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When is a Judge disqualified for bias?

A decision-maker being impartial is one of the core requirements of natural justice.

In the 19th century, Lord Campbell in Dimes [1852] EngR 789 said that “no man is to be a judge in his own cause”.

As a majority of the High Court noted in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63:

“Fundamental to the common law system of adversarial trial is that it is conducted by an independent and impartial tribunal. Perhaps the deepest historical roots of this principle can be traced to Magna Carta (with its declaration that right and justice shall not be sold)”.

Legal meaning of biased

Bias in the law is a decision-maker making a decision because of factors other than the merits of the case, rather than different treatment of the parties.

Therefore, the fact that a decision-maker disbelieves, or is critical of, a party or a witness does not, of itself, indicate bias: Ramadan v New South Wales Insurance Ministerial Corporation, unreported, New South Wales Court of Appeal, 7 April 1995 (“Ramadan“) at 3 per Kirby P, at 11 per Rolfe AJA. Furthermore, it is permissible for decision-makers to make known their preliminary views for the purpose of ventilating issues. Even where preliminary views are strongly held, there will be actual bias only if they are incapable of being altered.  Also, it is not always sufficient to show that a decision-maker has displayed irritation or impatience or has even expressed sarcasm, and that whether such matters show actual bias remains a question of fact: see Galea v Galea (1990) 19 NSWLR 263 at 279 per Kirby ACJ.

In Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, it was said that:

“requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds. Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it.”

Full story: https://sterlinglawqld.com/when-is-a-judge-disqualified-for-bias/

Chief Justice prohibits Graeme Page KC from practicing as a barrister — Sterling Law QLD

Former barrister Graeme Page’s career may have ended today after the Chief Justice of the Supreme Court of Queensland ordered an injunction restraining him from engaging in legal practice. The Legal Services Commission had brought an application in the Supreme Court just last Friday. A person from the Legal Services Commission this afternoon confirmed to…

Chief Justice prohibits Graeme Page KC from practicing as a barrister — Sterling Law QLD

The case law of lawyers bills in England, India, Australia, Singapore and Hong Kong

For a very long time in Commonwealth legal systems, the legal profession has been regulated for the benefit of clients of lawyers and the public at large. Among other things, there has been a recognised public interest in protecting those liable to pay legal fees from overcharging by lawyers. One of those protections is and has been the legal requirement for a bill to be provided so that the client can seek advice on the fees and charges.

As a result, one of the many modern obligations that lawyers in English legal systems have to comply with in the course of legal practice is to provide clients and any other persons liable for their fees with proper bills before such persons can be liable for or sued for such fees.

Full story: https://sterlinglawqld.com/the-case-law-of-lawyers-bills-in-england-india-australia-singapore-and-hong-kong/

Christian Porter loses appeal from restraint on Sue Chrysanthou SC

Former Attorney General Christian Porter has lost his appeal of a restraint against Defamation specialist Sue Chrysanthou SC representing him in his claim against the ABC.

Justice Thawley had ruled that there was a potential conflict of interest and the integrity of the judicial process and the due administration of justice required Ms Chrysanthou to be restrained. Furthermore, whilst Ms Chrysanthou had given evidence she did not recall any confidential information and that she no longer had emails received in connection with the meeting, Justice Thawley held that:

“However recollections are liable to being revived and there is nevertheless a risk of subconscious use of confidential information”

Full story: https://sterlinglawqld.com/christian-porter-loses-appeal-from-restraint-on-sue-chrysanthou-sc/

Race hate hoaxer Jussie Smollett gets appeal bail

In December, American actor Jussie Smollett was found guilty by a jury of falsely reporting a hate crime against himself.

He claimed two racist Trump supporters wearing MAGA hats beat him up. It turned out he had paid two Nigerian brothers to stage the whole thing so that he could pretend to be a victim of a racist and homophobic hate crime.

Earlier this month, Smollett was sentenced to 150 days in Cook County jail, and 30 months of felony probation, as well as restitution of $120,106 and a $25,000 fine.

Since then, Smollett was ordered to be released from jail after posting a personal recognizance bond of $150,000 by an appeals court pending the appeal against his convictions.

In Australia, a convicted person must ordinarily demonstrate exceptional circumstances in order to get appeal bail. The position appears to be different in America.

District Court stays claim because of Australian Financial Complaints Authority’s bureaucratic bumbling — Sterling Law QLD

It is well known that many public bodies these days are obsessed with political correctness and identity politics, and spend a lot of their time fussing on topics such as equity, diversity, inclusion, harmony days, ‘unconscious bias’, and the like. Once can only imagine that they hold regular meetings where they talk about topics such as their gender pronouns, paleo pear and banana bread, and what a relief that in a few months time the Morrison federal government will be replaced by a Labor-Greens Coalition, but how the ideal would be a Greens Government with Adam Bandt as Prime Minister and socialism being tried once again.

Supporters and apologists of this frivolity often use the cliché that organisations can “chew and walk gum at the same time”, however a recent District Court decision to stay a proceeding as a result of bureaucratic bumbling undermines such claims.

The facts

The Australian Financial Complaints Authority is an external dispute resolution scheme that is supposed to deal with complaints from consumers and small business about financial products and services. 

The following case reveals that the extent to which AFCA deals with complaints is doubtful, however we were elated to find out that what is not in doubt is that it commemorates ‘Transgender Day of Remembrance‘, and on its own admission everyone at AFCA recently wished us a Happy Mardi Gras.

On 25 November 2019, ANZ Banking Group applied to the District Court for recovery of possession of mortgaged properties on the basis that the debt that is secured by those mortgages had not been paid by the respondent debtors. The debtors then made complaint to AFCA, which resulted in the proceedings being adjourned pending AFCA’s determination. In September 2021, AFCA belatedly issued what it called a recommendation, which was not binding on the parties.

Barlow DCJ decided to stay the proceedings because of the delay occasioned by AFCA.

Read more:

Indictable offences dealt with in the Magistrates Court of Queensland

Generally, indictable offences in Queensland are dealt with by the District or Supreme Courts, as they are usually serious offences. However, in some cases, indictable offences can or must be dealt with in the Magistrates Court.

The Criminal Code

Section 1 of the Criminal Code 1899 (Qld) defines an “indictment” to mean a written charge preferred against an accused person in order to the person’s trial before some court other than justices exercising summary jurisdiction. A “summary conviction” is defined as summary conviction before a Magistrates Court.

Section 3 of the Criminal Code provides that offences are of 2 kinds, namely, criminal offences and regulatory offences. Criminal offences comprise crimes, misdemeanours and simple offences. Crimes and misdemeanours are indictable offences, which means that the offenders cannot, unless otherwise expressly stated, be prosecuted or convicted except upon indictment. A person guilty of a regulatory offence or a simple offence may be summarily convicted by a Magistrates Court.

Sections 1 and 3 of the Code make it clear that the indictable offences are to be dealt with in the District or Supreme Courts, unless the Code provides otherwise. In the District or Supreme Courts, a jury is ordinarily the trier of fact in a criminal trial. In contrast, a trial in the Magistrates Court is called a summary trial, and the presiding Magistrate is the sole trier of fact (ie, there is no jury). A matter dealt with summarily is dealt with in the Magistrates Court.

When indictable offences must or can be heard summarily

Chapter 58A of the Criminal Code (containing sections 552A-552BB inclusive) provides for when indictable offences must or can be heard summarily:

– Section 552A of the Criminal Code provides for a list of indictable offences which must be dealt with summarily on Prosecution election.

– Section 552B of the Criminal Code provides for a list of indictable offences which must be dealt with summarily, unless the defendant elects for a jury trial.

Section 552BA of the Criminal Code provides for a list of indictable offences which must be dealt with summarily, unless they are excluded offences under section 552BB of the Code.

– Sections 552A, 552B and 552BA of the Criminal Code are all subject to section 552D, which provides that the Magistrates Court must abstain from hearing and determining a charge and must instead conduct a committal proceeding if it is an offence listed at Schedule 1C of the Penalties and Sentences Act 1992, the Court is of the view that the defendant may not be adequately punished on summary conviction after considering submissions, or if exceptional circumstances exist.

– Section 552H of the Criminal Code provides that the maximum period of imprisonment under section 552A, 552B or 552BA is three years, unless the court is constituted by a magistrate imposing a drug and alcohol treatment order, in which case the maximum penalty is four years imprisonment.

Indictable offences which Prosecution can elect for summary trial

The list of indictable offences that must be dealt with summarily on Prosecution election is contained at section 552A(1) of the Criminal Code.

The offences listed include the commission, counselling or procuring, attempt, or becoming an accessory after the fact of any of the following offences under the Criminal Code:

Section 141: Aiding persons to escape from lawful custody.

Section 142: Escaping from lawful custody.

Section 143: a person responsible for keeping someone in lawful custody permitting escape from lawful custody.

Section 205A: Contravening an order about information necessary to access information stored electronically.

Section 340: assaults committed with intent to commit a crime, or as part of an unlawful conspiracy in relation to any manufacture, trade, business, or occupation or committed against a police officer, a person performing a legal duty, a person aged over 60, or a person who relies on a guide, hearing or assistance dog, wheelchair or other remedial device.

Indictable offences which must be dealt with summarily unless defence elects jury trial

The indictable offences that must be dealt with summarily unless the defence elects for a jury trial are listed at Section 552B(1) of the Code.

The offences listed include the commission, counselling or procuring, attempt or becoming an accessory after the fact of any of the following offences under the Criminal Code:

A sexual offence without a circumstance of aggravation for which the defendant has pleaded guilty, the complainant is at least 14 years of age and the maximum sentence is more than three years.

Section 339: assault occasioning bodily harm which is not committed in company, without the use of a dangerous or offensive weapon or instrument and not during the term of a community service order.

An offence involving an assault without a circumstance of aggravation and which is not of a sexual nature, and for which the maximum penalty is more than 3 years but not more than 7 years.

Section 60A: Participants in criminal organisation being knowingly present in public places.

Section 60B: Participants in criminal organisation entering prescribed places and attending prescribed events.

Section 76:  Recruiting a person to become participant in criminal organisation.

Section 77B:  Habitually consorting with recognised offenders.

Section: 316A: Unlawful drink spiking.

Section 328A: Dangerous operation of a vehicle (with a circumstance of aggravation at Section 328A(2)).

359E Punishment of unlawful stalking if the maximum term of imprisonment for which the defendant is liable is not more than 5 years.

An offence against chapter 14 (Corrupt and improper practices at elections), division 2 (Legislative Assembly elections and referendums), if the maximum term of imprisonment for which the defendant is liable is more than 3 years.

An offence against chapter 22A (Prostitution), if the maximum term of imprisonment for which the defendant is liable is more than 3 years.

An offence against chapter 42A (Secret Commissions).

Indictable offences which must be dealt with summarily

Section 552BA(4) of the Code provides that ‘relevant offences’ must be heard and dealt with summarily.

Relevant offences are defined as indictable offences which either:

  1. 1. carry maximum sentences of three years or less; or
  2. 2. are an offence under part 6 of the Code, excluding an offence under Chapter 42A (secret commissions) or an ‘excluded offence’ listed at Section 552BB.

Excluded offences

The list of excluded offences contained in the table of Section 552BB includes the following offences:

Section 461: Arson

Section 462: Endangering particular property by fire.

Section 463: Setting fire to crops and growing plants

Section 467: Endangering the safe use of vehicles and related transport infrastructure

Section 469A: Sabotage and threatening sabotage

Section 470: Attempts to destroy property by explosives

Read full story: https://sterlinglawqld.com/indictable-offences-dealt-with-in-the-magistrates-court-of-queensland

Winning Winner Douglas Dinner loses corruption conviction appeal

At about 1.00 am on Sunday 17 February 2019, police were patrolling in Rockhampton when they saw a car driving erratically and knocking over a street sign. They pulled the car over and found the driver was Douglas “call me Doug” Winning, a local solicitor.

What transpired was recorded on the officer’s body-worn cameras. All class, Winning was wearing only a pair of shorts. His vehicle had sustained damage on the bonnet where the sign had hit and there was damage to a front tyre. When asked that he had been drinking, Winning nominated the amount as “a bottle of rum”, explaining that he had had a sleep since finishing it. He was slurring his words. He twice said “You’re not going to pinch me”.

One of the officers said she was going to administer a roadside breath test. Winning was in the car holding his passport and $300 in cash, made up of six $50 notes. At the conclusion of the roadside breath test, Winning lifted his hands. He put his passport down on the seat beside him, and held up his right hand with the notes in it, saying: “Can’t pay my way out this, can I?”.

One police officer responded, “No. No, you definitely can’t pay your way out of this”. The other responded “No”.

After the officers’ responses, Winning folded the cash in his right hand and extended his right arm out of the car, and towards the officers, keeping it there for some time. He remained seated with his left hand on the steering wheel. He only withdrew the extended arm when he was told he was detained and to turn his car off.

Winning then said that “someone’s been threatening my daughter and that’s the only reason I’m drivin’”. He was a told that he was detained for the purpose of a further breath test which would be done at the police station.

In the course of police telling Winning that the car would be secured, Winning said, “You gonna let me go. You’re not gonna lock me up, are ya?”

As Winning was taken out of the vehicle, he told Senior Constable Parkin that he did not need to call him Mr Winning, but rather “call me Doug”. At that point, Winning still had the $300 cash in his hand. Then followed this exchange:

“Officer Parkin: Do you wanna put your cash in the car or do you wanna leave it on your possession?
Winning: I’ll leave it on my possession.
Officer Parkin: Ok. Alright.
Winning: You wa-, you wanna lazy quid?

Officer Parkin: No, no, no.
Winning: Give you a lazy quid

Officer Davies: No, no, no. Parkin: No, no, no. No, not at all. Come on, Winning, we’ll get you in the back of the car. Come on, sir, this way.”

Winning blew 0.191 per cent at the roadside breath test. Later, on the breath analysis machine at the police station, he recorded 0.146 per cent.

Winning was subsequently charged with drink driving and official corruption, arising out of his proffering $300 and asking if he could buy his way out of the situation, and asking whether the police wanted a lazy quid.

Winning was later interviewed by a Channel 9 journalist, and the interview, in which he claimed he was joking about bribing the officers and denied offering them money to withdraw any charges despite the police footage, was recorded on video.

Read full story: https://sterlinglawqld.com/winning-winner-douglas-dinner-loses-corruption-conviction-appeal/

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