VOLUME 3 • NUMBER 1 • AUTUMN 2006
QJA — Established in 1918
3
Official Magazine of the Queensland Justices Association
PRESIDENT’S LETTER FROM THE BOARD LATIN & LEGAL PHRASES
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ROLL OF HONOUR new members
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NEWS IN BRIEF
7
EDITORIAL
8= ARTICLE
Has the pendulum swung too far in favour of victims? Michael Bosscher
10 Q & A
Attorney-General Ms Linda Larvach with President Bob Pilkington at State Law House
Members Questions & Answers
QJA affirms its relationship with the State Government
11 ARTICLE
Family Law Dianne Pendergast
QJA President Mr. Bob Pilkington JP (Qual) recently met with the State Attorney-General Linda Lavarch at the Attorney’s office to re-affirm the Association’s commitment to the cause of Justices and Commissioners.
13 MERCHANDISE 14 BRANCH CONTACTS
In a frank, friendly exchange of views, the Attorney welcomed Mr. Pilkington and Vice-President Dr. Anthony Watson-Brown. The President noted the QJA’s good working relationship with the Department of Justice’s JP Branch and the complementary role that the Branch and QJA State Office play in supporting JPs and C.decs throughout the State.
TRAINING
15 MARRIAGE CELEBRANT’S COURSE
QJA MEANS 16 WHAT TO MEMBERS
Among the matters raised the President indicated that the Association did not draw on Departmental funds and apart from a grant from the Gambling Community Benefit Fund QJA received no government assistance. However, the Association sought the Government’s endorsement rather than cash funds. As a Membership Association that sought to uphold the ethical standards of Justices, it was appropriate for the Government to endorse QJA as the body that JPs and C.decs should turn to for professional development and mutual support. The Attorney agreed to consider the representations fully. Serving JPs and C.decs Throughout Queensland
The
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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) 32 Blackstone Road, Newtown Q 4305
Telephone: (07) 3812 1865 Mobile: 0438 121 865 e-mail: bob.pilkington@qja.com.au
VICE PRESIDENTS Mr Doug Hull JP (Qual) P.O. 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)
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
Office Hours: Mon – Fri 9.00am to 5.00pm
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
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President’s Letter I reported in the last Journal that Vice President Anthony Watson-Brown and I had met with the Attorney General in November. This meeting was cancelled after the Journal went to print. However both Anthony and I have since met with the Attorney General. Matters discussed included the better utilisation of JP’s in the court system and the continued co-operation between the Justice Department and the QJA. All matters raised were well received by the Attorney General. The Board of Directors has started planning for this years State Conference and would appreciate any input as to what subjects you would like to be included for discussion. The date and venue for the Conference will be advised as soon as the Board confirms it. This year Queensland hosts, in the latter half of the year, the Annual General Meeting of the ACJA. This meeting involves
Justice’s of the Peace from all Australian states. Unfortunately attendance at this meeting will be by invitation only. It is very pleasing for the Board to see that membership of the Association is increasing steadily and I ask all members to assist in this matter by urging colleagues to join the QJA as increased membership benefits all. Finally thank you for your continued support to the community as a member of the QJA
Bob Pilkington PRESIDENT
From the Board The Board has met three times so far in 2006. In addition to the matters raised in the President’s letter, discussion of long term planning has been high on the agenda. Branch expansion is planned for the west with Director Ray Young intending to go to these centres during the year. Reports of developing signing centres through the whole State indicate a strong feeling of Members for these facilities. The Board also endorsed the proposal put to the Attorney that JPs be considered for use in a community based court in the mainstream of society.
The independence of QJA from any strictures that tied grants or conditional arrangements has also been discussed with the Board not favouring this approach to funding. Growth of membership is the key priority in the Board’s consensus view. Good news is that finances have been controlled better in the past months with a small surplus likely for this year.
HAPPY EASTER
Latin & Legal Terms for JPs & C.decs Actus reus
A prescribed or guilty act.
Negligence Failure to use the degree of care a
reasonable person would have used in the circumstances.
Adjudicate To reach a final decision; to decide in court. By-laws Regulations made by a local authority or
instrumentality, under authority delegated by Parliament. (Now called “Local Laws” in Queensland). Covenant
Post mortem
Probate The proof of a Will in the Supreme Court.
Also a copy of a Will bearing the court’s seal, when it has been admitted to probate.
A promise or undertaking in a deed.
Damages Money claimed or awarded by a court as
Recognizance A bond by which a person acknowledges
an obligation to pay the Crown a sum of money, if some other obligation is not fulfilled.
compensation for loss or injury. Executor A person appointed by a Will to distribute
a deceased person’s estate. (fem. Executrix) Injunction A court order requiring a person to do, Intestate
Res ipsa loquitur The thing speaks for itself.
or cease doing, a particular thing.
Status Quo
The former position.
Dying without leaving a Will.
Statute
An Act of Parliament.
Law Reports Reports of law cases published annually
in volumes. Only cases of importance in deciding questions of law are published. Mandatory
After death.
Compulsory.
Tortfeasor A person who commits a tort (a civil
wrong). Voir Dire To speak the truth. Sometimes referred to as a trial within a trial where a person called to give evidence is examined to ascertain that person’s competence to be a witness. Serving JPs and C.decs Throughout Queensland
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Roll of Honour The Association wishes to note the long service given by the following Members under their commission:
GOLD – 50 YEARS + OF SERVICE ATTAINED DURING 2006 John Ashmead Joseph Boardman Ian Flint
Kenneth Foote Elwyn Franke Ronald Green
Clifford Greenfield Gloria Marshall Lawrence Luscombe William Mc Gregor Raymond Macoun John O' Keefe
William Payne Giuseppe Rinaudo Thomas Spowart
Jack Sweetman Ranald Winks Sybil Wippell
The Association wishes to note the long service given by the following Members under their commission:
SILVER – 25 YEARS + OF SERVICE ATTAINED DURING 2006 Phillip Bale Beverley Basnett Margaret Beardwood OAM Burton Beaumont Michael Bell Paul Bruckner Aileen Burgess Leo Camm Colan Carleton Maria Cavazza Alan Chapman
Patricia Church Rhonda Clark Gregory Clarke Anthony Cooper John Couchman Terry Cranwell James Dawes Barry Dinneen Michael Dowling Garth Dunford Andrew Esposito Thomas Foster
Mary Fouracre Raymond Francis Martin Gaffney Trevor Garrard Colin Geiger Michael Grant Douglas Hands Delcia Harris John Henry Victor Horsfall Harvey Hughes
Grahame JardineVidgen Murray Johnson Robert Johnson Diana Jones Bernard Kershaw Dudley Laird Noel Lindsay Elaine Long Paul Malone Arthur Mann Lynnella Massy
Ethel Mc Nae Graeme Mc Neill Jacqueline Mergard Robert Miller Philip Moxon Alwyn Oaten Ray Powell Maria Raineri Brian Ramsey Russell Renton Bruno Ribone John Rogers
James Runham OAM Judith Skalina Rowan Slect Brian Towell Kathleen Watson John Wearne A.M. Charles Wemyss Edwin White Elizabeth White Darryl Williams
M L Moylan B J Moylan M O' Sullivan J A Ormsby A D Orvain L M Palmer B D Pascoe P Pasnin S Peters T T Pham A D Posgate S Prasad S G Raybould W N Reilly A R Rennie K A E Reye G J Ross L J Rostedt G G Ruddell A Ruthenberg F San J Sankey Y M Sanson F G Schofield M Selby R R Shallis D V Sheldon
C M Sherriff Y C Skelton T R Slaughter E Southeron S Sta Ines K Sternes C J Sutcliffe C Thompson M A Thomson R E Tihema A A Timmers D V Trask M D Trohear J C Trudgian P J Van Riet D H Venables K R Walker C J Wallis J W Watson G J Wilkes C C Williams R A Window T N Wollington
Welcome to New Members The following have joined the Association since the Summer 2005-06 Journal. E M Adam B J Chapman D L Akroyd K J Chatfield A V Andrews J F Chisnall T J Aspinall A M Christie J A G Baker B Coley N S Balderson G Cooksley V G Balfour I Cox L J Barlow A J Crouzet G E Barnard B R Davis E T Bartlett S J Davis C A Bartlett L H Davison R A Bennett S G Delzoppo S Bisson J K Deo S M Bodger E S Dibley A Bostock C E Dulhunty P D Bostock A Duncan K J Bradtke G Dyne R K Brady B M Eagle B M Branson D A Equinox R G Brock M W Estell J H Brown I L Every K L Brown OAM A E Farquhar M E Campbell S G Fleming R F Carter J K Gallard K M Chambers G Gardner • Serving JPs and C.decs Throughout Queensland V W Chan I W Garvie Y Y Chang K Gatehouse
R Gear P J Gleeson K V Gowell R C Grundy M Guillemain J C Hammond J A Harvey F B Haydon M E Hill D J Hill J Hinspeter V W Hitchcock B R Hooper M W Hopkins M M Housden E J Howarth D F Hugo D J Imarisio P T Jackson R A Jean R E Johnson E L Johnson H M Jones P A Jones B G Kershaw L T Kirwan D R Koeppen
E J Lally N G Lange J A Lashmar R D Lavington L L'Estrange M E Li L Lindley L A H Lovell D A Lumley A Mac Donald K E Macbeth G I Mallett M R Manitta V J Marmont M L Marsden J Martin R P Mc Askill R A Mc Beth I Mc Connell A F Mc Innes G Mc Laughlin N S Mc Mahon T J McClelland R E Miers A Monkhouse G A Morris F J Morris
Vale We have received with sadness notice of the passing of the following Members Duncan John Bird
Ronald Vincent Bradford
Serving JPs and C.decs Throughout Queensland
Marjory Mavis Stevens
Frank Charles Van Ophem
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News In Brief Family celebrations The Franke Family recently celebrated when son Garry Franke, JP (Qual) with 31 years experience as a Queensland Justice presented his father Elwyn Charles (‘El’) Franke a personalised embroidered QJA plaque to celebrate El’s 50 years of service as a Justice of the Peace. El Franke, apart from a long and distinguished career as a JP also served his country in World War II returning home to rise to the rank of Deputy Comptroller of Prisons within the Queensland Prison Service.
Garry Franke presenting his father “El” Franke with a plaque to honour 50 years of service as a Justice of the Peace
Bank Changes After considerable discussion the Board has decided to change the bank for the Association. QJA was unable to continue on a fee free basis with the former bank despite our status as a not for profit organisation and the amount QJA turns over each year. Bank of Queensland, Forest Lake Branch Manager David Armstrong, himself a Member of QJA, offered to provide fee free account keeping, The services for other matters were comparable to or better than other banks. The Board decided it was an offer too good to refuse and switched to the Bank of Queensland.
Looking to attract active members Pacific Pines Branch located in the Gold Coast hinterland is looking for ways to encourage members to attend Branch meetings. Having managed their finances well since their creation the Branch Committee recently resolved to reward members who attend meetings. A member with more than six months membership will receive a prize in the form of a new manual, log book, pen or other JP needs if they turn up to the bi-monthly meeting. The offer is only open to financial members of the Branch and the prizes must be collected personally. By the way, the members also receive professional development training at the meetings – not a bad offer.
Laidley welcomes signing centre
Members and Branches are invited to enquire at the Bank of Queensland, Forest Lake Branch for more competitive rates and services.
Laidley in the Lockyer Valley now boasts its own signing centre. Like some other regional areas the new Centre in the Laidley Shire Library is a joint venture, in this case with the Lockyer Valley Crime Stoppers.
The Association is looking forward to a long and fruitful arrangement with our new banking partner.
The Signing Centre operates on a Saturday morning to provide regional coverage for JP services.
Serving JPs and C.decs Throughout Queensland
The
Q.j.a. journal News in Brief – Continued Gold Coast expands its services The Gold Coast Branch recently celebrated a return to Stockland Burleigh Heads Shopping Centre. Signing at the recently expanded shopping centre provides a welcome service in the lower central Gold Coast. A little further west and north, the Branch opened a new signing centre at the Mudgeeraba Village. With support from members of the Pacific Pines Branch, Gold Coast also launched the new Westfield Shopping Centre signing centre at Helensvale, next to Helensvale Railway Station.
more volunteers to man its service in North Quay. Any one who thinks they may be able to assist, please ring the Court Registry on 3246 2372 or Mark Davis at QJA State Office for further details.
Changes to Land Titles Act do not affect witness requirements Recent changes to the Land Titles Act and the Land Act to tighten requirements for lenders to ascertain the identity of borrowers to avoid frauds like the Zara Lee Russell scandal reported in the QJA Journal Winter 2004 when Ms. Russell adopted the identity of one Leslie Robert Gardiner and mortgaged his property fraudulently. Ms Russell convinced the staff at the lending company and the lawyers’ firm when she signed the documents that she could have effectively a male name! While the changes have a significant impact on the lenders, the new arrangements do not change the requirements for JPs and C.decs in witnessing land title documents. Members are reminded that they must be satisfied as to the identity of the person signing the documents and their right to deal with the interest in the land. This can in most cases be satisfied by seeing the lawyer’s letter forwarding the documents or a letter from the lenders. It is the lender who now carries the burden of ensuring the identity of the borrowers.
New Commonwealth Stat Dec Form Peter Brooke JP (Qual), Christine Smith MLA, Ray Young OAM JP (Qual), Meredith Ham, Marketing Manager & Dr Anthony Watson-Brown JP (Qual) at the opening of Stockland Burleigh Heads Signing Centre .
Hervey Bay new services While services are opening around the State, the Hervey Bay Branch recently extended services with another signing centre at Piabla in addition to the services offered in Bay Central, Hervey Bay. State Member Andrew McAlister MLA officiated at the opening of the new centre.
Government Services supported QJA members pride themselves on service. The members do not restrict themselves to specific QJA run signing centres. Recently when the State Government opened its new inner city service in State Law House on the corner of Ann and George Streets, Brisbane, QJA’s Gil Rossner JP (Qual) was on hand to help with his services. Gil is well known to the Association’s membership as a former senior trainer who has trained over 200 JPs for their initial exam. Members of the Association will be found in almost every courthouse that provides the service. Speaking of such places, the Family Law Court Registry in Brisbane is looking for
Serving JPs and C.decs Throughout Queensland
The Commonwealth has released a new form of Statutory Declaration. The main change is a clearer signing clause. Members are advised that the old form should not be used. Declarations produced on the old form may not be acceptable to Commonwealth (Federal) departments and institutions in the future. The new form of signing clause is as follows: I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 11 of the Statutory Declarations Act 1959, and I believe that the statements in this declaration are true in every particular.
New Index for New JP (Qualified) Manual QJA Members are clever people. First Nathan Williams JP (Qual) of Mudgeeraba wrote the initial index for the previous edition of the JP (Qualified) Manual. Now Maria Rosseeuw JP (Qual) also of the Gold Coast Branch has produced a very comprehensive index for the new 2006 edition of the Manual. Bigger, better and an absolute must for the person who takes JP duties responsibly. You will never miss any point for even the most unusual case in the future. Easy to use, the new index is supplied free to QJA Members who buy their new Manual through the Association.
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Editorial QJA – the ‘preferred’ body for JPs &C.decs
Use of JPs in a Community Court
Should the Justice Department endorse QJA as the Members’ Association JPs and C.decs should join?
Another important issue for the Association to pursue is the broadening of the role of JPs into community based courts.
This is an interesting question, bearing in mind the lack of compulsion under the Justices of the Peace and Commissioners for Declarations Act 1991 for Justices or Commissioners to keep abreast of changes to the law as it affects them. Having passed the initial open book exam or answered the questions by correspondence, Justices and Commissioners may continue to act under their respective Commissions “ ‘til death doth them part” (apologies to the wedding vows). It is a matter that the Association has put to the State Attorney General in recent discussions.
We have witnessed success in the Indigenous Community Courts and a similar experiment in the wider community would have a positive impact on the administration of justice in Queensland.
QJA has been serving Justices of the Peace since 1918. For much of the 20th Century QJA provided the only source of professional development to JPs throughout the State. In recent times at the expense of taxpayers, the administrative arm of the Justice Department began offering a telephone service to JPs and C.decs who ran into difficulties exercising their powers. A series of Justice Papers has also been issued periodically to assist. It is clear however that to be a current Commissioner or Justice more is needed than the State’s solution. For the State to do more is a burden on the taxpayers that is unnecessary. QJA can and has offered to supply the support at an even more reasonable rate than we currently charge for membership if we increase our membership. It is a simple matter of economy of scale. At 5,000 members we can operate at the current level of subscriptions. At 10,000 members we could reasonably reduce the annual subscription by about 40%. As a private body we can negotiate better insurance coverage for members at a much lower premium than the State has been able to arrange for their signing centres based outside the Courts. The recent venture into the JP in the Community exercise by the Department has been an expensive one. To set up a number of small isolated signing centres it would be reasonable to guess the Government has spent more than QJA’s annual budget – for what additional benefit? By entering into a memorandum of understanding with QJA and endorsing the Association as the recommended body for JPs and C.decs to join, the Government would save unnecessary expense and QJA would be able to do what it as a membership association does best – looks after its Members. We are not a political body but that does not prevent Members from raising this point with their local Member of Parliament.
Prior to the reforms that brought us the Justice of the Peace (Qualified), for the entire existence of the Colony and later State of Queensland, Justices sat in court and adjudicated. The irony of the reforms is that they produced a better qualified Justice of the Peace but removed that person from the adjudicating role. Before anyone points to the so called minor bench duties role of the Justice of the Peace (Qualified) let us all recall the last time any of us sat in court as a JP. Few will remember it happening in Queensland. It would be advantageous to the current system of justice if the sector of the matters that reflect a community interest was set aside for selected and trained Justices to preside in pairs (as they did previously) to adjudicate matters, important to the community but which absorb an inordinate amount of trained Magistrates’ time. Our paid Magistrates are now treated on a par with Judges, being referred to as “Your Honour” in Court. They are qualified Legal Professionals being either Barristers or Solicitors of at least 5 years standing. Their time is precious and should be used in serious matters involving complex legal issues or the freedom of the individual in more serious criminal matters. Small claims including the ever present dividing fence arguments, adjournments for hearing, bail applications, traffic court, regulated parking offences and possibly dog appeal cases are matters of importance to the parties but which could be more than adequately dealt with by Justices. The people sitting as Justices would need additional training to cater for the wider role and would probably become Justices of the Peace (Magistrates Court) like those sitting in the Indigenous Community Courts. The source of the candidates would be suitably found in the ranks of the Justices of the Peace (Qualified) who now serve the community. It is interesting to note that Justices sit in Bail Courts and similar roles in most States. Western Australia and Victoria have provided this service continuously during most of those States’ existence. South Australia has recently returned JPs to the bench to deal with minor matters. The Justices in these States receive tailored training to ensure the highest standards. Probably the single most important feature of all of these roles played out by Justices throughout Australia is that the service to the community is voluntary.
Serving JPs and C.decs Throughout Queensland
The
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“Has the pendulum swung too far in favour of victims?” Following is the adapted text of an address given to the Queensland Criminal Law Society’s Workshop by Mr. Michael Bosscher BA., LL.B. Accredited. Specialist (Crim.) Managing Partner, Ryan & Bosscher Lawyers Brisbane. The question was recently posed in the Queensland Criminal Law community, “Has the pendulum swung too far in favour of victims?” It is my belief that we presently have the balance somewhat out of kilter.
Erosions in Defendant’s Rights There have been serious erosions in the position of a defendant in a criminal proceeding in recent times. Examples include erosions in the breadth of a cross-examination that is allowed, the ability to strenuously test issues of credit of a witness, and to be able to lay a strong foundation in a committal proceeding. Queensland is slowly following some of the roads travelled by other jurisdictions such as New South Wales and South Australia in adopting some of the limits that those jurisdictions placed on a defendant in the criminal process.
Failure to adopt safeguards Whilst we are embracing some of these restrictions we are not taking the opportunity to grasp the safe guards that go with them, and in failing to do so, we are slowly letting the balance tilt too far in the favour of the alleged victim.
The exceptions to the restrictions limiting a cross-examination of a vulnerable witness that have been enacted in Queensland are significantly more limited than those that exist in other jurisdictions, not only in their form but also in their practical application. The restrictions on the form are a statutory choice but the restrictions on their practical application come from the narrow exercise of the necessary discretion. Some might say that this is simply a case of the relevant tribunals feeling their way through a new, and philosophically different, statutory regime, but it must also be seen as having the effect of shifting the balance away from an accused person. A balance out of alignment in this way can only go towards the further watering down of an already diluted principle – the presumption of innocence.
Recent legislative change In the last five years alone, we have taken significant legislative steps which have had the effect of making the criminal trial process more difficult, and more likely to result in an adverse result for an accused person. Further examples of this include: • T he powers of law enforcement authorities to search and seize have been dramatically widened;
One of the most recent and dramatic examples of this imbalance are the limits which are now placed upon an accused person to cross-examine certain classes of witnesses at a committal proceeding.
• T he application of the hearsay rule, particularly in sexual offences, has been diminished and diluted;
Protection of vulnerable
• T he ability of an accused to test the evidence of a complainant through cross examination has become far more limited;
Whilst it is hard to seriously challenge a philosophy that seeks to protect particularly vulnerable individuals who have potentially been the victims of horrendous activity, there should always be an exception to the rule. Other jurisdictions, particularly New South Wales and South Australia have, when enacting their legislation to protect the alleged victim, provided sufficient and adequate provisions to enable cross-examination, or at least a restrictive crossexamination, where in the circumstances of the relevant offence, it is warranted. These jurisdictions protect their vulnerable classes of witness but still leave appropriate avenues available to protect the rights of an accused person to a fair process and ultimately to a fair trial.
Lack of balance Here in Queensland however, we have taken the restrictive elements of these jurisdictions but we have not captured the
philosophy of the balance that is required, to ensure that the defendant’s rights are also protected.
Serving JPs and C.decs Throughout Queensland
• T he right to trial by jury appears to become more limited every time Parliament sits;
• T he members of various classes of “protected” or “special witnesses” has grown enormously; and • T he availability of a number of defences has become more limited and their application far more restrictively applied. The majority of the changes that have occurred are based on politically popular principles. Few want to extend or aggravate the suffering of a genuine victim and nobody really wants to add to the damage that may have already taken place with a victim. The prevention of an accused personally cross-examining a complainant in a sexual offence seems sensible to the majority. A notion that a child should generally only be subject to cross-examination once is, in the ordinary courses of events, a reasonable one.
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“Has the pendulum swung too far in favour of victims?” – Continued Need for balance However, even a good and altruistic statute can affect the balance of the process. It must always be remembered that some people who purport to be victims are simply liars. False and malicious complaints are made. Accused persons, in these cases, are the victims. No person involved in criminal law could dispute this statement.
Secondly, Queensland has taken numerous steps in recent times to limit the ability of an accused person to attack the credit and character of a complainant or of other witnesses giving evidence in the trial process. This could be balanced by allowing an accused person to call evidence of good character without the artificial restrictions that are currently imposed.
The Judges bench book has a direction to the effect that false complaints are made and that the motivation for them often cannot be unmasked.
If on the one hand the State is going to limit, and some believe appropriately, an attack on character then that should be balanced by allowing an accused person to lead evidence of good character in a less restrictive way.
As definitively as there are genuine victims of crime, equally definitively there are liars. In these cases there are still genuine victims but they sit in the dock, not in the witness box.
Thirdly, the State should reimburse the legal costs of a defendant who is acquitted after a trial.
As strenuously as the genuine victims of crime need to be protected equal measure must be given to protect an accused person through out the criminal process.
Need for remedy The pendulum has swung too far and the balance has disappeared. One might then ask; “How can this situation be fixed? Do we turn back the clock? Do we take away all the advances that have occurred on the one side to make the process so much more civilised and fair to the genuine victim?” Nobody could seriously advocate we follow that path. That does not change the fact, however, that the balance is still out of kilter. What we need to do is add some more weight to the other side of the scales. We need to put in place measures that do not dilute the changes that have occurred but simply redress the balance in the entire process.
Three practical changes Outlined below are three practical suggestions for consideration;
Any criminal lawyer would know that trying to explain to a client the whole “social contract” theory after they have been acquitted, and why they cannot recover their costs, their reputation, and often their relationships, is the most hollow speech in the world. To them it just seems the ultimate insult and grossly unfair. They have done nothing wrong and have been dreadfully punished. Often the expenses they have been forced to incur have been ruinous, and one might expect that they should be put back into the same position, at least financially, as before the process started.
Conclusion These are just three practical examples of things that could be done to go someway to realign the balance. A victim is entitled to feel that they are being treated with dignity, respect and compassion. Many of the legislative changes that have occurred have gone someway to assist in this process. An accused person should also be in a position where they feel that they are being treated with dignity, respect and fairness. We do not need to diminish those steps that have been taken to assist the victims of crime, what we do need to do is take positive and proactive steps to realign the balance.
Firstly, Queensland could adopt another of the practices of our counterparts in New South Wales, namely give back to an accused person the right of last address in all Trials, regardless of whether or not the defence goes into evidence. This would have the effect of removing the agony that an accused person goes through, in nearly every trial, on the question of whether or not to give evidence in their own defence and give away that right of last address. Why should an accused person be forced to give up something in order to maintain that practical, and real, advantage? The right to have the final say to a jury against accusations that are made against you should not be something that is traded nor should it be something that is subject to a tactical consideration. Our State should allow an accused person to be able to speak to a jury, to tell their story, to be cross-examined, without being penalised and without having to give up the right to have the final statement to the accusations made against them. That would go some way to realigning the balance.
Ryan & Bosscher Lawyers Brisbane Office Tel:
(07) 3229 3166
Fax:
(07) 3229 3438
Sydney Office Tel:
(02) 9266 0708
Fax:
(02) 9266 0709
Email: michael@ryanbosscher.com.au
Serving JPs and C.decs Throughout Queensland
The
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Members Questions & Answers
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Q Recently I came across a Statutory Declaration to be made by a person to say that they were entitled to sign the Land Title document they wanted me to witness. Is the Stat. Dec. needed? Can I witness both documents, ie., the Stat Dec and the Land Title document? A. The Land Titles Act does not require a statutory declaration to support the Land Title document.
Recent changes to the Land Titles Act that tighten the requirements on lenders to ensure they are dealing with the person who has an interest in particular land do not change any of the authorized witnesses’ duties under the Act. For us it is business as usual. Q. I am a JP (C.dec). I regularly am asked why I do not have a stamp and a number. Can you give me an authoritative answer so I can satisfy this question particularly when I am signing Land Title documents. A. JP(C.dec)s do not have a stamp or number.
Some time ago it was thought that the statutory declaration would lessen the likelihood of fraud but after further consideration the Registrar of Land Titles advised it was unnecessary to sign a supporting statutory declaration.
They are still empowered to witness the same documents as a Commissioner for Declarations and that includes Land Title documents. The authority is the Justices of the Peace and Commissioners for Declarations Act 1991 section 29(5).
As authorized witnesses to Land Title documents, we are required to be satisfied as to the identity of the person signing the document, their right to deal with the interest in the land the document affects and that they understand what they are signing..
To witness a document the JP (C.dec) simply signs their name and appends the title in either long or short form. Section 31 of the JP&C.dec Act 1991.
A photographic identity card such as a driver’s licence or other suitable and adequate documents will give us enough to be so satisfied. We do not have to undertake a “100 points” test that banks require but we must be reasonably satisfied as to the person’s identity. The second point on witnessing Land Title documents relates to dealing with the interest in the land and understanding what the document does. Few of us are lawyers so how do we make ourselves satisfied on these points? Ask the client if the documents came from a lawyer and ask to see the lawyer’s letter. If the document has come from a bank, the bank letter will also help you to know what the transaction is about so you can ask some simple questions. If it is a transfer, you can ask if they have sold their property. Most clients will not take offence. If they do comment, explain you have a role other than just witnessing a signature under the Land Title Act. This is to assist in protecting their rights in the land. If the documents are loan documents ask if they are buying or re-financing. If they do not understand any of the questions, ask more to ensure they understand what they are doing. In particular, if the person is a senior citizen, be very circumspect if the documents relate to guaranteeing a loan for a child (it could be a very mature child). Try to ensure the person has had the opportunity to receive independent legal and financial advice on the matter before signing the documents. 10
Senior citizen abuse is often in the form of a child taking advantage of a parent’s property by way of borrowings and guarantees.
Serving JPs and C.decs Throughout Queensland
Important Notice to Members Renewal of Membership 2006 – 07 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. A renewal form accompanies this Journal. 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 card is free. Annual Fees are as follows:
Ordinary Membership Concession Rate Husband and wife both JPs
49.20 37.20 60.00
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. PLEASE QUOTE YOUR MEMBERSHIP NUMBER
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FAMILY LAW This is the second in a three-part series of articles by Ms Dianne Pendergast, Senior Registrar of the Family Court, Brisbane Registry.
5. Any alterations which are apparent on the face of the affidavit must be initialled by both the deponent and the witness.
Family Law continues to undergo considerable change, as the government, stakeholders and the community groups continue strive to implement a system which not only delivers justice and equity to the parties, but is regarded by the community as delivering those outcomes. Because of the impact the breakdown of families has throughout our community, the concepts involved in family law and how those concepts are implemented continues to be controversial.
The court does require strict compliance with its rules: substantial compliance is sufficient. The registry is sympathetic to the difficult circumstances a client who comes before our court faces, particularly if they are acting for themselves. However the five features identified above will be rigorously enforced by the court and non-compliance in those respects is likely to lead to the document being rejected.
The next major change to the system is likely to occur in July 2006 when it is anticipated that the Shared Parental Responsibility Bill will significantly amend the manner in which disputes concerning children are managed and determined by the Family Law Court and Federal Magistrates Court. The changes this bill will introduce to the act will be the most significant since the legislation was first passed in 1975. Despite those changes, the method by which evidence is at first instance provided to the court will continue to be by affidavit. Justices of the Peace therefore will continue to have a fundamental role in ensuring that material is properly placed before the court. This article will cover the following topics: 1. Affidavits in the family law. 2. Attachments. 3. Affidavits by blind or illiterate persons. 4. Affidavits by children. 5. Pitfalls in affidavits. 6. Changes to the system – the Shared Parental Responsibility Bill. 7. 1300 number 8. Justice of the Peace Program
Affidavits Affidavits are of particular importance in the Family Law system because all evidence in chief is initially given by way of affidavit. This occurs regardless of whether a matter is listed in the Family Court, the Federal Magistrates Court or a State Magistrates Court. In comparison, in criminal law the witness does not swear an affidavit but gives there evidence orally to the court. In both cases, the adversarial system of justice gives to the party opposing their case the right to cross-examine their evidence. The rules do not prescribe a particular format for the affidavit but rather identify the following as important features of all affidavits:1. Each affidavit should state in full the name of the deponent; 2. The affidavit should state the date and place it is sworn; 3. The affidavit must be sworn in the presence of a witness; 4. The affidavit must be signed at the bottom of each page by the deponent and witness;
Attachments Documents attached to affidavits should be firmly attached to the affidavit. The document is going to placed on a Court file and will be from time to time removed from that file for the purposes of allowing various Judicial Officers to read the material and determine applications before them. It is important therefore that attachments are secured firmly to the main part of the document. Usually this is done by way of staple: a paper clip is never sufficient for this purpose. In some cases attachments can be too large to be reasonably attached to the affidavit. In that case the affidavit should identify clearly the attachment and the attachment should be filed as a separate document. Attachments to affidavits must be signed by the witness identifying the attachment as the document mentioned in the affidavit. The following is a brief outline of what an attachment marking may look like. Obviously it is not prescriptive and there are other forms of attachment markings that will be accepted by the Court. However it is suggested that something along the following lines is useful : This is the attachment marked “A” referred to in the Affidavit of (deponent’s name in full) sworn before me this day of 2006.
Witnesses signature
Witnesses qualifications
Affidavits by illiterate or blind persons The role of the witness in circumstances where an affidavit is sworn by an illiterate or blind person is crucial. The witness must certify at the conclusion of the affidavit that they have read to the deponent the affidavit in full. They must further state that the deponent seemed to understand the affidavit as read to them. Finally if the deponent is unable to sign the attestation clause, the witness must certify that the deponent indicated to the witness that the contents of the affidavit were true. It is common for illiterate or blind persons to have a form of signature that they commonly use for legal documents and no difficulty will arise if that form of signature is applied to the attestation clause.
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Q.j.a. journal FAMILY LAW – Continued Affidavits by children Children should never swear affidavits in relation to family law disputes. A child is defined in the Family Law Rules as a person not yet 18 years of age. The only situation when an affidavit should be sworn by a child is where the court first orders that the affidavit can be sworn. I recommend that all persons asked to witness an affidavit by a child in Family Law proceedings ask to see the court order permitting the child to swear the affidavit before they witness the child’s signature.
Pitfalls There are some common problems that the Court finds in documents, in particular affidavits, that clients attempt to file with the Court. Often these problems cause considerable inconvenience and stress to our clients, especially where the document is not accepted for filing. The common pitfalls that the court sees in documents filed with it are: 1. Attachments not witnessed; 2. Alterations not initialled; 3. Affidavits not signed at the bottom of each page 4. Documents undated. If you are able to assist by keeping an eye out for these issues, you will be doing a considerable service to both the court and our clients, and save us all considerable inconvenience.
Changes to the system – the Shared Parental Responsibility Bill. Currently the Shared Parental Responsibility Bill is before the Senate and is likely to come into effect on 1 July 2006. The Bill will significantly amend the Family Law Act 1975 and includes a number of recommendations made by the House of Representatives Standing Committee on Family and Community Affairs enquiry into child custody arrangements in the event of a family separation. The explanatory statement released by the government in conjunction with the bill highlights the governments view about the objects of the bill. The changes are designed to encourage a more co-operative approach between parents concerning parenting and to ensure both parents continue to have meaningful ongoing parental responsibility for their children despite the separation. Children will hopefully be given an increased opportunity to continue to have a relationship with both of their parents. The bill also recognises the terrible impact that violence in a family can have on children, and the need for children to grow up in a loving environment free from violence and abuse. There are provisions in the bill which clarify the relationship between domestic violence orders and orders concerning arrangements for children.
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Serving JPs and C.decs Throughout Queensland
The court will no longer make orders about “residence”, “contact” or “specific issues”, but rather orders will be constructed to reflect the reality of arrangements for the child. To ensure that children have the opportunity for continued involvement in the lives of both of their parents, the bill has changed the enforcement provisions of the Family Law Act, giving to the courts a broader range of powers to ensure that parents comply with orders made by the court. The circumstances in which lawyers will be appointed for children will be clarified and the role of the Independent Children’s Lawyer strengthened. The Federal Magistrates Court and Family Court will both have the same jurisdiction in relation to family law disputes, and discussions are occurring between the courts about how to manage this workload (particularly to ensure a common entry point and forms). Significantly the bill proposes a change to the way trials are conducted in disputes concerning children. The proposal is that those trials be conducted in a less adversarial way. The judge will be more actively involved in management of the trial, ensuring that evidence is only before the court in relation to issues that the court considers will make a difference in law to the outcome. One of the likely outcomes of these provisions is that hearings will occur over a timeframe of weeks or months during which time the evidence that the judge has indicated is important is gathered. It is also hoped that clients will become more directly participative in the trial, so that even where the result is adverse to them, they will consider that they have had a fair opportunity to present their case. As part of the funding in support of the bill, the government will be creating Family Relationship Centres to work in conjunction with parties to assist them to resolve the dispute before coming to court. Initially Relationship Centres will be built in Strathpine (Brisbane) and Townsville. Ultimately the government will have a number located throughout Australia. The changes the bill will cause to both the outcome and management of family law disputes will be considerable, and there is an important dialogue occurring between the courts and the Attorney General’s department about how the law will be affected. Over the next 12 months these changes will have an enormous impact on separating parents.
Justice of the Peace Program The Family Court is lucky to benefit from the assistance of Justices of the Peace, who volunteer to sit at our counter and be available to litigants who have failed to have their documents properly executed, or in many cases executed at all. The program is a volunteer program with Justices of the Peace being available at the Family Court Registry from 9.00am – 2.00pm daily. The Family Court Registry and the clients of the Court are indebted to Justices of the Peace for their generosity of spirit in manning this program. Of course, the Court is always looking for volunteers to assist with the work. If you are interested you can contact Sue Young on 3248 2220 to obtain more details about the program.
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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.
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QJA Branch Contacts BEAUDESERT – VALMAI MACAULAY PO Box 610, Beaudesert 4285 Telephone: 5544 6460
GOLD COAST – PETER BROOKE 3 Bonita Court, Mudgeeraba, 4213 Telephone: 5530 7579
REDLANDS – DUDLEY ORCHARD PO Box 481, Capalaba, 4157 Telephone: (07) 3207 2338
BUNDABERG – DAVE READ 24 Franklin Street, Bundaberg 4670 Telephone: 4152 3318
HERVEY BAY – JAN STAFFORD P O Box 1006, Hervey Bay 4655 Mobile: 0412 782 743
ROCKHAMPTON – RAY YOUNG OAM 102 Glenmore Road, Rockhampton 4701 Telephone: 4927 4155
CAIRNS – PETER VESELY 28 Illuta Street, Rasmussen 4815 Telephone 0408 208 958
INNER NORTHSIDE BRISBANE – DR ANNA KNIGHT 1/64 Alva Terrace, Gordon Park 4031 Telephone 3857 4163
SOUTH BURNETT – JAMES MCCANN PO Box 87, Yarraman 4614 Telephone: 4163 8461
CALOUNDRA – BERNARD KINGSLEY 2 Pennyroyal Circle, Currimundi 4551 Telephone 5493 1180 FOREST LAKE – ROBERT TAYLOR P.O. Box 126, Banyo, 4014 Mobile: 0402 685 414 GLADSTONE – STEPHEN MILLS 130 Auckland Street, Gladstone 4680 Telephone: 4979 1756 GLASSHOUSE MOUNTAINS – REV JOHN BARFOOT 54 Parkview Road, Glasshouse Mountains 4518 Telephone: 5438 7013
SOUTH PINE – BRYAN CARPENTER 70 Daniel Drive, Albany Creek 4035 Telephone: 3325 2595
IPSWICH – MARIAN VIERVEYZER PO Box 62, Goodna Qld 4300 Telephone: 3288 1652
TOOWOOMBA – ARCHIE TAIT 19 Panorama Drive, Glenvale, 4350
LOGANHOLME – JOHN BAILEY 30 Bingo Street, Holmview 4207 Telephone: 3287 1516
TOWNSVILLE – RUTH SCHOKKER PO Box 782, Aitkenvale 4814 Telephone: 4728 5500 (W) 4770 7040 (H)
NOOSA – ALLISON CALAGHAN PO Box 1445, Noosaville 4556 Telephone 5474 1430 PACIFIC PINES – PEARL DRIVER 54 Elevation Drive, Wongawallan, Qld 4210 Telephone 5502 7031
WESTERN SUBURBS – WILLEM BOSSCHIETER 55 Pallert Street, Middle Park, Qld 4074 Telephone: 3376 7206
We encourage you to contact the Branch nearest you.
Training The next JP (Qualified) Examination is on Thursday 11 May 2006 at 6 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 the State Office Manager at QJA House.
Refresher Course Capalaba Branch of the Q JA is hosting a Refresher Course for Justice of the Peace (C.Dec), Justice of the Peace (Qual) and Commissioner for Declarations.
YOU ARE INVITED When: SATURDAY 6th May 2006 8.30am registration for 9.00am Start Where: Cleveland Cultural Centre Auditorium 2 Middle Street, Cleveland Cost: $25.00 For catering purposes please register your intention to attend by Email (preferred), fax or phone. Payment by 21st April, 2006 to: The Secretary, QJA Capalaba Branch, PO Box 481, Capalaba 4157
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.
RSVP: George Dodds Email: ghd-2@bigpond.net.au Phone: 3207 2617
Sue Koenig Email: suekoenig1971@hotmail.com Phone: 3245 3696 Fax: 3245 3696
GUEST SPEAKERS Morning & Afternoon Tea, Lunch included
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Serving JPs and C.decs Throughout Queensland
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Serving JPs and C.decs Throughout Queensland
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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. We promote through our Branches discussion of topics relevant to members. Our organisation meets at least once annually as a whole body to further those discussions throughout the membership. Our training courses provide primarily for persons wishing to become JPs. We support local refresher courses, professional development and training information to members through our Branches to keep members up to date. Our Branch network has expanded to over 20 Branches. Please let us know if you want to participate in this exercise. If you live in an area that has an existing Branch you should consider using the facilities that the Branch offers and extend your JP network. It is vital that you continue to support us so we can support you. If you have any suggestions, please take the time to write to the Office Manager so the QJA can be responsive to the wishes of members.
Mike Weir JP (Qual) with client at the opening of Stockland Burleigh Heads Signing Centre
Dianne Pendergast Senior Registrar Family Court and Athar Shah JP (Qual) at a talk on proposed changes to the Family Law Act Gold Coast Branch Meeting
Andrew McAlister MLA with Branch Chairman Jan Stafford JP (Qual) at the opening of the Pialba Signing Centre
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 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. 16
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