COVID-19'S LEGACY FOR JUSTICE - What will be worth keeping? - QLS Proctor

JUNE 2020

COVID-19’S LEGACY
FOR JUSTICE
What will be worth keeping?

CRIMINAL LAW COVID-19 FIRST NATIONS
Special leave The digital mediator The ongoing shame
to a Pell of deaths in custody

LEAP is the best system for lawyers
 and staff to work from home

 180025 Penfold, Property/Financial Settlement

cial Summary Time & Fees Office Accounting Trust Funds Registers

 Share eSignature Message Call Send Send Callback Searching & VOI SettleIT
 Document Document Matter Request Services
 LawConnect Mobile Microsoft Teams InfoTrack Quick Links

 CORRESPONDENCE
 Search correspondence
 New feature - integration with Microsoft Teams
 TYPE
 Send a link to a document Share aITEM
 LEAP matter with STAFF
 Notify other MODIFIED
 staff to call
 in LEAP for colleagues to a colleague or multiple back a client or other
 Correspondence
 edit or review. staff members to discuss. parties in JS
 a matter. 9:36 AM
 James Stevenson

 Sally Penfold and Paul Penfold Property..
 JS 9:32 AM
 jharris@email.com

 Financial Statement
 leap.com.au/work-from-home
 JS Apr 2, 2020
 James Stevenson

14 20 47
 FEATURES LAW OUTSIDE THE LAW

14 Special leave to a Pell 40 Access to justice 57 Classifieds
 Pell v The Queen [2020] HCA 12 Prevention is better than cure
 60 Barefoot & professional
20 COVID-19’s legacy for justice 42 Back to basics Seven people you’ll meet in practice
 Back to the 9 to 5 Preparing an affidavit (part 3)
 61 Wine
 The digital mediator 44 Lawyers of Queensland Noble Nebbiolo shines through the nebbia
 Choosing our pandemic legacy In conversation with Angus Murray
 62 Crossword
 Returning to a new, improved ‘normal’ 46 Your law library
 in the Magistrates Court Improving your law library’s collections 63 Suburban cowboy
 Work-from-home protocols Learning in the Air tonight
 47 First Nations
 COVID makes documents electronic 64 Directory
 The ongoing shame of deaths in custody
 48 Succession law
 NEWS AND EDITORIAL COVID, capacity challenges, and costs

3 President’s report 50 Elder law
 Elder abuse and the legal framework
5 CEO’s report
 52 Family law
7 News Court rejects return order over DV risk
11 Career moves 54 High Court and
 Federal Court casenotes
12 On the interweb
38 Lexon Insurance

Vol. 40 No. # | ISSN 1321-8794

The 2019/2020 CPD year has been extended.
Ends 30 June.

We’ve made it easy
for you to gain all
your points
With new on-demand CPD content released weekly,
you can gain CPD points anytime, anywhere, and on
any device.

As part of QLS’ support package commitment,
members can access 10 CPD points for free. Topics
are relevant to your practice and designed to help you
during this unprecedented period.

Access May’s resources today.
• By George! What the cases say about wage theft
• Your business continuity plan for COVID-19 explored
• Elder law issues in a pandemic
• COVID-19: Witnessing and executing wills
 remotely FREE FOR MEMBERS

View all resources now 4.58
 qls.com.au/on-demand DELEGATE RATED
 2018-2019
 OC_P2006FP

PRESIDENT’S REPORT

Our pandemic
legacy
Some changes worth holding on to

It didn’t take any of us long to We have also seen procedural changes The willingness of all to engage in meaningful
 in Queensland watch houses and in consultation with the aim of progressing the
realise that practice in the midst corrective service centres, with the advent interests of justice and those in the justice
of a COVID-19 pandemic was of an email service and electronic funds system has been outstanding.
 transfer for inmates.
going to be quite different to In this month’s special COVID-19 feature,
 More recently, we have seen emergency Proctor explores the changes we’d like to
what we were used to. legislation that now permits different see retained – a coronavirus legacy for the
 conferencing arrangements for electronic future of our profession, as it were.
And having essentially settled into our new
 signing and witnessing using communications
routines, perhaps we should all now take a This month there are several more informative
 technology. The Justice Legislation
look around to identify what has changed articles, including a conversation with the
 (COVID-19 Emergency Response—Wills
for the better. Chief Magistrate on how the Magistrates
 and Enduring Documents) Regulation
 Court has adapted, a look at digital mediation
Several things that have created greater 2020 permits electronic signing and
 and the appropriate tools for practitioners,
access to justice come to mind immediately. virtual witnessing of wills, enduring powers of work-from-home protocols for firms and
The more effective use of technology in the attorney and advanced health directives. The individuals, and more.
courts – specifically phone or video links – for Society advocated for these measures to assist
virtual appearances suggests there would be practitioners in servicing their clients, given Our strategic plan
significant cost and efficiency benefits for all the challenges of the COVID-19 confinement,
parties if many administrative or procedural isolation and quarantine restrictions. QLS Council has updated our strategic
matters could continue to be conducted in Once again there are very strong arguments plan for 2017-21 in light of the COVID-19
this way post-COVID-19. This is of particular supporting the need for retention of some, pandemic. For example, one of the key
importance to regional, rural and remote if not all, of these initiatives post-COVID-19, amendments is modifying our purpose to
practitioners and clients. as it would offer an ongoing benefit for those include supporting our members and the
 in remote areas, for example, as well as profession to navigate through the
The courts’ use of alternative, electronic
 significant cost savings. challenges of COVID-19.
means for appearances on shorter directions
and interlocutory matters, and the lodging of Our QLS policy team and the volunteers The current strategic plan runs through
various forms and documents electronically on many of our QLS committees have been to 30 June 2021, so this revision will take
are further examples of cost saving and time extensively involved in the consultation us through the last quarter of this financial
efficiencies that improve access to justice required for the development of these and year and the final year of the QLS four-year
for all concerned. other innovative changes, and on behalf strategic plan.
There is also a promising trial program of the profession I thank them for their In other Council news, we would like to
allowing for electronic filing of a number extraordinary efforts over the last nine weeks. thank all those who submitted expressions
of probate-related documents. The profession and the community have of interest in the Council vacancy. It is
 benefitted from this contribution. anticipated these will be considered at this
Additionally, the positive social and safety
 With many services moving online, agencies month’s Council meeting and that Council will
benefits of using technology such as
 in the justice sphere have had to grow announce its new member in the near future.
videoconferencing for domestic violence
matters are immediately obvious. and refine their interactions, and we will
 be working to ensure that this heightened Luke Murphy
Besides avoiding direct contact, these operational cooperation between all agencies Queensland Law Society President
changes offer convenience, cost savings continues into the future. president@qls.com.au
associated with travel and related expenses, Twitter: @QLSpresident
time savings as a result of reducing waiting We would also like to see a continuation of
 the extraordinary cooperation and consultation LinkedIn: linkedin.com/in/luke-murphy-5751a012
times in courtrooms and other benefits,
some as simple as reducing the need that has characterised the work done by
to print documents. government, the courts, justice agencies
 and the profession during this pandemic.

 PROCTOR | June 2020 3

Queensland lawyers like
 McCullough Robertson
 are choosing PEXA

Tianna Utz, Angela Larson &
 Stephen Webb

 pexa.com.au/qld

CEO’S REPORT

What’s your
routine?
The crucial need to maintain your wellbeing

By now, many of us have well and home is to find the routine that works for I would like to take this opportunity to remind
 you, build a wellbeing plan into that routine all members of the fully confidential services
truly been operating in a work- and stick to it. that LawCare provides for them, their staff
from-home mode for the longest I’d like to stress the wellbeing plan because,
 and immediate families. These services are
 provided by the independent organisation,
period of our careers. at QLS, we believe that a solicitor’s health
 Converge International, through qualified
 and wellbeing is fundamental to the
 and highly experienced counsellors.
It’s been a big learning curve, but I have sustainability of their practice, and a core
observed many individuals and organisations element of their professional competence. They include Money Assist, which offers
who have handled the changes successfully. access to financial experts who provide
 Following on from this, actively protecting
 money management coaching to help with
Whilst I have been able to work from the and improving your health and wellbeing is
 financial concerns; Career Assist, to help
office much of the time, for me the two most not optional or a ‘nice to have’ (or maybe
 with career development planning, resume
important learnings about working from home something to do when you eventually find the
 and job-seeking assistance, interview skills
have been operating to a daily routine and time). It is crucial to ensure that you remain and vocational counselling; Employee Assist,
looking after my wellbeing. mentally, emotionally and physically able to for coaching, mentoring and counselling to
Here’s how I have been managing both. serve your clients to the best of your abilities. achieve success; and Family Assist, to help
 Unfortunately, looking after our most valuable proactively deal with a range of personal
• I have set up an organised and tidy
 resource – our physical and psychological and work-related issues.
 permanent work space – with privacy, light,
 a good chair and desk and some indoor health and wellbeing – tends to be the first Other services cover coaching and advice to
 plants. I am able to raise my laptop/iPhone thing to fall by the wayside when things get assist managers and supervisors dealing with
 to head height for Zoom/Skype calls – in stressful, challenging or difficult, as they a variety of difficult or complex people issues;
 other words, the space is as professional currently are. This can negatively impact on strategies, tools and coaching for those
 and comfortable as I can reasonably make it. our resilience, making us less able to deal dealing with difficult workplace and personal
 with problems in a constructive and proactive situations; and nutrition and lifestyle advice.
• I work to a daily routine – get dressed in
 way, less productive and less able to be there
 work clothes, plan the day’s log-in and for others who need us at home or at work. LawCare services are available by calling
 log-off times in advance, schedule daily 1800 177 743, or see the LawCare page
 substantial exercise (before breakfast is best QLS regularly publishes short wellbeing at qls.com.au (log-in required).
 for me), take small breaks (walk around the articles to provide you with new ideas,
 practical suggestions and useful strategies Finally, a reminder that more assistance is
 block, pop out and buy a takeaway coffee,
 to boost your wellbeing, grow your resilience available through three new QLS services
 chat to the neighbours, collect mail, etc.),
 and enjoy life. aimed specifically at issues related to the
 plan meals and meal times in advance and COVID-19 pandemic. I spoke in detail about
 eat healthily. Schedule a lunch break and You can find them in your weekly QLS these last month – the Employment Law
 plan an evening activity at the end of the Update email newsletter, on the front page Advice Service (ELAS), the General Manager
 work day – outside is my preference – a of the QLS website, and promoted via our Support Service (GMSS) and the Government
 short walk, some gardening, wash the car. social media channels. Make sure you follow Funding Assistance Service (GFAS), which
• Things I avoid when working from home us on LinkedIn, Facebook and Instagram to offers guidance and support for those
 include watching television, recreational get all updates and other resources, including navigating their way through COVID-19.
 reading, taking the laptop to the lounge or bi-weekly short recorded wellbeing talks to
 For more information or to ascertain your
 surfing online. I preserve all these activities help you deal with current challenges.
 eligibility for these three services, please see
 for outside of work hours, which helps me
 This month in Proctor, our extensive the QLS Ethics and Practice Centre 
 distinguish work and home life.
 COVID-19 feature section explains the actual page (or call 07 3842 5843).
Everyone will have a different approach protocols that should be in place for any
and different domestic responsibilities and staff or firms operating under work-from- Rolf Moses
obligations to coordinate with work. We also home arrangements. We also look at some Queensland Law Society CEO
have different needs and preferences for of the ramifications for both employers and
interacting, socialising, creating and physical employees as restrictions ease and many
movement. The key to working well from return to the workplace.

 PROCTOR | June 2020 5

Now, more than ever, we’re here for you. We want to help practices
 keep their doors open and help practitioners understand the impact
 of COVID-19 on their jobs.

 Support services
 for COVID-19 related
 practice issues
 Employment Law Advice Service—
 for individuals and practice managers
 General Manager Support Service—
 for practice managers
 Government Financial Assistance
 Service—for practice managers

 For more details on each service or
 to ascertain your eligibility, contact the
 QLS Ethics and Practice Centre now.

 Members call
 07 3842 5843
ES_P2006FP

NEWS

Queensland Law Society Inc.

 Providing an independent
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qls.com.au
Published by Queensland Law Society
ISSN 1321-8794 | RRP $14.30 (includes GST) solicitor’s certificate
President: Luke Murphy
Deputy President: Elizabeth Shearer
 Can I interview the client
Vice President: Kara Thomson
Immediate Past President: Bill Potts by videoconference? BY STAFFORD SHEPHERD
Ordinary member of Council: Michael Brennan,
Allison Caputo, Chloe Kopilovic, William (Bill) Munro,
Kirsty Mackie, Rebecca Pezzutti, Phil Ware.
Chief Executive Officer: Rolf Moses
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Editor: John Teerds
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 As a matter of caution, you should ensure
Christine Smyth, Anne Wallace. by the use of videoconferencing and it
Proctor is published monthly (except January) that you are able to undertake this interview
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No person should rely on the contents of this publication. Rather,
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wholly or partially, upon the whole or any part of the contents of third-party guarantor, surety mortgagor, or third-party guarantor, surety mortgagor, or
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Contributors to Proctor grant to the Society a royalty free, perpetual, freely made the statements which are referred
 The new (Justice Legislation (COVID-19
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 Emergency Response—Documents and
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QLS will acknowledge a contributor’s moral rights by attributing
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Small sums of money from the Copyright Agency Limited (CAL) indemnifier should be modified to reflect the You will not be in a position to remotely witness
are periodically payable to authors when works are copied by CAL
licensees (including government departments, tertiary institutions, circumstances of the interview. Practitioners the third-party guarantee documents. Personal
etc). As it is not financially viable for the Society to collect and should, however, remember that it is not presence is still required for such execution.
distribute these royalties to individual authors, contributors undertake
to become a member of CAL and receive any due payments directly possible to certify documents remotely. The
(see copyright.com.au) or they waive all claims to moneys payable certification with respect to the guarantor’s Stafford Shepherd is the Director of the Queensland
by CAL for works published in Society publications. It is a condition Law Society Ethics and Practice Centre.
of submission of an article that contributors agree to either of these
 certificate should also be modified to reflect
options. Contributors should read the Guidelines for Contributors
on the Society’s website: qls.com.au

 If you do not intend to archive this magazine, This month’s COVID-19 features, from page 20
 please place in an appropriate recycling bin.

 PROCTOR | June 2020 7

CLC funding
 commitment
 Courts launch family law welcomed
 property arbitration list Queensland Law Society has
 applauded the State Government’s
 significant funding commitment
 to provide access to justice for
 Queenslanders.
 The Family Court of Australia Chief Justice Alstergren said, “The
 Courts have long supported the use QLS President Luke Murphy last month
 and the Federal Circuit Court welcomed the five-year commitment to
 of alternative dispute resolution as a
 of Australia have established provide $119 million in funding for the
 quicker and more affordable option for
 a National Arbitration List. litigants to resolve their disputes, rather state’s community legal centre (CLC) sector.
 The list will be managed by dedicated than continuing to trial. “The milestone of guaranteeing five years
 national arbitration judges – Justice “The introduction of the Arbitration of funding allows CLCs to plan their
 Wilson in the Family Court, Judge List will ensure consistency and operation and work toward meeting the
 Harman in the Federal Circuit Court timeliness and the determination of such increasingly overwhelming demand for
 and Justice Strickland as the applications will be given considered their legal services,” Mr Murphy said.
 coordinating appeals judge. priority. While arbitration has traditionally “The funding announced today is a mixture
 and commonly been used in commercial of increased federal and significantly
 All matters referred to arbitration will increased Queensland Government
 litigation, our Courts are very keen to
 be placed in the National Arbitration support over the previous three-year
 support the wider use of arbitration in
 List. Any application for interim orders funding round ending in June this year.”
 family law for property matters.”
 sought to facilitate the arbitration by
 Mr Murphy said that, while the funding
 arbitrators or parties will be dealt with
 was very welcome, the demands for
 by the relevant national arbitration Queensland community legal centre
 judge electronically. services had never been higher since
 Applications for registration of arbitral the global outbreak of the coronavirus.
 awards issued by arbitrators will be dealt “But there is no doubt this additional funding
 with by the same national arbitration will go toward meeting that need, as will
 judge. Similarly, applications for review further support from the Commonwealth
 of an arbitral award will be conducted by Government as a part of the recovery
 the relevant national arbitration judge. package for the Australian economy,” he said.

8 PROCTOR | June 2020

NEWS

Appointment QLS applauds
of receiver
for Harris electronic signing laws
Sushames
Lawyers, Queensland Law Society has
Loganholme welcomed new State Government
 regulations to permit electronic
On 23 April 2020, the Executive signing and virtual witnessing of wills
Committee of the Council of and enduring powers of attorney in
the Queensland Law Society response to challenges caused by
Incorporated passed resolutions the global Coronavirus pandemic.
to appoint officers of the Society,
 QLS President Luke Murphy said solicitors
jointly and severally, as the
 had been facing serious challenges in
receiver for the law practice,
 assisting clients to make legally binding
Harris Sushames Pty Ltd t/a
 wills and get their affairs in order with
Harris Sushames Lawyers.
 quarantine and isolation requirements.
The role of the receiver is to
 “Consultation with the Queensland
arrange for the orderly disposition
 Government has been excellent and we
of client files and safe custody
 are pleased to see this measure being made
documents to clients and to
 as a result of crucial emergency legislation,”
organise the payment of trust
 Mr Murphy said. “The new law permits
money to clients or entitled
 different arrangements for electronic signing
beneficiaries. Enquiries should
 and witnessing using communications
be directed to Candace Gordon,
 technology of wills and enduring documents,
at the Society on 07 3842 5846.
 subject to certain protective requirements to overcome legal impediments
 to mitigate against unwanted outcomes. caused by the current law in assisting
 “QLS looks forward to working with Queenslanders with the public health
 the Government on other measures requirements of dealing with COVID-19.”

 PROCTOR | June 2020 9

Resilience of a Lyon
 “The resilience that PEXA
 has provided the firm is
 astronomical.”
 — Stacey Drane
 Conveyancing Paralegal for Principal Solicitor
 David Colwell at Colwell Lyons Lawyers

 The personal and professional unrest caused by COVID-19 Cybercrime costs Australian businesses $29 billion each
 has been tangible across the world. Like most businesses, year, with Queensland as one of the three most targeted
 Colwell Lyons Lawyers had to move quickly to protect its states1. Strong cyber security measures have never been
 employees while simultaneously maintaining its business more critical for law firms as security experts are warning
 continuity throughout the global crisis. of spikes in cyber-crime attempts during this time. To
 bolster its cyber security, Colwell Lyons Lawyers offers
 Stacey Drane, Conveyancing Paralegal for Principal Solicitor
 its clients PEXA Key as a secure channel to communicate
 David Colwell at Colwell Lyons Lawyers, stated that the
 trust and bank account details.
 firm’s adoption of electronic settlements has allowed it to
 be agile and flexible in its response to the current situation. “PEXA Key adds an extra layer of security and resilience
 to our service. On top of our verbal security checks,
 “The resilience that PEXA has provided the firm is
 clients who use PEXA Key confirm their bank account
 astronomical. We were instantly able to reassure our
 details again with the app, protecting their investment
 clients that their settlements could still proceed, and
 from potential cyber threats.”
 safely. We were also able to protect our staff by offering
 them the ability to work from home and minimise Stacey also mentions that her clients love PEXA Key for
 their exposure to close person-to-person interactions. the added, novel experience of tracking their settlement in
 Something that would have been impossible without the palm of their hands.
 digital transactions”, Stacey shared.
 “Our clients have loved using PEXA Key, especially our
 Since the onset of COVID-19 restrictions, an increasing investor clients. They’ve never been able to follow the
 number of Queensland firms have embraced electronic conveyancing process before. It’s removed the anticipation
 settlements, with an excess of 770 firms now registered to associated with settlement and instead added excitement
 transact online. to the journey. It makes sense. We track everything now,
 our uber, our food delivery, our parcels, why not our
 “Three quarters of our files are electronic now – it’s
 property settlement?”
 fantastic. However, we would prefer if it was 100%. For
 the quarter that are still paper transactions, our law clerks
 are at risk attending settlement and still racing around to
 1 Cyber Security Statistics in Australia 2020: Beyond the Figures of Cyber
 bank branches with cheques. Online settlements are much Crime, www.greenlight-itc.com/cyber-crime-security-statistics-australia/,
 safer, and easier!” accessed 27 April 2020

If you’d like to speak with PEXA about transacting online,
please contact Rukshana.Sashankan@pexa.com.au.

CAREER MOVES

 Brodie Hatswell

 Sarah Ford

 Claire McGee

 Rachel Tierney

 Krystal Bellamy
 Duncan Hutchings

 Catherine King

 Danielle Natoli

 Kara Thomson
Career moves
Broadbeach Law Group Claire joined the firm in 2015 and is a criminal Hughes & Lewis Legal
 and professional misconduct lawyer. In the
Broadbeach Law Group has announced the occupational discipline arena she focuses on Hughes & Lewis Legal, which was formed
promotion of Brodie Hatswell to associate. matters involving health practitioners. She has in 2018, has announced the addition of
 a keen interest in workplace investigations, four senior solicitors to its team. Duncan
Brodie is a commercial litigator with
 following a previous role as an adjudicator. Hutchings, Catherine King, Danielle
experience in estates, corporate disputes,
 Natoli and Kara Thomson have joined
contract and business disputes, insolvency Rachel joined Gilshenan & Luton in 2017 and
 the practice as legal consultants. The
and building/construction litigation. He is represents clients in a wide range of criminal
 insurance law practice focuses on workers’
an experienced court advocate but has the law offences. Rachel also has experience
 compensation, CTP claims, public liability
strategic skills to guide clients to a commercial in domestic violence, child protection and
 and medical negligence.
result outside of court where possible. disciplinary matters, QCAT hearings, coronial
 inquests and regulatory prosecutions.
Gilshenan & Luton
 HopgoodGanim Lawyers
Gilshenan & Luton has announced the
promotion of Sarah Ford to the position of HopgoodGanim Lawyers has welcomed
senior associate, and Claire McGee and Krystal Bellamy as a senior associate in
Rachel Tierney to the positions of associate. its private enterprise team in the Brisbane
Sarah, who joined the firm in 2013, represents office. Krystal has 11 years of legal
clients in criminal defence, domestic violence, experience, eight of those focusing on
and occupational discipline. She also estate and trust administration and litigation,
represents government agencies in statutory acting for executors, administrators,
prosecutions. Sarah is a member of the trustees and beneficiaries.
Queensland Law Society’s Occupational
Discipline Law Committee and the Women
Lawyers’ Association of Queensland
committee, and she is also the chair of the
WLAQ Criminal Lawyers Sub-Committee.

 Proctor career moves: For inclusion in Proctor career
 moves, please email details and a high quality photo
 to proctor@qls.com.au. This is a complimentary
 service for all firms, but submissions are edited at the
 editor’s discretion.

 PROCTOR | June 2020 11

ON THE INTERWEB
Join the conversation. Follow and tag #qlsproctor to feature in Proctor. #qlsproctor | proctor@qls.com.au

 FACEBOOK LINKEDIN

12 PROCTOR | June 2020

SOCIAL MEDIA

 LINKEDIN TWITTER

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 PROCTOR | June 2020 13

SPECIAL
LEAVE
TO A PELL
Pell v The Queen [2020] HCA 12

Cardinal George Pell leaves Barwon Prison on 7 April 2020
in Geelong, Australia. (Photo by Quinn Rooney/Getty Images)

A unanimous High Court in Pell v scarce, allocating disproportionate resources
 to ensure justice in one case takes away
 The Queen (Pell) overturned the resources for the adjudication of all other
 decision of the Victorian Court of cases. This delays and reduces the quality
 of justice across the system.
 Appeal to uphold the verdict of a
 So, even in a society in which justice was
 jury that Cardinal George Pell had all that mattered, one could not escape that
 committed five child sex offences. sacrifices must be made in achieving individual
 BY CHRISTOPHER STACKPOOLE justice in each case to ensure a fair distribution
 That was because there was “a significant of justice. That means the State must allocate
 possibility that an innocent person has only those resources proportionate to making
 been convicted because the evidence did a decision well-founded in fact and law in the
 not establish guilt to the requisite standard circumstances of each case.
 of proof”.1 This balance has been struck in Australia
 Though the High Court held that the through providing an accused with an
 complaint’s evidence contained no entitlement to appeal from the decision of a
 discrepancies or inadequacies, and did not trial judge or jury to the court of appeal in each
 require corroboration, evidence from other state or territory. That is because there is a
 witnesses indicated that Cardinal Pell would diminishing marginal return on each appeal. In
 not have had a reasonable opportunity to most cases the judge and jury will arrive at the
 have committed the offences. That means right decision. If they get it wrong, the Court of
 that a reasonable jury must have entertained Appeal in most cases will get it right.
 a reasonable doubt as to Cardinal Pell’s guilt. It is possible that we could provide further
 Commentators have criticised the decision entitlements to appeal to ever-higher courts.
 on the usual grounds – that it failed to This might improve the probability of arriving
 give sufficient weight to the complainant’s at a correct decision by an additional
 testimony, or it did not respect the function of marginal increment with each appeal. But if
 juries in our adversarial system of justice, and our resources are scarce, and we allocate
 that it is difficult to understand how the High no more to our justice system, additional
 Court could find that a jury must have had a appellate courts will take resources from more
 reasonable doubt when the Court of Appeal efficient lower courts, which delays justice
 agreed with the jury. and increases the likelihood that errors will be
 made in under-resourced lower courts, self-
 Some grounds are fallacious.2 Others, defeatingly increasing the need for appeals.
 meritorious. I will leave these debates to
 However, even if we had unlimited resources
 others. I enquire into a more urgent matter
 for our justice system, the State could never
 on which there was no reasoned decision –
 be certain, no matter the number of appeals,
 whether special leave to appeal should have
 that a correct decision had been reached.
 been granted at all.
 And, the mere fact that an appellate court is
 The High Court has jurisdiction to entertain constituted by more experienced judges does
 appeals from state courts. That jurisdiction is not mean there is no risk that it will reverse a
 regulated by Parliament.3 The main constraint correct decision, especially when the ground
 is that the High Court must give special leave of appeal relates to questions of fact or certain
 to appeal before it can entertain an appeal. areas of law (that is, evidence) with which
 And in deciding whether to grant special lower courts will often have more experience.
 leave, it must have regard to whether: For this reason, in Smith Kline, the High
 a. the application involves a question of law Court held that: “[T]he Court, in exercising its
 that is of public importance or on which jurisdiction to grant or refuse special leave to
 there has been disagreement between appeal, gives greater emphasis to its public
 and within state courts; and role in the evolution of the law than to the
 b. the interests of the administration of private rights or interests of the parties to the
 justice require consideration by the High litigation.”5 That means that when the High
 Court of the appealed decision.4 Court must decide whether it should grant
 special leave, it is not sufficient that an injustice
 The reason for these limits on the appellate has been done to the appellant. There must
 jurisdiction of the High Court is that we live also be some public interest to justify granting
 within a world of scarce resources in which special leave. That will include when the case
 individual justice is not an absolute value. presents an opportunity for the High Court
 It competes with other values, such as to develop or clarify an important principle,
 public education, healthcare, environmental or when it would be in the interests of the
 protection, law enforcement, and all other broader administration of justice.6
 things that contribute to our lives and are
 HM Prison Barwon, Geelong, where Cardinal The High Court in Pell did not articulate the
 within the domain of the State.
 George Pell was held (Photo by Quinn reason it thought special leave to appeal
 Rooney/Getty Images) However, even if individual justice was prior should have been granted. But it allowed the
 to all other values, when public resources are appeal on two grounds – first, that the Court

16 PROCTOR | June 2020

CRIMINAL LAW

of Appeal examined each piece of evidence held that evidence should be assessed in a Cardinal Pell arrives at Melbourne County Court
 on 27 February 2019. (Photo by Michael Dodge/
to determine whether it was inconsistent with piecemeal way, this was not a reason to grant
 Getty Images)
A’s [the complainant’s] account, and whether special leave.
it remained realistically possible it was true.7
 Second, the Court of Appeal erred in holding
This is an error of principle because it that it was reasonably open to the jury to
concerns the manner in which the Court of conclude that it had no reasonable doubt
Appeal reasoned in drawing inferences from that Cardinal Pell had committed the alleged
the evidence about the truth of A’s account. offences. The Court of Appeal had held
However, there is reason to doubt that the that, though there was limited opportunity
High Court was right in allowing this ground for Cardinal Pell to have abused A, there
of appeal. The Court of Appeal had held was a narrow interval of time in which those
that “nothing in the…evidence…leads us to offences could have occurred, and that
the conclusion that the jury must have had because the evidence of A was compelling,
a doubt…in isolation or the context of the it was open to the jury to be satisfied that
other evidence. Taking the evidence as a Cardinal Pell was guilty.
whole, it was open to the jury to be satisfied
 The High Court held that though it was
of Cardinal Pell’s guilt beyond reasonable
 possible Cardinal Pell had committed the
doubt.” (emphasis added)8
 offences, the evidence as to his positioning
If this is taken seriously, it is hard to see how after the service, being accompanied by his
it could be said that the Court of Appeal Master of Ceremonies, and the foot traffic
reasoned in a piecemeal manner. But even if near the sacristy, meant no reasonable jury
the High Court’s criticism was justified, there could have had no reasonable doubt that he
would still need to be some public interest was guilty. This is not a matter of principle.
to justify granting special leave to appeal. Its It is a matter of what inferences should have
decision did not develop or clarify the law. It been drawn by the jury on the available
just restated existing law.9 evidence. This alone cannot be a reason to
That might have been in the public interest if grant special leave to appeal.
there was widespread belief, or the Court of So, if there was no matter of important
Appeal had stated, that evidence should be principle, was granting special leave to
assessed on a piecemeal basis. But there is appeal in the interests of the administration
no such belief, and the Court of Appeal did of justice? It might be thought that preventing
not make that statement. Given that no court, the imprisonment of an innocent person is in
including the Victorian Court of Appeal, has the interests of the administration of justice.

 PROCTOR | June 2020 17

If the mere fact there was a reasonable argument that Cardinal Pell
should not have been convicted was sufficient to grant special leave,
it means that in all criminal cases in which that low threshold could
be met the High Court should grant special leave to appeal.

That would be true if it was known Cardinal Court entertaining the appeal? No. That which not, mean that public figures should receive
Pell was innocent. is interesting to the public is not always in the a different quality of justice.
But that was not the High Court’s decision. public interest. As held in DPP v Smith: Perhaps Cardinal Pell is innocent. If so, that
It held that, on the evidence, the jury must “The public interest is a term embracing the High Court granted special leave to
have entertained some doubt as to whether matters, among others, of standards of human appeal is a good thing. An innocent man was
Cardinal Pell had committed the alleged conduct and the functioning of government and saved from wrongful conviction. That does
crimes. Perhaps, then, it should be sufficient government instrumentalities tacitly accepted not mean it was the right thing to do. Hard
to grant special leave to appeal that Cardinal and acknowledged to be for the good order of cases really do make bad law.
Pell should not have been convicted. That society and the well being of its members. The
cannot be right. As the High Court held in interest of the public is therefore distinct from
Warner v The Queen: the interest of an individual or individuals.”11
“This Court is not a court of criminal Cardinal Pell’s trial did not relate to standards
appeal. Applications for special leave in of human conduct or the functioning of
criminal cases where the ground relied on government. It had no bearing on the good
is in substance that the verdict is unsafe ordering of society or the general well-being
or unsatisfactory are not likely to succeed. of its members. That a matter attracts media
This Court cannot and should not wish to attention or relates to an accused occupying
undertake a general supervisory role of courts a public office is never a sufficient reason
of criminal appeal on questions of fact.”10 to grant special leave to appeal. If it were
 otherwise, we would have two tiers of justice:
If the mere fact there was a reasonable
 one for those appellants who occupy a public
argument that Cardinal Pell should not have
 office, another for those of lesser stations.
been convicted was sufficient to grant special
 That is inconsistent with the rule of law as Christopher Stackpoole is a Clarendon Scholar
leave, it means that in all criminal cases in reading for a Master of Philosophy in Law at the
 it makes access to justice before superior
which that low threshold could be met the High University of Oxford. The views that he expresses are
 courts depend on irrelevant antecedents.
Court should grant special leave to appeal. his own.
 Compare Liberato.12 The South Australian
That is not the law. It intrudes on the general
 Court of Appeal dismissed an appeal of four
supervisory jurisdiction of state and territory Notes
 men convicted of rape, even though the
courts of criminal appeal. And it limits the 1
 Pell v The Queen [2020] HCA 12, [9].
 judge misdirected the jury, because there
resources available for the High Court to 2
 Ben Matthews and Mark Thomas write that Cardinal
 was no miscarriage of justice. The appellants Pell succeeded in his appeal to the High Court of
discharge its public function in cases with a
 appealed on the ground that the Court of Australia on a ‘legal technicality’: Ben Matthews and
legitimate public interest.
 Appeal failed to take a view of the evidence Mark Thomas, ‘How George Pell Won in the High
It might then be thought that it was so clear Court on a Legal Technicality’ (The Conversation,
 as a whole and the effect of the misdirection
 7 April 2020) theconversation.com/how-george-pell-
that Cardinal Pell should not have been on the jury. The High Court refused special won-in-the-high-court-on-a-legal-technicality-133156,
convicted that, if the conviction were allowed leave to appeal because it raised no matter accessed 13 April 2019. This claim is disappointing
to stand, the decision would undermine public of general importance which, if wrongly and undermines public confidence in our legal
 institutions without justification. To overturn a decision
confidence in the courts. That might be true decided, would seriously interfere with the on the ground that a reasonable jury must have
in rare cases. However, there is little evidence administration of justice. There is no difference entertained doubt as to the guilt of Cardinal Pell is not
the Court of Appeal’s decision to uphold the in principle between Liberato and Pell. a legal technicality.
jury’s verdict had seriously undermined public 3
 Constitution, s73(ii).
 No justice system is perfect. People are 4
 Judiciary Act 1903 (Cth), s35A.
confidence in the Australian judiciary.
 wrongly convicted. Tragically, some are 5
 Smith Kline & French Laboratories (Aust) Ltd v
Perhaps this is all too quick. After all, the High innocent. Others are not. Usually, as with Commonwealth (1991) 173 CLR 194, 217-281.
Court’s discretion to grant special leave is broad Cardinal Pell, we don’t know. But, with scarce 6
 Morris v The Queen (1987) 163 CLR 454, 475.
and not confined to those matters which are resources, we must do the best we can with 7
 Pell v The Queen [2020] HCA 12, [41].
specified in s35A Judiciary Act 1903. Stepping what we have. Rights to appeal must end
 8
 Pell v The Queen [2019] VSCA 186, [351]. See also:
 [93], [241] (Ferguson CJ and Maxwell P).
back, this was a high-profile trial in which somewhere. Where they end must depend 9
 SKA The Queen (2011) 243 CLR 400, 409; cited with
Australia’s highest-ranking religious official had on principle. In Australia, as in many other approval in Pell v The Queen [2019] VSCA 186, [93].
been charged with serious child sex offences common law jurisdictions, such as England, 10
 Warner v The Queen [1995] HCATrans 90 (30 March
involving the abuse of a position of power. Is rights to appeal to the highest court are 1995).
not his conviction of such public importance conditioned on there being a public interest in 11
 DPP v Smith [1991] 1 VR 63.
that there was a public interest in the High the hearing the appeal. That cannot, and does
 12
 Liberato v R [1985] HCA 66 (17 October 1985).

18 PROCTOR | June 2020

CRIMINAL LAW

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COVID-19

COVID-19’s
legacy
for justice
Six months ago no one would have foreseen
this year’s drastic changes to our professional
lives. And just a couple of months back, few
would have thought that we would now be
cautiously optimistic that life was returning
to ‘normal’. But what is the new ‘normal’,
and is COVID-19 leaving a legacy that will
improve the legal landscape for good? This
month’s special feature ventures into areas
where COVID-19 is likely to leave a lasting
impression, for better.
 PROCTOR | June 2020 21

12

 9 3

 6

Back to the 9 to 5
 “Tumble outta bed and
 I stumble to the kitchen
 Pour myself a cup of ambition
Can you make the transition out Yawn and stretch and try
 to come to life
from under the doona? Jump in the shower and
BY JOELENE NEL the blood starts pumpin’
 Out on the street the
 traffic starts jumpin’
 With folks like me on the
 job from 9 to 5.”1
 Life has been anything but ‘9 to 5’
 during coronavirus.
 Many of us may only tumble out of bed much
 later than we usually do, stay in our PJs and

22 PROCTOR | June 2020

COVID-19

shower after midday, and there has been and see if your work arrangements can 4. QLS is now offering a General Manager
no real traffic to speak of. accommodate those ongoing changes (these Support Service (GMSS) with up to two
 may be caring for children or elderly relatives, hours of free advice to help members
But as we transition out of the ‘lockdown life’
 different parenting arrangements). Be mindful with general practice management issues
of COVID-19, will our work life go back to
 that even the current arrangements may be arising from the impact of COVID-19.
the same humdrum of a Monday-to-Friday
 transient in nature, so you will need to have For example, how to pivot the practice,
routine and, if it does, what will it look like
 ongoing discussions with your employer manage your budget or any other
and how will we cope?
 about this. commitments, including loss of cash flow
At the time of writing this article, and restructuring teams/personnel.
 For employers: Communication with staff will
Queenslanders have just received the news 5. QLS has established a Government
 be more important than ever, and you should
that within the week we will be able to travel Financial Assistance Service (GFAS),
 try to understand how your staff might have
up to 50km from our home, picnic with family providing members with up to three
 been affected by COVID-19. Different areas
(never before has one been so excited about hours of free advice, designed to help
 of firms (and areas of legal practice) may be
a family picnic!) and shop for clothes and members in accessing government
 affected differently. It can’t be a one-size-fits-
shoes (there is an argument that shopping for support due to COVID-19, by guiding
 all approach, nor can it be viewed that there
shoes is an ‘essential outing’). Below I share them through the different (State
 will only be a finite number of changes; this
some ideas around what work life may look Government and Federal Government)
 may be an organic and evolving situation
like, as we continue to live with COVID-19, support offerings, help members
 for some time, and you should put regular
and how to navigate that. understand what is available to them for
 reviews and updates in place to monitor this.
 their particular situation, and finally guide
Simply the best The office dynamics will be different when we members on how to access assistance
 first return, with ‘work-from-home life’ having and lodge any necessary applications.
I suggest we take the best parts of the work provided many with autonomy that they have
life that was thrust upon us during COVID-19 6. QLS has expanded the LawCare initiative,
 never had before. Some may find the return
and identify what lessons we learned and try to include amongst its services, Money
 to the office much needed and welcomed;
continuing those practices. Assist, where members are suffering as
 others may find it harder to get back into
 a result of financial stressors.
For employees: If working from home meant the groove of life in the office.
that you could have breakfast with your For up-to-date information, please visit
 Everyone will have unique stresses and
children and spend a bit more time with them QLS online:
 responsibilities arising from COVID-19. No
in the morning, or get home early to enjoy government announcement will magically • qls.com.au/For_the_profession/
a walk before it gets dark, then speak to alleviate the mindful process that should COVID_19_Resources 
your employers to see if a more flexible work happen in moving into our anything but • qls.com.au/Knowledge_centre/Ethics 
arrangement can continue. normal world, that life will now offer. We
 need to figure out, together, what life can Whatever hours you may be working, and
For employers: If you had staff who were wherever you may be working from either
not very tech savvy and the sudden change look like in community, in work, and at
 home – this will be a changing landscape. now or in the future, there is no doubt
that COVID-19 brought with it meant they that we can all harness lessons, skills and
had to quickly get up to speed on their IT experiences which we have learned from our
skills and use of technology, then see if you
 Lean on QLS
 work life during the COVID-19 pandemic and
can encourage and support those staff in QLS has been pivotal in keeping the legal carry those forward with us.
continuing to learn those skills. It is a great community up to date with changes,
chance to identify new (and better) ways of As the legal profession, we still all have a
 supporting us with our challenges, and desire to practise good law. If we continue to
running the office and do away with systems assisting and encouraging us to reach
and procedures that may now be redundant. be kind to ourselves and others as we tread
 out during this time. That offer of support lightly on the road out of this pandemic, we
Everyone should also reflect on what practices and guidance continues to be provided in can feel united as a community. Like Dolly
were implemented during the pandemic to several ways: said, our working life is all about “folks like
keep staff connected and supported, and 1. QLS has offered a most generous support me on the job from nine to five”.
see how those can be harnessed to ensure package to members, consisting of
team spirit and firm culture remain stronger membership, practising certificate and
than ever as we embark on our world as we indemnity insurance premium subsidies.
begin to emerge from ‘under the doona’ of the
 2. QLS has not only extended the CPD
COVID-19 pandemic.
 year to 30 June 2020 to give solicitors
 extra time to complete their required
Changes
 units, but it is producing free CPD on-
The gravity and enormity of what we have demand content.
(and will continue) to face arising from the 3. QLS is offering members, via the Ethics
pandemic has been a stark reminder that ‘the and Practice Centre, free employment Joelene Nel practises as a family lawyer and mediator,
only constant is change’. No one can predict law advice of up to two hours from and is Associate Director at McLaughlins Lawyers on
what changes the coming weeks and months experts. This is designed to help the Gold Coast. Joelene is an active member of the
may bring, and we all need to be prepared members with employment law issues Gold Coast District Law Association and a member
 arising from the impact of COVID-19 of the Queensland Law Society Wellbeing Working
for more change. Group. Inquiries about the Wellbeing Working Group
 and support small practices which need can be directed to r.niebler@qls.com.au.
For employees: You are not alone in feeling
 advice on how they can best manage
vulnerable about what the work changes
 their staff during the pandemic.
may be and how you will cope with them. Note
Speak with your employer about what your 1
 The title song of the film 9 to 5, written and sung by
home life may look since COVID-19 arrived Dolly Parton.

 PROCTOR | June 2020 23