In this episode of Hearsay, I’ll dig in to the issue of homelessness, looking at how a media campaign can lead to new criminal laws, how we have criminalised poverty and homelessness through history, and how the City of Melbourne is empowered to create new crimes (even if the Lord Mayor doesn’t really understand that’s what he is proposing). Are we returning to the old days of locking up “idle persons” and “incorrigible rogues”? Continue reading “1×02: Idle Persons and Incorrigible Rogues”
The High Court has reinstated a murder conviction in the high profile case of Gerard Baden-Clay, confirming an initial jury verdict. Baden-Clay was charged with murdering his wife in 2012 after she discovered he was having an affair. He was tried in the Supreme Court of Queensland in 2014. The jury convicted him following a hearing that lasted more than a month, and he was sentenced to life imprisonment. Baden-Clay appealed the jury verdict, arguing that it was “unreasonable, or can not be supported having regard to the evidence”.
During the appeal, Baden-Clay’s lawyers argued that the jury could not rule out the possibility that their client had an altercation with his wife and accidentally killed her. This would mean they could not find, beyond reasonable doubt, that Baden-Clay had the required mens rea for murder (that is, intention to kill or seriously injure the victim). The Queensland Court of Appeal accepted that argument and substituted a verdict of manslaughter.
The prosecution then appealed this decision to the High Court, arguing that the murder verdict should be reinstated. They said that while “the defence offered theories of suicide, overdose, a fall, drowning and alcohol as the cause, unintended or accidental killing by Mr Baden-Clay was not offered during trial”. In fact Baden-Clay had chosen to give evidence and denied any involvement with his wife’s death, which would rule out accidental death.
The High Court agreed with this argument. In the unanimous judgment of five justices, it found that Baden-Clay had chosen to testify that he had not had a physical altercation with his wife, and therefore “the only witness who could have given evidence to support the hypothesis gave evidence which necessarily excluded it as a possibility.” The jury could logically exclude the accidental death scenario, which meant their guilty verdict was not unreasonable.
Importantly, the High Court gave a strongly-worded warning that overturning a jury’s verdict should not be done lightly: “Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ … is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. … [A] court of criminal appeal is not to substitute trial by an appeal court for trial by jury.”
While the issue in this case was the concept of an “unreasonable” verdict under s 668E(1) of the Queensland Criminal Code, the High Court’s comments will be relevant in other jurisdictions. For example, the Victorian Criminal Procedure Act 2009 includes a similar rule for appeals in s 276(1)(a): the Court of Appeal “must allow the appeal against conviction” if the court is satisfied that “the verdict of the jury is unreasonable or cannot be supported having regard to the evidence” — in other words, if the appeal court agrees that the jury reached an impossible verdict based on the evidence presented at the trial.
The High Court has made it clear this power to overturn a jury verdict should only be exercised cautiously.
The Victorian Law Reform Commission has delivered its report on the legalisation of Medicinal Cannabis. In October, the report was tabled in Parliament by Attorney-General Martin Pakula. In December, the Government introduced the Access to Medicinal Cannabis Bill 2015 into parliament, with the intention of having the scheme in place by “early 2017”.
The proposed legislation would allow cannabis to be prescribed to “eligible patients”, which would initially be limited to people under the age of 18 who have epileptic seizures that do not respond to other treatments. This is narrower than the VLRC’s recommendations, which also included patients suffering from severe symptoms of multiple sclerosis, cancer, HIV and AIDS. However, the bill would establish an Independent Medical Advisory Committee to recommend other categories of eligible patient, which could be added by regulation.
Fulfilling an election promise, the Andrews Government asked the VLRC to investigate the best way to implement the legalisation of cannabis for medical purposes. In the issues paper that began the public consultation process, the VLRC noted that the decision to legalise the drug had already been made, and the “terms of reference do not invite the Commission’s views on [the merits of] this policy”.
The VLRC received 98 submissions from lawyers, doctors, academics, activists, community groups, and members of the general public — including one from the possibly pseudonymous Leaf van Amsterdam, who volunteered to be “a willing guinea pig” on the effects of medical marijuana.
The second reading debate on the bill will continue in the Legislative Assembly on Tuesday, 9 February.
Professor George Williams argues: “When it comes to achieving the right to die, community support has yet to translate into votes on the floor of Parliament”. He notes that “the law forbids a doctor from acting on a request from a terminally ill patient to end their life… The best that the law offers such a person is to permit them to starve to death”, citing the WA case of Christian Rossiter. Euthanasia was legalised in the Northern Territory in 1996, but the Commonwealth used its constitutional power over the territories to repeal that law in 1997, by withdrawing the NT’s self-government over laws concerning euthanasia. A bill to legalise euthanasia was narrowly defeated in the Tasmanian parliament last year. In Victoria, Dr Rodney Syme has been defying the law in order to pressure the government to change the law, and an opinion poll suggests a majority of Victorians support legal change, but the Andrews Government has given no indication that it intends to act on the issue.
The High Court recently handed down its judgment on a constitutional challenge to Queensland’s anti-bikie legislation. The case upheld part of the laws, but declined to rule on other parts. A control order scheme aimed at members of declared organisations was found not to infringe the separation of powers between the executive and the judiciary, because it still required courts to consider guilt or innocence in the ordinary way. However, the most controversial parts of the Queensland laws—in particular the Vicious Lawless Association Disestablishment Act 2013 (Qld)—were not considered by the Court because the applicant lacked standing to bring the case. The concept of legal standing is designed to keep hypothetical cases out of the system, but it can prevent test cases being run. Dr Binoy Kampmark of the Rule of Law Institute is highly critical of this aspect of the decision: “Significant in this case is the ruling against the plaintiff’s standing, suggesting a vital blow to public interest and civil liberty litigation. … It is hard to see what Kuczborski could have done [to gain standing] short of actually committing an act in violation of the VLAD laws, and being convicted as a result. One can only appeal after the fact. … Such a ruling places any efforts to challenge legislation that overreaches into the spheres of public life under question.”
Advocates for corporate social responsibility claim the law is making it hard for company leaders to balance broader social issues against shareholders’ financial interests. A former director of ASIC, the corporate regulator, Tony D’Alosio, told the Australian Financial Review, “There is a point at which directors could actually breach their duties if they flip over and take a social position on an issue.” Under the Corporations Act 2001 (Cth), it is an offence for a director to recklessly “fail to exercise their powers and discharge their duties … in good faith in the best interests of the corporation”, with a penalty of up to 5 years imprisonment. Leeora Black of the Australian Centre for Corporate Social Responsibility suggests this emphasis on the interests of the corporation makes it hard for directors to consider broader issues: “One of the directors I spoke to said, ‘I couldn’t possibly be socially responsible, I could go to jail if I’m socially responsible’.”
In its Tajjour v NSW judgment delivered yesterday, the High Court ruled on a challenge to section 93X of the Crimes Act 1900 (NSW), a guilt-by-association offence that bans “habitually consorting” with convicted criminals. The High Court upheld the law’s validity and rejected the plaintiffs’ three arguments. First, applying the Lange test, a majority of the Court accepted that s 93X burdens political communication, but said it is still valid because “it is reasonably appropriate and adapted, or proportionate, to serve the legitimate end of the prevention of crime”. Second, the Court reiterated its previous rulings that there is no “free-standing” implied freedom of association in the Constitution—association is only protected to the extent that it is a form of political communication. Third, the Court unanimously held that freedom of association under the International Covenant on Civil and Political Rights could not restrict State Governments because it has not been ratified by Commonwealth legislation.
The British Home Secretary, Theresa May, is calling for a new criminal offence of “domestic abuse”. Her call has sparked a debate about whether non-physical bullying should be criminalised, with some victims in favour of the proposal, and others saying it should not be a crime. Here in Victoria, the Family Violence Protection Act 2008 (Vic) already includes a broad definition of “family violence”, which includes emotional and psychological abuse, economic abuse, and “in any other way control[ling] or dominat[ing] the family member and caus[ing] that family member to feel fear for the safety or wellbeing of that family member or another person”. A victim can apply to the Magistrates’ Court for a Family Violence Intervention Order, and breaching the order is a criminal offence carrying a term of imprisonment.
Opposition Leader Daniel Andrews has promised to ask the VLRC to investigate the legalisation of marijuana, but said the terms of reference would be limited to its use in medical treatment. The issue came to prominence this year when it was revealed an 8-year-old girl and a 3-year-old boy were being administered cannabis oil by their families, and opinion polling shows widespread public support for medical legalisation. A peer-reviewed article in the Australian Medical Journal, responding to political debate in NSW, stated, “The benefits of cannabinoid pharmacotherapy can be substantial. The risks are generally modest and must be weighed against those of not treating the symptoms or of alternative treatments.” However, the Australian Medical Association and the Victorian Government are calling for more clinical trials before any legal change is made.
The Victorian Government has introduced a bill to address teenage “sexting”, or the sharing of “intimate images”. Concerns had been raised that photos of legal sexual activity between teenagers could result in them being placed on the sex offenders register. Under the changes, where the age gap between the participants is less than 2 years, a photo of a person under the age of 18 will no longer be treated as child pornography. However, it will now be an offence to distribute or threaten to distribute the image without consent. Those offences will also apply to adult “revenge porn”. The legislation is a response to a bipartisan parliamentary Law Reform Committee report, which found that “sexting is being used by adults to intimidate, humiliate and manipulate others”. The chair of the committee, Clem Newton-Brown, explained the bill on radio this week.