WHILE QUEENSLANDERS are officially regarded once again as having the ability to consider evidence impartially in the face of a media barrage of outrage over a defendant, the state’s criminal justice system is still not off the hook.
As Lawyers Weekly was going to press, the convicted paedophile Dennis Ferguson was still to surrender in response to a warrant for his arrest.
It was issued after the Court of Appeal overturned a stay of proceedings against him by District Court Judge Hugh Botting, who halted proceedings on an alleged 2005 offence last month because of concerns that media coverage had made it unlikely that a jury could be found that was capable of “dispassionate judgment”.
Ferguson, 60, was given until Tuesday 12 August to respond to the warrant by surrendering to police, who continue to monitor him at the latest secret location the authorities have found for him. He faces trial on charges that he sexually assaulted a five-year-old girl at her home in Dalby, west of Brisbane.
Queensland’s Attorney-General, Kerry Shine, who lodged the appeal against Judge Botting’s ruling, lauded the Appeal Court’s decision as “very important” — a verdict supported by child protection advocates.
But it was questioned by Queensland Council of Civil Liberties vice-president Terry O’Gorman, who said it was a judicial myth that jurors could be ordered to avoid prejudice.
He was reported as saying: “Just because a bewigged judge wearing purple and red tells a juror to put any knowledge or preconceptions out of their mind, then that person’s mind becomes emptied out, sterile and neutral — even magicians can’t achieve that.”
But O’Gorman has been almost a lone voice in the wilderness in arguing for Ferguson to be left alone in comparison with the chorus of approval at the latest decision from many different quarters.
In its unanimous decision, the Court of Appeal ruled that Judge Botting had been premature to say that a properly instructed jury could not be fair and impartial.
The Leader of Queensland’s newly united conservative Opposition, Lawrence Springborg, described the decision as “an enormous relief” — not only because of community outrage over the release of Ferguson, but also because of the potential for Judge Botting’s finding to impact adversely upon proceedings against the former Bundaberg surgeon Jayant Patel.
He was joined by child protection campaigners such as Bravehearts founder Hetty Johnston, who said Judge Botting’s decision had set a “potentially really dangerous precedent”.
Shine said the decision reflected the Queensland justice system’s strength and the maturity of Queensland people in addressing “complex and emotional cases such as this”.
Ferguson’s release after the Botting ruling touched off a national media circus that followed the mobs of angry residents who picketed the “secret” residences he was taken to in towns around Brisbane, in one case forcing his relocation within 24 hours of him being moved from another town.