Queensland Court Research Articles

Substantive Equality and the Possibilities of the Queensland Human Rights Act 2019

The passage of the Human Rights Act 2019 (Qld) (‘HRA 2019’) was a significant achievement, particularly in a state often known for its parochial conservatism and disinterest in, if not outright rejection of, human rights. The HRA 2019 is substantially based upon the human rights Acts in place in Victoria and the Australian Capital Territory. However, there are some small, but potentially important differences between the HRA 2019 and the corresponding state and territory equivalents. In this article, I focus on one of these differences: the definition of discrimination contained in the HRA 2019. Unlike the Charter of Human Rights and Responsibilities Act 2006 (Vic) the definition of discrimination in the HRA 2019 is not tied to the definition or grounds of discrimination in the state discrimination legislation. This small but important distinction could feasibly allow courts to define discrimination and the broader notion of equality in a more substantive manner, covering a wider variety of actions and conduct, and apply that wider definition to a broader range of attributes (commonly understood as ‘grounds’). The purpose of this article is to consider the possibilities and potential challenges confronting Queensland courts in broadening the definition of discrimination in the context of HRA 2019. I argue that, though a substantive interpretation of discrimination and equality is challenging and requires a degree of ‘creativity’ on the part of judges, it is a challenge worth undertaking.

Amenability of the Executive Power to Pardon to Judicial Review

The amenability of non-statutory executive powers derived from the royal to judicial review remains controversial; not only due to their source, but also because of the nature and subject matter of the powers themselves. One such power is the power of the executive to pardon a convicted criminal, traditionally called the prerogative of mercy. Two recent appellate decisions originating in Queensland have now considered the extent to which the pardoning power is amenable to judicial review. While United Kingdom authorities suggest such decisions are reviewable, in each of these decisions, the Queensland Court of Appeal and the Full Federal Court, respectively, found that decisions resulting in the refusal of pardons were not amenable to judicial review. Nonetheless, important questions remain. Both decisions have significant implications, and the judgments reflect different visions about whether, and to what extent, courts ought to review exercises of non-statutory executive power.

Admission of evidence as proof of sexual interest: challenges for the common law and Uniform Evidence Legislation when the evidence is admissible for another purpose

ABSTRACT The High Court in The Queen v Bauer (2018) 266 CLR 56 ruled on the admissibility of tendency evidence in sexual offence cases which involve a single complainant. Despite the High Court’s desire for simplicity in the approach to be taken to propensity evidence, some questions remain unanswered. This paper argues that even when evidence is otherwise admissible, there must be a judicial ruling on the purposes for which the evidence can be used by the jury. That ruling should be based upon examining the evidence standing by itself to determine if it meets the propensity evidence test. The decisions of the Queensland Court of Appeal in R v Douglas [2018] QCA 69 and R v Wollaston [2018] QCA 4 (both of which pre-date Bauer) and WG v R; KG v R [2020] NSWCCA 155 (which was decided after Bauer) illustrate the challenges in marginal cases of determining the proper limits of propensity evidence, particularly as proof of sexual interest.

‘I Did Not Say That I Would Just Have to Swear in Court and It Would Be Alright’: Police Verballing Practices in Queensland Courts, 1926–61

Trends in large-scale historical data reveal continuities and changes in the prosecution process that might otherwise pass unnoticed. A significant trend emerging from the Prosecution Project database is the dramatic acceleration of early guilty pleas in Queensland's Supreme Court from the late 1940s. An examination of detectives’ testimony provides unique evidence of the police investigation and interrogation practices underpinning this phenomenon. Confession evidence dominated the police prosecution case during this period, specifically verbal confessions. A close reading of these texts suggests that some Queensland police engaged in police ‘verballing’ practices much earlier than identified by the Fitzgerald Inquiry into police corruption. I argue that process corruption had tangible results by transforming the prosecution process from an adversarial to a guilty plea system.

The saviour and the revolutionary: Afro-Caribbean responses in a Queensland/New Guinea kidnapping case

ABSTRACTThe recruitment of Pacific Island labourers for Queensland, Australia, 1863–1904, has often been seen through comparisons to the transatlantic slave trade. Yet the fact that men from Antigua, Barbados and Jamaica pushed for justice after one of the most notorious atrocities of the trade has very rarely been noted, their involvement mired by racist reporting of the case. If seen from the perspective of their Caribbean homelands, their words and actions, often misinterpreted by Queensland's courts and media, can be seen as latter-day resistance to enslavement, oppression and racism.

The Domestic Violence Protection Order System as Entry to the Criminal Justice System for Aboriginal and Torres Strait Islander People

The domestic violence protection order (DVO) system is a hybrid system of criminalisation in which the DVO itself is a civil order, but any contravention of that order may result in a criminal charge. Limited attention has been paid to the potential consequences of criminalisation through the hybrid DVO system in the Australian context. We use Queensland as a case study and examine administrative data gathered through Queensland Courts. We show that a disproportionate number of Aboriginal and Torres Strait Islander (ATSI) people are named on DVOs, charged with contraventions of DVOs and significantly more likely than non-Indigenous people to receive a sentence of imprisonment for a contravention of a DVO, compared to non-Indigenous people. We find that ATSI women are particularly overrepresented in this system. We review explanations for these startling figures and emphasize the need for a change in approach.

Lawyers' experiences with fitness to plead to summary offences

In a number of Australian jurisdictions the approach to the determination of fitness to plead to summary offences is very unclear. The Queensland Court of Appeal has discussed the issue that in Queensland there is no general legislation that deals with deciding if a person charged with a summary offence is fit to plead. This article reports on a study that was conducted to examine legal practitioners' experiences with the issue of fitness to plead to summary offences in Queensland. This article examines the fitness to plead to summary offences literature, presents and discusses some of the key findings from the study and offers suggestions for law reform. The themes examined in this article are legal practitioners' experiences and opinions on the legislative gap, what participants believe are the effects and consequences of not having legislation in this area and participants' recommendations for law reform. This research has relevance beyond Queensland as it is highly likely that this is an issue in other Australian jurisdictions.

Assessing Compensation for Landholders Affected by Coal Seam Gas Occupation

Valuation theory in Australia has long established principles relating to compensation for the acquisition of part of property. However, the theory relating to assessing compensation for coal seam gas (CSG) occupation is relatively undeveloped and CSG activity in New South Wales (NSW) takes place in an environment where some confusion surrounds the subject of the assessment of landholder compensation.This paper applies a comparative study of the compensation assessment practices of courts in NSW, Queensland and Alberta. The research, reported in this paper, documents a trail of judicial decisions supporting the use of “piecemeal” and “before and after” approaches where mining infrastructure occupies part of property. A comparison of the valuation techniques identified in this study with the harms described by Fibbens et al 2013 indicates the “piecemeal” and “before and after” valuation approaches have greater utility in addressing losses to the balance land than the so called common industry practices used in NSW which ignore effects on the balance land.

Deed I do…if signed and delivered: 400 George Street (Qld) Pty Limited v BG International Limited

The Queensland Court of Appeal decision in 400 George Street (Qld) Pty Limited v BG International Limited1 (400 George Street) provides a timely reminder to lawyers of the important differences between deeds and other legal instruments. This case note outlines the key characteristics of deeds, discusses how those key characteristics were considered in the 400 George Street litigation and also provides lessons for lawyers to consider when drafting deeds and advising clients on the proper use of deeds.

Exploring Juvenile Fitness for Trial in Queensland

This study presents data on the number of juveniles raising and being found unfit to stand trial in Queensland courts and investigates why Queensland juveniles are half as likely as adults to be found unfit to stand trial. The article briefly sets out the legal regimes determining questions of fitness in Queensland. The developmental characteristics of juveniles are explored, indicating that juveniles are more likely than adults to suffer from deficits in areas relevant to trial fitness. Some hypotheses regarding the low rate of applications and findings of juvenile unfitness are considered, including failings by legal practitioners to identify juveniles who potentially lack fitness; tactical decisions by legal practitioners who decide against formally raising unfitness; and shortcomings and confusion surrounding the law and procedure in relation to trial fitness.

Pro-Arbitration Policy in the Australian Courts — the End of Eisenwerk?

International arbitration is an important area of federal jurisdiction and federal legislative competence, and has attracted significant policy attention in Australia. This paper undertakes a study of pro-arbitration judicial policy in recent arbitration-related Australian case law which touches upon the continuing applicability of the controversial 1999 Eisenwerk decision of the Queensland Court of Appeal. Against this pro-arbitration judicial policy context, this paper reviews five Eisenwerk-related cases handed down between 2010 and 2012. It concludes that despite pro-arbitration judicial policy being embedded as a requirement of reasoning in decisions under the International Arbitration Act 1974 (Cth), there is mixed evidence of such policy in the cases surveyed. This paper concludes that the extent to which this policy is evidenced largely corresponds with the degree to which contemporary decisions have departed from Eisenwerk.

Pro-Arbitration Policy in the Australian Courts — the End of Eisenwerk?

International arbitration is an important area of federal jurisdiction and federal legislative competence, and has attracted significant policy attention in Australia. This paper undertakes a study of pro-arbitration judicial policy in recent arbitration-related Australian case law which touches upon the continuing applicability of the controversial 1999 Eisenwerk decision of the Queensland Court of Appeal. Against this pro-arbitration judicial policy context, this paper reviews five Eisenwerk-related cases handed down between 2010 and 2012. It concludes that despite pro-arbitration judicial policy being embedded as a requirement of reasoning in decisions under the International Arbitration Act 1974 (Cth), there is mixed evidence of such policy in the cases surveyed. This paper concludes that the extent to which this policy is evidenced largely corresponds with the degree to which contemporary decisions have departed from Eisenwerk.

A Consideration of the Legitimacy and Equity of Queensland's Offender Levy

In 2012 the Queensland Government introduced an offender levy. The levy is applied to every offender, other than a child, who is sentenced in a Queensland court. Queensland's offender levy does not form part of the sentence imposed by the court and applies regardless of the offender's circumstances. The levy cannot be waived or reduced. Revenue raised from the levy is directed to consolidated revenue and will help pay for the cost of law enforcement and administration. Drawing on experiences of offender levies in other jurisdictions, this article examines the legitimacy and equity of the Queensland offender levy regime and the law reform process surrounding it.

Amphetamine-Induced Psychosis and Defences to MurderR v Clough [2010] QCA 120 (Muir and Fraser JJA and Applegarth J)

The Criminal Codes in Queensland and Western Australia both require a two-stage test to be satisfied for an accused person to avail of an insanity defence. As also occurs in most other jurisdictions, the insanity defence does not apply in cases where the accused was intentionally intoxicated. In R v Clough [2010] QCA 120 the Queensland Court of Appeal dismissed an appeal from a conviction in which the accused murdered his wife whilst was he was actively psychotic following intentional amphetamine use more than 24 hours earlier. After considering extensive case authority and the construction of the amended Criminal Code provisions relating to intoxication, the Court of Appeal emphasised that any effect of intentional intoxication, whether transient or more prolonged, will deny an accused an unsoundness of mind defence. This case commentary considers the pharmacology of amphetamines and the often difficult distinction between amphetamine intoxication and amphetamine-induced psychosis is discussed.

Consent, Power And Mistake Of Fact In Queensland Rape Law

This article critically examines the legislative definition of rape in Queensland, ten years after the last round of major amendments in 2000. It begins by examining the approach of the Queensland Court of Appeal to the central notion of consent, focusing on cases decided since the amendments. The article then considers the role played by the defence of mistake of fact under s 24 of the Criminal Code 1899 (Qld) in a number of recent appeals from rape convictions. It is argued that the Queensland legislature should consider significantly limiting the application of s 24 to the offence of rape.

Court-Provided Trial Technology: Efficiency and Fairness for Criminal Trials

In Australia, trials conducted as ‘electronic trials’ have ordinarily run with the assistance of commercial service providers, with the associated costs being borne by the parties. However, an innovative approach has been taken by the courts in Queensland. In October 2007 Queensland became the first Australian jurisdiction to develop its own court-provided technology, to facilitate the conduct of an electronic trial. This technology was first used in the conduct of civil trials. The use of the technology in the civil sphere highlighted its benefits and, more significantly, demonstrated the potential to achieve much greater efficiencies. The Queensland courts have now gone further, using the court-provided technology in the high profile criminal trial of R v Hargraves, Hargraves and Stoten, in which the three accused were tried for conspiracy to defraud the Commonwealth of Australia of about $3.7 million in tax. This paper explains the technology employed in this case and reports on the perspectives of all of the participants in the process. The representatives for all parties involved in this trial acknowledged, without reservation, that the use of the technology at trial produced considerable overall efficiencies and costs savings. The experience in this trial also demonstrates that the benefits of trial technology for the criminal justice process are greater than those for civil litigation. It shows that, when skilfully employed, trial technology presents opportunities to enhance the fairness of trials for accused persons. The paper urges governments, courts and the judiciary in all jurisdictions to continue their efforts to promote change, and to introduce mechanisms to facilitate more broadly a shift from the entrenched paper-based approach to both criminal and civil procedure to one which embraces more broadly the enormous benefits trial technology has to offer.

The Role of Australian Indigenous Elders in Court When Sentencing Partner Violence Offenders

This paper maps and assesses the role of Australian Indigenous Elders when sentencing partner violence offenders in Indigenous sentencing courts. The paper is based on research that focuses on the courts in New South Wales and Queensland, and on the views of Magistrates, Elders, court workers and domestic violence support workers associated with those courts. The paper begins by firstly giving an overview of the Indigenous sentencing courts in Australia and describing in more detail the different processes of five of the courts: Brisbane, Mt Isa, Rockhampton, Nowra and Dubbo. Next, the paper outlines what feminist and critical race scholars have said about using alternative justice forums to deal with family violence offences. There has been a great deal of debate surrounding the appropriateness of using alternative justice practices such as restorative justice and Indigenous-controlled justice practices, for the resolution of partner, sexual and family violence offences. Those that support the use of alternative justice processes do so because they recognise that victims and the community are given more of an opportunity to participate in the process and voice their concerns. However, some feminist scholars have warned against the use of informal justice practices because they claim such practices cannot correct power imbalances between victims and offenders of family violence, and that ultimately more punitive responses should be adopted despite a victim’s desire to maintain family unity. These debates will be further explored by placing them within a critical race framework. Finally, the chapter will use data collected from 39 interviews and observations at the five court sites to determine what role Elders have in addressing some of the concerns outlined in the abovementioned debates. In particular, the findings will focus on explaining how the role of the Elders and the particularities of the court processes can assist in bringing about changes to an offender’s behaviour.

Indigenous Sentencing Courts and Partner Violence: What Happens to Gender Power Imbalances During the Sentence Hearing?

This paper goes some way in mapping and assessing the processes of Indigenous sentencing courts when dealing with family violence offences. In particular this research focuses on intimate partner violence (rather than other forms of family violence) since it is the most frequent form of family violence in Indigenous communities. Rates of intimate partner violence and intimate homicide in Indigenous communities are widely documented as being much higher than that in non-Indigenous communities, despite the fact that measuring these rates is not straightforward. The use of the courts for sentencing family violence offenders has been supported and encouraged by many of the key players and Elders involved with the courts. However, others, including key players and Elders involved with the Koori Courts in Victoria, consider the dynamics surrounding the offence of family violence to be too complex for consideration by the Elders which sit on the Indigenous sentencing courts. The presence of gendered power imbalances in a hearing concerning domestic and family violence is often identified as being a particularly problematic aspect of alternative justice processes. Victims who are present at hearings held in alternative justice forums often lack proper support to counter the risks of further abuse and control continuing during such hearings. The main focus of this paper is the extent to which gendered power imbalances are present in sentencing hearings conducted in Indigenous sentencing courts and how such power imbalances are addressed by the presence of Elders. The research specifically focuses on the courts in New South Wales and Queensland, and on the views of Magistrates, Elders, court workers and domestic violence support workers associated with those courts. Feminist critical race theories that have explored the complexities involved in responding to family violence in Indigenous communities, are used as the theoretical framework from which to consider whether the processes of the Indigenous sentencing courts are suitable for dealing with offenders and victims of intimate partner violence. In particular, emphasis will be placed on studies that have focused on critiquing the different types of court processes that are used for resolving matters involving family violence. The paper firstly describes the different processes of the Indigenous sentencing courts in Queensland and New South Wales. Next, it outlines what feminist and critical race scholars have said about using alternative justice forums to deal with family violence offences and whether these alternative justice forums are able to rectify any gender power imbalances which exist during the hearing itself. Finally, findings from an analysis of data collected from 39 interviews and eight observations of intimate partner violence sentencing hearings in the courts is presented to discuss whether the presence of Elders in Indigenous sentencing courts is able to provide a buffer for the victim against experiencing gendered harms during the hearing.

Expert Evidence in the Queensland Mental Health Court

In Donoghoe v DPP (Qld) [2008] QCA 309, the Queensland Court of Appeal dismissed an appeal from a decision of the Mental Health Court which considered a range of expert opinion on whether the appellant was in a state of abnormality of mind such as to substantially impair her capacity to know that she ought not kill her children. After reviewing the expert evidence of the four psychiatrists, as well as the advice of the two psychiatrists appointed to assist the Mental Health Court, the Court of Appeal did not find that it was unreasonable for the Mental Health Court to come to the view that the appellant's anger and resentment towards her former husband were such as to afford an explanation of her actions on the relevant day. The Court of Appeal considered how determinations of criminal responsibility can be made where there is widely divergent expert opinion on the state of mind of an accused person at the time of an offence.

Risk Assessment and Sentencing of Serious Sex Offenders

In Buckley v R [2006] HCA 7; (2006) 224 ALR 416; (2006) 80 ALJR 605, the High Court of Australia heard an appeal from the decision of the Queensland Court of Appeal which considered the sentencing of a serious sex offender. The principal issue for the High Court was whether, in imposing an indefinite sentence, the sentencing judge observed the principles to be applied in the exercise of the power conferred by the Penalties and Sentences Act 1992 (Qld). A subsidiary issue was whether, in considering the evidence of three expert psychiatrists, the sentencing judge made material errors of fact in exercising the sentencing discretion. The High Court held that a proper exercise of the power under s 163 of the Penalties and Sentences Act 1992 (Qld) involved an understanding of why it was exceptional, and careful attention to the considerations that call for its exercise. In considering the risk of serious harm to members of the community if an indefinite sentence were not imposed, a sentencing judge is required to consider the protective effect of the finite sentence that would otherwise be imposed.