Vol 3 no 2 winter 06

VOLUME 3 • NUMBER 2 • Winter 2006

QJA — Established in 1918

3

Official Magazine of the Queensland Justices Association

PRESIDENT’S LETTER FROM THE BOARD LATIN & LEGAL PHRASES

4

new members

5

NEWS IN BRIEF

6

EDITORIAL

7= ARTICLE Criminal Discovery and

Disclosure by Paul Rutledge

9

Q & A

11

ARTICLE

Members Questions Answered

Abuse, neglect and exploitation of adults with impaired decision-making capacity, and Enduring Powers of Attorney

by Louise Logan

12 LEGAL CROSSWORD 13 MERCHANDISE 14 BRANCH CONTACTS TRAINING

NOTICE OF ANNUAL GENERAL MEETING

15 MARRIAGE CELEBRANT’S COURSE QJA MEANS 16 WHAT TO MEMBERS

Serving JPs and C.decs Throughout Queensland

The

Q.j.a. journal

Our Patron The Hon Paul de Jersey, AC, Chief Justice of Queensland

Board of Directors PRESIDENT & CHAIRMAN OF THE BOARD Mr Bob Pilkington JP (Qual) P.O. Box 820 Booval Qld 4304

Telephone: (07) 3812 1865 Mobile: 0438 121 865 e-mail: bob.pilkington@qja.com.au

VICE PRESIDENTS Mr Doug Hull JP (Qual) PO Box 5289, Torquay Q 4655

Telephone: (07) 4124 4214 Facsimile: (07) 4124 7939 e-mail: doug.hull@qja.com.au

Mrs Bernice Lippiatt JP (Qual) 3987 Mt Lindesay Highway, Park Ridge Q 4125

Telephone: (07) 3802 2557 Facsimile: (07) 3802 2559 Mobile: 0411 663 757 e-mail: bernice.lippiatt@qja.com.au

Dr Anthony Watson-Brown JP (Qual) PO Box 1766, Broadbeach Q 4218

Telephone: (07) 5538 5605 Facsimile: (07) 5538 5605 Mobile: 0424 778 543 e-mail: awbrown@qja.com.au

DIRECTORS Ms Jan Stafford JP (Qual) PO Box 1006, Hervey Bay Q 4655 Telephone: (07) 4124 2068 Facsimile: (07) 4124 5618 Mobile: 0412 782 743 e-mail: jan.stafford@qja.com.au

Mr Roger Kelly JP (Qual) PO Box 4414 Forest Lake Q 4078 Telephone: (07) 3279 9710 Facsimile: (07) 3278 9899 Mobile: 0403 034 408 e-mail: roger.kelly@qja.com.au

Mrs Marian Vierveyzer JP (Qual) PO Box 62 Goodna Q 4300 Telephone: (07) 3288 1652 Facsimile: (07) 3288 1262 Mobile: 0415 418 320 e-mail: marian.vierveyzer@qja.com.au

Ms Valmai Macaulay JP (Qual) PO Box 610 Beaudesert Q 4285 Telephone: (07) 5544 6460 Mobile: 0418 741 556 e-mail: valmai.macaulay@qja.com.au

Mr. Raymond Young OAM, JP (Qual) 102 Glenmore Road, Rockhampton Q 4701 Telephone: (07) 4927 4155 Mobile: 0405 624 648 e-mail: ray.young@qja.com.au

STATE OFFICE

MANAGER

HELPFUL NUMBERS FOR JPs

751 Stanley Street Woolloongabba Q Postal Address: PO Box 8419 Woolloongabba Q 4102

Mr Mark Davis MBA JP (Qual)

Office Hours: Mon – Fri 9.00am to 5.00pm

Adult Guardian Customs Watch Consular Assistance Dept of Families 24 hour crisis line Dept Foreign Affairs & Trade Dept of Justice Dispute Resolution Centre Mental Health Orders (office hours) National Security Hotline Public Trustee

Telephone: (07) 3392 2455 Free call: 1800 061 423 Facsimile: (07) 3392 2955 E-mail: admin@qja.com.au

Mr Garry Franke JP (Qual) 8 Patrol Street, Jamboree Heights Q 4074 Telephone: (07) 3376 3375 Facsimile: (07) 3376 3375 Mobile: 0418 740 694 e-mail: garry.franke@qja.com.au

Website: www.qja.com.au

Serving JPs and C.decs Throughout Queensland

1300 653 187 1800 06 1800 1300 555 135 (07) 3235 9999 (07) 3405 4799 1300 300 147 1800 017 288 (07) 3835 1444 1800 123 400 1300 360 044

• S P2R0 Volu m e 3 • N u m bVolu e r me 2 2• • W I N T3ER N u mber I N0G62 0 0 5

President’s Letter The past three months have been very busy, at State Office, with the annual subscription being due for renewal and the update of our computer database. It is pleasing to note that members are prompt with their payment and that membership is still increasing.

The Board of Directors will be finalising public risk insurance with our underwriters shortly. This insurance will cover members 24 hours a day seven days a week, in any location, whilst they are performing J P duties. Also covered will be members of the public visiting a member’s house to have documents signed.

I recently attended a JP Refresher Course, facilitated by members of the Association, and held at Cleveland.

The Association is continuing to strengthen ties with the Justice Department and monthly meetings now held with the Department. If there are any matters you would like addressed at these meetings please contact the State Office for inclusion.

The Annual State Conference will be held in Ipswich this year and I am looking forward to meeting many of you there.

The date for the Conference is 21 October.

Bob Pilkington PRESIDENT

It was very pleasing to see so many JP’s in attendance.

The Association has received nothing but positive feedback from the day. Special thanks to Ray Burrows and his band of willing helpers for their time and effort in arranging the day.

From the Board The Board has been working to host the Australian Council of Justices Associations whose annual meeting will be held on 7 October at the Supreme Court in Brisbane.

The meeting will look at ways the Council can assist Member Associations over the next five years. 18 delegates from around Australia will meet in a workshop format to discuss the results of a survey of Member Associations.

Ipswich Branch is hosting the QJA Annual State Conference later in the same month. Members who have not attended an Annual State Conference should consider coming along. It is in effect a great refresher day to revisit some of the basics of our duties and meet fellow JPs and C.decs.

The Board is looking for ways to assist Members in doing their job as a JP. Signing facilities in libraries and council offices are being developed to provide Members with further alternatives.

Latin & Legal Terms for JPs & C.decs Adjourn

To postpone the hearing of a case in court.

Inter alia

A mong other things.

Affidavit

written statement signed and sworn on A oath, or affirmed as being true.

Ipso facto

By the very fact itself.

Affirmation

S olemn confirmation or assertion to the truth.

Letters of Administration

A document issued by the Supreme Court authorizing an administrator to distribute the estate of an intestate person.

Nexus

The connection.

Certificate of title A document that shows legal ownership

of a piece of land.

Counsel

A Barrister.

Deed

formal document signed, sealed and A witnessed.

Estoppel

rule of evidence which precludes A a person from denying the truth of a statement formerly made by him or of facts which he has led others to believe.

Firm

A partnership as distinct from a company

Guilty

he confession of a person or the finding T of the jury after trial that he committed the crime with which he is charged.

Indemnify

To make good another’s loss.

Power of attorney A deed by which one person appoints

another to act for him or her for certain purposes.

Prima facie

At first sight; on the face of it.

Proxy

document by which one person is A authorized to vote for another.

Sheriff

A n officer of the Supreme Court who performs functions similar to a bailiff.

Summons

A citation to appear in court.

Surety

A person who stands guarantor for a defendant.

Testimony

Evidence given orally by a witness in court.

Serving JPs and C.decs Throughout Queensland

The

Q.j.a. journal

Membership Roll Welcome to New Members The following have joined the Association since the Autumn 2006 Journal.

L. Curtis OAM B. O' Meara J. De Loub J. Mc Leish J. O' Keefe I. Gunn R. Mc Donald K. O' Derry G. Mc Auliffe A. Whipp A. Flood M. Pernatin M. Gebala D. Allan M. Frampton J. Crow M. Dobson S. Higman R. Dean A. Schoenfisch

L. Ray E. Waters C. Carter M. Sutton T. Langton R. Griffin A. Roberts N. Billiau C. Clarke C. Jackson L. Schuit M. Guye J. Tannion E. Warburton S. Wedmaier N. Jones L. Hunter W. Cranwell L. Gault

C. Forbes A. Pali C. Spoelder L. Reed L. Mergard G. Goodwin G. Moorhouse S. Hodges S. Romyn R. Schaller B. Frazer N. Hay M. Medill P. Watkins B. Marker L. Lynch A. Taifalos J. Henderson K. Hanbidge D. Borland

S. Buckley P. Washington S. Washington M. Goddard D. Zietsch A. Atkinson J. Tait D. Baron C. Evans V. BeaumontMastroianni D. Smith G. Becker M. Summers S. Cummings W. Shanks K. Quigg V. Bennett J. Bell

M. Fields S. Hennessy N. Shelley J. Shelley A. Wanke S. Robke H. Wilson E. Type H. North J. Nehring J. Williams G. Piper G. Taylor S. Pedwell G. Werner M. Viney A. Taylor C. Groth J. Tipper

R. Smith D. Mahoney J. Sharpe A. Harris G. Thomas D. Green L. Richert C. Johnstone D. Melville S. Melville A. Patterson C. Davenport S. Martin W. Johnston J. Torluccio E. Cornford R. Kruckow P. Small C. Small

Vale We have received with sadness notice of the passing of the following Members Mervyn Degiovanni

Lindsay Drummond

Dennis Hughes

John Illguth

Teressa Tunney

I N V I TAT I O N Annual State Conference 2006 Justices in the 21st Century – the Way Forward

Open Invitation to all JPs & C.decs to attend the

2006 Q JA Annual State Conference

Please register your intention to attend by contacting:

Hosted by Ipswich Branch

Marian Vierveyzer A/hrs 0415 418 320

at Cunningham Room, Ipswich Civic Centre

or State Office on 3392 2455 or 1800 061 423

on Saturday, 21 October

or E-mail: marian.vierveyzer@qja.com.au or

8:30 am to 4:00 pm Guest Speakers

admin@qja.com.au

• Serving JPs and C.decs Throughout Queensland

Cost $25:00 includes Lunch, Morning & Afternoon Teas

Be Refreshed Be a better JP or C.dec

Serving JPs and C.decs Throughout Queensland

Volu m e 3 • N u m b e r 2 • W I N T ER 2 0 0 6

News In Brief Members’ Insurance cover re-negotiated QJA Members’ Public Risk Cover has been re-negotiated for a much improved coverage. Current insurance is for $10 million cover for public risk for members at QJA official functions and QJA supervised signing facilities.

Organiser Ray Burrows and a team including Capalaba Chairman Dudley Orchard were congratulated by President Bob Pilkington who attended the morning sessions.

AON Insurance has agreed to cover Members of QJA on a $10 million basis for public liability regardless of where they are working as a Justice of the Peace on a 24 hours a day 7 days a week basis.

This means that public risk cover will extend to JP work performed at home, at clients’ homes or places of work, in the JP’s workplace and at signing facilities.

The public risk cover for signing facilities will comply with the requirements of any individual facility.

The Front Cover Collage The front cover represents libraries and work places as an alternative for Members to deliver their services to the public.

Members are encouraged to look for other ways to service clients apart from the traditional service from home.

At your service ~ Sonia Cox, Dorothy Hewitt & Barbara Chapman refreshing attendees at the Capalaba day

The Association offers assistance to Members or groups of Members who wish to provide this type of public service.

Volunteers Sought

QJA has set the tempo in providing these facilities in the community after re-introducing public signing facilities on the Gold Coast and Hervey Bay in 2002.

The Board has worked to ensure the finances have been kept under control over the past year. The upcoming accounts will show a small surplus for the period. One of the ways this has been achieved has been by using volunteer assistance.

If you want to start a signing facility in your area please contact your local branch, any member of the Board of Directors or State Office. Advice, log books, stamps and other facilities can be provided.

Members who feel they may be able to contribute even an hour or two are invited to ring State Office. Duties include basic office tasks – nothing too complicated.

QJA 2006 Annual Conference

Interested in being a Director?

The QJA Members’ Annual Conference will be held on Saturday 21 October at the Cunningham Room, Ipswich Civic Centre, corner of Limestone and Nicholas Streets, Ipswich.

The theme for this year’s Conference is “Justices in the 21st Century – the Way Forward”.

The Board is keen to know if you have an interest in becoming a Director of QJA. The position is entirely voluntary and quite fascinating. Workload depends on current activities.

The Conference is open to all JPs and C.decs whether they are Members or non-Members.

Information regarding registration is available through Marian Vierveyzer, PO Box 62, Goodna, Q 4300, telephone 0415 418 320 (A/hrs) or e-mail marian.vierveyzer@qja.com.au or contact State Office.

Capalaba Branch Refresher Success Recently Capalaba Branch held an all day refresher at the Civic Centre, Cleveland. In an idyllic setting, over 90 Justices and Commissioners heard from a range of speakers who brought them up to date on their duties.

JPs from all over the South East of the State turned out for a practical update on duties and obligations of both Justices of the Peace and Commissioners for Declarations. Both Members and guest JPs were given a total top-up on what they should know – professional development at its best.

Directors work as a Board, meeting monthly in Brisbane, although country members are linked by electronic means to the meetings.

If you think you may be able to contribute in the future to your Association, please send brief details of your background and experience that may help the Association to the President, Mr. Bob Pilkington at PO Box 820, Booval, Q 4304.

Currently there are no vacancies but they do arise from time to time. The Association needs to be prepared for such occasions.

State Office holidays State Office Manager Mark Davis is away on annual holidays from Monday July 10 to Friday August 4 inclusive.

During this period there may be a reduction in services offered as the office will be manned by a contract Administration Officer.

Serving JPs and C.decs Throughout Queensland

The

Q.j.a. journal

Editorial Extending your services

Happy 88th Birthday QJA

Members are used to the traditional way of working from home. This is to be highly praised as it permits strangers to enter the JP’s or C.dec’s personal and private space. While few JPs report any difficulties in offering services from home, there is an element of risk in having strangers enter your home.

Queensland Justices Association turned 88 this year. While not the major milestone of a centenary it is a significant period and one on which Members may reflect with pride.

Some Members offer services through their place of employment. This may have some constraints as a conflict of interest may arise. We discussed the issue of Conflict of Interest in the QJA Journal in Volume 1, Number 2, Winter 2004 Edition. Having to explain a conflict can be difficult and even embarrassing in some cases.

Over the years the Judiciary has supported the Association.

Historic records show the late Sir James Blake, Chief Justice in the early 1940s, was a keen advocate of QJA. The current Chief Justice, Paul de Jersey is an active Patron of the Association and like his predecessor a keen supporter.

In 2002 the QJA branches at Hervey Bay and Gold Coast opened signing facilities at large shopping malls. These are a huge success. So much so the Government commenced a trial with Court House Signing Facilities.

Many famous Queenslanders have graced us with membership of our Association. Sir Tomas Hiley is one name that has appeared on the Board of Directors of the Association. Sir Thomas went on to become Treasurer of Queensland.

Later the Government followed QJA in supporting public signing facilities in shopping malls.

Both of these types of facility have disadvantages.

The shopping complex in a large population centre is anonymous to the passer by. The same cannot be said in smaller communities.

Similarly, a problem arises with the Court House in the smaller community. Even with larger communities the Court House can be a formidable place where lawyers, police and criminals mix with the public.

Having seen these issues arise the Board has through the State Office and individual Directors encouraged Branches and Members to serve the public through less intrusive signing facilities.

The key to the success of these alternative facilities has been their privacy.

Both local libraries and council offices were looked at and suggested first by he Board.

Some Members have also offered the public access to their work places so that not only clients served by the establishment but also any member of the public can make use of the signing facility.

There will always be the scope for the police car visit at 9:00 pm for obvious reasons but the Board is pleased that the public are now being served in over 40 facilities sponsored by QJA around Queensland.

Established in Brisbane in 1918 QJA was set up to assist Justices of the Peace in carrying out their duties particularly their minor bench duties.

Serving JPs and C.decs Throughout Queensland

Grazier and philanthropist the late Sir James Walker, well know in Western Queensland, spent over 50 years on our membership role.

Former Governor and Chief Justice, the late Sir Walter Campbell served as editor of this Journal when he was a junior Barrister.

Senior Counsel Robert Mulholland QC also spent a number of years editing the Journal on his return from studies in the United Kingdom in the early 1970s.

Lady Flo Belke-Petersen is a current Member and has been for many years.

There are no doubt many more. We would like to hear from Members who have any details of our history. Now is the time to commence preparing for our centenary by gathering information relevant to our history and the story of our membership.

If you have any details of the story behind QJA please let us know. Feel free to write to the Editor, QJA Journal, PO Box 1766, Broadbeach, Q, 4218.

What QJA Means Please take time to read the new version of page 16. Without significantly changing the message, we have laid a slightly greater emphasis on the benefits of being a Branch Member.

If you have any comments please take time to write to or e-mail the editor. The addresses are The Editor, QJA Journal, PO Box 1766, Broadbeach, Qld, 4218 or awbrown@qja.com.au.

Volu m e 3 • N u m b e r 2 • W I N T ER 2 0 0 6

“CRIMINAL DISCOVERY and DISCLOSURE” Below is the counter argument by the Deputy Director of Public Prosecutions, Mr. Paul Rutledge to an article on a similar subject by Mr. Michael Bosscher published in the Autumn 2006 QJA Journal.

Over the past quarter of a century, and particularly in more recent years, there have been significant changes to our criminal justice system. They are changes of which our community can be justly proud. The question for the future is what other changes can be made to improve our system of justice. In my view, the issue of reciprocal defence disclosure is worthy of debate.

The Search for the Truth One of the major factors driving the changes to the criminal justice system has been an increased emphasis on the rights of victims of crime. Those rights are of critical importance to a proper and fair criminal justice system.

A victim has the right to be treated fairly and with respect; to not be re-traumatised by the justice system itself. i A victim also has the right to expect that the justice system will reveal the truth. Indeed those falsely accused of crime no doubt have the same expectation.

The importance of ascertaining truth is acknowledged in the Queensland Criminal Code itself, which provides that: “it is a fundamental obligation of the prosecution to ensure that criminal proceedings are conducted fairly with the single aim of determining and establishing truth.” ii

The Criminal Trial The process that the criminal justice system uses to determine and establish truth is an accusatorial one [the trial] where the prosecution bears the onus of proving guilt beyond reasonable doubt. iii That process involves an adversarial contest between two parties: the prosecution on the one hand and the defence on the other and is governed by rules of evidence and procedure.

a fair trial and the safeguard that the prosecution must prove their guilt beyond reasonable doubt.

However, within the constraints of such basic safeguards, the search for truth should be the central consideration.

The Role of Discovery and Disclosure Criminal discovery and disclosure are important elements in that search.

Discovery and disclosure, broadly defined, is the process whereby a party, prior to trial, is able to require the other party to disclose relevant material in their possession. That process has a number of advantages. The issues in the trial can be identified and narrowed. The court is not distracted by irrelevant issues and the opportunity for obfuscation of the real issues is limited. A party can properly prepare for the trial and not be surprised by evidence produced by the other party. The real strengths and weaknesses of the opposing cases can be revealed to the court.

Prosecution Discovery The necessity for full prosecution disclosure is well established both in Australiaiv and in many overseas jurisdictions such as the United States of America v, England vi and Canada. vii It is central to a fair trial.

Prior to 2004 the discovery obligations of the prosecution in Queensland were essentially a matter of practice. However amendments to the Criminal Code, which came into operation in that year, have introduced a comprehensive statutory scheme of prosecution disclosure. viii The amendments largely codify the prior existing practice and provide a more structured framework in which they can operate.

Essentially the amendments place a continuing statutory obligation upon the prosecution to give early disclosure [subject to certain exceptions] of the evidence upon which it relies and also of all things in its possession that would tend to help the case for the accused. The Director of Public Prosecutions Guidelines, which provide guidance to prosecutors in the performance of their duties, gives further effect to the amendments. ix

Those rules and procedures can advantage or disadvantage the different parties in the contest. Much of the debate relating to them is influenced by the advantage or disadvantage that consequentially flows to one party.

However, in my view, those rules and procedures should not be tested by having primary regard to the advantage or disadvantage they bestow on a particular party. They should be tested by having particular regard to what extent they aid or hinder the revelation of truth.

As well as the codification of prosecution disclosure responsibilities, the amendments to the Queensland Criminal Code collected into one chapter the disclosure responsibilities of the defence. x

In saying that, I do not suggest that the search for truth should override the basic safeguards of our criminal justice system. Those accused of crime are entitled to a presumption of innocence, a right not to incriminate themselves, a right to

This codification of defence disclosure obligations commenced, in Queensland, over a quarter of a century ago with the introduction of the notice of alibi provisions. xi The defence obligations have been extended in more recent years by the

Defence Disclosure

Serving JPs and C.decs Throughout Queensland

The

Q.j.a. journal “CRIMINAL DISCOVERY and DISCLOSURE” – Continued introduction of obligations to give notice of expert evidence xii and obligations to give notice of reliance upon representations by persons who are unable to give evidence. xiii

i

C riminal Offence Victims Act 1995: www.legislation.qld.gov.au/LEGISLTN/CURRENT/C/ CriminOfVictA95.pdf

However, defence disclosure responsibilities are not as extensive as the prosecution responsibilities. The defence is not required to disclose [other than as required above] the nature of its case, any evidence that it intends to rely upon at trial or anything that might weaken the defence case.

ii

Section 590AB(1) Criminal Code:

www.legislation.qld.gov.au/LEGISLTN/CURRENT/C/ CriminCode.pdf iii

PS v The Queen [2000] 199 CLR 620 [22]: R www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/ HCA/2000/3.html?query=rps

Overview

iv

In civil proceedings the parties are essentially on an equal footing. Both parties are required to disclose all relevant material [even if it does not assist their case] and in the normal course of events the parties have advance notice of the identity and evidence of any opposition witness. xiv

M allard v R [2005] HCA 68 [which also contains useful references to other cases and jurisdictions] www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/ high%5fct/2005/68.html?query=title+%28+%22mallard%22+ %29

v

e g California Penal Code, 1054.1. www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=180688117 08+45+0+0&WAISaction=retrieve

A useful web site which links to the various disclosure rules

The situation in criminal proceedings is significantly different.

The defence has extensive discovery rights. The prosecution has only limited discovery rights. The effect of this situation is that, with some exceptions, the prosecution has to wait till during the trial itself to see what the defence case is and what evidence, if any, the defence is calling.

This imbalance between the discovery rights of the prosecution and defence can distinctly disadvantage the prosecution in its ability to investigate and counter any weaknesses in the defence case. In other words, the prosecution ability to properly test the strength of the defence case can be substantially limited. Its ability to aid the court in determining the truth is thus hampered.

in the United States of America is; www.searchlaw.com/courtrules/statecourt_non_local.htm vi

riminal Procedure and Investigation Act 1996 as amended C

by Criminal Justice Act of 2003 Part 5: www.bailii.org/uk/legis/num_act/2003/20030044.html

vii

Stinchcombe v The Queen [1991] 3SCR 326

www.lexum.umontreal.ca/csc-scc/en/pub/1991/vol3/html/ 1991scr3_0326.html viii A ct

55 of 2003 commencing 5 January 2004. Section 15: www.legislation.qld.gov.au/LEGISLTN/ACTS/2003/03AC055. pdf

Other Jurisdictions The codification of prosecution disclosure responsibilities in many overseas jurisdictions has been accompanied by an extension of defence disclosure responsibilities.

In England xv and in many of jurisdictions in the United States of America xvi reciprocal defence disclosure procedures have been introduced. In those jurisdictions, in conjunction with prosecution disclosure, the defence can be required to disclose its case prior to trial, to reveal the identity of witnesses it intends to call and to provide copies of their statements (other than statements by the defendant).

Defence disclosure requirements in those jurisdictions are still not as extensive as those required of the prosecution. A major difference is that the defence is not required to reveal material that may assist the prosecution or weaken the defence case.

However, the reciprocal disclosure procedures do significantly aid the prosecution in properly testing the defence case.

Where to From Here Reciprocal defence disclosure procedures clearly do remove an advantage that the defence currently enjoys in Queensland.

The question, however, is whether the introduction of reciprocal defence disclosure procedures would further assist courts to determine and establish the truth. In my view they would.

Serving JPs and C.decs Throughout Queensland

Criminal Code Chapter 62 Div 3

ix

G uideline 26 DPP Guidelines: www.justice.qld.gov.au/odpp/pdfs/guidelines.pdf

x

Criminal Code Chapter 62 Div 4

xi

C riminal Code s.590A

xii

Criminal Code s.590B

xiii

Criminal Code s.590C

xiv

Uniform Civil Procedure Rules 1999.

www.legislation.qld.gov.au/LEGISLTN/CURRENT/S/ SuprCrtQldUnCivilPRu99_02A_.pdf xv

C riminal Procedure and Evidence Act 1996 as amended by Criminal Justice Act of 2003 s.33: www.bailii.org/uk/legis/num_act/2003/20030044.html

xvi

e g Arizona Rules of Criminal Procedure Rule 15.2, California Penal Code 1054.3, Hawaii Rules of Penal Procedure Rule 16 (c), Illinois Supreme Court Rules Rule 15.2, Minnesota Rules of Criminal Procedure Rule 9.02, Missouri Supreme Court Rules Rule 25, Ohio Rules of Criminal Procedure. Crim. R. 16, Oregon Revised Statutes 135.835, Washington State Court Rule 4.7 which can be accessed at the web site [v] above.

See also the Standards of the American Bar Association at: www.abanet.org/crimjust/standards/discovery_blk.html#2.2

?

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Members Questions & Answers

Volu m e 3 • N u m b e r 2 • W I N T ER 2 0 0 6

A.

s far as can be ascertained most Police Stations are A now producing a check list for juvenile support persons.

While it is not required by law for a JP(Qual) to use the checklist, it is sensible to use it.

part from the occasion when you forget your manual, A it is unlikely that you will remember what you need to do for the interview. So it is a great advantage to use the form provided by the police service which covers the issues you should be covering during the interview and preparation for it.

Q I keep a log book but I am not sure how much information I should keep.

A.

The JP (Qualified) Manual at page 26 sets out a simple form of Log Book which details the items you should record as follows:

Example of Register/Log Book

Date

Name

Document Proof of ID Comments

31/1/04

1/9/04

7/11/04

Sue Black

John Smith

Jane Brown

Certify copy

Stat. Dec.

Affidavit

Student ID Card Driver’s Licence Driver’s Licence

3 copies cert Nil Family Law Court Affidavit

s you can see the information is about the ID of the A person and the type of document witnessed. No specific details of the transaction are necessary or desirable.

I f the transaction is unusual, you may wish to make a more detailed note in the log book.

nother occasion when you should put an entry in the A log book is if you refuse to witness a document for a person. You should record the reason for refusing to witness the signature.

Most public signing facilities hold an additional “centre” log book. The details in that log should be restricted to the date, the name of the person and either the suburb or post code of residence. No details of the type of matter should be recorded.

Q. I have been asked to give evidence in relation to witnessing documents. The Police who are calling me as a witness have asked to copy a page from my log book. Should I let them copy it?

Q. I have been asked to issue a summons to a witness relating to another complaint and summons. Am I able to witness this document or does the document have to be returned to the JP who signed the original summons?

A.

You may sign and issue the witness summons.

he original JP may be in another town or suburb and it T is impractical to ask the client to go to that person.

This function of issuing a summons to a witness is a separate function from the issue of the original summons.

It is proper to issue the witness summons even if you have had nothing to do with the original summons.

Q. I work in a solicitor’s office and often get asked to sign/witness documents as a part of my role.

Is there any conflict of interest in doing this?

Can you provide a better understanding of what may be conflict of interest?

A.

he Manual on Duties of Justices of the Peace (Qualified) T warns Justices not to complete documents themselves.

ne problem with witnessing a document prepared in O the office where a Justice works is that it is similar in effect to completing the document and witnessing it.

Even if the Justice does not prepare the document, a colleague has done so. The colleague and the Justice have the same employer. The person who pays the Justice their wage benefits from the document being signed. There may be undue pressure placed on the Justice to sign as a witness.

I t is preferable for a Justice not to witness documents prepared in the office where the Justice works.

An article on Conflict of Interest was published in the QJA Journal Volume 1 Number 2 Winter 2004 and should be referred to for further situations when a conflict of interest arises.

Should I take the log book to Court?

A.

he log book is your record of the documents you have T witnessed. It contains much private information and you should not release it to anyone other than the Court in which you are called to give evidence. ou should take the log book to Court with you when Y you give evidence.

Q. When acting as a support person for a juvenile recently, I was handed a document with several pages of information and a checklist of questions to ask. Is this document in use at all Police Stations throughout the State?

Is it necessary for me to complete this form?

Q. I have been asked to assist a person in signing a “living will”. What is a living will? Can I witness it?

A.

In Queensland we rarely refer to a “living will”.

he expression is more common in other places. Here T we speak of Enduring Power of Attorney and less often Serving JPs and C.decs Throughout Queensland

The

Q.j.a. journal Members Questions and Answers – Continued an Advance Health Directive with a power of attorney for personal purposes included. These documents refer to control of affairs much in the same way as a will operates after death.

You are able to witness the document in Queensland or for a Queensland EPA or AHD, anywhere in Australia.

With Enduring Powers of Attorney and Advanced Health Directives very specific instructions accompany these documents. Possibly greater care needs to be taken in dealing with them than other documents (although all documents must be treated with care). Follow the notes and directions carefully.

o not give advice to the person signing the documents D but be sure they are fully aware of what they are signing.

you have agreed by implication in accepting your commission not to disclose confidential information.

The police are entitled to rely on this and will not require you to stay with them. It would be preferable if you reassured the police officers involved by assuring them of your intention to maintain their confidence in the matter.

Q. What do I say to a client if I think their document is defective? What if they insist I sign as a witness?

A.

You are not obliged to witness a document if you think it is defective. The decision is yours but you are well advised not to sign a document that you believe is not correct.

I nvite the client to find another Justice of the Peace for a second opinion. That is a polite and correct approach to rejecting the document.

xplain that if your assessment is right, witnessing the E document will not correct the defect. All that is likely to happen is the document will be rejected by the appropriate authority and this is likely to cause delay and inconvenience.

Q. The local police seek my assistance with the issue of a search warrant or arrest warrant. However, on checking the detail, I realise that the person named in the warrant is known to me. What do I do?

As I have knowledge of an impending police action, will the police ask me to remain in their company until the warrant is executed?

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A.

he problem arises more often than one might expect T but generally causes no problems.

irst you must tell the Police that you cannot act as F you know the person in the warrant. This is known as “recusing� yourself. You do not have to go into full details of the basis of your acquaintance with the Police Officer.

S econdly, and most importantly, you must not mention the matter to any person. The information is confidential (as is all material that comes into your possession as a Justice). In this case the standard of confidentiality is of the highest level you will come across as a Justice.

ou do not have to remain with the police until they Y execute the warrant. One of the reasons why you have been appointed as a Justice of the Peace is because Serving JPs and C.decs Throughout Queensland

Noosa Deputy Mayor Frank Pardon with QJA Noosa Branch JPs at Noosa Library

Q. I live in a small community, alone, and am a widow in my late 60s. I enjoy serving the people but am concerned about asking strangers to come to my home to witness their signatures. We do not have a public signing facility in my town. I cannot commit myself to run a regular service as is done in other places. Can you help me on ways I can serve the public better?

A.

ou can list your telephone number on the internet Y through the Justice Department. Only your name and phone number are listed so your address remains confidential. The listings of JPs are alphabetical and in areas, e.g., suburbs in the larger cities or towns in the country.

ou can also leave your name and phone number at the Y local police station, chemist, bank and post office. These are the traditional places where people go to find JPs.

Other businesses may be happy to keep your name and phone number at their premises for when the occasion arises that they are asked for a JP.

hen people call, arrange to meet them in a public W place that has access to a relatively private area where you can witness the signatures. Public libraries and Council Offices are usually quite suitable for this purpose. You might like to speak with the librarian or officer in charge before you make the arrangements.

ost people understand if you ask to meet them during M the day. If they need a JP urgently after hours, keep the name and phone number of another JP in the area who may be better suited to witnessing after dark.

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Abuse, Neglect and Exploitation of Adults with Impaired DecisionMaking Capacity, and Enduring Powers of Attorney

By Ms. Louise Logan, Assistant Adult Guardian, Queensland

• a ssist in determining whether there is a need to refer the person for more specialised assessment.

Investigations of allegations of abuse, neglect and exploitation

The Guideline’s suggested process for determining capacity includes suggestions for initial contact, the interview process and recording the process through note taking by the witness.

One of the functions of the Adult Guardian, an independent statutory officer responsible for protecting the rights and interests of vulnerable adults with impaired decision making capacity, is to investigate allegations that an adult with impaired capacity is being or has been neglected, exploited or abused.

Of the investigations conducted in 2004-2005 by the Office of the Adult Guardian (OAG) 49% involved allegations against an attorney appointed under an Enduring Power of Attorney. Over 75% of allegations involving an attorney under an EPA involved allegations of financial abuse and exploitation.

Ultimately grounds to take protective action for the adult, for example, suspending the powers of the attorney, will depend upon the nature and extent of any evidence of neglect, exploitation or abuse of the adult by the attorney. However when a matter is referred to the OAG for investigation a claim will often be made that the EPA itself is invalid because the principal did not have capacity at the time it was made. The issue of capacity of the principal at the time the EPA was made also arises, from time to time, in other disputes that make their way to the Guardianship and Administration Tribunal.

Role of the witness to an EPA A witness to an EPA is under a duty to certify that the principal appeared to have the capacity necessary to make the document. In witnessing the making of an EPA the role of the Justice of the Peace, Commissioner for Declaration or lawyer goes beyond that of witnessing someone sign their name.

Capacity Guidelines for Witnesses of Enduring Powers of Attorney Considerable assistance on the various aspects of witnessing an EPA is contained in a fact sheet ‘Capacity Guidelines for Witnesses of Enduring Powers of Attorney’ available from the website of the Department of Justice and Attorney-General at www.justice.qld.gov.au. These guidelines are a valuable resource to any Justice of the Peace witnessing an EPA and were written with the purpose to: • h ighlight the indicators that may suggest a person’s capacity needs careful consideration; • p rovide a framework within which to consider the person’s capacity; and

The importance of recording the process It is vital that the witness to the EPA make notes of the process undertaken to satisfy themselves that the principal had capacity to make the EPA. This is particularly so where there might be some reason to question the principal’s capacity to make the EPA, for example, they may be unwell or perhaps in the early stages of a disease that progresses to dementia.

The importance of the witness making comprehensive notes at the time the EPA was made is highlighted by a recent decision in the Guardianship and Administration Tribunal.

In Re LI (2006) QGAAT 1 the principal made an EPA, whilst hospitalised and less than one month after suffering a stroke.

Four months later the question of the principal’s capacity to make the EPA was brought to the Tribunal and the evidence of the solicitor who witnessed the making of the EPA was described as the ‘most significant contemporaneous evidence’ of the capacity of the principal at the time the EPA was made.

As time goes by Of course, there will be cases where a challenge to the validity of the EPA occurs many months or even years after the EPA was made. A challenge might arise through an allegation being referred to the OAG for investigation or in a dispute taken to a Tribunal or Court. With the passing of time it is only natural that a witness’s memory of events will fade. Without a written record of all the steps taken in assessing competence including all questions and answers, the opinions of other witnesses as to capacity and the basic information such as the date, time of interview, who was present, the length of the interview and the location it may be very difficult for a witness to defend a challenge to their assessment of the principal’s capacity.

After having taken the time and care to record all of this information the witness should also make sure that the record is stored so that it is easy to find and refer to in the future.

Being able to meet any challenge to your assessment of the principal’s capacity by reference to a well documented record made at the time the document was witnessed might be sufficient to avoid what has the potential to turn into a bitter, lengthy and costly dispute about the validity of an EPA.

Serving JPs and C.decs Throughout Queensland

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Q.j.a. journal Abuse, Neglect and Exploitation of Adults with Impaired DecisionMaking Capacity, and Enduring Powers of Attorney – Continued Other pitfalls to avoid when witnessing an Enduring Power of Attorney or an Advance Health Directive As it is possible to appoint an attorney for personal and health matters under both the EPA and the Advance Health Directive (AHD) forms it is important that principals who are thinking about completing either or both of these documents are clear about their personal requirements, what documents they may have completed previously and what they now intend to do.

A principal may, for example, have already appointed an attorney for personal and health care matters through an EPA. If they later make an AHD and complete section 7 of the AHD form and name a different attorney, they have cancelled out the previous appointment of the attorney for personal and health care matters made under the EPA form. This may be an undesirable outcome for the principal who may not have intended to cancel the previous appointment.

Principals intending to complete an AHD should be encouraged to clarify whether they have in fact already completed an EPA. If so and if they have no desire or need to change their attorney then they should not complete section 7 of the AHD form. Similarly if a principal makes an EPA after an AHD the appointment of the attorney under the EPA will cancel the appointment of any attorney made under the AHD.

More Information More information on Enduring Powers of Attorney, Advance Health Directives, the role and functions of the Adult Guardian including the investigative powers of the Adult Guardian and the ‘Capacity Guidelines for Witnesses of Enduring Powers of Attorney’ are available from the website at www.justice.qld.gov.au through the guardianship link.

The Office of Adult Guardian can also be contacted on (07) 3234 0870 or 1300 653 187

Legal Crossword 1 4

2 5

Reminder Notice to Members

3 6

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Renewal of Membership 2006 – 07

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10 11

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Members are reminded that at the last AGM the financial year for QJA was changed to bring it into line with the more common 1 July to 30 June financial year.

Membership is now due on 1 July 2006 for the 2006 – 2007 year.

Membership renewals are now open. Members wanting a new Membership Card are asked to forward a photograph (if required on the ID card) and a stamped return address envelope with payment of their subscription. No envelope – no card. The initial card is free. If you have been issued with one, the replacement is $12.50 with photo or $6.60 without photo.

Annual Fees are as follows:

ACROSS

DOWN

4. Domestic legal rules

1. Proofs of ownership of land

Ordinary Membership

49.20

8. Entry in a log book

2. What JPs might do in Court

Concession Rate

37.20

9. To endorse JP title

3. T hese persons need help

10. With reference to

5. Method

Husband and wife both JPs

60.00

11. Dies with a will

6. French for 'the'

13. T he alternative

7. Make an oath

14. Formal Rules

12. Produce ID

15. Statutes 17. You (old Eng.)

16. Needed after a hard day of signing

18. Orders to attend

(Solution next Journal)

Serving JPs and C.decs Throughout Queensland

Membership may be renewed by post to State Office, at PO Box 8419, Woolloongabba Qld 4102, by e-mail to admin@qja.com.au or by fax to (07) 3392 2955. Phone payment by credit card is available through the State Office number. Bankcard, Visa and MasterCard only.

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ORDER YOUR QJA Merchandise...

IT'S EASY! The perfect gift or just spoil yourself! The following range of merchandise is now available and can be ordered by ringing QJA State Office.

QJA 01 Membership Pin/Badge $6.50 incl GST

QJA 19WP Hand embroidered personalised framed wall plaque

JP Man JP (Qualified) Manual $13.50 incl GST

$99.00 incl GST

QJA 14 Fabric Pocket Badge $9.50 incl GST

QJA 08JP JP (Qual) Car Sticker

C Dec Man C. Dec Manual $6.80 incl GST

$3.00 incl GST QJA 09 Coffee Mug $7.50 incl GST

QJA 08CD C. Dec Car Sticker $3.00 incl GST

QJA Log JP (Qualified) Log Book $7.00 incl GST

QJA 15 Baseball Style Cap $19.50 incl GST

QJA 16M Mens Polo Shirt – No Pocket Sizes M, L, XL and XXL $30.00 incl GST QJA 17MP Mens Polo Shirt – With Pocket Sizes M, L, XL and XXL $35.00 incl GST QJA 17MP Ladies Polo Shirt – No Pocket Sizes 8, 10, 12, 14, 16, 18 and 20 $30.00 incl GST

QJA 11 Calico Tote Bag $3.00 incl GST

QJA 06P Replacement Membership Card with photo

C Dec Log C. Dec Log Book $7.00 incl GST

$12.50 incl GST QJA 06 Replacement Membership Card $6.60 incl GST

QJA 12 Pack of 3 Pens $3.00 incl GST

QJA 04R Rubber Stamp – Name + JP Type

QJA 13 Deluxe Pen $6.00 incl GST

QJA 04S Self-inking Stamp – Name + JP Type QJA 05S Self-inking Stamp – Certified Copy + Name & JP Type $37.50 incl GST

QJA 05R Rubber Stamp – Certified Copy + Name & JP Type QJA 19R Rubber Stamp – Custom Made $25.00 incl GST

The prices quoted do not include Postage and Handling. This varies from item to item.

Please check with Q JA House (07) 3392 2455 for details before ordering.

Serving JPs and C.decs Throughout Queensland

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Q.j.a. journal

QJA Branch Contacts BEAUDESERT – VALMAI MACAULAY PO Box 610, Beaudesert Q 4285 Telephone: 5544 6460

GOLD COAST – RICHARD SHAW 15 Staysail Crescent, Clear Island Waters Q 4226 Telephone: 5593 3314

REDLANDS – DUDLEY ORCHARD PO Box 481, Capalaba Q 4157 Telephone: (07) 3207 2338

BUNDABERG – DAVE READ 24 Franklin Street, Bundaberg Q 4670 Telephone: 4152 3318

HERVEY BAY – JAN STAFFORD P O Box 1006, Hervey Bay Q 4655 Mobile: 0412 782 743

ROCKHAMPTON – RAY YOUNG OAM 102 Glenmore Road, Rockhampton Q 4701 Telephone: 4927 4155

CAIRNS – PETER VESELY 28 Illuta Street, Rasmussen Q 4815 Telephone 0408 208 958

INNER NORTHSIDE BRISBANE – DR ANNA KNIGHT 1/64 Alva Terrace, Gordon Park Q 4031 Telephone 3857 4163

SOUTH BURNETT – JAMES MCCANN PO Box 87, Yarraman Q 4614 Telephone: 4163 8461

CALOUNDRA – BERNARD KINGSLEY 2 Pennyroyal Circle, Currimundi Q 4551 Telephone 5493 1180 FOREST LAKE – ROBERT TAYLOR P.O. Box 126, Banyo Q 4014 Mobile: 0402 685 414 GLADSTONE – STEPHEN MILLS 130 Auckland Street, Gladstone Q 4680 Telephone: 4979 1756 GLASSHOUSE MOUNTAINS – REV JOHN BARFOOT 54 Parkview Road, Glasshouse Mountains Q 4518 Telephone: 5438 7013

IPSWICH – MARIAN VIERVEYZER PO Box 62, Goodna Q 4300 Telephone: 3288 1652

SOUTH PINE – BRYAN CARPENTER 70 Daniel Drive, Albany Creek Q 4035 Telephone: 3325 2595 TOOWOOMBA – ARCHIE TAIT 19 Panorama Drive, Glenvale Q 4350

LOGANHOLME – JOHN BAILEY 30 Bingo Street, Holmview Q 4207 Telephone: 3287 1516

TOWNSVILLE – GRAHAM TODD 12 Althea Court, Kirwan Q 4817 Telephone: 4773 2614

NOOSA – ALLISON CALAGHAN PO Box 1445, Noosaville Q 4556 Telephone 5474 1430 PACIFIC PINES – PEARL DRIVER 54 Elevation Drive, Wongawallan Q 4210 Telephone 5502 7031

WESTERN SUBURBS – WILLEM BOSSCHIETER 55 Pallert Street, Middle Park Q 4074 Telephone: 3376 7206

We encourage you to contact the Branch nearest you.

Training The next two JP (Qualified) Examinations are on Saturday 22 July at 9:00 am and Thursday 7 September at 6:00 pm

QJA courses are planned throughout the State so if you know anyone who is interested in becoming a JP (Qual) please ask them to contact QJA State Office.

Notice of Annual General Meeting Change of Address Please contact the State Office phone 07 3392 2455 or email: admin@qja.com.au if you have any change of address/telephone/email details.

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Serving JPs and C.decs Throughout Queensland

Notice is given of the 2006 Annual General Meeting of the Queensland Justices Association to be held at 10:00 am on Saturday 4 November 2006 at Q JA House, 751 Stanley Street, Woolloongabba.

The meeting will receive the Directors’ Annual Report and the Financial Statements for 2005-06, appoint an auditor, appoint an appeals committee and consider any business of which proper notice has been given.

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Serving JPs and C.decs Throughout Queensland

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The

Q.j.a. journal

What Q.J.A. Means QJA is established to • Encourage high ethical standards of conduct of Members in performing their Office.

• Promote and maintain the status of the Offices of JP and C.dec.

• Provide Members with advice on the duties, rights and obligations of the Office they hold.

• Represent the interests of Members specifically and the Office generally to the Government and to the general community.

• Provide education and training to advance the interests of Members and potential members.

• Monitor relevant changes in legislation, assess the impact of these and advise Members accordingly.

• Provide Members with a forum for the exchange of views and ideas.

• Promote fellowship and goodwill between the Members.

• Promote fellowship and goodwill between Members and Office holders who are not Members as well as Justices of the Peace from other jurisdictions.

QJA exists to support members in carrying out their Office as Justices of the Peace and Commissioners for Declarations.

As a member you have access to an organisation that promotes the ideals set out above. Membership costs less than a dollar a week for which you receive four journals a year that cover current, topical matters relevant to JPs and C.decs. Membership fees are our major source of income. QJA also provides at minimal cost members badges, car and letterbox stickers, ID cards, certification stamps and other materials to assist JPs and C.decs in carrying out their duties.

Our training courses provide primarily for persons wishing to become JPs. Our Annual State Conference is designed to update Members on their duties. We also support local refresher courses, professional development and training information to Members through our Branches to keep members up to date.

The Branch System A feature of QJA designed to assist in meeting its ideals is the development of the Branch system throughout the State.

Over the past several years the Association has worked towards establishing new Branches in areas where Members felt a need to do so. This has been for a variety of reasons but the fundamentals of the Branch system is for Members to manager their needs in their own areas.

State Office does provide a guide for the operation of Branches but it is the Branch itself that determines what it needs.

The guide is based on the provision of professional development for the Members in the area covered by the particular Branch.

If, for example, the Branch meets six times a year, five of the meetings could be addressed by guests who can speak on topics relevant to the work carried out by J.P.s and C.decs. These include addresses by Police on Warrants and other documents they use, Court officials on documents used in Court Proceedings and Court process and Public Servants who can enlighten Members on their specific requirements in their locality. This last point varies significantly from area to area. While the Department of Primary Industries may be relevant in some places, a spokesman from Mines Branch might be more relevant in your locality. The sixth Branch meeting could be more of a social gathering to further networking aspects of the Branch.

The Board encourages Members to form Branches for their own benefit and it will provide assistance in developing Branches.

It is vital that you continue to support us so we can support you. If you have any suggestions please take time to write to the Board of Directors so the QJA can be responsive to the wishes of Members.

JUSTICES OF THE PEACE NETWORKING AT CAPALABA BRANCH REFRESHER COURSE

Keith Gill (Manly West), Sue Koenig (Capalaba) & Ian Hawes (Carindale)

Dudley Orchard (Capalaba) & Keith Taylor (Pacific Pines)

Ian Smith (Victoria Point), Ann Whitby-Jones (Capalaba) & Oscar Wenzel (Mt Ommaney)

The QJA Journal is compiled by an Editorial Board on behalf of the QJA. Editor Dr Anthony Watson-Brown

Sub-editor Mrs Bernice Lippiatt

Sub-editor Mr Garry Franke

The views expressed in articles & advertisements published in the QJA Journal are not necessarily the views of the Queensland Justices Association or the Board of Directors. © Queensland Justices Association claims copyright in all material published in this Journal. No material may be copied or reproduced without the written consent of the QJA. Printed by IPG Print, Telephone 07 3350 4262, 4 Millway Street Kedron Qld 4034.

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Serving JPs and C.decs Throughout Queensland