Beware you go without! Dont Represent yourself…

People in NSW are being shut out of the justice system because they are refused legal aid and are too poor to pay for a lawyer. In an article in todays SMH Online, there are reported revelations that there has been a 41% rise in the number of people Legal Aid refuse to assist.

The reason for the increase in amount of people refused is that they earn more than the income test threshold of $318 a week. Most people who apply for legal help – 85 per cent – are on Centrelink benefits.

An internal report by Legal Aid prepared for the Attorney-General, Greg Smith, says legal aid has become ”welfarised”. The report says a high level of unmet demand for legal aid has led to a big ”justice gap” that has left socially and economically disadvantaged people unable to access the courts.

According to the article (which cites the report) in 2011-12, 16 per cent, or 1,987 applications for legal aid, were refused, a rise of of 41 per cent over the previous year.

Of those who can’t get Legal Aid many are choosing to represent themselves, thinking that they can’t afford a lawyer.

Full article here.

Aytugrul v The Queen [2012] HCA 15

Aytugrul v The Queen

Criminal law – Evidence – Admissibility of evidence about DNA analysis – Appellant convicted of murder – Expert gave evidence at trial about mitochondrial DNA testing of hair found on deceased’s thumbnail – Expert’s statistical evidence given in form of frequency ratio and exclusion percentage – Whether evidence of exclusion percentage relevant given evidence of frequency ratio – Whether probative value of evidence of exclusion percentage outweighed by danger of unfair prejudice to appellant – Whether evidence of exclusion percentage misleading or confusing. Evidence – Judicial notice – Argument for general rule that evidence of exclusion percentage is always inadmissible due to danger of unfair prejudice – Facts underpinning adoption of general rule not proved – Whether judicial notice can be taken of psychological research said to support adoption of general rule.

King v Queen [2012] HCA 24

King v The Queen Criminal law – Appeal against conviction – Jury misdirection

Appellant convicted of two counts of “culpable driving causing death” contrary to s 318(1) of the Crimes Act 1958 (Vic) (“the Act”) – Jury had power under the Act to return an alternative verdict of “dangerous driving causing death” contrary to s 319(1) if satisfied that accused not guilty of offence charged under s 318 – Trial judge directed jury that dangerous driving established by proof accused drove in way that “significantly increased the risk of harming others” and that Crown did not have to show driving was “deserving of criminal punishment” – Whether trial judge misdirected jury – Whether R v De Montero (2009) 25 VR 694 should be followed – Whether departure from trial according to law or miscarriage of justice.

Where Angels Fear to Tread

I’m often asked how I can be a defence lawyer. The question is sometimes put, “how can you represent people who do such terrible things”?

It’s easy to say, “well, they are innocent until proven guilty” but that’s usually dismissed, probably easy to do.

Usually I simply observe that one of the great things about our society is that anyone, in any circumstance can ask someone to stand up and speak for them, without fear that the person they ask will judge them, criticise them or turn on them. Put another way, anyone might need someone to speak for them, if they do, a lawyer is available for that occasion, whatever it is. 

Once a friend of many years finally asked the question, “how can you sleep at night representing people charged with such serious crimes?” I told her that, “I sleep so that I can be sure to be able to represent you, if one day you need help.” Not a month later, that request for help came and she was smart enough to acknowledge the reality – lawyers speak when others won’t. They will listen to your side of the story when others won’t. They will defend you when other won’t.

In Australia teachers, police, ambulance officers, fire men and women and nurses are the angels. Lawyers must be those who go where angels fear to tread.

Seems to me that involves at least a little bravery and heroism.

Aaron Kernaghan

Bail Changes

Proposed changes to the Bail Act in NSW have been supported by legal bodies but widely criticised in the media.


NSW Attorney-General Greg Smith tabled a report into the Bail Act (the Act) by the NSW Law Reform Commission on Wednesday (13 June).

The report made some scathing criticisms of the Act.

It described the “cumulative effect” of numerous amendments to the Act over the years as adding a “complexity to the legislation which makes it difficult to comprehend and operate, even for those with legal expertise”.

The current Bail Act was first enacted into law in 1978.

The report was headed by Hal Sperling QC and James Wood QC, who was the Royal Commissioner that presided over a Royal Commission into the NSW Police Force.

“We believe that bail reform is necessary to restore balance in the system, reintroduce the presumption of innocence and address issues relating to the high rate of juvenile detention in NSW,” said Justin Dowd, the president of the Law Society of NSW. 

Full story here.

Art Gallery Law

Penrith District Court has heard details of a case involving Sydney solicitor Michael Sullivan.
Sullivan, a partner at Leahy Lewin Nutley Sullivan, who has previously worked for Freehills and Mallesons, was in court to plead guilty to a charge of stealing two artworks worth $14,500 from a Blue Mountains art gallery in December 2008.
The statement said that “the accused stepped back and examined the two paintings and then picked up the paintings, opened up the French doors and placed the paintings on the veranda. A driveway ran down the building on that side. The accused then went back through the restaurant and exited the premises.”
When Gallery director Geoff White eventually realised the two paintings, valued at $14,500, were missing, he studied camera footage and contacted police.
The paintings were eventually tracked down hanging on the wall of Sullivan’s Killara home.
Sullivan allegedly told police he had paid a $2000 deposit at the gallery and had taken two paintings home.
Full story here.

Sesame Street is Torture?

Not  quite how we remember them…

A new documentary released by Al Jazeera exposes the use of children’s songs and heavy metal music to torture prisoners at Guantanamo Bay — a tactic that came about not long after President George W. Bush created the camp to detain prisoners in the “war on terror” against Al Qaeda.

“Sesame Street” songwriter Christopher Cerf spearheaded the film after discovering songs he wrote to teach kids how to read and write were being used as weapons of war. The report has launched the controversial interrogation method back into the spotlight.

According to the documentary, prisoners were strapped to chairs and played music — Metallica, AC/DC, Eminem, Barney and others — at loud volumes for hours or days on end.

Pentagon spokesman Capt. John Kirby told reporters Thursday that the military uses music “as a disincentive,” but said it’s not torture.

“It’s done in a measured way, in keeping with our obligation and commitment to treating detainees humanely,” Kirby told the press, declining to comment on what specific music was played or if the method is still used today.

Full story here.