Friday 20 April 2012
On Friday 20 April 2012 James Hunter Ashby commenced legal proceedings against the Commonwealth of Australia and Peter Slipper under the Fair Work Act 2009 (Cth). Mr Slipper subsequently applied to have those proceedings dismissed as an abuse of the process of the Court.

Wednesday 12 December 2012
On Wednesday 12 December 2012 Rares J granted the application of Mr Slipper and dismissed the proceedings on the grounds that they were an abuse of process of the Court. In so doing His Honour made several very damning findings against Mal Brough.

"[58] Later on 29 March 2012, Mr Brough exchanged texts with Mr Ashby. Mr Brough asked whether Mr Ashby could email a document because, what Mr Ashby had sent is “hard to read”. Mr Ashby said that he would email it and Mr Brough later responded: “Will need to get daily printouts tomorrow with greater detail”. I infer that this exchange related to Mr Brough having been sent, and later emailed, copies of printouts from Mr Slipper’s electorate diary from 2009 made by Mr Ashby or Ms Doane."

"[197] For the reasons above, I am satisfied that these proceedings are an abuse of the process of the Court. The originating application was used by Mr Ashby for the predominant purpose of causing significant public, reputational and political damage to Mr Slipper. It contained the scandalous and irrelevant 2003 allegations and assertion that Mr Ashby intended to report to the police Cabcharge allegations. To allow these proceedings to remain in the Court would bring the administration of justice into disrepute among right-thinking people and would be manifestly unfair to Mr Slipper: Jeffery & Katauskas 239 CLR at 93 [28]. Even though Mr Ashby has now abandoned the 2003 and all the Cabcharge allegations, the features that I have criticised did the harm to Mr Slipper that Mr Ashby and Mr Harmer intended when those allegations were included in the originating application. A party cannot be allowed to misuse the Court’s process by including scandalous, irrelevant or damaging allegations knowing that they would receive very significant media coverage and then seek to regularise his, her or its pleading by subsequently abandoning those claims."

"[199] Even though I have not found that the combination was as wide as Mr Slipper alleged in his points of claim, the evidence established that there was a combination involving Mr Ashby, Ms Doane and Mr Brough of that kind. Mr Ashby acted in combination with Ms Doane and Mr Brough when commencing the proceedings in order to advance the interests of the LNP and Mr Brough. Mr Ashby and Ms Doane set out to use the proceedings as part of their means to enhance or promote their prospects of advancement or preferment by the LNP, including by using Mr Brough to assist them in doing so. And the evidence also established that the proceedings were an abuse of the process of the Court for the reasons I have given. Accordingly, I am satisfied that the exceptional situation that enlivens the Court’s power to dismiss (or stay) proceedings as an abuse has been proved to the heavy standard required: Williams 174 CLR at 529. The duty and power of the Court to protect its own processes require that I give effect to the findings I have made by dismissing the proceedings under r 26.01."

Thursday 29 March 2012 - Text Messages

• Can that be emailed James it is hard to read Mal.brough2@bigpond.com - 29/03/2012 11:31:19 am UTC (Network) - Read by Ashby

• Done. Coming thru in minutes - 29/03/2012 11:31:53 am UTC (Device) - Sent by Ashby

• Thanks - 29/03/2012 11:32:11 am UTC (Network) - Read by Ashby

• James can you give me a call please. Mal - 12/04/2012 10:09:04 am UTC (Network) - Read by Ashby

Saturday 5 May 2012
On Saturday 5 May 2012 Mal Brough told The Sunday Age: ''I have nothing to hide and I have nothing to be ashamed of.''

Monday 30 July 2012
On Monday 30 July 2012, Mal Brough appeared on ABC Radio National and participated in an interview with Fran Kelly. During this interview, Mal Brough appeared to admit that he had received these allegedly stolen diary pages from Mr Slipper.

Fran Kelly: You were sent photocopied pages of Peter Slipper’s diary, it’s alleged, were taken without his permission

Mal Brough: Did not answer this question

...

Fran Kelly: Were you comfortable when they were sent to you

Mal Brough: No I wasn’t, but he did do that. I never forwarded them to anyone.

It seems there is at least one other interview Mal Brough conducted that day. Michelle Grattan quoted the following in her article on Tuesday 31 July 2012:
• "He sent me a text of three pages . . . I didn't forward them to anybody. I couldn't read them . . . He sent them to me because in the course of our first conversation he alleged criminal behaviour."
• "If asked to do what I did before, I would do it again."

It has been reported that "in an interview with SkyTV [on Monday 30 July 2012], Mr Brough was asked why he had needed the [Peter Slipper] diaries and why he did not advise Mr Ashby to take his complaints to the police."

Mal Brough: "I did tell him to go to the police, and you will find no record there of me asking him for those, those diaries."

Thursday 24 January 2013
On Thursday 24 January 2013 during his train ride interview with Kathy Sundstrom from the Sunshine Coast Daily Mal Brough said "I have addressed, in full, my involvement with the matter and there is nothing further that I can add,"

Thursday 7 February 2013
On Thursday 7 February 2013 Mal Brough was interviewed by Simon Cullen of ABC News.
Mal Brough is reported as saying:
• "There is nothing more to add. There is no other meetings, connections or whatever else," he told ABC News.
• "All of the discussion, the text messages - of which there is about half a dozen at most - are all there for anyone to read.
• "I have nothing to be ashamed of or would change.
• "A person (James Ashby) came to me for assistance. I suggested that they go and get legal advice. I suggested they go to police if they believed a crime had been committed.
• "And that is the sum total of my involvement."

Commentary
It can be clearly seen from his interviews of Thursday 24 January 2013 and Thursday 7 February 2013 that Mal Brough:
• Accepts and adopts the text messages of Thursday 29 March 2012;
• Acknowledges and does not resile from his interviews of Monday 30 July 2012 in which he appears to have confessed to receiving the stolen diary pages;
• Acknowledges the judgment of Rares J of Wednesday 12 December 2012.
• Acknowledges he is not a party to the Ashby -v- Slipper proceedings.

The focus upon Mal Brough derives from the Ashby -v- Slipper case, but the issues which relate to him are separate and distinct from the issues the subject of the appeal. Mal Brough is in the spotlight due to possible breaches of the criminal law, not any sexual harassment that may have occurred between Peter Slipper and James Ashby.

Receiving Tainted Property
Sect 432 of the Criminal Code (Qld) provides as follows:

432 What is tainted property for ch 41
(1)     In this chapter--

tainted property means -
    (a)     a thing that has been obtained by way of an act constituting an indictable offence; or

    (b)     if tainted property mentioned in paragraph (a) is converted into other property—any of the other property; or

    (c)     if tainted property mentioned in paragraph (a) is mortgaged, pledged or exchanged for other property—any of the proceeds of the mortgage, pledge, or exchange.

(2)     However, a thing stops being tainted property after a person acquires a lawful title to it.

Sect 433 of the Criminal Code (Qld) provides as follows:

433 Receiving Tainted Property

(1)     A person who receives tainted property, and has reason to believe it is tainted property, commits a crime.

    Maximum penalty--

    (a)     if the property was obtained by way of an act constituting a crime—14 years imprisonment; or

    (b)     if the property is a firearm or ammunition—14 years imprisonment; or

    (c)     if the offender received the property while acting as a pawnbroker or dealer in second hand goods, under a licence or otherwise—14 years imprisonment; or

    (d)     otherwise—7 years imprisonment.

(2)     For the purpose of proving the receiving of anything it is sufficient to show that the accused person has, either alone or jointly with some other person, had the thing in his or her possession, or has aided in concealing it or disposing of it.

Conclusion
The text messages of Thursday 29 March 2012 support the contention that Mal Brough received tainted property. The decision of Rares J supports that contention.

It is open to conclude that during his interviews of Monday 30 July 2012 Mal Brough confessed to receiving tainted property.

At no time during his interviews of Thursday 24 January 2013 and Thursday 7 February 2013 does Mal Brough resile from his confession of Monday 30 July 2012. There is no apparent material to suggest those interviews with Mal Brough would not be admissible against him at any criminal trial.

The false denial by Mal Brough of Monday 30 July 2012 in relation to requesting the Peter Slipper diaries goes to his credit as a witness and does not detract from his confession to receiving the stolen diary pages.

By his behaviour Mal Brough appears to have brought himself within the umbrella of the Queensland Criminal Code and the Queensland Criminal Law.

There is no defence within the Queensland Criminal Code or Queensland Criminal Law that a person should not be prosecuted because Mal Brough says so.

Ross Bowler LLB

Over the next couple of blogs I propose to deal with the role barristers can play in the legal system.

Criminal Law
The role of the barrister in criminal law matters is reasonably well known and understood.

Advice On Giving and / or Calling Evidence
Once full and proper written instructions have been taken from the Accused by the solicitor, the Accused is entitled to be properly advised in respect of giving and / or calling evidence at the trial.  That advice invariably comes from a barrister and the Court of Appeal has said that advice should include a discussion of the importance of:
•    The relative strength of the Crown case;
•    The impact upon that case from the course of the cross-examination;
•    Making a sworn denial before the jury;
•    Whether there was some unanswerable problem that the Accused would have confronted in giving evidence;
•    Earlier versions given by the Accused which might be difficult to reconcile with the current evidence of the Accused;
•    How the Accused would conduct himself as a witness;
•    The likely impression of the Accused upon the jury, if he gave evidence;
•    Any possible relevance of his not giving evidence at trial to determination of an appeal against conviction;
•    A potential advantage in the case of being last to address the jury.
It is also very proper to record the advice given in a complete fashion. (See R -v- ND [2004] 2 QdR 307; [2003] QCA 505)

Having had those discussions with the accused, the barrister is then in a position to advise the accused the prospects of success at trial and what might occur if the matter was compromised by way of a plea of guilty.

The accused is then in a position to make a fully informed decision as to how the matter ought proceed, either at trial or by way of plea of guilty and sentence.

Civil Litigation
Whilst civil law trials are different to criminal law trials in many respects, there are also many similarities.  The focus of criminal law trials is on the accused and all of the disclosure is expected to have occurred well before the matter comes to trial. Civil trials see the focus more evenly spread across the witnesses and a failure to disclose evidence may not be a reason to delay or adjourn the trial.

Bearing in mind the standard of proof in a civil trial is on the balance of probabilities, as opposed to beyond reasonable doubt in a criminal trial, let us look at how the aforementioned list of obligations and entitlements in a criminal law trial might apply in a civil trial.

The civil law Client would be entitled to be advised as to:
•    The strengths and weaknesses of his own case;
•    The relative strength of the case of any and all opponents, to the extent that that information is available;
•    The impact upon both cases from the course of the cross-examination;
•    Each witness making a sworn statement before the Judge or jury, as the case may be;
•    Whether there was some unanswerable problem that the witness might confront in giving evidence;
•    Earlier versions given by the witness which might be difficult to reconcile with the current evidence of the witness;
•    How the Client would conduct himself as a witness;
•    How any other witness might conduct himself as a witness;
•    The likely impression of the Client upon the Judge or Jury, if he gave evidence;
•    Any possible relevance of the Client not giving evidence at trial to determination of an appeal against liability or damages, as the case may be;
•    A potential advantage in the case of being last to address the Judge or Jury; nowhere near as significant in a civil trial.
•    All the forms of mediation and alternative dispute resolution available in respect of the case.

Conclusion
In my submission the obligation to advise a Client in respect of a civil trial is very similar to the obligation the Court has identified in respect of criminal trials. Accordingly comparable preparation for that civil trial can be expected to be required of the legal representatives.

This would then enable the Client to make an informed decision as to the merits of the case sought to be run and what the Client might wish to do in respect of that case.

It would also enable optimum discussion about the extent to which mediation is appropriate in the case and what the Client may stand to gain or lose by compromising the matter.

What obligations do you see that fall to a barrister when it comes to advising a client before a trial?

Ross Bowler LLB