Think carefully before providing any personal or bank details online. If you are not certain of the sender’s identity, stick to contact methods that you have previously used.
- Strengthen your passwords.
A strong password can go a long way towards preventing cybercrime. Ensure you set detailed and unique passwords on all of your devices.
Make sure you use different passwords for every website and app, especially if you have personal or bank details saved on the website. If you use the same password for every website, all of your accounts will be at risk if one of them is compromised.
- Use multi-factor authentication where possible.
Multi-factor authentication can be enabled on your devices and online accounts and involves using multiple layers of authentication. This means that even if someone obtains one type of authentication (e.g., a password), they will not be able to access your device or account without the other types of authentication.
Multi-factor authentication can include something you know (e.g., a password or answers to security questions), something you physically hold (e.g., a card or token), and/or something you inherently have (e.g., a retina pattern or fingerprint).
- Carry out software updates.
Ensure that you allow your devices to carry out automatic updates as software updates are often developed in response to security issues and could include new security features.
- Use a Virtual Private Network (VPN).
VPN connections allow you to connect your devices to your work network while ensuring the security of your remote network access and web browsing.
If your employer requires you to use a certain VPN, ensure that you understand their VPN policies and procedures.
- Only use Wi-Fi connections that you trust.
Free Wi-Fi is not secure and you are potentially exposing your web browsing to criminals if you use it. Some cybercriminals create Wi-Fi hotspots that look legitimate and use them to take your personal details and communications.
Only use Wi-Fi connections that you trust, such as your home or mobile phone internet.
- When you are not using your devices, ensure they are kept secure.
Gaining access to your data is easier when criminals can physically access your devices. It is important to always keep your devices secure when you are not using them, for example by locking them and keeping them somewhere safe.
You should also think carefully before giving permission to someone to use your work devices. If you let your children or family members use them, they could accidentally share important data, delete information, or download harmful software.
If you share devices with your family, ensure that they use accounts that are separate from your work account and that they set unique passwords.
- Try not to use portable storage devices such as USBs and external hard drives.
While portable storage devices can be a useful way to back up data or take files home from work, they are easy to lose. Additionally, they can carry malware that could infect your devices at home.
If you can, try to move data in a safer way, for example through cloud storage. If you use a portable storage device, secure it using encryption and passwords.
- Only rely on trusted sources of information.
Online criminals are known to take advantage of popular issues like COVID-19 to spread false information and scam people. They may do this by cloning, imitating, or making websites to appear legitimate, or by circulating disinformation through social media.
Make sure you only rely on sources of information that you trust and think critically about new sources of information before you use them.
Virgin Australia Enters Voluntary Administration: What Does this Mean for Travellers?
Virgin Australia has formally announced today that it has entered voluntary administration. Partners from Deloitte have been appointed voluntary administrators of the company and several of its subsidiaries.
Virgin is carrying about $5 billion in debt and has not posted a profit in the last seven years. After its planes were largely grounded last month due to the coronavirus pandemic, it has been unable to stay afloat.
The airline employs around 10,000 staff whose futures with the company are now uncertain.
The Federal Government has so far refused to bail Virgin out. The Queensland Government has made an offer to keep the company’s headquarters in Queensland and the New South Wales Government has expressed interest in making a competing offer. However, both Governments’ offers would likely require financial support from the Federal Government to go ahead.
What is voluntary administration?
When companies are in financial trouble, they may be put into voluntary administration. This means administrators will be appointed to quickly make decisions about the company’s future. The administrators may decide to return the company to its directors, approve a deed of company arrangement (agreement on the future of the company including how debts will be paid) to try to salvage the company, or wind up the company and appoint a liquidator. The administrators will meet with creditors to work out a solution.
What will happen to my tickets?
Virgin Australia reportedly has almost $1.2 billion in prepaid tickets. The fate of these bookings will be decided by the administrators. If the administrators can salvage the company, flights may go ahead as planned and there may be no need to repay customers.
If Virgin cannot survive, the administrators will need to pay out debts in a certain order. Consumers are usually paid after other groups of creditors such as employees and shareholders have been paid out. There may be no money left to repay customers by this point. If this happens and you bought your tickets on a credit card, you may be able to get your money back from your credit card provider.
Another issue to be determined is what will happen with points earned through the Velocity frequent flyer scheme if Virgin does not survive. This program is run by a separate company, but it is uncertain whether customers would be able to redeem their points and how this would work.
Will the cost of flights could go up in the future?
If Virgin Australia were to collapse, Qantas would lose its major competitor and would have a near monopoly on the airline industry. Without major competition, there are concerns that the cost of flights could skyrocket to the disadvantage of travellers.
There are further concerns that the loss of Virgin could cripple the tourism industry in Australia, particularly in regional areas which are already reeling from the COVID-19 crisis.
Travellers, businesses, and governments will be looking on anxiously as the administrators decide Virgin Australia’s future.
Defendants generally cannot be punished for the same act or omission twice unless an Act expressly allows this to occur.
The Domestic and Family Violence Protection Act 2012 (Qld) seemingly allows police to charge defendants with both a contravention of a domestic violence order (DVO) and a related criminal offence based on the same facts. Section 138 provides:
- An application under this Act may be made, and a court may deal with the application, even if a person concerned in the application has been charged with an offence arising out of conduct on which the application is based.
…
(3) To remove any doubt, it is declared that, subject to this section, an application, proceeding or order under this Act in relation to the conduct of a person does not affect—
(a) any proceeding for an offence against the person arising out of the same conduct; or
(b) any civil liability of the person.
(4) The person may be punished for the offence mentioned in subsection (3)(a) despite any order made against the person under this Act.
However, it is less clear whether this provision allows defendants to be punished for both the contravention and the other criminal offence. Section 138 has been interpreted in two recent cases with conflicting results. In R v MKW [2014] QDC 300, the defendant pleaded guilty to contravening a domestic violence order and was sentenced, but was then charged with grievous bodily harm for the act that formed the basis of the contravention charge. His Honour Judge O’Brien found that section 138 allowed the criminal proceedings for grievous bodily harm to continue. However, His Honour noted that the rule about double punishment needed to be taken into account in sentencing.
In QPS v DLA [2015] QMC 6, the defendant was charged with a contravention and using a carriage service to menace or harass. The same facts were used as the basis for each charge. His Honour Magistrate Bucknall found that section 138 did not expressly allow for a defendant to be punished twice for different criminal offences arising from the same act or omission. His Honour ordered a permanent stay of proceedings for the contravention charge. His Honour also suggested that convicting and not further punishing a defendant for a contravention in this situation is not a suitable resolution due to the effect of a prior conviction on penalties for future contraventions.
Due to the inconsistent findings in these cases, the law is unsettled and it is uncertain whether defendants can be punished for both contraventions and related criminal offences arising out of the same act or omission.
What does this mean for my criminal proceedings?
Defendants can be sentenced to higher penalties for contravening a DVO if they have been convicted of a domestic violence offence (including a contravention) in the five years before committing the new contravention. Therefore, it is important to be aware of the options you have to avoid being convicted for a contravention when you are also charged with a related criminal offence.
If you are charged with both a contravention and a related criminal offence (e.g., an assault offence), you or your lawyer will need to closely examine the facts being alleged by the police and consider whether the facts of each offence are the same. If they are, you have the option of negotiating with the Police Prosecutor to have the contravention charge withdrawn. If this is unsuccessful, you can apply to the Court to stay proceedings for the contravention.
The Pell Verdict
Cardinal George Pell walked free from prison yesterday following the High Court of Australia’s decision to grant special leave for him to appeal his convictions for sexual offences against children, allow his appeal, and quash his convictions.
Pell was sentenced last year to six years imprisonment with a non-parole period of three years and eight months after being found guilty by a jury of one count of sexual penetration of a child under 16 and four counts of committing an indecent act with, or in the presence of, a child. The offences were alleged to have occurred in the 1990s while Pell was the archbishop of Melbourne.
Pell maintained his innocence throughout the court process. He spent over 400 days in custody before being released yesterday.
Some are arguing that the High Court’s decision will undermine public confidence in the jury system and even the justice system as a whole. Ultimately, the decision highlights how difficult it is to successfully prosecute historical child sexual offences due to the lack of corroborating evidence in many of these cases and the high standard of proof in criminal cases.
The Appeals Process
Pell was found guilty of the charges in the County Court of Victoria in 2018. He then pursued appeals in the Victorian Court of Appeal and the High Court.
Victorian Court of Appeal
Pell unsuccessfully appealed the verdicts in the Victorian Court of Appeal in 2019.
Leave is required to appeal a conviction in the Court of Appeal and there are limited grounds for an appeal. Pell’s counsel argued three grounds of appeal. Two of these related to the conduct of the trial. Leave to appeal was unanimously refused on those grounds.
Leave to appeal was granted on the ground that the verdicts were unreasonable and could not be supported by the evidence. Pell’s lawyers argued that based on all of the evidence, it was not open to the jury to be satisfied of his guilt beyond reasonable doubt on the complainant’s evidence alone.
However, the appeal on this ground was dismissed by a 2-1 majority.
High Court of Australia
Pell applied for special leave to appeal to the High Court, with the judgment being handed down yesterday.
It is very difficult to gain special leave to appeal to the High Court. Strict criteria apply and the Court has wide discretion to refuse leave to appeal. The criteria include whether the case involves a question of law that is of public importance or requires differences of opinion between different courts about the law to be resolved, and whether the interests of justice require the High Court to consider the case.
Pell’s lawyers applied for special leave to appeal on two grounds. Firstly, that the Court of Appeal majority made a mistake by finding that their belief in the complainant’s testimony required Pell’s lawyers to establish that the offending was “impossible” in order to raise a reasonable doubt. Secondly, that the Court of Appeal majority made a mistake by concluding that the verdicts were not unreasonable as there was a reasonable doubt about whether Pell had the opportunity to be able to commit the offences.
The seven High Court Justices unanimously granted special leave, allowed the appeal, and quashed Pell’s convictions.
Reasonable Doubt
The key issue raised in these appeals was whether the jury’s guilty verdicts were unreasonable because there was insufficient evidence to prove Pell’s guilt beyond a reasonable doubt.
In criminal cases, the prosecution must always provide enough evidence to prove a defendant’s guilt beyond a reasonable doubt. This is a high standard of proof. If a jury has any reasonable doubt that the defendant committed the offence, it should not find them guilty.
The prosecution had relied on the credibility and reliability of the testimony given by the complainant to convince the jury of Pell’s guilt. This was the only direct evidence of his guilt.
The defence relied on evidence from “opportunity witnesses” – people who testified that Pell could not have had the opportunity to commit the offences because he usually stood on the steps of the cathedral after mass to greet people, he was never by himself when he was robed, and there was a “hive of activity” near the location of the alleged offences after mass.
The Court of Appeal majority accepted the evidence of the complainant and found that it was sufficient to prove Pell’s guilt beyond a reasonable doubt. They found that no witness could say with certainty that the routines described by the opportunity witnesses were never departed from.
In contrast, while the High Court did not find the complainant to be dishonest or unreliable, it did decide that the evidence of the opportunity witnesses meant that the jury should have had a reasonable doubt that Pell was guilty. The evidence of the complainant alone was not enough to find Pell guilty when weighed against the evidence given by the opportunity witnesses of Pell’s practices and activities.
The High Court’s decision underscores how difficult it is to prove historical child sexual offences beyond a reasonable doubt when there is little evidence to corroborate the complainant’s testimony.
The Jury System
The High Court’s decision has also raised questions about the place of juries in the justice system and drawn accusations that it will undermine public confidence in the justice system.
A jury consisting of a dozen of Pell’s peers had heard all of the evidence and deliberated for about five days before finding him guilty. In most cases, this is the end of the story.
Juries are regarded as having the skills to reach a proper verdict and are considered to be an important feature of the justice system. Because juries are seen as fundamental to the value and reliability of the justice system, judges are often reluctant to overturn their verdicts.
The High Court’s decision in this case reminds us that, despite the high regard that juries are held in, their decisions are not immune from scrutiny. They sometimes make mistakes. Regardless of individual opinions on this decision, it is important that there is a check on the power of juries.
Brooke Winter Solicitors
8 April 2020
Grandparents play an important role in the lives of children all over Australia. They are often an invaluable resource to parents who need a break or guidance or to assist in the day to day activities for the children, such as before and after school care. It is because of this that the Family Law Act recognises grandparents and has provisions within the Act that sets out rights for grandparents in relation to their grandchildren.
The Act provides that the children have the right to maintain regular contact with people who have had or do have a significant role in their daily care, welfare and development. As grandparents have often been overlooked previously, the Act now specifically includes grandparents in this category. Unfortunately, the Act does not go so far as to provide for an automatic right for the children to see and care for their grandparents, however provides that Grandparents are able to apply to the Court for Orders that allow same.
As with all applications concerning children, the Court must consider whether the Orders sought in the Application are in the children’s best interest. This test may be satisfied if a parent is unable to care for a child, unwilling to care for a child or otherwise should not be caring for a child (such as capacity issues). These circumstances mentioned are not exhaustive, which means that even if you do not satisfy one of the above, you may still be able to apply to the Court for an Order.
In cases such as drug or alcohol abuse, significant levels of violence in the home or if the children are being neglected, the Courts are more likely to consider an Application by the grandparents due to the need to protect the children. In making the Order, the Courts can set out who the children are to live with, who is able to make the long terms decisions concerning the children (such as just the parents or jointly with the grandparents or just the grandparents alone) and also put into place any specific requirements for spending time with one of the parties, such as the need to be supervised at all times.
If you are a grandparent who is being denied the opportunity to see your grandchildren or you have concerns for your grandchildren, please contact our office and we will put you in contact with one of our Family Law Experts who will be able to advise you as to your rights and the correct action to be taken. Call us on 1300 066 669.
The recent development about Barnaby Joyce’s extra marital affair has opened a dialogue with regards to discussions on property settlements and paternity. What many people falsely assume is that the girlfriend (as opposed to his wife) will not be entitled to anything apart from child support from Barnaby and that his property settlement issues with his (now) ex-wife will be resolved through the usual process.
This cannot be further from the truth. In this circumstance, it is possible that Barnaby has left himself open to a property settlement claim from both his now ex-wife and the girlfriend. How can this be possible? The Family Law Act provides that parties are entitled to seek a property settlement through the Courts where they are either in a de-facto relationship or a marital relationship. Ordinarily, most people will fall into either one or the other category, however the process is the same when it comes to establishing entitlements.
Where the issue is complicated is in circumstances where a one party to the relationship maintains a relationship with a party outside the relationship. Often these relationships are short-lived and when discovered, often result in the parties separating. In this circumstance, the relationship has not only been over a lengthy period of time, it has also resulted the birth of a child. If we were to put the paternity issues aside, what we are now faced with is one person who has maintained two relationships which, if considered individually, would each satisfy the criteria set out be the Family Law Act to qualify for a property settlement (and potentially spousal maintenance as well).
In this circumstance, both the girlfriend and ex-wife would be entitled to seek a property settlement under the Act. If both the girlfriend and ex-wife apply for a property settlement, this could potentially see Barnaby left with very little by way of assets.
If you need advice about a property settlement, please contact us to speak to one of our Family Law experts who will be able to give you comprehensive advice and ensure that you receive what you are entitled to. Call us on 1300 066 669.
When Family Law solicitors first meet with clients who have separated and need to divide their assets, one of the most common statements we hear is that the wife automatically gets the house, or that the other party has already obtained legal advice and they are entitled to 90% of the property pool.
This cannot be further from the truth and is one of the reasons why it is important that you obtain proper legal advice from a Family Law solicitor before finalising any agreements about how to divide your property.
There are many different factors that the Family Court or Federal Circuit Court will look at in determining how to divide the assets and liabilities of a relationship. This is done by way of a four (4) step process which is:
- Identify the assets and liabilities available for division, regardless of whose name they are in;
- assess the contributions of the parties, both financially and non-financially (which includes any gifts, inheritances, windfalls and contributions towards the raising of children);
- look at the future needs of the parties, including income earning capacity, age and care of children amongst many other factors; and
- determine how to distribute the assets so it is just and equitable.
When looking at all of the factors, the law provides for the Courts to have discretion as to how much weight or significance placed upon any given factor. Due to this, when speaking with a Family Law solicitor, you will often hear them comment that your entitlement falls within a particular range of percentages. There are no “rules” as to how the assets are to be divided and as such, in addition to negotiating how much each party is to receive, negotiations in a property settlement also focus on how the assets are to be divided. For example, one person may want their entitlement to be paid out in cash, while the other party may want to pay them by way of cash and a superannuation split.
The other big issue arises when one party has an unrealistic expectation as to their entitlements. Often this is a result of internet forums and gossip, however unfortunately can also be the result of speaking with a solicitor who does not understand the complexities of family law. If a party thinks they are entitled to significantly more than they are in reality, this often hinders any negotiations and means that the matter needs to be litigated before the Courts which is not a cheap exercise.
If you and your spouse/de facto partner are separating, speak to one of our Family Law experts. They can give you advice as to your entitlements as well as assisting you in negotiating a settlement and then documenting any agreement reached in the appropriate format to make it binding.
Do you require expert legal advice for a family law matter or family dispute resolution? We can help. Contact Brooke Winter Solicitors immediately on 1300 066 669.
Get Set, Gold Coast! The Games are coming and our team at Brooke Winter Solicitors is excited to welcome all the wonderful visitors to our city to join the celebrations. There will be people visiting the Gold Coast from all around the world and although that leads to a lot of excitement, it can also lead to a lot of potential for crime to occur in the community.
We advise that people be on alert, ensuring to lock your homes and vehicles properly and also watch your personal belongings whilst out.
If you find yourself in trouble over the Commonwealth Games period, contact our expert team. We are available 24 hours a day, 7 days a week and will have someone available to chat with you during the Games.
If you are arrested by Police during the period of the Games, be advised that you have the following rights:
- You have the RIGHT to telephone a lawyer, relative or friend; and
- You have the RIGHT to remain silent
Do not participate in any interviews or make any statements to Police, even if you believe it will help that situation. More often than not, it makes defending your case even harder. Keep in mind that anything you say can and will be used against you.
Learn more about criminal and police investigations here.
If you have traveled to the Gold Coast from another country and are charged by Police, please contact us immediately on 1300 066 669 and we will be happy to assist.
Image courtesy of Tim Sackton.
More and more frequently, Family Law solicitors are faced with the situation where we have a client in our office who is panicking as their former spouse has taken the children overseas without their permission.
On many occasions, the situation resolves itself without issue, however there are an increasing number of cases where the former spouse leaves the country with no intention of returning. In these circumstances, often the spouse who is left in Australia can be left feeling helpless as Australian law cannot control their former spouse in another country.
The answer to this is called The Hague Convention. The Hague Convention is, in it’s most simplistic form an international treaty against child abduction. There are currently in excess of 98 Countries which have signed the Convention, with more being added every year.
In short, countries which have signed up to The Hague Convention have agreed that they will assist in the enforcement of parenting orders made in other countries. For example, if a parenting order was made in Australia and your former spouse removed the children to England, then upon receipt of a request from Australia, the English Courts would assist in enforcing the Australian Order and return the Children to Australia.
But what if you don’t already have a parenting Order in place. In these circumstances, The Hague Convention still applies, however before returning the children to Australia, the English Courts would need to determine several factors, such as the habitual residence of the children. If this is ultimately found to be Australia, then the children would be returned and then proceedings would follow in Australia to put in place a parenting order.
Unfortunately, an application under The Hague Convention can be a slow and drawn out process due to the difficulties in exchanging documents and different time zones, as well as trying to navigate through a foreign legal system. Therefore, it is important that an application is brought as soon as possible to ensure that there are no unnecessary delays in returning your children.
If your former spouse has taken your children overseas without your consent, contact our office and we will put you in touch with one of our Family Law experts who can guide you through the process of returning your children to Australia.
If this sounds like your situation, call us immediately on 1300 066 669 or contact us online.
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