Clem van der Weegen Barrister-at-Law in Beerwah, Queensland | Lawyer & law firm

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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21.01.2022 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.

18.01.2022 Wishing all my friends and colleagues a peaceful, loving, and joyful Christmas and New Year.

18.01.2022 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".

17.01.2022 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

17.01.2022 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.

15.01.2022 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.

15.01.2022 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.

15.01.2022 https://www.facebook.com/105827144497854/posts/169739678106600/

11.01.2022 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.

09.01.2022 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.

08.01.2022 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.

05.01.2022 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.

01.01.2022 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.