In 2006 Trent Jennings was found not guilty by reason of mental illness of the murder of a man in 2003.

Since that time he has been incarcerated at a mental health facility. Only one month ago he was granted day release leave by the Mental Health Tribunal, presumably due to an improvement in his mental health. On December 30, whilst on day release, he absconded. A man hunt was launched and had been underway since that time.

He was re-arrested on January 4 after a member of the public saw him sleeping in the back of a car. He has now been charged with robbery, detaining a person with the intent to obtain mental advantage, and the stealing of a motor vehicle.

Whilst the fact that someone absconded on day leave is of concern, the Police and Corrective Services cannot be blamed for that given that the day leave was granted by the Mental Health Tribunal. In any event, there is always a risk of such persons absconding, and there really is little that can be done to prevent it.

What is of concern is that, not long after Mr Jennings absconded and stole a Mercedes, he was stopped by Police near Coffs Harbour.

It appears that Police had nothing on their system to suggest that he was in fact a prisoner on day release. Further, he produced a valid driver’s licence and passport that he had been issued by the relevant authorities.

Whilst it is perhaps understandable that he might be allowed to obtain a driver’s licence, given his activities whilst on day release could demand it, it seems somewhat extraordinary that he was granted a passport. When contacted by the Sydney Morning Herald, the Department of Foreign Affairs, who issued him with the passport, indicated that Mr Jennings qualified for the issuing of that document, and there was no legally valid basis for refusing it.

It appears likely that there will now be some review of the rules, and it may well be that passports can no longer be issued for a person on day release.

The issue of day release is a difficult topic.

On one hand, it is important that persons who may soon be released are given day release to smooth their entrance in to the community. It is not appropriate that prisoners are simply “tipped out the front door” on their release. This would drastically increase the chance of a person re-offending and would make it far more likely that Police and/or community service would need to intervene to provide additional support.

It is better that prisoners soon to be paroled or releassed be allowed a gradual release, to allow them to start preparing themselves for re-entering into the community.

This is in fact the motivation for allowing a person to be released on parole before the end of their sentence. Whilst on parole, they have to comply with stringent conditions to ensure that their likelihood of re-offending is reduced.

However, the conditions and circumstances under which a person is released on their release need to be closely monitored to ensure this kind of event does not re-occur.

Whilst the Department of Corrective Services cannot be blamed for the fact that he absconded, it is concerning that he obtained a passport, and it may be appropriate that further restrictions are placed upon persons on day release to ensure that this does not re-occur.

In the event, the only harm done was to the person that Mr Jennings stole the car from and briefly detained. In those circumstances, that is perhaps a small blessing.

If we are to reduce the risk of a repeat occurrence, but perhaps with more serious consequences, steps will need to be taken to ensure that full information is provided to the necessary authorities.

The stated purpose of the survey was to allow the public to provide feedback and air their views about sentencing in Victoria.

It provided a number of hypothetical circumstances and then asked the survey respondent to indicate what sentence they felt was appropriate for the offence in question.

The results have now been published and unsurprisingly they suggest that the public feels that sentence sare too low.

Of course the fact that the survey was done through a tabloid newspaper should have been the first clue that the government was not serious about obtaining fair and measured results.

Tabloid media in Australia has a long history, along with talk-back radio, of stoking public outrage about sentencing.

Often the reporting in the newspapers has been not dissimilar to the survey questions: light on detail and with little regard to the circumstances surrounding the incident.

The survey in question took no regard of things like the offender’s criminal antecedents or lack thereof, psychological features that may have played an important part in the proceedings, the importance of considerations other than retribution and punishment for offending conduct and a multitude of other factors that Judges have to grapple with every day in sentencing for serious offences.

It has been said many times before that sentencing is a delicate and complex process, and so it should be. If we are going to deprive persons of their liberty then it is important that all relevant considerations are taken into account to ensure that a just result is reached.

A populist or simplistic approach will not only lead to harsher sentences but will disenfranchise large sections of the community.

To its credit, the courts in Australia have always been extremely mindful of these issues.

The concern, following on from the survey, must be that the Victorian legislature will now retreat somewhat from this position, and will begin legislating to increase sentences and remove Judge’s discretion.

The removal of discretion is always an extremely concerning sign in criminal law.

We can only hope that the Victorian Government will use the results of the survey for good and not to advance the selective agenda of some members of the community.

In 1993, Jeffrey Gilham’s parents and brother were killed. Mr Gilham’s story has consistently been that his brother killed his parents. When Jeffrey arrived home and found his brother standing over the bodies of his parents, Mr Gilham claims he flew into a rage and killed his brother. In 1995 he was sentenced to a good behaviour bond for the manslaughter of his brother. Subsequently, after a long campaign by his uncle, Jeffrey was tried and convicted of the murder of his parents.

The prosecution alleged, and the jury agreed, that Mr Gilham had set the entire scene up. The prosecution alleged that he had killed his parents and his brother, and then made it look like his brother had been the murderer.

The most recent development is that the Court of Criminal Appeal has allowed his appeal, quashed his conviction for the murder of his parents and granted him bail pending a decision over whether he would be retried.

Many members of the legal fraternity were surprised by these developments. Recently Australian Story has broadcast a piece about the concerted campaign to have his conviction overturned.

Obviously someone who hasn’t been deeply involved in the matter and hasn’t had the opportunity to review the evidence and the transcripts could not possibly know whether the Judge’s decision to release Mr Gilham is a sound one. At the time of writing, the court’s reasons have not been published.

Further, there is no doubt that Mr Gilham has many supporter and many detractors.

The appeal has turned upon some expert evidence which has now apparently been debunked. Whilst of course a Court of Appeal Judge has no way of knowing precisely what decision a jury may have made if they had this new evidence, the new evidence what was clearly so compelling that the court felt it had no choice but to quash the conviction.

The question now becomes whether the DPP will re-try Mr Gilham. He has already been tried twice after the first trial a hung jury.

The DPP may well find that there are insufficient prospects of success in the third trial.

Alternatively, an application by Mr Gilham for any prosecution to be permanently stayed would have some merit given that he has now being tried for the offence twice.

An article appeared earlier this week indicating that the DPP is still pursuing Mr Gilham for the $1 million he inherited when his parents died. They are claiming that the monies are the proceeds of crime because he murdered his parents. The burden of proof in relation to such proceedings is different in criminal proceedings, and the DPP may well succeed in this endeavour.

It also remains to be seen whether Mr Gilham will sue the government in relation to his imprisonment. Whilst he was in prison according to law, if he can satisfy a court that the police have lied, concealed evidence or otherwise mislead the court he may have some prospects of success.

Certainly this story is a long way from done. It will be fascinating to see what twist and turns it takes into the future.

Whilst every state has laws forbidding persons driving with a blood alcohol level over a certain point, it appears that only some states have laws against drinking while driving. In NSW, Regulation 298-1 of the Road Rules 2008 says that “a driver must not consume alcohol while driving” The maximum penalty for this offence is a fine of $2,200.

It should be noted that this offence should be in addition to any charge of Driving with the Prescribed Concentration of Alcohol or Driving under the Influence of Alcohol that may also apply.

It appears that in Victoria, to date, it is not an offence to be drinking alcohol while driving. In fact, if the person in question passed a breath test there is no reason to expect that such a person would be subject to any sort charge from Police at all.

Premier of Victoria, Ted Baillieu has announced that the Victoria Attorney General is now examining the issue in detail and intending to close the “loop hole”.

I have put loop hole in quotes because it’s not really, in my opinion, a “loop hole”. It is merely something against which there’s presently no law. A loop hole is usually used to describe some anarchism or error in the law that leaves a small escape path for a person with the a savvy lawyer.

This is something quite different. It is merely something that has never been legislated.

In any event, it appears to be a sensible amendment. If the legislature is really serious about sending a message that drunk driving and drinking and driving do not go together, then it would seem ridiculous that a person can drink while driving and not suffer any penalty, even if they do remain under the .05 blood alcohol limit.

It will be interesting to see precisely what penalties the Victoria Government sees fit to impose for the offence and how they propose the offending conduct be treated before the court.

The forum was hosted by NSW Greens MP Cate Faehrmann in preparation for her introducing a Bill to Parliament in the second half of this year to legalise voluntary euthanasia.

Voluntary euthanasia refers to a Doctor or other person assisting a person in ending their life. This is a step beyond passive euthanasia, where medical professionals withdraw treatment or do not resuscitate a person either at their or their family’s request.

For obvious reasons, the issue of assistance being provided to a person to end their own life is an extremely emotional one, and one that has been debated endlessly in recent years.

Many people will recall that in 1995 the Northern Territory enacted a Bill allowing for voluntary euthanasia, although this was overruled by the federal government in 1997. Since that time voluntary euthanasia has remained illegal in Australia.

In November 2008, a 60 year old lady by the name of Shirley Justins was convicted of manslaughter for providing the drug Nembutal to a terminally ill partner.Her 75 year old friend was also convicted of being an accessory to the manslaughter.

Shirley Justins was sentenced to 2 years weekend detention, whilst her 75 year old friend committed suicide after being found guilty but before the sentencing proceedings.

In the end Ms Justin’s conviction was overturned on appeal, but the case underlines how seriously the courts take these issues.

At the forum at the NSW Parliament, former Director of Public Prosecutors, Nicholas Cowdry spoke in favour of such a bill. He has previously expressed regret that the director has been forced to prosecute persons for voluntary euthanasia in circumstances where, in his view, the law should not forbid the actions.

Many people have a view that voluntary euthanasia in any circumstances is immoral or untenable, and should not be allowed.

Others have the view that voluntary euthanasia is a very good idea in theory but very difficult to apply in practice.

It is difficult to work out exactly what checks and balance can be put in place to ensure that person who is ending their life is not, for example being pressured into it by a greedy family member who wants the inheritance.

There are also serious concerns about persons with mental illnesses such as depression or persons otherwise not in a fit state of mind to make such a decision. How can the law protect these people from others and themselves?

Other people have a far more liberal view about the issue and would like to see personal choice given the highest priority.

Their case has helped by anecdotal accounts of doctors and other medical professionals often “releasing people from their pain” when they view it as being appropriate to do so. A legal structure allowing voluntary euthanasia would, in theory, bring these otherwise clandestine and of course highly illegal activities under a ordered and structured set of conditions.

Whilst voluntary euthanasia remains illegal in Australia it is legal in the Netherlands, Belgium and Luxemburg. Assisted suicide, a more restrictive version of voluntary euthanasia, is presently legal in Switzerland and some US States.

There is no doubt this is an issue that will polarize the community, and we can expect to see vigorous debate on the issue if the Bill is indeed introduced by the Greens.

A period of 12 months separation is necessary before a divorce in Australian family law can proceed. In contentious cases, the date of separation may have to be proven. Whilst there is no opportunity to register separation and your partner does not have to agree, it is a requirement that he or she knows that you consider the relationship to be over. Depending upon your circumstances it may also be necessary to inform particular government organisations or financial institutions of your separation, including Centrelink and superannuation trustees.

The date of separation may have greater significance in the context of a de facto relationship. For the property settlement jurisdiction of the Family Court to be available, section 90SB of the Family Law Act states that a de facto relationship must have been in existence for a period of at least 2 years or that there is a child of the relationship. If separation is found to have taken place before the minimum two year period the Family Court may have no jurisdiction to afford property settlement.
Separation may be found to take place despite a couple continuing to live together. In arriving at this conclusion, the court will take into account whether it was publicly known that the couple had separated, whether the parties slept in separate rooms, the extent to which financial affairs were separated, whether any government institutions were informed, whether there were ongoing levels of intimacy and the extent to which domestic duties were shared.

Divorce

The first requirement for obtaining a divorce is proof of a valid marriage. An Australian marriage certificate or a foreign marriage certificate translated into English will be satisfactory. The jurisdiction of the Family Court of Australia or the Federal Magistrates Court will be held to apply if either party is an Australian citizen, has lived his or her entire life in Australia, regards Australia as their home, intends to live in Australia indefinitely or ordinarily lives in Australia and has done so for the 12 months prior to making an application for divorce.

A divorce will be granted if it can be demonstrated that the relationship between the parties has broken down irretrievably. This will be satisfied by evidence of 12 months separation immediately preceding the application for divorce. If parties are able to reconcile during the period of separation, separation does not have to recommence provided any reconciliation does not amount to more than 3 months. Any periods of reconciliation will not be counted towards the required 12 months of separation.
Australian family law places a strong emphasis on the best interests of any children to a marriage or de facto relationship. The court will not allow an application for divorce to proceed unless it is satisfied that the safety and wellbeing of all children have been considered and that proper arrangements have been made on their behalf.

It appears that Mr Forrester arrived at work, instructed an employee to open the safe, packed the $40,000.00 into his backpack and simply walked out.

At trial he asserted that he had only done this because, on the way to work, he was hijacked, stabbed with a needle, told that the needle contained a powerful poison and that he would be given the instructions about where to find the antidote after he handed over a large sum of money.

The prosecution contacted that his story was to ridiculous to be believed and should be not be accepted by the jury, whilst Mr Forrester’s barrister argued that if he was going to make something up he would truly have made up a more believable story.

In the end, after some 4 hours of deliberation, the jury acquitted him of the charge.

The defence barrister rightly argued that the prosecution need to exclude the possibility that Mr Forrester’s story was true beyond a reasonable doubt.

In other words, once he had raised the suggestion of extreme duress, it was up to the prosecution to prove that his story was untrue.

The jury had to decide whether they were satisfied beyond a reasonable doubt that he was lying. Given their verdict, it is clear that they were not satisfied and believe that there was a reasonable possibility that Mr Forrester was telling the truth.

Of course it’s impossible, without having been present of the trial, to assess how likely his story was. This case is a good reminder however of burden that the prosecution bear.

It is not the job of a jury or a Magistrate to weigh two stories and decide which story is more likely. This is only the case where the burden of proof is “on balance”. This is commonly the case with many civil proceedings.

In criminal law however, the test is beyond a reasonable doubt. This is a far tougher test than many people understand. It is not sufficient to simply say “why would the witness lie?” or “he had the opportunity and the motive”. The prosecution need to negative all possibilities that would be consistent with the defendant’s innocence if they are to prove the charge.

Mr Smith said the John Morony Correctional Complex at Berkshire Park, in Sydney’s north-west, would run the rehabilitation program – to be rolled out in stages from next February. He added that a second metropolitan Drug Court initially would sit at the Downing Centre one day per week and involve 40 participants per year.

Mr Lionel Rattenbury from the Specialist Criminal Law firm Armstrong Legal commended the Government for their sensible approach to the criminal justice system. This is responsible Government policy. He hopes that the program at the Downing Centre will be expanded so that the program can assist more people per year.

Mr Smith said both facilities were important steps in the Government’s commitment to reduce recidivism through meaningful rehabilitation. “The Government will be tackling the underlying causes of crime and it is sad fact that many offenders are led into a life of crime because of their addiction to drugs or alcohol,’’ Mr Smith said.

“There can be no doubt that prisoners are less likely to reoffend if they leave prison free of drug dependency.’’ Corrective services data indicates that on any given day, more than 4500 inmates with a medium to high risk of reoffending need some intervention to address alcohol and other drug-related needs. Of these more than 1000 have severe problems which require intensive intervention.

Of the 15,000 people received into custody in 2007-08 in NSW, almost 60 per cent were under the influence of drugs or alcohol when they committed their most serious offence; 71 per cent had committed drug-related crimes (including alcohol); 54 per cent had a history of injecting drug use; and 36 per cent were injecting drugs around the time of their offence.

“Unfortunately, I am advised that there should be no difficulties in identifying suitable candidates for participation in the program,’’ Mr Smith said.

The Attorney General said the 300-bed Metropolitan Drug Treatment Facility at the John Morony Correctional Centre (JMCC), would offer an Intensive Drug and Alcohol Treatment Program (IDATP) for male and female inmates.

The first phase will involve a 62-bed unit for male inmates at John Morony, to open in February 2012. Further units will open in July 2012 and then in July 2013. The unit at Dilwynnia Correctional Centre for women will open in July 2014.

Once fully implemented, there will be 250 beds for male inmates at JMCC and 50 beds at Dillwynia. The male unit will include a 10-bed non-compliance unit to accommodate those inmates displaying anti-social behaviour or non-participation in programs
Eligible offenders will be sentenced inmates with a documented history of problematic drug and/or alcohol use, with a minimum non-parole period of six months still to serve and a minimum or medium security classification.

Male offenders convicted of sex offences will be excluded as they have specialised programs available to them as sex offenders. Inmates will also be excluded if they have non-association alerts with other inmates already undertaking the IDATP.

The second metropolitan Drug Court will be operational from next May and complement existing Drug Courts at Parramatta and Toronto.

In addition, there will be a urine test facility, registry support and a collaborative workspace for the different agencies involved – the office of the Director of Public Prosecutions, Police, Legal Aid and Corrective Services.

Mr Smith said the Drug Court, led by Senior Judge Roger Dive, had turned many lives around.

“Many of the participants would be in jail, were it not for Judge Dive and his team’s extraordinary efforts to address the causes of their offending and drug abuse, such as psychological problems, family dysfunction and inadequate education.”

The Bureau of Crime Statistics and Research has found the Drug Court is more cost-effective than prison in reducing the rate of re-offending among offenders who had committed drug-related crime. Its 2008 study also found offenders who completed the program were 37 per cent less likely to be convicted of an offence than offenders who did not enter the Drug Court.

The positive outcomes at the Parramatta Drug Court since 2000 led to the opening of a second Drug Court at Toronto in March to service the Hunter region.

So what sentence is this Police Officer likely to receive?

The sentencing statistics for low range drink driving offenders would indicate that the likely penalty would be a fine of less than $1100 and a licence disqualification of between 3 and 6 months. However, 44% of offenders charged with low range PCA are not convicted (dealt with under section 10) and do not receive any other form of punishment. Normally people who are dealt with under section 10 are people of good character, who were unaware of the fact that they were over the limit and have a need for a drivers licence.

In this case the off duty police officer is likely to be a person of good character who has a great need for a licence so that he can continue to perform his job on full duties. In addition, a criminal conviction would not assist him in respect to future promotion within the Police Service. The officer was 0.006 over the legal limit. This represents a mouthful or two too much alcohol than they should of consumed. If the police officer was dealt with as a civilian and not as a serving member of the Police Service he would be likely to be given a section 10.

However, the courts generally treat Police harsher than other members of the public. This is normally to make an example of them so that other police are deterred from breaking the law and secondly and most importantly because they should know better. The officer is in a position of trust, and when that trust is broken the court needs to reflect that in their sentence.

Lionel Rattenbury
Criminal Lawyer Sydney
Armstrong Legal

The law in Victoria requires that a Police Officer hold a Bible in his or her hand if the Affidavit is being sworn. Evidence from a Police Officer revealed that many officers, in his experience, never follow the correct procedure.

This means that countless search warrants in Victoria that have been obtained based upon a Police Affidavit may be invalid.

This story has highlighted the importance of “keeping Police honest” when dealing with criminal law.

It is unfortunately disturbingly common to see Police Officers taking shortcuts, bending the rules, and otherwise not following proper procedure. This may make their job a bit easier or get things done a bit quicker, but the safe-guards that that have been put in place are put there for a reason.

A common example is the rules surrounding service of the Brief of Evidence in NSW. There are very clear and well defined rules in NSW about when Police need to serve a Brief upon an accused person and the manner in which they are required to do so.

There can be no doubt that it is inconvenient and time consuming for Police to put Briefs together, but it is an essential part of the criminal process.

If defendants are not given the opportunity to appraise themselves of the strength of the case against them, and if defence lawyers are then not given the opportunity to prepare for a hearing within a reasonable time frame, then the prosecution gains an unfair advantage in prosecuting the matter.

For this reason, what may be described by some as a loop-hole in the criminal law is in fact a very important part of the process. If Police are not held accountable to the rules that the law obliges them to follow, then there needs to be consequences flowing from that.

Hopefully these news reports will be a reminder to Police Officers across Australia that rules are there for a reason and that if the rules are not followed then serious consequences can flow for any prosecution.