Media briefing: consent in sexual assault offences

Fri Nov 09 2007

The new president of the Bar Association, Anna Katzmann SC, hasn't wasted any time engaging the media. Together with Stephen Odgers SC, chair of the Criminal Law Committee, she went on a number of�talkback radio shows�expressing the association's concern about the�Crimes Amendment (Consent - Sexual Assault Offences) Bill 2007, which�was introduced�in�the Legislative Council�on 7 November.

On Virginia Trioli's programme, Ms Katzmann told the estimated audience of 82,000 people: "The government should certainly be applauded for its interest in protecting the position of victims.� But, it's always important to get the balance right in criminal law.� We don't believe this legislation does that."

She went on to say: "Our primary with the startling change, which removes from the criminal law, the obligation on the prosecution to prove that the accused had a guilty mind."

The president also went on the John Laws Show, while Odgers SC went live on the 2UE Breakfast show with Peter Fitzsimons and Tim Webster.

Transcripts and audio files of the interviews are held in the Bar Library .

9 November 2007


Papers to note: Local Government Area Crime Report

Fri Nov 09 2007

The NSW Bureau of Crime Statistics and Research today announced the introduction of a new series of Local Government Area Crime Reports. Each�report will contain maps showing the location of all the major crime hotspots. It will also contain graphs indicating what times of the day, days of the week and months of the year, crime rates in the area tend to peak.

The first in the series - Sydney Local Government Area� - is available from the BOCSAR web site > (Note:�large file - 2.8MB)

9 November 2007

New Barristers Christmas Drinks - Wednesday, 5 December 2007

Fri Nov 09 2007

You are invited to celebrate the festive season at the New Barristers Committee Christmas Drinks drinks on Wednesday, 5 December at Verandah Bar from 5.30pm.�All members of the Bar are invited.

It is a great opportunity for the newer members of the Bar to socialise with each other, as well as with other members of the Bar. An area has been reserved and some food will be provided.�The New Barristers Committee hopes to see everyone there.�If you have any questions, please contact Katie Hall at the Bar Association on ph: (02)�9229 1720.

4 December�2007

Bar Association office bearers for 2008

Thu Nov 08 2007

At a Bar Council meeting on 8 November 2007, the following were elected as office bearers of the New South Wales Bar Association for 2008:

President: Anna Katzmann SC Senior vice president: Tom Bathurst QC Junior vice president: Bernie Coles QC Treasurer:� Justin Gleeson SC Secretary: Rachel Pepper

P.A. Selth Executive Director

8 November 2007

Cases marked reportable by the Council for Law Reporting

Thu Nov 08 2007

The following is a list of cases received and marked reportable by the Council for Law Reporting for New South Wales.

Sykes v Richardson [2007] NSWSC 418 (Hidden J) (01.05.07) (CLD 11499/2007)

O’Sullivan v Challenger Managed Investments Ltd [2007] NSWSC 383 (White J) (24.04.07) (ED 4799/2006)

Ballis v Randall and Others [2007] NSWSC 422 (Hall J) (07.05.07) (CLD 11349/2006)

R v Petroulias (No 17) [2007] NSWSC 499 (Johnson J) (10.05.07) (CLD 93/2002)

8 November 2007

Fourth World Bar Conference

Thu Nov 08 2007

In 2008 the International Council of Advocates and Barristers will host the Fourth World Bar Conference in Dublin and Belfast between Friday 27 June and Monday 30 June 2008. Very successful conferences have already been held in Edinburgh, Cape Town and Hong Kong and Shanghai.

Those who have attended have had the benefit of hearing from a wide range of speakers such as Mary Robinson, the former pPresident of Ireland and former UN commissioner for human rights, the Hon Anthony Gubbay (the former chief justice of Zimbabwe), Param Cumaraswamy, UN special rapporteur on the independence of the judiciary, Justice Ian Callinan and Justice Dikgang Moseneke (Constitutional Court of South Africa).

Attendees in 2008�will be addressed by many eminent speakers including:

• President of Ireland, Mary McAleese • John Cooke, judge of the European Court of First Instance • Robert Fisk, Middle East correspondent, Independent Newspapers UK • Paul Gallagher SC, attorney general of Ireland • Prof. Conor Gearty, director of Centre for the Study of Human Rights • Barry Macdonald SC, chair of the Human Rights Committee of the Northern Ireland Bar • Justice Ruth McColl,�New South Wales Court of Appeal judge • Prof. Monica McWilliams, chief commissioner, Northern Ireland Human Rights Commission • Senator George Mitchell • Ms Beatrice Mtetwa, president of the Zimbabwe Law Society • Michael O’Boyle, registrar, European Court of Human Rights • Colm O’Cinneide, senior lecturer in laws, University College London • Pierce O’Donnell, US attorney • Justice Kate O’Regan, Constitutional Court of South Africa

Download a conference brochure�, fill in a registration form, or visit the World Bar Conference web site.


2007 Great Bar Boat Race: entries due by tomorrow

Thu Nov 08 2007

The Great Bar Boat Race will be held on Monday, 17 December 2007. The deadline for entries is tomorrow, 30 November. The starting line is in the vicinity of Shark Island, finishing at Store Beach. Presentation of trophies and a post-race picnic will take place on Store Beach. All members who own or can borrow yachts or otherwise take part in what is expected to be a most enjoyable day on the harbour can download a flyer for more information or a registration form to enter the race.


The Bar Association’s current insurance policy does not cover this activity. It is a strict condition of entry that all skippers have arranged appropriate third party, property and personal injury insurance, to cover themselves, their crew and their guests for the duration of the event.


All participants are required to sign the indemnity incorporated in the entry form in order to compete in the race.

29�November 2007

Occupational health and safety seminar series

Thu Nov 08 2007

The Federal Litigation Section of the Law Council, together with the Law Society of New South Wales (including The College of Law), the Queensland Law Society, the Law Society of South Australia, the Law Society of Tasmania, the Law Society of WA, and the Law Society of the NT will be holding a series of occupational health and safety seminars acorss the country in November 2007.

The seminars will focus on the new federal occupational health and safety legislation, providing lawyers with an opportunity to hear from leading industrial law practitioners. They will be held in Adelaide, Brisbane, and Sydney, with Hobart, Darwin, Alice Springs and Katherine joining in by videolink.

Learn more about the seminars>

8 November 2007

Privacy reform in practice

Thu Nov 08 2007

Members are invited to attend a Law Council - Freehills seminar and discussion on privacy. The seminar will provide an overview of the privacy reform topics and a succinct analysis of the critical aspects of the ALRC report to assist your consideration of a submission. The seminar will be chaired by Duncan Giles, Special Counsel in Freehills’ Corporate group.

Date: Tuesday 20 November 2007 Time: 5.00pm Registration: 5.15pm–6.30pm seminar and discussion (followed by drinks) Venue: Freehills, Level 38 MLC Centre, Martin Place, Sydeny RSVP: Before Wednesday 14 November 2007 to

Lauren Macris Phone 02 9225 5080 Email

8 November 2007

More legislation to note

Thu Nov 08 2007

The Crimes Amendment (Consent - Sexual Assault Offences) Bill 2007 was introduced to�the Legislative Council�on 7 November. The objects of the Bill, as defined in the�Explanatory Notes is to�amend the Crimes Act 1900:

  • to define “consent” for the purposes of sexual assault offences as free and voluntary agreement to sexual intercourse, and
  • to include in the cases when consent to sexual intercourse is or may be negated: incapacity to consent, intoxication, persons who are asleep or unconscious, unlawful detention, intimidatory or coercive conduct and abuse of a position of authority or trust, and
  • to provide that a person commits sexual assault if the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.

�View the minister's second reading speech>

Bail Amendment Bill 2007

The object of this Bill is to amend the Bail Act 1978:�

  • to create a presumption against bail in respect of certain serious firearms offences, and
  • to limit the number of applications in relation to bail that may be made to a court by a person accused of an offence, and
  • for statute law revision purposes.

The Bill�was declared agreed to in principle on 7 November. View the agreement in principle debate by Greg Smith MP, shadow attorney general>

Jury Amendment Bill 2007

The Bill was introduced in the Legislative Assembly on 23 October. The object of this Bill, as stated in the explanatory notes,�is to amend the _Jury Act 1977 _to:

  • enable up to 3 additional jurors to be selected for certain criminal trials in the Supreme Court or District Court, and
  • ensure that only 12 members of a jury that is expanded with additional jurors may retire to consider the jury’s verdict.

The Bill passed parliament on 7 November. Greg Smith MP led for the Opposition in the agreement in principle debate. View his speech>

8 November 2007

Legislation to note: Surveillance Devices Bill 2007

Thu Nov 08 2007

The Listening Devices Act 1984 is to be repealed by the Surveillance Devices Bill 2007. This Bill was introduced into the Legislative Assembly on Tuesday, 6 November and has received its agreement in principle speech.

Other objects of the Bill listed�in the Explanatory Notes�include:

  • to regulate the installation, use, maintenance and retrieval of surveillance devices;
  • to restrict the use, publication and communication of information obtained through the use of surveillance devices or otherwise connected with surveillance device operations;
  • to establish procedures for law enforcement officers to obtain warrants or emergency authorisations for the installation, use, maintenance and retrieval of surveillance devices;
  • to create offences relating to the improper installation or use of surveillance devices;
  • to impose requirements for the secure storage and destruction of records, and the making of reports to judicial officers and Parliament, in connection with surveillance device operations; and
  • to recognise warrants and emergency authorisations issued in other jurisdictions for the installation and use of surveillance devices,

View the Surveillance Devices Bill 2007>

8 November 2007

Papers to note: Law Reform Commission report on juries in sentencing

Wed Nov 07 2007

The New South Wales Government has accepted the advice of the NSW Law Reform Commission report�into the role of juries in sentencing, which says increasing their involvement would cause undue delays in trials. The commission examined whether judges should consult with juries in private before a sentence is handed down, but has recommended against it after receiving 21 submissions opposing any change.

The reasons, as outlined in the attorney general's media release, include:

  • a possible increase in appeals by defence lawyers
  • it could lead to more litigation, higher costs and longer cases forcing victims to spend longer in court
  • jurors may base their views on personal experience
  • the sentencing process involves complex and often contradictory legal principles and could require specialised training
  • overseas experiences of jury sentencing found no support for the proposal and no other jurisdiction in Australia allows it judges have access to additional material unavailable to juries, such as psychiatric reports, which they also base their decisions on.

Download a copy of the Law Reform Commission Report>

7 November 2007


Legal Aid

Wed Nov 07 2007

Legal Aid NSW will be relocating its Parramatta Criminal Law Practice on Monday, 12 November 2007 to the new Parramatta Justice Precinct, Level 1, 160 Marsden Street. The telephone number will be (02) 8688 3890 and the fax number�will be�(02) 8688 3890. Legal Aid's existing premises at Level 5, 91 Phillip Street will remain open, providing family and civil law services.

7 November 2007

Wanted: Volunteers for the Inter-School Mock Trial Competition

Wed Nov 07 2007

The Law Society of New South Wales is inviting members of the Bar to provide voluntary assistance to the Inter-School Mock Trial Competition.�The competition aims to introduce year 10 and 11 students to the law and to give them an understanding of the legal system that governs the society in which they live.�

The Law Society� provides the teams with coaches and magistrates, together with a complete set of the case materials and Competition Manual.� Coaches teach the students about court�procedure and advocacy techniques.� It is anticipated that only two to three hours of coaching will be needed before each trial, although it is up to each coach to decide the level of individual participation.� The cases are confined to simple criminal and civil matters heard in the Local or District Court.

More information on how to volunteer for the Inter-School Mock Trial Competition>


Web update: worldwide information about privacy

Tue Nov 06 2007

Privacy.Org is the site for daily news, information, and initiatives on privacy. This web page is a joint project of the Electronic Privacy Information Center (EPIC) in the United States�and London-based Privacy International (PI).

PI has conducted campaigns throughout the world on issues ranging from wiretapping and national security activities, to ID cards, video surveillance, data matching, police information systems, and medical privacy.

View the web site>

6 November 2007

Courts under scrutiny in FOI report

Tue Nov 06 2007

The�justice system has�come under scrutiny in the Report of the Independent Audit into the State of Free Speech in Australia, written by Irene Moss AO. The report finds that�"the principle of open justice has been eroded over recent years".

"Limits on access by the media to court documents and information and an increase in suppression orders (particularly in the lower courts) are examples of where the principle is seen as threatened. Journalists report not only difficulty getting access to court documents and information, but also a lack of clear guidelines on such access. They sometimes report a virtual capriciousness by some members of the judiciary and court officers when deciding whether to allow access", the report finds.

View the report>

6 November 2007

Commencement of the Evidence Amendment Act 2007

Tue Nov 06 2007

The Evidence Amendment Act 2007 was assented to on 1 November 2007.�The Attorney General's Department has released a circular about the new Act and its commencement. The�Act will commence by proclamation, not before May 2008. If possible, commencement will be coordinated with that of similar amendments proposed for the Evidence Act 1995 (Cth). The date of commencement will be formally notified once it has been settled. View the circular>

6 November 2007

Former judges in the UK cannot return to legal practice

Tue Nov 06 2007

The UK Ministry of Justice has responded to a consultation paper on the convention that prohibits former judges from returning to private practice as barristers or solicitors. That paper raised for discussion the notion that lifting that prohibition would encourage greater diversity in the ranks of the judiciary.

On 5 November 2007 Secretary of State for Justice Jack Straw announced that: "The Government consulted widely, considering the arguments both for and against allowing former salaried judges to return to practice. I do not believe there is sufficient evidence that this would achieve a more diverse judiciary and that therefore the arguments against this change outweigh those for. This proposal will not therefore be implemented."

View the media release >� |� View the consultation paper>

6 November 2007

Papers to note: Screening Juvenile Offenders for Further Assessment and Intervention

Mon Nov 05 2007

The Bureau of Crime Statistics and Research (BOCSAR) has�published on its web site�the findings of a�long-term study of nearly 400 juvenile offenders placed on their first supervised order in 2000/2001. "Screening Juvenile Offenders for Further Assessment and Intervention", by Don Weatherburn, Rachel Cush and Paula Saunders was�first published in the August edition of�BOCSAR's�Crime and Justice Bulletin>

Among the findings:

  • Only a third were still at school at the time they committed their index offence. More than a third had been suspended or expelled from school.
  • More than two-thirds had changed address three or more times in the last five years.
  • Seventy-one per cent of juvenile offenders were reconvicted of a further offence within four years.
  • The key risk factors are those associated with school attendance/behaviour and past contact with the criminal justice system. Not being at school, having been suspended or expelled from school and having had several prior contacts with the criminal justice system all independently increase the likelihood of another conviction.

View the report >

5 November 2007

Bar Association updates its statistical profile

Mon Nov 05 2007

What percentage of male and female members of the Bar Association practise in appellate law? How many female members have been practising at the Bar for 10-14 years? Answers to these questions may be found in the�October 2007 update of the Statistical Profile of the Bar Association. The purpose is to provide a profile of the NSW Bar and membership of the NSW Bar Association at a point in time, from the available data.

The statistics are separated into five pdf files, being:

  • members of the NSW Bar Association (practising and non practising);
  • Bar Association members with a NSW practising certificate;
  • holders of NSW practising certificates (including interstate and overseas);
  • chambers/floors with clerks; and
  • practice areas – All holders of NSW Practising Certificates.

View the Bar statistics page>

5 November 2007

Speeches to note: 2007 Law and Justice Address

Mon Nov 05 2007

The 2007 Law�and Justice Address was delivered by the Hon Sir Gerard Brennan AC KBE on 31 October 2007 at the Strangers' Dining Room, Parliament House. In that speech, Sir Gerard took aim at Australia's anti-terrorism laws, which he described as:�"Perhaps the most tendentious laws in force at present...for they trespass upon the basic notion of natural justice".�

Continuing a theme of his recent speeches, Sir Gerard questioned "whether these important laws give us both security and justice".

"Nobody doubts the need for laws conferring special powers enabling authorities to identify terrorists and potential terrorists and to neutralize any terrorist activity.� But do they work injustice to individuals?� Legislation empowering ASIO or the Federal Police to carry out surveillance, or to search and to seize property can be justified when there are reasonable grounds shown, provided such powers are precisely targeted on the detection and prevention of terror and the apprehension of terrorists.� But what of the power to compel submission to interrogation or the power to detain and interrogate without charge, or the power to charge, detain and submit to interrogation or the power of preventative detention?", he said.

View the full text of Sir Gerard's speech>

5 November 2007