Today we celebrate our 100th post on the blog. Thanks everyone for your support and your continued input in making this a relevant and interesting blog.

Today’s topic comes straight out of the pages of The Australia and near-daily court experience with the controversy-that-dare-not-speak-its-name finally being given voice – but in the wrong direction with a sitting Local Court Magistrate criticising the Aboriginal Legal Service for not pleading clients guilty often and early enough. The magistrate, at least as reported, appears to be criticising Aboriginal Legal Service lawyers for defending rheir clients and requiring that the prosecution are put to proof.

This is an appalling display of magistrates (this one, a sitting magistrate) putting the cart before the horse. In my view it is never appropriate for a member of the judiciary to comment on the failure or otherwise of a client to insist on their rights at law and defend a charge in court. What is happening in our state when this is the publically avowed position of a sworn magistrate?

Roger Clisdell, the sitting magistrate in Parkes in the NSW central west, took the unprecedented step of publicly criticising the Aboriginal Legal Service NSW/ACT after reports in The Australian on juvenile justice exposed apparent disparities in sentencing patterns between city courts and the regions.


The ALS’s Dubbo office last year commissioned a study of hundreds of convictions of ALS clients for driving while disqualified, which revealed Aboriginal defendants were being sentenced to prison more often and for longer periods than their non-indigenous counterparts.

The ALS’s principal solicitor (western zone), Stephen Lawrence, had also been vocal in his criticism of sentences handed to Aboriginal boys in the region, including one case in which a 17-year-old with virtually no criminal history was given a 12-month head sentence for stealing $70 of hamburger buns.

In responding, Mr Clisdell blamed parental alcohol abuse, domestic violence and family breakdown for youth offending, but also took the opportunity to take aim at what he characterised as aggressive tactics by the ALS in defending their clients.

In an interview with The Australian, Mr Clisdell spoke of his frustration with the high rate of not-guilty pleas entered in the Bourke and Brewarrina jurisdictions, in particular for domestic violence matters and particularly relating to ALS clients.

“Where the ALS do a disservice to their clients is the constant inability to enter an early plea of guilty to charges where there clearly should have been a plea entered. The not guilty plea rate at Bourke and Brewarrina was close to 90 per cent,” he said.

Mr Clisdell suggested that defendants or their lawyers were aware victims would often fail to appear in court to testify, meaning that those who had pleaded not guilty would get off scot-free.

“It’s called the Bourke defence,” Mr Clisdell said.

“I don’t know whether the client is not prepared to acknowledge guilt, or whether there is an underlying idea that let’s make the police prove every single point. But it doesn’t do the clients much good if they get convicted after a hearing, and any discount that would have applied to a plea of guilty is forfeited.

“When you’ve got a rate of not guilties that is as high as it was in Bourke and Brewarrina, you have to wonder whether there is some campaign to take on the police absolutely every time and clog the court lists. Because inevitably what happened is that the victim wouldn’t turn up and the matter would be dismissed.”

Mr Clisdell suggested the ALS had “declared war” on the magistracy in the northwest.

He said Mr Lawrence’s comments were “a direct attack on the magistracy. Allegations of idiosyncratic sentencing, overly harsh sentencing, social engineering – if that’s not an attack on us I don’t know what is. And I reject each and every one of those contentions so far as they apply to me.”

ALS NSW/ACT chief legal officer John McKenzie vigorously defended the “fearless advocacy” displayed by ALS solicitors.


Mr McKenzie said there was “no place in our justice system for anyone to publicly question the privileged communications between a client and their lawyer”.

“One of the major reasons why the ALS was established in 1970 was to combat the widespread practice in magistrates’ courts of Aboriginal people being pressed into entering pleas of guilty in the absence of legal representation.”

“In most courts at the time, it was a very rare occurrence for an Aboriginal accused to plead not guilty, regardless as to whether they believed they had committed the crime.”

Full story in the Australian online here.

With thanks to one of the fighters and true advocates for his clients – Tim McKenzie for tip off to the above articles.

Aaron Kernaghan

Wishing you a Merry and Safe Christmas

The whole team at Kernaghan and Associates wishes you all a very merry and very safe Christmas, this December. We hope your holidays are restful and that you start the new year with cracking success (much like, we hope, the Australian Cricket Team). 

Best wishes for the New Year and we shall see you all soon.

Merry Christmas and a Happy New Year.

Aaron, James, Leisha, Todd, Tim, Kyle.

New Layout

We have a new layout to the blog, what do you think? Bare with us while we make some fine-tune adjustments.

Sly Defence Lawyers

A respected and entirely professional and experienced investigator recently indicated that an (at least) equally experienced and senior prosecutor had suggested to her that defence lawyers cannot be trusted, that they are sly.

This perception is commonly reported as the perception of the general public – yet here it apparently is from a professional within the legal system, who should know better. Such a statement does nothing to preserve the dignity of the profession, nor for the matter is it especially polite.

But it is revealing of the increasingly hostile nature of the states prosecution services. The day when the DPP would utilize its discretion to act impartially, objectively and with dispassionate gravitas appears to have turned to the day when the DPP seeks to be the moral guardian of the state. Implicit in the comment above is an assertion that not only must defence lawyers not be trusted, but that only the prosecutors can be. 

The reasons why such a view might be held probably cut across a number of issues and experiences. But it is an interesting insight into the approach now taken in the context of criminal litigation. Just recently, in another part of the state, a prosecutor took it upon himself to object to a client electing to insist upon his right for a trial by jury. His intended objection was later withdrawn – it having no basis in law or in principle.

At this time of the year, it’s helpful to ponder these experiences to look ahead and see what the future might bring.

Darwin the Ikea Monkey

Monkeys at Christmas?

A monkey who shocked onlookers when he walked into an Ikea store wearing a winter coat and nappy, has sparked a wave of jokes across social media. 

He was spotted in a parking lot near an Ikea in Toronto before he walked in to the famous Swedish furniture store.

Police believe he escaped from a car before he ended up wandering into the Ikea store, The Daily Mail reports.

The monkey, known now as Darwin, has been described as a “smart monkey” by Canadian police.

Compared to what?

Other new laws….

The RTA has had a field day/month/year expanding it’s enormous power-base and revving up new laws.

Among the other specials introduced since 1 November, 2012:

– Visual display units (like IPads) can no longer be used while driving a car for GPS unless it is secured in a fixed mounting. 

– If you cross the road as a pedestrian while the light is red, you can be fined $66.

– If the light turns red as you are crossing the road as a pedestrian, and you don’t finish the crossing without delay, you can be fined $66.

– If a pedestrian is crossing the street that you are turning into, you must give way to the pedestrian. Fine: $298.

– You can’t take your animal on your motor bike anymore – at least not between yourself and the handlebars (apparently this has been happening a lot) – $397 fine.

– When entering a roundabout you must give sufficient warning to other drivers by signalling before entering the roundabout. Previously you only had to indicate when leaving the roundabout. – Fine: $165.

In our view, using a roundabout should be a crime.


New laws (again) about mobile phones. Now in effect:

We won’t summarize it, we’ll just show the law to you:

Road Rule 300 (there’s a lot more where this one comes from) says:

Use of mobile phones by drivers (except holders of learner or provisional P1 licences)

(1) The driver of a vehicle must not use a mobile phone while the vehicle is moving, or is stationary but not parked, unless:

    (a) the phone is being used to make or receive a phone call (other than a text message, video message, email or similar communication) or to perform an audio playing function and the body of the phone: 

         (i) is secured in a mounting affixed to the vehicle while being so used, or

         (ii) is not secured in a mounting affixed to the vehicle and is not being held by the driver, and the use of the phone does not require the driver, at any time while using it, to press any thing on the body of the phone or to otherwise manipulate any part of the body of the phone,


    (b) the phone is functioning as a visual display unit that is being used as a driver’s aid and the phone is secured in a mounting affixed to the vehicle,


    (c) the vehicle is an emergency vehicle or a police vehicle,


    (d) the driver is exempt from this rule under another law of this jurisdiction.

Maximum penalty: 20 penalty units.

A penalty unit is about $110 (they will probably change that soon too).


Anyone with a P1 Provisional License must not use a mobile phone by any means whatsoever while the vehicle is in motion or stationary but not parked. 

This means not even hands-free is available.

In the language of that generation – 😦


Or should that say “merged” or “consolidated”.

Anyhow, the NSW Attorney General is amalgamating tribunals all over the place. So many in fact that his clean sweep has swept up some tribunals that even we hadn’t heard about:

“Mr Smith said 23 of the state’s tribunals will be integrated into a new overarching tribunal that will provide a simple, quick and effective process for resolving disputes, supervising occupations and reviewing executive action.”

This new Frankenstein’s Monster shall be called, “The NSW Civil and Administrative Tribunal (NCAT).”

Apparently it will be a “one-stop shop” for all your state tribunal needs ranging from (wait for it…) the Chinese Medecine Tribunal through to ones that people might recorgnise like the Consumer, Trader & Tenancy Tribunal.

Alarmingly, the Industrial Relations Commission won’t be consolidated “at this time”. Apparently the word “Commission” means something special (must be that word, couldn’t be the sacred cow word “Industrial”).

Apparently all this merging will be about “Enabling tribunals to exist as a network, rather than in isolation [and] will improve the quality, consistency and transparency of services.” No doubt there will be some totally unconnected side benefits such as the reduction of administrative staff and running expenses.

There will be five divisions called:
1. Consumer
2. Administrative
3. Equal Opportunity, 
4. Occupational and Regulatory,
5. Guardianship,
6. Victims  

Wait, that’s six isn’t it?

Anyhow, NCAT will include the following tribunals and bodies exercising tribunal-like functions:

– Aboriginal and Torres Strait Islander Health Practice Tribunal
– Aboriginal Land Councils Pecuniary Interest and Disciplinary Tribunal
– Administrative Decisions Tribunal
– Charity Referees
– Chinese Medicine Tribunal
– Chiropractors Tribunal Consumer,
– Trader and Tenancy Tribunal
– Dental Tribunal
– Guardianship Tribunal
– Local Government Pecuniary Interest and Disciplinary Tribunal
– Local Land Boards Medical Radiation Practice Tribunal
– Medical Tribunal Nursing and Midwifery Tribunal
– Occupational Therapy Tribunal
– Optometry Tribunal
– Osteopathy Tribunal
– Pharmacy Tribunal
– Physiotherapy Tribunal
– Podiatry Tribunal
– Psychology Tribunal
– Vocational Training Appeal Panel
– Victims Compensation Tribunal

A Supreme Court judge will be appointed President of NCAT to ensure its independence and Deputy Presidents with relevant experience will head the five divisions.

All that is left to be said is, “there’s a Podiatry Tribunal?”

Society is Represented by Juries, Not Facebook?

According to a press release from the NSW Attorney General, a working group will look at the impact of social media and how it might compromise jury trials. 

Perhaps this is following the completely out of control mad rash of jurors taking up texting midway through trials (not). The whole thing sounds rather like someone has suggested that beer should be bottled in small, easily transported containers and then complaining when people start using it. Perhaps it’s a case of trying to put the cork in the bottle after it’s been poured?

“After a lively discussion on recent issues in social media including cyberbullying or trolling and the impact social media comments have on the right to a fair trial the Attorneys agreed to seek a coordinated national approach to the issue.”

Apparently there is a need to develop protocols with overseas based social media organisations to ensure they comply with the state’s suppression order laws. The companies also needed to accept service of take-down orders in a prompt manner so that potential damage from publication on social media can be contained.

The group will make recommendations on: model guidelines and warnings for users about prejudicial material protocols with social media organisations for the removal of prejudicial material procedures for law enforcement and courts to use social media to issue orders against users of social media and issue warnings to them model jury directions on this issue which might be adopted by all states and territories laws dealing with offences by jurors the need for further research on the impact of social media on the actions of jurors. The Attorneys also noted “the potential for social media to jeopardise the right to a fair trial and in particular to compromise a jury trial”.

Happy Censorversary

About a year ago this appeared on the Delimiter Website:

“NSW Attorney-General Greg Smith has unexpectedly called for the popular Grand Theft Auto video game series and other violent games to be banned — not just classified R18+ as suitable for adult use. “I think they should be banned,” the Liberal MP said in a Seven News broadcast aired last night and available online (see above). Smith pointed out one of the GTA games “invoves a prostitute giving sexual favours for money to a man in a car, and then when she gets out, he comes out with a semi-automatic rifle, and shoots her dead. Now what good does that do anybody?” Smith asked.”

Goodness. More here.