Queensland bar election turmoil … Colditz replies … Cold shoulder for senate inquiry into contempt of court … Ructions in Adelaide as SA DPP flees bar association … Theodora reports 

Election returning office Jim Murdoch issued a missive to the rank and file saying that a candidate’s name had been left off the ballot paper.  

“In response, I have made enquiries, gathered evidence and received submissions from the member …” 

As a result there will be a fresh vote for all the practising members of the council, with the missing name included. Jim explained: 

“I am satisfied on the evidence that the member had a valid nomination form faxed on the members behalf (by a law firm) to the bar association office at about 10.30am on 26 October 2017. The log on the bar association’s Canon printer/facsimile/photocopy machine records receipt of a facsimile from the law firm at a matching time. 

The nomination form never found its way to me as returning officer. It has not been located despite the searches conducted last week. It seems to me most likely that the facsimile was inadvertently mixed up with other papers on the machine and ultimately misplaced.” 

Consequently, the voting for the practising members of council has been voided, votes already cast will not be counted, and a fresh vote held for this category of candidates. 

New voting papers will go out later this week, while the vote for the vice president and the “employed member of council” will proceed as normal. 

The new president has been chosen unopposed – Sandy Thompson QC.

As if this wasn’t disturbing enough there was news earlier in the month that the appointment of new Queensland silks had been delayed … 

Dreadful news. Appointment of new Qld QCs delayed because the government is in caretaker mode … pic.twitter.com/rDMb9qTojU

— Justinian (@JustinianNews) November 9, 2017

Sammy is running on a platform of multiculturalism, greater transparency in the appointment of silks, opposition to workplace bullying and replacing the term “junior counsel” with “counsel”. 

He ends his election flyer saying: 

“Should you chose to elect me I promise to do everything within my power to encourage others in the bar association to team up and fight for these issues?” 

What the question mark is doing there is a mystery. 

In a reply to Sambo, barrister Stephen Colditz raised a question that is on many lips: 

“Dear Mr Di Carlo,

Thanks for taking the time to email me about your candidature for the 2018 Bar Council.

I think it’s commendable for candidates to have thought about policy priorities and to communicate with members about them so that members may exercise informed votes. 

I thought that as you have extended me the courtesy of emailing me about your policy priorities, which I welcome and appreciate, I would email back about my reservations about supporting you in the present Bar Council election so that you have a fair opportunity to address them should you wish to do so.   

With compliments

Stephen Colditz” 

After the “Yarra Three” narrowly avoided referral by the Vic Supreme to be birched for contempt of court, the senate decided to refer the subject of contempt to the legal and constitutional affairs committee. 

The terms of reference are directed at probing whether common law principles should be abolished and replaced with statutory provisions that, presumably, make it easier for political dunderheads to say rude things about the courts. 

Another term of reference refers to: 

“… the importance of balancing principles, including freedom of speech and expression, the right of fair trial by an impartial tribunal, public scrutiny of the operations of the court system and the protection of the authority, reputation and due process of the courts.” 

Good luck with all of that. 

The inquiry hasn’t exactly captured the public’s imagination because by the time the deadline expired on October 31 the committee has received a minuscule six submissions.

The report is supposed to be unveiled on November 28. We can’t wait.  

What is going on, particularly as the DPP only signed on as a member after the bar overcame stout resistance to admitting people to its sacred ranks who were not truly independent barristers? 

Lurking in the undergrowth is a disagreement over amendments to the Criminal Law Consolidation Act, which followed the High Court’s decision in Chiro v The Queen. 

It concerned a provision of the Act that allowed the prosecution in child sex cases to bundle a series of sexual offences over a period of time into one charge called unlawful sexual relationship. The bar says it is supposed to be a charge of last resort in cases where young children cannot particularise the offences. Instead, it is now routinely used in most child sex cases. 

The prosecution is not required to allege the particulars of any unlawful sexual act and the court is not required to be satisfied of the particulars of any unlawful sexual interference. 

The High Court fiddled with the offender’s sentencing in Chiro, finding that if the sentencing judge did not know which of the acts of sexual exploitation the jury agreed had been proved, the offender should be sentenced in relation to the lesser of the range of offences. 

Following the court’s decision the government introduced amendments to reverse it. 

SABA president Ian Robertson sent the bar’s response to the Bill to the Liberal opposition, and Andrew McLachlan MLC kindly read it out to the Legislative Council on October 19. 

This bit from the bar’s missive must have jarred with Kimber:

“Chiro was a case about an unfair and lazy use of s.50 of the Criminal Law Consolidation Act 1935 by the prosecution … Encouraging charges relying on s.50 tends to encourage lazy and, we would argue, unfair prosecutorial tactics … The proposed amendment will, we contend, relieve the prosecution of thinking about what is the appropriate charge. It will encourage inaptness and promote laziness … 

The Bill will be conductive of laziness in prosecutorial practices and inevitably will lead to serious unfairness and miscarriages of justice.” 

Nine days after that was read into the parliamentary record, Robertson issued a missive to members saying that the bar’s opposition to the amendments remains even though they have been passed. Further: 

“Unfortunately, pressed for time, I did not give the response the attention that it deserved, provoking some criticism from the DPP. I have apologised to the DPP for my lack of care.” 

Nonetheless, Kimber has taken his bucket and spade and and gone home.