Tag: High Court


How George Pell’s lawyers convinced the High Court that his convictions should be quashed


Melbourne 3000

The George Pell case was always going to be a flashpoint.

Cardinal Pell has already said his case was never about the Catholic Church’s response to child sex abuse.

But there are many who saw it as exactly that, and have been watching on with close interest.

For his supporters who have been equally engrossed in the case, Tuesday was a vindication of their belief in his innocence.

The key question was whether it was open to the jury to arrive at a guilty verdict or whether the evidence provided reasonable doubt about the Cardinal’s guilt.

On Tuesday, after a journey through the Victorian criminal courts and the Court of Appeal, the High Court found there was room for reasonable doubt and Cardinal Pell is now free.

Cardinal Pell faced two juries on child sexual abuse charges involving two choirboys in the sacristy at St Patrick’s Cathedral when he was archbishop of Melbourne in the late 1990s.

One of the boys had died by the time of the prosecution, so Cardinal Pell was convicted on the evidence of the other.

Cardinal Pell never gave evidence, but when he was interviewed by police he vehemently denied the allegations.



Photo:

The High Court found the Court of Appeal had made a subjective assessment about the complainant’s truthfulness. (ABC News: Gregory Nelson)

The first jury could not reach a verdict, but the second found him guilty.

That was later backed up a Victorian Court of Appeal ruling.

To unpack why the High Court overturned both these findings, it is necessary to look to the evidence in the case.

The question of reasonable doubt

The central question in the case was whether it was open to the jury to find George Pell guilty, or whether the jury should have had a reasonable doubt after hearing the evidence.

The prosecution relied entirely on the truthfulness and reliability of the complainant’s evidence.

That was upheld by the Victorian Court of Appeal, which described him as a witness of truth.

The defence relied on evidence from people who worked in and around the cathedral, whose evidence suggested the opportunity for the alleged offences was unlikely.

This included then-archbishop Pell’s practice of standing on the steps outside the cathedral after mass, the tradition that he would never be alone while robed, and the hive of activity in the area near where the alleged offences were said to have happened.

Indeed, in the original trial the defence had described the evidence as showing the alleged offences were impossible.

But by the time the case reached the High Court the language had softened to improbable.

Witness vs ‘opportunity evidence’

Cardinal Pell’s lawyer set out a cogent case to explain why the jury and the Court of Appeal should have found that the “opportunity evidence'” suggested there should be reasonable doubt about his guilt.

On Tuesday the High Court agreed.

In its ruling, it took aim at the Appeal Court judgment, saying the majority had made a subjective assessment of the truthfulness of the alleged victim.

“[That] drove their analysis of the consistency and cogency of his evidence,” the High Court judgement said.

The High Court said that was at the expense of defence evidence which suggested there could be reasonable doubt about his account.

“The analysis failed to engage with whether, against this body of evidence, it was reasonably possible that A’s account was not correct, such that there was a reasonable doubt about the applicant’s guilt,” the court said.



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Cardinal Pell’s lawyers maintained there was reasonable doubt about his guilt because of the “opportunity” evidence. (ABC News: Danielle Bonica)

The conduct of appeals has long been in the High Court domain.

Rules suggesting appeal courts are to make an independent assessment of the evidence and then decide if it was open to the jury to arrive at its verdict, now known as the M test, were established in a 1994 High Court case.

One question in the George Pell case was whether the Court of Appeal had gone too far in its assessment by viewing video evidence from the case, or whether it should have stuck to the transcripts.

On Tuesday the High Court ruled that videos were allowed, but only in exceptional circumstances.

The hearing was run over two days.

Things did not go well for the Victorian Director of Public Prosecutions Kerri Judd, who found herself on the wrong end of several exchanges with the judges, particularly when she shifted ground on whether the alleged incident was longer than five or six minutes, something not put during any earlier hearing.

On Tuesday the High Court ruled unanimously Cardinal Pell’s guilt was not established to the requisite level.

The appeal was allowed, the convictions quashed and George Pell was acquitted.

Read the High Court summary:
External Link:

High Court of Australia: Pell v The Queen

Source: https://www.abc.net.au/news


Australian charged over Christchurch mosque attacks changes plea to guilty


Australia

The Australian man accused of murdering 51 people in the terror attacks on two Christchurch mosques last year has admitted he carried out the killings.

Key points:

  • Tarrant will be sentenced at a later date
  • He carried out the worst terrorist attack ever committed by an Australian
  • Jacinda Ardern said she was glad bereaved families had been spared the “ordeal” of a trial

Brenton Tarrant, 29, changed his plea from not guilty to guilty on all charges in an appearance by video link in the High Court at Christchurch this morning.

As well as the 51 murder charges, he also pleaded guilty to 40 charges of attempted murder, and a terrorism charge.

Tarrant’s trial, which had been set down for June, will now not take place.

The date for his sentencing is yet to be set. New Zealand police say it will only take place when it is possible for all victims who want to attend to do so.

Thursday’s small hearing was held at short notice, on Tarrant’s request.

The imams of the two mosques attacked were present, but because of coronavirus restrictions, they were among only 17 people allowed in the courtroom.



Photo:

New Zealand Prime Minister Jacinda Ardern met with members of the Muslim community after the mosque attacks. (Supplied: Christchurch City Council)

New Zealand Prime Minister Jacinda Ardern made a few brief comments following Tarrant’s admissions.

“The guilty plea today will provide some relief to the many people whose lives were shattered by what happened on March 15 [2019],” she said.

“These guilty pleas and conviction bring accountability for what happened and also save the families who lost loved ones, those who were injured, and other witnesses, the ordeal of a trial.

“I can’t make any further comment given that sentencing is yet to happen.”

Tarrant has been in custody since was he arrested on the day of the attack.

He stormed the mosques during Friday prayers, armed with several high-powered weapons, and live-streamed the attack online in what is the single-worst terrorist attack carried out by an Australian.

‘I saw dead people everywhere’
Mosque shooting survivors describe screaming and terror, ‘dead people everywhere’ as gunman opened fire.

The video showed Tarrant entering a mosque and opening fire on dozens of people, before fleeing in a vehicle.

He continued to fire his automatic weapon out of the car’s window.

At the time, authorities urged people not to share or watch the video, and undertook extensive efforts to remove it from the internet.

It was initially viewed 4,000 times before being taken off Facebook.

New Zealand’s gun laws were changed following the attacks, after it was revealed Tarrant had a gun licence that allowed him to legally obtain weapons.

The country’s national security threat level was also raised to high, for the first time.

During earlier hearings, many of which were procedural, family and friends of the victims had packed the courtroom.

The court was only notified this week of the defendant’s intention to change his plea.

A hearing was hastily arranged despite the curbs in place because of coronavirus.

In a minute, Justice Cameron Mander said he weighed up the public health situation and “considered the need to take the opportunity to progress the matter was particularly acute coming, as it has, at a time when the risk of further delay as a result of COVID-19 was looming as a realistic possibility”.

Most victims were not able to attend because of the lockdown.



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Janna and Hazim Ezat lost their son Hussein in the Christchurch shootings nearly one year ago. (ABC News: Mitch Woolnough)

For legal reasons, the nature of the matter could also not be made public in advance.

Families of victims welcome news of changed plea

When someone called Janna Ezat to give her the news, she said she thought she was dreaming.

“I said, ‘What?'” she told the ABC.

“And then I jumped from my bed. Yeah, I jumped.”

Ms Ezat lost her 35-year-old son Hussein Al-Umari in the attack on the Al-Noor mosque.

She has been struggling to get a hold on her grief, but today she laughed and danced for the first time since the attacks.

“I’ve been waiting to hear my laugh,” she said.

“I missed laughing.

“I just danced to my favourite music with my son’s photo in my hand.”

Ahmed Jahangir said he also jumped out of bed when he saw the news on a WhatsApp group.

“It was quite surprising and quite shocking for me this morning,” he said.

Mr Jahangir was at the Linwood mosque when the gunman struck. He was hit by a bullet in the shoulder and still wears a sling and suffers severe nerve pain from his injury.



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Mr Jahangir is a survivor of the shooting. (ABC News: Mitchell Woolnough)

The father-of-two said initially he felt disappointed to realise there would be no trial in the case, which he said would have been a chance for the accused to “realise what he has done to the community” but he has since come around.

“Being a Muslim we do believe whatever happens it’s from Allah,” he said.

The victims have been assured that the sentencing hearing will not take place until the coronavirus restrictions are lifted so that they can attend.

Both Ms Ezat and Mr Jahangir hoped to read out their victim impact statements.

Ms Ezat said she had only one message for the killer: “Forgiveness.”

But she wants to see him behind bars for the rest of his life.



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Hussein Al-Umari’s was killed in the attack on the Al Noor mosque. (ABC News: Mitchell Woolnough)

“For sure, and I might be dancing if the sentence will be life for good,” she said.

“I will dance in front of the judge!”

Royal commission investigating attack

In one of his recent appearances, Tarrant had withdrawn his application to move his trial away from Christchurch to Auckland.

His lawyer declined to answer questions on why his client decided to withdraw the application.

A royal commission was also established to examine what government agencies knew about Tarrant in the lead-up to the attacks, what actions were taken, what could have been done to prevent the atrocity and what could be done to prevent future attacks.

As the commission was going to dig deeply into some highly classified, national security information, it was held almost exclusively behind closed doors.


Video: Janna Ezat remembers her son Hussein Al-Umari who died saving others during the Christchurch shootings

(ABC News)

Source: https://www.abc.net.au/news


Man released from detention as High Court rules Aboriginal people cannot be deported


Australia

An Aboriginal man who spent 500 days in immigration detention was released today after the High Court ruled that Indigenous Australians cannot be deported.

Key points:

  • The Commonwealth told the High Court anyone who was not a citizen was an “alien” under the law
  • The men’s lawyers argued Indigenous people could not be “alien” to Australia
  • The High Court found Aboriginal people hold a special position and are exempt from the immigration act

The court found Aboriginal people held a special status and were exempt from immigration laws, after it considered the cases of two convicted criminals whom the Government wanted to deport.

The two men, Daniel Love and Brendan Thoms, had failed their migration character tests as a result of serving jail sentences.

In a 4-3 split, the court found Aboriginal Australians were not subject to the alien powers in the constitution and therefore could not be deported.

But the judges did not clear Mr Love entirely, saying they could not reach agreement on whether he was an Aboriginal person on the facts stated in the case.

After this morning’s ruling, Mr Thoms was released from detention in Brisbane.

The 31-year-old told the ABC he was struggling to believe he was finally free.

He said he found it hard to stay positive while in immigration limbo.

“After 17 months it was starting to wear on me,” he said.

“I really just was thinking about my son a lot and all the fighting was for him … That’s why I put up a fight.”

“The lawyers did a really good job and it’s good win for Aboriginal people.”

Men spent lives here but were to be deported to new homes



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Brendan Thoms has been in immigration detention awaiting the outcome of the High Court case. (Supplied: Brendan Thoms)

Both men were born overseas but moved to Australia as children and held permanent residency visas.

Mr Love, a recognised member of the Kamilaroi people but born in Papua New Guinea, was placed in immigration detention after he was sentenced to more than a year in jail for assault occasioning actual bodily harm.

A delegate for Home Affairs Minister Peter Dutton had cancelled the 40-year-old’s visa, but that decision was later revoked and he was released.

Mr Thoms was born in New Zealand and also lacks Australian citizenship, though he is a native title holder as a member of the Gunggari people.

After serving part of an 18-month sentence for a domestic violence assault, he was taken into immigration detention, where he had remained until today’s outcome.


Video: Brendan Thoms' lawyers say he will seek compensation

(ABC News)

Outside the High Court, one of the men’s lawyers, Claire Gibbs, said Mr Thoms was “incredibly relieved” by the judgement.

“He’s missed two Christmases with his family [and] one of his son’s birthdays. His son’s birthday is coming up again so he’s hopeful of returning to celebrate with his family.”

Ms Gibbs said the ruling was not about citizenship, but was instead about “who is an Australian national and who is a part of the Australian community”.

“It’s about the use of alien powers, which we believe the government has been using inconsistently, unfairly and, now we’ve proven, unlawfully,” she said.

“So, in a practical sense, Brendan is still a New Zealand citizen, but he’s not an alien in this country and he’s protected from being deported.

“Aboriginal Australians can no longer be removed from the country that they know and the country that they have a very close connection with.”

Ms Gibbs said while the court did not make a determination about Mr Love’s “Aboriginality”, she was confident lawyers could prove that was the case.

The president of the Law Council of Australia, Pauline Wright, welcomed the decision, saying it confirmed that questions about membership of Aboriginal societies were beyond the Parliament’s legislative power.

She said the judgment raised several other “complex issues which require careful consideration”.



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Daniel Love was born in PNG but has lived in Australia since he was five. (Supplied)

Aboriginal people can’t be ‘alien’ to Australia, lawyers said

In an unusual move, the High Court held two separate hearings into the case.

It was originally heard in May last year, but came back in December after the court suggested the parties consider whether Aboriginal people occupy a special position, backed up by common law recognition of native title rights.

If that was the case, the court said it then followed that the crown had a unique obligation to protect Aboriginal society, and in return Aboriginal people owed a permanent allegiance to the crown.



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Daniel Love with his family. (Supplied)

Lawyers for the men submitted that Aboriginal people could not be “alien” to Australia.

“Aboriginal Australians are a permanent part of the Australian community,” they wrote in a submission.

The submissions also stated that, at Federation, Aboriginal people were not considered “aliens” under the constitution.

But the Commonwealth told the court any person who was not a citizen was an “alien” under the law, and that Mr Thoms and Mr Love owed their allegiance to the countries they were born in.

Source: https://www.abc.net.au/news


Ninjaman Thinks He Was Given An Unfair Trial Like Vybz Kartel


Ninjaman feels he was given a unfair trial in Jamaica’s High Court just like Vybz Kartel‘s infamous 2014 trial.

The dancehall legend was convicted for murder On November 20th in the Home Circuit court after prosecution introduced seven witnesses who testified against the deejay. But the artist is arguing that the justice system failed him because he did not commit the murder. Ninjaman’s brother, Gonzellio Ballentine, believes his brother was convicted base on a perception that he is a murderer.

“They convicted him base on his image as a bad man and as a hardcore dancehall artist who deejays gun lyrics,” Ballentine said. “That doesn’t mean that you’re a murderer or a killer, not because you do music about badness means that you’re guilty of a crime. The whole trial was bias against him from the start and they have this case over him head for eight years and now they want to send him to prison for the rest of his life.”

Related: Ninja Man Reacts To Murder Conviction Dancehall Icon To Appeal

Some close friends of the “Kingston Town” deejay are making the same arguments with one of his close friends, who requested anonymity, telling us that they made an example out of him. “Right now the government used Ninja as an example because crime and corruption is out of control and they want to use him to send a message,” he said. “They used him because he is a powerful figure in the society just like how they used Vybz Kartel to send a message and send him to prison for life. This is not fair to these artists because that is like ending their lives.”

Ninjaman is facing a life sentence for the murder conviction. According to the Director of Public Prosecution (DPP), Paula Llewellyn, the artists murder case stemmed from a fight over kitchen space at a house on Marl Road, Kingston 13, in March 2009. Ninjaman, real name Desmond Ballentine, his son Janiel, and Dennis Clayton were convicted for the killing of Ricardo Johnson, known in the community as Ricky Trooper.

Vybz Kartel, real name Adidja Palmer, is currently serving a life sentence for a murder conviction. Kartel, his protege Shawn “Storm” Campbell, and his friends Andre St John and Kahira Jones, were convicted for the killing of Clive “Lizard” Williams. Police never found Williams body.


Ninjaman Murder Case Verdict Expected Tomorrow



Ninjaman will likely know his fate tomorrow when a high court judge is expected to hand down a ruling in his murder trial.

The dancehall legend is back behind bars after being discharged from a hospital earlier this week after having a mild heart attack. The prosecution closed their case last week Friday and the defense attorney submitted a no case submission. The trial is being held behind closed doors on camera because of the nature of the case.

Ninjaman is on trial for the murder of Ricardo Johnson, known in the community as Trooper. The dancehall artist, whose real name is Desmond Ballentine, his son Jamiel, and their friend Dennis Clayton were charged with murder and shooting with intent for the March 2009 murder. One witness, who testified in the trial, said the three men fired two shots after him, but he managed to escape the gunfire.

The “Kingston Town” deejay has been on bail since 2012, but last month, High Court judge, Justice Martin Gayle, revoked his bail and ordered him back behind bars. The case was transferred to a special court that deals with cases over five years old. Ninjaman has maintained his innocence and previously told us that he is anxious to put this case behind him.


Ninja Man Remains Hospitalize Murder Trial Continues



Ninja Man remains in the hospital but his high profile murder trial is proceeding without him.

The dancehall legend was rushed to the hospital on Friday after collapsing in court from a suspecting heart attack. The judge adjourns the trial until Monday, but the artist was unable to attend court. His attorney, Valrie Neita-Robertson, confirmed that he gave permission to continue the case without him. This means that he could learn the verdict while on his hospital bed.

“We went on with the case today (yesterday,” Neita-Robertson said. “He has given permission to us to finish it without him.” Ninja Man reportedly started feeling severe chest pain and difficulty breathing while in court on Friday. A foreign-based witness was set to give testimony against the artist before he fell ill. The case continued in the Supreme Court in Kingston yesterday and today.

Ninja Man, real name Desmond Ballentine, his son Jamiel Ballentine, and another man, Dennis Clayton, are all on trial for the murder and shooting with intent. Cops say the three men shot and killed Ricardo “Trooper” Johnson on Marl Road, Kingston 11, in March 2009. Ninja Man received bail in 2012 but was remanded in custody last month while the trial commences. High Court judge, Justice Martin Gayle, transferred the case to a special court that deals with cases older than five years. This case has seen roughly two dozens mentions and 17 trial delays since 2009.

If found guilty, Ninja Man could be sent to prison for life.