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Case Note – MG v Commissioner of Police [2024] QDC 72

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MG v Commissioner of Police [2024] QDC 72

Murray Torcetti Lawyers are criminal defence lawyers who appear in Brisbane and Caboolture Courts. We write our own case notes from recent criminal decisions for internal purposes. However, unlike your annoying sibling, we don’t mind sharing.

Facts: The appellant, MG, appealed against the recording of convictions in the Magistrates Court at Brisbane, where he had pleaded guilty to contravening a domestic violence order and breaching a bail condition. On 22 November 2022, a temporary protection order prohibited MG from contacting the aggrieved, which he breached on 9 December 2022 by calling her and making suggestive comments. MG was subsequently arrested for contravening the order and breaching bail. In the Magistrates Court, MG was fined $500 with a conviction recorded for contravening the domestic violence order and was convicted but not further punished for the breach of bail.

Relevant Findings: The primary issue on appeal was whether the Magistrate erred in recording the conviction. The appellant argued that recording the conviction would adversely affect his economic well-being, particularly concerning his financial licence and business operations.

 

Legal Principles: Section 12 of the Penalties and Sentences Act 1992 (Qld) provides the framework for considering whether to record a conviction. The court must consider the nature of the offence, the offender’s character and age, and the impact that recording a conviction will have on the offender's economic or social well-being and employment prospects. The balancing exercise between the seriousness of the offence and the economic or social impact of the recording of a conviction was articulated in cases such as R v Briese​​ and R v Ali​​.

Court's Analysis:

  1. Nature of the Offence and Offender’s Character: The appellant had a history of previous convictions, indicating repeated offending despite previous opportunities to reform.
  2. Impact on Economic Well-being: The appellant claimed that recording the conviction would affect his financial licence and business but failed to provide specific evidence or substantiate the claim. The court noted that while the National Consumer Credit Protection Act 2009 (Cth) requires disclosure of convictions, there was no certainty that the appellant's licence would be impacted.
  3. Seriousness of the Offence: The offences were considered serious, particularly as they involved breaches of a court order and were connected to domestic violence, adding an aggravating element as per Section 9(10A) of the Penalties and Sentences Act 1992 (Qld).

Outcome: The appeal was dismissed. The court found that the Magistrate had appropriately exercised discretion in recording the conviction, given the seriousness of the offences and the appellant’s criminal history. The speculative nature of the appellant’s claims regarding the impact on his financial licence did not outweigh the need for public denunciation and accountability for breaching a domestic violence order​​.

Notes for Practice:

  • When arguing against the recording of a conviction, it is critical to present specific and substantial evidence regarding the potential negative impact on the offender’s economic or social well-being.
  • Domestic violence offences, especially those breaching court orders, are treated with significant seriousness, and the court is likely to record a conviction to reflect the gravity of such offences.
  • Legal practitioners should ensure that any claims about the adverse impact of a conviction are well-supported with evidence, particularly when related to professional or business licenses.

Disclaimer: This case note is for informational purposes only and does not constitute legal advice. For legal assistance, please contact Murray Torcetti Lawyers at 07 5414 4209. We are criminal defence lawyers serving Brisbane and Caboolture Courts.

 

Because lawyers love a good disclaimer – here is ours – It boils down to: If you need legal advice see a lawyer. Dr Google isn’t going to prescribe you meds if you are sick, Google LLB isn’t going to give you advice or information specific to your situation.

If you need legal assistance. See a lawyer.

You might not read it, but we will rely on it if you try and sue us (smug face).

Case Note Palmer v Queensland Police Service [2024] QDC 67

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Murray Torcetti Lawyers

Case Notes - Palmer v Queensland Police Service [2024] QDC 67

Evade police & Circumstantial Evidence

 Palmer v Queensland Police Service [2024] QDC 67

Murray Torcetti Lawyers are criminal defence lawyers who appear in Brisbane and Caboolture Courts. We write our own case notes from recent criminal decisions for internal purposes. However, unlike your annoying sibling, we don’t mind sharing.

Facts:

The Appellant appealed against convictions and sentence relating to charges of evading police, driving without a licence while disqualified, and possessing dangerous drugs. The original hearing took place in the Magistrates Court at Caboolture, where Mr. Palmer was fined $7,150 and had convictions recorded on all counts. He was found asleep near a vehicle that had evaded police earlier, with personal items linking him to the vehicle. Drugs were found on his person during a police search​​.

Finding:

Appeal against Conviction: The District Court dismissed the appeal against conviction, concluding the circumstantial evidence presented, including descriptions and found items, supported the original findings.

Appeal against Sentence: The appeal against the sentence was allowed. The original fine was set aside due to the significant pre-sentence custody of 260 days, which was deemed excessive. Instead, the appellant was sentenced to 50 days imprisonment for the evading police charge, with the time considered already served. Additionally, he was placed under a six-month supervised release program for the other charges, focusing on rehabilitation and treatment for his mental health issues​​.

Notes for practice:

Here the court dealt extensively with circumstantial evidence to affirm the convictions of Stuart William Palmer for evading police, driving while disqualified, and possession of dangerous drugs. Here’s a detailed breakdown of how the circumstantial evidence was evaluated and utilized by the court:

  1. Nature of Circumstantial Evidence: Circumstantial evidence involves drawing inferences from facts when direct evidence is not available. In this case, the link between Palmer and the criminal activities was primarily established through various indirect pieces of evidence rather than direct witness testimony or explicit acknowledgment of guilt from Palmer.
  2. Specific Instances of Circumstantial Evidence:

Vehicle Identification and Association: The vehicle involved in evading police was identified as a silver Commodore, seen being driven by someone matching the appellant’s description. Although the direct identification of the appellant as the driver at the moment of evading police was not possible, his association with the vehicle was established through his presence near it under suspicious circumstances and personal items found within it, such as a mobile phone and a prison release document in his name.

Physical Description and Location: Police testimony described the driver of the evading vehicle as having physical attributes similar to the appellant’s (e.g., height, hair). Furthermore, the appellant’s was found asleep not far from where the vehicle was eventually abandoned. This proximity in both time and location strengthened the inference that he was involved.

Apparel Matching: The clothing the appellant’s wore when found was identical to that observed by the police on the person who fled — specifically, a red shirt and black pants, further solidifying the connection between him and the events in question.

  1. Linking Evidence to Charges: Evading Police: The critical point for this charge was establishing that the appellant’s was driving the vehicle at the time it failed to stop for the police. The circumstantial evidence here was his proximity to the abandoned vehicle, the clothing match, and the personal items found in the car.

Driving While Disqualified: Records confirmed that the appellant’s was disqualified from driving at the time of the offence. The circumstantial evidence placing him in control of the vehicle thus directly contributed to this charge.

Possession of Dangerous Drugs: When the appellant’s was searched, drugs were found on him. While this could be seen as direct evidence, the circumstantial aspect involves linking him to the ongoing use and possession through his location and activities around the time of arrest.

  1. Court's Evaluation: The court reviewed each piece of circumstantial evidence, evaluating its credibility and the logical inferences that could be drawn from it. The coherence of the evidence as a whole was deemed strong enough to conclude beyond a reasonable doubt that Palmer was guilty of the charges against him.

The court specifically noted that the combination of evidence related to the vehicle's evasion from police and the appellant’s subsequent behaviours and the items found with him formed a compelling narrative pointing to his guilt.

  1. Conclusion of the Circumstantial Case: The judge concluded that the only rational inference from the combined circumstantial evidence was the appellant’s guilt. It was emphasised that while each individual piece of evidence might not conclusively prove guilt, the totality of all evidence excluded any reasonable hypothesis of his innocence.

This detailed handling of circumstantial evidence demonstrates the court’s careful consideration of indirect evidence in building a strong, coherent case when direct evidence may be lacking or insufficient.

  • Circumstantial Evidence: Robust circumstantial evidence can support a conviction if it logically points to the guilt and excludes other reasonable hypotheses.
  • Rehabilitation Focus: The court prioritized rehabilitation over additional custodial punishment, especially considering the appellant's mental health challenges and previous substance abuse.
  • Management of Pre-sentence Custody: The significant time spent in pre-sentence custody was a critical factor in adjusting the sentence, underscoring the importance of considering all aspects of time served when finalising sentencing decisions.

Because lawyers love a good disclaimer – here is ours – It boils down to: If you need legal advice see a lawyer. Dr Google isn’t going to prescribe you meds if you are sick, Google LLB isn’t going to give you advice or information specific to your situation.

If you need legal assistance. See a lawyer. We are lawyers, you can absolutely call us on 07 5414 4209. Criminal law is what we do and a reason we publish these notes…

You might not read it, but we will rely on it if you try and sue us (smug face).

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Behind the scenes after first contact with Murray Torcetti Lawyers

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What happens after I contact Murray Torcetti Lawyers about my court date but before the conference to meet my lawyer?

We understand that being charged with an offence and having to come to court can be an overwhelming experience, and it's natural to have questions and concerns during this time. If you have been really proactive and made contact with us, we may not book a conference with you until closer to the first court date, and you might be asking why your lawyer has not been in touch sooner?

(Rest assured, you can still contact us before the conference if you have any questions)

We wanted to take a moment to provide you with some insight into the steps we undertake behind the scenes, even if it may seem like things are quiet after you've reached out to us but before our conference and your first court date.

At MTL, our team works diligently to build a strong defence strategy tailored to your specific situation. While it may appear that not much is happening immediately after your initial contact if your first court date is still a few weeks away, we want to assure you that we are actively working to protect your rights and interests.

Here are some of the essential tasks that get the ball rolling after your first contact with us.

Court Date and Diary:

As soon as we are notified about your upcoming court date, we add it to our diary to ensure that we have it marked and scheduled. This allows us to manage our caseload effectively and ensures that your case receives the attention it deserves.

Requesting Disclosure:

One of the crucial aspects of building a solid defence is obtaining the necessary information from the police. We promptly write to the police seeking disclosure of the police "QP9" materials, which contain the details of the allegations against you. This material is crucial for us to evaluate the case and develop an effective defence strategy.

File Setup:

Upon taking on your case, we create a dedicated file that contains all the relevant information, including any documentation you have provided us. This file is meticulously organised and serves as a central repository for your case-related materials.

Conference Booking:

If the court date is relatively close, we may lock in a conference right away in anticipation of receiving the police materials relatively quickly.

The timing of our initial conference is informed by when we expect to receive the necessary information from the police, as this enables us to provide you with the most accurate advice and guidance for the consultation.

In some cases, if you have been proactive and called right after being charged, the police may not have the documents ready for a couple of weeks. However, if you are especially worried or concerned you can come in and meet us before hand or give your lawyer a call.

Once we receive the police materials (QP9), we proceed to review them thoroughly and prepare your defence case assessment. At our conference with you, we will discuss the specific details of your case, go over the allegations, and address any concerns or questions you may have.

We understand that waiting for updates can be challenging, but please rest assured that we are diligently working behind the scenes to develop the best possible defence for your case. Should you have any urgent concerns or questions during this period, please do not hesitate to reach out to us, and we will do our best to address them promptly.

 

 

 

 

Most firms would say words to the effect of "thank you for entrustiung us to represent you", we think that goes without saying. We would add "we know needing a criminal defence lawyer is horrible, far worse then having to see a dentist, but we will do our best to shoulder as much of the stress as we can and remove the fear and confusion for you". 

It’s All Important, But It’s Not All Relevant.

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In the R v Smith appeal, the appellant contested the sentence imposed and several facts which formed part of the agreed factual basis she was sentenced on. Ultimately, the appeal was dismissed, and the head sentence of 3 years suspended after 9 months for 5 years remained for the charges of Fraud and Obstruction of justice.

For sentences/pleas of guilty in the Magistrates Court, the District Court, and the Supreme Court an “Agreed Statement of Facts” is used by the parties to identify the factual basis the defendant is being sentenced on. This avoids any surprises by either side and assists the court to be clear about what happened and what the defendant is being sentenced for.

In the Smith appeal the agreed schedule of facts included that when posting the car for sale, Ms Smith did not mention that the car was under a lease. After she had been sentenced, Ms Smith sought challenge some of the agreed facts, saying for example that she did not know she had to advise the car was under a lease.

These challenges however did not impact her case. Why?

When reviewing charges, Criminal lawyers are evaluating the facts and evidence against the elements of the offence our client has been charged with. In this case the facts Ms Smith sought to challenge facts that did not impact the elements of the offence, or her culpability, in any material way.

A break down and example of the elements of fraud can be found here.

This appeal related to the charge or fraud. And while we do not know what sub-section of fraud in the Criminal Code Ms Smith was charged and sentenced under, we can make some assumptions for the point of demonstrating how “elements” of offences work.

We can break it down like this, the elements of fraud are:

  1. A person:
  2. Obtains property from any person:
  3. Dishonestly:

 

Applying the facts to the elements we get the below:

  1. A person: Ms Smith.
  2. Obtains property from any person: The money Ms Smith obtained from selling the car.
  3. Dishonestly: Selling a car that she knew was leased without the agreement of the lessor.  Arguably the funds should have been paid to the financier or transferred to the financier (depending on the contract) not used to pay gym memberships, school fees and other living expenses.

Bearing in mind the agreed facts, Ms Smith’s challenge to the facts, even if accepted, would not change the elements of the charge. In relation to advertising without stating the car was leased, which Ms Smith said she did not believe was a requirement, Justice Morrison said “That is of no moment in light of the admitted fraud, which was to sell the car without seeking or obtaining the lessor’s consent, and without paying the lessor”.

For the client, sometimes everything feels relevant and important. While it might feel important, sometimes it is just not relevant and the fact the client wants to argue over might be pointless.

It falls on the solicitor to explain this to the client. Continued push back on a schedule of facts may result in a contested fact sentence or losing the ability to negotiate further. Taking this approach may run up legal costs needlessly, especially where the contested fact does not have a sufficiently relevant connection to the elements of the offence.

For the lawyers, it is not just about getting the facts signed to cover our risk it is also about making sure the client understands what is happening and why.

Case Note – Sentencing and Mental Health Factors

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Murray Torcetti Lawyers

Case Notes - The More You Know, The Better The Result For the Client

Case Note QLD –  R v Newman (a pseudonym) [2021] QCA 13

Murray Torcetti Lawyers are criminal lawyers in Caboolture. We write our own case notes from recent criminal decisions for internal purposes.

However, unlike your annoying sibling, we don’t mind sharing.

Facts: A 14-year-old sexually assaulted a six-year-old girl, full details of the assault are in the case, sufficient to say it was particularly abhorrent.

The presiding judge sentenced the appellant to 3 ½ year detention to serve 60%. The appeal was on the basis the youth should only serve 50% of the period and detention. The applicant argued no weight was placed on the mental health and other mitigating factors of the applicant.

By way of personal background, the defendant had very low intellectual capacity, was on the autism spectrum, suffered from ADHD and Oppositional Defiance Disorder and had an exceptionally disadvantaged background. The applicant had and a history of similar types of offending and violent behaviour. A psychological report concluded he had very little by the way of empathy, and “presents a probable high risk of sexual reoffending… Future risk of sexual recidivism has been assessed as high”

Justice Sofronoff reiterated the principle in R v Neumann; Ex parte Attorney-General (Qld) [2007], 1 Qd R 53; [2005] QCA 362, where mental health issues can both mitigate and aggravate a sentence.

  1. Where the offence has such as connection to the disorder, general deterrence is insignificant reducing the sentence;
  2. The connection between the offence and the disorder it reduces the moral responsibility for the offence; and
  3. The relationship between the disorder and the disability might be such that the offender is likely to re-offend.

Where the 3rd point is a live consideration, it operates to remove the disability as a mitigating factor (but not increasing the penalty).

Finding: The appeal was not successful.

Notes for practice:

Where mental health factors have been identified, consider how the court could view the impact it should have on sentence:

  • General deterrence should not be a factor;
  • Moral culpability is reduced; or
  • Is the defendant likely to re-offend removing the factor as a mitigating force.

Because lawyers love a good disclaimer – here is ours – It boils down to: If you need legal advice see a lawyer. Dr Google isn’t going to prescribe you meds if you are sick, Google LLB isn’t going to give you advice or information specific to your situation.

 

If you need legal assistance. See a lawyer. We are lawyers, you can absolutely call us on 07 5414 4209. Criminal law is what we do and a reason we publish these notes…

 

You might not read it, but we will rely on it if you try and sue us (smug face).

Do like saving time by having a case summarised before you read the whole thing?

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Case Note – An application to remove an absolute license disqualification.

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Murray Torcetti Lawyers

Case Notes - The More You Know, The Better The Result For the Client

Case Note QLD – Murray v Commissioner of Police [2021] QDC 48

 

Seeking the removal of an absolute driver's license disqualification.

Murray Torcetti Lawyers are criminal lawyers in Caboolture. We write our own case notes from recent criminal decisions for internal purposes.

However, unlike your annoying sibling, we don’t mind sharing.

Facts:

On Christmas Day the applicant with a blood alcohol reading of .167 drove after being warned by friends not to. He lost control of the vehicle, mounted the footpath, and struck a child who died as a result.

The applicant was charged with dangerous operation causing death while affected by alcohol. A sentence of 7 years with parole eligibility after 2 was imposed. After serving 2 years and 2 months the applicant was released on parole, after a year of being on parole, he made an application for the absolute disqualification to be removed.

At the time of the initial sentence, he had strong employment as a carpenter, while on parole he secured employment as a car detailer. His partner and employer had been assisting with him attending employment, however, it was causing a strain on the relationships. Affidavit materials were supplied attesting to the character of the applicant. The applicant had undertaken various courses, and the hardships suffered by the applicant not being able to hold a licence had been addressed in the materials seeking the removal of the disqualification.

After 2 years, an applicant can seek a longer or absolute license disqualification be removed s 131(10) Transport Operations (Road Use Management) Act 1995 (“TORUM”)

The deciding judge quoted Honour Judge Farr SC in Slivo v Commissioner of Police [2016] QDC 46 “a driver licence disqualification can hardly be considered a punishment for a prisoner during the period of incarceration.” Other case law about the balancing of the community expectations and the limiting nature of long and absolute disqualifications were also reviewed.

Finding: Ultimately the Court found there had not been a sufficient loss of license to weigh in the favour of the court granting the application.

Notes for practice:

  • Case law about balancing of factors for and against the removal of a disqualification.
  • The loss of a license while in custody may have limited weight.

Because lawyers love a good disclaimer – here is ours – It boils down to: If you need legal advice see a lawyer. Dr Google isn’t going to prescribe you meds if you are sick, Google LLB isn’t going to give you advice or information specific to your situation.

 

If you need legal assistance. See a lawyer. We are lawyers, you can absolutely call us on 07 5414 4209. Criminal law is what we do and a reason we publish these notes…

 

You might not read it, but we will rely on it if you try and sue us (smug face).

Do like saving time by having a case summarised before you read the whole thing?

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How to make your point in a short period of time in a busy court

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Recently I took part in an online lecture by a family court judge who is also a trainer at the advocacy Institute of Australia. The purpose of the course was to offer insights for advocates in how to affectively represent a client in a busy court.

 

The reality of a criminal lawyer’s work is much of the day-to-day court time is spent in a busy Magistrates Court where the case load is heavy for both the Magistrate and the Prosecution and the lawyer having armfuls of files to get through. It is always painful to see lawyers speaking as if they are being paid by the word. My clients are aware my role is to make the best forensic decision about the materials and arguments. When to push for the result we want, and when to abandon extra arguments and materials that do not assist.

 

Where the facts, charges, and the law lean towards a fine with conviction as the most likely and appropriate result, I am not going to tell the court about every small details of the client’s childhood but instead focus on reducing the range of the fine based on relevant facts and my client’s capacity to pay. In addition to saving the court time, it is also more likely the Magistrate will listen to and understand my argument, which best benefits my client. There is no point in talking at length for the pleasure of hearing my own voice.

 

At the advocacy lecture it was suggested that at the start of your submissions you should tell the court what you are seeking and then outline the reasons why. This is “Sign Posting” in the context of mooting, and it applies to advocacy in practice. It looks like this on paper:

 

Argument: Fine with no conviction recorded:

  1. Early plea
  2. Limited capacity to pay a fine
  3. Minor facts of offending
  4. Lack of criminal history

When you are on your feet it sounds like this:

 

“I am seeking a modest fine with no conviction recorded, for four reasons. 1st, the client is entering a plea at the first opportunity; 2nd my client works part time and only makes $500 per week net, 3rd the offending is not very serious for these types of offences and 4th my client has no criminal history. Does your honour require any further submissions?”

 

The last sentence is an invitation to the court to indicate if they require more information from you, or that they should engage in a discussion about the range if they disagree. This would only be appropriate in some situations; it would be crazy (and possibly negligent) to keep the arguments so short in many cases. Much of what lawyers do when advocating for their client is knowing what information to give the court and how to convey it.

 

Personally, I like to prepare for every plea as if I am going to have to argue hard for what I am after. It is better to be prepared and not need the arguments then to need them and not have them. I might have 3 or 4 reference letters at the ready and a number of other prepared arguments to “rock and roll” if I need to, but depending on the situation I may only use the top two or three points to get the result I am after in a busy courtroom.

 

And remember, Magistrates are time poor.

The Rolodex of arguments – Not recording a conviction.

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One of the many things criminal lawyers do is spend time thinking about the best way pitch reasons for what they are asking the court to do when planning for a plea of guilty. In some circumstances the real issue for our clients is if a conviction will be recorded or not.

Using the reasoning of judges in other cases is one way to "build a bank" or Rolodex of arguments that might be used to help clients in the future.

In Kemp v The Commissioner of Police [2021] QDC 30 where a young woman was convicted of a $15 fuel drive off, on appeal the District Court found recording of a conviction was manifestly excessive. Case note can be found here.

Some of the turns of phrases used Loury QC DCJ of the District Court when deciding it was excessive to record a conviction were:

  • It has been accepted that there is at least some social prejudice which attaches to the recording of a conviction.

 

  • That prejudice may result in the offender being continually punished in the future in a way not commensurate with the punishment which is just for the offending. It might also stand in the way of rehabilitation, particularly by making it difficult for an offender to obtain employment (See R v Briese; ex parte Attorney-General (1988) 1Qd R 487.)

 

Section 12 of the Penalties and Sentences Act 1992 requires only that the Court consider the impact that the recording of a conviction will have on the offender’s chances of finding employment.

Into the bank of nifty turns of phrases goes something to the effect of:

  • Recording of a conviction would stand in the way of rehabilitation by hindering their ability to obtain employment”

 

  • “the continuing social prejudice of a conviction is not proportionate to the charges”.

Because lawyers love a good disclaimer – here is ours – It boils down to: If you need legal advice see a lawyer. Dr Google isn’t going to prescribe you meds if you are sick, Google LLB isn’t going to give you advice or information specific to your situation.

If you need legal assistance. See a lawyer. We are lawyers, you could see us! Call our office on 07 5414 4209.

You might not read it, but we will rely on it if you try and sue us (smug face).

Like Sizzler for Pleading Guilty – Sentencing Submission Check-List

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The “have you thought about this?’ checklist for sentencing submissions in the Magistrates Court.

Once it has been established that a plea of guilty is the appropriate course of action, lawyers then next consider what are the arguments or reasons that can be offered to the court to support the lowest possible penalty to satisfy the balancing sentencing considerations.

I often explain to my clients to think of it as a “buffet” of sentencing options. Every time I have a plea of guilty, I crack out this list and pull out the different considerations and arguments that I think would be most appropriate for my client.

There are other factors not on this list, it is not supposed to be an exhaustive “tick and flick” but an exercise to limber up those mental muscles and force a more considered approach to the task.

My role is then to work with the client to gather the materials that I cannot do for them (such as organising references or a letter of remorse). For my sentences, I like to have as many different arguments as I can up my sleeve and use as few as I need to do to achieve what I want.

When you are standing at the bar table pushing your case, it is helpful to have a document to work from to ensure you have put everything before the court.

After you have sat down and the Magistrate is considering the sentence, it deeply sucks to have to stand back up and say “one more thing”, or worse interrupt the Magistrate when they have started sentencing!

Because lawyers love a good disclaimer – here is ours – It boils down to: If you need legal advice see a lawyer. Dr Google isn’t going to prescribe you meds if you are sick, Google LLB isn’t going to give you advice or information specific to your situation.

If you need legal assistance. See a lawyer.

You might not read it, but we will rely on it if you try and sue us (smug face).

Case Note – R v SDL [2021] QCA 14

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Murray Torcetti Lawyers are criminal lawyers in Caboolture. We write our own case notes from recent criminal decisions for internal purposes. However, unlike your annoying sibling, we don’t mind sharing.

Facts: In a small rural town, the defendant was found guilty of one count of maintaining a sexual relationship after a three-day trial. The appellant recognised the names of 11 people in the jury pool, the judge declined to excuse those people leaving it to the Prosecution to challenge the jurors, of the 11, 10 were challenged with the 11th being empanelled as “Juror 4”.

A pre-recording of the evidence was played to the jury. After a break it was raised with the judge the appellant recognised Juror 4 as “as the brother of an associate of the appellant.” The contact was limited to a “”G’day” 7 years prior. The juror was taken into court in the absence of the remaining jurors, when asked about possible contact with the appellant, Juror 4 could not recall meeting the appellant.

The judge only discharged the single juror for potential perceived bias and proceeded with 11 jurors. Both defence and prosecution sought a discharge of the full jury. Relying on the test in Wu v The Queen (1999) 199 CLR 99, the judge noted the delay in the matter reaching trial and costs attached to starting with a new jury.

(There was a further ground of admissibility of preliminary complaint evidence that was unsuccessful not addressed in this case note).

Finding: For apprehended bias to exist, there needs to be a basis. There were no grounds for the judge to discharge juror number 4 pursuant to s 56(1)(a) of the Jury Act 1995.There was a miscarriage of justice in denial to the appellant of the right to be tried by a jury of 12 persons.

When looking at the thin connection between the appellant and Juror 4, Justice Mullins applied the test of “apprehended bias” in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]

“is expressed in terms that a decision-maker “is disqualified if a fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial mind to the resolution of the question” and “that there has to be identification of the connection that might lead the juror to decide the case other than on its legal and factual merits and an articulation of the logical connection between that matter and the  apprehended deviation from the course of deciding the case on its merits”

Notes for practice:

  • In the event a juror is discharged, take further instructions on if to proceed or press for a new trial.
  • The statement and application of the law of “apprehended bias”

Because lawyers love a good disclaimer – here is ours – It boils down to: If you need legal advice see a lawyer. Dr Google isn’t going to prescribe you meds if you are sick, Google LLB isn’t going to give you advice or information specific to your situation.

If you need legal assistance. See a lawyer.

You might not read it, but we will rely on it if you try and sue us (smug face).