Right now, the councillors’ defence has argued there is insufficient evidence to bring about a full criminal trial.
There’s a lot of legal terms and themes being thrown around, so we touched base with jurist and Griffith University Professor Ross Martin QC to unpack some of the meanings behind them.
First up, a word on the topic of evidence.
As the issue is being dealt with as a criminal matter, Professor Ross QC says the general rule is that the onus is on the Crown to prove all elements of the offences are true beyond reasonable doubt.
“All offences have elements, individual ingredients that make up the offence, and the crown has to prove each of those elements beyond reasonable doubt, and negate beyond reasonable doubt most excuses,” says Professor Ross QC.
“If one element is missing evidence or if there is an excuse that can’t be displaced by the prosecution, and the prosecution recognises that at the outset, then it can’t proceed.”
If dismissal happens, details as to why will likely remain under wraps.
Professor Ross QC says it is “nearly impossible” to pinpoint why dismissal happens without seeing the full range of evidence in what would be a “very complex case”.
“The detail might be announced in court, it might not,” he says.
If the prosecution fails, that doesn’t mean the end of legal action.
Civil action could be taken.
In that situation, the onus of proving guilt falls on the plaintiff, and the standard by which a verdict is made changes.
“The plaintiff in the civil matter has to prove their case to be true on the basis that it’s more probable than not that it’s true, whereas in a criminal matter it has to be proved beyond reasonable doubt,”says Professor Ross QC.
Something similar happened in the OJ Simpson trial in the United States where the prosecution failed but lawyers for the plaintiff family still sued him.
“Most people don’t go down the road of suing for defamation because it is a risky business and it is very expensive,” Professor Ross QC says.
The next thing to look out for in the case of the sacked councillors is the term “dismissal”, which is often mixed up with “acquittal”.
They are not the same.
The defence has argued a lack of evidence for the trial to proceed, which would lead to a dismissal if proven true.
A dismissal generally comes before a jury trial happens.
An acquittal mostly happens in situations where a matter has been taken to trial.
This case hasn’t reached that point yet.
“If the Crown chooses not to proceed [and dismisses the case] then that doesn’t raise a question of double jeopardy,” says Professor Ross QC.
“If, for example, somebody comes along later on they can ratchet it all up again if they want to.
“If, on the other hand, a judge has directed a jury to acquit, or a jury has on their own motion acquitted, then the matter can’t be brought again [before the courts].”
The two main legal bodies of the court action so far have been the Director of Public Prosecutions and the Queensland Crime and Corruption Commission.
Here’s the difference between the two:
“The DPP has the general control of prosecutions in Queensland, mostly for the higher courts, but it can take over lower court prosecutions,” Professor Ross QC says.
The CCC does not conduct prosecutions; it mounts the investigation.
“In major matters, the CCC will prepare a brief, do the investigation, and then send that brief to the DPP who will make the decision,”
Here’s a wrap of what’s happened:
December 2017: Logan City Council CEO Sharon Kelsey made her first complaint to to the Queensland Industrial Relations Commission
February 2018: Councillors sacked Sharon at the end of her six-month probationary period
Sharon advanced her case with the QIRC on the basis of unfair dismissal
Councillors denied allegations, argued she was sacked on performance grounds
New QLD government laws passed in 2018 resulted in the councillors being suspended on full pay while the criminal case unfolded
April 2019: Queensland Local Government Minister Stirling Hinchliffe sacked the councillors after the CCC charged them each with one count of fraud relating to Sharon’s sacking
CCC alleged the councillors used fraudulent reasons to sack Sharon
The sacking came several months after Sharon flagged concerns about council behaviour to the CCC
Stirling said there was no option but to sack the councillors.
“Dismissal is the only option available to me, given Logan City City Council has lost its quorum and can no longer function effectively.” – Minister Hinchliffe
“With nine of its 13 councillors automatically suspended as a result of serious integrity charges, council no longer had sufficient numbers to conduct meetings.” – Minister Hinchliffe