Legal aid, only if you plead ‘Guilty’

Aboriginal & Torres Strait Islander Legal Service (ATSILS) denies representation to tent embassy people and advised an innocent man to plead guilty in magistrates court.

I made a direction late last year, in my capacity as the Chief Executive Officer of this Organisation that we would decline legal assistance to anyone who was charged in circumstances where their conduct was contrary to the wishes of the traditional owners of the land in question – here we are talking about “Musgrave Park”. It has been well documented, and I have nothing to suggest that such is inaccurate, that various Elders from the country in question made plain their position that the “tent embassy” was no longer welcome on their land – indeed, I am given to understand that overtures were then made to the State government to have them vacate the area in question.

– Shane Duffy, Chief Executive Officer (ATSILS)
Complaint Curr Ian January 2013

[Editor’s Note: I wrote this letter recently to the Chief Magistrate in
Brisbane, Brendon Butler. I publish his predictable reply below. Make your own
conclusions about the state of Justice in Queensland where police can kill
Mulrunji and threaten a proud elderly man with a taser for defending his
culture. After the recent death of a young Murri at Woodridge
the Aboriginal Legal Service (ATSILS) did not attend the situation
down there at all. ATSILS did come along to the community meeting on
Thursday night; but people understandably did not want much to do with

BTW – To add insult to injury Brisbane City Council
dog-catcher took Dennis Wharton’s dog, Homer, and placed him in the pound
at Willawong.Ian Curr
20 January 2013]


To: Mr Brendon Butler, Chief Stipendary Magistrate.

Re: Dennis Wharton

Dear sir,

I wish to raise a matter of grave concern.

On the morning of 10 Jan 2012 Mr Dennis Wharton was denied legal representation by the Aboriginal and Torres Strait Islander Legal Service because he participated in the activities of the Sovereign Tent Embassy in Musgrave Park .

On 23 December 2012, Senior Constable Alexandra PELECANOS charged Mr Wharton with SERIOUS ASSAULT ON PUBLIC OFFICIAL and OBSTRUCT POLICE.

Mr Wharton is an elderly man who manages to move using a walking frame. Senior Constable Alexandra PELECANOS armed her taser and threatened Mr Wharton with her weapon in Musgrave Park on a portion of the park that is private-land-in-fee-simple for aboriginal purpose and no other purpose whatsoever. The leasee of the land is Arts Queensland. Arts Qld did not make a complaint nor request that police or council attend at the park on that day.

I witnessed the ATILS lawyer refuse Mr Wharton legal representation and advise him to plead guilty in the Indigenous Court.

I rang Ms Jacqui Payne SM to complain. Ms Payne told me that she could not discuss the matter with me because she would ‘get the sack’.

Ms Payne told me to make any complaints I had regarding to ATILS and to yourself.

Mr Wharton appeared in the arrest court on that morning. His brother Mr Wayne Wharton made an application for the matter to be adjourned on his behalf. A magistrate in the arrest court on 10 Jan 2013 adjourned the matter for mention till 15 Feb 2013

Mr Dennis Wharton was denied natural justice while facing serious charges.

Magistrate Payne’s statement that she ‘would be sacked’ suggests to me that the matter before the court is politicised to such an extent that Mr Wharton may continue to be denied natural justice. I remind you that it is not the job of officers-of-the-court (sic) to assist police in obtaining convictions against innocent people.

Please indicate to me what you will do to rectify this denial of natural justice.

Yours faithfully,
Ian Curr
BSc (UQ) Grad Dip ATAX (UNSW)
mob: 0407 687 019


18 January 2013

Mr Ian Curr

Dear Mr Curr,

I refer to your email of 17 January 2013 concerning a proceeding against Mr Dennis Wharton in the Magistrates Court at Brisbane.

As Chief Magistrate I have responsibility for the Magistrates Courts of Queensland which includes looking into complaints about the conduct of magistrates.

I note that the proceeding has only been before the court on 10 January 2013 where it was adjourned to 15 February 2013 and you make no complaint about how the Court dealt with the matter on that occasion.

Your complaint seems to be about the legal advice given to you by a lawyer from the Aboriginal and Torres Strait Islander Legal Service (ATSILS). That is not something I can assist you with. Such a complaint should be directed to ATSILS and I would suggest you contact that office to find out the process to follow for making a complaint of that type.

A defendant of course must make up their own mind about what course to take in a court proceeding and Mr Wharton is free to consult another lawyer, or to appear for himself. The adjournment given on 10 January 2013 was made so that Mr Wharton could contact a private barrister for advice.

In relation to Magistrate Payne, she sits on the bench in Brisbane and would not be able to discuss the matter as it could well come before her in court and such discussions would preclude her from being able to carry out her judicial responsibilities.

It is the Court’s role to ensure that proceedings are dealt with justly, which includes protecting the rights of defendants that appear before it. The Court granted Mr Wharton an adjournment to obtain legal advice and extended his bail as was requested; I cannot see that there has been a denial of natural justice by the Court in this case.

I do not believe I am able to assist you any further with the issues you raise, however I hope my response has helped with your understanding of the proceeding.

Judge Brendan Butler AM SC
Chief Magistrate

Reference: The Case against Homer

CSM letter to Mr Curr.pdf

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