ADFA cadet accused of raping fellow Defence member pleads not guilty

ADFA cadet accused of raping fellow Defence member pleads not guilty

By Jana Black

A 19-year-old Australian Defence Force Academy (ADFA) cadet charged with raping a female cadet in Canberra has pleaded not guilty.

It is alleged Jack Toby Mitchell raped the 18-year-old woman while she was sleeping after a night out in May.

Police arrested the man in the early hours of June 3 and faced court the same day.

Today Mitchell entered the plea of not guilty, through his lawyer Adrian McKenna of Ben Aulich & Associates, to one charge of sexual intercourse without consent in the ACT Magistrates Court.

The court previously heard Mitchell and the woman had been drinking at a Canberra nightclub with friends and decided to catch a taxi back to ADFA with a third male cadet.

On arrival, the pair left the third cadet and returned to Mitchell’s room where it was alleged he raped the woman while she was sleeping.

The court also heard Mitchell and the woman had known each other for about four months and both lived on campus.

Mitchell was previously granted bail under strict conditions and bail was continued today.

The conditions included he not go within 100 metres of the woman and that he not attempt to contact her, including through other cadets.

Alternative accommodation was to be arranged in order for Mitchell to meet the bail conditions.

The Department of Defence released a statement earlier this month which said it was assisting police and providing support to the individuals concerned.

The matter has been adjourned until September.

The alleged assault is the latest in a series of incidents at the Academy, including the ‘Skype sex scandal’.

http://www.abc.net.au/news/2016-06-23/adfa-cadet-charged-with-raping-pleads-not-guilty/7537072

 

Why Canberra’s Draconian Drug Driving Laws Must Change

Adrian McKenna, Senior Associate at Ben Aulich & Associates, calls for reform to laws unfairly punishing drivers with cannabis in their system.

The Canberra community is increasingly learning the fallacy of the ACT Government’s “zero tolerance” approach, charging unimpaired drivers with miniscule traces of cannabis in their body. [1]  It is less well known that we have by far the most draconian drug driving penalties in the country. A first offender with the smallest amount of cannabis in their system will ordinarily expect a criminal conviction and loss of licence of between 6 months and 3 years. Even for younger drivers injured in accidents, through no fault of their own, convictions and licence disqualification are common.[2] 

It is hard to deny the widespread use of cannabis in the ACT and elsewhere in Australia is very much a reality here to stay for the foreseeable future. Whether we respond with a “war on drugs” retribution mindsight or targeted tolerance and management is a wider reflection on our society.

For almost two decades the ACT has lead the way in progressive laws relating to what is a near decriminalisation of minor cannabis possession and cultivation. Possession of less than 50 grams of cannabis or cultivation of up to 2 cannabis plants carries a maximum penalty of $150 and can be dealt with by way of an infringement notice, akin to a speeding ticket, without going to court or having any criminal conviction recorded.

The laws appear to allow for tolerance, if not acceptance, of the reality and relative harmlessness of low level personal cannabis use in the community. There is also a growing push for the legalisation of marijuana for medicinal purposes.

Notwithstanding these progressive trends, the ACT Government repeatedly refuses to consider any amendments to drug driving laws that disregard levels of intoxication or impairment. It is a stubborn and hypocritical stance. We tolerate low level cannabis users on the one hand and on the other denounce them for driving days or weeks later, even if in no way still impaired by cannabis.

A quick comparison of automatic drug driving disqualifications in State and Territory jurisdictions shows the unusually harsh approach in the ACT:

Victoria: 3 months

SA: 3 months

WA: 3 demerit points

Tas: 4 demerit points

NT: 24 hour suspension

Qld: Between 1 and 9 months

NSW Between 3 and 6 months

ACT: Between 6 months and 3 years

 

Drug driving licence disqualification in the ACT matches that for high range (level 4) drink driving. Unlike drink driving charges though, drug driving offenders cannot rely on work licences or the installation of alcohol interlock devices to prevent licence disqualification. Young tradesman or apprentices, dependent on their licence for work, can expect to lose their job if caught driving even days after a casual use of cannabis. Police have been steadily increasing roadside drug tests in Canberra and this will inevitably capture more unimpaired drivers. [3]

Disappointingly, the stock standard response of the Government to calls for reform is that they take a “zero tolerance” approach to drug driving. No explanation is given for how it is just or morally acceptable to capture with a criminal offence so many perfectly capable and responsible drivers who are in no way impaired. Their advice is to simply not drive if you ever have drugs. The response may as well be “don’t do drugs”… “drugs are bad”. Is there any real difference between walking or sitting in public with a miniscule level of drugs without impairment than driving in the same state?

Some justification is attempted by claims (without any concrete evidence), that cannabis may only typically be detected in saliva for up to 12 hours and in blood for up to 48 hours. But these claims fly in the face of Court experience. Magistrate Heilpern in Lismore, for example, noted the hundreds of offenders who had spoken of trying to wait days or weeks for cannabis to clear their system before driving.[4] I have personally represented many clients conveying this same experience.

Modern drug analysis techniques are perfectly capable of detecting concentrations of drugs in blood. Why this is not utilised, as it is in many European countries, for setting some limit to drug driving offences remains a mystery.

The ACT Government, whoever it will be by the end of this year’s election, must reconsider reforms that allow for testing of concentrations of cannabis, in a sensible way that reflects likely levels of impairment to driving. We also need a significant reduction to the automatic licence disqualification periods for the offence. It is outrageous that we are forced to tolerate these draconian laws that fly in the face of our otherwise progressive approach to low level cannabis possession and cultivation.

Adrian McKenna, Senior Associate

 

[1] Canberra Times Editorial, 29 June 2015, “ACT’s zero-tolerance drug driving laws may need review” http://www.canberratimes.com.au/comment/ct-editorial/acts-zerotolerance-drug-driving-laws-may-need-review-20150629-gi09q4.html

[2]See, for example, Canberra Times, 1 July 2015  http://www.canberratimes.com.au/act-news/zero-tolerance-drug-drive-laws-leads-to-conviction-of-unimpaired-motorcyclist-20150630-gi1eyc.html

[3]Canberra Times, 27 November 2015 http://www.canberratimes.com.au/act-news/drugdriving-campaign-launched-in-act-after-calls-for-greater-awareness-20151126-gl93e4.html

[4]ABC News, 3 March 2016, http://www.abc.net.au/news/2016-03-03/claim-cannabis-stays-in-system-for-up-to-12-hours-questioned/7216720

Shielding yourself from wrongful gaol time: What beyond reasonable doubt really means

Peter Woodhouse, partner at Ben Aulich & Associates, looks at a fundamental jury question in criminal trials.

I have been involved in many jury trials and I cannot think of one where a jury has not asked a question to the effect: “what does beyond reasonable doubt mean?”

Our criminal justice system has two entwined fundamental principles at its foundation:

1. The presumption of innocence;
2. The requirement for the prosecution to prove criminal charges beyond reasonable doubt.

The requirement to prove criminal charges beyond reasonable doubt is often referred to as the criminal standard of proof.

Notably, that differs from the standard of proof required for civil matters – the balance of probabilities.  The balance of probabilities is easier for laypersons to understand.  It is often defined as “more likely than not” or quantified as 50% + 1.

The concept of “beyond reasonable doubt” is more difficult to define.  Many judges in many Courts have tried to define the phrase.  Most have failed and been criticised by appellate Courts along the way.

If you do find yourself on a jury and you do find yourself pondering the meaning of “beyond reasonable doubt” chances are the presiding Judge will answer with something like: these are words in the ordinary English usage and mean exactly what they say.  I expect that would not be very helpful to you.  Sometimes, the best way to understand what “beyond reasonable doubt” means is to know what it’s not:

1. Grave suspicion is not proof beyond reasonable doubt;
2. Thinking the accused probably did it is not proof beyond reasonable doubt.

Some jurors seem to fail to appreciate that it is quite a high threshold.  If there is any doubt that is not fanciful the accused shall be acquitted.

It is important to remember that in our criminal justice system an accused person is innocent until proven guilty and they do not have to prove their innocence.  Often referred to as the golden thread running through the web that is criminal law, the requirement of the prosecution to prove criminal allegations beyond reasonable doubt is a high threshold and one that goes to the very heart of a fair and just legal system.

Peter Woodhouse, Partner

Lawyer accuses police of ‘unlawful home invasion’, illegal detention of woman

Police have been accused of conducting an “unlawful home invasion” and illegally detaining a Canberra woman twice in one day.

The allegations were aired during evidence in a common assault case in the ACT Magistrates Court earlier this week, where defence barrister Steven Whybrow, instructed by Jane Carey of Ben Aulich & Associates, forcefully cross-examined an officer about an encounter with his client.

Police went to the O’Connor home of the 40 year old woman in November, after receiving reports from neighbours that she was having an argument about her five-year-old son with her mother.

When police arrived, there was no breach of the peace, the argument had finished, and there was no ongoing fear for the child’s safety. The woman, who has no criminal record, didn’t invite them in, and they didn’t have a warrant.

Police entered the home, and said the woman told them she had taken valium and alcohol and no longer had “anything to live for”.

Officers told the woman they were detaining her. Mr Whybrow alleged they made no further attempts to ascertain her mental state, or ask how many tablets she may have ingested.

A constable told the ACT Magistrates Court on Tuesday that police feared she may overdose or self-harm, and so emergency powers under the ACT’s Mental Health Act were used to immediately detain her.

Those powers are only to be used when police believe there is a risk of suicide, self-harm, or serious harm to others. Police are required to transfer the detainee to an “approved health facility” when using such powers.  That did not occur.

The woman did not comply with attempts to detain her and after being followed through the home and “corralled” into a corner of her garage, she lashed out at an officer, slapping one with an open palm.

She was charged with common assault, but Mr Whybrow is arguing self-defence, claiming the act occurred in the face of illegal behaviour by police.

Despite police’s apparent fears of an overdose, the woman was taken to the ACT Watch House, not the hospital, where she allegedly waited for 30 minutes before a doctor was called.

The officers who attended her home are thought to have made no checks with police operations about her mental health history, asked no questions about the number of valium tablets ingested, and made no contact with the ACT Mental Health’s Crisis Assessment and Treatment Team.

As part of new measures introduced in recent years, police have immediate access to mental health clinicians and records through their operations centre.

One constable, who was at the scene, told the court police only used the mental health information if “you’ve got the time”.

“It’s something that can be done. It’s not something that has to be done.”

The woman was transferred to the hospital from the ACT Watch House. Once at the hospital, she was no longer deemed to be “in custody”, so she left before mental health workers could assess her.

Upon learning of her exit from hospital, police drove to her home and watched her arrive in a taxi.

They then told her she was under arrest, again, this time taking her directly to hospital because of concerns for her safety.

Mr Whybrow asked:

“What concerns?”

The officer replied:

“She had taken alcohol and valium and said she had nothing left to live for. I’d say that’s fairly serious.”

Mr Whybrow replied:

“So serious that you don’t even have anyone take her to the hospital [the first time]?”

Mr Whybrow described her imprisonment as “totally unlawful” and police actions as an “unlawful home invasion”.

Earlier, the barrister told the court that records that should have been filled out to justify the use of the emergency mental health powers appeared not to exist.

He expressed concern that they may suddenly appear before the next hearing date.

Special Magistrate Ken Cush said there should be further discussions made between the parties about the continuance of the case.

Mr Cush said prosecutors had a duty to decide whether it was in the interests of justice to proceed with the charge.

He said even if evidence was not excluded, and the case against the woman proved, he would likely give her a non-conviction order for the minor charge of common assault, given her lack of criminal history.

The matter will return to the ACT Magistrates Court next month.

Credit: Christopher Knaus, Canberra Times

Man pleads guilty to importing commercial quantity of drugs to front door

A Canberra man has pleaded guilty to importing a commercial quantity of drugs to his front door.

Christopher Walter Thorn, 39, opened his door to what he thought was a delivery man on 15 October last year.

Thorn signed for a package of five kilograms of GBL, a liquid which is naturally converted by the body to the illicit drug GHB, or fantasy.

He didn’t know it, but the delivery man was an undercover member of the Australian Federal Police.

Police had been alerted to the drug importation by customs, who had intercepted a FedEx package being sent from Shanghai, China, to Thorn’s front door in Phillip.

The home was later raided, and Thorn made several admissions to police, according to court documents.

He told police he used internet cafes to order the GBL via email, using the business name “Be Clean Solutions” and paying using Western Union funds transfer.

Thorn told police the drugs were for personal use, and he had been consuming GBL daily for 12 years.

During the search, police also found eight clip seal bags containing the drug ice, and two smoking implements.

Thorn was charged, taken to court and held in custody.

Another two packages were intercepted while he was behind bars, one containing 18 kilograms, and the other 1.9 kilograms.

One was destined for his home address and the other to a post office box in his name.

The total weight of GBL imported was 25 kilograms, far above the one kilogram that the law considers to be a commercial quantity.

Thorn has since been bailed and went to rehabilitation to try to overcome his drug addiction.

He appeared in the ACT Magistrates Court on Thursday, represented by solicitor Peter Woodhouse, and pleaded guilty to one charge of importing a border controlled drug.

The charge carries a maximum penalty of one year imprisonment.

Magistrate Bernadette Boss committed Thorn for sentence in the ACT Supreme Court, and he will appear later this month.

Credit: Christopher Knaus, Canberra Times

Canberra woman alleges she suffered spinal injury after a ‘rough ride’ in police custody

Kirsty Toomey recovering in hospital after her injury in police custody

A Canberra woman alleges she suffered a spinal injury after a “rough ride” while in police custody on the weekend.

Kirsty Toomey, 25, underwent surgery on Monday to fix damage to a section of her neck, which had previously been fused.

She will be forced to wear a neck brace for the next three months as part of her recovery.

Late last year, Ms Toomey had a 360-degree fusion, at the front and back, of the vertebrae in her neck.

Scans upon her admission to hospital on Sunday showed the back part of the fusion had separated.

Ms Toomey’s lawyers, from Ben Aulich & Associates, believe the injury may have been caused by a “rough ride” while in custody.

A rough ride is when a police wagon – which has no seatbelts or restraints in the back – is driven erratically so a detainee is thrown violently about.

Ms Toomey had a warrant out for her arrest for failing to appear in court on a driving-while-disqualified charge.

ACT Policing confirmed Ms Toomey had been arrested about 10.20am on Sunday and taken to the ACT watch-house.

“The female complained of a medical condition and as a result was transported, by ACT Ambulance Service, to the Canberra Hospital for treatment,” the police said.

“For privacy reasons we are unable to comment on the female’s medical condition or history.”

ACT Emergency Services received a call about 11.45am, and an ambulance arrived at 12.05pm.

Paramedics assessed a female patient then departed with her about 12.15pm and arrived at Canberra Hospital at 12.27pm.

Ms Toomey’s lawyer, Peter Woodhouse, said she had gone to the Alexander Maconochie Centre on Sunday morning to visit an inmate when police arrested her.

“She was co-operative and not handcuffed,” Mr Woodhouse said.

“When police went to put her in the back of the paddy-wagon, she told them about her neck problem and asked whether she could sit in the front.

“They commented on the scar on her neck from the previous operation, which was then discussed briefly.”

But Mr Woodhouse said officers refused her request and put her in the back of the vehicle.

He said she became concerned when police started to drive, so crouched down in an attempt to brace herself.

“The vehicle accelerated quickly, she thinks over a speed bump, and she bounced upwards, the back of her neck connecting with the top of the pod,” Mr Woodhouse said.

“She was in immediate pain. She asked the police to stop repeatedly, they didn’t.”

Ms Toomey alleges she could not lift her neck or head and could not get out of the vehicle upon arriving at the ACT watch-house about 11am.

She complained of severe pain and asked to see a doctor, but was told she would have to wait, Mr Woodhouse said.

Ms Toomey was then placed in a cell and given blankets when she asked for a pillow.

She alleges she complained on multiple occasions and asked to see a doctor.

“She believes she passed out from the pain [and] was woken by the doctor touching her face, ” Mr Woodhouse said.

“The doctor questioned and examined her briefly [before telling] police she needed an ambulance and had to be taken to hospital immediately.”

Mr Woodhouse said he had requested copies of CCTV footage and records from the ACT watch-house, but the AFP had not yet provided the material.

“I am very concerned somebody can suffer such a serious injury in police custody and despite repeated requests for medical assistance, has to wait many hours to be seen by a doctor.”

Ms Toomey was granted bail by Magistrate Robert Cook during an unopposed bedside application on Wednesday.

The 25-year-old expects to be released from hospital to begin her recovery this weekend.

Credit: Michael Inman, Canberra Times

Tara Costigan death: Accused Calwell murderer’s defence lawyer to brief psychiatrist

The new defence team for accused Calwell axe murderer Marcus Rappel will brief a psychiatrist in relation to the case, a court has heard.

Rappel, 40, is accused of killing his ex-partner Tara Costigan, 28, one day after she sought a domestic violence order against him.

He has now been behind bars for more than two weeks, and his case returned to the ACT Magistrates Court for a second time on Tuesday.

Rappel was represented by Legal Aid on his first appearance earlier this month, but his new lawyer Ben Aulich appeared for him on Tuesday.

Mr Aulich told the court he was seeking to brief a psychiatrist in relation to the case, but needed the brief of evidence from the prosecution first.

Prosecutor Shane Drumgold said he would try to get the brief to the defence by the next court date or, if it was not ready, would talk sensibly about where it is at.

Rappel did not appear in court on Tuesday, and was excused from appearing in April as well.

Friends and family of Ms Costigan were present in court.

Ms Costigan’s death left three children motherless, including two young boys and a baby born just one week before her death.

The matter will return on 21 April.

Emergence of Canberra Comanchero chapter linked to southside shooting

Tensions between Rebels bikies and a newly established Canberra Comanchero chapter are reaching boiling point as police probe links between the feud and a southside shooting.

Police fear Rebels bikies peppered the home and car of a rival gang member with bullets as a spate of shootings gripped Canberra’s suburbs this month.

The capital’s status as a one-club town dramatically altered with the emergence of the Comanchero last year.

It is understood the fledgling chapter was established by former Rebels who left the club before patching over.

Patching over – or switching gangs – is seen as a treacherous act punishable by retribution by former associates seeking payback.

There have been members of other outlaw motorcycle gangs in Canberra for years, but never a blatant incursion by a rival group setting up a chapter in the traditional Rebels stronghold.

But ACT Policing said it had no concerns of tit-for-tat attacks escalating into a bikie war across Canberra’s suburbs.

At about five members, the sole Comanchero chapter is dwarfed by the long established Rebels with five chapters and an estimated 60 members.

The authorities said it had been aware of the newcomers and its intentions to recruit new members in the territory.

“Intelligence on OMCG activity in other jurisdictions shows there is a dynamic within these criminal organisations in which perceived weaknesses are exploited by rival gangs,” a police spokesman said.

But the police said it had no concerns other gangs would seek to establish footholds in the ACT as interstate anti-bikie laws continue to bite.

“Taskforce Nemesis will draw on … resources as necessary to ensure that there is not a shift of OMCG activities to the ACT from other states and territories.”

It is understood members of Canberra’s rival clubs have previously clashed, mostly in Civic, but no arrests have been made and no formal complaints received by police.

The recent shooting would represent an escalation of the violence between the gangs.

Police believe only one of the recent five southside shootings are bikie linked.

It is understood an alleged Comanchero member was the target.

“The other four [shootings] do not appear to be OMCG-related however we are open-minded to the possibility should evidence come to light,” a police spokesman said.

If the link is established it would be the second time tensions between outlaw gangs has publicly erupted in Canberra in recent months.

Three Rebels bikies are currently before the courts accused bashing of two Finks members outside Belconnen mall in October.

Fakatounaulupe Ngata, 35, Dean Stephen Reid, 26, of Holt, and Kirk Jacques Newman, 27, have pleaded not guilty in the ACT Magistrates Court to charges of participating in criminal group and aggravated robbery.

It is alleged the trio stalked the shopping centre and confronted two men in motorcycle clothing at an entrance about 6pm on October 4.

The Rebels members are accused of assaulting the two men before stripping them of clothing emblazoned with the word FINKS.

Ngata – who police say is the Rebels ACT sergeant-at-arms – was on Friday locked up on remand for breaching bail conditions.

Ngata’s bail includes a condition that he not leave his Queanbeyan home unless in the company of his partner.

Court documents said Ngata was arrested about 4.40pm on Thursday after attending a meeting at the Rebels Mitchell clubhouse.

The court heard his partner had been at work when he received an urgent call to attend an emergency club meeting.

Ngata’s lawyer, Adrian McKenna, on Friday said his client had been “extremely naive” to think the call – which he said had not been an emergency – justified breaching his bail.

Mr McKenna asked the court to give Ngata one last chance.

But magistrate Robert Cook refused Ngata bail, saying he could not be satisfied the accused would abide by conditions if released.

Credit: Michael Inman, Canberra Times

No jail for defence force sex ring ‘wolf’ Hastings Fredrickson

A FORMER defence contractor who emailed photos of women he secretly filmed during sex, while deriding them as “moles”, has avoided a jail stint.

Hastings Fredrickson, who subjected women to “humiliation and ridicule” after distributing the photos to members of the military sex ring dubbed the Jedi Council, will most likely serve his 15-month sentence as an intensive corrections order.

Fredrickson, 41, pleaded guilty to three counts of using a carriage service to harass, menace or offend. He described the women in the emails as “moles” and “sluts” and gave himself the title of “The Wolf of Woolloomooloo”.

Fredrickson was married when he met a woman in an airport terminal in Melbourne and began a sexual relationship with her. The Sydney District Court heard he sent emails with photos and screenshots of the pair having sex to Jedi Council members.

Fredrickson was one of 180 ADF employees sacked over the Jedi scandal, although he was cleared of wrongdoing in an official investigation.

Photos of a female senior officer were also sent by Fredrickson, the court heard.

A psychologist report tendered to court described him as having a “personality disorder”.

Judge Paul Lakatos said he was not convinced Fredrickson was “genuinely remorseful”, but took into account a guilty plea and previous blemish-free criminal record in electing not to send him to jail.

Credit: Amy Dale, The Daily Telegraph

Drug importer facing life imprisonment released on bail

A Canberra man facing a life sentence for allegedly importing commercial quantities of a drug to his front door has been released on bail to try to overcome his addiction.

Christopher Walter Thorn, 38, allegedly used websites to order huge quantities of the border-controlled drug GBL, which the body converts to GHB, also known as fantasy.

Some of the shipments were allegedly delivered straight to his door, under the name “C Thorn”.

Customs officers eventually detected a shipment, and police raided Thorn’s home.

He told them he didn’t know GBL was a border-controlled drug, the court heard.

Police also allegedly found bags of the drug ice and $38,000 cash.

Thorn is accused of importing well more than the commercial quantity of the drug in each shipment, meaning he faces a maximum of life imprisonment.

But the court heard there is no evidence he was selling or dealing the drug, and appears to simply have used it for personal consumption. He has been using GBL for 12 years, the court heard.

Thorn has been in custody since October but made an application for bail before Magistrate Robert Cook on Thursday.

Commonwealth prosecutor Katrina Musgrove opposed his release, fearing his heavy drug habit may lead to reoffending, and that the seriousness of the charges and his poor experience in prison so far make him a flight risk.

But his barrister Steven Whybrow, instructed by Ben Aulich & Associates, said a place for Thorn was available at Arcadia House, a drug rehabilitation facility, and two cash sureties from his partner and sister were available.

He also argued strict bail conditions could manage any risk Thorn posed.

Mr Cook granted Thorn bail, despite airing his own concerns about the defendant’s release.

Thorn is banned from using the internet, approaching any international point of departure, post offices, or leaving Arcadia House except on scheduled day trips.

He will also need to report back to court after his time in rehabilitation, which starts on Monday.

Thorn is also banned from using online credit facilities, and is subject to random drug and alcohol tests.

Credit: Chris Knaus, Canberra Times.