Clem van der Weegen Barrister-at-Law in Beerwah, Queensland | Local service

Clem van der Weegen Barrister-at-Law

Locality: Beerwah, Queensland

Phone: +61 7 5494 0656

Address: Glasshouse Chambers 2/13 Turner St 4519 Beerwah, QLD, Australia

Website: http://www.scbar.com.au

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24.01.2022 USEFUL LEGAL TITBIT 5 Recently, Melania Trump came out and announced after Dr Christine Ford gave evidence of being sexually assaulted when she was 15 by now Supreme Court judge, Brett Kavanaugh, that women need "really hard evidence". Unfortunately, this sends out an extremely irresponsible and dangerous message to women. This comment seems to be saying that unless there are witnesses to a sexual assault or video evidence then no complaint would ever be successful. The who...le nature of this despicable crime is its insidious and secretive execution. Men do not seek out a public venue or commit these acts before impartial witnesses. They are committed in private or with willing co-offenders. Filming sexual assaults to be later used as evidence would be an exception rather than the norm. The message that Melania Trump was broadcasting is that if men sexually assault a woman in private with no witnesses then they've got no fear of prosecution because there's no "really hard evidence". It's either just one word against the other where 'I had consent' or 'I wasn't there' which will more than suffice for a defence. That is why the law has for centuries recognised recent complaint as an exception to the law against self corroboration and hearsay. The 'hue and cry' has always been an important indicator of a recent attack. The more responsible message that Melania Trump should be sending to women is that if you've been sexually assaulted, and there are no witnesses, report the crime as soon as possible. This will corroborate the complaint at law and allow police to immediately investigate and pin down a suspect before he has time to establish any false alibis. Dr Christine Ford's recent testimony is a lesson that an early complaint rather than no "really hard evidence" is the real focus. The message for women to avoid what occurred to Dr Ford is that if you are the victim of a sexual assault, and want the perpetrator prosecuted, report it early and get it investigated rather than worry if you have hard evidence. Men who sexually abuse and assault women need to be accountable for their actions rather than given the free rein that Melania Trump was suggesting.

24.01.2022 USEFUL LEGAL TITBIT 4 We often hear on American crime shows; "I don't wish to press charges, officer". Here in Australia, that is not the case - it is the state itself that 'presses' criminal charges with the victim being a compellable witness for the prosecution if the matter goes to trial. The exceptions are where it is necessary for the prosecution to prove that a defendant had no consent to either commit an assault or sexual assault (where there is no excessive or griev...ous bodily harm), or in cases of stealing that a defendant had no consent to take a victim's property. With these cases, it would be necessary for the victim to first make a complaint to the police before any charges are later 'pressed' by the state itself. In cases where consent is no defence, it is not necessary for the police to wait for the victim to make a complaint. This is particularly the case for serious assaults where there is a range of physical injury from excessive bodily harm to grievous bodily harm (GBH), and, of course, death. The leading case on this issue in Queensland is Lergesner v Carroll [1991] 1 Qd R 206 where it was held that in cases where a defence of consent is raised to assault causing bodily harm: 'it was for the tribunal of fact to decide in respect of the assault said to have been consented to whether the degree of violence used in the assault exceeded that to which consent had been given.' This ruling is significant in the context of sporting fixtures where there is an implied consent of physical assault which may result in some bodily harm; however, lack of consent could be inferred if a serious injury were occasioned that fell outside that sport's rules or exceeded what could be ordinarily expected in such sports. The recent case of Andrew Gaff punching Fremantle Dockers player Andrew Brayshaw in the mouth away from the play, and breaking his jaw in two places and displacing three lower teeth was clearly outside the rules of AFL. This was a case where consent would be no defence due to the excessive nature of the injuries. Indeed, if Brayshaw's injuries amounted to GBH, there would be no issue of consent at all. The fact that it was reported later that Gaff did not want to 'press charges' should not detract from the fact that this was an offence against the state, and not just an assault upon Gaff as a victim. It should be incumbent on the police in such circumstances to properly investigate such matters with a view of 'pressing' a charge on behalf of the state if the evidence supports it. Defences such as accident or consent (where applicable) are for a tribunal of fact to decide. In a climate of male violence where the coward punch has become the focus of a public campaign to prevent such violence, there are good public policy reasons for the police to enforce the law not only in the night-spot districts, but on the major sporting fields where young impressionable minds are watching.

22.01.2022 Queensland has added "reckless indifference to human life" to the definition of murder. Whilst this law was ostensibly passed with child killers in mind, it applies to all murders where this element is alleged. This is a significant reform for Queensland, which brings it into line with most other states. The adding of "reckless indifference to human life" to the definition of murder is not something that will catch inadvertence or inattention. This definition was definitivel...y determined by The High Court in R v Crabbe (1985) 156 CLR 464, where a truck driver deliberately drove his prime mover and trailer through the wall of a motel into a bar where people were. It was held at 469-470: 'The conduct of a person who does an act, knowing that death or grievous bodily harm is a probable consequence, can naturally be regarded by the criminal law as just as blameworthy as the conduct of one who does an act intended to kill or do grievous bodily harm . . . the word "probable" means likely to happen . . . It should now be regarded as settled law in Australia . . . that a person who, without lawful justification or excuse, does an act knowing that it is probable that death or grievous bodily will result, is guilty of murder if death in fact results. It is not enough that he does the act knowing that it is possible but not likely that death or grievous bodily harm might result.' Therefore, this is a high threshold to hold someone for murder for reckless indifference to human life. It is the difference between knowing that an act is likely to kill rather than the mere possibility.

18.01.2022 Unfortunately, in Queensland, there is no independent body that is dedicated to investigating complaints against individual officers for neglect, misconduct, or illegality. The Crime and Corruption Commission (CCC) will only investigate endemic corruption. If it is only a few officers, it is invariably sent back to the Ethical Standards Command to investigate themselves. This system is fundamentally flawed as it did not bother to speak with Jacqui herself. It is gobsmacking t...Continue reading

16.01.2022 DUEL CITIZENSHIP AND OUR INDEPENDENCE FROM THE UK There has been a lot of hand-wringing in some quarters after the High Court's recent decision to declare that five of the dual-citizenship seven were incapable of being chosen or sitting in parliament. Letter writers to The Australian are decrying the decision as our Founding Fathers were themselves all British Subjects at the time of drafting The Constitution - so why are we now in this fiasco? One previous decision that was ...relied upon by the Court was in Sue v Hill (1999) 199 CLR 462 where the Court there was at pains to explain the evolution of Australia as an independent sovereign nation. It determined that with the enactment of the Australia Act on the 3 March 1986 Britain became a foreign power, and as such, Mrs Hill who was still a British Subject when elected to the Senate at the time was incapable of being chosen according to s 44(i) of The Constitution. The enactment of the Australia Act on the 3 March 1986 was a significant constitutional development in the history of our nation and is akin to our declaration of independence. This should be taught to every school student in the country. So instead of our politicians being distracted by the 'brutality' of the High Court's ruling on s 44 of The Constitution, they should be educating themselves on the significance of our independence from Britain and celebrating. Bring on the Ashes!

16.01.2022 USEFUL LEGAL TITBIT 2 There is sometimes a misconception that there is a common law of Queensland, which only applies to Queensland. Except for cases solely dealing with the interpretation of Queensland legislation, this is not so. The High Court has on a number of occasions reminded intermediate appellant courts and trial judges that all State Courts operate under a unified legal system: the common law of Australia. The High Court has held in Farah Constructions Pty Ltd v Sa...y Dee Pty Ltd [2007] HCA 22 at [135] that State Courts "should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong". This principle, the court emphasised, also applies to non-statutory law. The decision in Farah at [134] and [158] also held that an intimidate appellant court or trial judge should not depart from any obiter dicta of the High Court where there is no other authority and the High Court has 'seriously considered dicta by a majority'. As with any case, it will always turn on its individual facts and whether it can be distinguished or, as stated in Farah, the previous interpretation by an appellant court was 'plainly wrong', or the majority dicta of the High Court itself was not 'seriously considered'. A number of commentators have already acknowledged the difficulties with the term 'seriously considered'. Perhaps some guidance from the High Court itself in such cases would be beneficial in the daily cut and thrust of litigation. Happy advocating. Clem van der Weegen Barrister-at Law

13.01.2022 The High Court, in the recent decision of Nguyen v The Queen [2020] HCA 23 at [36] has definitively settled the prosecutor's duty to call all available witnesses and tender all available evidence that is cogent and admissible unless there is a good reason not to. This applies to witnesses whose account may not assist the Crown's case. The prosecution cannot 'pick and choose' between statements which it says bear out its case and those which do not. Significantly, this view b...y the plurality appears to shift the prosecution away from its hitherto adversarial role, while maintaining its accusatorial role. Nettle J at [49]-[50] was troubled by this approach holding a dissenting view of such a course; however, he joined with the plurality in allowing the appeal for the reasons below. This decision primarily looked at whether the prosecution had a duty to tender an out-of-court statement (interview with the police) by the accused that contained both exculpatory (an explanation or excuse) and inculpatory (admissions) statements - being a mixed statement. Here, the accused contended that he 'threw the beer bottles' that allegedly caused the injury to the victim in self defence. The Crown declined to tender this statement for tactical reasons. The High Court held that in such a case, the prosecution was obliged to tender as it had a duty to conduct its case against the accused fairly. In Queensland, this decision now effectively overturns the decision in R v Callaghan [1993] QCA 419, which previously held that the prosecution were not obliged to tender a mixed statement in its case. The High Court in Nguyen held at [40]: "To do otherwise (not tender) would encourage juries to speculate as to whether the accused had given an account of their actions when first challenged by the police. The omission of that evidence may for this reason also work an unfairness to the accused." This is an important decision by the High Court that at [45] reaffirms the the responsibility and the duty of the prosecution: "to act to high professional standards and therefore to be concerned about the presentation of evidence to the jury. It is to be expected that some forensic decisions may need to be made. It is not to be expected that they will be tactical decisions which advance the Crown case and disadvantage the accused".

10.01.2022 Ipso facto, if any Saudi woman travelling alone (without a male guardian) is seeking asylum here then, as the Alqunun case has demonstrated, she should be granted her application. We know the atrocities facing such women if they were to be returned to this medieval and torturous regime. Australia has an obligation of non-refoulement as a signatory to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocols. This particularly applies to asylum seekers as... they may be assessed as refugees. It is an established principle of international refugee law that such people should not be returned or expelled pending a determination of their status. To hear reports of Border Force officers colluding with Saudi officials to have such people returned is a breach of our international obligations and unlawful. Such officers are acting outside their jurisdiction and as Commonwealth officers are fettering the discretion of those who are charged with that responsibility under the supervision of our court system. To put it simply, it's a disgrace that this is occurring.

10.01.2022 Welcome to this page. It features "Useful legal tidbits" which highlights various issues that have either recently arisen in the law or are of general interest. It is not meant to be legal advice. If any of these issues raises concerns for you in your individual circumstances you should seek independent legal advice.

09.01.2022 The Courier Mail reported this on Saturday the 28 September: "In a week in which the ACT legalised marijuana possession for personal use, Drug and Serious Crime Group Detective Superintendent Jon Wacker said police time was wasted and courts were clogged up with low-level offenders, when authorities should be targeting high-level kingpins." As a barrister and former NSW police prosecutor who worked in the drug squad at Kings Cross in the 80s, I fully agree with the position o...f Supt Wacker. Drug use is and always will be a health issue. Yes, here in Queensland, keep large scale cultivation, trafficking, and supply illegal, but the small time growing, possession and use of cannabis should be decriminalised, and even legalised as the ACT has recently passed. Better still, the government would be wise to regulate the cannabis trade as many other jurisdictions have done in other parts of the world, which has eliminated the black market with its associated crime, and, as a result, has brought improved socially beneficial outcomes. People are not stupid. They see the hypocrisy of the two biggest killers, tobacco and alcohol, legal, whilst the largely benign drug, cannabis, remains illegal. Cannabis per se is not going to kill you. Education and informed choice, not criminalising its use, is the key. We have already seen the impact that better education has had on reducing tobacco use in this country. Our drinking culture is also beginning to become more subdued. At the end of the day, what people do and partake in in the privacy of their own homes that is not affecting or harming anyone should be their choice and their business.There are already laws in place for the abuse of alcohol and drugs - especially when it comes to road safety. The State has no business in trying to curb what human nature has always had - a need to escape from the harsh and stressful things that life throws at us. There should be no difference between a quiet drink and a quiet toke for those inclined to do so to settle the nerves - in moderation, of course. I commend this law passed by ACT Legislative Assembly. I can only hope that in time Queensland will also pass such a law.

08.01.2022 The inexplicable decision to have pressed ahead with the recent council elections in Queensland in the middle of a global pandemic provides a cautionary tale as to the proprieties of some in the Queensland government. As a concerned lawyer, if you didn't vote for your safety and that of others, and happen to receive a fine (save the common sense of hindsight), let me advise generally that there is a good legal defence. Section 25 of the Queensland Criminal Code relevantly pr...ovides: ". . . a person is not criminally responsible for an . . . omission done or made under such circumstances of . . . extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise" (my emphases). If a global pandemic where the prime minister no less has told Australians 'it is best to stay at home', and where all public gatherings in pubs; clubs; restaurants; and cafes have been banned is not an extraordinary emergency where one could not reasonably be expected to act otherwise - then what is? No one should have been forced - even the healthy where infections from asymptomatic persons have been recorded - to be exposed to such an obvious risk. For the Chief Medical Officer to say there was no risk and that it was safe to go out and vote was gross negligence on the part of the government in the face of the overwhelming medical evidence to the contrary. The CMO has put her credibility on the line, for in a few weeks when infections spike who will listen to her when she then tells people they should stay at home? Oh, stop press, the prime minister has now advised that there should be no public gatherings of more than two people. Ah, so that's what was meant by "two's company three's a . . .". In the current crisis, if a decision was made today, it could have been made yesterday. Keep safe all.

08.01.2022 USEFUL LEGAL TITBIT 3 In a rare determination of a minor civil dispute from QCAT involving a tenancy dispute, the recent Court of Appeal decision of Noffke v Oceanside Management Pty Ltd t/as Broadwater Apartments [2017] QCA 156 (see link below) clarified some common disputes between landlords and tenants where tenants have to terminate a lease in circumstances of hardship. Previously, in a number of matters where tenants terminated a lease because of hardship, landlords were... successfully relying on s 350 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (the Act) that was previously equivocal as to whether compensation (such as re-letting or break lease fees) could be awarded to a lessor where a tenant terminated a lease because of hardship. This decision makes clear that compensation can only be awarded to a tenant who has to give up a tenancy due to an application of a lessor for hardship under s 295 of the Act- not a lessee for hardship under s 310 of the Act. Another helpful point was clarified by way of obiter in relation to clause 7 of standard form tenancy agreements (re-letting costs). It was made clear by the court that clause 7 is not triggered in circumstances where a tenancy agreement has been terminated under s 343 of the Act for hardship.

07.01.2022 Australia Day is 'celebrated' by most Australians today on the 26 January. Of course, it coincides with the arrival of the First Fleet on this day in 1788. However, it is also seen by many other people as coinciding with the dispossession of our First Peoples. In this sense, it is also a date of commemoration for our First Peoples. These two views are divisive and have resulted in celebratory bbqs on one hand and protests in the streets on the other. Can both celebration and... commemoration coexist? Anzac Day is one such day that both commemorates our fallen and celebrates our coming of age as a nation unified against a common enemy. It works because there is no division of these two purposes and unifies us as a nation. It is a different matter with Australia Day. In my opinion, the better view is to separate our national day into two: one that acknowledges and commemorates the pre colonial history of our First Peoples and their ongoing connection with this land, and another that celebrates us all as Australians who, unlike the United States, gained our independence from the United Kingdom not through a war or bloodshed, but a peaceful Act of Parliament. The Australia Act that was passed into law on the 3 March 1986 finally made Australia an independent sovereign nation. The Australia Act was the last piece of legislation passed by the UK Parliament for Australia, and was simultaneously passed in each State Parliament and the Federal Parliament. In fact, the Federal Act was also the last Act assented to by the Queen herself on a visit to Canberra. It is something worth celebrating - how a peaceful democracy and responsible government can achieve such an accord. The 26 January can remain as a national day of commemoration for our First Peoples and an acknowledgment of their past and ongoing connection to this land. It can also be a day of reconciliation between this past and our colonial beginnings. The 3 March would be more appropriate to become the new Australia Day as it can actually celebrate something to do with Australia itself - the Australia Act (Australia didn't exist as a political entity on the 26 January 1788). It is uncontroversial and March is still warm enough for a celebratory bbq.

07.01.2022 I have had a number of enquires about this case. There will be a lot more said about it in the coming months. Suffice to say that the police need to better understand victims of domestic violence suffering trauma. More care and consideration needs to be given to them prior to statements being obtained and decisions made whether or not to prosecute.

06.01.2022 Welcome to "Useful Legal Tidbits". I'll be posting here on this page regularly for fellow lawyers and members of the public who wish to find out interesting aspects of the law for their own interests or someone else's. As a general disclaimer, anything I post is for general information only and is not intended to be legal advice. If you have a specific legal problem, you should seek your own legal advice. TITBIT 1 Did you know that if you are spoken to by the police for any c...riminal matter - including a traffic matter, you have a right not to incriminate yourself? This is covered by the 'Judges Rules' which were recognised by the Court of Appeal in Queensland in R v Swaffield [1996] QCA 236, and the relevant provisions of Police Powers and Responsibility Act relating to indictable matters (s 397), and to the giving of information which may tend to incriminate a person if directed by the police to give information (s 791(4)). There is a common misconception that the police need only caution persons they are intending to charge with indictable offences. However, this applies to any crime. The High Court in R v Swaffield [1998] HCA 1 at [55] recognised the Judges Rules as "a yardstick against which issues of unfairness (and impropriety) may be measured". Where a caution is not issued before the police ask any questions, this may affect the subsequent admissibility of any admissions on a question of fairness in the given circumstances.

04.01.2022 Wishing all my friends and colleagues a peaceful, loving, and joyful Christmas and New Year.

04.01.2022 https://www.facebook.com/105827144497854/posts/169739678106600/

03.01.2022 My brave client steps forward to tell her story. Jacqui is a strong advocate for the effect that trauma has upon victims of domestic violence and how the police and courts should respond.