Australian Capital Territory Bar Association Newsletter
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President's Message

The Annual General Meeting of the Bar Association was held on 15 September 2016. I readily accept that those meetings are never going to be exciting, nor ever the high point of our social calendar. This year's meeting was both affirming and disappointing. At they meeting the election of our new Council was declared. Congratulations to all our council members and executive  on their election - Rebecca Curran, Richard Arthur, Peter Woulfe, Philip Walker SC, Andrew Berger, James Lawton and Alicia Irving. The group is an enthusiastic one and I am hopeful that much will be achieved by Council in the next year. Attendance at the meeting was on the low side. The attendance points to an important challenge that the incoming Council faces, and that is to encourage a greater degree of participation in the affairs of the Bar by a greater number of barristers. The Bar Association seeks to be relevant to its members and in the next few months both informally through personal discussions and through a questionnaire process, I hope to develop a greater understanding of what our members want from what is  your professional organisation. I will feed back to you what I am hearing. ​
At the first meeting of our new Council a new committee structure was established.


Family Law Committee - Rebecca Curran
Civil Law Committee - Andrew Berger
Rule of Law Committee - Philip Walker SC
Criminal Law Committee - James Lawton
Events Committee - John Masters
CPD Committee - Alicia Irving

The committees that have been set up to give some structure around our endeavors in relevant areas. It  also constitutes an attempt to involve a greater number of people in the affairs of the Bar. I encourage everyone to volunteer if not as a full time member then as someone who can give the Association a hand in respect of particular projects. I encourage our members to get in contact with the committee chairs and discuss how you can contribute.

On 29 September 2016 the Bar held a cocktail event to farewell Svetlana Todoroski. Svet acted as our Chief Executive Officer for many years. Svet was tireless in her work in support of the work of the Bar Association and Bar Council. She was a loyal and hard working supporter of every President and Council she has worked with.  The numbers at the function were a testimony to the high regard in which Svet is held not only by those at the Bar but also by those in the wider legal community. Thank you Svet for the work you have done and thanks too to your family for the contributions that they have made to the Bar's cause.  Svet has joined a local firm and will be regularly seen at Court. On behalf of the Bar I wish her every success.
Joanne Dean-Ritchie, our new Chief Executive Officer, introduced herself to many at the Bench and Bar Dinner.  If you haven't had the chance to say 'hello', drop into the Bar Association's office on the First Floor of the AMP Building.
The ACT election has been run and the voters have spoken.  I hope to meet with the incoming Attorney General to raise some issues that are important to the Bar. Patrick O'Sullivan QC, President of the Australian Bar Association, has signalled that the levels of  indigenous incarceration in Australia will be a priority of the Bar nationally. The Federal Government has announced a referral to the Australian Law Reform Commission  to inquire into what Patrick has rightly described as the 'catastrophic levels of indigenous incarceration in Australia'. The outcomes in the ACT in that context are appalling. Whilst the referral is an important step, it is time for immediate legislative steps to be taken to decrease the number of indigenous offenders who are sent to prison in the ACT.  It is also time to provide an immediate and substantial increase in the resources that are available in the criminal justice system to reduce the rates of re-offending. I will be asking the Government to more generally address the question of sentencing law in the ACT. The number of prisoners is forever increasing when crime rates are going down. It is difficult to understand why this should be so and some attention needs to be paid as to what can be done to turn this trend around.  Alternative sentencing options that actually provide an option to full time imprisonment must be considered and justice re-investment pursued in more than a token way.

I welcome the announcement by Chief Minister Barr of Canberra's new Attorney-General, Gordon Ramsay.  Mr Ramsay is a lawyer with a strong commitment to social justice. The Bar welcomes his appointment and looks forward to working with him on the issues that concern the legal profession.  Sentencing reform, incarceration rates of indigenous offenders, the development of a drug court and the continued protection of compensation rights of people injured in motor vehicle accidents in the ACT are some of the issues the Bar seeks to agitate with the Attorney-General as soon as possible.
The Bar also supports the introduction of an ICAC like body and is happy to work with the Government in developing an appropriate legislative model for such an important body. The Tasmanian experience clearly indicates how important it is to get the legislation right.  The Bar has congratulated Mr Ramsay on his appointment.

Ken Archer
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Notes from the Editor

Independent National Security Legislation Monitor (INSLM)

The Law Council has long been of the view that, because of the wide-ranging and exceptional character of Australia’s anti-terrorism measures, there should be regular and independent reviews of Australia’s national security laws.
Past reviews have been sporadic and incomplete, often leaving out important and controversial laws.
On 18 March 2010, the Independent National Security Legislation Monitor Act 2010 was passed by Parliament. This Act established the position of the Independent National Security Legislation Monitor to review and report on the operation, effectiveness and implications of Australia’s counter terrorism and national security legislation on an ongoing basis. The Monitor is also responsible for considering if counter-terrorism and national security laws remain necessary and are proportionate to any threat of terrorism or to national security. The Act responded to a recommendation made by the Parliamentary Joint Committee on Intelligence and Security, the Hon. John Clarke QC’s Inquiry in the Case of Dr Mohamed Haneef and the Security Legislation Review Committee (Sheeler Committee) of 2006.

On 21 April 2011, the Hon. Wayne Swan MP announced that Mr Bret Walker SC had been appointed to the Monitor position. The Law Council welcomed this appointment.
In August 2016, Dr Natasha Molt and Moses SC on behalf of the Law Council of Australia offered before Walker SC in his capacity as INSLM to make submissions on proposed amendments to s34ZS of the ASIO Act which is the section relating to the secrecy offence re ASIO’s questioning warrants. ASIO is proposing streamlining of the warrant authorisation process to enable warrants to be issued more quickly by removing the requirement for:
  • An Issuing Authority (federal magistrate or judge) to authorise the issue of the warrant and instead provide the Attorney-General with the power to authorise the warrant; and
  • The questioning under the powers to occur before a ‘prescribed authority’ (which is basically a former or serving Judge of a superior court (i.e. Supreme Court or District Court for at least five years).
What is occurring here demonstrates the current tension that exists in Australia today which has the proposals by ASIO and security forces generally seeking more and less restricted power and society’s desire to keep and preserve as much democratic freedom as possible. The Law Council is playing an important vote in this balancing process.
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Justice Cliff Hoeben’s
Timely Reminder

In the case of Legal Services Commissioner v Bosscher (2016) QCAT said:
"It is trite to observe that Courts rely implicitly on the expertise and candour of those who appear before them. Without the candour and assistance of the legal profession, no proceedings in any Court could proceed efficiently. Matters before the Courts often proceed by way of submissions from the bar table. The Bench must be able to have trust and confidence in those professionals who appear before them. Courts rely upon the legal professionals who appear before them to have vetted material and to only tender that which is capable of being relied upon".
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Sio v The Queen HCA320

24 August 2016

The High Court (French CJ Bell Gageler Keane and Gordon JJ) handed down a judgment concerning hearsay evidence and inconsistent verdicts that will be referred to in appeal courts all over Australia.  Sio drove F to a brothel.  F entered the brothel alone armed with a knife intending to commit robbery.  F stabbed G, a brothel worker, who died. F removed G’s pencil case which contained cash and left the brothel running past Sio’s car.  Sio collected F and accelerated away from the scene.  Sio was charged with the murder of G and also armed robbery with wounding.  Sio was acquitted of murder but convicted of armed robbery with wounding.  The NSWCCA dismissed Sio's appeal who then sought special leave which was referred to the Full Court of the High Court. 

The issue of inconsistent verdicts and F’s representation in police statements, that Sio gave him (F) the knife, arose for determination.  At the trial F refused to answer any questions and the statements were tendered over objection that the statements were hearsay relying on s 65 of the Evidence Act, which states that the hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation.  If the representation was against the interests of the person who made it at the time, it was made and was made in circumstances that make it likely that the representation is reliable.
In relation to the unreasonable verdict issue the Court referred to Gilbert’s case wherein Gleeson CJ and Gummow J said:
“The system of criminal justice, as administered by appellate courts, requires the assumption that as a general rule, juries understand and follow the directions they are given by trial judge”.
The Court referred to the serious consequences of the successful invocation of s65 (2)(d) which emphasised the need for compliance with the conditions of admissibility prescribed in the section which has the associated benefit of being conducive to the preservation of clarity, good order and fairness in the conduct of criminal trials.
Wigmore’s comments about the circumstances of the hearsay utterance being made such that a sincere and accurate statement would naturally be uttered and no plan of falsification be formed, i.e. in circumstance that tend to negative motive and opportunity of the declarant to lie.  Evidence by an accomplice against a co-offender has long been recognised as less than inherently reliable and thus the Court held it was in these circumstances not open to the trial judge to be satisfied positively of the likely reliability of F’s assertion that Sio gave him the knife and ruled that the evidence should not have been admitted.
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Chief Justice Warren
on the Commercial Bar


Chief Justice Warren recently gave a paper at the London 2016 International Commercial Law Conference. The Chief Justice pointed out that in Victoria there is a specialists Costs Court, judge and registrar together with recent legislation which imposes an obligation on practitioners to ensure costs are reasonable and proportionate before moving onto her important comments on the contribution made by the Commercial Bar in contradistinction to the Criminal and Common Law Bars. The Chief Justice boldly stated that “we are able to live and function in an orderly society because of the work commercial barristers do.  Unlike, she says, that in Russia where the lawyer Sergei Magnitsky found that after he complained about corruption in Russian companies he was arrested and detained for a year; or in the Philippines wherein the new President Duterte has directed the citizens to take the law into their own hands and kill wrongdoers themselves. 

The Commercial Bar in Australia plays an important part in the governing of commercial behaviour because the corporate world seeks advice from the Commercial Bar as to the limits of what may be done which can then be adjudicated on by the courts.  ASIC and APRA also play an important role in maintaining conduct and corporate behaviour". The Chief Justice referred to the Australian Wheat Board case as an example of ASIC’s involvement in fashioning corporate behaviour and to Heydon J’s comments in AON v ANU about “commercial life”. The Chief Justice observed that commercial litigation and specifically mega litigation can be of vital value in delivering justice for the community.
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Farewell to Svetlana Todoroski

Svetlana has been the longest serving Chief Executive Officer of the ACT Bar Association, holding that position for over 14 years from February 2002 until August 2016 – working with nine presidents and the editor of the Bar Bulletin.

Svetlana was intimately involved when the ACT Bar Association went from a largely voluntary association to a statutory regulatory body in the ACT. She was also involved in introducing BarCare for members, a confidential counselling service, as well as developing the Continuing Professional Development Program in the ACT. 

Svetlana has been a champion in promoting women at the Bar and was instrumental in gaining sponsorship to establish scholarship incentives for women and Readers practising at the private referral Bar. She was also regularly involved at multi-level discussions with various stakeholders, including Government entities.  Svetlana graduated from the University of Canberra in 2015 with a master’s degree in Juris Doctor and after completing her graduate diploma in Legal Practice at the ANU she was admitted as a legal practitioner of the Supreme Court of the ACT on 11 December 2015.  Svetlana’s resignation as the CEO resulted from her accepting a position as a solicitor in a local firm.  Svetlana has of course been involved in the production and distribution of the Bar Bulletin. She has organised the printing, layout and photographs, as well as obtaining advertising support.  Svetlana has been involved in securing many of the contributions that appeared in the Bulletin.  She has reminded, cajoled and nagged the regular contributors to have this contribution ready for the incoming edition.  Svetlana has made an enormous contribution to the corpus of the Bar and her organisational skills will be sorely missed.  I will certainly miss her and thank her most sincerely for her past hard work. I wish her well in the new challenge in private practice.​
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ICAC for the ACT?

Shane Rattenbury has been reported as stating that he will attempt to introduce a bill that will, if passed, be responsible for the setting up of an ICAC for the ACT. There would be few lawyers who would oppose such a move.

The model that the Government will choose is going to be critical.  The early utterances of the Government suggest the Tasmanian model of an Integrity Commissioner.  The Tasmanian system has been criticised for its lack of results and review of the Integrity Commission Act 2009.

John Purnell
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From the Chief Justice Helen Murrell

There have been many important developments in the last few months.

On 11 April 2016, the Attorney-General, the General Manager of the Juris Partnership and I turned the symbolic “first sod” for the new Supreme Court building. Since then, construction has proceeded apace; piles have been driven, large areas around the Court have been excavated and a very large crane (known as “Justin”) has been erected to aid construction. We are enjoying the view as our new building takes shape.
If you would like to keep up with our building work and other matters of note from around the Supreme Court, why not follow the Supreme Court’s new Twitter account? Our handle is @ACTSupCourt. It will give you immediate access to new judgments, speeches and notices to practitioners and will post pictures of the building works.
On 4 July 2016, the Supreme Court and the ACT legal profession welcomed Justice Michael Elkaim as the Court’s “first fifth judge”. The ACT engaged in a rigorous and transparent process to select its “first fifth judge” and we are delighted with Justice Elkaim’s appointment. 
For those of you who may not yet have had the opportunity to google his Honour, Justice Elkaim grew up and was educated in northern Rhodesia (now Zambia) before moving to England in 1976 to complete a Master of Laws degree at the University of London, specialising in international law. His Honour also obtained a Diploma in Air and Space Law from the London Institute of World Affairs. In 1978, his Honour was admitted to the Bar of England and Wales. He practised in London for two years. In 1980, his Honour moved to Australia and commenced practising at the NSW Bar, primarily in common law.  He was appointed Senior Counsel in 2002. From 2008 to 2016, his Honour was a judge of the NSW District Court. From 2010, he was also a Deputy Chairman of the NSW Medical Tribunal. In recent years, his Honour has been responsible for managing the District Court’s civil list. 
His Honour brings to his new position an understanding of what makes a successful judge, a deep knowledge of civil law and procedure and experience in case and list management. He has taken to the criminal jurisdiction with the same efficiency and good humour for which he was well known in his former judicial life.
Finally, I would like to acknowledge the departure of ACT Bar Association President Shane Gill (whom I welcome as a local judicial colleague) and Bar CEO Svetlana Todoroski (whom I welcome as a local practitioner).  I also acknowledge the departure of Attorney-General Simon Corbell, who has provided great support to the Supreme Court, not least by promoting the appointment of a fifth judge and ensuring his government’s commitment to a quality new Supreme Court building. I look forward to a productive working collaboration with their successors.
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Legal Aid Commission Update

President Jon Stanhope

In the past year the Commission has, as expected, been required to manage its resources in a turbulent environment. I am pleased to be able to report that, notwithstanding these demands, services to the Canberra community have not only be maintain but expanded. Like all other legal aid commissions around Australia we have an important remit – to help the most vulnerable and disadvantaged people in our society, and here in the ACT I am very pleased the Commission is rising to this challenge.

There are very good reasons why legal aid commissions play an integral role in our legal system. Chiefly, of course, they are charged with providing equal access to legal remedies for those persons who would suffer most without this assistance. If we are to make our community an inclusive society, then access to legal assistance is an imperative bottom line.  Many years ago this challenge was laid down by Lionel Murphy, then the Attorney-General of Australia, when he caused the Australian Legal Aid Office to be established (ALAO).  In his Ministerial Statement he said:

“The Government has taken action because it believes that one of the basic causes of inequality of citizens before the law is the absence of adequate and comprehensive legal aid arrangements throughout Australia….the ultimate objective of the Government is that legal aid be readily available to citizens…and that aid be extended for advice and assistance of litigation as well as for litigation in all legal categories and in all courts.”

The ALAO was the forerunner of all legal aid commissions around Australia, and the charter Lionel Murphy set out is as true today as it was then. Importantly, he thought that ready accessibility to legal assistance was crucial, and considered that ‘storefront’ legal aid offices were key to the successful delivery of services. I am very pleased to see that our Commission has taken up this approach – by providing a new ‘storefront’ service, and by running 12 legal advice clinics in suburbs all around Canberra; by taking over 16,000 calls on the Helpline, and by investing in social media. 

 While it is sadly true that there can never be enough money to close the ‘justice gap’, it is equally true that legal aid commissions must try to optimise the number of people who are able to receive assistance. The marked increase in grants of legal assistance this year also ably demonstrate how the Commission is trying to meet this challenge.

The Commission is an independent statutory authority within the ACT. This is clearly set out in the legislative framework that underpins the daily operations of the Commission. Primarily, and this is in the interest of both government and citizens, the Commission must provide frank and fearless legal representation to its clients – this is fundamental and necessary. And while the Commission has a responsibility to undertake its activities as an integral part of the Commonwealth and Territories Government justice polices under the National Partnership Agreement, the independence of the Commission, including financial independence, should not be compromised. Appropriately,
Accountability indicators, audit requirements and the financial management legislation, govern the operations of the Commission, and in that sense the Commission’s management decision should not be undercut unnecessarily by bureaucratic or political intervention.  New challenges, not least the perennial concern about limited funding, and the need to be adaptable and flexible in service delivery, will no doubt drive the work of the Commission over the coming year. 
Jon Stanhope
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Bench and Bar Dinner

The Bench and Bar Dinner held at the Boat House on Friday 2 September was a wonderful success and enjoyed by members.  We thank Patrick O'Sullivan, President of the ABA who toasted the Bar on the evening and  special guest speaker, The Hon Chief Justice Tom Bathurst AC.  We also thank Mr Stuart Carter from MLIG for generously sponsoring the wine on the night.  Thank you also to Mr Michael Miller of MLC Advice, who also attended, and who again sponsored the ACT Bar Women's Scholarship.
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Congratulations Katrina Musgrove

Recipient of the ACT Bar Association's

Women's Scholarship

Katrina Musgrove was recently called to the ACT Bar and is undertaking her Readership at Blackburn Chambers. She has previously spent seven years as a prosecutor. Most recently she was a Senior Federal Prosecutor with the Commonwealth DPP for five years, and was two years with the ACT DPP prior to that.  Her areas of practice include crime, family law, care and protection matters and administrative law.
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The ACT Bar Association's Women's Scholarship
was proudly sponsored by Michael Miller, MLC Advice Canberra, Branch

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For more information call Michael Miller on (02) 6247 1233 or email

Bail Act 1992 - A new section 44(ACT)  


As of 1 May 2017, section 44 Bail Act 1992 (ACT) (‘Bail Act’) will become operational. It will provide the Director of Public Prosecutions (DPP) a right to make an application to the Supreme Court for review of a bail decision of a Court in granting an accused person bail.  The grant of bail will be stayed pending the application, and the accused person detained in custody until one of various events occurs. The section is a new provision and introduces a right to apply for review that currently does not exist in the ACT.

Overview of section 44 Bail Act
Section 44 gives the DPP, in matters involving a domestic violence offence or a serious offence, a right to apply to the Supreme Court for a review of the decision by a Court granting an accused person bail.

An application for review can be made when the DPP considers exceptional circumstances exist and it is in the public interest to make the application (section 44(2)).

There are a number of legislative requirements relating to the application for review contained in section 44. The prosecutor must give oral notice of the intention to apply for review to the Court granting bail at the time the original bail decision is made (section 44(4)). A formal application to the Supreme Court must be made by the DPP within 2 hours of the original bail decision being made and written notice of such must be given to the accused person within this time (section 44(3)).
Section 44(5) places legislative limits upon the stay of the bail decision. The accused person can only be detained until the first of the following occur:
                  (a) the DPP tells the Court that granted bail that the application will not proceed;
                  (b) 2 hours has passed and the DPP has not;
                       (i) made an application, and
                       (II) given written notice to the accused person;
                  (c) the Supreme Court makes a decision on the application;
                  (d) 48 hours has passed since oral notice was given to the granting Court and the Supreme Court has not made a decision on the application.

Application of section 44 Bail Act             
Section 44(7) provides which types of offence the application for review can apply to.  These include domestic violence offences and serious offences.

For the purposes of section 44(7), the definition of domestic violence offences in section 13(2) Domestic Violence and Protection Orders Act 2008 applies. There are 61 such domestic violence offences.  Serious offences as defined in section 44(7)(a-d) Bail Act include at least 28 offences.

This figure does not include those that fall within s44(7)(a), which refers to an offence of causing harm, or threatening to cause harm with a maximum penalty over 10 years. ‘Causing harm’ is not defined in the Bail Act and no indication is given whether the definition of harm in the Criminal Code (2002) ACT, which includes mental harm, is to be applied. If that definition is to be applied, it will increase again the number of offences the definition of serious offence applies to.
Exceptional Circumstances
The language in section 44(2) Bail Act requires the DPP to consider that exceptional circumstances exist and it is in the public interest to make the application for review. The section does not provide whether the prosecution needs to establish, as a threshold question, that exceptional circumstances exist, before the review is carried out.  A question in the operation of the section then arises, does the Supreme Court need to be satisfied by the prosecution that exceptional circumstances exist before they proceed to conduct a review?

A literal reading of the section does not appear to require it, but such a threshold question should, in fairness, be necessary. It is not readily conceivable that the Supreme Court would conduct a review of a decision to grant bail, made in line with legislative requirements of the Bail Act and judicially determined, because the DPP alone believes there are exceptional circumstances warranting a review. 
Exceptional circumstances are not defined in the Bail Act, but the phrase ‘special and exceptional circumstances’ has been considered by the Courts in other contexts, and generally found to mean circumstances that are unusual or uncommon.
If exceptional circumstances need to be established in an application under section 44, it would be for the prosecution to establish unusual or uncommon circumstances exist that warrant a review of the decision to grant bail. The onus would lie on the prosecution and it would need to be established on the balance of probabilities (section 55 Bail Act).

Human Rights Act issues
In interpreting and applying section 44 Bail Act, Human Rights Act 2004 (ACT) considerations could come into play.
Of note, section 18 Human Rights Act provides the right to liberty and security of person.  Questions may arise as to whether the detaining of an accused in circumstances where oral notice is given but no formal application is subsequently made is arbitrary detention.

Further, the existence of the Human Rights Act lends weight to the argument that the threshold question of whether exceptional circumstances exist must be established by the prosecution before the Supreme Court will undertake a review of the original decision granting bail. 

In the matter of an application for bail by Luke Marsh [2013] ACTSC 16 [at para 28] it was noted but not positively determined that the Human Rights Act may require the interpretation of ‘special and exceptions circumstances’ to be determined in a Human Rights compliant manner. This could equally apply to section 44 Bail Act applications for review.
Section 44 Bail Act has potential application to a large number of offences. The provision gives the DPP a power not previously enjoyed.  When it commences operation on 1 May 2017, it will be interesting to observe how, and how often, the prosecution utilises the provision. Of particular interest will be the number of initial oral notifications to the granting court, as opposed to formal applications resulting in subsequent reviews.

The impact the Human Rights Act has upon the interpretation and application of the section will also be another area to closely observe.   

Katrina Musgrove
Blackburn Chambers
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Women and the Law
Louise Taylor
Deputy Chief Executive Officer
Legal Aid Commission

'The litmus test for equality has to be our most junior, not our most senior, women lawyers'

 The position of women in our communities is more frequently a topic of discussion with increasing awareness around issues such as domestic violence and the gender pay gap.  Of course the challenges of being a professional woman are not the litmus test of how far we have to go on the path to achieving equality for all women but they can certainly be a measure of the space that is made for women in professions and institutions - particularly those that have historically been dominated by men.

With so many women in senior and instrumental roles in the legal profession here in the ACT have we moved beyond the need to consider whether we have an equal playing field for women lawyers in Canberra? An objective view would probably say ‘yes’ - we’ve not got a whole lot to be worried about where gender is concerned.  Our Chief Justice, Chief Magistrate and more recently Law Society President are all women.  Women occupy a variety of senior legal roles in government, the community sector and in the administration of our courts across the ACT.  This is undoubtedly instructive of the position of women in our profession generally - but I suggest it doesn’t paint the complete picture.  The litmus test of the health of our local profession from the perspective of gender has to be our most junior, not our most senior, women lawyers.  And it is here perhaps we need to reflect on whether we still have some way to go. It is not just whether women can achieve in our profession but the experience of the path to that achievement that is also important.

At a Law Week event earlier this year on the topic of sexual harassment (attended by only one man) a junior ACT lawyer painted a fairly sad picture of sexual harassment continuing to feature in the careers of junior women in our local profession.  Some of the examples referred to in that law week event and examples that I’ve seen or heard about over the years are shocking in both their nature and their brazen disregard for appropriateness and professional standards.
A mentality that sees women objectified survives and perhaps, thrives, because it’s allowed to.  Women who complain about this treatment are often isolated or held up as hysterical shrews who can’t take a joke.  A modern, progressive profession can’t excuse inappropriate behaviour on the basis of age, experience or position and must provide systems that support the making of complaints effectively and efficiently.  In 2012 the Australian Human Rights Commission in its report on their national survey on sexual harassment highlighted the importance of ethical bystander behaviour as an invaluable tool in the prevention of sexual harassment. Bystander intervention can strongly influence appropriate behaviours and relieve complainants of the responsibility to speak out.  To be clear I am not suggesting that this sort of behaviour is a major feature of the culture of our local profession – but we must accept that it is a feature. With the ABC 7:30 report recently revealing a national survey where one in four female barristers and solicitors identified that they had experienced sexual harassment (42% of female barristers in NSW report being on the receiving end of sexual harassment), the challenge for the profession to eradicate this from our ranks is clear.
Another crucial marker of the position of women in our local profession is the capacity for us to achieve the hallmarks of success enjoyed by our male counterparts.  An obvious place to look for this, is the number of women who have been elevated to the ranks of senior counsel.  The ACT has not done well here, with only one woman enjoying that status – a sad number really in the year 2016.  To be fair, this is something that plagues almost every jurisdiction across Australia with only around 121 women in Australia taking silk in the last 50 years or so despite the exponential increase in the number of women practicing law over that time.  This is not about ‘merit’ – that argument is just tedious and boring.  This is about women having equal access to good quality work and supportive professional environments that recognise the balancing act that many women perform juggling the pursuit of professional excellence and care giving responsibilities.  In recent times it has been encouraging to see the ACT Bar focus on the number of women at the bar and I hope to see that focus result in an increasing number of young ACT women lawyers seeing the ACT bar as an genuine career pathway.
My own view is that we should reflect the rich diversity of the communities we assist and represent -  ultimately, this means more than just a focus on the position of women in our profession – though it is indeed a good place to begin.  A fulfilling career in the law and the pursuit of high achievement should be an option for any law student no matter their gender, culture or socio-economic background.  You can’t be what you can’t see, but that’s perhaps the beginnings of another piece for another edition of the Bar Bulletin ….   The 2016 ACT Women Lawyers gala award night celebrated the achievements of some of our best and brightest local women lawyers, I encourage us all to reflect on the contribution we make to creating a profession that is welcoming, rewarding and inspiring for all practitioners.   We can do better I think and it’s incumbent on all of us to shape a profession in which everyone can thrive.  

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An Ejection Seat on a Helicopter;
A hip Pocket in a Singlet and a
Flyscreen on a Submarine

Each of the above expressions is a colourful okker-idiom for something completely useless.
Does Section 33 of the Crimes (Sentencing) Act 2005 provide a further example?
Section 33(1)(s) of the Act provides that a court must take into account “any jury recommendation for mercy” if relevant and if known to the court when sentencing for criminal offences.
In 37 years of practice I have never seen a jury recommendation for mercy.
I know they once existed, in the same way I know that the Australian Rugby Union team once beat the All Blacks at Eden Park but that is about all I know.
The legendary English trial advocate Edward Marshall-Hall in 1920 was involved as defence counsel for one of two accused, William Gray, in what became known as “The Crumbles Murder” where there was a recommendation for mercy.
Interestingly, Mr Gray’s representation, by arguably the greatest English criminal trial lawyer in the early part of last century, was funded by the weekly news magazine “John Bull” which, from time-to-time advocated for the establishment of a prisoner’s defence fund or, in other words, Legal Aid.
Both William Gray and Jack Field, his co-accused, were convicted of murder with a jury recommendation for mercy.
The matter went on appeal to the Court of Criminal Appeal in 1921 and was also referred to the Home Secretary because of certain unusual features of the trial.

Most curiously, both Field and Gray gave evidence before the Court of Criminal Appeal.  In doing so they managed to contradict things they had earlier said which, no doubt to some degree, contributed to the circumstances of their final meeting on the 4th of February 1921 when they were brought from their separate cells at Wandsworth Prison to the scaffold where their double execution took place.
It can be safely concluded that the recommendation for mercy was ultimately ignored.
In Myerson v R  the High Court came to consider a case in which the accused had been found guilty of three counts of dishonesty but with the rider:
“We strongly recommend the accused Maurice Myerson to mercy on account of ill-health, and because we believe he was a tool, an unsuspecting tool, of Abraham, his brother”.
It is interesting to consider the form of the first two counts on the Indictment, not only for an appreciation of the arcane legalese in which they were expressed, but to understand the argument which was before the High Court.
Count 1 alleged that Meyerson and another (his brother) conspired together to cheat and defraud certain named creditors and others of “divers large quantities of goods and merchandise and divers large sums of money the property of the creditors aforesaid”.
Count 2 alleged that the two brothers were, on the 7th of June 1907, made bankrupt and that on the 1st of June that year “they, with intent to defraud the same creditors, conspired and agreed together that they should within 4 months before the sequestration order dispose of otherwise than in the ordinary way of trade certain goods and merchandise which they had obtained on credit from the creditors mentioned, and for which they had not paid”.
In the High Court Griffith CJ was troubled by the argument that the recommendation to mercy was equivalent to a verdict of not guilty. 
His Honour the Chief Justice noted the case of Reg v Trebilcock  in which Lord Campbell CJ expressed doubt whether a rider of a jury recommending a prisoner to mercy ought to be referred to in order to ascertain what the jury meant as it was not part of their finding.
His Honour observed, however, that:
            “It is the duty of the court, where a jury has found a prisoner guilty and added a rider to their verdict, to look at the whole of the finding, and that if it appears reasonably doubtful, taking the whole finding together, whether the jury have found the facts necessary to establish the offence charged, the accused is entitled to the benefit of the doubt”.
Chief Justice Griffith went on to consider in careful detail the words actually employed by the jury, concluding that they were capable of meaning that the accused had not suspected that the enterprise was unlawful. In doing so, His Honour observed “Ignorantia juris haud excusat”.
The Chief Justice concluded that the words of the jury rider had to be considered in the circumstances of the particular case and if given their ordinary meaning the accused could not be guilty of the offence then the conviction could not be supported.
Bearing in mind that the jury had returned verdicts of guilt His Honour though that “a clear statement or finding of fact is not be cut down by the subsequent use of ambiguous words”.
Barton J, O’Connor J and Isaacs J all concurred.
In Whittaker v R  Alexander Lindsay Whittaker was charged with the murder of his wife.  The jury acquitted him of murder but found him guilty of manslaughter and added “a strong recommendation to mercy”. 
Isaacs J, in what is the leading judgment, held that:
            “The verdict of the jury establishing the crime of manslaughter cannot be reduced to comparative innocence by a mere recommendation to mercy”.
The question on appeal concerned the adequacy of the sentence which was imposed at first instance, which was a sentence of 12 months imprisonment with hard labour.  The statutory alternatives were penal servitude for life or any term not less than three years or imprisonment for any term not exceeding three years.
His Honour added:
            “Whatever weight might have been given to the recommendation otherwise, it was in this instance pressed beyond the limits of its proper function.  The recommendation of a jury for leniency should always be treated with respect and careful attention.  It is a recognised feature of our legal system.  But a recommendation simpliciter is, after all, a recommendation only, and the Judge, on whom falls the sole responsibility of measuring the punishment within the limits assigned, must consider for himself how far it is consistent with the demands of justice that he should accede to the recommendation”.
Subject to statue judges are required to give juries particulars warnings, such as a Longman warning; a Domican warning; an accomplice warning, and a Pollitt warning, for the purpose of alerting juries to particular difficulties with particulars classes of evidence with which they are unlikely to be familiar.
In addition, judges are required to give juries certain ineluctable directions as to matters such as the function of the judge and jury, the burden and standard of proof, what constitutes evidence, the drawing of inferences from direct evidence, the care to be exercised in drawing inferences and, if an inference forms an essential step in the jury’s process of reasoning to guilt, the need to be satisfied of that inference beyond reasonable doubt.
In “Australian Criminal Trial Directions” the author, S Tilmouth QC, (now Judge Tilmouth of the South Australian District Court) says this:
            “It is clear law that no enquiry should be made of the jury as to reasons for any verdict or recommendation of mercy: R v Wingrove (1936) 56 WN (NSW) 118; R v Black [1963] 1 WLR 1311; R v Tappy [1960] VR 137.  In Black the court expressed the view that a judge should not invite a jury to add a recommendation for mercy to their verdict, obliquely or expressly and in R v Larkin [1943] KB 174; [1943] 1 All ER 217 it was said that neither the judge nor counsel should invite the jury to add recommendations of mercy to their verdict”.
Thus, the abject uselessness of Sub-section 33(1)(s) of the Crimes (Sentencing) Act 2005 is demonstrated. 
If no-one is entitled to tell a jury about their common law entitlement to recommend mercy then it is highly unlikely that any jury will do so, unless amongst their number is some scholar or legal historian.
In this writer’s opinion, it is high time that one of our Justices took the initiative and told a jury about their undoubted right to recommend mercy or one of our number took the even bolder step of referring to that right in a closing address.
My suggestion to any criminal barrister faced with a case where a jury recommendation to mercy might be appropriate is not be constrained by the fear of the unknown.
I trust this short article might assist he or she with some basic reference material.
Let me conclude by saying, “You go first and good luck”.
Jack Pappas
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In the May 2016 edition of ACT Bar Bulletin, an article was published 'Contact Rules - the unacceptable barriers for prisoners and families, at the new Darwin Correctional Precinct'.

The ACT Bar Association would like to acknowledge the writer of the article Amelia Noble.  Amelia  is a final year student at the Australian National University, studying a Bachelor Law (Hons)/Bachelor Music.  Amelia wrote the paper while working as an intern at the North Australian Aboriginal Justice Agency (NAAJA) in Darwin. The views and opinions expressed in the paper are those of the author.  This paper was originally published in ‘Balance’, the Northern Territory Law Society Journal (Edition 1, 2016). The full version (with citations) can be accessed here.
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ABA 2017 Ski Trip and CPD
The Snowy Mountains has experienced a bumper 2016 season and those among us who look forward to the falling flakes of 2017 have already ordered our reduced-price season tickets.  I say, “why stop there!”

Obviously in one of its less attentive moments, the Bar Council resolved that I should oversee an Events Sub-Committee so, as any hot blooded self-proclaimed powder hound would do, I have ordained that there shall be a ski trip and CPD opportunity in Perisher Valley next year.

I have undertaken the following preliminary inquiries and in principle will be developing an event that will facilitate a combination of long and short stays between 21 – 31 July 2017, so those interested, pencil it into your diaries as unavailable court dates.

As suggested, nothing is set in concrete but what follows are some of the ideas that I am progressing:

Various options between Friday 21 July – Sunday 30 July 2017.
  • Core event check-in Sunday afternoon 23 July 2017.  Check-out Friday afternoon 28 July 2017.
  • Pre-event arrival Friday 21 July 2017 then merge into the core event making it a seven day stay.
  • Post event departure that extends the stay to Sunday 30 July 2017.
This effectively allows participants to choose to stay 5, 7 or 9 days.  Cars can be parked free of charge at the Ski Tube Terminal in Bullocks Flat and once in Perisher the over snow transport to the hotel is included in the price.

Venue: Sundeck Hotel Perisher Valley NSW
This is an excellent venue that provides mid-range accommodation, is on the slope and encourages a communal atmosphere.  For example, while the rooms have ensuites and are comfortable, none has a TV.  Rooms are a short stagger from the bar.

The Conference
The conference will be developed to combine skiing, entertainment and CPD.

The hotel can cater for individual, double, triple and quad/family arrangements.

The plan is to have approximately 6 points of CPD events from Monday to Thursday being a combination of breakfast, afternoon and evening events.  One event may include a trivia night with a CPD component.

Other arrangements will be skiing adventures, a race day for all levels which is based on time trials, open mic evening, karaoke, a yodelling competition, wine tasting (perhaps should combine that with yodeling) and a novelty event to be advised.  I am of course open to ideas.  The days are yours, however, it is the plan that there will be ski buddies each day to lead groups of skiers and boarders over the mountains who do not want to ski alone.  Arrangements can also be made on demand for group lessons at all levels.

Hopefully there will be someone videoing the highlights of each day to post on the webpage and provide a DVD at the end of the event.  I also hope that there will be the mandatory T-shirt or windcheater as acknowledgement of the fine week had by all.

Pricing is yet to be determined but will vary with duration of stay and room type.  The pricing will include over snow transport, accommodation, breakfast and dinner for each night, welcome drinks and CPD.  We also hope to get some sponsorship which may involve some more complimentary schnapps.  Those attending who are members of the ACT Bar will also have the option of becoming members of the proposed ACT Bar Association Ski Club which hopefully will organise international ski trips/mini conferences with other international bar associations.  In anticipation of an enthusiastic response I am already inquiring about Austria for January 2018!

How can you assist
I know without pricing and the event being so far away, it is difficult to offer a firm commitment, however I would find it most helpful if in principle, you could email me your interest and any other suggestions you might have to

John Masters
Blackburn Chambers

Supreme Court Notice to Practitioners - Call overs 7 November and 12 December 2016.  Criminal Central listing period - March-April 2017 read here

Christmas Party

Friday 16 December

University House

Mr Ken Archer, President of the ACT Bar invites Members of the ACT Bar to the Association's Christmas Lunch on Friday 16 December from 12.30pm at University House (Drawing Room). Click here to download your invitation.
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Dates for your Diary


Junior’s Drinks
The Parlour Wine Room
Thursday 24 November 2016
Members’ Christmas Lunch
University House, Acton
Friday 16 December 2016


Advanced Trial Advocacy
23–27 January 2017 
Commencement of the Legal Year
Supreme Court
Monday 6 February 2017 
CPD Mini Conference
Legal Aid Conference Room
Saturday 25 March 2017
ACT Bar Association
Fishing Trip

To be advised
Farewell to Justice Refshauge
April 2017

ACT Bar Association
Law Week Breakfast and CPD

Tuesday 16 May 2017


ACT Bar Association
Regimental Dinner

To be advised
Welcome to new
Supreme Court Justice

Late June/July 2017

Essential Trial Advocacy
10–14 July 2017
ACT Bar Association
CPD Ski Trip

23-28 July 2017
Australian Bar Association

2–3 July 2017
5–8 July 2017
Bench and Bar Dinner
Friday 1 September 2017 

ACT Bar Association
CPD Event

To be advised
ACT Bar Association

Thursday 14 September 2017
Law Society Mental Health Week
10 October 2017
ACT Bar Association
Christmas Lunch

Friday 15 December 2017
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President's Message
Editor's Note

Justice Cliff Hoeben’s Timely Reminder
SIO v The Queen HCA320
Chief Justice Warren on the Commercial Bar
Farewell to Svetlana Todoroski
From the Chief Justice Helen Murrell
Legal Aid Commission Update
Bench and Bar Dinner
Congratulations Katrina Musgrove
Bail Act 1992
Women and the Law
An Ejection Seat on a Helicopter
ABA 2017 Ski Trip and CPD
Supreme Court - Notice to Practitioners

Dates for your Diary

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