Pineapple punch
Judges • Tuesday, April 9, 2013 Ithaca on the horizon ... Pineapple Mafia sharpening its implements ... Tutt-Tutt ... Wall-banging on the Gold Coast ... A Clare view of the law ... Murph surfs to a victory over the Legal Services Commissioner
Gov House: waiting for Daphnis
CITIZENS continue to puzzle about Daphnis de Jersey's ground-breaking speech to the Qld Law Society's knees-up last month.
That was where the CJ declared that jurors should not be kept in the dark about an accused's priors:
"I trust the intelligence and wisdom of my fellow citizens. I do not accept a claim that made aware of prior misconduct, jurors would automatically say: 'he did that so he must have done this'."
Also, he suggested "evidence of silence" might be a good modernising reform.
Daphnis claimed his recent chats with English judges showed the criminal justice reforms along these lines in the Dart "worked well".
Peter Callaghan SC's rebuttal of de Jersey's thesis can be read here.
Daphnis speech is here.
Analysts believe that the CJ could be psychosomatically getting into step with the hard heads of the Queensland government - Corporal Campbell Newman and his attorney general Jarrod Bjelke-Bleijie.
Could an appointment to the great ice-cream pile at Ithaca be far off?
The current Governor, former diplomat Penny Wensley, recently had her term extended, but anything is still possible.
Daphnis was appointed Chief Justice 15 years ago, when he was 50, and has been a judge of the court since he was 34. It would be understandable if he was feeling a bit jaded with the same-old-same-old, particularly now that his sparkling Palais de Justice is open for business.
If Corporal Newman didn't have some old military wallah in mind for opening fetes and presenting prizes at agricultural shows, who better for the role than Daphnis?
Anyway, that's one theory. Making life tougher for the accused is seen as a job application speech.
* * *
SO, if de Jersey did wind-up at Gov House, the race would be on for a fresh CJ.
Contenders would include the iron man of Queensland justice and former grand fromage at the Queensland and Australian wig 'n' gown clubs, Justice Glenn Martin - just gonged for services to the bar and to Australia.
Those who pretend to understand the intricacies of Queensland swear that Martin is a key member of the Pineapple Mafia, a tight group that decides which way is up.
Another starter is raconteur, poet, bon vivant and general ornament to the bench, Martin (Rugby Paddock) Daubney.
See: Order me a f*&%ing pizza while you're at it
* * *
I WAS as distressed as anyone that retired District Court icon Judge Wally Tutt went down in his pension case.
The Court of Appeal decided that Tutty was only entitled to a pension of 42 percent of his judge's pay-packet and not 47.78 percent.
It means the old geezer has to struggle along on $152,000 a year and not $173,000.
His argument was that his 70th birthday, which brought about his untimely retirement, was just 12 days short of his eighth year as a judge.
He wanted the state to pro-rata the calculation of his pension.
The government said that the six percent annual pension increment applied only to each full-year of complete service by a judge, and Wally was not entitled to a bigger bite.
The Court of Appeal thought that was correct.
Even though Tutt failed in this vital matter of principle, everyone agreed it was unthinkable that a costs order be visited on the poor old pensioner.
The club at work.
* * *
Judge Clive Wallbanger
MEANWHILE, active District Court judges continue to make their mark.
Judge Clive Wall, the Southport Children's Court judge, was on his hind legs at a Gold Coast lawyers' breakfast where he urged Bjelke-Bleijie to get tougher on kiddies.
He wants longer sentences, victims to be able to apply for sentence reviews and for parents to be held responsible for compensation if their wayward sprogs wreak havoc at night.
While some of his suggestions for wider magistrates discretions could be regarded as sensible, the evidence he cited for his "tough on tots" agenda was drawn from such reliable sources as the Courier-Mail, the Gold Coast Bulletin and online posts by their readers.
The Courier-Mail was referred to 13 times in his speech and the Goldy eight times.
To reinforce his case he cited with approval comments from readers, such as:
"No wonder we have these feral kids running around doing what they want. It's called a lack of discipline and respect."
He referred to a survey commissioned by Channel 7's authoritative Today Tonight in February.
"The program highlighted a lack of parental responsibility and groups of teenagers wandering the streets at night and said 28 percent of all crime committed was by children aged 10-19.
I am not sure if these figures are correct, but the public probably considers they are.
Sixty-eight percent of respondents supported a curfew."
Wall rested his case - except the latest annual report from the Children's Court of Queensland proves slightly unhelpful.
It shows that while the number for charges against juveniles increased, the overall number of young defendants decreased by seven percent across the state's court system.
In the Children's Court alone, the decrease in the number of juvenile defendants in 2011-2012 was even more dramatic - more than a 15 percent reduction and in the District Court it was 20 percent.
While the numbers are going down, Judge Wall's sources of incandescent indignation are going up.
* * *
Leanne Clare: victory for lucky accused
THEN there's the always interesting Judge Leanne Clare, former Queensland DPP.
In February, a Brisbane jury found Dean Gillham not guilty of sexual assault, rape, assault occasioning bodily harm and corrupting a witness.
HH put the verdict down to "luck":
"I'm sure that your counsel would have advised you that your defence was hopeless. I'm sure that he would have advised you [of] that, because Mr Harrison is a very good barrister, and any experienced lawyer would have told their client that the evidence the police had gathered in this case was damning, that your explanation for it was unbelievable.
Nonetheless, today you've had some unbelievable luck. Before you go, I want to impress upon you just how close you came to getting locked-up for a very lonq time. I was contemplating a sentence for you in the vicinity of eight years' imprisonment, maybe more.
The reason for that is that the allegations on the indictment were very disturbing, very serious, and in a case like that, the court would need to act for the protection of the community, for the protection of other people.
You have been lucky today, but I want you to know that you are unlikely to ever be this lucky again."
She seems to be confirming the view that justice is a lottery, where the lucksters win.
* * *
BRISBANE barrister John Murphy has notched-up a significant triumph against the Legal Services Commissioner.
The commissioner had been knocking back Muph's complaints about two mystery solicitors, both at the relevant time at Deacons - "R" a partner and "W" a senior associate at the shop.
Murphy was in dispute with Kenneth Oscar Harrison (no relation to the Harrison in the Gillham case) over their joint property development schemes.
There was some unhappy litigation between the two.
Murphy complained to the commissioner that the solicitors who acted for Harrison made unsubstantiated and unfounded allegations of fraud against him; deliberately misled the Supreme Court; and that R engaged in practice without a ticket.
Things dragged on with letters back and forth and the matter was sent to the Law Society.
Harrison said he didn't want to be interviewed, because Murphy had referred him to the police. The QLS returned the file to the LSC saying the matter should be placed "in abeyance".
On March 11, 2011 the LSC wrote to Murph saying he would not be taking any further action and would close the file because there was insufficient evidence.
The commissioner didn't think there was a reasonable likelihood of a finding of unsatisfactory professional conduct or professional misconduct, a requirement that cannot be found in the Queensland Legal Profession Act.
The complainant made further submissions and asked for a reconsideration. He received another knock back.
In a judicial review finding the Daubinator was not impressed, saying that the LSC's determinations not to commence disciplinary proceedings against either R or W, "were so erroneous in law as to require the decisions to be set aside".
Among other things, in dismissing the complaints the commissioner had applied the wrong sections of the LPA, or advanced reasons based on provisions that didn't exist.
The judge sent the matter back to the LSC "for further consideration according to law".
We suspect that the judicial review path for those multitudes aggrieved by the dismissal of complaints by legal profession regulators might become increasingly popular.
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