Josh Underwood
Contact
Expertise
Josh has a broad criminal, public law, and commercial practice specialising in appeals and pre-trial applications. He appears led and unled (including against senior counsel) in all Courts. His practice areas include:
- Public and Administrative Law
- Appellate
- Criminal Law
- Regulatory Law / Civil Penalties / Proceeds of Crime
- Inquests / Commissions of Inquiry / Statutory Tribunals
- Planning and Environment Law
- Medical Negligence / Disciplinary Proceedings
- Commercial disputes involving a public law component
Selected Cases
High Court
Dayney v The King [2023] HCATrans 174 – meaning and effect of s 272 (self-defence against provoked assault). Led by R M O’Gorman KC
GJL v The Queen [2022] HCATrans 81 – effect of previous acquittals at subsequent trials. Led by S C Holt KC
Armitage v The Queen [2022] HCATrans 82 – effect of De Simoni principle. Led by S C Holt KC
Queensland Court of Appeal
Palmer Leisure Coolum Pty Ltd v Magistrates Court of Queensland [2023] QSC (judgment reserved) – 2-day appeal regarding meaning of ‘incontrovertibility principle’ and ‘fragmentation principle’. Led by P D Dunning KC
R v Kulatunge [2023] QCA (judgment reserved) – Application of Strbak principle to uncontested sentence; Application of Totaan principle in Queensland. Led by C O’Connor
R v Dayney [No 2] [2023] QCA 62 – Interpretation and effect of s 272 (self-defence against provoked assault); whether R v Dayney [2020] QCA 264 was wrongly decided. Led by B J Power KC
R v Silcock [2022] QCA 234 – Interpretation and effect of section 21A of the Evidence Act 1977. Led by S C Holt KC
R v Leach (2022) 10 QR 40 – Application of Lee and X7 principles to prosecutions under the Taxation Administration Act 1953 (Cth). Led by P D Dunning KC
R v Armitage (2021) 9 QR 1 – Application of De Simoni principle; commencement of substituted sentences under section 668F(2) of the Criminal Code. Led by S C Holt KC
Supreme Court of Queensland
YETI v Commissioner of Police Service & Anor [2023] QSC 174 – Writ of habeas corpus for children held unlawfully in Queensland watchhouses. Led by E Nekvapil SC
Williams v Parole Board Queensland [2023] QSC – Resistance to application for judicial review of decision to refuse parole. Unled.
Austin BMI Pty Ltd v Deputy Premier [2023] QSC 95 – 4-day judicial review application regarding respondent’s decision to call-in development application. Unled, opposing senior counsel.
Austin BMI Pty Ltd v Deputy Premier [No 2] [2023] QSC 162 – Costs on judicial review application. Unled, opposing senior counsel.
R v Neary [2022] QSCPR 18 – Exclusion of evidence of aggravated quantity of methylamphetamine. Unled.
Palmer Leisure Coolum Pty Ltd v Magistrates Court of Queensland [2022] QSC 227 – Strike out / summary judgment application; effect of incontrovertibility principle. Led by P D Dunning KC
Smith v PRQ [2022] QSC 123 – Resistance of contempt proceedings brought by Crime and Corruption Commission; meaning of “reasonable excuse”. Led by J R Hunter KC
R v Dumenil; Kulatunge [2022] QSC – Two-week prosecution for importing commercial quantity of border controlled drugs, contrary to section 307.1 of the Criminal Code (Cth). Led by B J Power KC
Industrial
Stone v Anglo Coal (Moranbah North Management) Pty Ltd [2023] ICQ (judgment reserved) – appeal against conviction regarding interpretation of r 66 of the Coal Mining Safety and Health Regulation 2017. Unled, opposing S C Holt KC and A Freeman
Stone v Anglo Coal (Moranbah North Management) Pty Ltd [2023] QMC – successful two-week prosecution for breach of section 34 of the Coal Mining Safety and Health Act 1999. Led by J Trevino KC
Guilfoyle v BMD Constructions Pty Ltd [2023] QMC – successful resistance to strike out application turning on meaning of “coal mine” in Coal Mining Safety and Health Act 1999. Unled, opposing C Murdoch KC
Nicholson v GCMR Project Services Pty Ltd [2023] QDC (ongoing) – prosecution appeal against sentence regarding failure to comply with work health and safety obligation causing risk of death or serious injury. Unled.
Strategic advice for prosecution and defence concerning prosecutions under the Work Health and Safety Act 2011; Coal Mining Safety and Health Act 1999; Safety in Recreational Water Activities Act 2011
Coronial
Inquest into death in custody of Mr George, Kowanyama man (ongoing) – instructed by Queensland Human Rights Commission
Inquest into death of Ikraam Bahram (judgment reserved) – appeared for treating psychiatrist. Unled.
Inquest into death of Selesa Tafaifa (ongoing) – instructed by Queensland Human Rights Commission. Unled.
Inquest into the deaths of Doreen Langham and Gary Hely – appeared for treating doctor. Unled.
Medical disciplinary
Strategic advice regarding Sched 5 interviews and submissions to AHPRA
Medical Board of Australia v Hanafy [2023] QCAT (ongoing)
Environment and planning
Strategic advice for companies charged with breaches of Environmental and Protection Act
Strategic advice for companies submitting progressive rehabilitation and closure plans
Other
Barada Barna Aboriginal Corporation v Attorney-General for State of Queensland (ongoing) – complex contractual / native title dispute concerning large North Queensland coal mine project. Led by D Clothier KC
Caterer v The King [2023] QDC – Application of Human Rights Act 2019 to police search and seizure of mobile phone (nolle prosequi entered following submissions). Briefed by Queensland Human Rights Commission. Unled.
Mathews v Ipswich City Council [2023] QDC 21 – Resistance to s 222 appeal concerning summary conviction in absentia. Unled.
Riddett v Queensland Commissioner of Police [2023] QDC – Successful s 222 appeal concerning summary conviction in absentia. Unled.
R v Hylton-Smith [2022] QMC – successful no case submission to charge of attempted possession of 799.949g of methylamphetamine. Unled.
Singh v Queensland Police Commissioner (2020; Federal Court of Australia) – successful judicial review of respondent’s decision to refuse application permission to travel overseas under section 271A.1 of Criminal Code (Cth). Unled.
Professional History
Josh was called to the Bar in London (Lincoln’s Inn) in 2019. He assisted Senior Counsel prosecute murder trials at the Old Bailey, appeared unled in the Crown Court and the Magistrates Court for both the prosecution and defence, and assisted on appeals and extradition matters. He joined the Brisbane Bar in 2021.
Josh graduated from The University of Queensland in 2014 with a Bachelor of Laws (First Class Honours) and a Bachelor of Arts. During university, he worked for Scott McDougall (now the Human Rights Commissioner for Queensland) and for the Queensland Floods Commission of Inquiry (with P Callaghan SC, L Wilson SC, K Mellifont KC, and N Kefford SC).
Upon graduation, he served for 18 months as an Associate to the Hon Justice P A Keane AC KC at the High Court of Australia.
In 2015, he worked as a litigator at Ashurst in Brisbane and Sydney. He instructed Senior Counsel in cases in the High Court of Australia, the Supreme Court of Queensland (Appeal and Trial Division), and Federal Court of Australia. His practice focussed on administrative law (judicial reviews, disciplinary matters, and foreign state immunity suits), public inquiries (the Barrett Adolescent Centre Commission of Inquiry, and the Royal Commission into Institutional Responses to Child Sexual Abuse) and medical negligence.
In 2017, he joined the Office of Director of Public Prosecutions (Qld) as a Legal Officer. He appeared in the District Court, Children’s Court, and Magistrates Court on bail applications, sentences and applications for committals with cross-examination.
In 2018, he was awarded a scholarship to study post-graduate law at The University of Oxford. He placed 2nd in his cohort and won the prize for Constitutional Law and Theory.
Qualifications
Date of admission as lawyer (Qld)
16 March 2015
Last call to Bar (UK)
28 November 2019
Admitted to Practise (Qld Bar)
April 2021
Qualifications
BCL (Distinction), University of Oxford
BA, LLB (Hons), University of Queensland
Selected Publications and Presentations
Hearsay, Measure for Measure – Police Powers v Privacy (with Anthony W Collins)
6KBW Law Blog, The impact of Coronavirus, part 5: the Coronavirus Act 2020 (with Annie Fendrich)
Seminar: “No man shall profit by his own wrong”
Seminar: Baden-Clay v R [2015] QCA 265
Seminar: PT Bayan v BCBC Singapore [2014] HCA 36
Dissertation, The Nature of the Role of the Admiralty Marshal (2014, supervised by Prof Sarah Derrington, as her Honour then was; awarded High Distinction)