Category: Criminal Law

This week the Queensland opposition launched a robust attack on a centuries-old criminal law defence. The 'mistake of fact’ defence was encoded into Queensland law in 1899 when our Criminal Code was first enacted, adopting a common-law notion dating back at least as far as pre-Norman England, that criminal liability requires some sort of actual subjective culpability, whether based on moral guilt or negligence. Section 24 of our Code provides that a person who does something under an honest and reasonable, but mistaken, belief as to a particular fact, they are not criminally responsible to any greater extent than if that belief was correct.
A common submission by Queensland defence lawyers representing drug-driving offenders goes something like this: “My client had not in fact smoked cannabis for several days prior to driving, but hangover traces of the drug must have remained in his system, unbeknownst to him."
Lawyers have this thing they sometimes like to say. “Hard cases make bad law.” It’s true. About thirty years ago I got the job to represent a nice, sweet, softly-spoken lady who stabbed her husband 87 times with a serrated kitchen knife. Not surprisingly he ended up dead as a doornail.
They say confession is good for the soul. That may be so, but sometimes it seems there's a whole lot of things it's not nearly so good for. Just ask Liam Neeson.
There is a Japanese proverb that goes along the lines of “We’re fools whether we dance or not, so we might as well dance” and as history has shown us we love to dance on April Fool’s Day.
A generation ago, corporal punishment at school was commonplace. Canings and strappings that would now turn school mums like me apoplectic were once considered a routine and acceptable means of enforcing discipline and taming the unruly child.
A brand new Netflix documentary doing the rounds right now has sparked a maelstrom of controversy around the ethical and legal culpability of “social media influencers” in advertising and promoting business brands for profit. The disaster-doco “FYRE: The Greatest Party That Never Happened” tells the sorry story of the exploits of Billy McFarland, the mastermind behind the failed 2017 “luxury music festival” FYRE.
The wheels of Justice turn slowly, but grind exceedingly fine. One of the biggest movies of 1967 was Franco Zeffirelli’s rollicking cinematic rom-com treatment of William Shakespeare’s comedy Taming of the Shrew, written and first performed four centuries earlier in the late 1500’s. The 1967 movie of the same name starred Hollywood’s then hottest couple, the Brangelina of their day, Elizabeth Taylor and Richard Burton, as the strong-willed couple Katherina and Petruchio, who are pitched together in a head-long battle of the sexes.For those who need to brush up on their Shakespeare, the Shrew plot follows the efforts of embattled dad Baptista Minola to marry off his two daughters, Bianca and Katherina.
The concept of an impartial jury is central to the operation of our criminal justice system. For hundreds of years we have put our faith in those twelve ordinarily citizens, unbiased and unswayed by extraneous and irrelevant considerations, to stand as the fail-safe system and last line of defence between citizen and state. But of course the key part of that concept is impartiality. For any accused person to have a fair trial, the jury that deliberates on their guilt or innocence must be entirely unbiased and undistracted by any influence beyond the evidence adduced in court.
The Italians say Revenge is a meal that’s best eaten cold. I guess Jimmy Bulger would have agreed. James Joseph Bulger Junior grew up in abject poverty on the dirt-poor streets of South Boston in the 1930’s and 40’s, along with his two younger brothers, William, better known as “Billy,” and the baby, John, whom the Bulgers dubbed “Jackie.” Billy and Jackie were good boys who worked hard at school and excelled, but Jimmy was a tough street scrapper who succumbed to the lure of the streets. While Jackie went on to become a court magistrate, and Billy a lawyer and eventually Democratic Senator William Michael Bulger, the longest-serving President of the Massachusetts Senate, Jimmy was a career criminal, a ruthless gangster and organised crime boss, leader of Boston’s infamous Winter Hill Gang. The local cops nicknamed him “Whitey” because of his blond head of hair. Jimmy hated the name, but it was a tag that stuck to him all his life.
Like beauty itself, art is undoubtedly very much in the eye of the beholder. A couple of years back, a world-renowned Brisbane-born street artist, whose celebrated work is permanently exhibited in the Australian National Gallery and regularly sells for thousands of dollars in the swank art-houses of Sydney and Melbourne, was accused of painting graffiti at various sites around Brisbane. For his sins he was charged by Queensland police with wilful damage of property.
It has long been accepted that the element of certainty is essential to the rule of law. Long-standing legal principle dictates that the law should be certain and accessible, so it can be easily enforced and people can know where they stand. But in an ever more complicated world, that task is becoming increasingly complex.