Queensland Court Research Articles

A Case of Misrepresentation

In this article we examine the extent of social security fraud in Australia and the sentencing outcomes for a sample of social security recipients prosecuted in two magistrates’ courts in Queensland. What the empirical study illustrates is that the characteristics of those prosecuted for social security fraud challenge the media driven stereotype of the organised criminal willingly defrauding the government for large sums of money. In terms of sentencing outcomes, we conclude that people prosecuted for welfare fraud have a high conviction rate and may lack independent legal representation. In the final analysis, we make an argument for examining the issue of social security fraud in the context of labour market changes and levels of poverty and shifting social security policy objectives.

Fitness for Trial in Queensland

Alarge body of case law has developed upon the common law concept of 'fitness for trial' and most Australian jurisdictions have detailed legislative provisions that purport to define 'fitness (or unfitness) for trial' and set out procedures to be followed when an accused may not be fit for trial. There is no detailed definition of 'fitness for trial' in either the Queensland Criminal Code or the Mental Health Act. Most recently, the Queensland Court of Appeal in Re: McElligott [2002] QCA 464 interpreted the specific definition of 'fit for trial' contained in the Mental Health Act 2000 (Qld). This article reviews relevant authority and suggests specific areas of inquiry for an assessment of fitness for trial. Proposals for law reform in Queensland are also made. Given that the Mental Health Court, rather than a jury, usually determines the fitness for trial of accused persons with an intellectual disability and that these persons are almost invariably represented by counsel, it is argued that a standard should be adopted in Queensland which is not overly pedantic and impractical. It is also argued that in this context, only the most severe intellectually disability ought render an accused unfit for trial in Queensland and only in circumstances where the evidence or legal issues are complex. The detention and treatment, under involuntary treatment provisions of Mental Health Act (Qld) of persons with intellectual disabilities who have been found 'unfit' to stand trial, is also discussed.

The Legislation Changed, What About The Reality?

Following the disclosure of sexual abuse it should be the right of every child to ‘have their day’ in court and to assume that the court process will be, within the constraints of the legal justice system, as child focused as possible. This paper will show that while steps have been undertaken within the criminal justice system in Queensland, Australia, to ameliorate the trauma caused to young children when they are required by law to appear as a witness in court, the reality is that many of these children still face the old, and sadly devastating, fact that the process remains unchanged and decidedly ‘unchild’ focused. What this reality means for young children who are exposed to the adult-centric world of the criminal justice system is that they are often re-abused by the very system that has been developed to assist them; a system that ultimately leaves the child, and their families, believing that if the court brings down a not-guilty verdict then what the court is in fact saying is that they, the child, must be guilty of lying. While recent legislation in Queensland, Australia, has passed legislation for the giving of testimony by closed circuit television, the reality is that very few courts in Queensland have this technology available for use and of those that do it is sometimes the case that the technology is out of working order.

Lexical struggle in court: Aboriginal Australians versus the state1

This paper presents a critical sociolinguistic exploration of the cross‐examination of three young teenage Australian Aboriginal boys in a Queensland court. The boys alleged that they had been abducted by six police officers, so they were prosecution witnesses in the case against the police officers. The paper examines the lexical strategies used by defence counsel to construct these victim‐witnesses as criminals with ‘no regard for the community’, and to reinterpret the alleged abduction as a consensual car ride. Of greatest concern is the strategy which I term ‘lexical perversion’– the rejection of a witness's labelling of their own experience, through overt correction with, or covert substitution of, another lexical item. These lexical strategies are central to the judicial legitimation of neocolonial control by the police over the movements of Aboriginal young people.

Sentencing Principles in the High Court and the PSA

This paper examines the significance of two recent decisions of the High Court of Australia for sentencing in Queensland: Wong v The Queen; Leung v The Queen on the role numerical guidelines can play in a scheme of discretionary sentencing; Cameron v The Queen on the conditions for granting or denying discounts for pleading guilty. Although neither decision involved a Queensland offence, they both expressed principles which can complement the loose terms of the Penalties and Sentences Act 1992 (Qld). There were also, however, some statements in Wong v The Queen; Leung v The Queen criticising 'two-stage' sentencing and condemning any use of numerical guidelines. It is argued that Queensland courts need not and should not follow these directions when sentencing under the Penalties and Sentences Act.

“Can’t buy me love” — Public Policy Implications of Cattanach v. Melchior

he question of whether compensation could be awarded for raising a healthy child born as the result of a doctor’s negligence was recently examined by the High Court of Australia in Cattanach v. Melchior (2003) (hereafter ‘Melchior’). the case involved litigation brought by Kerry and Craig Melchior, a married Brisbane couple, against an obstetrician and gynaecologist, Dr Stephen Cattanach. In 1992 he had performed a tubal ligation on Kerry Melchior. She sought the procedure because, having given birth to two healthy daughters, she and her husband had decided they did not want more children. Four years after the sterilisation procedure, at age 44, Kerry Melchior became pregnant. This happened because both she and her doctor mistakenly believed she only had one fallopian tube, and he had only clipped that tube in the operation. Kerry Melchior carried the pregnancy to term and in 1997 gave birth to a healthy son, Jordan. Kerry and Craig Melchior initiated legal proceedings in both tort and contract in respect of the failed sterilisation, against Stephen Cattanach and the State of Queensland, as the authority responsible for the public hospital where the procedure was performed. The action in contract was not pursued, but the trial judge agreed the doctor had been negligent in respect of his provision of advice about the risks of further conception. She awarded around $103 000 damages to Kerry Melchior in relation to the pregnancy and birth, $3 000 to her husband for ‘loss of consortium’ associated with the pregnancy and birth, and around $105 000 damages to both plaintiffs for the cost of raising Jordan to age 18. The defendants appealed unsuccessfully against the last component only of this damages award — compensation for the cost of bringing up the child — to the Queensland Court of Appeal, and then to the High Court. By a majority of four (Justices McHugh, Gummow, Kirby and Callinan) to three (Chief Justice Gleeson and Justices Hayne and Heydon), in July 2003 the High Court upheld the original award of damages. Before the High Court’s decision Australian legal authority on whether damages could be awarded in these circumstances was limited and inconclusive. Two Queensland cases had allowed recovery for the cost of raising a healthy child born as a result of medical negligence — Dahl v. Purnell (1992) and Veivers v. Connolly (1995). The NSW Court of Appeal subsequently addressed the question in CES v. Superclinics (1995), denying recovery by a 2:1 majority. The High Court of Australia granted special leave to appeal against this last decision, in Nafte v. CES (1996), but did not ever hear the case as the parties settled out of Natasha Cica is a Lecturer at the School of Professional Communication, University of Canberra and a Fellow at the Centre for Applied Philosophy and Public Ethics, Charles Sturt University.

Terms of Reference and Negative Jurisdictional Decisions: A Lesson from Australia

THE DISTRICT Court in Townsville is not renowned for its decisions relating to the finer points of international arbitration. The recent decision of the Queensland Court of Appeal in Commonwealth Development Corp (UK) v. Montague,1 however, contains an interesting consideration of the question of costs in the situation where a party successfully challenges the jurisdiction of the arbitral tribunal. It also provides a good launching pad for a broader discussion of the nature and effect of signing Terms of Reference, predominantly used in arbitration conducted under the ICC Rules. This article concludes that it may be in the best interests of the parties to ensure that, with appropriate qualifications, the Terms of Reference constitute an arbitration agreement between the parties with regard to certain limited matters. On 14 December 1994 Commonwealth Development Corp (UK) (‘CDC’) and another party commenced arbitration under the 1988 Rules of...

Failure to Care for a Psychiatrically Ill Child: Provision of Necessaries as a Criminal Offence: Nielsen v The Queen [2001] QCA 85; (2001) 121 A Crim R 239

The 2001 decision of the Queensland Court of Appeal in Nielsen v The Queen (2001 QCA 85; [2001)] 121 A Crim R 239), in which a mother and stepfather were convicted for failure to supply “necessaries” to a vulnerable young woman with schizophrenia, raises many complex contemporary issues for the law and psychiatry. This article contextualises the circumstances in which the victim was denied what she required to maintain physical and mental health, as well as dignity, and explores the potential repercussions of the liberal approach adopted by the appellate court.

Telling the Truth, Laughing

This paper centres on three themes: the lack of a constitutional bill of rights in Australia, especially a right to freedom of speech; the suitability of the judiciary to arbitrate social values; and the importance of public humour, and its relations to Australian defamation law. These themes are illustrated by a discussion of the Queensland Court of Appeal's recent finding that Ms Pauline Hanson was defamed on the ABC by Ms Pauline Pantsdown.

Theissbacher v MacGregor Garrick and Co, or, How a ‘Bankrupt’ can go Scot Free

It recently fell upon the newly created Queensland Court of Appeal in Theissbacher v MacGregor Garrick & Co to be the first appellate court to consider the effect of the annulment of a bankruptcy since 1872. The Court decided by majority that the effect of annulment is that the former bankrupt is, at least in general, treated as never having been made bankrupt.

Dispute Resolution Clauses

Is it possible to draft an enforceable agreement to negotiate? Will the model clause recommended by the Law Society of New South Wales be enforced by Queensland Courts?

Maritime Crime and the Extra Territorial Jurisdiction of the Queensland Courts

During 1984 and 1985 three Justices of the Supreme Court of Queensland each held that the court had jurisdiction to hear offences against the Queensland Criminal Code committed around islands and over reefs in the Torres Straits (The trials of Fritz).1 These rulings raise important questions about the relationship between S.14A of the Code, s.5 of the Coastal Waters (State Powers) Act 1980 (Cth), the Crimes at Sea Act 1979 (Cth) and the Imperial Admiralty Jurisdiction.