This evening, Wollongong City Council voted by a 14 to 2 majority to support a proposal that the former Bridge Street Theatre at Coniston, Wollongong, be sold to Phoenix Theatre Inc for $1.00.
Addressing media following the meeting, Phoenix Theatre’s lawyer Aaron Kernaghan (of Kernaghan & Associates) said,
“Phoenix Theatre has an opportunity to continue its already successful flight, exploring new options in theatre and new ways to promote and consolidate the performing arts in the area. Council’s decision reflects its robust commitment to the performing arts sector in this region and continuing to provide opportunities to all aspects of the theatrical market space.”
The Council meeting heard impassioned and detailed debate from Councillors supporting the proposal while encouraging Phoenix to continue its commitment to provide access and support to the community of performing arts practitioners throughout the region.
“Of course, Phoenix has had to weather its share of disgruntlement from elements in the community who seem to have misconceived the process as some sort of secretive tender process (expressions of interest were sought from the community by Council as long ago as July 2015). Misinformation tends to conjure misery and discontent in the theatre while permitting often long-blunted axes to be sharpened once again. All of that is in the past now and the facts are, Phoenix has a chance to step forward boldly and energetically to continue it’s fine contribution to the community and to enhance the cultural life of Wollongong.”
Phoenix Theatre Inc was at pains to express its thanks to all those who supported the proposal before Council, with many writing letters of support to Council and their passionate views noted by the Councillors themselves,
“The community has been heard by Council and the overwhelming tune they’re hearing is one of collegiate support and respect. It bodes well for the future,” said Aaron Kernaghan.
On 14 April 2016 the Court of Criminal Appeal allowed an appeal against the sentence imposed upon Brenda Lee Haines for murder and made orders resentencing Ms Haines and releasing her forthwith. Today the Court published its reasons for that decision.
Ms Haines committed the offence on 3 March 2001 but was found unfit to be tried and remained in custody and under the supervision of the Mental Health Review Tribunal until April 2013, when the Tribunal formed the opinion that she had become fit to be tried.
On arraignment, she entered a plea of not guilty by reason of the defence of mental illness on the basis of an expert report which had been provided to Ms Haines’ legal advisers in which the author, a psychiatrist, expressed the opinion that such a defence was available.
However, prior to the trial, the psychiatrist provided a further report in which he withdrew his opinion as to the availability of the mental illness defence. Four days later, Ms Haines was re-arraigned and pleaded guilty.
The sentencing judge found that Ms Haines had not pleaded guilty at the first reasonable opportunity after she had been found fit to plead. Allowing for a discount of 15% for the plea, his Honour sentenced Ms Haines to imprisonment for 17 years with a non-parole period of 12 years and 9 months.
But the Court of Criminal Appeal found that, in the circumstances, Ms Haines had pleaded guilty as soon as reasonably possible, having done so almost immediately after it became apparent that the defence of mental illness was no longer available to her. The Court was of the view that, in the exceptional circumstances of the case, the reason for the delay in entering the guilty plea ought to have been taken into account and, accordingly, she was entitled to the maximum 25% discount for the plea. Adopting the same starting point as the sentencing judge, the head sentence on resentencing was one that expired on 2 March 2016.
Extract below from the “Determination” section of the judgment:
“In the present case, the challenge to the sentencing judge’s assessment of the discount for the guilty plea requires demonstration of error of the kind referred to in House v The King HCA 40; (1936) 55 CLR 499 at 505. It is clear from his Honour’s reasons that he had in mind, when setting out the chronology of events in relation to the guilty plea, that the psychiatrist who had been retained on Ms Haines’ behalf had withdrawn his opinion as to the availability of the defence of mental illness () (and to the steps that had been taken to limit the length and complexity of the trial). Nevertheless, it is not apparent how that factor was taken into account, if at all, in his Honour’s assessment that Ms Haines did not plead guilty at the “first reasonable opportunity after she became able to do so” ().
Having regard to her long history of mental illness, during which time his Honour accepted Ms Haines could not have pleaded guilty, and the reliance that one would expect to be placed by Ms Haines and her legal advisers on the assessment of a specialist forensic psychiatrist in determining the availability of a defence of mental illness, in all the circumstances it must be concluded that his Honour erred in finding that Ms Haines did not plead guilty at the first opportunity when it was reasonable for her to do so.
In those circumstances the sentencing discretion miscarried. Having regard to the fact that there was almost no delay in her change of plea once Dr Giuffrida confirmed his change of mind and expressed the opinion that she probably did not have such a defence, it can be inferred that had Dr Giuffrida been from the outset of the view that he ultimately reached then there would have been a plea of guilty when Ms Haines was first arraigned. The delay caused by the vacation of the May trial date was clearly for the purpose of enabling certainty as to Dr Giuffrida’s assessment of her mental state at the relevant time.
In the exceptional circumstances of this case, the reason for the delay in entering a guilty plea must be taken into account, as must the fact that Ms Haines had also co-operated in confining the issues to be dealt with at the trial, which was not to take place before a jury, to the testing of the evidence of the two psychiatrists. The effect of the latter is that the utilitarian value of the guilty plea, even though only shortly before the trial date, remained high.”
The Chief Minister in the Northern Territory has taken to social media to decry the “rogue youth” in his territory and the need to crack-down upon them by removing the presumption of bail that applies to them.
Adam Giles wrote,
Enough is enough.
We give rogue youth every chance, but they still break in to our homes, smash up our cars and cause trouble.
They commit crimes, then they get bail, they commit more crimes, then they use diversion and it goes on and on… but we still end up getting our houses broken in to and our cars smashed up, and everything else.
Despite strong police action, a very active minority continues to reoffend.
The Police are doing a great job, but the legislation is letting us down.
So, in Cabinet today we’re considering legislation that says no longer will bad youths be given the presumption of bail.
The reason we’re doing this – we hear what’s going on in your community.
We try and do the right thing by youth.
Nobody wants to see a kid in jail, but nobody wants to see our cars getting smashed up and our houses getting broken in to.
In the Northern Territory, young people are subject to the same legislation for bail as adults and bail legislation overrides anything contrary contained in youth justice legislation (which usually contains special provisions dealing with the exceptional nature and special needs of juveniles and the self-evident preference that they not be consigned to languish in gaols while the judicial process is undertaken).
However, under section 22 of the Youth Justice Act (Northern Territory) a young person must not be charged and remanded in custody unless the is a threat to the community, likelihood of reoffending or that they wouldn’t appear at court or that there is an issue of harm for the child concerned.
Queensland, Western Australia and the Australian Capital Territory are the only jurisdictions that have separate considerations for bail applications by young people. These are generally very similar to bail considerations in other jurisdictions’ bail legislation and typically focus on the protection of the community, the likelihood of further offending (which is in part connected to the first consideration) and the interests of the child concerned.
“You don’t make policy by social media … surely even our politicians aren’t so crazy,” he said.
The reality is that there is no formal presumption in favor of bail for youths in the Northern Territory. There is a requirement that children not be charged and remanded in custody except in particular circumstances. If those circumstances are met, then the youth can make a bail application in accordance with the same laws that apply to all adults (under that state’s Bail Act).
So suggesting there is a presumption may be a little too much of straw-man arguing. The reality is children should not be kept in a prison or detention centre unless there is no other option available. This is particularly so in times when youth unemployment and the tragic circumstances of many young people who come before the courts appears to be heightened by and fraught with social issues of incredible complexity.
It is also an ugly discourse to engage in – using children as the bait and switch for a law-and-order/who-is-toughest-on-crims is, at the least, undignified.
In the meantime, the “discourse” or “debate” shall continue, no-doubt, informed by social media comments and the ever-present “like” button on Facebook. It does reveal the extent to which politics in Australia now involves floating policy concepts on social media platforms with a hashtag “NTpol”.
I wonder what the Human Rights Commissioner might say..?
GREGORY IAN ATTWELLS & ANOR v JACKSON LALIC LAWYERS PTY LTD  HCA 16
Today the High Court, by majority, allowed an appeal against a decision of the Court of Appeal of the Supreme Court of New South Wales.
A majority of the High Court held that the advocate’s immunity from suit does not extend to negligent advice given by a lawyer which leads to the settlement of a case by agreement between the parties embodied in consent orders.
The first appellant and another person guaranteed payment of the liabilities of a company to a bank. The company defaulted on its obligations to the bank and the bank commenced proceedings against the guarantors in the Supreme Court of New South Wales (“the guarantee proceedings”). The guarantors and the company retained the respondent firm of solicitors to act for them. The amount of the company’s debt to the bank was $3.4 million. The guarantors’ liability under the guarantee was limited to $1.5 million. The proceedings were settled on the opening day of the trial on terms that judgment would be entered against the guarantors and the company for almost $3.4 million, but the bank would not seek to enforce payment of that amount if the guarantors paid to the bank the sum of $1.75 million before a specified date. The terms of the settlement were reflected in a consent order for judgment in the amount of $3.4 million and the Court’s noting of the non-enforcement agreement between the parties.
The guarantors failed to meet their payment obligation under the settlement before the specified date. The appellants then brought proceedings in the Supreme Court against the respondent (“the negligence proceedings”) alleging that it was negligent in advising them to consent to judgment being entered in the terms of the consent orders and in failing to advise them as to the effect of the consent orders. The respondent asserted that it was immune from suit by virtue of the advocate’s immunity.
The immunity question was ordered to be determined separately from the negligence proceedings. The primary judge declined to answer the separate question on the basis that, without further evidence in relation to the respondent’s alleged negligence, his Honour could only form a view about the application of the advocate’s immunity on a hypothetical basis. The Court of Appeal granted leave to appeal and held that the respondent was immune from suit because the negligence proceedings would necessarily involve a re-agitation of the issues raised in the guarantee proceedings.
By grant of special leave, the appellants appealed to the High Court. The Court, by majority, allowed the appeal. The Court unanimously declined to reconsider its previous decisions on the advocate’s immunity, which confirmed that the immunity extends to “work done out of court which leads to a decision affecting the conduct of the case in court”.
Nevertheless, the Court held, by majority, that the respondent was not immune from suit, because the advice to settle the proceedings was not intimately connected with the conduct of the case in court in that it did not contribute to a judicial determination of issues in the case. This conclusion was not affected by the circumstance that the parties’ settlement agreement was embodied in consent orders.
The doctrine of ‘advocate’s immunity’ means that lawyers are protected from a charge of negligence that is intimately related to litigation. This means that negligence whilst in the courtroom, or work out of court which leads to a decision affecting the conduct of a case in court, is beyond the reach of a lawsuit. Clients who suffer from such negligence can therefore end up without a legal remedy.
Aaron Kernaghan, Lawyer for some of the
survivors of child abuse at the Neerkol Orphanage in
Rockhampton, says that “the Catholic Church
must now respond with genuine acts of contrition.”
For more comments, see below.
The Royal Commission into Institutional Responses to Child Sexual Abuse have tabled its report on Case Study 26. The Royal Commission held a public hearing in Rockhampton between Tuesday, 14 April 2015 and Wednesday, 22 April 2015.
The public hearing inquired into the experiences of a number of men and women who were resident at St Joseph’s Orphanage, Neerkol operated by the Sisters of Mercy between 1940 and 1975.
In their report, the Commissioners found that:
i. there was no evidence of any written reports of suspected physical or sexual abuse of children being received by the state up and until the time of closure of the orphanage
ii. there was no evidence of any action taken which could or may relate to the receipt of any report (written or otherwise)
iii. the state could not locate any records which referred to or discussed any policies and/ or procedures for the reporting of physical or sexual abuse of children up and until the closure of the orphanage in 1978 (despite having found a range of other documents relating to the running of the orphanage),
we are satisfied it is likely there were no departmental policies or procedures issued by the Queensland Government for how institutions such as the orphanage should carry out their obligations to report abuse.”
The Commissioners also found that the Queensland Government failed to adequately supervise and protect from harm the children for whom it was guardian in the orphanage by not ensuring adequately trained staff were employed as department inspectors and by not ensuring that it provided adequate scrutiny over the circumstances in which the children were living.
Tragically, the finding extends to include the departmental officers who failed to provide a system of supervision for the delivery of care to children in the orphanage which would properly guard against the children being mistreated and thereby suffering harm.
In a damning conclusion, the Commissioners said that,
We are satisfied that some children at the orphanage did not report the sexual abuse to anyone at the time it was occurring because:
• they had little or no opportunity to speak with the state department inspectors because their visits were infrequent
• they did not think they would be believed
• they were frightened of reprisals from the Sisters or employees at the orphanage if they complained of sexual and physical abuse.
We are also satisfied that children who did complain of physical and/or sexual abuse to a department inspector, a Sister, a priest or police were not believed and/or were often punished by the Sister or priest for reporting the abuse. For those who made reports and were punished or not believed, not only is there evidence that this caused those children further mental and emotional harm but also it placed all children in the home at risk of ongoing sexual abuse. The failure to properly respond to the children’s complaints caused them further mental and emotional harm and placed the children at further risk of sexual abuse.
Regarding the Catholic Church and the Sisters of Mercy (who operated the orphanage at Neerkol), the Royal Commission concluded that before mid to late 1996, Bishop Heenan, as the Bishop of Rockhampton, and Sister Loch, as the Congregational Leader of the Sisters of Mercy, received little or no training in understanding child sexual abuse and responding to complaints of child sexual abuse. That lack of training in detecting and responding to child sexual abuse undermined their capacity to deal effectively with complaints of sexual abuse by former residents of the orphanage between 1993 and mid to late 1996.
Bishop Heenan has been found responsible for an entirely negligent course of conduct. After receiving a complaint of child sexual abuse in June 1993 (AYB) and accepting the truthfulness of her complaint in early 1994, Bishop Heenan failed to take steps to place any restrictions on Father Durham’s contact with children within the ministry. In particular, from June 1993 until May 1996 he did not:
• report the matter to the police (although this was at the request of AYB) or encourage AYB to do so
• organise for Father Durham to vacate the presbytery
• suspend or restrict Father Durham’s ministry within the Diocese. 15 Report of Case Study No. 26
The Royal Commission found that by failing to place any restrictions on Father Durham’s contact with children or report the matter to the police, Bishop Heenan placed other children at risk of sexual abuse.
One particular incident, attributed to Sister Loch of the Sisters of Mercy revealed the inadequate and dissembling response of the Sister (who holds an Australian Honour). Some Sisters had approached Sister Loch about their experiences working at the orphanage. On 13 November 1996, Sister Loch made notes of a conversation she had with Sister Cordelia, a former supervisor at the orphanage. Sister Loch noted that Sister Cordelia told her ‘she remembers a senior boy “trying to tell me” about “Kevin” doing things he should not and “his father wanted something done about it”’. Sister Loch also wrote: ‘Cordelia was not at all specific and very vague on name, years etc. but she described an older boy who was on staff caring and said he since worked in the railway, married a nice girl etc.’. Sister Loch also noted that ‘it is almost certainly Kevin Baker she is describing’. Sister Loch noted that, although one or more of the former residents had raised complaints against Mr Baker and the police were investigating, she did not pass the information on to the police because she did not believe the information was likely to be relevant. The Commissioners concluded that Sister Loch should have provided this information to the police and that a failure to do so was an inappropriate response.
Aaron Kernaghan, solicitor for two of the Survivors of abuse at Neerkol Orphanage and whose cross examination of Bishop Heenan went viral on Youtube, greeted the release of the Royal Commission report,
“My clients, Margaret Campbell and Thomas Murnane, have walked a very long road toward shining a light on the shadows in which this orphanage ran. That light has revealed a litany of criminal behaviour – understood at the time as criminal – and vindicated their long fight for justice. Troubling has been the extent to which the Royal Commission’s investigation has revealed that the shadowy behaviour continued for years following the victimization of these children, in the reprehensible and compassionless way in which a Bishop of the Church and one of the most senior members of the Sisters of Mercy orchestrated and conducted a response to the attempts of child abuse victims to seek justice.”
Kernaghan, who has continued to provide pro bono assistance to Margaret Campbell in her ongoing fight to have her alleged abuser finally brought to trial, said,
“It will rarely be sufficient to claim that ‘we didn’t know then what we now know’. It has always been a crime to abuse children, it has always been wrong and most importantly for an institution like the Catholic Church and the Sisters of Mercy, it has always been a sin. To not recognise the sinfulness of the abuse and the conditions into which these most vulnerable of all children were abandoned by the State of Queensland, is to do more than simply ignore the awful reality – it is a cynical act of betrayal of the trust and faith of the many people, and their families who have been crushed by the weight of their victimization.”
The Report of the Royal Commission into Neerkol has been tabled and is now in the public domain where, says Aaron Kernaghan, the work must continue.
“We know of the history of Neerkol now in a way that Australians didn’t previously fully realise. The good work of the Royal Commission provides a starting point for the work that must now follow. It also provides the Catholic Church in Australia with the potential for a departure-point – an opportunity to do things differently and set about attempting meaningful acts of contrition that may go some way toward restoring the confidence and faith many Australians place in such an important cultural and spiritual institution.
For my clients, their lives have been marked by hardship, difficulties in confronting the day-to-day living that comes with being haunted by a past filled with violence and deprivation. Margaret Campbell stands ready to receive the help of the church in meeting her ongoing medical costs and expenses – an act of care and protection that the Church and the Sisters of Mercy did not afford her when they were responsible for her as a child. A compassionate church, a sensible organisation and a modern institution can reasonably be expected to reach out and to provide that care so that she doesn’t have to continue to pay for her medical needs out of her own purse.
The real test for the institution will be how to ensure it does not pay mere lip-service to the findings of the Royal Commission and deliver on its founding promise of being a place of service in the needs of others.”
Mr Kernaghan also welcomed the Royal Commission’s indication that they intended to consider further aspects of the case that were revealed during the public hearings – including the involvement of Mr Brian Lucas and the functioning (or dysfunction) of the criminal justice system.
“Ms Campbell in particular has found a new opportunity to have her voice heard and she is genuinely pleased that her efforts with the Queensland Director of Public Prosecutions and the Queensland Attorney General have been received with respect and all due consideration. The future will tell what course those efforts take, but for now, Ms Campbell is pleased to see that substantial findings have been made that place the burden of expectation upon the Queensland Government to reform its criminal justice provisions to bring them into line with the other States and Territories and to render a more perfect system for the detection and punishment of child abusers.
The report should serve as a warning bell for those abusers hiding in the community who hope that the passage of time will provide them with a chance of escape from their criminal acts. Those acts continue to sound down through the decades and even now, accountability is near for those who are guilty and a fair trial for those who are not.”
A copy of the full report of the Royal Commission can be found here.
Media inquiries should be directed to Kernaghan & Associates: (02)42440339.
According to a press release issued by the Royal Commission into Institutional Responses to Child Sexual Abuse it will be closing registrations for private sessions on 30 September 2016.
Private sessions allow survivors of child sexual abuse in an institution to share their story directly with a Commissioner in a private setting.
The Hon. Justice Peter McClellan AM, Chair of the Royal Commission into Institutional Responses to Child Sexual Abuse said the strong demand from survivors to share their story has resulted in a queue of people waiting to meet with a Commissioner.
“The rate at which people come to the Commission seeking a private session shows no present sign of diminishing. It has averaged 37 per week over the past 12 months,” Justice McClellan said.
“If the present demand for private sessions continues throughout the life of the Commission, unless we close off applications well before we complete our final report, many people who may seek a private session will be disappointed.”
“In our view it would be intolerable for a survivor to be accepted for a private session only to find we could not meet with them,” he said.
The first private session was held on Tuesday 7 May 2013 in Parramatta, NSW, and this month, the Royal Commission completed its 5,000th private session in Queensland. There are more than 1,500 people currently waiting for a private session.
“The Commissioners recognise that for individuals who have been traumatised by sexual abuse giving an account of their experiences and telling their story to a Commissioner is, for many survivors, an important part of their personal journey,” Justice McClellan said.
“The information which the Commission has obtained from survivors has proved to be critical in informing our investigations and will provide a secure foundation for many of our final recommendations,” he said.
The closing date applies only to new applications for a private session. People who have already been accepted for a private session or who apply before 30 September will have an opportunity to meet with a Commissioner. The Royal Commission will still accept written accounts after 30 September.
“There can be no exceptions for any application received after that date. I know this will mean that some people will be disappointed. For that the Commissioners are sorry,” Justice McClellan said.
Private sessions are unique to this Royal Commission. The Commonwealth Parliament amended the Royal Commissions Act 1902 so that Commissioners could hear from survivors in private and ‘bear witness’ to their stories of abuse.
Private session accounts are being written up and de-identified, and will be presented as part of the Royal Commission’s Final Report.
Private sessions are held in all capital cities and have also been held in regional areas including Cairns, Coolangatta, Hervey Bay, Rockhampton, Townsville, Woorabinda, Newcastle, Coffs Harbour, Ballina, Penrith, Launceston, Kimberley, Bunbury, Geelong, Bendigo, Ballarat and Warrnambool.
Private sessions also have been held for inmates in 26 correctional centres in NSW, ACT and Victoria.
Only the space agencies of the Soviet Union, the US and the EU have landed anything on Mars. This week Elon Musk’s rocket company SpaceX said it would put its Dragon spacecraft on the red planet “as soon as 2018″—making it the first private company to go interplanetary. It’s easy to get impatient with crackpot…
In NSW, people who are in need of protection from threats of harm of harresment can obtain a court order in the form of what is called an Apprehended Violence Order. There are a number of different types of those orders and the Court has very specific rules that govern how to proceed.
Always remember, every case is different and a solicitor will be able to provide you with specific advice to suit your circumstances. For more information, contact us on 1800-091-889 or (02)42440339. Call today.
Applying for an AVO through the Police
Step 1: Speak to the police
You may need an Apprehended Violence Order (AVO) to protect you where:
someone has hurt you
you are scared that someone will hurt you
someone is intimidating, harassing, or stalking you.
To get an AVO you will need to show that you fear the defendant and that there are reasonable grounds for you to fear the defendant.
You should report any incidents to the police. If you are scared you should talk to the police as soon as possible. The police may apply for (and issue in cases of domestic violence) a Provisional AVO (an urgent order)on your behalf.
A police application may be made either:
by you attending a police station
after the police have attended an incident or taken a report of an incident.
Police can use the Telephone Interpreter Service (TIS) if you have difficulties understanding or speaking English. The police can also arrange an interpreter to be at court. This is a free service.
Any statement you make to the police should be true. If you make a false statement you can be charged by the police. If you want to change a statement you have made you should get legal advice.
Step 3: Sign the statement
After you have given your statement you will need to sign it to show that you believe the statement contains the truth. The police should give you a copy of your signed statement.
The police can charge you for making a false or misleading statement in an AVO case. If you want to change your statement you should get legal advice.
The police should then investigate the matter. If the police believe there are reasonable grounds to apply for an AVO on your behalf they should go ahead and make the application for an AVO. After investigating, the police may also decide to charge the defendant with a criminal offence (or offences).
The police will either hand deliver or post you a copy of the AVO application.
If the police believe that a person needs urgent protection they can apply for an urgent AVO called a Provisional AVO.
Step 4: Serve the application
After the police have made the application, they must then serve it on (give it to) the defendant personally.
The police officer that serves the application for an AVO must fill out a ‘statement of service’, and send it to the Court. The statement of service states when and how the application was served, so that the court knows the defendant is aware of the application.
The police can detain defendants, or in some cases order them to go to and stay at specified locations, for the purposes of serving an AVO application on them. If they can’t serve the application personally, it is possible to get a court order to bring the application to the defendant’s attention in another way. This is called ‘substituted service’.
The application will tell the defendant the date and time they have to go to court. You will also need to go to court on this date.
When the police apply for an AVO on your behalf you are represented at court by a police prosecutor.
In ADVO matters and some Apprehended Personal Violence Order (APVO) matters, Women’s Domestic Violence Court Advocacy Service (WDVCAS) can assist female applicants and, in some cases, female defendants, with applications and legal representation. For more information, go toWDVCAS.
If you have left your home because you fear the defendant and you would like to collect some of your belongings you can ask the court to make a Property Recovery Order. If you have a Property Recovery Order the defendant must let you enter the premises to remove your property. The court can also order that the police or another person may come with you so that you do not have to go there alone.
IMPORTANT NOTE: The information contained on this page is reproduced from the LawAccess website for NSW and relates only to NSW provisions. For advice in Victoria or Queensland, contact us immediately.
Importantly, nothing contained in the above information is legal advice and in all circumstances you should obtain fully qualified legal advice that is specifically tailored to your situation. Every case is different and a solicitor will be able to provide you with specific advice to suit your circumstances. For more information, contact us on 1800-091-889 or (02)42440339. Call today.