State law is no longer an ass

by Chris Griffith
Published 6 December 1992 in The Sun-Herald


my face


New Criminal Justice Commission (CJC) chairman Robin O'Regan, QC, must have felt in the hurricane's eye when recently he addressed a Queensland Law Society seminar on the state's proposed new criminal code.

Outside the storm was raging. It was Saturday. Sir Max Bingham's parting forays were only starting to ring in the Goss Government's ears.

In contrast all was calm inside the Parliamentary Annex's conference room, as Mr O'Regan, Attorney General Dean Wells, Criminal Law Association president Michael Quinn, Civil Liberties Council president Terry O'Gorman, and others pooled their critiques of the new proposals.

Mr O'Regan, who chaired the Government's Criminal Code Review Committee, described his committee's final report of recommendations as "riveting or at least enjoyable holiday reading".

That is an understatement.

By the end of 1993, Queensland's Courts are expected to be operating under a new criminal code containing, among many changes, new laws governing rape and sexual assault, bribery, perjury, search and seizure, the operation of juries, and the use of uncorroborated evidence in Court. Mandatory sentences are to be abolished and replaced by maximum penalties at the Judge's discretion.

In the public arena, discussion so far has focussed on some quaint anachronisms that will be abolished; irrelevant old laws, or laws that are now administered federally.

No longer will it be an offence in Queensland to incite mutiny, defame foreign princes, challenge to fight a duel, aid pirates, commit bigamy, or pretend to exercise witchcraft or tell fortunes.

Yet it is the new and modified offences that deserve the most attention as they inevitably affect the public.

The Queensland Law Society's and the Criminal Law Association's Michael Quinn organised the seminar to promote discussion about them, t least among lawyers, Magistrates, Judges, and some academics who attended.

This review, which began in April 1990, is the first major overhaul of Queensland's Criminal Code and is well underway. The Review Committee released an Interim report in March 1991, and its final report in June this year.

The original Code, produced by former Attorney-General Sir Samuel Griffith in 1897, was enacted in Queensland in 1901, It was adopted in Western Australia, and Papua New Guinea, and partly adopted in the Northern Territory.

The proposed new Code simplifies the existing one by redefining the current 707 sections into 399. It defines offences into two groups - regulatory offences and criminal offences. It further subdivides criminal offences into crimes and simple offences, and abolishes misdemeanors.

Simple offences, which are heard by a magistrate, are being removed from the Criminal Code and consolidated into a Simple Offences Act.

These include advertising a reward for stolen property, disturbing religious worship, intimidation of workers and employees, going armed to Parliament House, and electoral offences such as double voting, and breaking seal of packets used at elections.

The Committee was told not to review abortion, prostitution, and gaming, however it was asked to include offences in the Drugs Misuse Act in the new Criminal Code without "substantial changes" to offences and penalties.

Mr Wells is now requesting public submissions on this report by January 31. He proposes a second committee to draft recommendations for Cabinet, possibly a panel of Trial Judges. At the conference Mr Wells said he proposed this idea to Chief Justice Macrossan, who wrote back saying "the idea has merit".

The general view, among conference participants, is that Mr Wells, the Government, and the committee deserve congratulations for their work.

However, the conference has raised significant areas of disagreement, for example, the plan to allow convictions for any offence on the uncorroborated evidence of one witness.

On the one hand, women's groups have welcomed the end to Judges in rape and sexual offences trials being forced to warn juries about the use of uncorroborated evidence. They say this simply brings the standing of evidence in these trials into line with other trials. On the other, some lawyers believe the reform has gone too far. They say it is dangerous to allow anyone to be convicted of any offence using uncorroborated evidence with only an optional warning by Judges of any problem with this evidence.

Mr Quinn says many lawyers are concerned that people, especially criminals, lie when giving evidence against others in order to receive favoured treatment, for example a lighter penalty themselves.

Supreme Court Judge, Mr Justice MacKenzie, also referred to the new corroboration rule. He said the new Code would allow a greater degree of subjectivity by judges.

People such as Ms Zoe Rathus, the chair of the Queensland Domestic Violence Council, says the new Code should recognise the long-term physical abuse by spouses as a defence where retaliatory crimes are committed.

She says the Council and the Women's Legal Service will continue to lobby for retaliatory action in domestic violence situations to be regarded as self-defence, particularly for women who have lived with an abusive partner over a long time.

There are also changes which will affect other groups. Private criminal prosecutions, although possible through the Magistrate's Court, will be a matter for the Crown to conduct once any case reaches the District or Supreme Court.

This may concern people who recently launched private prosecutions in response to the Government's delay in implementing a Remediation of Miscarriages of Justice Unit, a Unit recommended by Fitzgerald to redress convictions based on uncorroborated verballed police evidence.

There is also the Queensland Council for Civil Liberties, which opposes a new measure to allow any police officer to stop, search, and seize any vehicle without warrant if it is believed the vehicle contains any evidence of an indictable offence.

Council president Terry O'Gorman is also disappointed the new Code does not include a 1975 Australian Law Reform Commission recommendation requiring police to notify a central register of anyone they are holding in police custody. He says this would prevent police from concealing unlawful incidents of people in custody.

One interesting recommendation is a new oath for Queensland jurors which would includes a promise not disclose "anything touching or concerning the deliberations of the jury upon their verdict".

If this is adopted, there will need to be other measures so that jurors' concerns about any latter-day Luke Shaws can be brought to the authorities attention. The debate in early 1993 will be both crucial and fascinating.