2021 Key note speaker:
Phillip Boulten SC is the preeminent criminal barrister in Australia. Admitted in 1979, called to the bar in 1988 and appointed silk in 2003, Phillip has appeared in many high
profile criminal trials and appeals.
A member of the Law Council of Australia’s Criminal Law Committee, former President of the NSW Bar Association and holding various senior positions and memberships on committees and associations, Phil is a giant in the criminal law. Upon his awarding of the Law Council of Australia President’s Award in 2018, Phillip was described as ‘exemplifying the best of the profession’.
Phillip is a friend to the NT and has appeared as senior counsel in a number of high profile appeals and murder trials in recent years. He appeared on behalf of NAAJA in the Royal Commission into the Protection and Detention of Children in the Northern Territory, and regularly offers pro bona advice and assistance.
CLANT is thrilled to have Phillip Boulten SC present our key note address.
Phillip Boulten SC
Rex Wild AO QC
At the 2021 Conference, the CLANT Playreaders and Rex Wild will present the Trial of Andrew Ballard [NOT].
In 1995, Ballard was convicted of the murder of a Perth woman. The conviction was eventually set aside by the High Court in 2005. Ballard served nearly 12 years for a murder he did not commit. A subsequent Inquiry by the WA Corruption Commission examined the failure of the police and prosecuting authorities to provide full disclosure to the Defence. Injustices exposed in the trial system have been a common thread of the previous thirteen CLANT play readings presented since 1995. This one will again be presented in verse form, and will contrast the evidence given at trial with that available before the Commission. It is not a happy picture. Nevertheless, the Playreaders will endeavour to present the material in an entertaining fashion to the Delegates, without losing the significance of the message delivered.
In the Netherlands the gaols are running on empty. How has it happened?
Between 2005 and 2015 the prison population of the Netherlands decreased rapidly, reportedly by 44%. The decrease has been sustained with gaols closing rather than being built. This decrease has apparently taken place without a rise in reported crime. This paper examines what Dutch commentators and researchers have said about the decrease and closure of prisons. There may be lessons for the Australian Criminal Justice system.
Justice Jenny Blokland
Supreme Court of the Northern Territory
Justice Lex Lasry
Supreme Court of Victoria
What does racial discrimination look like in Victoria and how can we change?
I have always felt slightly intimidated in going to the Northern Territory because I am born and bred in Victoria. Although I had First Nations friends in Healesville in country Victoria growing up, my contact with those people has been very infrequent over my lifetime. There are few First Nations people to be seen around the Melbourne CBD where I have worked all my professional life. I know embarrassingly little about indigenous history. So, many Victorians, without experience, pride themselves on not having the kinds of issues concerning racism and death in custody that we hear about from NT or WA. Wrong. We do have those issues down here. We have deaths in custody and we have a significant problem with racism. How do I know about the racism? I follow the footy and for a long time crowds have demonstrated a rumbling hostility toward indigenous players accompanied by the racist taunts. We also have a lukewarm response to the Uluru Statement from the Heart and to Reconciliation.
This paper is an examination of racist attitudes against Indigenous people by law enforcement and in society generally, and considers what needs to happen for change.
Lloyd Babb SC
NSW Director of Public Prosecutions
A truth universally acknowledged – Prosecution disclosure
New South Wales Director of Public Prosecutions
David Edwardson QC
Star Chambers SA
Lessons from the trial of Scott Douglas Austic
This paper is a review of the trial of Scott Douglas Austic following a successful appeal as a result of a petition of mercy (Austic v The State of Western Australia  WASCA75) and the use of expert police investigators and forensics specialists.
Bassi v Commissioner of Police
(The Sydney #blacklivesmatter protest case) - the right to protest and the Covid 19 response
Bassi was a last minute NSW Court of Appeal decision that “legalised” a large Sydney BLM protest minutes before the event commenced. It provides an interesting framework for analysing the public health orders introduced due to Corona virus and their interaction with fundamental human rights and the implied freedom of political communication.
Black Chambers New South Wales
Mayor of Dubbo Regional Council
Star Chambers SA
Star Chambers SA
The 2017 Uluru 'Statement from the Heart' called for a multi-pronged approach to Constitutional Reform to better include and recognise Australia's First Peoples, including "voice, treaty and truth”. In mid- 2020, Premier Daniel Andrews made the announcement that Victoria would hold a Truth and Reconciliation inquiry or commission as part of the Treaty development process with our First Nations People, making Victoria the first state to action the 'Treaty' and 'Truth' elements. The Yoo-Rrook Justice Commission is expected to commence in the coming months.
This paper situates the Yoo Rrook Commission within the historical legal context and considers the unique process which has led up to it, including the deep and significant involvement of the Victorian First Nations Assembly. The Commission, if effective in achieving the aim of being a vehicle for truth telling and acknowledgement, may ultimately provide a model for other states to emulate.
Victoria's Truth & Justice Commission
University of Technology Sydney
Professor Thalia Anthony
Acting Managing Principal Solicitor
Victorian Government Solicitor's Office
Homelessness in the NT and the vicious cycle of criminalisation
The Northern Territory has the highest rate of homelessness in Australia. People experiencing homelessness in the NT, especially Aboriginal people, are also disproportionately captured by the penal system. This presentation reflects on the NT findings of an Australian study on the criminalisation of homelessness (with Tamara Walsh, Luke McNamara and Julia Quilter). We interviewed NT judges, lawyers, corrections and people experiencing homelessness to ascertain issues pertaining to the policing, judicial engagement and corrections involvement in the lives of people experiencing homelessness.
This presentation discusses how the criminalisation of people experiencing homelessness in the NT, especially Aboriginal people, entrenches circumstances of homelessness, and how circumstances of homelessness entrench experiences of criminalisation. This vicious cycle requires strategies away from the criminal justice system and towards improved availability of housing, services and supports.
Office of the Director of
Alleviating aboriginal witness trauma and protecting best evidence in the interests of fairness and justice in the criminal courts of the NT
Since the shameful conduct of the kangaroo court proceedings of the King v Tuckiar there has been a long-recognised and acknowledged disconnect between the way our adversarial system of justice expects aboriginal witnesses to participate, and how they actually participate, with the avoidable repercussions of conflating and exacerbating the original traumas aboriginal witnesses are giving evidence about, where crimes committed by aboriginal persons and against aboriginal persons are being prosecuted. Legal reform commissions, government bodies and professional agencies through the decades have grappled with ways to build a working practical model that facilitates best evidence from aboriginal witnesses in culturally aware and sensitive ways without undermining the legitimacy of the process. Knowing what we know, having seen what we have seen in most notably Queensland, the Northern Territory and Western Australia why is it that the way we elicit evidence in these circumstances had not serviceably changed? The failure to address the inherent disadvantages against aboriginal witnesses involved in the criminal prosecution process can be seen as an affront to the principles of fairness and justice applicable to all. As recently as this year in our own jurisdiction the flaws that serve to undermine the qualitative obtaining of evidence in the investigation phase, in the trial preparation phase and at trial were writ large when inter cultural and familial conflicts between aboriginal witnesses, including the complainant and community members, crashed against linguistic barriers, conceptual complexities and traditional agendas. Is it possible to alleviate witness trauma, with a specific view to creating best practice around aboriginal witnesses based on research and recommendation by the ALRC and others that have already been proposed?
Sir Owen Dixon Chambers
New South Wales
Judge-alone trials - A journey into the abyss or a modern approach to Criminal Law?
Judge-alone trials are a relatively new phenomenon in Criminal Law in Australia. They have never been a feature of the Common Law and the way they operate in Australia can be traced back to the Diplock Report and the “Troubles” in Northern Ireland.
This paper will not be arguing for the removal of Juries. Juries will always have a place in the Criminal Law, rather, the paper will argue that judge-alone trials should be a further procedural mechanism available to ensure the efficient administration of justice and the decision is on a case by case basis.
This paper will discuss the various judge-alone models in Australia, what works, what doesn’t and also the expectations of the judicial officers in delivering reasons after a trial. More importantly however, how the advocacy by Counsel in a judge-alone trial will be different than before a jury and the expectations of Counsel by the Bench in judge-alone trials.
Victoria Legal Aid
Once thought of as the exclusive province of prosecutors, tendency evidence is being utilised by defence practitioners with ingenuity and greater frequency. A defence tendency application can be a novel way to introduce evidence to bolster a self-defence case or to contradict the prosecution’s sequencing of the alleged offending. A successful defence tendency application can significantly alter the dynamic of a jury trial with ramifications for the prosecution case.
This paper considers the increasing prevalence of defence tendency applications and examines the emerging lines of authority emanating from superior courts in NSW, Victoria, ACT and the NT in relation to such applications. Aside from canvassing the legal and procedural hurdles, the paper is designed as a practical ‘field manual’ for legal practitioners who wish to make a defence tendency application but have not yet had the opportunity or experience to do so.
‘Turning the tables’: Defence tendency applications in criminal litigation
William Forster Chambers
Customary law and cultural practice in sentencing in the NT: Section 16AA of the Crimes Act 1914 (Cth)
Section 16AA of the Crimes Act prohibits sentencing courts from taking into account any form of customary law or cultural practice as a reason for excusing, justifying, authorizing, requiring, lessening, or aggravating the seriousness of criminal behaviour.
This paper considers the operation of s 16AA, its history and succession from s 91 of the Northern Territory National Emergency Response Act 2007 (Cth), and endorses the recommendations of the Law Council of Australia and the Northern Territory Law Reform Committee that the provision should be repealed.
Criminal Appeals Against Guilty Plea Convictions
This presentation discusses the findings from a study of Australian criminal appeals against guilty plea convictions. This study comprises an analysis of over 230 appellate court decisions (Australia-wide) where a conviction following a guilty plea has been challenged on the basis that miscarriage of justice has occurred. The aim of this study was to understand the prevalence and causes of miscarriages of justice arising from guilty pleas (or ‘false guilty pleas’) in Australia.
While Australian appellate courts have traditionally approached attempts to set aside a plea of guilty with ‘caution bordering on circumspection’, the number of appeals against guilty plea convictions has increased substantially over the last twenty years, as have appeal success rates. This presentation outlines the number of people who have had their guilty plea conviction overturned on appeal, as well as providing an insight into the underlying causes and circumstances which have led to the entry of impugned guilty pleas. This presentation concludes by considering the effectiveness and limitations of appellate review in identifying and correcting erroneous guilty pleas.
University of South Australia
Rex Wild, AO, QC, Barrister (retired)
Stephen Karpeles, Co-ordinator NAAJA, Custody Notification Service
“The Black Hole” – Why the Custody Notification Service is such an important development for Aboriginal people in police custody in the Northern Territory
This year marks the 30th anniversary of the final report by the Royal Commission into Aboriginal Deaths in Custody. While much of the commentary has rightly focused on the failure of State and Territory Governments to implement many of its recommendations, this paper will look at one area where much needed reform has occurred: police custody. In particular, the paper will focus on the Custody Notification Service (CNS) which commenced in the Northern Territory in July 2019. The paper will discuss the significance of the CNS for Aboriginal people when they are taken into police custody in the NT by contrasting their lack of rights with their interstate counterparts.
The paper will highlight some of the positive changes the CNS has brought to police culture and relations between Aboriginal people and the police, and the impact it has had, particularly for vulnerable people in police custody. While acknowledging the service’s limitations the paper will argue the CNS must remain an integral part of the custody process in the NT to avoid Aboriginal people disappearing into ‘the black hole’.
Ben Grimes, ARDS Aboriginal Corporation
Linguistics v the Law: Can divergent approaches to s 85 of ENULA be reconciled?
Since the introduction of s 85 ENULA and equivalent provisions in other Uniform Evidence Act jurisdictions, the courts have developed divergent approaches to the interpretation of s 85(2). These approaches are often articulated as a subjective or objective analysis of the admissions, and to date there is still legal ambiguity about the prefered approach. This paper will compare and illustrate the two approaches, and then compare the legal approaches to assessing reliability of admissions with a linguistic approach to describing reliability. The paper will articulate different fundamental assumptions about language held by the law and linguistics, and show how those underlying attitudes impact different understandings of reliability. The paper will argue that there is ample scope within the current legislative framework for courts to adopt a more linguistically informed approach to reliability, whilst also concluding that specific legislative amendment to s 85(2) will resolve the current tension in legal interpretation of the provision.
This paper ties into the broader theme of 30 years since the Royal Commission into Aboriginal Deaths into Custody because it draws a direct link between problematic assumptions about language within the legal profession and high rates of admissions and convictions for Aboriginal Territorians. These issues were identified in the RCADC, however are still largely unresolved.
Michelle Swift, Forbes Chambers NSW
Beth Wild, Managing Solicitor Top End Crime, NAAJA
A therapeutic approach to adjudicating domestic violence
This paper will consider alternative dispute resolution and other therapeutic approaches to see if there is a more effective and efficient manner in which to deal with the issue of domestic violence and the never ending revolving door of custodial sentences that plague the current system.
Julianna Marshall, Manager of Policy and Education- CAWLS
Coercive Control in the context of the NT
ABSTRACT: The criminalisation of coercive control in Australia is emerging as a divisive issue. Whilst there is unanimous support for the need to do more to address coercive control, as an insidious driver of family and domestic violence, there are serious concerns about the effectiveness of criminalisation as a response strategy, particularly in the Northern Territory, which has the highest rates per capita of victimisation rates for DFV offences. Ahead of the Northern Territory Government’s review of domestic and family violence legislation, this paper explores the current status of the debate in Australia, highlighting important considerations for the Northern Territory including the high rates of victimisation, misidentification and increasing number of Aboriginal women in prison. Undoubtedly, the most significant gap in the research on coercive control in general, and on criminalising coercive control in particular, is how it impacts indigenous communities. This paper draws on the front line experience of Central Australian Women’s Legal Service, to begin to identify indicators of coercive control within the family violence narratives shared with us by our clients.
Marty Aust, President- Criminal Lawyers Association of the NT
General Counsel- NAAJA criminal section
Welcome and thank you!
On behalf of the CLANT Committee I am excited to welcome you all to our 18th Biennial Conference. This is the first time the conference has been held in Darwin and we hope to showcase some of the great aspects that make the Northern Territory a vibrant and inclusive community. This year’s theme is important and there will undoubtedly be difficult discussions and truths that we all need to face as we look to improve the practice of the criminal law here and in the entire criminal jurisdiction. Please immerse yourself in the conference, take advantage of the Larrakia Cultural and Legal Tour and all of the added events that bring us closer together and most importantly speak your mind and enjoy the collegiality and environment of this event.
I am looking forward to seeing you all in Darwin.
Bali Players, play reading performance, written and directed by Rex Wild QC