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May 9, 2021

The road less travelled in the Queensland courts

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Queensland barrister Clem van der Weegen BA(Hons); LLB, Grad Dip Ed (Sec); Grad Dip Leg Prac. Photo Supplied.

Eve Jeffery

Recently the subject of an episode of 60 minutes, domestic violence survivor Jacqui Barker teamed up with Queensland barrister, Clem van der Weegen, to mount a criminal case against Ms Barker’s former partner Marc Jacobs. 

On the night of November 20, 2015, an argument between Barker and Jacobs escalated and ended with Jacobs throwing  petrol at Jacqui. After what Ms Barker and her lawyer feel was a flawed process Jacobs was given a $1,500 fine and that was the end of it as far as the system was concerned.

It wasn’t the end of it for Jacqui Barker.

Let down by the police process

Feeling the Queensland police and the judicial system let her down, Jacqui enlisted the help of barrister, Clem van der Weegen to pursue the case ‘privately’.

All criminal matters prosecuted whether by the police or a private citizen are offences against the State. In Jacqui’s case, she was essentially doing the job of the police for them

Mr van der Weegen explains that all criminal matters are dealt with by the court under the Queensland Criminal Code for this particular offence, and the Justices Act in the laying of a complaint. ‘The only difference was that the prosecutor in Jacqui’s case was from the private Bar rather than a police prosecutor who would ordinarily prosecute criminal matters. In other words, a “private” prosecution is a misnomer. All criminal matters prosecuted whether by the police or a private citizen are offences against the State. In Jacqui’s case, she was essentially doing the job of the police for them.’

Mr van der Weegen said there is no mandatory prosecution. ‘All prosecutorial decisions are discretionary. The police in Jacqui’s instance chose not to prosecute – not because they didn’t have the evidence or a case against Jacobs, but because they deemed it not in the public interest.

‘The police prosecutor, Senior Sergeant David Bradley the OIC of the Sunshine Coast Prosecutions Corps, who decided not to prosecute Jacobs for “threatening violence” on my suggestion, inter alia gave the following reasons in his decision not to prosecute despite agreeing that there was a prima facie case:

The intention on evidence was the destruction of the financial burden, not to ‘alarm’ BARKER. It is also clear he placed the means to ignite the petrol at her feet – arguably giving her the decision to light the house

‘ “There is a body of evidence to show his intention was to burn the house as he was financially stressed and sick of working on it. The intention on evidence was the destruction of the financial burden, not to ‘alarm’ BARKER. It is also clear he placed the means to ignite the petrol at her feet – arguably giving her the decision to light the house. It is unlikely a court would find that his intention was to alarm BARKER” (his emphasis).’

Mr van der Weegen said it was clear in his view, that S/Sgt Bradley’s view that Jacobs’ intent to only burn the house down ignored the fact that Jacqui was in it. ‘His conclusion, given that a person in the position of Jacqui having been splashed with petrol and having Jacobs admit that he was going to burn the house down with evidence of him holding a lighter, was misconceived. It was when I read this coupled with his own invitation for us to commence a prosecution ourselves that I obtained instructions from Jacqui to commence a prosecution against Jacobs for ‘threatening violence’.

van der Weegen on force for 14 years

Mr van der Weegen was himself on the police force for 14 years. ‘In my experience in the NSW Police Service, I can only remember one other case of a private prosecution and that involved only property. It is a rare event, and I know of no other matter where there has been a private prosecution against a civilian for a violent crime other than the one Jacqui made. The police should take violent offences seriously.

It is hard to play one’s own detective and gather evidence and take statements and the like. It was made easier for us in Jacqui’s case as the police had already done most of the investigation

Mr van der Weegen said they’re also rare because as a civilian needs evidence, it is hard to play one’s own detective and gather evidence and take statements and the like. It was made easier for us in Jacqui’s case as the police had already done most of the investigation. They just didn’t finish it with a prosecution for the petrol.’

Jacqui Barker. Photo Tree Faerie.

Exercising your rights

Mr van der Weegen feels that it is important for people like Jacqui who think the outcome of a case is unjust, to follow it up on their own. ‘She was exercising her right, as any other citizen, to seek justice for the crime that was committed against her,’ he said. ‘It shouldn’t have been left to her. It is the role of the police to do so. However, in Jacqui’s case, she had the bravery, persistence, and the strength to see it through to the end.

‘Unfortunately, in Queensland, there is no independent body that is dedicated to investigating complaints against individual officers for neglect, misconduct, or illegality in obtaining evidence. The Crime and Corruption Commission only will investigate endemic corruption. If it is only a few officers, it is invariably sent back to the Ethical Standards Command to investigate themselves. This system is fundamentally flawed as it does not have any capacity or desire (could not have been bothered) to speak with the complainant herself. 

It is gobsmacking that a system that allows for complaints doesn’t speak to the complainant in order to get her side of the story. The whole complaint is effectively airbrushed away

‘It is gobsmacking that a system that allows for complaints doesn’t speak to the complainant in order to get her side of the story. The whole complaint is effectively airbrushed away.

There is however a silver lining with the passing of the Human Rights Act here in Queensland. It does allow the Human Rights Commission to now investigate breaches of one’s human rights by a public entity – the police being one such entity.        

A flaw in police culture

Mr van der Weegen believes another flaw is a cultural problem with the Queensland police that comes from the lack of accountability. ‘Whilst there are good and responsible police, the impression I get here in Queensland having worked in the NSW Police, is that unfortunately in some areas the “black knights” as my former Police Commissioner used to refer to as a corrupting element, are becoming the majority, and the good police are being silenced either into acquiescence or sidelined. A Law Enforcement Integrity Commission, like the one in NSW, is sorely needed in Queensland.     

Mr van der Weegen said he had no expectations of an outcome for the case but he was hoping for a plea of guilty to save Jacqui the trauma of cross-examination. ‘He [Mark Jacobs] thankfully pleaded guilty and was afforded the discounting on sentencing that those who do so get. 

‘The Court took into account his plea of guilty, the previous offence of wilful damage that he had pleaded guilty to during the same event on the principle of totality, and his good record coupled with the need for a general deterrent and sentenced him to 120 hours community service without recording a conviction.

‘I considered an appeal, but it was agreed that we did not want to expose Jacqui to costs if it went against us.’

A word of caution

When asked what he would say to someone who wanted to travel the path that Jacqui did, Mr van der Weegen said it’s important to try to pursue and exhaust all avenues with the police first. ‘Then, if they were still unwilling to prosecute, seek advice first from a lawyer as to the merits of your case. If the lawyer believes your case has merit and you have admissible evidence to prosecute it, your solicitor may then brief counsel to prosecute it for you.

It’s an arduous choice to make and it would be difficult if not impossible if you don’t already have the evidence and proofed the witnesses’ statements to go to court

However, a word of caution – it’s an arduous choice to make and it would be difficult if not impossible if you don’t already have the evidence and proofed the witnesses’ statements to go to court. 

‘Even in Jacqui’s case, we did not have police statements until my solicitor wrote to the Police Commissioner’s Officer for her to direct her police to provide statements, which, to her credit, she did. As the prosecution has a duty of disclosure, it is difficult if statements from witnesses are not forthcoming.’

For Jacqui Barker, it was a long time between November 20, 2015 and January this year, when Jacobs pleaded guilty to threatening violence and admitted to splashing petrol on her. 

Noosa Magistrate Christopher Callaghan sentenced him to 120 hours of community service but said that no conviction would be recorded.


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