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High Court majority dismisses Brent Huxley’s appeal for murder of Michael McCabe
On 18 September 2019, Brent Malcolm Huxley was found guilty in the Townsville Supreme Court of the murder of Michael James McCabe. He was sentenced to life imprisonment.
McCabe, a known illicit drug user, was murdered on or about 16 August 2015. Police found McCabe’s “partly-skeletonised and partly-mummified” body in remote bushland at the bottom of a steep, rocky embankment in Crystal Creek, north of Townsville, on September 17, 2015.
An autopsy revealed Mr McCabe had multiple fractures to his face, consistent with having a large rock dropped on his head.
The Crown case was that there was a “plan” schemed by Huxley to murder Mr McCabe with the help of others. It was alleged McCabe had been assaulted hours before his death on 15 August 2015 in a unit in Burnda Street, Townsville.
The prosecution alleged that Rewha, a co‑accused, assaulted McCabe in company in the unit, and that Huxley subsequently murdered McCabe on 16 August 2015 at Crystal Creek or elsewhere in Queensland.
The primary evidence against Huxley was from Darren Hess, who claimed that Huxley had confessed he had committed the murder to him in August 2015.
Another witness who gave evidence at the trial was Candis Nicole Greer. In front of the jury, she indicated that she was refusing to be sworn or affirmed as a witness to give evidence. In the absence of the jury, she continued to refuse to give evidence as a witness and was charged with contempt of court.
The evidence she eventually gave was that she had consumed significant quantities of methylamphetamine and alcohol on 15 August 2015 and did not recall seeing Huxley when McCabe was assaulted and removed from the unit.
The impugned direction to the jury was as follows:
“You should only act upon [Ms Greer’s] evidence if, after considering her evidence with the warning that I have given in mind, and all the other evidence in the trial, you are convinced of its truth and accuracy. In particular, consistent with the directions I will give you in relation to the case against Mr Rewha, as a matter of law, you should only act upon her evidence if you are satisfied beyond reasonable doubt that her evidence is truthful, reliable and accurate. If you are not satisfied beyond reasonable doubt that the evidence of Ms Greer is truthful, reliable and accurate, then you should disregard it.”
A tight 3-2 High Court decision which turned on the construction of the impugned direction had the majority dismissing the appeal.
Full story:
Filed under Uncategorized
Daniel Keneally convicted of fabricating evidence
Constable Daniel Keneally was charged in October last year with fabricating evidence following a telephone conversation in February 2021 with a man named Luke Moore. Keneally had subsequently submitted a report that Moore was threatening to kill a police officer, which resulted in Moore being charged with using a carriage service to menace and threaten to kill, and refused bail, resulting in him spending time in jail for three weeks.
Moore had fortunately recorded his discussion with Keneally jnr, and that recording showed that Keneally’s report was false.
Now that the trial has concluded, we can exclusively share the primary materials that demonstrate Constable Keneally’s shameful conduct.
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Filed under Uncategorized
Judge Salvatore Vasta successfully sued for false imprisonment
The facts
In 2021, Judge Vasta was sued for $2M for false imprisonment of a party that appeared before him.
The proceedings arose from what happened on 6 December 2018, namely when Judge Vasta made the following declaration and order:
1. That the Applicant [MR STRADFORD] be sentenced to a period of imprisonment in the [X Correctional Centre] for a period of twelve (12) months, to be served immediately with the Applicant to be released from prison on … 2019, with the balance of the sentence to be suspended for a period of two (2) years from today’s date.
In the reasons for judgment delivered extemporaneously, Vasta J wrote that:
“The matter went before Her Honour Judge Turner on 26 November 2018. Her Honour ordered that the matter be adjourned for hearing of a contempt application. What Her Honour found was that there had been compliance with order 3(b), (c), (d), (e), (f), (g) and (i) of my order, but there had not been compliance with orders (a), (h), (j), (k), (l), (m), (n) and (o) of my orders. For that reason, Her Honour found that the Applicant husband was in contempt of my orders and sent it to me to deal with as I had foreshadowed in my orders.”
In fact, Judge Turner had made no such determination.
As a result of Order 1 above, the husband was deprived of his liberty and imprisoned.
Statutory provisions
Part XIIIB of the Family Law Act, which consists of s 112AP, deals specifically with contempt of court. Section 112AP(1) provides that the section applies to a contempt of court that either “does not constitute a contravention of an order under this Act” or “constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court”.
Section 17 of the Federal Circuit Court of Australia Act provided that:
“17 Contempt of court
(1) The Federal Circuit Court of Australia has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.
(2) Subsection (1) has effect subject to any other Act.
(3) The jurisdiction of the Federal Circuit Court of Australia to punish a contempt of the Federal Circuit Court of Australia committed in the face or hearing of the Federal Circuit Court of Australia may be exercised by the Federal Circuit Court of Australia as constituted at the time of the contempt.”
Section 35 of The Family Law Act provided that:
35 Contempt of court
Subject to this and any other Act, the Family Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.
The decision
The written reasons for judgment of Justice Michael Wigney from the outset made it fairly apparent what the result would be:
“The applicant in this proceeding was the victim of a gross miscarriage of justice. He was detained and imprisoned for contempt following what could fairly be described as little more than a parody of a court hearing. He spent seven days in prison before being released. The order that resulted in his incarceration was subsequently set aside. The central issue in this proceeding is whether he is entitled to a remedy to compensate him for the injury and loss suffered by him as a consequence of that lamentable incident…
e spent five miserable days in a police watch house in Brisbane before being transported to a correctional facility operated by the third respondent, the State of Queensland. He spent another two difficult days in that facility before he was released on bail pending an appeal.
There could be no real dispute that the Judge made a number of fundamental and egregious errors in the purported exercise of his power to punish Mr Stradford for contempt. He sentenced Mr Stradford to imprisonment for contempt without first finding that Mr Stradford had in fact failed to comply with the orders in question. He erroneously believed that another judge had made that finding, though exactly how he could sensibly have arrived at that position in the circumstances somewhat beggars belief. He also failed to follow any of the procedures that he was required to follow when dealing with contempt allegations and otherwise failed to afford Mr Stradford any procedural fairness. He effectively pre-judged the outcome. Imprisonment was a fait accompli.”
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Calls for more inquiries into prosecutorial conduct following Drumgold’s resignation
A survey of mostly experienced criminal lawyers and “a handful” of prosecutors and barristers at a Legal Aid NSW Criminal Law Conference resulted in 93 per cent of participants saying the prosecution failed to comply with its disclosure obligations in NSW either routinely or frequently. Only 6 per cent said it was occasionally or rarely that such failures occurred and 1 per cent said not sure.
Fairness to the accused is at the heart of criminal law. Such fairness recognises and reflects the serious consequences of criminal convictions, particularly for serious offences, and the enormous injustice that results from the conviction and punishment of an innocent person. This is why we have protections such as the presumption of innocence, a very high standard of proof, and a requirement that the prosecution discloses all relevant material, whether or not it assists the prosecution case. It is totally unacceptable for a prosecutor to treat criminal litigation as “a poker game in which a prosecutor can hide the cards’’, as the Sofronoff inquiry found Drumgold did.
Former NSW Supreme Court Justice Anthony Whealy KC, who has called for a review of Drumgold’s past cases, has been quoted as saying that failures to disclose are “more common than we might think”, and are particularly alarming where prosecutors rather than police were involved.
These are deeply concerning remarks.
Withholding exculpatory evidence is one of the worst things prosecution departments and law enforcement can do. Depriving the defence of credible exculpatory evidence normally results in defendants not receiving a fair trial.
This is a serious issue that affects the potential liberty, reputation and livelihood of every Australian, and which should be properly looked into.
Full story:
Filed under Uncategorized
The drums roll for Drumgold’s legal career
Sofronoff KC said he was “deeply disturbed” by Shane Drumgold’s ignorance of ethical principles and accused him of a “Pilate-like detachment”, invoking the moment Pontius Pilate washed his hands of Jesus’s fate, letting the mob decide who should be crucified.
In our view, Sofronoff KC was right not to make any declaration of Drumgold’s fitness to remain on the roll of lawyers. That fell outside of the scope of the inquiry. Nevertheless, the findings automatically support an inference that Drumgold should no longer remain a lawyer.
Sofronoff KC’s inquiry initially looked like it would be about little more than looking into a spat between the ACT Office of Prosecutions and the Australian Federal Police, who held different views about the merits of the prosecution of Bruce Lehrmann for allegedly raping Brittany Higgins in Parliament House.
This is now looking like the biggest legal scandal in Australia since the Lawyer X fiasco. Like the Lawyer X fiasco, this involves a flagrant breach of the fundamental rules that govern the conduct of lawyers. In some ways, the two scandals are mirror images of one another. Whilst Drumgold’s conduct kept the defence in the dark and deprived them of material they were entitled to, Nicola Gobbo’s conduct involved disclosing matters to police that should have never been disclosed because of the duty of confidence that she owed her clients. Gobbo was struck off for her fundamental betrayals of her clients.
A Prosecutor holds a particular duty to act in fairness towards an accused and the Court. Drumgold’s conduct shows that he apparently lost sight of the nature of his role, and the serious responsibilities of that role. He also apparently overlooked the fact that Brittany Higgins was not his client, and even if she had been, his overriding duty was to the administration of justice and he had no right to mislead the Court or to keep evidence from the defence that it had a right to.
Full story: https://sterlinglawqld.com/the-drums-roll-for-drumgolds-legal-career/
Filed under Uncategorized
The Australian government’s social media big brother bill
The Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2023 (“The Bill“) if passed will allow the government to monitor social media content it disapproves of and to conscript social media companies to do their dirty work of curtailing such content through the Australian Communications and Media Authority (“ACMA”).
In other words, the Bill would allow the federal government through ACMA to surveil and investigate the political and public discourse of citizens and imposes penalties on online platforms who do not comply with what ACMA determines to be adequate ways of combating misinformation or disinformation.
As such, the Bill represents a dangerous threat to freedom of online discourse.
Governments are often mistaken about what is true, and inevitably political interests consciously or subconsciously predominate. Although the Bill professes to not be in conflict with the implied Constitutional right to political communication in Australia, it is difficult to see how provisions which require online platforms to curtail public speech the government deems untrue and harmful could have any real effect consistent with that right.
In a day and age where social media censorship is already an issue of concern, the last thing Australia needs is for government to be encouraging and inducing social media websites to censor information it deems to be incorrect, or to punish platforms for not agreeing to go along with it.
Full story:
https://sterlinglawqld.com/the-federal-governments-social-media-big-brother-bill/
Filed under Uncategorized
Ben Roberts-Smith appeals defamation defeat
Last month, the Federal Court found Ben Roberts-Smith had committed war crimes and upheld the defence of contextual truth in dismissing his claims.
Roberts-Smith is contesting some of the factual findings including all findings he committed murder, contending that Justice Anthony Besanko “cherrypicked” evidence in his judgment.
Read more:
https://sterlinglawqld.com/ben-roberts-smith-appeals-defamation-defeat/
Filed under defamation
Sterling Law secures indemnity costs order against QBE
Background
For the last 4 years, we doggedly pursued a claim on behalf of a client who was kicked by a horse.
By the time our client saw a solicitor of our firm, he had been denied WorkCover because on review it was determined he was not a worker within section 11 of the Workers’ Compensation and Rehabilitation Act 2003. Things were looking very grim. It seemed that there was no way for our client to access compensation or any damages.
Our Legal Practitioner Director decided to instead pursue a damages claim under the Personal Injuries Proceedings Act 2002 (PIPA). Subsequently, at the PIPA compulsory conference, one lawyer for a defendant asserted that we had erred by not following the process under the Workers’ Compensation and Rehabilitation Act 2003 instead. All lawyers at the compulsory conference except our Legal Practitioner Director were in complete agreement that the claim had no merit, and our client only received offers of $nil under PIPA.
When we commenced proceedings, the defendants applied to strike out the claim on the grounds that we had not complied with the Workers’ Compensation and Rehabilitation Act 2003 and by pursuing the claim under PIPA we had selected the wrong statute. Our Legal Practitioner Director appeared sans Counsel against two barristers and successfully resisted this attempt to stop the claim in its tracks.
Barry Nilsson, solicitors for QBE Insurance and one of Brisbane’s top insurance firms, still gave us no chance. Neither did the other lawyers representing the defendants, including Counsel. Even a District Court Judge who is a silk highly knowledgeable in civil matters suggested that our client may have been an independent contractor and therefore no duty of care was owed to him.
Subsequently, the matter proceeded to trial and in one of the greatest upsets in Queensland legal history, our client was 90% successful on liability with damages awarded. No appeal has been filed against this decision. Argument about costs immediately ensued and the decision on costs was reserved so that QBE’s lawyers could make further submissions on costs.
Costs
The remaining issue to be determined was the costs of the proceeding.
On 23 April 2021, we had offered to settle for $130,000 exclusive of the WorkCover refund but inclusive of costs and all other statutory refunds.
On 2 November 2021, we offered to settle for $150,000 inclusive of costs and all statutory refunds.
Neither offer was accepted by any of the defendants.
Full story: https://sterlinglawqld.com/sterling-law-secures-indemnity-costs-order-against-qbe/
Filed under negligence
Ben Roberts-Smith loses defamation case on contextual truth
The facts
Highly decorated former soldier Ben Roberts-Smith VC MG was the subject of 16 media stories that collectively alleged among other things that he had murdered civilians in Afghanistan and committed an act of domestic violence against a woman.
Roberts-Smith brought three actions in the Federal Court of Australia for defamation. The first action was brought against Fairfax Media Publications Pty Limited, Mr Nick McKenzie, Mr Chris Masters and Mr David Wroe. The second action was against The Age Company Pty Limited, Mr Nick McKenzie, Mr Chris Masters and Mr David Wroe. The third action was brought against The Federal Capital Press of Australia Pty Limited, Mr Nick McKenzie, Mr Chris Masters and Mr David Wroe. The three proceedings have been heard together.
The stakes on both sides were enormous in this incredibility costly case relating to the reputation of a highly decorated former soldier who was awarded the Victoria Cross (VC) for bravery. On the one hand, Australia’s most celebrated soldier’s reputation was on the line because he had been accused of war crimes and other awful acts. On the other, a very costly loss for the defendants may well have had a chilling effect on public interest reporting.
Relevant Defamation Law
A plaintiff is said to have been defamed if a publication causes the reasonable person to think less of them: Reader’s Digest Services Pty Ltd v Lamb [1982] HCA 4.
To be defamatory, the matter must injure the plaintiff’s reputation by lowering them in the estimation of others, exposing them to hatred, contempt or ridicule or causing them to be shunned or avoided.
Defamatory meaning can arise from the natural and ordinary meaning or true innuendo of the matter. True innuendo refers to matter which is defamatory as a result of an audience’s knowledge of certain extrinsic facts.
Section 25 of the Defamation Act 2005 provides that:
“It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.”
Section 26 of the Defamation Act 2005 provides that:
“26 Defence of contextual truth
It is a defence to the publication of defamatory matter if the defendant proves that:
(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (“contextual imputations”) that are substantially true, and
(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.”
Federal Court of Australia decision
The following imputations were admitted by the defendants to have been conveyed from the articles sued on or found by Justice Anthony Besanko to have been conveyed:
(1) Roberts-Smith while a member of the SASR, murdered an unarmed and defenceless Afghan civilian, by kicking him off a cliff and procuring the soldiers under his command to shoot him (Imputation 1).
(2) Roberts-Smith broke the moral and legal rules of military engagement and is therefore a criminal (Imputation 2).
(3) Roberts-Smith disgraced his country Australia and the Australian army by his conduct as a member of the SASR in Afghanistan (Imputation 3).
The second group of articles were published on 10 and 9 June 2018. Roberts-Smith claimed that the following imputations were conveyed or communicated by the Group 2 articles:
(1) Roberts-Smith while a member of the SASR, committed murder by pressuring a newly deployed and inexperienced SASR soldier to execute an elderly, unarmed Afghan in order to “blood the rookie” (Imputation 4).
(2) Roberts-Smith while a member of the SASR, committed murder by machine gunning a man with a prosthetic leg (Imputation 5).
(3) Roberts-Smith while a member of the SASR, murdered an unarmed and defenceless Afghan civilian, by kicking him off a cliff and procuring the soldiers under his command to shoot him (Imputation 1).
(4) Roberts-Smith having committed murder by machine gunning a man in Afghanistan with a prosthetic leg, is so callous and inhumane that he took the prosthetic leg back to Australia and encouraged his soldiers to use it as a novelty beer drinking vessel (Imputation 6).
Roberts-Smith was not named in the Group 1 articles or the Group 2 articles. A soldier called “Leonidas” was referred to. By the end of the trial, there was no dispute about the identification of Roberts-Smith in the Group 1 and Group 2 articles.
The third group of articles were published on 11 and 10 August 2018. Roberts-Smith was named in these articles and there was never any identification issue. Roberts-Smith claimed that the following imputations were conveyed or communicated by the Group 3 articles:
(1) Roberts-Smith committed an act of domestic violence against a woman in the Hotel Realm in Canberra (Imputation 7).
(2) Roberts-Smith is a hypocrite who publicly supported Rosie Batty, a domestic violence campaigner, when in private he abused a woman (Imputation 8).
(3) The applicant as deputy commander of a 2009 SASR patrol, acquiesced in the execution of an unarmed Afghan by a junior trooper in his patrol. (Imputation 9).
(4) Roberts-Smith during the course of his 2010 deployment to Afghanistan, bashed an unarmed Afghan in the face with his fists and in the stomach with his knee and in so doing alarmed two patrol commanders to the extent that they ordered him to back off (Imputation 10).
(5) Roberts-Smith as patrol commander in 2012 authorised the assault of an unarmed Afghan, who was being held in custody and posed no threat (Imputation 11).
(6) Roberts-Smith engaged in a campaign of bullying against a small and quiet soldier called Trooper M which included threats of violence (Imputation 12).
(7) Roberts-Smith threatened to report Trooper J to the International Criminal Court for firing at civilians, unless he provided an account of a friendly fire incident that was consistent with the applicant’s (Imputation 13).
(8) Roberts-Smith assaulted an unarmed Afghan in 2012 (Imputation 14).
However, despite finding in Robert Smith’s favour on the defamatory imputations that had been conveyed, Justice Besanko determined that the defendants had established on the balance of probabilities that many of those imputations were substantially true, particularly the most serious ones.
This decision is a disaster for Roberts-Smith because it amounts to a declaration that he is a war criminal.
Full story: https://sterlinglawqld.com/ben-roberts-smith-loses-defamation-case-on-contextual-truth
Filed under defamation
Lying lab boss Cathie Allen belatedly sacked
Cathie Allen lied about her the probity of her role in the 2018 change in DNA samples testing, lied about deliberately providing false information, lied about covering her tracks and lied about whether she was lying.
Sofronoff KC found that Allen had tried to cover up her “grave maladministration involving dishonesty” using a “deliberately crafted series of lies and misleading dodges”.
It has since been revealed that Allen was sacked in a formal letter sent to her legal team.
Full story:
Filed under Uncategorized
Brisbane Legal 