Hemming on ‘Why the Jury in Pell v The Queen Must Have Had a Doubt and the High Court was Right to Quash the Guilty Verdicts’

 Associate Professor Andrew Hemming of the University of Southern Queensland School of Law and Justice has published a new article titled ‘Why the Jury in Pell v The Queen Must Have Had a Doubt and the High Court was Right to Quash the Guilty Verdicts’.  The article appears in Volume 1 of the Australian Journal of Law and Religion.  Here is the abstract:

"In the aftermath of the High Court’s decision in Pell v The Queen to quash the guilty verdicts and enter verdicts of acquittal in their place, there has been considerable public discussion and academic commentary on the respective roles of the jury and appellate courts, with particular focus on the jury as the tribunal of fact. Pell v The Queen was a high-profile case involving sexual assault charges against a Cardinal of the Roman Catholic Church, when just a year earlier the Royal Commission into Institutional Responses to Child Sexual Abuse had published its final report which was dominated by abuses perpetrated in the Roman Catholic Church. This article considers the test for the unreasonableness ground of appeal set out by the High Court in M v The Queen, which is reflected in s 276(1)(a) of the Criminal Procedure Act 2009 (Vic), whether ‘upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’; and concludes that the High Court was correct to adopt Weinberg JA’s dissenting judgment in the Victorian Court of Appeal which in the author’s view was compelling." 

Olwan on 'Intellectual Property: Principles and Practice'

During his time in the University of Southern Queensland School of Law, Dr Rami Olwan (now a Lecturer at Curtin University) co-wrote a book (along with Anne Fitzgerald and Dimitrios Eliades).  The book is titled Intellectual Property: Principles and Practice (Thomson Reuters, 2022).  Here is a portion of the publisher's description:

"Intellectual Property: Principles and Practice provides a succinct, principles-based account of all the forms of intellectual property recognised in Australian law: copyright, patents, plant breeder’s rights, trade marks, designs and confidential information.  It explains the rationale, key concepts and principles of each form of intellectual property in a style which is readily accessible to broad readership." 

Gray on 'Reform to the Law of Consent: A Tale of Two States'

Professor Anthony Gray of the University of Southern Queensland School of Law and Justice has published a new article titled 'Reform to the Law of Consent: A Tale of Two States'  The article appears in Volume 31 of the Journal of Judicial Administration.  Here is the abstract:

"This article considers reform in New South Wales and Queensland regarding consent in the context of sexual offences. While New South Wales has effectively adopted an affirmative consent model, Queensland has (so far) stopped short of making this reform, while making changes in this general direction. It is argued here that Queensland should adopt the affirmative consent model."

Collins on 'Military Operation and Engagement in the Domestic Jurisdiction: Comparative Call-out Laws'

Professor Pauline Collins of the University of Southern Queensland School of Law and Justice has co-edited (with Rosalie Arcala Hall) a new book titled Military Operation and Engagement in the Domestic Jurisdiction: Comparative Call-out Laws (Brill, 2022).  Here is the publisher's description:

"This book scrutinises the call-out of the military in the domestic domain in a selection of 13 countries. Nation-states vary in their political-legal structures and all have their own history in the use of military personnel in domestic matters. Three recent events have resulted in increased domestic military deployment and have been experienced in most countries. In the security domain, there is the rise of Islamic State and increasing acts of terrorism, resulting in military involvement in policing. The other two have been increased humanitarian needs: the COVID-19 pandemic and the widespread flooding and fires following the changes in climate. These have brought increasing military activity domestically, even in established democracies. This comparative analysis incorporates historical developments and provides a rich multidisciplinary approach from political and social scientists to lawyers and military personnel."

In addition to co-writing the book's preface, Collins also contributed one of the chapters: 'Calling Out Defence Personnel in Civilian Security Matters in Australia'.

Mortensen on 'Tort Jurisdiction'

Professor Reid Mortensen of the University of Southern Queensland School of Law and Justice has published a book chapter titled 'Tort Jurisdiction'.  The chapter appears as part of Paul Beaumont and Jayne Holliday (eds), A Guide to Global Private International Law (Bloomsbury [Hart] Publishing, London, 2022).

Patrick on 'Path Dependency, the High Court, and the Constitution'

Dr Jeremy Patrick, a Lecturer in the University of Southern Queensland School of Law and Justice, has published a book chapter on 'Path Dependency, the High Court, and the Constitution'.  The chapter appears in Sarah McKibbin, Jeremy Patrick and Marcus Harmes (eds), The Impact ofLaw’s History: What’s Past is Prologue (Springer, 2022).  Here is the abstract:

"Path dependence is a concept that originally arose in the field of economics before gaining currency with political scientists and historians. The essence of path dependency is that temporality matters: once a decision is made, it often becomes “locked-in” and persists despite the existence of more efficient or otherwise better alternatives that could become apparent later. The tentative hypothesis advanced here is that the concept of path dependency is useful for understanding why some doctrines of Australian constitutional law have changed dramatically since first developed while others remain largely the same. Examples of one arguably path-dependent line of doctrine and one arguably non-path-dependent line of doctrine are discussed and analysed to demonstrate the possibilities and limitations of the theory."

Hemming on 'Under What Circumstances is the Shield Against Self-incrimination Lowered in a Civil Action?'

 Associate Professor Andrew Hemming of the University of Southern Queensland School of Law and Justice has published a new article titled 'Under What Circumstances is the Shield Against Self-incrimination Lowered in a Civil Action?'  The article appears in Volume 9(2) of the Lincoln Memorial University Law Review.  Here is the abstract:

"The case of Pennsylvania v Cosby has brought into sharp relief the question of what criteria apply in determining whether a defendant in a civil action can definitively rely on a District Attorney’s purported statement that no further criminal action will be taken regarding the complaint in question. It is settled law that a defendant in a civil action faces the possibility of perjury charges for not telling the truth once the shield of the constitutionally enshrined Fifth Amendment right against self-incrimination is lowered by virtue of termination of criminal prosecution on the same facts. This article considers how best a defendant in a civil action can be protected against the vagaries of a change in District Attorney who, within the Statute of Limitations, decides the original assurance by a previous District Attorney that no prosecution would be forthcoming was not binding, and consequently evidence gathered in the civil action could be used in a subsequent criminal trial. The dilemma facing defendants is that they may be offered a deal by the District Attorney, whereby criminal charges will be dropped provided defendants give a full disclosure undertaking in a civil action brought by the complainant who is seeking damages. This reflects the breadth of prosecution deals upon which defense attorneys need to be able to rely, otherwise the criminal justice system would be overwhelmed by a significant increase in the number of trials. Such a prospect raises the question of whether a defendant’s best course of action is to claim the Fifth Amendment right in the civil action until the court rules that the District Attorney’s assurance of no prosecution is absolute and binding on his or her successors."