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John Harris Byrne (born 16 October 1948) is a retired Australian jurist who previously served as Senior Judge Administrator of the
Supreme Court of Queensland
The Supreme Court of Queensland is the highest court in the Australian State of Queensland. It was formerly the Brisbane Supreme Court, in the colony of Queensland.
The original jurisdiction of the Supreme Court allows its trial division to he ...
. Having been a judge of that court since 1989, he was one of the court's most experienced judges. He was also Chair of the National Judicial College of Australia, a body which provides programs and
professional development
Professional development is learning to earn or maintain professional credentials such as academic degrees to formal coursework, attending conferences, and informal learning
Informal learning is characterized "by a low degree of planning and ...
resources to judicial officers in
Australia
Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...
. He is now a private Commercial Arbitrator.
Pre-judicial career
Byrne commenced his legal career as an articled clerk for Morris Fletcher and Cross before being admitted as a
barrister
A barrister is a type of lawyer in common law jurisdictions. Barristers mostly specialise in courtroom advocacy and litigation. Their tasks include taking cases in superior courts and tribunals, drafting legal pleadings, researching law and ...
of the
Supreme Court of Queensland
The Supreme Court of Queensland is the highest court in the Australian State of Queensland. It was formerly the Brisbane Supreme Court, in the colony of Queensland.
The original jurisdiction of the Supreme Court allows its trial division to he ...
in 1972. He was appointed
King's Counsel
In the United Kingdom and in some Commonwealth countries, a King's Counsel ( post-nominal initials KC) during the reign of a king, or Queen's Counsel (post-nominal initials QC) during the reign of a queen, is a lawyer (usually a barrister or ...
ten years later in 1982. He also became a member of the Supreme Court Library Committee, Supreme Court Rules Committee and the
University of Queensland Law Faculty Board. He also served in the Army Reserve, in the Infantry Corps, from 1966 to 1985.
Judicial career
Byrne was involved in many notable cases during his long judicial career.
Legal Services Commissioner v Mullins
The Legal Services Commissioner contended that the
legal practitioner
A lawyer is a person who practices law. The role of a lawyer varies greatly across different legal jurisdictions. A lawyer can be classified as an advocate, attorney, barrister, canon lawyer, civil law notary, counsel, counselor, solicitor, ...
acting for a
Plaintiff in a personal injuries claim had committed
professional misconduct by failing to disclose the fact that his client had been diagnosed with cancer and then relying on a report in a mediation which had assumed a normal life expectancy for the client. The claim had settled at the mediation for significantly more than if the insurer had known of the client's cancer condition. The practitioner, a
barrister
A barrister is a type of lawyer in common law jurisdictions. Barristers mostly specialise in courtroom advocacy and litigation. Their tasks include taking cases in superior courts and tribunals, drafting legal pleadings, researching law and ...
, defended the charge, arguing that continuing to rely on reports without disclosing the client's condition was not tantamount to some representation that he was not aware of facts that could deleteriously impact on his longevity, and the common assumption was that the parties would rely exclusively on their own resources and information.
Justice Byrne held that the practitioner had intentionally deceived the insurer and its
barrister
A barrister is a type of lawyer in common law jurisdictions. Barristers mostly specialise in courtroom advocacy and litigation. Their tasks include taking cases in superior courts and tribunals, drafting legal pleadings, researching law and ...
concerning the client's life expectancy and this involved such a substantial departure from the standard of conduct to be expected of legal practitioners of good repute and competency as to constitute professional misconduct.
[006
Alec Trevelyan (006) is a fictional character and the main antagonist in the 1995 James Bond film ''GoldenEye'', the first film to feature actor Pierce Brosnan as Bond. Trevelyan is portrayed by actor Sean Bean. The likeness of Bean as Alec T ...]
QLPT 12">''Legal Services Commissioner v Mullins'' Legal Practice Tribunal (Qld, Australia). The practitioner was publicly reprimanded, fined $20,000 and ordered to pay the Commissioner's costs.
Gilfoyle v Conde
In this case, Julie Gilfoyle, Burchill & Horsey Lawyers, Mylton Burns and McInnes Wilson Lawyers brought an application under the ''Vexatious Proceedings Act 2005'' against the respondent Milton Arnoldo Conde, who had commenced more than two dozen proceedings in
Queensland Courts
The following is a list of courts and tribunals in Queensland :
* Supreme Court of Queensland
** Queensland Court of Appeal
** Supreme Court (Trial Division)
** Court of Disputed Returns
* District Court of Queensland
* Magistrates' Court ...
between May 2009 and February 2010, including against
solicitors and
barristers
A barrister is a type of lawyer in common law jurisdictions. Barristers mostly specialise in courtroom advocacy and litigation. Their tasks include taking cases in superior courts and tribunals, drafting legal pleadings, researching law and ...
acting against those he was suing, an Anti-Discrimination Tribunal member named Peter Roney and even the
Chief Justice of Queensland Paul de Jersey.
After considering all the proceedings Mr Conde had brought, Justice Byrne made the following conclusions about the Mr Conde's litigations:
* they allege that lawyers who have acted for his opponents maliciously prosecuted him and abused court process;
* they do not state facts that could arguably sustain the conclusory imputations of bad faith and other improper motive advanced;
* they are centred on ordinary steps in litigation taken by lawyers apparently acting properly for clients: such as defending a case, applying to a court for orders, and enforcing a costs order by bankruptcy proceedings;
* they involve extravagant, unparticularised claims for compensation for a broad range of grievances, personal injury and economic loss;
* have no reasonable prospect of success, on the face of the proceedings or on the evidence; and
* do not conform with the Uniform Civil Procedure Rules governing pleadings.
As a result of those conclusions, his Honour granted leave to the applicants to proceed, stayed Conde's six separate proceedings against the applicants, prohibited Conde from starting any fresh proceedings without the leave of the Supreme Court and ordered that Conde pay the applicant's costs on an indemnity basis.
Conde later sought to appeal against Justice Byrne's orders, and also sought to re-commence the proceedings that his Honour had stayed. The
Queensland Court of Appeal dismissed all of his appeals, as well as the proceedings that Justice Byrne had stayed. Conde's application for special leave to appeal to the
High Court of Australia
The High Court of Australia is Australia's apex court. It exercises Original jurisdiction, original and appellate jurisdiction on matters specified within Constitution of Australia, Australia's Constitution.
The High Court was established fol ...
was refused.
The Queen v Patel
This 2010 high-profile criminal trial involved three charges of
manslaughter
Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th cen ...
and one charge of
grievous bodily harm
Grievous bodily harm (often abbreviated to GBH) is a term used in English criminal law to describe the severest forms of battery. It refers to two offences that are created by sections 18 and 20 of the Offences against the Person Act 1861. The ...
being brought against former
Bundaberg
Bundaberg is a city in the Bundaberg Region, Queensland, Australia, and is the tenth largest city in the state. Bundaberg's regional area has a population of 70,921, and is a major centre of the Wide Bay–Burnett geographical region. The Bun ...
Surgeon Dr
Jayant Patel.
Legal controversy
The case became legally controversial after the prosecution sought to amend the legal basis upon Dr Patel was charged on the 43rd day of trial, resulting in heated legal argument between the
prosecution and the defence. The prosecution sought to change its manslaughter case to one of unlawful killing based on the surgery having caused the death of the patient in a way not justified or excused by law.
[.]
The reason the prosecution sought to amend their case was that for three out of the four charges, the prosecution's contention was that Patel's criminality lay in his negligent decision to perform the operations he did (and subsequently perform the operations), since it could not be proven that the operations themselves had been performed incompetently.
The legal controversies concerned the meaning and legal effect of sections 288 and 282 of the Criminal Code. Section 288 provided that:
''It is duty of every person who ... undertakes to administer surgical ... treatment to any other person, or to do any other lawful act which is or may be dangerous to human life or health, to have reasonable skill and to use reasonable care in doing such act, and the person is held to have caused any consequences which result to the life or health of any person by reason of any omission to observe or perform that duty''
Meanwhile, section 282 provided a possible defence for the accused:
''A person is not criminally responsible for performing... with reasonable care and skill, a surgical operation... for the patient's benefit ... if performing the operation ... is reasonable, having regard to the patient's state at the time and to all the circumstances of the case''
Counsel for the accused Michael Byrne QC submitted that the accused was not criminally responsible for the outcomes of surgery performed with the patient's consent, except pursuant to s 288.
It was also submitted for the defence that s288 was confined to the act of performing surgery itself, and that no criminal liability could arise from a decision to perform a proposed surgery.
[.] If those submissions had been accepted, three of the four charges against Patel would have been doomed to failure, as criminal negligence committed during the relevant surgeries could not be established.
Justice Byrne held that the prosecution could not advance their new case because the fact that the surgery was consented to made it lawful, subject to s288. His Honour also held that section 282 was confined to cases where a surgeon did not have the consent of the person whose benefit the surgery was being performed (for example, where a patient is unconscious and unable to consent before surgery), and did not apply because Patel had obtained the consent of his patients. However, his Honour also found that s288 could extend to the decision to perform a surgery (followed by the performing of the surgery), rather than being confined to the act of performing the surgery itself.
As a result, the trial was allowed to proceed on its original legal footing. Patel was subsequently found guilty by the jury of three charges of unlawful killing and one of grievous bodily harm.
Patel's sentence
In sentencing, Justice Byrne noted the fact that Patel had consented to an order of the Board of Medical Examiners of the State of
Oregon when he practised in that jurisdiction, and that while that order had no legal effect in
Australia
Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...
, it should have made Patel aware that his professional judgment was considered questionable.
[.] The fact that Patel had carried on regardless in Queensland was an aggravating factor.
However, his Honour also found many mitigating factors, including the fact that this was Patel's first conviction, that prison would be particularly difficult given his age, notoriety and his family living overseas, and that he had already served time in prison while cooperating with his extradition to Queensland.
As a result, his Honour imposed seven-year sentences for each of the manslaughter charges, and three years for the grievous bodily harm charge. Since the sentences are concurrent, it was in effect a seven-year sentence, less the time Patel had already spent in custody.
Appeal to Court of Appeal
Patel then appealed his conviction, and both the
Attorney-General and Patel appealed the sentence. The Court of Appeal dismissed both appeals, holding that Justice Byrne's interpretation of s288 was correct, and that the sentence imposed was neither too lenient nor manifestly excessive. The Court did however voice its disagreement over Justice Byrne's construction of s282 as only applying when the patient has not consented to the surgery in question.
[.]
Appeal to High Court
Patel then appealed the Court of Appeal's decision to the
High Court of Australia
The High Court of Australia is Australia's apex court. It exercises Original jurisdiction, original and appellate jurisdiction on matters specified within Constitution of Australia, Australia's Constitution.
The High Court was established fol ...
, and was granted special leave on the ground of appeal that "The Court of Appeal erred in law in finding that the convictions of the appellant ... could be supported on the basis that the appellant had breached a duty under s 288 of the
ode This section did not apply to the offences of which the appellant was convicted".
[.]
On 24 August 2012, the High Court unanimously allowed the appeal. Although the High Court concurred with Justice Byrne and the Court of Appeal on the interpretation of s288, the Court held that a large amount of prejudicial evidence had been admitted at trial due to the prosecution changing its contention (supra) and that "The sheer extent of the prejudicial evidence in the context of a wide-ranging prosecution case is likely to have overwhelmed the jury".
The Court also wrote that "The prejudicial effect on the jury was not overcome by the directions given by the trial judge about the limited use that could be made of that evidence".
The High Court also ordered a retrial. A retrial only took place in respect of one charge, and Dr Patel was acquitted of that charge.
The Queen v Sica
In 2012, Justice Byrne presided over the trial of
Massimo Sica, charged with having committed a triple
murder
Murder is the unlawful killing of another human without justification (jurisprudence), justification or valid excuse (legal), excuse, especially the unlawful killing of another human with malice aforethought. ("The killing of another person wit ...
in
Bridgeman Downs
Bridgeman Downs is a northern suburb in the City of Brisbane, Queensland, Australia. It borders Moreton Bay Region to the west.
Geography
Bridgeman Downs has long been associated with large acreage properties.
History
In November 1860 Henr ...
in 2003. Before the trial, Sica's defence had applied under s590AA of the Criminal Code to have the evidence of Andrea Bowman of an admission of guilt by Sica excluded. Justice Byrne rejected the arguments that the alleged confession was not voluntarily given and that Sica was too intoxicated for the evidence to be admitted, and dismissed the application.
[.]
Sica was subsequently convicted of all three counts of murder. On 5 July 2012, Justice Byrne sentenced Sica to life imprisonment, with a non-parole period of 35 years,
[.] the most severe sentence handed down in Queensland history. The sentencing remarks were scathing. Justice Byrne remarked to Sica that "You have no remorse whatsoever. Your only anxiety is for self-preservation". The remarks also described Sica as "manipulative and deceitful", and were critical of the way Sica had involved the personal lives of the family of the victims in the trial.
The Queen v Baden-Clay
In 2014, Justice Byrne presided over the trial of
real estate agent Gerard Baden-Clay, who was charged with the
murder of his wife Allison Baden-Clay. Gerard Baden-Clay was found guilty of
murder
Murder is the unlawful killing of another human without justification (jurisprudence), justification or valid excuse (legal), excuse, especially the unlawful killing of another human with malice aforethought. ("The killing of another person wit ...
by the jury, and subsequently sentenced to
life imprisonment
Life imprisonment is any sentence of imprisonment for a crime under which convicted people are to remain in prison for the rest of their natural lives or indefinitely until pardoned, paroled, or otherwise commuted to a fixed term. Crimes for ...
. Justice Byrne's sentencing remarks described Baden-Clay's besmirching of his wife's memory as "thoroughly reprehensible", and noted that Baden-Clay was "definitely not of good character" and he was "given to lies and deception".
On 8 December 2015, his conviction was downgraded to
manslaughter
Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th cen ...
by the
Queensland Court of Appeal[''R v Baden-Clay'' .] on the ground that the evidence at trial was not able to exclude a reasonable hypothesis that “there was a physical confrontation between
aden-Clayand his wife in which he delivered a blow which killed her (for example, by the effects of a fall hitting her head against a hard surface) without intending to cause serious harm".
The following year, the
High Court of Australia
The High Court of Australia is Australia's apex court. It exercises Original jurisdiction, original and appellate jurisdiction on matters specified within Constitution of Australia, Australia's Constitution.
The High Court was established fol ...
restored Baden-Clay's original murder conviction, holding that it was open to the jury to be satisfied that Baden-Clay intended to kill his wife given the circumstantial evidence of intent, and Baden-Clay's false testimony that he knew nothing of the circumstances of his wife's death.
post-Judicial career
Byrne now works privately in dispute resolution, providing services in Commercial Arbitration, Mediation, Case Assessment and Referee Determination.
References
{{DEFAULTSORT:Byrne, John
1948 births
Living people
Australian King's Counsel
Judges of the Supreme Court of Queensland
Officers of the Order of Australia