Not forgotten in Mudgee

On the way up the stairs to the organ loft at St John’s Mudgee.

See Green v R [1997] HCA 50; (1997) 191 CLR 334, an infamous case.

Mr Green (22) slew Mr Gillies (36), who had been his friend for about 5-6 years, in a frenzy after what he said were unwelcome sexual advances by Mr Gillies when Gillies came to the room where Mr Green was sleeping after they had spent an evening drinking and watching television together at Mr Gillies’ place. [Poignant detail: in fact it was Mr Gillies' mother's place, but she was away.] Mr Green told the police “Yeah, I killed him, but he did worse to me” and, later, when asked why he had killed Gillies, “he tried to root me.”

When first tried, Green put forward a defence of self-defence (which was not allowed to go forward to the jury) and also one of provocation (which reduces what might otherwise be a murder to manslaughter). He was found guilty of murder. The gist of the provocation defence was that Gillies’ actions put Green in mind of the assaults he had witnessed his father visit on his mother and other family members and the sexual assualts he had been told his father had committed against his sisters, so that he simply “lost it,” picked up the poultry shears which he said were just in sight in the bedroom and stabbed and bashed Mr Gillies to death.

On appeal to the Court of Criminal Appeal the prosecution conceded that the trial judge had made some errors but claimed (under what is known as “the proviso”) that this had not deprived Green of the chance of an acquittal. The High Court thought otherwise and granted Green a retrial. On the retrial Green’s provocation defence succeeded and he was found guilty of manslaughter.

See also here for the sentencing after the retrial.

There’s an extensive secondary literature. Tom Molomby appeared for the defendant and has continued to defend him subsequently in Quadrant. I’d find Molomby’s defence more persuasive if it were less selective (he doesn’t like to dwell on the self-defence claim or the “he did worse to me” justification). I don’t derive any particular comfort from the jury buying it.

What cat’s averse to fish?

Not my cat, here caught tidying up after the (lesser) dirty deed on the nature strip.  He isn’t the smartest or most enterprising of cats, so his enthusiasm is confined to cat food or scraps (dropped – he’s no leaper) from the table or the kitchen bench.

Nor Diesel, who lives two houses down from us.   He is much smarter than our cat and an indefatigable hunter.  D has seen him leap into the air to catch a bird (successfully) and we have also lost fish to him.  We suspect him of catching the frog which disappeared from our garden last year.  It is because of him that our temporary fish pond in a shopping-trolley is encased in additional wire and netting protection. 

I sometimes worry what might happen if Diesel were to attempt to slip under the protective wire and netting, though he is probably too smart to try.  Would he make it out, or would he drown?

And nor was Selima, Horace Walpole’s tortoiseshell cat, whose fate (circa 1747) is the source of that worry and the occasion for Thomas Gray‘s poem, “Ode On The Death Of A Favourite Cat Drowned In A Tub Of Goldfishes,” (also here) which I can’t resist setting out in full.

‘Twas on a lofty vase’s side,
Where China’s gayest art had dy’d
The azure flow’rs that blow;
Demurest of the tabby kind,
The pensive Selima, reclin’d,
Gazed on the lake below.

Her conscious tail her joy declar’d;
The fair round face, the snowy beard,
The velvet of her paws,
Her coat, that with the tortoise vies,
Her ears of jet, and emerald eyes,
She saw: and purr’d applause.

Still had she gaz’d; but ‘midst the tide
Two angel forms were seen to glide,
The Genii of the stream;
Their scaly armour’s Tyrian hue
Thro’ richest purple to the view
Betray’d a golden gleam.

The hapless Nymph with wonder saw:
A whisker first and then a claw,
With many an ardent wish,
She stretch’d in vain to reach the prize.
What female heart can gold despise?
What cat’s averse to fish?

Presumptuous Maid! with looks intent
Again she stretch’d, again she bent,
Nor knew the gulf between.
(Malignant Fate sat by, and smil’d)
The slipp’ry verge her feet beguil’d,
She tumbled headlong in.

Eight times emerging from the flood
She mew’d to ev’ry wat’ry god,
Some speedy aid to send.
No Dolphin came, no Nereid stirr’d;
Nor cruel Tom, nor Susan heard.
A Fav’rite has no friend!

From hence, ye Beauties, undeceiv’d,
Know, one false step is ne’er retriev’d,
And be with caution bold.
Not all that tempts your wand’ring eyes
And heedless hearts is lawful prize,
Nor all, that glisters, gold.

In the essay on Gray in his Lives of the Poets Dr Johnson was rather severe about this last line. He said:

The sixth stanza contains a melancholy truth, that “a favourite has no friend,” but the last ends in a pointed sentence of no relation to the purpose; if what glistered had been “gold,” the cat would not have gone into the water; and, if she had, would not less have been drowned.

That seems strictly correct, though perhaps it fails to make sufficient allowance for the poem’s mock-whatever nature. Johnson said it “was doubtless by its author considered as a trifle, but it is not a happy trifle.”

In fact, Johnson was rather severe about Gray altogether and about all of his works except for the Elegy in a Country Churchyard. Part of the key to this must surely be that Johnson, who was Gray’s near-contemporary, having worked his way up from Litchfield via Grub Street, took a rather dim view of Gray’s hobnobbing from a rather early age with those much richer than himself, and what Johnson saw as an unseemly affectation of dilettantism or amateurism in one who lacked the means to support this. It probably also should not be overlooked that Johnson was a Tory, whereas Gray’s patrons were Whig grandees.

Gray is usually thought to have been at least temperamentally gay. Johnson also comments on his “effeminacy” and much is made of his homosociality. If there were any doubt, and however vexed the question of a “gay sensibility” may be, this poem would for me be the clincher.

I particularly like the allusion to a cat’s proverbial nine lives in the penultimate stanza.

A shilling life will give you all the facts

It’s now a fortnight since Michael Kirby retired from the High Court of Australia.

How shall we manage without him?

In the burst of publicity which surrounded his last circuit of the showground (at least as a judge) we have had teasers from a forthcoming biography. A Festschrift of sorts has also been published. RRP (so far as there can lawfully be one these days) about $59.

Kirby has a large and quite devoted following and it is hardly surprising if publishers want to cash in on it.

The prospect of a biography by A.J. Brown of Griffith University is the more intriguing.

The teaser publicity has concentrated on who said what to whom at the time Keating approved Kirby’s appointment. Lavarch, Attorney-General at the time, has (broadly speaking) confirmed that certain things were said. Keating has denied the account.

Kirby, as is well known, is perhaps Australia’s, and certainly also the judiciary’s (possibly worldwide) most prolific speech maker (vice-royalty and elected politicians aside). Inevitably he has let drop little snippets of reminiscence.

Kirby has recounted that at Summer Hill Opportunity School in 1949 he told two grey-coated career advisers that he wanted to be either a bishop or a judge. “The Church missed out, which was probably a wise career move in all the circumstances.”

Kirby claims that at law school it was Murray Gleeson who, by nominating him for some position in his absence, started him off on his student political career. He seems to have protracted his time at university by undertaking an Economics degree during his early years as a solicitor in order to prolong this. Student politics brought him in contact with top people at the top table early in life. Politics is the other career he obviously might have had, and some of his detractors would probably say it is a career he has never really abandoned.

Everyone has their reasons, but objectively speaking it seems fair to surmise that Kirby’s sexuality was an obstacle to his path either to a bishopric or as a professional elected politician. Apart from that, his Ulster protestant background probably precluded a path in Labor politics, assuming that to be the direction he might have taken.

In Australia we generally do not think highly of politicians, but they must nevertheless possess some distinctive talents in what they do. Kirby has traits common to those “political” people I have known, including an energy to maintain and cultivate a wide circle of acquaintance. You can call that networking if you like but that doesn’t really capture the whole thing. He often talks of those who have been his mentors. He is great at buttering up his audiences -he will be asked back. He keeps in touch with people: he writes them little notes in a truly elegant hand; in the days when he was President of the NSW Court of Appeal he was reputed to mark any kind of visit (obviously not actual official business) with a photo of himself with the visitor which he subsequently sent to them; I am sure he is an indefatigable attender of funerals. Another way of putting that is that Kirby is a great promoter of brand Kirby. I’m not criticising him for that, though I expect it is something which annoys some, especially those who have known him since their youth.

I first met Kirby at a memorial service at S James King Street for Peter Dennison, professor of music at Melbourne University (but originally, I think, from Wollongong and Sydney) after his untimely death, aged 47, in 1989.   We weren’t introduced though we conversed briefly at some point.  Along the pew I could tell he was an old hand at such occasions. I wandered into the service because I was at law school across the road at the time. I won’t say I knew Dennison well – I only met him twice – but I had known SK, Dennison’s partner in his final years, since first year at Sydney Uni. They both died of AIDS. 

By then Kirby’s sexuality, though not officially acknowledged, was no secret at least to law students or to anyone at all well educated about such matters. I don’t think it is entirely a coincidence that around about this time Kirby started popping up as rather a kind of secular bishop of AIDS causes. In retrospect that was a very long dry run for his ultimate official coming out in 1999. In case you might think that is rather late in life, the subsequent (and since discredited) Heffernan accusations of use of Commonwealth cars to ferry rent boys show why Kirby might well have delayed it further. An outed public figure is always at risk of such retribution in a way that a straight person or an “everybody knows but no one says” gay figure is not.

Judging from the teasers, I doubt if I am going to find the things which are really of interest to me in A J Brown’s biography. A biography by David Marr might be more to my taste, but Marr has probably been at the high table with Kirby too many times to write one. Some of the things or people I would like to read more about include:

• Tony Larkins QC, who moved Kirby’s admission, seemingly always mentioned by Kirby in connexion with his monocle (though to be fair that is in a chunk of a speech which appears to have been delivered more than once) and described by Sir Anthony Mason in his reminiscences of the NSW Supreme Court as “flamboyant;”
• the occasions when Kirby and his partner, Johan, “danced the night away” at the Purple Onion in 1969 (I hard it hard to believe this happened often: I just don’t believe Kirby had many nights free for this sort of thing); and
• the parallel but (judging from little hints which are too subtle to enumerate here) also divergent lives of Kirby and the late Justice Graham Hill of the Federal Court, whom Kirby first met at Summer Hill Opportunity School way back in 1949, and who, like Kirby, then went to Fort Street, Sydney University Law School and, eventually, the bench.

Biographies of living people are problematic. It’s not simply a matter of defamation risks (though that is a factor) but also a question of privacy, not just of the subject of the biography, but of others. Kirby hasn’t finished his active or even his public life yet so I very much doubt if Kirby would be prepared to co-operate with the preparation of a full kiss and tell biography – even using that phrase only metaphorically.  Nevertheless, I hope such material is preserved for a later date when more can be told, and particularly for the benefit of gay people who could learn from the links that Kirby has to life before the great change in gay people’s lives which has occurred in Western societies since his youth.

-

World AIDS day, New York, 1989

From the early days of ignorance, fear and rage. Still topical, even though some things have changed in the affluent west.

Loitering in Arncliffe

A few months ago I was riding back to Dulwich Hill from, as it happens, Monterey. My ride took me onto the cycleway which springs into being somewhere near St George Soccer Stadium and emerges at the side of the Eve Street Wetlands before petering out at the intersection of Marsh Street and West Botany Street.

I rode through Riverine Park along the side of a golf driving range. This park, along with a surviving market garden which you can see from West Botany Street and quite a lot of other green space in this area presumably owes its survival to its situation on land otherwise earmarked for an M6 Expressway or “Southern Motorway Reservation.” Some of the park is apparently destined to be squatted on by the Sydney Desalination “Project.”

At the foot of Eve Street (near Marsh St in the map linked above), there was a gated entrance to the back end of the driving range (to the south) and a lightly wooded area, where well-established trees were interspersed with, for want of a better term, shrubbery.

If you look closely at the picture you will see a sign, which when I returned this weekend had been defaced with some graffiti.  Here it is:

No
Loitering
in this area
Police may issue fines
or make arrests for
breach of notice
pursuant to section 632
Local Government Act.
Max Penalty $550

The sign must postdate 1993, when the section was enacted. The maximum penalty is now 10 penalty units, which is $1100. A penalty unit has been $110 since 1999. I haven’t been able to date the sign more precisely by tracking the amendments to the section, save that it must be no later than 2002.

The full text of the section is as follows (emphasis added):

(1) A person who, in a public place within the area of a council, fails to comply with the terms of a notice erected by the council is guilty of an offence. Maximum penalty: 10 penalty units.
(2) The terms of any such notice may relate to any one or more of the following:
(a) the payment of a fee for entry to or the use of the place,
(b) the taking of a vehicle into the place,
(b1) the driving, parking or use of a vehicle in the place,
(c) the taking of any animal or thing into the place,
(d) the use of any animal or thing in the place,
(e) the doing of any thing in the place,
(f) the use of the place or any part of the place.
(2A) However, a notice:
(a) must not prohibit the drinking of alcohol in any public place that is a public road (or part of a public road) or car park, and
(b) must not prohibit or regulate the taking of a vehicle into, or the driving, parking or use of any vehicle in, any public place that is a road or road related area within the meaning of the Road Transport (General) Act 1999 .
A council may establish an alcohol-free zone under Part 4 of this Chapter for a public place that is a public road (or part of a public road) or car park (or part of a car park).
(3) The terms of a notice referred to in this section may:
(a) apply generally or be limited in their application by reference to specified exceptions or factors, or
(b) apply differently according to different factors of a specified kind,
or may do any combination of those things.

It’s easy to guess who this sign is intended to warn off. Given that loitering generally means hanging around doing nothing, you have to wonder how a power to prohibit “doing of any thing” could support a charge of loitering contrary to a notice. Such a joke that vehicles and drinking receive a protection denied to mere “loiterers.”

It seems that some loiterers will not be deterred.  You need to look closely to between the two posts and indeed you may need to take my word that there are signs of this:

The Eve Street Wetlands show signs of having once been open:

They are now locked up.

 I don’t know why.  There is a sorry story here of neglect and also the depradations in the name of the construction of motorways which I did track down before but you will have to find for yourself if you are interested.

In the meantime, here’s another shot of that lovely tree:

Worryingly, there is a development application afoot here for the golf club. It mentions removal of vegetation. I fear the worst.

Community Action Against Homophobia Sydney Beat Project

Community Action against Homophobia (CAAH), which is a group which I think could reasonably be described as a Fourth-Internationalist front group, has launched its Sydney Beat Project.

For those who don’t know, “beats” are public places where men meet for generally anonymous sex. Once beats were frequently conducted at public toilets. In the post-AIDS era and also the era of withdrawal of public services generally, there are far fewer public toilets than there once were, and these are mostly locked up after hours. To an extent, the functions once performed by beats in the prohibitionist era for gay sex are now available through sex-on-premises venues, but beat-like activity still continues at nudist beaches and, nocturnally, in some parks.

D and I were alerted to this campaign by stories in the gay press.

The story in SX News and the online comments reveal a range of attitudes on this question. Beats are a divisive issue within the gay community: it cannot be denied that sex in public places challenges public acceptance of gay people, and those gay people who want to be “respectable” and respected by society are not always sympathetic to people who use beats. In fact, many beat users are “men who have sex with men” rather than avowedly gay men.

To quote the SX story:

[Rachel] Evans urged community members to attend CAAH’s vigil this Saturday night, from 10pm to 3am in the AIDS memorial grove, Sydney Park.

“We’ll be handing out condoms, and providing beat users with information cards informing them of their rights,” she said.

The AIDS Memorial Grove is a stand of trees at the south western corner of the park. That area is, as we have noticed before on a nocturnal ramble in the area (just strolling, honestly, officer!), an active beat. It meets criteria which are common to beats: shrubbery for shelter; few if any passers-by other than other beat participants; location just off a main traffic route out of the city (many beat users drop in on their way home to their wives).

D and I wondered how the demonstration would work out, and in particular how “beat users” would respond to activists queering their pitch.

Very much on the off-chance and as a bit of an afterthought, we headed down to the park at about 2.30 am hoping to catch the tail end of this “action.” As we arrived we saw a group of activist-looking people walking away from the park, and it was clear we’d arrived too late. We walked into the park and found a number of leaflets secured under weights on a park bench on one of the artificial hills. The leaflet mentioned that police had been issuing “move on” orders to people they found at the beat, and included some advice as to what people’s rights were in these circumstances. You can find this material on the CAAH link I have given above.

I am assuming that the use of “move on” powers is under section 197 of the Law Enforcement (Powers and Responsibilities) Act 2002. This empowers a police officer to give directions to persons in public places in certain circumstances. Under section 201 of the Act the police officer must supply the officer’s details and give warnings.

The police officer must believe on reasonable grounds that the person’s conduct:

(a) is obstructing another person or persons or traffic, or
(b) constitutes harassment or intimidation of another person or persons, or
(c) is causing or likely to cause fear to another person or persons, so long as the relevant conduct would be such as to cause fear to a person of reasonable firmness, or
(d) is for the purpose of unlawfully supplying, or intending to unlawfully supply, or soliciting another person or persons to unlawfully supply, any prohibited drug, or
(e) is for the purpose of obtaining, procuring or purchasing any prohibited drug that it would be unlawful for the person to possess.

As to (c), no such person actually needs to be present, though arguably there need to be reasonable grounds to believe that such persons may be present.

Apparently, police have been issuing “directions” under the Act that people not return to the park for periods of up to 28 days. This seems to me to be an abuse of the power. There are also claims of a certain amount of other bullying and abusive conduct by police officers.

I started this post meaning to say something more general about the historical conflicts between hard-left revolutionists and soft-left pragmatists, as well as the suspicions held of opportunism against Fourth-Internationalists on questions of gender and sexuality politics. For the time being, I’ll have to leave the picture at the head of this post to stand for that discussion. It dates from a campaign by the then Socialist Workers Party in about 1978.

CAAH propose to continue their demonstrations at Sydney Park. In particular they have said they will be there again on 29 November, on the eve of World Aids Day. D and I have agreed we will try to get there a bit earlier in the night to lend our support.

Cases of the week

Sneaking here under the wire in fulfilment of my implied undertaking by dint of this category, three candidates briefly noted:

1. R v Wood – the jury have now retired and been sent home for the weekend.  Winston Terracini’s address and his neat 12 Reasons why Wood should be acquitted shows that forensic eloquence lives on, at least in addresses to the jury.  Owing to renovations in the Supreme Court’s Queens Square premises, I witnessed part of this drama on my way to an altogether less momentous and wholly eloquence-free examination under the Corporations Act which was also being conducted in the Darlinghurst court house (much more atmospheric than the usual venue);
2. A neighbours’ dispute leads to a damages award for vilification – as a gay man with problem dogs on both sides, my sympathies are all with the complainants on the barking front alone; and
3. Adamson v Ede – the latest instalment in this saga.

Postscript I see now that Wilson & McCollum v Lawson & Anor [2008] QADT 27, the neighbours’ dispute (which is about homophobic vilification) was picked up in the gay press a full day before the SMH picked it up. Text of the decision of the Queensland Anti-Discrimination Tribunal is here.

One size fits all

A story in yesterday’s SMH is rather amazingly headlined “Prenuptial rights for same-sex, unmarried.”

It appears to be a paper-thin rewrite of a press-release designed, amongst other things, to drum up business for the family-law lawyer (quite a different thing from a family lawyer), Sally Nicholes, “principal of Nicholes Family Lawyers.”

Here are some of the highlights or lowlights, since nobody ever seems to click on links:

UNMARRIED and same sex-couples may soon be able to sign “prenups”, giving de factos many of the same legal rights as those who are wed.

Reforms to the Family Law Act before the Senate would allow agreements to be drawn up by de factos to cover spousal and child maintenance, as well as the division of property in the event of a relationship breakup.

Allow, or necessitate – you be the judge.

The bill was circulated in Federal Parliament on September 18 and is awaiting consideration by the Senate. If the legislation is passed, it is expected to be enacted by March.

That bit is, I think, out of date, so far as the Senate passed the bill with amendments on 18 October.

A de facto relationship can be heterosexual or homosexual and can exist even if one of the people involved is legally married to someone else or has another de facto partner.

The act goes beyond property matters:

The legislation will also mean that a court can force a partner out of the home if they are violent or acting inappropriately to the other person.

“This is pretty dramatic stuff and it is a big change,” Ms Nicholes said. “It is going to be huge, particularly with the spousal maintenance.

“What I have often found amazing is that someone could be in a de facto relationship for 30 years and have no obligation for spousal maintenance. But you could be married for one year and have more rights.”

Well, one person’s rights are another person’s obligations. I don’t know if I find it so amazing as Ms Nicholes does, because I always thought that was what marriage was about. Living together is often something quite different – but you will now need to go to a lawyer to do anything about that. How realistic is that?

She agreed that the amendments may make marriage a less attractive prospect for some couples.

“It just depends on how legally minded a couple are,” she said. “[But] some will come back to romance – to actually get married not for legal reasons, but romance.”

Funnily enough, that is the one point which I think is totally wrong in a glass-half-full-half-empty kind of way. The amendments will mean that, apart from the actual expense of a marriage and a formal divorce when or if the time comes, you will have nothing to lose from getting married at all, because you are all in the same procrustean bed for everything else.

In fact, it is not just pre-nups which may now be advisable, but mid-quasi-nups, because in an amazing and little-heralded step, the parliament has now enacted (subject to the amended bill now passing the Reps, though none of the the Senate amendments alter this particular aspect as far as I can make out) that all presently existing de facto relationships (including gay and lesbian ones) will, if they come to an end after the commencement of the proposed amendments to the Family Law Act, be subject to the jurisdiction of the Family Court (at least in NSW and in other states which have referred the power to the Commonwealth), not only to determine the division of property, but also to make ongoing orders for spousal or quasi-spousal maintenance, potentially for the rest of each party’s life.

Because de facto relationships do not depend on any juridical act, you might even be in a de facto relationship without realising it, and conversely think you are when in fact you are not. You’ll have to wait till later to see what the other party might think and do about it. The only way, so far as I can make out, that you can define the situation is if you can broach the matter with the other person (there may be more than one other person!) and reach agreement with them. But you will both have to agree that you are in fact in a de facto relationship, even if you want to bring it to an end, and for the deal to stick you will both have to go and see lawyers.

This, to me, is astounding. It is going to come as a shock to a great many people further down the road when it is too late to do anything about it. I wish the powers that be had paid a little more attention to Patrick Parkinson’s piece in the SMH in August, which although it sidestepped the question of gay marriage, made the point very clearly. As Professor P put it in his opening para:

The Federal Government must be very keen on marriage, despite the institution’s falling popularity in the population. It is so keen, it seems, that it wants to impose upon people all the financial obligations of marriage whether they have chosen them or not.

Quite frankly, I have very little faith in the capacity of the Family Court, schooled in the way of marriage, to make appropriate orders for de facto relationships which may well have been entered into and conducted on a totally different basis. Ms Nicholes’ comments are a worrying harbinger of their likely mindset.

An infamous decision

A passing comment by a colleague has reminded me of the case of Benney v Jones.

This is a 1990 case involving Mr Benney, who claimed to have been the homosexual partner of Mr Read, who had died suddenly in December 1988 in his early sixties. Mr Benney made a claim for provision under the Family Provision Act. The will was in favour of Mr Read’s younger sister, Ms Jones, who was the defendant to the application. She denied that Benney and Read were lovers or that Read (who was about 20 years older than Benney) was even gay. It does not appear to have been disputed that Benney was gay.

You can read the appeal at (1991) 23 NSWLR 559. The appeal failed because of the factual findings by Justice Young at first instance, which is why his judgment remains of interest. That judgment is unreported, but available on Lexis-Nexis (BC9002739) for a fee.

At the time this case was heard, the law did not grant any recognition to homosexual relationships. Gay people, rather in the way that the religious right want to keep things with their present push for “interdependent” relationships rather than anything which resembles marriage, were forced to apply on the basis that they were persons who had been:

(a) living in the same household as the deceased; and
(b) dependent upon the deceased; and
(c) there were “factors warranting the application.”

The last element has generally been held to require some further factors other than barely qualifying at the threshold level which would bring the claimant within a class of persons for whom the community would generally expect the deceased to have made provision.

These are the same sections that step children are required to resort to, even in cases where they have been brought up from infancy as the child of their step-parent. Generally in those cases some kind of award would be made to a claimant with needs unless there were competing claims of the natural children or widow.

Of course, all applications require the claimants to show that they have been left without adequate provision by the deceased. What is adequate provision will generally depend on a person’s financial needs on the one hand, and the size of the estate and competing claims to it on the other.

But back to Benney v Jones. In what follows I am mostly paraphrasing Young J’s judgment as to the facts and some of the evidence.

Benney and Read knew each other for many years. Benney said they first met on Good Friday 1972, shortly after which they formed a close relationship. They did not live together, time to time one would stay in the residence of the other (including two periods where Benney stayed at Read’s for a few months), or together they would stay at the residence of other persons.

Read was a keen breeder, exhibitor and judge of birds including softbills, finches and Australian native birds. Benney also developed an interest in birds, particularly zebra finches and rosellas.

In 1983/1984 (about the time when Read seems to have retired from regular work) they considered that it would be nice to live in the Hunter Valley where they could enjoy better conditions for the breeding of birds. A suitable property was found in late 1984 and in 1985 the parties arranged to sell their homes and the idea that they had was that they would purchase this Hunter Valley property in equal shares.

The property, at Rothbury, was purchased for $65,000.00 plus legal and other expenses. On 20 March 1985, Read borrowed approximately $8,000.00 on his bankcard and had this amount paid to his solicitors to form the deposit for the Rothbury property. On 29 March 1985, Benney retired from the bank (he was then 38) and received his $35,000.00. Benny did not contribute any of this money to pay for the house at this time.

Read received the proceeds of the sale of his home at Cammeray in April 1985 and completed the purchase of Rothbury in his own name on 20 June 1985. Read paid the whole of the purchase moneys for Rothbury.

Read and Benney moved into the Rothbury home on 21 June 1985.

In May 1986 Benney sold his home. When the plaintiff received the money from that home, he discussed with Read the building of a new home on the Rothbury land up the hill. There was a proposal at one stage that Benney would pay for the new house and that on doing this he and the deceased would be co-owners of the Rothbury property. Read consulted a solicitor who advised the deceased that the whole property should be valued and that the plaintiff must pay one-half of the cost of the then value of the land plus the new home. Benney was not prepared to do this.

Renovations were, however, effected to the existing home at Rothbury during April 1987. Benney spent approximately $6,000.00 on various building materials for the property and also bought a tractor for about $4,000.00 and a ride-on mower for $2,750.00. These remained his property.

Read died of “cerebrovascular accident” (a stroke, I think that means) on 16 December 1988.

Justice Young held that there was no doubt that Benney was homosexual.

However, the relevant question for the statutory test was the nature of their life together once they both lived at Rothbury. Whether or not they were in a homosexual relationship was a part of this, although even that was not sufficient.

Benney bought the groceries and Read bought the meat.

Miss Read, whom Young described as the deceased’s “step-niece,” stayed at the property once for 4-5 weeks and went grape picking with Read. She presumably gave evidence for the family which stood to benefit from the will. She said that on this occasion she and Read did all the shopping.

Read and Benney lived different lifestyles. Miss Read said that her “step uncle” was a person who had retired, enjoyed looking after his birds, doing gardening and looking after the house, and who liked to go to bed early and rise early. Benney, on the other hand, played squash one or two nights a week, went out to see his friends other nights, and often would come home at 2am in the morning. He would then sleep until late in the morning because he worked the late shift at the winery. When they were at home together the they would dine together, but more often than not the deceased would go off to bed early and the plaintiff would continue to stay up and watch television. Benney drove. Read did not drive but Benney drove him to many venues including places throughout the State where the parties would exhibit birds together.

Well, to me, the position as to a gay relationship of some sort is objectively pretty self-evident, absent convincing evidence to the contrary. Even more the statutory tests of living as part of the same household and (given that Read owned the house) being financially dependent. But that is not the way that Justice Young saw it. As a starting point, he said:

There is a lot to be said for the proposition that we here have two gentlemen who have a common interest in birds sharing the same house. Both find it congenial to live at Rothbury, one because he can enjoy his birds, the other because he can have a social lifestyle and work virtually part time in the afternoons and weekends, yet still live well.

Benney said: “the extent of our relationship, which lasted until the deceased’s sudden death, was only disclosed to a few of our close friends.”

This was supported by:

1. Mr Jackson, Benney’s previous sexual partner, who saw that the Benney kissed guests and danced with the Read at a party, and they seemed to be sharing a double bed, at least at one stage. some time between 1974 and 1980.
2. Mrs Burt who said that at many functions she attended where there were a number of homosexual persons present she observed the the two holding hands, cuddling and dancing.
3. Mr Richards who said that on one occasion Read said to him that he loved Benney and added “Since we decided to live together we have got to know each other more intimately and my love for him has become deeper.” He also said that it appeared that Benney and Readshared a double bed when they stayed on one occasion at his home.
4. Mr Wood who gave evidence of a similar occasion when the men apparently shared a double bed.
5. Mr Bastin, who said that he could see a closeness between the plaintiff and the deceased including touching each other on the arm or shoulder (though he observed that the deceased and the plaintiff occupied separate bedrooms at Rothbury).
6. Mr Stratford who said that he noticed that the deceased and the plaintiff touched each other, but nothing more than that. He remembered when he moved the plaintiff and the deceased up to Rothbury in his truck they patted each other on the leg.
7. Mr Jackson, who has some knowledge of wills and trusts, who swore that just before Read and Benney went to Rothbury they both said to him, “We are thinking of the best way to buy the home together” and asked his advice as to the way that should be done.
8. Mr McAuley, who said that he was a life long friend of Read: they shared a common interest in birds. He visited the deceased and the plaintiff at Rothbury and described their relationship as “a husband and wife relationship”. However, it seemed from cross examination that he meant by this that the plaintiff went out to work and the deceased stayed home and did the housework and the gardening. [Note: this sort of use of answers in cross-examination is quite misleading because what it means is that that is what Mr McAuley agreed he actually observed.]
9. Read’s elder sister, Mrs Violet Hawkins, who said that she had seen the plaintiff and the deceased kissing each other on the lips.

 
Justice Young described Ms Jones, Read’s younger sister, as

“a lady who obviously holds the view that homosexual behaviour is unacceptable. She adored her late brother and considers that his memory is sullied by the allegations made by the plaintiff.”

What her feelings had to do with it is unclear: clearly, she also stood to lose some part of the estate left to her if the claim was successful.

The first line of Ms Jones’ defence was that Mr Read was in a loving relationship with a woman, whom he had been seen kissing and cuddling. (This is also a common line of defence against, in particular, heterosexual woman claimants: you were not the only one; there were others.) The woman in question:

denied a sexual relationship and explained that the kissing had been at the exchange of the peace in Church and other kissing and cuddling had been at a time after the deceased’s death when the lady, who described herself as a good friend of the plaintiff, considered that he needed some solace. She gave evidence that the plaintiff had more or less told her that he was homosexual and she recognized they could be no more than good friends.

Apart from Miss Read’s evidence already referred to above, the other key points for the defendant were:

1. Benney had never ever said even in evidence that there was a sexual relationship, but only that he, the plaintiff, was a homosexual and there was a “loving relationship;”
2. Benney had never said to anybody until after the deceased’s death that there had been a homosexual relationship;
3. when Miss Read went to wake her uncle early in the morning to go and pick grapes she found him sleeping alone;
4. Mr Harris, “a man now in his eighties [who] presented himself as a vigorous and zestful gentleman” said he was a lifelong friend of Mr Read’s and described his relationship as a “father-son” relationship, visited Rothbury about once a month and had never witnessed any displays of attention. He said Read had told him “Michael boards here.”

Justice Young said it was “a borderline case.” But to help himself resolve the issue, he decided that Benney’s credibility was questionable on the following counts.

1. Miss Read said that she found her “step uncle” sleeping alone when she went to wake him to go and pick grapes with her during her 4-5 week stay. Justice Young said: Benney “tried to explain away this evidence by saying that he and the deceased thought that Miss Read would be offended by finding them in bed together so that the deceased used to get up at 4 am and go into his own bedroom and go back to sleep so that Miss Read would find him there. I find this explanation incredible.”
2. His Honour also said that Read: “could not explain why, if he and the deceased were to buy the property at Rothbury equally and he had $30,500.00 in his hand before the deposit of $6,500.00 was paid, and he knew the deceased had borrowed $8,000.00 on bankcard, he did not there and then pay half the deposit and why he did not pay part of the final balance in June 1985.”
3. His Honour doubted if Benney’s income could have been what he said it was. “rather drastic hints from the bench no income tax returns were put in evidence, though at the eleventh hour of his case the plaintiff tendered his 1989 income tax assessment.”  
4. Benney related that on one occasion when driving with Read he had asked him “Have you made any provision for me in your will?” Read made no comment but smiled. The plaintiff continued “If you haven’t I could challenge your will because of our relationship.” Read again made no comment but only smiled. His Honour opined: “It seems to me a very strange situation if two people have a “loving relationship” that that relationship continues unaffected at a stage which the plaintiff tells the deceased that he ought to have made a will in his favour and if he hasn’t he will challenge it… it does seem to me that the conversation does go against the plaintiff’s view that the relationship was a very close one.”

Justice Young is renowned as a judge who bounds onto the bench having read all the papers and quite frequently with a very well-formed view of the facts of the case. He is a man of many opinions. I have to say that these opinions appear to have unduly coloured his approach to this case. Looking just at the 4 points listed above which were considered by his Honour to weaken Benney’s credibility:

1. It is not incredible to me that a closeted older man and his partner would go to considerable lengths to conceal any sex or sleeping together from a family member who was not “in the know.”  I do agree that it seems unlikely, but I don’t think this is a point on which a case should hang.
2. This presupposes that this was a matter which required explanation.  If the method of co-owning the property had not yet been resolved (and bearing in mind that there could still have been reservations on Read’s behalf as to the exact terms on which the property should be co-owned) and especially bearing in mind that Benney had yet to sell his own house and presumably needed to live on his retirement moneys, I don’t view this in quite the same way as Young J does.  This is one of those areas where non-married people behave differently from married people precisely because they are not living in the same kind of juridical institution.
3. I can just imagine what those “drastic hints” were. If you’ve seen Justice Young on the bench, the line about schoolboys playing with flies might be one which comes to mind. You wonder how far this point can go since you can safely assume that the tax assessment which was tendered was in fact consistent with what Benney had said, since otherwise Young J would surely have said more.
4. This just goes to show that his Honour was totally unable to comprehend the position of a person in a closeted and in any event not legally recognized relationship.  Things like this are said all the time, especially because the issues remain unresolved.  A conversation like this is not necessarily a fight, and even if so, even loving relationships have their ups and downs.  Young J said: “Indeed, all sorts of sinister implications could be read into that conversation which I do not think I should infer because there was no cross examination in the conversation.”  You may wonder whether he has in fact refrained from inferring, given that he has used that conversation – volunteered by Benney – as indication that there was not a loving relationship.  Even married people can have conversations about each other’s wills, though of course it is unquestionable that if inadequate provision is made they will be eligible persons so that it might not be necessary to make that specific point.  Such conversations need not mean that the relationship is not loving, since even in loving relationships opinions might differ about what the various claims on each party’s testamentary bounty are. I know of at least one evidently loving couple where the wife has sent a draft of her husband’s will to her lawyer for advice, and clearly in that context, prospective FPA claims were a matter at issue. It might be a bit rude, but it is not so much different from discussions about marriage jointures and prenups which have been going on since the year dot, as Young J, as an equity lawyer, should know better than many.

But what to do about all the people who observed discreet indicia of a homosexual relationship?  Well, first, so far as they based this view on the existence of 2 double beds, Young J held that when guests stayed, Benney slept on a camp stretcher in Read’s room, so that to the extent that they based their view on the double bed situation, their opinions were unfounded.  That to me seems extraordinary, both because very little of their evidence as he summarised it was based on such a premiss and secondly because people can quite often sleep separately for all sorts of reasons even if they have sex together.

Secondly, Young J airily dismissed all of their evidence because, at least in some cases (Mr Stratford and Mrs Hawkins, Read’s elder sister, “a very zestful 76″) statements had been elicited in cross-examination that they had come to give evidence because they felt that Benney had been hard done by, and that they wanted to help him get what he fairly deserved.  You might have thought that this would support the claim and in particular the appeal to community values, but to Justice Young it simply meant that they were making all or some of what they said up.

His honour found that there was no homosexual relationship.  In terms of the criteria under the Act, he further held that :

(a) the two men were not living in the same household (so apparently they were in two separate households under the same roof);

(b) Benney was not dependent on Read (despite his observation that he was able to work less because he was living in Read’s house);

(c) and even if they were, there wouldn’t have been “factors warranting.”

Rather:

They did not present to the community a relationship which would have indicated that there was an obligation on them both or either of them to make provision for the other in the event of the death of either. Even if the average member of the community had known all the facts, there still would not be, in my view, a situation where it could be said that the deceased was obliged to make provision for the plaintiff.

You have to bear in mind that “all the facts” is all the facts as Young J found them, that is, that there was no sexual relationship and Benney was just a younger man who had never made contribution to the property in Rothbury and just lived there because it was convenient and cheap for him to do so and was making all the relationship stuff up.

In a 1996 article, Jenni Millbank (who has made gay and lesbian relationships her legal life’s work) buries the following comment [emhasis added] in a footnote about the expansion of “dependent” to encompass emotional as well as financial dependence:

“although emotional dependence has never been considered sufficient, and Young J has always been quick to find that relationships in question were not gay and that they did not contain elements of financial dependence: see Benney v Jones (1991) 23 NSWLR 559, especially Preistley JA. In McKenzie v Badderly (1991) (Unreported, NSW CA, 3 December 1991) the majority held that $20 per week income (earned through the property of the deceased) for the pensioner applicant was sufficient to make him dependent on the deceased. Nevertheless, it should be noted that on rehearing Young J held against the applicant, including costs: see McKenzie v Badderly (1994) (Unreported, NSW SC, 26 October 1994, Young J). The principle has been more generously, and less homophobically applied in NSW in other cases: see eg Gray v Public Trustee (1993) (Unreported, NSW SC, 25 November 1993, Master McLaughlin).

These are strong words in an academic article. The reference to Priestley JA’s judgment is in particular I think a reference to Priestley’s holding that Young J went too far in finding that the two men did not live in the same household. His Honour was also critical of Young J’s dismissal of evidence given by other parties which included witnesses who were not called for cross-examination and whom Young J never saw at all. On the papers (ie, reading the affidavits and the transcript), he would have thought that Benney was dependent on Read within the requirements of the statute. It was Young J’s findings as to credibility which made his factual findings proof against appeal. In addition, Priestley still felt that basically (and this I would not cavill with if we were talking about two people who were still living) Read had provided adequately for Benney in the course of the relationship, whereas Benney had not chipped in as he might have.

Apart from anything Priestley said, there is also Young J’s starting point, which was his expressed view that finding that there was a homosexual relationship was akin to finding that there had been (as in old matrimonial causes proceedings) adultery. It was not a finding to be made lightly; the court needed to be comfortably satisfied of it, especially bearing in mind that much of the evidence would be circumstantial. I agree with the circumstantial bit, but the core reason for caution in making such a finding in the traditional decisions was that adultery was wrong. In bestowing the epithet “homophobic” Millbank has also taken into account the other decision of Justice Young that she has referred to. I think it is deserved.

History does not record what happened to Benney. He was ordered to pay $50,000 costs of the trial (approximately) and also the costs of the appeal. Ms Jones got the bequest of about $190,000 less any costs which were not recovered from Benney.

Justice Young is now Chief Judge in Equity in the Supreme Court of NSW and still going strong. His hobby is collecting model buses and working out bus timetables.

Old Man Sentenced

R v Carew (1927)

[from Unfit for Publication Vol 3, 1601 at 1603]

“My name is James Williams. I am a labourer. I reside at George Street North, City.

About 5.30 pm on the 10th March instant I went to the defendant’s shop at his invitation. Previous to that I had told the Police something. When I arrived at the shop [in the now Queen Victoria Building] I saw the defendant there. He said “I am busy now. Will you come back after I’ve closed up?” I then left the defendant’s premises and saw ConstableRyan.

I then returned to the defendant’s premises about ten minutes past six in company with Constable Ryan. When we arrived at the premises the defendant was standing just outside his shop in York Street. I introduced Ryan to the defendant saying in reference to Ryan “This is my cousin.” I had met Constable Ryan before and also the accused on the Saturday previous.

After introducing the Constable accused said “Will we go in and have a tune on the piano?” and the three of us entered accused’s shop through the York Street door. The defendant turned on the lights and opened the pianola, produced some rolls of music and asked Constable Ryan to “have a tune.”

Ryan then sat down and played the pianola. At the time Ryan was playing the pianola accused was putting screens across the door leading into York Street. He covered the door leading from George Streeeet with a paper screen also a big piece of paper. Ryan was still playing the pianola. It did not take very long for accused to put the screens up.

Accused then tried to kiss me.

He said “I would like to have a good time,” at the time he said that he tried to catch hold of my penis. Constable Ryan was still playing the pianola. Accused then kissed me again. He then placed his hand on my person the second time. He said in reference to Ryan “He is a lovely boy.” He said “This man is he all square, is he all right?”, that was referring to Ryan.

I said “Yes, he is all right.”

Defendant then gave Ryan some extra rolls of music and asked him to play them, and move the pianola from the wall and put all the lights out except one at the George Street end of the room. After he put those lights out he brought a chair from some other part of the building and placed it at the back of the pianola.

He then asked me to come round the back of the piano, he caught hold of me and pulled me round the back of the piano. Defendant sat on the chair. I was standing in front of him. Defendant undid the fly of my trousers and undid the top button of the fly of his trousers. He took his false teeth out. He took hold of my penis which he took out of my trousers. He was just going to put it into his mouth and I sneezed and Constable Ryan charged round the corner. He had finished playing when I sneezed. Ryan said “You dirty old mongrel. I belong to the Police. I have heard a lot about this conduct. This is the limit, I am going to arrest you.” The other police then came into the building.

Headline above from the Daily Telegraph 20 March 1924 (UfP 1606), reporting:

Joseph Carew (59) pleaded guilty to a charge of having committed a serious offence at Sydney on March 10. Mr Leslie Cannon appeared on behalf of Carew, who was sentenced to twelve months’ imprisonment with hard labour. His Honor said that if at the end of six months the report of the gaol authorities as to the conduct of the prisoner was favorable he might recommend a reduction of the sentence.