Welcome to this week's edition.
Carlisle & Cumbria United Independent Supporters' Society Ltd v CUFC Holdings Ltd [2010] EWCA Civ 463
The court of appeal held that a judge had, notwithstanding the wide ambit of discretion afforded to him, erred in principle in respect of costs orders made in relation to costs that had been incurred agreeing terms of a compromise agreement which the judge determined were not a necessary part of any compromise and had thus unnecessarily prolonged litigation. The court of appeal, upon the respondent's agreement, held that the judge should not have sought to impose his own view as to whether the terms agreed were not properly sought.
The AP reported that Lucasfilm Ltd has lost a pregnancy bias suit filed by a woman whose job offer was withdrawn when she disclosed that she was going to have a baby. A jury in Northern California awarded Julie Veronese US$113,800 in damages. Her lawyer says she will ask for up to US $1.2 million in attorney fees from Lucasfilm.
Spiegel online reports that a German teacher lost a defamation suit recently in which she claims that a student spread rumors that she had a rabbit phobia. The court case, which triggered nationwide headlines, was dismissed on the grounds that the student proved the teacher's phobia as fact. Marion, a German and geography teacher, made headlines earlier this year by accusing a 16-year-old schoolgirl of defamation, alleging that the student maliciously gossiped that she suffers from rabbit phobia. The defendant, named as Kim P., caused the stir by drawing a rabbit on the blackboard. Upon entering the room and seeing the drawing, Marion reportedly fled from her classroom in tears.
The court dismissed Marion's claims, saying through a court spokesperson that Marion's fear of rabbits is a fact, which the defendant proved in court. If Kim had been found guilty, she would have faced a €5,000 fine for any further incidents of rabbit drawing in front of Marion. Marion has been on leave from her teaching duties since the incident.
Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales [2010] HCA 22 (16 June 2010)
The plaintiffs were members of the NSW Police Force who allege that they suffered psychological and psychiatric injuries, post traumatic stress disorder, nervous shock and major depressive disorder as a result of witnessing serious wreckage, death and injury at the Waterfall train disaster in January 2003. The determinative issue in each appeal was whether State Rail owed a relevant duty of care, and if the appellant suffered a recognised psychiatric illness of which the negligence of State Rail was a cause.
The court held that the test was whether it was reasonably foreseeable that a person of normal fortitude would develop a recognised psychiatric illness after attending to such a train accident. It was uncontested that both appellants had witnessed terrifying injuries and death due to the derailment of the train. The consequences for the appellants did not end when the derailment came to an end, but also lasted while they were helping the injured to safety. Therefore, it does not matter that the appellants did not actually witness State Rail being negligent at the time of the accident. The appeal was allowed with costs.
The ALA would like to thank Roopa Varadharajan for this contribution.
Brynn O'Brien reports in The Age that Today Tonight ran a story on an 'undercover investigation exposing reverse racism - where you are too white to work'. The case focused on a strawberry farm in Queensland, where it was reported that 'Aussies are overlooked in favour of Asians'. However, Brynn reports that the real story is more about migrant workers doing 'jobs' in which they are underpaid or not paid at all, abused, degraded and forced to work in dangerous conditions. She goes on to state that it is ‘troubling that the TV station felt the need to sell a story about workplace exploitation of migrant workers as a story about ''Asians stealing Aussie jobs''. The workers at the strawberry farm said ''strawberries come from hell'' and those who spoke up about the abuse or lack of pay were further abused'.
Brynn O'Brien works at the Anti-Slavery Project at the University of Technology Sydney, a specialist legal service for trafficked and exploited people.
The Law Council of Australia (LCA) has given a deadline to all sides of politics to offer the legal profession some credible policies around access to justice, the shortage of country lawyers and the legalities of the asylum-seeker debate.
LCA president, Glenn Ferguson, said that political parties contesting the 2010 Federal Election should deliver their policy platforms regarding issues affecting Australian lawyers by 28 July. To help, the LCA has prepared a document containing the key issues it believes candidates should address, and lists the long-term decline in Legal Aid funding as a key priority.
To meet what the LCA has identified as a critical shortage of lawyers in regional, rural and remote areas, the document also asks political parties to declare whether or not they will support a range of initiatives aimed at enabling the recruitment and retention of country lawyers. The debate over asylum seekers has also drawn concern from a number of lawyers, with the LCA urging political parties to outline how their policies will ensure the protection of human rights. Political parties have also been asked to address anti-terror laws, Indigenous issues, discrimination, gender equity and the resourcing of Family Law Courts. Source.
A new regime for access to government information comes into force later this year. The reforms to Commonwealth freedom of information (FOI) laws flow from two Acts passed on 31 May 2010: the Australian Information Commissioner Act 2010 (Cth) and the Freedom of Information Amendment (Reform) Act 2010 (Cth).
These reforms are the result of numerous recent inquiries, including by the Australian Law Reform Commission. The majority of the new measures start on 1 November 2010, with other changes starting on 1 May 2011.
Key features of the reforms are:
· The establishment of the new Office of the Australian Information Commissioner (starting from 1 November 2010);
· A proactive publication requirement for government agencies (starting 1 May 2011)
· A new public interest test (starting 1 Nov 2010);
· A reduction in the time that cabinet and other government records are released under the Archives Act (to be introduced progressively from 1 May 2011); and
· A reduction in the costs for applications (starting 1 November 2010).
NSW FOI laws have also recently changed, with the Government Information (Public Access) Act 2009 commencing on 1 July 2010.
Press coverage of the Australian Lawyers Alliance Medical Law Conference, held in Sydney last Friday, included a story on the presentation by former NSW deputy coroner, Carl Milovanovich. The story appeared in both The Daily Telegraph and on the Channel 9 News website.
In his presentation Mr Milovanovich reported that fatal mistakes were being made frequently in NSW hospitals because of the failure to follow recommendations set in place after the death of a patient.
Mr Milovanovich said it had been 20 months since an inquiry was held into NSW hospitals and he still had concerns about patient treatment.
To view the whole Channel 9 story, see: http://news.ninemsn.com.au/health/7934031/fatal-mistakes-repeated-in-hospitals
To view The Daily Telegraph story. see: http://www.dailytelegraph.com.au/news/nsw-act/coroner-slams-state-hospitals/story-e6freuzi-1225896309230
The Alliance was contacted by a PNG-based AAP reporter this week to comment on the Julian Moti case.
Director, Greg Barns, was asked by reporter, Ilya Gridneff, to comment on the case of the former Solomon Islands attorney-general, Julian Moti. Moti will likely stand trial on child sex charges next year, after a fresh indictment from the Commonwealth prosecutor in Brisbane last week, charging the 44-year-old with seven counts of engaging in sexual intercourse with a person under the age of 16.
The charges relate to the alleged rape of a 13-year-old girl in Noumea and Vanuatu in 1997.
While Mr Barns was selective about the questions he felt should be answered, he said that the Alliance deplored the misuse of the criminal justice system for political ends as in the Haneef case.
'While no findings have been made by the courts in this case of political interference, Justice Holmes in the Queensland Court of Appeal said, last week, that ''The Australian Federal Police seem to have been aware of the allegations at least from 2001, but it was not until October 2004, after the Australian High Commissioner in the Solomon Islands had raised concerns about the respondent's prospective appointment as the attorney-general of the Solomon Islands, that they commenced an investigation of him for possible offences under Section 50BA of The Crimes Act.'''
'Why did the AFP only investigate the allegations after the High Commissioner's interest in the matter? That remains an unanswered question,' Mr Barns said.
The reporter also asked about payments made to the girl's family and the decision by the AFP not to use video link-up.
'The Queensland Court of Appeal merely said the payments were not in breach of the guidelines used by the AFP. However, the Alliance's view is that the payment of monies to witnesses, particularly those who have an economic need for the payments, is an undesirable practice. And it was particularly undesirable in the Moti case, given the political overlay,' Mr Barns said.
'The risk of such payments is that, from a perception point of view, they could readily be viewed as a bribe to a witness. In fact this is exactly what Justice Holmes said: ''The payments in this case might have been ill-advised for a number of reasons. They were liable to have an adverse impact on the credibility of the witnesses who received them; cross-examination was likely to be directed to establishing that their enthusiasm for maintaining their accounts was the result of the favourable treatment they had received. The fact that the payments were made in response to demands does not necessarily affect their propriety, but they might well encourage exorbitant witness demands on the Australian Federal Police.'''
Mr Barns said: 'the AFP's track record in recent years - the Bali Nine, Moti and Haneef - is troubling. It shows a preparedness to take short cuts and to pursue matters in a way that does not take sufficient account of the rights of the accused.'
Mr Barns' comments should be included in a follow-up story on the case to be distributed to various media outlets in Australia and Papua New Guinea in upcoming weeks.
To view a recent Courier Mail story on the case, see: http://www.couriermail.com.au/news/national/motis-child-sex-charges-reinstated/story-e6freooo-1225895959922
Alliance director, Greg Barns, is quoted in last Saturday's Launceston Examiner on access to legal aid.
The article, written by reporter Loretta Johnston, is reproduced below in its entirety, as access via the website requires a regular subscription payment to the newspaper. A link is provided at the end of the story for those interested in subscribing:
'The Legal Aid Commission of Tasmania says most parents fighting child protection orders will have access to its services because of extra funding, but the Australian Lawyers Alliance has argued that not much will change.
'Legal Aid Commission of Tasmania director Norman Reaburn said the recently announced $1 million additional government funding received by the commission would mean fewer parents accused of mistreating their children would be refused legal representation.
"I expect it to make a big difference," he said.
"I'm expecting that a lot of people who were not able to access Legal Aid in the last financial year will be able to access aid in this current financial year," he said.
'Mr Reaburn said the commission would fund applicants who were the parents of a child or children who was the subject of a proposed care and protection order except where an independent children's lawyer had been appointed and the representation of the parent would be "unlikely to markedly assist in the determination of the matter".
'Australian Lawyers Alliance director Greg Barns said it was not the role of an independent children's lawyer to represent parents faced with child protection orders.
"The children have been taken from them but the commission is saying you're not naturally entitled to legal representation," he said.
'He said situations where parents - including those on low incomes and those with disabilities - were denied legal representation would continue.'
To subscribe and view the article online click this link: http://www.examiner.com.au/membershiprequired.aspx
Alliance NSW president, Jnana Gumbert, was asked to comment for The Risk Report on Brydens Compensation Lawyers' High Court challenge to the NSW Government's ban on personal injury advertising.
Ms Gumbert told journalist, Lois Nicholls that the ALA had challenged the regulations in the High Court back in 2005, largely on constitutional grounds, but had been unsuccessful.
Commenting generally about the restrictions to advertising, she said that advertising regulations were an access to justice issue and that the real losers were accident victims.
'If injured people can't find proper legal representation then it means that they will be left to fight big insurance companies by themselves, which is clearly unsatisfactory,' she said.
Ms Gumbert also explained that the regulations were quite discriminatory, as there was no other area of law that had such restrictions and that other advertising controls were in place to prohibit false and misleading advertising and these had proved adequate.
The Australian Human Rights Group (AHRG), of which the Australian Lawyers Alliance is a working member, has expressed concern about Coalition policy to scrap any federal human rights framework, introduced this year, if elected to office on 21 August.
Arguing that the Labor Government's wasteful spending has pushed up interest rates, Opposition Leader, Tony Abbott, recently unveiled $1.2 billion in spending cuts which will see the end of Labor's Human Rights Framework.
In the article, the AHRG emphasised that Abbott must outline how his party will protect and promote human rights without the Framework.
'I urge all parties to show leadership on this issue, to bring Australia into line with the rest of the developed world and help to improve the understanding of human rights, especially among Australia's public servants,' said Edward Santow of the AHRG.
'The Opposition's plan to scrap the Human Rights Framework is presented as a financial saving, but our members know all too well that inaction on rights protection comes at an immense cost.'
The AHRG said that removing the human rights developments Australia has made in recent months ignores the views of a large number of community workers, human rights experts and many religious groups.
South Australian Alliance president, Tony Kerin, has spoken to ABC Radio on the potential for South Australia to introduce industrial manslaughter legislation after the call came from the partner of one of the three men killed in a recent industrial accident in the mid-north of the state.
The Industrial Court was told this week of a slapdash approach to maintenance and a snubbing of safety guidelines that resulted in a massive explosion that killed three workers at the Gladstone munitions factory.
The partner of one of the men killed at the blast at the Quin Investments plant in May 2006, has called for the introduction of the manslaughter legislation.
Mr Kerin told the station that without common law to protect employees from the negligence of employers, people in the state would continue to suffer and that the reintroduction of common law rights would make employers far more accountable for their actions.
'Furthermore, it would see compensation payments for those who have lost out, rather than just fines being paid to the government,' he said.
Alliance director, Greg Barns, spoke with Southern Cross, Win TV stations and The Mercury newspaper, this week, on the dangers of proceeds of crime legislation.
Mr Barns was commenting on the legislation, following news that the girlfriend of a man imprisoned for life for a murder is now pregnant and selling her story to a magazine.
Ms Haygarth received a six-month suspended jail sentence in December, after pleading guilty to failing to report the killing of Ms Yu after learning of the incident from her boyfriend of the time, who is now serving a life sentence for the killing.
Mr Barns said that as distasteful as this news was, there was a danger that if proceeds of crime legislation, designed to ensure no one profited from crime, was implemented several miscarriages of justice were likely to result.
'David Hicks is one example of the potential for such laws to gag people who have been wrongly accused and imprisoned from telling their story and potentially succeed in overturning a poor decision made against them,' Mr Barns said.
Alliance director, Greg Barns, was interviewed by The Sun Herald on Thursday on the issue of the law and confusion surrounding 'sexting'.
Sexting is the act of sending sexually explicit messages or photographs between mobile phones and is usually between teenagers. However, it has created a legal grey area in countries with strict anti-child pornography laws.
Some teenagers who have texted photographs of themselves have been charged with distribution of child pornography; those receiving have been charged with possession of pornography; and, in some cases, school administrators have also been charged with possession after confiscating phones.
Mr Barns told The Sun Herald that there was a need for clarity and uniformity between Commonwealth and state laws in Australia, particularly in NSW, where a person is considered a child if they are 16 years or under; whereas under Commonwealth law a child is a person aged 18 years or younger.
He said it was important that teenagers 'sexting' to one another was not criminalised as it was clearly not a criminal act.
‘It would take 20 years to fill the MCG at the current rate of refugee boat arrivals.'
(Mamamia.com.au)
(1) For the nine years ending in 2006, the national rate of conviction in first-instance criminal cases in China stood at over 99%. Source:
(2) In about 60% of cases where an accused changes their plea, they do so on the first day of the trial. Source.
(3) Afghans paid out a total of US$2.5 billion in bribes over the past 12 months, which is equivalent to almost one-quarter of their country's GDP and is close to the revenue accrued by the opium trade in 2009, which the UN Office on Drugs and Crime (UNODC) estimates at US$2.8 bn. Source.
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G & M v Armellin [2009] ACTCA 6
In Armellin, the ACT court of appeal awarded substantial damages for psychological injury arising from an unwanted twin pregnancy as a result of in vitro fertilisation (IVF) treatment. In addition, substantial damages were awarded for the cost of raising the second child. There had been a failure of communication in the defendant organisation as to the clear wish of the plaintiffs to have only one embryo transferred. Unlike Elliott v Bickerstaff (1999) 48 NSWLR 214, the medical practitioner took on personal responsibility for receiving and implementing instructions from the plaintiff. On 9 December 2009, the doctor sought leave to appeal to the High Court on the basis that he had not breached the duty of care he owed because it was the centre and not he that had failed. In the circumstances, leave was refused. The validity of the decision in Cattanach v Melchior (2003) 215 CLR 1, where the High Court held that you cannot sue for wrongful birth, was not in issue in this case at appellate level.
The ALA would like to thank Andrew Morrison SC for this contribution.
Waugh Asset Management v Merrill Lynch [2010] NSWSC 197 (McDougall J)
In Waugh Asset Management, it was noted that, as Brereton J pointed out in Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151, the process of complying with a subpoena involves three steps. The first is production to the court in answer to the subpoena. The second is interim use; for example, access to inspection or copying. The third (which may never arise) is the tender of the document. That process is the same as was identified by the court of appeal in National Employers Mutual General Association Ltd v Waind & Hill [1978] 1 NSWLR 372. Rule 1.9 of the Evidence Act governs the first stage. Section 131A applies at the stage of production. However, the second stage is governed by the common law. In respect of access to a third-party subpoena, McDougall J held that there had been no waiver and that the position on waiver was the same in any event at common law and under the Evidence Act.
The ALA would like to thank Andrew Morrison SC for this contribution.
CIC Allianz Insurance v Erturk [2010] NSWSC 302 (Simpson J)
In Erturk, the insurer sought judicial review of decisions made under MACA. The insurer made an admission of liability under s81 and subsequently sought to withdraw it. A fresh s81 Notice was sent this time, denying liability. Simpson J noted the legislation does not make any provision for or recognise the second s81 Notice where liability has been admitted. The insurer sought relief, contending that the first notice was founded upon a mistaken understanding of its insured's description of the accident. The insurer had also applied to an assessor for exemption from the assessment process. The MACA assessor was not satisfied that the claim was not suitable for assessment and dismissed that application. The assessor then issued a certificate in accordance with s94 following the assessment. Damages were assessed. That also was subject to challenge from the insurer.
Simpson J could find no identifiable error in the approach taken by the assessor. If a mistake was made by the insurer, it was an error by its own assessing officer, not induced by the claimant. The second s81 Notice was not valid. Given that liability was not then in issue, there was no basis for an exemption from assessment. The assessor was entitled to proceed to quantify the claim. The application for judicial review was dismissed with costs.
The ALA would like to thank Andrew Morrison SC for this contribution.
Kanters v State of Queensland [2010] QSC 107 (12 April 2010)
In Kanters, the plaintiff was assaulted by unidentified persons while a prisoner at Woodford Correctional Centre. He suffered a closed head injury and is a person with a legal disability under s59 of the Public Trustee Act 1978. The plaintiff settled, but sought relief against part 12B of the Corrective Services Act 2006. This part comprises a scheme which will freeze any compensation and damages awards made in favour of prisoners to allow victims of the prisoner's crime/s an opportunity to make a claim against the frozen funds before the funds are released to the prisoner. In this matter, the plaintiff applied for a declaration that part 12B is invalid, or alternatively, that it does not apply to any sum payable to or on behalf of the plaintiff, pursuant to the terms of settlement.
The court found that, although s12B imposes a statutory regime for the disposal of the damages to be paid by the court or are the subject of a compromise agreement, it is inaccurate to describe the chose in action that the offender pursues against the protected defendant in order to obtain those damages as ownerless property. Furthermore, s12B does not deprive the offender absolutely of the offender's right to receive damages for the action against the protected defendant for the civil wrong. According to s14 Acts Interpretation Act, the terms of s12B are clear, and its interpretation must be consistent with the expressed intention of the parliament, despite the consequences for the plaintiff. The plaintiff's application for declaratory relief was dismissed.
The ALA would like to thank Roopa Varadharajan for this contribution.
Transport Legislation (New Queensland Driver Licensing) and Other Legislation Amendment Regulation (No. 1) 2010 (QLD)
Date of enactment: 23 July 2010
This Regulation makes amendments to the:
- Adult Proof of Age Card Regulation 2010
- Tow Truck Regulation 2009
- Transport Operations (Marine Safety) Regulation 2004
- Transport Operations (Passenger Transport) Regulation 2005
- Transport Operations (Road Use Management—Accreditation and Other Provisions) Regulation 2005
- Transport Operations (Road Use Management—Dangerous Goods) Regulation 2008
- Transport Operations (Road Use Management—Driver Licensing) Regulation 1999
- Transport Planning and Coordination Regulation 2005
- Liquor Regulation 2002
Commissioner of State of Taxation v Cyril Henschke & Ors [2009] SASC 148 (29 May 2009 )
The partnership of CA Henschke & Co (the partnership) as constituted from time to time had been in the winemaking business for 50 years. By a deed dated 17 January 1986, Mrs Doris Henschke and the three respondents agreed to conduct the partnership business and hold interests in that business. On 22 December 2004, the property of the partnership, comprising almost entirely the goodwill in the partnership business, was valued at around $36 million. On 23 December 2004, the partners executed a deed by which Doris retired (the Retirement Deed). Doris was paid approximately $6m representing her one-sixth interest, and the former partners (the continuing partners) continued the partnership business. In March 2006, the appellant assessed stamp duty on the Retirement Deed at $316,669 on the basis that the Retirement Deed effected a transfer of Doris' interest in the goodwill to the continuing partners. In December 2007, the objection by the continuing partners was disallowed.
They appealed against the assessment to the Supreme Court. Gray J began by noting that a partner has a beneficial interest in all of the property of the partnership. His Honour approached the issue before him as being: on retirement from a partnership, not whether the beneficial interest has been conveyed, but whether there was a conveyance of the interest by the document on which stamp duty is to be levied. He held that either expressly or by necessary implication the conveyance of Doris' interest in the partnership property was effected by the Retirement Deed. The assessment was upheld.
On appeal, the Full Court described the interest of a partner in partnership property as an interest in every asset expressed as a right to share of any surplus (after realisation of assets and discharge of liabilities). The court considered that the right was an equitable right and was categorised as a chose in action. The court held that the effect of the Retirement Deed was not to convey Doris' interest to the continuing partners, but rather that the Deed effected a transaction by which the equitable chose in action was converted into an entitlement to payment of a specific amount and once that payment was satisfied, that chose in action ceased to exist. Having concluded that Doris' interest was not transferred, the Full Court found that both in form and substance the transaction was not a sale and so not subject to stamp duty. The Commissioner has lodged an appeal with the High Court.
Higgins v Weissman [2010] VSC 294
In Higgins, a panel made a jurisdictional error in stating that the services in question were not appropriate or adequate for treatment of the applicant's condition. The panel either misapprehended the medical question it was asked or misunderstood the relevant effect of s99(1)(a) of the relevant Act, or both [36]. The panel erroneously proceeded on the ‘basis that the medical services in question were not adequate or appropriate services for the treatment of the applicant's condition for the purposes of s 99 merely because they did not produce any long-term improvement in the symptoms or functional capacity of the applicant, notwithstanding that they produced short-term relief from pain and may have prevented deterioration in his condition'[21].
The ALA would like to thank David Kidd of Kidd's Law Publications (Kidd LRS Pty Ltd) for this contribution.
Stephen Paul Tomlinson v Kilkenny Cleaning Services Pty Ltd (No.2) [2010] VCC (23 July 2010) (Her Honour Judge Morrish)
In Tomlinson, the plaintiff made a serious injury application by s134AB, under both heads, which was initially rejected. An originating motion was then issued. Prior to the hearing of the originating motion, the worker's solicitor was contacted by WorkSafe. An offer was made for the plaintiff to withdraw his application and bear his own costs. The worker was put on notice that should he not do so and be subsequently unsuccessful with his application in court, an order for costs would be sought and enforced against him. The defendant further stated it had video evidence of the plaintiff which it intended to use to defend the serious injury application in court. The plaintiff was ultimately successful in court in obtaining a serious injury certificate for pain and suffering. The video evidence was found to be of no consequence as it did not show the plaintiff performing any activities he said he could not perform.
An application for indemnity costs was subsequently brought by the plaintiff. The defendant asserted that the legal costs order prohibited the awarding of costs other than party/party against WorkSafe. However, her Honour Judge Morrish found that, notwithstanding the wording of the legal costs order, she had jurisdiction to order indemnity costs against WorkSafe. Her Honour found that the defendant's conduct amounted to high-handed behaviour unbefitting a model litigant and ordered indemnity costs against the defendant.
The judgment is not yet published online, but can be viewed or downloaded in pdf here.
The ALA would like to thank Henri Kauthen of Robinson Gill Lawyers for this contribution.
Woolcott v Seeger [2010] WASC 19
In Woolcott, the defendant maliciously defamed a naturopath colleague, imputing - amongst other things - that the plaintiff was a crook, dishonest, unqualified and cheating the government. Although publication of the defamatory material was limited, it was published on a website and in various emails sent to important and influential people and organisations. The plaintiff's health was affected and attendance at his lectures had already declined. He also received some adverse emails and comments. Le Meire J awarded $50,000 in general damages and $20,000 in aggravated damages. Interest was also awarded and an injunction was imposed.
The ALA would like to thank David Kidd of Kidd's Law Publications (Kidd LRS Pty Ltd) for this contribution.
The NSW Bureau of Crime Statistics and Research has released the following publication entitled: Comorbid substance and non-substance mental health disorders and re-offending among NSW prisoners. This research followed 1,208 NSW prisoners for 24 months following their exit from prison. After controlling for other factors (for example, gender, age, Indigenous status, number of prior court appearances) the Bureau found no overall difference in the risk of re-offending between those with no mental health disorder and those with (a) a substance-abuse disorder only or (b) a non-substance abuse disorder only.
The risk of re-offending was significantly higher for prisoners with a co-morbid disorder, that is, those who had both a substance-abuse disorder and a non-substance abuse disorder (for example, anxiety, depression or a personality disorder). After adjustment for demographic and criminal history characteristics, the rate of re-offending among prisoners who had co-morbid substance and non-substance mental health disorders was 67%, compared with 55% among prisoners who had only a substance-abuse disorder; 49% for those with a non-substance mental health disorder and 51% for those with no mental health disorder.
The research suggests that treatment for prisoners who have both mental health and drug problems could help reduce the risk of re-offending .
The report is here and the press release is here.
Some prescribed sexual offence cases raise issues regarding competency and compellability of witnesses: see ss12-16 inclusive of the Evidence Act 1995 (NSW). Issues regarding competency and compellability in a prescribed sexual assault case are dealt with by ss12 and 13 of the Evidence Act 1995 (NSW). Section 12 of the Evidence Act 1995 (NSW) creates a presumption that all persons are competent to give evidence. However, s13 provides that this general presumption can be overturned where it is proved that a person:
(a) does not have the capacity to understand a question about a fact, or
(b) does not have the capacity to give an answer that can be understood to a question about the fact and where such incapacity cannot be overcome.
Even if a person is competent to give evidence about a fact, a determination may need to be made as to whether the evidence given is sworn or unsworn. A person cannot give sworn evidence if the person does not have the capacity to understand that he or she is under an obligation to give truthful evidence. However, such a person can give unsworn evidence if a court tells the person that:
(a) it is important to tell the truth, and
(b) that they may be asked questions they can't answer or have forgotten, and that they should tell the court if that occurs, and
(c) that they may be asked questions that suggest certain statements are true or untrue and that they should agree with the statement if they believe the statement to be true and should feel no pressure to agree with statements they believe are untrue.
The SMH reports that deleted, but decoded, text messages totally undermined a schoolgirl's rape claims against a Sydney businessman. Prosecutors have been ordered to pay more than $30,000 in legal costs for the bungled rape investigation. In what may be the first time an iPhone's elephantine memory has saved someone accused of a serious crime, deleted data retrieved by a leading surveillance expert appears to have led to the dropping of 5 rape charges against a Sydney man.
The only thing standing between the accused and 5 sentences of up to 14 years were messages from the girl on his iPhone, which he had deleted to conceal the relationship. The man's lawyer, John Gooley from Collins & Thompson solicitors, commissioned Gary Coulthart, a former covert operations policeman and ICAC surveillance expert, to plumb the depths of the iPhone. Mr Coulthart retrieved more than 300 deleted texts and phone calls from the alleged victim, some of which undermined the allegations. Prosecutors withdrew the charges and have been ordered to pay legal costs.
Friday 20 August 2010
Get this date in your diary and join your local branch for this popular annual event, to be held in Perth.
Topics for discussion include:
- Keynote Address: My Vision for the District Court for 2010 and Beyond, presented by The Hon Chief Justice Peter Martino, District Court of Western Australia
- A Maggot in the Justice System, presented by Professor Ian Dadour, Director/Forensic Entomologist, Centre for Forensic Science, University of Western Australia
- Applying for Cost Orders, presented by Stuart Forbes, WA Cost Consultants
- DRD Case Review, presented by Brian Nugawela, barrister, John Toohey Chambers
- Appeals Against Findings of Fact and Credibility, presented by Tom Percy QC, barrister, Albert Wolff Chambers
- The Future of Dispute Resolution for Workers' Compensation Claims, presented by Shane Melville, Director of Dispute Resolution Directorate, WorkCover WA
- Criminal Property Confiscation: Substitute of Assets - An Update, presented by Laurie Levy SC, barrister, Albert Wolff Chambers
Click here for further information and to register online. Thank you to our conference sponsors: Perpetual, The Trust Company and Ask Funding.
Early bird registration closes 6 August 2010.
The Australian Lawyers Alliance 2010 National Conference will be held from 21 to 23 October at the Alice Springs Convention Centre. This will be the Alliance's first NT conference and we are delighted to be offering an exciting and thought-provoking program with some exceptional speakers and an equally vibrant range of social activities.
Located at the geographical heart of Australia, Alice Springs is the perfect location to bring together members from across the country. Flying time from most capital cities is approximately three hours, and daily flights are available.
We invite all members to join us at this fascinating event.
CLICK HERE for further details and to register online.
Thursday 2 September 2010. Get this date in your diary!!
The VIC Trivia Night is set to be one of the most popular annual events on the Australian Lawyers Alliance calendar. Sharpen your pencils and your minds for a night of fun and entertainment as you battle it out to claim the winner's prize!!
Gather your colleagues and form a team of eight to ten players, or let us allocate you to a team.
Add this date to your diary now as this event is guaranteed to SELL OUT!!
Further information to follow shortly.
Join the WA branch for this not-to-be-missed, informative afternoon seminar on Wednesday 15 September 2010 in Perth.
The topic for discussion is Recent Developments in CIC, presented by Helen Porter, Chief Assessor, Criminal Injuries Compensation. This seminar is followed by evening drinks.
Further information to follow shortly.
Put these confirmed dates in your diary:
WA State Conference, 20 August 2010, Novotel Langley Hotel Perth
National Conference, 21-23 October 2010, Alice Springs Convention Centre
QLD Conference, 18-19 February 2011, Sheraton Mirage Resort & Spa Gold Coast
NSW Conference, 18-19 March 2011, Crowne Plaza Terrigal
Keep an eye on our website for updates - www.lawyersalliance.com.au/events
Were you unable to attend a Lawyers Alliance event? Don't worry, you haven't missed out. Papers from all ALA conferences and most seminars are available for purchase.
Some state and territory CLE/CPD schemes offer points for the reading of papers and can therefore add to your CLE/CPD credits.
Click here to download the paper order forms from Lawyers Alliance events going back to 2004.