The Minister for Police, Michael Ferguson, who at one stage was a temporary member of the House of Representatives, made Peter Dutton type noises during debate on amendments to anti-bikie legislation, the Police Offences Amendment (Prohibited Insignia) Bill.
According to the minister, the legislation does not give bikie gangs “any chance to drag this trough the courts with injunctions and legal moves, adjournments, gathering of evidence, cross examination, questioning of witnesses … and various claims that would drag this out for years and would only give the upper hand to the outlaw bikie gangs and their criminal defence lawyers”.
There was more:
“… I am sick and tired of hearing the Labor Party fighting for criminal defence lawyers’ preferred model, which is unworkable and plays only to their interests. Who do criminal defence lawyers represent? They represent criminals.”
It sounds dreadful – defendants wanting to gather evidence and cross-examine witnesses.
Mr Justo is a commercial sort of lawyer, but that didn’t stop him getting out the Law Society’s finest stationery and carefully explaining to the minister, as though he was helping a slow child, that there is such a thing as the rule of law and that criminal defence lawyers have a bit of a role to play.
“… fairness demands that everyone, including those charged with a crime be given a fair go. Unfortunately your comments demonstrate that you have little idea of or no regard for such important principles.”
He went on:
“You clearly suggest that the interests of criminal defence lawyers and criminals are one and the same. Such a suggestion is profoundly wrong and profoundly disappointing.”
What is also disappointing is that parliaments around the country are acquiring more and more members of the Dutton-Ferguson variety.
In February 2015, Asim Mujkic and Goran Mujkic, who ran a medical practice through Mujkic Family Company Pty Ltd, engaged Clarke & Gee to terminate a winding-up order that had been made against their practice.
W.F. Lester, a lawyer and director of the law shop, agreed to take on the Mujkics’ case, but by May 2016 little progress had been made.
Another firm took over and got the winding-up order terminated, but by then the medical practice’s liquidators had incurred further costs.
The evidently unhappy Mujkics began proceedings against Lester for negligence in July 2017.
At first instance, Associate Justice Stephen Holt struck out the claim on the basis that the loss had been incurred by the family company, to which Lester owed no professional duty.
On appeal, Blow CJ, Brett J and Marshall AJ disagreed.
Writing for the court, Shane Marshall accepted that it was at least arguable that the interests of the Mujciks and the company were sufficiently aligned to give Lester a duty of care to the company.
Further litigation seems to be in store for Lester.
This contentious issue came to a head in the case of Andrew Hodgetts, whose sentencing appeal was dismissed by the CCA in Hobart on October 4.
Hodgetts had pleaded guilty to 10 courts of computer-related fraud whereby he trousered $700,000 from his employer. He was sentenced by Robert Pearce to five years’ porridge and required to serve at least three.
Timsy acted for him at the appeal and made the submissions that the court comprised a “small coterie” who sit in judgment of each other; they were prone to the fallibilities of “groupthink” and protecting each other’s backsides; and there was an unconscious temptation not to upset each other’s judgments.
While his submission did not go so far as to suggest that the judges were biased, there was the implication that they have been “insufficiently conscientious when considering submissions that sentences imposed by their colleagues were manifestly excessive”.
Ellis came up with some statistics showing that overwhelmingly appeals for excessive sentences in Van Diemen’s Land had been rejected, whereas in NSW and Victoria a larger percentage of similar appeals were successful.
We flagged Timsy’s submission in July.
“In my experience, all the judges of this court have been consistently conscientious in hearing and determining appeals from their colleagues’ decisions and appeals relating to the conduct of trials and other proceedings by their colleagues. Every year, appeals are allowed in the civil and criminal jurisdictions.
Of course I acknowledge that I am one of the judges whose conscientiousness has been called into question by Mr Ellis SC. However, members of the public are able to make their own assessments as to whether the judges of this court are appropriately conscientious.”
He added it was unsurprising that “the great majority of appeals by defendants who are aggrieved by their sentences are unsuccessful”.
Justice Helen Wood chipped in, saying that because of the size of the court and its structure sentencing judges “have an active awareness of the broad limits of the sentencing discretion enabling them to balance competing considerations and arrive at a just sentence …”
Jamie McCrossan was jailed for assault and wounding in 1990, aged 18, after he held-up an antique shop, with an antique pistol.
He would have been out the following year had not been been the subject of a dangerous criminal declaration after he sent death threats to the victim of this bizarre stick-up.
Instead, he did another 26 years in prison.
Strangely, the legislation does not allow for a periodic review of these declarations or require the state to submit a case for their continuance – a uniquely Tasmanian arrangement.
McCrossan did apply in 2013 to have the order overturned, but that was rejected by Shan Tennent a leisurely few years later, in 2016, noting that he was “in effect institutionalised”.
He has been diagnosed with chronic post-traumatic stress disorder and was moved to a mental health unit of the prison.
Wood said he no longer posed a threat to the public, but he needed ongoing treatment when he comes out on December 14. This is because the dangerous criminal declaration was itself dangerous.