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Abortion is the act of terminating a pregnancy surgically or through the use of medications (abortion pill). All states and territories within Australia strictly regulate abortions. Unlawful abortions remain a criminal offence in most Australian jurisdictions, except for Victoria, Australian Capital Territory and Northern Territory.
- s 224 Attempts to procure abortion: ny person who, with intent to procure the miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a crime, and is liable to imprisonment for 14 years.
- s 225 The like by women with child: Any woman who, with intent to procure her own miscarriage, whether she is or is not with child, unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, or permits any such thing or means to be administered or used to her, is guilty of a crime, and is liable to imprisonment for 7 years.
- s 226 Supplying drugs or instruments to procure an abortion.
- s 282 Surgical operations and medical treatment.
R v Bayliss & Cullen (1986) 9 Qld Lawyer Reps 8
Dr Bayliss and Dr Cullen were charged with procuring an illegal abortion under s 224. They pleaded not guilty under s 282 and were acquitted of the charges. Judge McGuire undertook a detailed examination of the law and concluded that s 282 acts as a defence to the abortion sections, although it was originally intended for a different purpose. McGuire DCJ also held that the s 282 defence was not available for ‘every inconvenient conception’ and that it would apply only in ‘exceptional cases’. Finally he said that ‘the law in this state has not abdicated its responsibility as guardian of the silent innocence of the unborn’ Thus, in Queensland, doctors are able to deny requests for an abortion if they are of the belief it will be unlawful. Further, a serious danger to health is not clearly defined. McGuire DCJ provided only a general definition for ‘serious danger’ which may mean ‘grave’, ‘irreparable’, ‘permanent’ or ‘real or substantial’ danger.
R v Brennan and Leach (2010) (unrep, Dist Ct, Qld, Criminal Jurisdiction, Indictment 74 of 2010, DIS – 00000610/10).
This was the first, and thus far only, case in Queensland where a woman has been charged with procuring her own abortion. Tegan Leach was charged with one count of attempting to procure her own abortion by administering to herself a ‘noxious’ drug (s 225) and her partner, Sergie Brennan, was charged with supplying her with ‘noxious’ drugs, namely Mifepristone (RU486) and Misoprostal to procure an abortion (s 226). Both Leach and Brennan pleaded not guilty and were acquitted of the charges. Judge Everson concluded that the critical question for the jury was whether or not the combination of Mifepristone and Misoprostal was ‘noxious’. Everson DCJ directed the jury that the word ‘noxious’ meant “harmful or injurious to health or physical well-being” and that as it was irrelevant for the offence whether or not Leach was pregnant “the question of whether the thing administered was noxious must be determined in terms of whether or not it was noxious to the defendant Leach” rather than the ‘potential’ foetus. Given the evidence provided by witnesses regarding the ‘safety’ of the combination of Mifepristone and Misoprostal to the woman taking the drugs, the jury held that neither Leach nor Brennan were guilty. Thus, on this basis women who self-administer this combination of drugs cannot be convicted under s 225, however women who self-administer counterfeits or other herbal potions may still be convicted under s 225.
Questions to think about ...
- The crucial question in deciding whether or not an abortion is legal in Queensland is determined by asking whether or not the denial of an abortion would result in serious danger to the mother’s health. However, as only general definitions have been provided in the legislation, it remains an unclear area. What circumstances constitute a ‘serious danger’? Should the law be clearer on this matter, or is a broader approach, allowing greater flexibility, to be preferred?
- Should the father of the unborn child have any rights in the matter?
- Should abortion remain a criminal offence, under the Criminal Code, or should legislation regarding its use be provided elsewhere, such as the ACT’s Medical Practitioner’s Act? Does this make a difference in the attitudes towards abortion? Is this merely a reflection of political and religious beliefs infringing upon the law, or is there a greater necessity to ensure abortion is not used as a frequent form of late contraception disregarding the sanctity of human life?
- Should the circumstances of the pregnancy, such as with cases of rape, alter whether an abortion can be performed?
- Should the fact that the unborn child has been diagnosed with certain medical conditions or abnormalities be taken into consideration?
- How has the introduction of the abortion pill RU486 affected legislation and policy concerning abortion?
- Is it a woman’s right to choose whether or not to have an abortion?
Capital punishment is defined as ‘the infliction of death by an authorised public authority as a punishment’. Ernest Austin, who was convicted of raping and murdering a 12-year-old Samford girl, was the last person to be executed in Queensland. He was hanged in Brisbane on 22 December 1913. In 1922 Queensland became the first Australian state to abolish capital punishment. By 1985, the death penalty had been completely abolished in Australia. The last person to be executed in Australia was Ronald Ryan on 2 February 1967 in Melbourne. He was convicted of shooting a prison guard during an escape attempt. Judges may now impose life imprisonment in lieu of the death penalty.
Criminal Code Amendment Act 1922 (Qld): abolished the death penalty in Queensland.
Death Penalty Abolition Act 1973 (Cth), s 4: A person is not liable to the punishment of death for any offence referred to in subsection 3(2).
Second Protocol to the International Covenant on Civil and Political Rights 1989: Australia is an assignee of this international covenant that states ‘abolition of the death penalty contributes to enhancement of human dignity and progressive development of human rights’.
Questions to think about ...
- The crucial question underlying capital punishment is whether the imposition of death violates the sanctity of human life. Abolitionists contend that the death penalty brutalises society and that the manner in which the penalty is carried out is degrading. However, is a life spent in prison worse than being sentenced to death?
- Is the death penalty effective, does it act as a deterent?
- ABS sources identify that in the last 10 years the prison numbers in Australia have increased by 50%. The costs of incaseration are huge, would capital punishment be more “cost effective”?
- Between 2000 and 2007, an average of 5 people per year have been exonerated whilst on death row in the USA. Should the death penalty be imposed when it precludes a retrial for an innocent person?
- The ‘eye for an eye’ mentality underlies the death penalty. Do victims have more of a sense of justice being achieved when the perpetrator has been put to death?
‘Manslaughter arises from the sudden heat of the passions and murder from the wickedness of the heart.’ (Blackstone)
In Queensland, provocation is a partial defence to murder and results in the charge being reduced to manslaughter. Consequently, the mandatory sentence of life imprisonment is not imposed upon the defendant. Provocation is generally viewed as a concession to human frailty and is premised upon the notion that a distinction is required between premeditated murder and murder which is provoked and occurs in the ‘heat of the passion’ as a result of the loss of self-control. The defence originated from the necessity to mitigate the severe penalty of death imposed upon those convicted of murder.
There are three essential elements of the defence of provocation for murder:
- Provocative conduct by the victim
- A subjective element — ‘The provocation must actually cause the accused to lose self-control and the accused must act whilst deprived of self-control before he has had the opportunity to regain his composure.’
- An objective element — An ordinary person provoked with the same gravity could have lost control and acted in the manner in which the accused did (Masciantonio v The Queen (1995) 183 CLR 58 @ ; Stingel v R (1990) 171 CLR 312)
Criminal Code 1899 (Qld)
- s 304 Killing on provocation:
- When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for the person’s passion to cool, the person is guilty of manslaughter only.
- Subsection (1) does not apply if the sudden provocation is based on words alone, other than in circumstances of a most extreme and exceptional character.
- Also, subsection (1) does not apply, other than in circumstances of a most extreme and exceptional character, if —
- a domestic relationship exists between 2 persons; and
- one person unlawfully kills the other person (the deceased); and
- the sudden provocation is based on anything done by the deceased or anything the person believes the deceased has done —
- (i) to end the relationship; or
- (ii) to change the nature of the relationship; or
- (ii) to indicate in any way that the relationship may, should or will end, or that there may, should or will be a change to the nature of the relationship.
- On a charge of murder, it is for the defence to prove that the person charged is, under this section liable to be convicted of manslaughter only.
- s 303 Definition of manslaughter: A person who unlawfully kills another under such circumstances as not to constitute murder is guilty of manslaughter.
- s 310 Punishment of manslaughter: Any person who commits the crime of manslaughter is liable to imprisonment for life.
As a consequence of amendments to the Queensland Criminal Code in 2011, provocation cannot be successfully raised as a defence to murder where the provocative conduct consists of words alone. However, the defence of provocation may be founded on any other conduct which causes a lethal loss of self-control in the defendant, and which could have caused the hypothetical ordinary person to kill.
Buttigieg v The Queen (1993) 69 A Crim R 21
Conduct can amount to provocation if a reasonable jury could conclude that it might be capable of provoking an ordinary person to retaliate as the accused did. The use of words alone for the basis of provocation in Queensland is only accepted if they are in ‘circumstances of a most extreme and exceptional character … a confession of adultery is never sufficient without more to sustain this defence … the combination of circumstances needs to be evaluated.’
Stingel v the Queen (1990) 171 CLR 312
The ordinary person test is an objective threshold test. The High Court considered the ordinary person test in a series of decisions, culminating in Stingel v The Queen. The ordinary person test has two parts. The first involves an assessment of the gravity of the provocation to the defendant. The second entails determining whether the provocation, so assessed, could have provoked an ordinary person to retaliate as the accused did.
R v Sebo (2007) QCA 426
A jury convicted the accused, Sebo, of manslaughter rather than murder, after the defence of provocation was successfully raised. In this case, 28 year old Sebo killed his 16 year old girlfriend in a jealous rage by striking her head with a steering wheel lock multiple times. The provocation in this case consisted of the deceased drunkenly taunting the defendant about her relationships with other men, telling him that he was easy to cheat on and that she was not going to stop. A sentence of 10 years imprisonment was imposed, with Sebo being eligible for parole after 8 years.
Masciantonio v R (1995) 129 ALR 575
In Masciantonio, the accused (Masciantonio) killed his son-in-law (‘the victim’). The victim had allegedly abused and left Masciantonio’s daughter, causing him significant distress. Masciantonio subsequently approached the victim, who verbally and physically assaulted him and a struggle ensued during which Masciantonio fatally stabbed the victim. Even after the victim was lying on the ground Masciantonio continued to stab him.
In this case the lower courts did not allow the defence of provocation as Masciantonio lost self-control beyond that of an ordinary person in stabbing a helpless person after the initial altercation. However, a majority in the High Court of Australia held that it was not possible to draw a distinction between the initial altercation and the continued stabbing of the deceased. Therefore, their Honours’ concluded that the defence of provocation should have been left to the jury and ordered a retrial.
Green v R (1997) 191 CLR 334
In Green v R, the High Court held that an unwanted, non-violent homosexual advance could be sufficient to establish provocation.
Green killed Gillies, one of his best friends, after he allegedly ‘came on to him’ one evening after they had had dinner together. Gillies homosexual advances were non-violent, however Green alleged that as a consequence of a family history of sexual abuse, Green’s father sexually-abused Green’s sisters, he was particularly sensitive to sexual assaults and therefore more likely that he would be severely provoked by the unwanted homosexual advance.
Questions to think about ...
- Is the defence of provocation more difficult for women who have been in long term abusive relationships to raise as a result of the requirement of ‘sudden provocation’? How does the defence of battered wife syndrome compensate this inadequacy?
- Lord Hoffman, in R v Smith  AC 146, stated that ‘a tendency towards violent rages or childish tantrums is a defect of character rather than an excuse’. Where do you draw the line between an uncontrollable loss of self-control and a mere childlike-rage?
'A principle which holds that it is not permitted to try a man twice for the same offence, nor can a person be convicted of different crimes arising out to the same conduct unless the crimes are by definition of significantly different kind.'
Walker (1980), Oxford Companion to Law,
Oxford: Oxford University Press
Criminal Code 1899 (Qld)
- s 16 A person cannot be punished twice for the same criminal act.
- s 17 A person cannot be tried for an offence of which they have earlier been convicted or acquitted.
International Covenant of Civil and Political Rights
- Art 14(7) No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.
Exceptions to Double Jeopardy
- Criminal Code (Double Jeopardy) Act 2007 (Qld)
- Queensland Criminal Code s 678B — Retrial for murder where there is fresh and compelling evidence and it is in the interests of justice.
- Queensland Criminal Code s 678C — Retrial for offences punishable by 25 years or more of imprisonment if the acquittal is tainted and it is in the interests of justice.
- Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (NSW)
- Criminal Justice Act 2003 (UK)
R v Carroll (2002) 213 CLR 635
Carroll was charged and convicted in 1984 of the 1973 murder of an Ipswich baby, Deidre Kennedy. The baby had been strangled to death and there were bite marks on her legs. Carroll gave evidence expressly denying killing Kennedy. The Court of Appeal later quashed the conviction.
Fourteen years later new forensic evidence came to light that more conclusively linked Carroll with the bite marks. He was charged with perjury for lying in his original murder trial.
The High Court dismissed the perjury case on double jeopardy principles because the issue to be decided at the trial for perjury was the same as that to be decided at the trial for murder, namely; did the accused kill Deidre Kennedy.
Questions to think about ...
- High Court Judges Gleeson CJ and Hayne J said in R v Carroll that the ‘power to prosecute can be used as an instrument of oppression’ – what would this oppression mean for a person who has been found not guilty?
- Advocates of double jeopardy argue that it encourages proper investigation in order to ‘get it right’ the first time. How should this argument be balanced against the fact that due to technological innovations evidence that would not have been available at the time is now available.
- In 1955 in Mississippi Emmett Till, a black 14 year old, was murdered by two white men who were subsequently charged with and acquitted of the crime. Following the trial, Look magazine paid the killers $3, 500 to tell their story. Safe from any further charges due to double jeopardy laws, they admitted their guilty. How should we balance the accused’s right to finality with the victim and their family’s right to justice? Does this kind of event damage public confidence in the justice system?
- In 2009 Gabe Watson, an American citizen, pleaded guilty, in Queensland, to manslaughter for the death of his wife. Mr Watson was sentenced to and served 18 months in prison. During his prison sentence further charges were brought against him for capital murder in Alabama. Should Australia have allowed his extradition?
Euthanasia may be defined as the intentional taking of life for compassionate motives. Assisted death or assisting a suicide refers to the act of helping another (with their consent) to die. The distinction between assisted death and euthanasia lies in who is responsible for the act that causes the death.
Euthanasia can be divided into active and passive euthanasia. Active euthanasia is the giving of drugs with the intention that death will ensue. Passive euthanasia is the withdrawal of life sustaining nutriment, medication or other medical processes. Active euthanasia is unlawful – consent of the victim is not a defence to murder or manslaughter. Passive euthanasia only attracts criminal liability where the there is a duty to act.
Euthansia may be categorised as voluntary or involuntary. Voluntary euthanasia is where the person gives express consent to the act or omission; whereas involuntary euthanasia is where the person does not or is not capable of giving consent.
Active euthanasia is legal in the Netherlands and Belgium. Assisted suicide is legal in Switzerland (Dignitas clinic) and Oregon, USA.
Criminal Code 1899 (Qld)
- s 284 Consent by a person to causing the person’s own death does not exclude criminal responsibility.
- s 311 Any person who aids another to kill himself or herself is guilt of a crime
Rights of the Terminally III Act 1995 (NT)
- Sanctioned voluntary active euthanasia for terminally ill patients over 18 under strict conditions in the Northern Territory, however this was overturned by the Commonwealth Parliament in the Euthanasia Laws Act 1997 (Cth) nine months later.
Purdy, R v Director of Public Prosecutions  UKHL 45
In 2008, terminally ill multiple sclerosis sufferer Debbie Purdy decided that she wanted to end her life by travelling from England to Switzerland’s Dignitas clinic. Worried that her husband, Omar, could face prosecution if he helped her, she asked the Director of Public Prosecutions (DPP) to clarify the law in England and Wales that makes it an offence to help someone commit suicide. On appeal, the House of Lords ruled that the DPP must issue guidance on whether the Crown would prosecute in these types of circumstances. The guidelines issued by the DPP allowed Purdy and her husband the freedom to visit the Dignitas clinic without being charged.
Airedale NHS Trust v Bland  AC 789
Anthony Bland was a victim of the Hillsborough football stadium disaster in 1989. Bland had been in a persistent vegetative state for three and a half years. He could not feel pain, and had no prospect of recovery or improvement. The hospital sought declarations from the court: first, that it might discontinue all life sustaining treatment and medical support measures for Bland; and secondly, that it need not furnish any medical treatment except for the sole purpose of enabling him to end his life and die peacefully. The House of Lords granted the declarations sought. It was not in Bland’s best interests to continue to receive nutrition under the circumstances.
Brightwater Care Group v Rossiter  WASC 229
Nursing care group, Brightwater Care, asked the Western Australian Supreme Court whether it was legally obliged to comply with the directions of Christian Rossiter, a quadriplegic, to cease the provision of treatment which maintained his existence or, alternatively, whether it was legally obliged to continue to tube-feed him. Rossiter had only limited foot movement and the ability to move one finger. He was only able to talk through a tracheotomy. He was unable to eat or drink, and received nutrition and hydration through a gastrostomy tube. However he had full mental capacity. The Supreme Court held that Rossiter was able to decide if he was to continue medical care and that his carers had to abide by his wishes. Brightwater would not be criminally responsible for following his instructions.
R v Nielsen  QSC 29
Merin Nielsen was the first person, in Queensland, convicted for aiding suicide (s 311). In 2012, Nielsen was convicted for supplying a lethal drug to Frank Ward who requested and used it to take his own life. Ward had suffered two strokes by the time of his death in 2009 but was still able to care for himself. The personal financial interest which Nielsen had in Ward’s death, as the sole beneficiary of his will, and the absence of a close, altruistic relationship between Nielsen and Ward were key factors in the Court’s decision. Nielsen was sentenced to 3 years imprisonment, with a parole release date after serving six months: Click here to view.
Q on the appn of Nicklinson v MOJ, Q on the appn of AM v DPP  EWHC 2381
In the United Kingdom, euthanasia is prohibited under s 2 Suicide Act 1961. Tony Nicklinson, who suffers from locked-in syndrome, sought to overturn this by seeking declarations from the High Court that any doctor who ended Nicklinson’s life, with his consent, would not be charged with murder. Nicklinson argued that the law’s obstruction on his decision to die is a violation of his right to 'private and family life'. The Court held that it would not allow euthanasia as a defence to murder because such a change would need to be made by Parliament.
Carter v Attorney-General for the State of Queensland  QCA 140
Following the express wishes of two heroin addicts, the appellant injected heroin into their arms with the intention to kill them. One victim died immediately while the other was found dead the next morning. The prosecution did not accept a plea of not guilty and the appellant was convicted of the murder of the second deceased and sought the exercise of the pardoning power. The application was refused and a subsequent review of the decision was found to lack merit. The appellant appealed against this dismissal. The central contention on the part of the appellant was that the law was wrongly applied with respect to causation. The Court noted that no articulation of the common law of causation supported the argument that where a person does the act, which is a significant or substantial cause of the death of another, and intends to do so, it is not murder, notwithstanding that moral, ethical or other persuasive forces might be operating on him or her. The appeal was dismissed.
Questions to think about ...
- Should people have the right to determine how and when they die?
- Would it be better to legalise euthanasia so that it can be practiced within strict guidelines (rather than illegally without any guidelines)?
- How can legal euthanasia be monitored so as not to be misused?
- Is helping someone die (active euthanasia) different from letting someone die (passive euthanasia), in both a legal and moral sense?
- Should medical practitioners be less or more culpable than an ordinary person?
- Since suicide isn't against the law, why should it be illegal to help someone commit suicide?
Section 5 of the Marriage Act 1961 (Cth) legally defines marriage as ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’. This definition thus prohibits same-sex marriage. Same-sex couples are therefore restricted to being in a de facto relationship, which is defined as a relationship that bears the hallmarks of marriage but has not been formalised through a marriage ceremony. Although, in most instances, de facto couples have similar rights to those of married couples, within Queensland the absence of a ‘relationship register’ means that couples are required to repeatedly prove their de facto status.
The Same-Sex Relationships (Equal Treatment in Commonwealth Laws — General Law Reform) Act 2008 (Cth) amended 84 federal laws as a result of an inquiry into discrimination against same-sex couples and their children by the Australian Human Rights Commission. However, despite these amendments, in defining ‘marriage’ in this manner, same-sex couples are effectively denied the choice of formalising their relationship through marriage.
Marriage Act 1961 (Cth)
Same-Sex Relationships (Equal Treatment in Commonwealth Laws — General Law Reform) Act 2008 (Cth) — An act to address discrimination against same-sex couples and their children in Commonwealth laws.
Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 553: McHugh J foreshadowed that the concept of marriage may evolve and indicated that ‘arguably ‘marriage’ now means, or in the near future may mean, a voluntary union for life between two people to the exclusion of others’.
Questions to think about ...
- The prohibition of same-sex marriage has implications, for example, upon the legitimacy of any children resulting from the union of a same-sex couple as children whose parents are not married are technically ‘illegitimate’. Is this an issue? What rights does marriage confer upon a couple that are denied to a same-sex couple in a de facto relationship?
- Does the definition of ‘marriage’ in section 5 of the Marriage Act 1961 (Cth) offend Article 26 of the International Covenant on Civil and Political Rights which states that ‘all persons are equal before the law and are entitled without any discrimination to equal protection of the law’? Should traditional notions of marriage continue to take precedence even at the risk of discrimination against same-sex couples?
- Similar debates regarding same-sex marriage have transpired overseas and have resulted in the recognition of same-sex marriages and/or civil unions within numerous countries such as Canada, South Africa, France, New Zealand, the United Kingdom and several states within the United States. Should Australia follow suit?
- The Same-Sex Relationships (Equal Treatment in Commonwealth Laws — General Law Reform) Act 2008 (Cth) aimed to eliminate discrimination against same-sex couples across areas such as social security, taxation, superannuation, aged care, child support, immigration and veterans’ affairs. Can you justify granting same-sex couples similar rights to those of opposite-sex couples in respect of some legislation, yet denying them the opportunity to formalise their relationship through marriage under the Marriage Act 1961 (Cth)?
- Churches have expressed concerns about the possible erosion of the institution of marriage if same-sex unions are recognised. Furthermore, they have indicated that same-sex marriage is contrary to Christian teachings and is not intrinsically procreative. Are these views still valid in contemporary society?
Rape is considered to be a serious crime in the eyes of society and the law. The precise definition of rape varies across Australian jurisdictions. However, all state legislation deems rape to be an act of non-consensual sexual penetration. The Australian Bureau of Statistics records that 4, 221 rapes were reported in 2005.
Criminal Code Act 1899 (Qld)
s 348 Meaning of Consent: Consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent.
s 349 Rape:
- Any person who rapes another is guilty of crime. The maximum penalty is life imprisonment.
- A person rapes another person if —
- the person has carnal knowledge with or of the other person without the other person’s consent; or
- the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent; or
- the person penetrates the mouth of the other person to any extent with the person’s penis without the other person’s consent.
s 24 Mistake of fact: A person is not criminally responsible for an act or omission if they acted under an honest and reasonable, but mistaken, belief that the complainant had consented.
s 210 Indecent Treatment of Children Under 16
s 578 Offences of a Sexual Nature: A person can be charged • with an offence of a sexual nature if they have unlawful carnal knowledge with or of a child under the age of 16 years.
R v Mrzljak  QCA 420
The rape victim was intellectually impaired with an IQ of 52, giving her a mental age of between 6 and 10 years. However, the defendant was also mentally impaired and unable to speak English, thus it was argued that he was unable to detect the victim’s mental disabilities and her inability to give consent. It was found that the defendant’s mental disability could not contribute to the defence of mistake of fact under s 24 Criminal Code as the mistake must have been one of a reasonable person. Thus, initially, the defendant was found guilty on two counts of rape. However, the court allowed the defendant’s appeal. The convictions were quashed and a re-trial was ordered due to erroneous directions regarding consent that had been given by the trial judge to the jury.
R v Soloman  QCA 244
S claimed that after a Christmas party for her softball team she went to sleep. Her coach stayed the night as he lived some distance away. Afterwards, she woke up to find her softball Coach, Soloman, raping her. However, Soloman claimed that she was awake at the time and he believed she had consented, that is, S had given unmistakable, but intoxicated consent. At trial, the jury found Mr Soloman to be guilty. An appeal by Solomon was granted because the jury at trial was not directed to consider whether there was an honest and reasonable, but mistaken belief that S was consenting (s 24 Criminal Code).
R v Shaw  1 Qd R 641
Davies and McPherson JJA said in relation to consent, that, “[a] complainant who at or before the time of sexual penetration fails by word or action to manifest her dissent is not in law thereby taken to have consented to it. Failing to do so may, however, depending on the circumstances, have the consequence that at the trial a jury may decide not to accept her evidence that she did not consent.” The jury found that, because of the situation of intimidation and fear, the woman had not given consent.
Questions to think about ...
- In light of modern social practices whereby teenagers are allegedly undertaking sexual intercourse at a younger age, should the age of consent be lowered from 16 years, to a younger age?
- The majority of rapes are not reported. What are the reasons for this? For example: Do victims feel that the police are unapproachable? Or are they concerned they will be stigmatised or not believed by other community members and traumatised through a lengthy trial?
- The nature of court processes often means that rape victims feel as though they are on trial when giving evidence due to the personal nature of the crime. How can the court process be altered in order to respond to this concern?
- Although there is no requirement for corroborating evidence of the complainant, as a matter of practice a trial judge should warn a jury of the dangers of convicting the defendant on the uncorroborated evidence of the complainant. What difficulty does this pose for the victims of rape in securing a conviction?
In undertaking the process of sentencing judges are granted a wide degree of discretion in order to ensure the imposed sentence responds to the particular circumstances of the offender. However, in order to ensure consistency, the discretion of judges is constrained primarily through the imposition of statutory maximum or mandatory penalties associated with a particular offence.
The Penalties and Sentences Act 1992 (Qld) (PSA) serves as the primary piece of legislation governing sentencing and in Section 9(1) sets out five, at times conflicting, purposes for which a sentence can be imposed namely, just punishment, rehabilitation, deterrence, denunciation and community protection. Moreover, in order to ensure that the sentence accords with the particular circumstances of the offence and offender, section 9(2) defines mitigating and aggravating factors which the court must have regard to in determining the appropriate sentence.
In determining the appropriate penalty, judges have a further discretion as to whether to record a conviction, make a non-contact order, impose a fine, make an intermediate order (such as probation or community service orders), make an intensive correction order (or home detention order) or whether to impose or suspend a period of imprisonment. Additionally, in prescribed circumstances the court must declare that an offender is convicted of a serious violent offence.
Perhaps more controversial is the ability of the courts to impose indefinite sentences upon violent offenders thus potentially conflicting with notions of finality and just punishment in favour of community protection (PSA, Part 10). Similarly, the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) allows the Supreme Court to post-sentence preventative detention or supervision of sex offenders who pose a serious danger to the community if released at the conclusion of their sentence.
Penalties and Sentences Act 1992 (Qld)
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)
Ryan v The Queen (2001) 206 CLR 267
The appellant, a priest, was convicted of numerous sexual offences. During sentencing, the judge refused to consider the appellant’s otherwise good character. A majority of the High Court of Australia held that the sentencing judge erred in failing to consider and take into account the appellant’s otherwise demonstrated good character. However, the weight given to good character will vary according to the circumstances of the case.
Fardon v The Attorney-General (Qld) (2004) 223 CLR 575
The appellant, Fardon was sentenced to 13 years imprisonment for rape and after being released for parole committed further offences of rape and assault and was sentenced to 14 years imprisonment. The Attorney-General made an application under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), prior to the expiration of Fardon’s sentence, for an order that Fardon be detained indefinitely. Fardon subsequently challenged the constitutional validity of the Act; however the High Court of Australia upheld its validity and indicated that it was ‘designed to achieve a legitimate, preventative, non-punitive purpose in the public interest’.
R v Amituanai (1995) 78 A Crim R 588
The accused was a university student and martial arts expert who after completing exams was involved in an altercation at a taxi rank. He was convicted of grievous bodily harm for causing (through kicking) the victim to suffer brain damage and sentenced to 3 years imprisonment. This decision of the Queensland Court of Appeal highlights the relevance of general deterrence as a function of sentencing in this case the Court focused upon the ‘need to deter loutish behaviour in the streets by intoxicated young men’.
Questions to think about ...
- The ability to impose indefinite sentences as well as the powers conferred by the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) rely substantially upon the ability to conduct an accurate risk assessment of the offender. In effect, offenders are being punished for future crimes that they may commit rather than for the crimes they have committed, thus potentially infringing their civil liberties. Fardon v Attorney-General (Qld) (2004) 223 CLR 575 serves as an example of this.
- A suspended sentence is a sentence of imprisonment which is only served if an offender commits another offence during a defined period. In 2006 the Victorian Sentencing Advisory Committee recommended the abolition of suspended sentences partly in response to community concerns that suspended sentences amounted to virtually no punishment at all. Should a similar approach be adopted in Queensland?
- In R v Fernando (1997) 95 A Crim R 533 it was stated that a maximum penalty is reserved for the worst category of cases for which the penalty is prescribed. However, in Veen v The Queen (No 2) (1988) 164 CLR 465 at 478 the High Court of Australia noted that ‘ingenuity can always conjure up a case of greater heinousness’. When and in what circumstances should a maximum penalty be invoked? What is the role of the community and the media in determining when this threshold is reached?
- Should judicial discretion be further limited through the imposition of minimum sentences?
A surrogacy agreement occurs where a woman agrees to bear a child for another person. Surrogacy is classified as a ‘reproductive technology’ which often involves the use of artificial insemination to induce pregnancy. Previously, surrogacy agreements were illegal under Queensland law. However, the introduction of the Surrogacy Act 2010 (Qld) legalises non-commercial (or altruistic) surrogacy arrangements, whilst commercial surrogacy arrangements, whereby a person receives a payment, reward or other material advantage (other than reimbursement of surrogacy costs) as a result of entering into a surrogacy arrangement, are prohibited.
Furthermore, the Act recognises the rights of the ‘intended parents’ of non-commercial surrogacy arrangements by enabling them to apply to the court for a parentage order, which results in the child legally becoming the child of the intended parents and ceasing to be that of the birth parent. Although, a non-commercial surrogacy arrangement is no longer illegal in Queensland, it remains unenforceable. Therefore, even if the parties have a written agreement establishing the terms of the surrogacy, neither party can rely upon the agreement to enforce the surrogacy arrangement. As a result, disputes may occur as the intended parents do not have prima facie rights to the child.
Surrogacy Act 2010 (Qld)
Re Evelyn (1998) 145 FLR 90 — A woman who was a party to a surrogacy agreement and who had given birth to a child removed the child from the care of the commissioning parents. After considering the best interests of the child, the court gave primary custody to the biological mother and her partner.
Questions to think about ...
- As non-commercial (or altruistic) surrogacy agreements are unenforceable, they can not be relied upon if the birth parents refuse to give the child to the intended parents or if the intended parents refuse to take the child. Consider the implications of this and whether non-commercial (or altruistic) surrogacy agreements should remain unenforceable.
- The Surrogacy Act 2010 (Qld) does not restrict who can enter into a surrogacy agreement and thus enables a couple, either married or de facto (same-sex or heterosexual) or a single male or female, to become the ‘intended parents’ and apply for a parentage order. This move has both won praise and garnered criticism. Is this desirable and how does this sit given the prohibition on same-sex marriage?
- Each State and Territory is currently responsible for implementing its own legislation with respect to surrogacy, thus resulting in significant differences between the jurisdictions. Consider whether uniform legislation should be adopted in order to reconcile these differences.
- Commercial surrogacy, although illegal in Australia, is legal within some states in the United States of America. Should a distinction between commercial and altruistic surrogacy be made? Discuss the public policy and ethical arguments both for and against this practice.
- Should the child have the right to know the identity of their biological mother
A taser is a hand-held conducted device that uses electricity to immobilise a person. In Queensland the significant number of deaths caused by police shootings prompted the introduction of tasers as a safer and more effective means of arrest. The use of tasers by police officers was introduced in Queensland in January 2009.
Police Powers and Responsibilities Act 2000 (Qld) (‘PPRA’)
- s 615 Power to use force against individuals
- s 616 Power to use force against individuals in critical situations
The PPRA regulates the actions of police officers in Queensland and provides strict guidelines which police must strictly adhere to. The use of tasers is governed by ss 615 and 616, which limit the police power to use force against individuals to whatever is “reasonably necessary” in fulfilling their duties. Importantly, s 616 provides that in critical situations, this power extends to include use of force that is likely to cause grievous bodily harm or even death.
The Brandon Incident
The taser-related death of Antonio Galeano in North Queensland on June 12, 2009 prompted an investigation into, and suspension of, the use of tasers by Queensland police officers. Galeano was armed with an iron bar when confronted by the police and after the use of capsicum spray by police failed to subdue him, tasers were employed. Whilst initially police alleged only 3 shots were fired, later evidence revealed 28 shots were used. However, it is unknown how many of these actually made contact with Mr Galeano. The matter is being investigated by the Queensland Police Service Ethical Standards Command on behalf of the Deputy State Coroner with oversight by the Crime and Misconduct Commission. The suspension of taser use has since been lifted in Queensland.
The Brandon Incident is the third taser-related death in Australia.
Questions to think about ...
- Is the use of tasers justified given the fact that they cause significant pain and harm to an individual who has not yet been convicted of a crime?
- Conflicting views have emerged as to whether a causal link can be established between tasers and death. In particular, there is evidence that individuals with existing heart conditions, the young and elderly, pregnant women and those who are mentally ill are at an increased risk of serious injury or death due to the use of tasers. Should the use of tasers be restricted to individuals who do not fall within this vulnerable class? See a reference to Jennifer Edinger, Sandra Boulter ‘Police use of TASERs in the restraint and transport of persons with a mental illness’ (2011) 18 Journal of Law and Medicine 589.
- The United Nations is concerned that tasering may amount to torture. As a signatory of the United Nations Convention Against Torture should Australia be permitting the use of tasers?
- There is evidence to suggest that tasers are misused and often employed in situations where tactical communication skills could be utilised instead. How can it be ensured that tasers will not be unnecessarily used as a weapon of first choice?
- Police officers are entitled to use ‘reasonably necessary force’ against individuals (see section 615 PPRA). How is it determined whether and in what situations the use of tasers constitutes ‘reasonably necessary force’?
A fundamental feature of criminal justice in Queensland is that defendants should be judged fairly and impartially by a jury, that is, “a panel of ordinary and anonymous citizens, assembled as representative of the general community, at whose hands neither the powerful nor the weak should expect or fear special or discriminatory treatment”: Brown v The Queen (1986) 160 CLR 171 per Deane J.
Trial by jury was introduced into Queensland in 1859 upon its separation from New South Wales. It is a mode of hearing criminal matters whereby the case is determined by a judge and jury and is reserved for the more serious offences. In criminal trials the jury consists of 12 persons. Generally, the judge decides questions of law, such as the admissibility of evidence. In contrast, the jury decides questions of fact from the evidence presented. For example, in a murder case, the jury may have to determine whether or not the defendant shot the victim. After the closing of evidence, the judge sums up the evidence from the case and instructs the jury by giving directions on the law that is applicable. After receiving these instructions the jury is able to consider their verdict by applying the law to the facts. In some cases, the jury’s verdict must be unanimous in order to find the defendant guilty e.g. murder. In other cases, a jury may be asked to deliver a majority verdict if it is unable to reach a unanimous verdict.
Each juror is required to swear an oath or make an affirmation that they will determine their verdict according to the evidence and not by implication, and that they will keep their deliberations confidential.
Criminal Code Act 1899 (Qld) s 604; Supreme Court Act 1995 (Qld) s 203; District Court of Queensland Act 1967 (Qld) s 65
- In Queensland, all indictable offences (defined in s 3(3) Criminal Code (Qld) as crimes and misdemeanours) are heard by a jury trial in either the District Court or the Supreme Court. However, some indictable offences may be heard by a judge sitting alone without a jury.
Criminal Code Act 1899 (Qld) s 604
- The right to trial by jury in Queensland
Jury Act 1995 (Qld)
- s 33 The jury for a criminal trial consists of 12 persons. But note: s 57 (less than 12 possible); s 34 (up to three reserve jurors possible).
- Pt 5 Div 6 Selection of jury
- Prospective jurors are randomly chosen from the Electoral Roll and then summoned for jury service. A person who is summoned for jury duty has an obligation to comply or otherwise face penalties.
- The Act provides mechanisms for both the prosecution and defendant to challenge the empanelment of prospective jurors: See s 42 (peremptory challenges); s 43 (challenges for cause) and s 4(1) (qualification to serve as juror),
- s 50 Jury to be sworn
- s 59 Verdict in criminal cases for particular offences must be unanimous
- s 59A Verdict in criminal cases for other offences (majority verdict)
- s 70 Confidentiality of jury deliberations
R v Ferguson  QDC 158
The defendant, Ferguson, applied for a permanent stay of a charge of indecent treatment of a child due to adverse pre-trial publicity. The judge accepted that after proper judicial directions a jury could be relied upon to avoid giving effect to residual impressions of the adverse pre-trial publicity. Furthermore, he refused to grant a permanent stay as section 47 of the Jury Act 1995 (Qld) had not been ‘deployed’ by the trial judge. Section 47 explicitly recognised the impact of prejudicial pre-trial publicity and provided that questions may be asked of jurors during the jury selection process in order to ascertain whether or not they are impartial.
Myles and Myles  1 Qd R 199
Two brothers appealed against their conviction for the possession of cannabis on the basis that the jury improperly had access to information that was not in evidence. Some of the jury members had conducted their own investigations at the scene of the crime without authorisation. The Queensland Court of Appeal was reluctant to inquire about a jury’s deliberations and held that although the behaviour was inappropriate, it did not impact upon the ultimate verdict or result in a loss of a real chance of acquittal.
R v Long; Ex parte Attorney-General (Qld)  QCA 77
Robert Long was convicted of murder in relation to the arson that occurred in June 2000 at the Palace Backpackers’ Hostel in Childers which resulted in the death of 15 residents. Long appealed against the conviction on the grounds that there was a miscarriage of justice as a result of substantial pre-trial and internet publicity. The Queensland Court of Appeal dismissed the appeal and held that the pre-trial publicity did not cause a miscarriage of justice as the trial judge gave directions in order to counter the prejudicial effect of the publicity and there was a change of venue of the trial. Furthermore, there was a lapse of time of 1.5 years between the publicity and trial which meant that it was unlikely that the jury would remember the publicity and any internet access to the material did not create a substantial risk of an unfair trial.
Questions to think about ...
- Under Criminal Code Act 1899 (Qld) s 615(4)(a), the court may make a no jury order if it considers that the trial, due to its complexity or length, is likely to be unreasonably burdensome to a jury. Does this infringe an individual’s right to a trial by jury, or is this qualification necessary in order to ensure a fair trial?
- Jurors are randomly selected members of the community, generally having limited knowledge about the complexities of the law. Yet the role of the jury is crucial in determining the guilt or otherwise of the defendant. What are some ways in which the courts can assist the jury in order to best perform its duty?
- Sometimes the jury will sit on trial for a high profile case that is covered extensively by the media. However, the jury is only permitted to make factual determinations based on the evidence presented before the court (not based on what is being portrayed in the media). What avenues are open to a trial judge in such a high profile case, to ensure the jury is free from prejudice and external influences?
- Due to the high cost involved in the use of juries, should judge alone trials be the default position and jury trials be invoked only on rare occasions? Consider the purpose of a trial by jury.
Over the past 30 years tissue and organ transplant technology has advanced rapidly. One donor can save the lives of up to ten people and significantly improve the life of many others. However, there is still a worldwide shortage of organs for transplant. Australia in particular, has one of the lowest donation rates among developed countries. It seems that Australian’s attitudes are shifting more towards donation, with the number of donors steadily rising over the past decade. There are two types of donations: living donation and deceased donation.
Living donation is where a healthy living person donates. For adults this is not a contentious issue. In order for a living adult to donate he/she must:
- Be 18 years of age or older;
- Be of sound mind;
- And consent must be freely given
Transplantation and Anatomy Act 1979 (Qld) s 10
Living donation is a more contentious topic when it comes to children, due to their possible lack of capacity to consent. Under the Transplantation and Anatomy Act 1979 (Qld) s 12B, a parent can give consent for a child to donate under special circumstances:
- Both parent and child are of sound mind;
- It is certified by a designated officer;
- And the transplant is for a brother, sister or parent
In addition to this the child must be have Gillick competence. This is a concept that came from the case Gillick v West Norfolk and Wisbech Area Health Authority  3 All ER 402, which means that they must have a full understanding and appreciation of the consequences of the treatment and the consequences of a failure to treat. The court must always act in the best interests of the child.
In some cases, parents have used pre-implantation genetic diagnosis (PGD) to determine whether an embryo created by in vitro fertilisation (IVF) can be a matching donor child (or saviour sibling) for a sick child. In addition to consent issues, there are other ethical issues. Embryos that do not match the sick child are destroyed or donated to medical research or another family. There can be long term health consequences for the mother and child. There is a danger that the saviour sibling could be viewed as a commodity rather than a person. Also, there is concern for the vulnerability of the donor child. It could be argued that the donor child could endure lifelong testing and harvesting which can be detrimental to that child, although he or she may gain a sense of self-worth and an enhanced relationship with their sick sibling.
DECEASED DONATION is where a deceased person donates. There are two competing issues when it comes to the consent of deceased person to donate. The first approach is the ‘opt-in’ approach where it should at the individual’s initiative that they give up their organs. The other approach is the ‘opt-out’ or ‘presumed consent’ approach where the onus is placed on the individual to refuse the donation.
In Australia the current position is the opt-in approach. Section 22 of the Transplantation and Anatomy Act 1979 (Qld) states that if a deceased person is in hospital an authorised officer (eg a doctor) can authorise a donation if the deceased person has not expressed objection during their life time and the next of kin give consent. However, statistics have shown that only 40 per cent of Australians don’t know what their loved ones wishes were. When the decision is left to next of kin, only 58 per cent of families consent to donation. People can sign up with the Australian Organ Donor Register, which is a register of a person’s consent to donate.
Many countries in Europe have an opt-out approach. In 2008, Spain had 34.4 donors per million people (dpmp); Australia had an average of 14 dpmp inhabitants. On the other hand Greece has an opt-in donation system and had 5.6 dpmp; the United States of America has an opt-in approach and had the second highest donor rate in the world at 26.6 dpmp.
Transplantation and Anatomy Act 1979 (Qld)
Re GWW and CMW (1997) FLC 92-748 (living donation)
A boy was a potential bone marrow donor for his aunt. The child was not deemed to be Gillick competent. Hannon J stated that it was necessary to decide whether this was a special case that was outside the scope of the parent’s power to consent. To determine this he looked at what was in the best interest of the boy. The minimal risk and consequences to the child were outweighed by the psychological benefits in helping his aunt. The donation was authorised.
Re Inaya (2007) 213 FLR 278 (living donation)
Parents of a child wanted the court’s authorisation for their child to donate bone marrow to her infant cousin. The Human Tissues Act 1982 (Vic) (the Victorian equivalent of the Transplantation and Anatomy Act 1979 (Qld)) did not allow donations to be made to anyone other than a brother, sister or parent. The Court looked at the type of procedure saying it was routine with minimal risks. The Court also believed the donor child could suffer psychological harm from guilt, self-blame and exposure to a traumatised and grief-stricken family and community, as well as the loss of important relationships if the procedure was not performed. The donation was authorised.
Quintavalle v Human Fertilisation and Embryology Authority  UKHL 28 (Saviour Siblings)
Raj and Shahana Hashami had a son, Zain, who had a genetic blood disorder. He needed a suitable tissue donor. The couple gave birth to another child, Haris, but he was not a tissue match for Zain. They failed to find a donor, so they want to the Human Fertilisation and Embryology Authority (HFEA) asking for permission to carry out PGD so that their next child would be disease free and be a blood batch for Zain. HFEA gave this permission. A pro-life group, Comment on Reproductive Ethics (CORE), argued that they were not carrying out PGD for an approved purpose under the British Law. The House of Lords said that HFEA had the power to grant the licence to the Hashamis.
Questions to think about…
- Should a child be allowed to consent to donating tissue
- At what age is a child capable of understanding the implications of tissue donation?
- Should children be allowed to donate to anyone (not just an immediate family member)?
- What are the competing arguments for opt-in and opt-out donation systems?
- Will the opt-out approach really increase the amounts of donor organs/tissues available?
- What other executive/legislative initiatives can increase the rate of organ donation?
Civil Negligence can generally be established through finding an existing duty of care has been breached and that damage has resulted.
Prior to the late 1990’s the medical world took a very paternalistic approach to patient care. For instance, doctors routinely only informed patients of risks that they felt the patient should be aware of before consenting to treatment. Medical law now takes a more patient centred approach and requires doctors to inform patients of risks that the patient would attach significance to.
- S9(1) and (2) — general principles of Breach of Duty
- S11 (a) and (b) — general principles of Causation
- S22 — standard of care for professionals
(1) A professional does not breach a duty arising from the provision of a professional service if it is established that the professional acted in a way that (at the time the service was provided) was widely accepted by peer professional opinion by a significant number of respected practitioners
Rogers v Whitaker (1992) 175 CLR 479
Whitaker (the patient) underwent surgery on her right eye, in which she was “almost totally blind” from the age of 9. Before the surgery the patient “incessantly” asked Rogers (the surgeon) about possible complications. Rogers did not mention the risk of going blind in both eyes because he believed that the risk was so small it would not occur. Unfortunately, Whitaker went blind both eyes due to the surgery. The High Court found that Rogers had correctly conducted the procedure. Thus, the court dismissed Whitaker’s claim that Rogers had breached his duty of care and caused harm in the operation. But Rogers was found to be negligent in not informing Whitaker about the possibility of going blind in both eyes when Rogers was aware that Whitaker would not have gone through with the procedure had she known about the risk to both her eyes.
Wright v WA Country Health Service  WADC 46
Wright (the patient), a normally healthy man, presented himself to the Accident and Emergency Department of the Broome Regional Hospital with severe stomach pains. He was discharged too early from the Emergency Department and sent home on foot. Two days later he returned to the Emergency Department in severe respitaroy distress and had to be flown by the Royal Flying Service to the Perth Hospital where he was admitted into Intensive Care. The District Court of Western Australia found for Wright and he was awarded $37 500 in damages for civil negligence.
Questions to think about…
- Litigation is increasing in Queensland. Should doctors focuse on getting the best outcome for their patient, or should they instead protect themselves from litigation?
- If a patient only inquires generally about complications, rather 2. than making it clear that they are interested in one particular complication, why should a doctor be liable for not mentioning that particular complication?
The adversarial system is a fundamental part of the Australian legal system. It was inherited as part of the common law legal system from the United Kingdom on English settlement of Australia.
The adversarial system (as opposed to an inquisitorial system) is a court process where two opposing parties, usually represented by lawyers, must persuade an impartial judge that their version of the facts, which they have separately established prior to the court hearing, is more persuasive than their adversary’s argument.
An inquisitorial system, on the other hand, is the court process whereby the judge and the parties actively seek the truth of the case together. This joint effort means that the court is not confined to two accounts of the case, as in an adversarial system. Countries which use the adversarial system include Australia, the United States of America and England. Countries such as France and Germany use the inquisitorial system.
Role of the judge in an adversarial system
The adversarial system mandates that the judge must make a decision based only on the evidence put forward by the two parties, and must not prepare their own investigations into the disputed matter. Hence, the burden is solely on the representatives of the individual parties to actively lead their case. The judge must only be an impartial adjudicator. Owing to these strict boundaries in tasks, the rules of evidence in an adversarial system are vast and complicated.
In an inquisitorial system, however, the judge is expected to play an active part in establishing evidence (for example, through questioning witnesses) in order to reach a final decision on the case. Hence, there are fewer rules of evidence as all participants share the same burden of establishing the truth.
Role of the jury in an adversarial system
The jury can only decide questions of fact based on the evidence presented by the advocates of the parties. As conflicting accounts of facts are usually presented in the adversarial system, the jury is crucial in deciding which facts are more credible. The jury consists of lay-people.
This is in contrast to the inquisitorial system. As the inquisitorial system is based on all the court participants arriving at the conclusive truth of the facts together the use of juries is rare. Where one is required, the jury is made up of people qualified in the field of that dispute.
Role of legal representation in an adversarial system
Solicitors and barristers are officers of the court. This means that, despite being advocates of their clients, they have an overriding duty to the court. Advocates must remain honest and responsible in their management of the case. This duty is foundational to the adversarial system – because the judge does not undertake any fact-finding, the system is dependent on the proper conduct of the advocates to present the court with truthful and relevant information.
Advantages of the adversarial system
As the judge is not actively involved in investigating the case, this will minimise predispositions in the ultimate decision of the case.
The adversarial system provides the accused with the right to silence when questioned by legal authorities. The right to silence is fundamental as it protects the accused from self-incrimination. Conversely, as an inquisitorial system requires all parties to be jointly involved in establishing the evidence, this right of silence is not available.
Disadvantages of the adversarial system
As the court is confined to two versions of the case in an adversarial system, this may result in a skewed version of the truth.
As an adversarial system is based on the better advocate succeeding, this has caused concerns that the party who is able to afford superior legal representation is more likely to succeed. Self litigants are at a considerable disadvantage.
Questions to think about…
- In a criminal trial, the Prosecution, on behalf of the Crown, has arguably more resources and means to discover evidence than a defendant. Does this imbalance of resources mean that the State is favoured under an adversarial system? Would an inquisitorial process address this?
- What measures already exist which allow a judge to play a more active part in a trial where a defendant is unrepresented with minimal experience in a courtroom? What are some other ways which the judge can assist to minimise the disadvantages of the adversarial system on an unrepresented defendant?
This technology involves the development of stem cells into specialised cells where they can then multiply. Stem cells can potentially 1) assist research on the link between stem cell separation and life-threatening diseases such as cancer, and 2) as they regenerate into specialised cells, can replace the damaged cells in people suffering from numerous medical conditions including diabetes, Parkinson’s disease, and spinal cord injury.
Stem cells used for research purposes are obtained from adult stem cells (aSC), core blood stem cells (cbSC) and embryonic stem cells (eSC). Embryonic stem cells are only found at the embryonic stage of development. They are regarded as pluripotent, due to their capability of developing into any cell type in the body. Conversely, adult stem cells are located in adult and foetal body tissue and umbilical cord blood. Furthermore, they are generally restricted to differentiating into the cell types from their tissue of origin, and are considered multipotent.
Embryonic stem cell research requires destroying the embryo. Thus, legislation regarding its use is highly controversial. Adult stem cell technology doesn’t require the use of embryos and is currently used in the treatment of a wide field of diseases. Due to the destructive nature of embryonic stem cell research, opponents argue that this technology is immoral because of the potential loss of life. However, proponents argue for the liberalisation of embryonic stem cell research laws because of the significant potential benefits in treating diseases, replacing damaged cells and in producing blood products. Proponents also argue that excess embryos created as a result of assisted reproductive technology have no potential of achieving life as they are already scheduled for destruction. Instead, these embryos could be donated to research purposes.
Cloning has become one of the most contentious legal and moral issues with the recent scientific advancements allowing the procedure to move beyond the realms of science fiction into reality. To date, human cells and organisms such as animals, including ‘Dolly’ the sheep, have been successfully cloned, however a human clone has not yet occurred.
Although supporters of cloning argue its relevance is vital due to the invaluable medical advancements it will make possible, opponents are concerned with the significant unpredictable medical and physical consequences that could result.
The procedure of cloning involves replicating a copy that has genetically identical DNA to the original.
Therapeutic cloning involves the nuclear transfer of the donor’s own cells into a fertilized egg of which the genetic material has been removed. The donor’s disease can then be treated with stem cells obtained from this embryo.
Reproductive cloning is where a cloned embryo is implanted into a female uterus and allowed to develop naturally.
Transplantation and Anatomy Act 1979 (Qld)
- Australian scientists may use excess assisted reproductive technology embryos for research, create embryos for the sole purpose of research and create hybrid embryos for the testing of sperm quality. Reproductive human cloning is prohibited throughout Australia, however therapeutic cloning or somatic cell nuclear transfer (SCNT) is permitted. Animal reproductive cloning is also permitted.
- s 9 Offence — placing a human embryo clone in the human body or the body of an animal.
- s 18 Offence — developing a hybrid embryo except for the use of sperm testing.
- s 21 — It is prohibited to commercially trade human embryos.
- s 22 Offence — creating a human embryo other than by fertilisation, or developing such an embryo if the person is not authorized by a licence.
- Division 2 — A licence must be obtained from the National Health and Medical Research Council (NHMRC) Licensing Committee to use human IVF embryos for research or to perform somatic cell nuclear transplantation to obtain stem cells.
Early 1900’s – Adult stem cells first discovered.
1960’s – Adult stem cells used in procedures such as bone marrow transplants.
Late 1970’s – Discovery of cord blood cells.
Late 1990’s – Discovery of embryonic stem cells.
1996 – Dolly the sheep was the first animal to be successfully cloned.
1998 – American scientist, James Thomson successfully removes and propagates cells from embryos, creating the first human embryonic stem cell line.
2006 Japan – The first induced pluripotent stem cells (iPSC) were developed from mice.
2007 – Japanese and American scientists caused human skin cells to imitate embryonic stem cells.
2007 – US researchers successfully cloned the embryo of a primate species and extracted stem cells.
2008 – UK scientists cloned the world’s first human embryos using adult human cells as donor cells.
2009 – New York became the first state in the US to pay women for donating their eggs to stem cell research.
Questions to think about…
- Do the medical benefits of cloning outweigh the moral and ethical dilemmas it creates?
- Do the medical benefits of embryonic stem cell research outweigh the moral issues of destroying a human embryo?
- Is the destruction of an embryo the destruction of a life? Where does the law see human life beginning?
- How are religious beliefs impacting on such concerns? Should they be?
- Should the law lift the ban on scientists paying women for the donation of their eggs to stem cell research centres? Will compensation for eggs lead to financially-vulnerable women risking their health to donate for money? Or can compensation be justified by the invasive nature of the egg procuring procedure?
- It is legal for scientists to clone human embryos through somatic cell nuclear transplantation to obtain stem cells and for research? This technology is also capable of cloning entire living humans. How can the prohibition on human cloning be reconciled with the now-lawful cloning of stem cells?
- Will there be a necessity for cloned organisms in the future, such as livestock and grain foods, to feed a growing population? Will the law reflect such changes? Or are the risks too great, such as the safety of consumption of these foods and their risk to genetic diversity not being known?
The incidences of bullying vary across Australia, a study in 2009 finding 27% of students between years 4 to 9 were frequently bullied 1.
“Bullying” isn’t a legal concept and isn’t defined in legislation. Bullying manifests itself in numerous ways and can form the elements to a variety of criminal and civil wrongs including but not limited to; stalking, racial vilification, assault and defamation. New South Wales is the only jurisdiction in Australia to include specific provisions within its Criminal Act for assaults in schools.
The evolution of social networking and developments in technology has seen the incidences of “cyber-bullying” increase. These new technologies allow perpetrators to bully far beyond the school gate. There have been no cases before the courts in Australia on the issue of cyber bullying to date. However, there has been discussion on the legal implications this form of bullying poses.
- s 359A — Stalking
- s 245 — Common Law Assault
Crimes Act 1900 (Nsw)
s 60E Assaults etc at schools
- (1) A person who assaults, stalks, harasses or intimidates any school student or member of staff of a school while the student or member of staff is attending a school, although no actual bodily harm is occasioned, is liable to imprisonment for 5 years.
- (2) A person who assaults a school student or member of staff of a school while the student or member of staff is attending a school and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years.
Cox v State of New South Wales (2007) Aust Torts Reports 81-888.
In this case a plaintiff was awarded damages after developing recognised psychiatric injuries which were, in part, brought on by severe bullying in pre-school and early primary school. In this instance, the plaintiff had been unable to seek employment as an adult.
Gregory v State of New South Wales  NSWSC 559;
In this case a plaintiff was awarded in excess of $468,000 after developing post-traumatic stress disorder which was, in part, brought on by severe bullying whilst enrolled in High School. In this instance, the plaintiff had commenced his career as a teacher.
Questions to think about…
- How does Goldman’s 1954 novel Lord of the Flies demonstrate the issue of bullying?
- By the time a case for bullying reaches court the remedy sought is damages. Is this an appropriate remedy?
- How do you propose the law should address the consequences of bullying either through criminal or civil recourse?
- The standard of proof required in civil proceedings is on the balance of probabilities and in criminal proceedings it is beyond a reasonable doubt. What effect does this have on a victim seeking legal recourse?
- With school yard bullies being under 18, who is responsible for their actions? Is it the perpetrators themselves or should parents be held to account for the actions of their children? Should schools be held accountable for the actions of their pupils? If either parents or schools are to be held responsible, to what extent do they owe a duty to prevent or stop bullying?
- Cross, D., Shaw, T., Hearn, L., Epstein, M., Monks, H., Lester, L., & Thomas, L. 2009. Australian Covert Bullying Prevalence Study (ACBPS). Child Health Promotion Research Centre, Edith Cowan University, Perth.
Free online sources of legislation & cases
Cases are available from
- AUSTLII www.austlii.edu.au