Archive for December, 2008

Circumcision of our Lord (traditionally 1 January)

December 31, 2008

circumcision-chartres

This is from a series of bas-reliefs depicting the life of Jesus from the arcade in the choir at Chartres. I have also derived an innocent (I hope without conceivably causing offence to any reasonable person) amusement from this, as also from a hymn commemorating the occasion (here as translated and altered a little):

1. O blessed day when first was poured
The blood of our redeeming Lord!
O blessed day when Christ began
His saving work for sinful man!

2. While from His mother’s bosom fed,
His precious blood He wills to shed;
A foretaste of His death He feels,
An earnest of His love reveals.

3. Scarce come to earth, His Father’s will
With prompt obedience to fulfil,
A victim even now He lies
Before the day of sacrifice.

4. In love our guilt He undertakes;
Sinless, for sin atonement makes.
The great Lawgiver for our aid
Obedient to the Law is made.

5. Lord, circumcise our heart, we pray,
And take what is not Thine away.
Write Thine own name upon our hearts,
Thy Law within our inward parts.

6. O Lord, the Virgin-born, to Thee
Eternal praise and glory be,
Whom with the Father we adore
And Holy Ghost forevermore.

In fact, this hymn forms part of a long tradition, recounted in some detail here, where I learn that Thomas Aquinas found “not one, two, or three reasons [why Christ should have been circumcised], but seven:”

First, to show the reality of his human flesh against the Manichee who taught that he had a body which was merely appearance; against Apollinarius who said that the body of Christ was consub stantial with his divinity; and against Valentinus who taught that Christ brought his body from heaven.

Second, to show approval of circumcision which God of old had instituted.

Third, to prove that he was of the stock of Abraham who received the command about circumcision as a sign of the faith which he had in Christ.

Fourth, to deprive the Jews of a pretext for not receiving him had he been uncircumcised.

Fifth, to commend the virtue of obedience to us by his example; and so he was circumcised on the eighth day as was prescribed in the Law.

Sixth, that he who had come in the likeness of sinful flesh should not spurn the customary remedy by which sinful flesh had been cleansed.

Seventh, to take the burden of the Law upon himself, so as to liberate others from that burden……

It’s a cheap shot, I know, but I can’t help thinking that, lacking the internet or television to distract him, old Thomas had waaaaaay too much time on his hands to think about this.

Slander – 2

December 28, 2008

Judge Judith Gibson has delivered another judgment in relation to a neighbourhood slander which, courtesy of the slow Xmas news period, has been belatedly reported by the SMH’s Crime(!) Editor.

BV told two other parents at the school attended by BV’s and PK’s and AK’s children that PK and AK were not trustworthy people who had ripped him off. In addition PK and AK’s children were upset as a result of things said at school by BV’s children, which were presumably a repetition of things said at home by BV in their hearing. Previously the families had been close and had a business and a religious association (PK and AK have 8 children) going back many years.

No statements by BV to his children were pleaded as defamatory publications

This was Judge Gibson’s second judgment, delivered on 9 December 2008. On 8 December 2008, when a four-day trial was set down to commence, there was no appearance by the defendants, whose legal representatives had ceased to act about a month previously. On the application of the plaintiffs, Judge Gibson struck out the entirety of the defence. This included defences of truth or contextual truth (roughly, it was mostly true) and that an apology had been offered (an “offer of amends”).

The playground repetition of the slander was not itself the matter complained of, but its effects on the Ks’ children were held to be factors warranting an awared of “aggravated compensatory damages.” This of itself is a bit alarming: watch what you say in front of your children! You can’t determine how alarming it is, because her Honour did not give an unaggravated damages figure and say how much difference the aggravation made, but rather, having found aggravation, delivered an inscrutable round-figure verdict.

Easiest at this point to quote from the judgment [emphasis added]:

What are the features warranting the award of aggravated compensatory damages here? The first and most obvious is the bringing of a defence of truth. Filing a defence of truth recklessly will inflame the damages: Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254 at 262. This was, moreover, a hopeless defence and one which I have struck out: PK v BV. Even if the defendant had attended and led evidence along the lines particularised (and I note I have set out the particulars in some detail in my judgment of 8 December), these particulars would establish no more than some kind of commercial dispute about a late payment. There is nothing in the particulars to support the truth of any of the imputations.

It is as well to set out the particulars in question, which are to be found in the first judgment [emphasis again added]:

“i) In or about August 2005 the plaintiffs asked the defendant [sic] and the defendant agreed to loan without security certain moneys to the plaintiffs.

ii) The plaintiffs or each of them agreed to prepare a written document in relation to the said loan.

ii)[sic] In order to induce the defendant to make the loan, the plaintiffs and each of them made certain representations to the defendant which the plaintiffs knew or should have known were untrue and false and that the plaintiffs made such untrue and false representations with the intention that the defendant would be, and he was thereby induced to enter the lending transaction.

iii) The plaintiffs represented that they or both of them had expertise and knowledge sufficient to enable the preparation of proper and binding loan documents and that they would use their best endeavours to draw valid and effective documents.

iv) Despite the representation of the plaintiffs they and both of them in truth believed that the said documents were on their terms void for uncertainty.

v) The said documents were executed by and at the direction of the plaintiffs.

vi) The plaintiffs arranged and explained or instructed the defendant as to the manner and method of execution of the said loan documents in circumstances where the defendants [sic] [should be plaintiffs, obviously] knew or believed that the execution of the documents was defective and did not in their belief create to [sic] legally enforceable rights, or, upon becoming aware of the same failed to warn the defendant.

vii) In addition, the plaintiffs represented to the defendant [sic] that the plaintiffs and [sic] neither of them was able to provide security for the said lending.

viii) The plaintiff [sic] and both of them in truth knew that the plaintiffs did have assets which at all relevant times could have been used to secure the loan.

ix) Such representations with the knowledge of the plaintiffs was [sic] intended to, and in fact did, induce the defendant to enter into the lending transaction.

x) The plaintiffs and each of them represented that they would repay the loan in full on or before 12 December 2006.

xi) The plaintiffs did not repay the full loan on or before 12 December 2006 and either knew or should have known that they would have in truth been unable to do so.

xii) In the premises all and any of the imputations were true.”

So, to put it more simply PV, the defendant, says (it’s just an allegation we’re talking about, in case their lawyer is reading) that the Ks, the plaintiffs, got him to lend them money. They prepared a written document which he and they signed. They knew it was not legally enforceable against them because it was expressed too vaguely. They also induced PV to lend them money on an unsecured basis by telling him falsely that they had no assets to offer as security when they knew they did have assets which they could have offered. They also said they would repay the money in December 2006. It’s not clear if they have subsequently repaid it though the tenor of the slander suggests that they haven’t.

That sounds like a lot more than a dispute about the late repayment of money to me. It is an allegation of fraud without which the loan might never have been made or made in the form in which it was made. I can’t say whether this would amount to a defence of contextual truth, though it certainly looks like more of one than Judge Gibson seems to have thought. What it does show is that, once you are on a winning streak in a case like this, you just keep on winning, and conversely, if you are losing, you just keep on losing, and especially if you are not there.

This is especially so in defamation, because though it is for the plaintiff to establish that the hurtful things were said, the plaintiff does not have to prove that they are untrue. If they are hurtful in the requisite way (ie, defamatory) it will be for the defendant to establish their truth by way of a defence. In the absence of such proof, the defamatory statements are assumed to be untrue and all the more shocking and harmful because of that.

We will never know whether what PV said was true. Because he gave up, quite possibly because he didn’t have the money to fund a four-day trial, it is presumed, in the trial, not to be true. But you can’t just stop defending an action: your opponents will just get in heaps of free kicks in your absence, as some of the excerpts of evidence recounted by her Honour in her judgment make plain.

Her Honour was particularly concerned about the aggravation as a result of the remarks made by PV’s children:

37. The circumstances in which the defendant’s children insulted the plaintiffs’ children, including making statements in the course of a scripture class, and leading to school bullying which had the plaintiffs’ daughter hiding in the girl’s toilet for three days, required the plaintiffs to sit down with all of their children to explain what has happened, “in case they heard something outside our home” (transcript, page 32). This is very powerful evidence.

38. The defendant must have been aware of the very close relationship between his children and the plaintiffs’ children, and for a dispute between adults to be used as a punitive weapon in the school yard is conduct which shows aggravating features of the highest kind. In fact, I cannot recall ever reading any defamation judgments referring to repetition amongst children. It must be a very rare occurrence, and, in my view, is an appropriate matter for aggravated compensatory damages.

Excuse me? The plaintiff must have been aware of this, even though her Honour, defamation maven par excellence, cannot recall ever reading of such a case in a judgment before and is of the view it must be a very rare occurrence?

I’m seriously wondering if Gibson DCJ has entirely thought through the ramifications of her decision. By a series of little steps, all of them comparatively normal and by the book for a defamation lawyer (because they look at these things all the time through the telescope turned back to front of their professional commitment to the cause of action) I think she has reached a quite remarkable and also questionable conclusion.

Christmas and Milton

December 24, 2008

milton

One of my favourite poems is Milton‘s On the Morning of Christ’s Nativity.

The poem is too long to reproduce in full here. Well, of course, I could do so with simply the stroke of a key, but it would seem a bit of a swizz.

I’m trying to work out what exactly it is I so like about the poem.

There is an opening prelude which sets the scene. This is in four stanzas. The first invokes the occasion, fairly conventionally:

This is the month, and this the happy morn,
Wherein the Son of Heaven’s eternal King,
Of wedded maid and Virgin Mother born,
Our great redemption from above did bring;
For so the holy sages once did sing,
That he our deadly forfeit should release,
And with his Father work us a perpetual peace.

The second continues this (Milton seems still to be a Trinitarian in this stanza). The third and fourth invoke the muse and establish the motivation for what follows:

III

Say, Heavenly Muse, shall not thy sacred vein
Afford a present to the Infant God?
Hast thou no verse, no hymn, or solemn strain,
To welcome him to this his new abode,
Now while the heaven, by the Sun’s team untrod,
Hath took no print of the approaching light,
And all the spangled host keep watch in squadrons bright?

IV

See how from far upon the Eastern road
The star-led Wisards haste with odours sweet!
Oh! run; prevent them with thy humble ode,
And lay it lowly at his blessèd feet;
Have thou the honour first thy Lord to greet,
And join thy voice unto the Angel Quire,
From out his secret altar touched with hallowed fire.

This too is fairly conventional, with phrases which are familiar not only from other works of Milton, but also other hymns such as “Adestes Fideles.” “Prevent” presumably means, in this case, “come before.”

But what is really special is the hymn that follows. I love its metre, I love its colourful opening:

It was the winter wild,
While the heaven-born child
All meanly wrapt in the rude manger lies;
Nature, in awe to him,
Had doffed her gaudy trim,
With her great Master so to sympathize:
It was no season then for her
To wanton with the Sun, her lusty Paramour.

Up to stanza XVIII, Milton expounds the occasion and what it will lead to, namely judgment day. Then he embarks on a new theme. He builds on an ancient tradition that the pagan oracles stopped speaking on the occasion of Christ’s birth:

XIX

The Oracles are dumb;
No voice or hideous hum
Runs through the archèd roof in words deceiving.
Apollo from his shrine
Can no more divine,
Wi[th] hollow shriek the steep of Delphos leaving.
No nightly trance, or breathèd spell,
Inspires the pale-eyed Priest from the prophetic cell.

The ensuing stanzas include references to a number of familiar characters from Satan’s parliament in Hell in Paradise Lost. Milton interprets the pagan gods as devils in disguise, driven from earth by Christ’s arrival. Apparently, this includes other supernatural beings, such as fairies. This continues up to stanza XXVI:

So, when the Sun in bed,
Curtained with cloudy red,
Pillows his chin upon an orient wave,
The flocking shadows pale
Troop to the infernal jail,
Each fettered ghost slips to his several grave,
And the yellow-skirted Fays
Fly after the night-steeds, leaving their moon-loved maze.

And then, Milton is finished. It’s a kind of “Hush! Don’t wake the baby!” moment as he simply brings the hymn to an end:

But see! the Virgin blest
Hath laid her Babe to rest,
Time is our tedious song should here have ending:
Heaven’s youngest-teemèd star
Hath fixed her polished car,
Her sleeping Lord with handmaid lamp attending;
And all about the courtly stable
Bright-harnessed Angels sit in order serviceable.

That’s my favourite bit. I can feel the music left hanging in the air. It’s just so neat!

Not that I believe in the Christian parts any more than the pagan ones, but happy Xmas to any readers, all the same.

Christmas is coming

December 21, 2008

“I can’t wait to get out of this city” said the salesperson late Saturday afternoon in Gleebooks, where I’d gone to make the first of my not very numerous Christmas present purchases.

Judging from the state of the streets as I cycled there, quite a lot of people have already got out. At our house, we are doing our best to reverse the trend. My younger sister and nephew have come from WA, my elder sister has come from London, and my father will be here for Christmas from Canberra.

With D, my younger sister and my nephew, Mq, we went to Priscilla the Musical on Friday. As my nephew is only 8, we’re not quite sure how much of this he really got, though there were only two moments, both involving Adam/Felicia, that my sister felt a bit nervous about – the first a rather raunchy dance when he first appears, and the second where he is almost raped at Coober Pedy. My sister shaded Mq’s eyes for a moment, though it didn’t turn out to be as bad as she feared.

Mq thought the funniest bit was when the locals wrote “Fuck off faggots” on the bus at Broken Hill. I expect Mq knows it’s rude (and hence, for a kid, funny) but doesn’t realise that it’s offensive. Mq also thought that Tony Sheldon, as Bernadette, was a “real woman, not like the other two.” That’s probably because s/he was always in drag. There was a bit of a pause after I put him right about Bernadette: I think he was probably trying to make sense of the relationship between Bernadette and Bill Hunter’s character. Mq sometimes calls D “uncle D” (I am always uncle [Marcellous]) but it’s not a matter where we go into any particular detail.

It’s a show I could see again, only I can’t, because it either finished last night (as some online comments suggest) or is finishing today. James Waites has written a very informative background piece/review, which is part of what prompted me finally to go before the run finished.

I did toy with taking Mq to see Cav & Pag or at least one or the other of them next month (unfortunately, they leave before The Magic Flute opens) but judging from his response to Priscilla I think that’s a luxury which might as well wait until the next time they come to Sydney, when he has a better chance of understanding what’s going on.

Earlier in the week, I had a rare (for me) trip to a suburban Local Court. There were two courts sitting: the other was taken up entirely with Children’s Court matters. My own matter languished in the list all morning, whilst the magistrate dealt with the pleas of guilty, before my self-represented opponent was ultimately successful in obtaining an adjournment.

I have had a relapse on the smoking front and went outside from time to time for a “breath of fresh air.” The bulk of my companions were the assorted “young offenders.” (Inverted commas denote possible “allegations.”) It was a sunny morning; I don’t think I would want to meet any of them on a dark night. I can’t say that their bravado or their demeanour generally inspired me with any optimism about their futures at all.

Definitely I am getting old.

Hopes dashed – a grey day

December 11, 2008

p1010014

For a while I have been sniffing around for a new camera. I thought I had found what I wanted, but it was not to be had anywhere. Yesterday I got a call from the shop: they had it. This morning, I went and bought it.

I don’t rush into these things. D is always complaining about this. It took me months to make my mind up about a new bike. I have been thinking about a new camera for more than six months. I decided on this one about a month ago. I was as pleased as punch finally to get it.

I charged the battery. I was too impatient to wait till it was fully charged. I connected the lense cap. I took two pictures. I plugged the camera into the computer to look at the photos on a larger screen. They looked good. Then I put the battery back into the recharger to be charged some more. The camera was still plugged into the computer.

Then, I can’t remember exactly why, my foot caught at the cable connecting the camera to the computer and the camera snapped to the floor with a terrible smash.

I picked the camera up, and went on with whatever I was doing which had caused my foot to catch the cable. I went to lunch. Reckoning the battery must now be fully charged, I put it back in, ready to try the camera out a little more and see what I could make of the instructions.

Disaster! The LCD screen was broken. I still had work to do and so I will have to take the camera to the repairer tomorrow, but clearly this is my own fault. It’s not a matter for warranty. In any event, the nuisance value and disappointment would be the same.

This is the only picture I can show for now. It’s the view from my window without the sunset. The other picture gives a better idea of the camera’s capabilities, but as it includes a screen shot of confidential correspondence, I can’t post it here.

This is not my first bad experience with technology in recent days. On Monday night, when I came home from David and Jonathan, I accidentally put my (still off) mobile phone into the wash with my jeans. I found it, electrically glowing in the warm water, after I had exhausted all other possible locations and stopped the cycle and opened the front door to check. I’m hoping it will dry out but my expectations are not high.

I wish I could blame anybody but myself, but I can’t.

Briefly noted

December 11, 2008

Last Saturday I went to hear the SSO with Diana Doherty and Lothar Zagrosek. The program hardly have been more popular. It was:

BEETHOVEN
Symphony No.1
MOZART
Oboe Concerto in C, K314
SCHUBERT
Symphony No.6 (Little C Major)

Of these, I know the Mozart in its flute, D major version best. My elder sister was a flautist and we heard it very very often at home (J-P Rampal/Erato recording, almost certainly). I also accompanied her in it at an age when music imprinting sets in deep.

As I have mentioned before, I sit in the middle of a bunch of South Africans. There was an empty chair at the back of the second violins in memory of Pieter Bersée, a member of the section of some years’ standing who died suddenly in November. My neighbour asked a number of his friends, more than once, “Is that Elijah’s chair?” He was obviously pleased with this joke.

The hall was almost full. One of the same neighbour’s friends from the row in front turned to him and commented on this: “You see, put on some good music and the people will come. Why don’t they learn?’ In fact, I think the full house owed almost as much to the presence of the enormous cruise ship, Millenium, at the Overseas Terminal at Circular Quay. That would be a very nice kind of holiday – coming into harbour on your ship, strolling round the quay to the world famous opera house, and hearing a not too difficult concert. There was a lot of clapping between movements.

On Sunday, on impulse, I rushed off to the Chauvel to see La Damnation de Faust – one of the series of Metropolitan Opera HD broadcasts being screened (in this case, delayed) in cinemas. This was my first time at one of these. The production, directed by Robert Lepage, was technologically innovative and spectacular, mounted on an enormous vertical scaffolding grid with front and back-projection for the scenic detail. We can’t do opera like that in Sydney.

The shine was taken off it by the inattentiveness of the projectionist for the second half, who managed first to choose an image size which left off the subtitles from the bottom of the screen, and even after (when a few people finally left the cinema to bring it to the management’s attention) managed to adjust the picture so that every head shot cropped the singer off at about the eye line. I then went out and asked for a further adjustment, which was grudgingly and still insufficiently made so that we at least got to see the singers’ eyebrows, but still missed about the top 5% of the frame. The sound system was adequate, though often too loud and without sufficient air around the big moments, especially the singing of the chorus. If I go again I might see if Cremorne, where these films also screen, is any better.

As a footnote to another topic, Susan Graham was Marguerite. We saw a bit of her in Sydney when she and Edo de Waart were an item, but don’t recall that being publically disclosed at the time.

After that I went to Coogee for my first sea bathe of this summer, at Wiley’s Baths. I love this place because I hate sand (which it lacks) and because there are clean changing sheds with hot showers. Clovelly, the other non-sand option, conspicuously lacks these since the lifesavers took over the original changing sheds for themselves and a dark and grubby new changing shed was built behind the kiosk, though provided you are relaxed about the stormwater drain which feeds into it Clovelly does offer a greater variety by far of aquatic life. The [sea] water was an entirely reasonable 20 degrees (Celsius, that is).

Monday, to work, though not much on. I left early and rode into a tremendous downpour in order to have a nap prior to going to the last night of David and Jonathan. To cap it all off, I then got a flat tyre, which on the wet road was quite a scary experience. A very helpful subcontinental taxi driver with a station wagon drove me home. There are lots of drivers who, seeing a cyclist in wet weather, might well not have stopped, so I was grateful to him.

So I feel all the worse about my failure to stop when I witnessed an accident right before my eyes as I drove over ANZAC bridge on the way in. A taxi was in front of me, going rather slowly, though probably just under the speed limit, up the incline of the bridge. With hindsight, the tell-tale signs were there that he was getting ready to change lanes – though arguably going slower is precisely the wrong way to approach this.

I was just saying to myself “What on earth are you doing?” when the taxi edged into the left lane, bouncing off the crash barrier two or three times a little Smart car that I had previously admired at the traffic lights as we both waited to get on to the Westlink. It must have all been over in 3 to 5 seconds, at the most. The terrible thing was that I saw it coming. Could I have stopped it had I blown my horn? Probably not. For one thing, the horn on my car is pretty pathetic. Of course I lacked the presence of mind even to think of this: I was worried for myself. As the accident unfolded before me, I slowed down, hoping nobody would run up my rear and and that neither car would bounce off against mine and set off some larger accident. Then, as the taxi pulled over in front of the Smart car(both cars were by now undrivable I think: though that is hard to tell) and ran back to the other car, I kept driving.

I saw some other cars stopped to help, and I don’t see that my presence would have added anything but more obstruction. The question of who was at fault would have been self-evident. But all of this reasoning is suspiciously self-serving, because of course I did not want to be late to the opera, and I had a friend waiting for my spare ticket (D has been called away from Sydney for work).

As to D&J, I’ve so far over-run the limits of briefly noting that, like another blogger, I’ll have to defer anything more I have to say (if anything) to another post on the subject.

R v Wood – 2 – the Golden Thread

December 10, 2008

In today’s SMH, touted as an “exclusive,” is an interview with a juror.

In it we learn that:

BEFORE the jurors went in to deliver their verdict on the fate of Gordon Wood, the import of what they were about to do weighed heavily on them, three were crying and the foreman had tears in his eyes.

and

Angry at the way the jury’s verdict has been disparaged by Wood’s family and supporters, the juror contacted the Herald to say that the jury had taken their oath very seriously and that they had gone into the trial thinking that Wood was an innocent man.

Wood’s family’s suggestion that the jury had been influenced by previous media reports over the years was not right, the juror said. “Half the members of the jury were still at school when this happened,” the person said.

I can understand why the juror feels affronted by criticisms of the verdict, but I’m not sure that speaking out in this way makes things any better. And of course the press coverage has not only been at the time of Caroline Byrne’s death.

Wood was not only guilty of the murder of Caroline Byrne, but half the jury thought that the murder was premeditated, a juror has told the Herald.

What’s the betting that this juror was one of that half? But it is the following statement which intrigues me:

The juror said that at the end of the case there was no suggestion by any juror that Wood was innocent and should be acquitted.

You have to allow for the reporting process, but if this is what the juror actually said to Ms McClymont, then that’s at least one juror who doesn’t quite seem to have understood reasonable doubt. A juror doesn’t have to believe that the accused is innocent to vote to acquit, but rather that there is a reasonable doubt that the accused might be not be guilty. It’s because of this that, when I read the report of Justice Barr’s summing up, I felt some disquiet about this part, as reported, also in the Herald, and also by their very experienced reporter, Kate McClymont:

Justice Barr said it would be understandable for the jury to feel sympathetic towards Tony Byrne and his children, especially given the “tragic life” of Mr Byrne’s wife, who committed suicide in 1991.

He also said that the jury might feel sympathetic towards Wood as he had had this matter weigh over him for so many years. However, the jury owed it to both parties and to the public to “judge dispassionately”.

Maybe I’m soft-hearted, but to me that understates a juror’s duty to consider reasonable doubt, even if that leads to a hung jury and no verdict at all.

Simpsons’ child pornography

December 9, 2008

As has been widely reported, Justice Adams in the NSW Supreme Court has held that “an internet cartoon in which lookalike child characters from The Simpsons engage in sexual acts is child pornography.”

Actually, that is not quite true. Justice Adams has held that the internet cartoon was not not child pornography by reason of it not representing a “person.” That is because the case he heard was an appeal from a Magistrate Favretto in the Local Court, who held that the images were child pornography, and sentenced a Mr McEwen to fines of $2,000 and $1,000 for parallel state and commonwealth offences and ordered him to enter into good behaviour bonds for two years.

Basically, despite first saying that the difference between animated depictions and performances by actual people was not simply a matter of degree, his Honour then held that nevertheless, because pornography as defined in the statute includes depictions or descriptions of fictional persons, and the commonwealth statute actually makes express reference to cartoons, it really is a matter of degree, or at least a question of fact, whether the representation is a representation of a person, even a fictional person. Because it was a question of fact, the magistrate’s decision stood.

Now, before you go rushing off to search the internet for these cartoons so that you can judge for yourself, let me warn you that if you so much as look at them you will (subject to some possible statutory defences) be committing an offence of using a carriage service to access them. Mr McEwen was also convicted of these offences. If you then copy them to your computer, you will then face a charge of possession as he did.

This is a very depressing case. The case reported yesterday of the man charged with uploading child abuse material because he uploaded a widely-circulated baby-swinging video (which he didn’t make but just found on the internet) is another example of the same sort of thing.

In their determination to stamp out child pornography and child sexual and other abuse, parliaments have enacted extraordinarily wide “catch-all” provisions. Politicians may have thought that these provisions are necessary, a bit like anti-avoidance provisions in the Tax Act, to meet a wide range of possibilities, but these are then being interpreted and enforced literally, to the hilt and beyond, and with a prosecutorial zeal which seems, to me at least, totally out of proportion.

For this, I principally blame the police and prosecutors. But, quite frankly, that is the mindset of the prosecutor, and prosecutors were ever thus. This means that something really needs to be done about the laws. Given the current moral climate, however, change or even legislative second thoughts seem unlikely. That’s what’s depressing.

Mary Stuart at the Ensemble

December 7, 2008

“Does she get her gear off?” asked my friend, Sx, who for many years supplemented his earnings as a solicitor with a gig as a barman at the Ensemble Theatre, when I rang him and told him I was going there to see Greta Scacchi as Elizabeth in Schiller’s Mary Stuart. “She’s famous for it. She’s always getting her gear off. You should call out and demand it.”

I didn’t, and she didn’t. Indeed, it would have been rather difficult for her to do so, as she had quite an elaborate outfit which Kevin Jackson has speculated must have blown nearly all the costume budget for the production.

I think it is quite possible that Mr Jackson is the same Kevin Jackson who was a tutor when I attended a summer school put on in 1974 at the then NIDA by the Australian Theatre for Young People. If so, he looks a bit older now, as of course do I.

I’m prompted to such reminiscence because it is at a another theatre-education function presented by Hayes Gordon at the Ensemble in 1972 that I remember first meeting Neil Armfield and Alan John, then both at Homebush Boys High. This is just about the sum of my claim to theatrical fame, even vicariously, apart from my season in Barber of Seville. Some years later, Neil Armfield wrote me out of a minor part in Bartholomew Fair at the University of Sydney when I didn’t turn up to enough rehearsals. I couldn’t see why I had to do all those warm-up exercises when I only had about 5 lines, and there were other distractions: my commitment to the craft was not strong enough.

I thought of this when standing outside the theatre prior to the performance. Kirribilli has moved up a bit in the world since then. It is a most enchanting spot.

But I digress.

Mr Jackson thought the production a travesty. Not having seen it before, and so with less to judge it by, I wouldn’t be quite so hard on it. Most of his criticisms are accurate, though I thought some of the supporting characters, and in particular Patrick Dickson, as Leicester, were better than he allowed. He does say that he only saw a preview.

In fact, I wasn’t so sure about Greta Scacchi as Elizabeth. What was, I think, intended to depict a kind of superannuated girlish charm with which she flirtatiously ruled her court came across as more broadly comical than seemed quite right. I wonder if this was a result of it being very late in the run when, judging by the house, the success had not been overwhelming.

However, it was an opportunity to see a great work (albeit truncated though perhaps thankfully so) that I am glad I took.  We see more Schiller on the opera stage (I Masnadieri, Don Carlos and of course Maria Stuarda) than in the theatre in Sydney.

There were 9 actors (some characters in Schiller’s original are eliminated and others are doubled up) and an audience of, I guess, about 70-75. The maximum capacity of the theatre is only 110. How can the Ensemble do it? Obviously the production was on any view a loss leader. It also cannot have been easy to maintain the necessary high drama when more than just intermittently the booming bass rhythms and even some party screaming from the adjacent Sydney Flying Squadron intruded on the performance.

Actually, I was rather shocked by that. How can the Ensemble run a theatre with such noisy neighbours? Perhaps this was worse than usual – judging from the bar’s advertised opening hours, this may have been a seasonal exception. I found it totally unacceptable. Before I went to the Ensemble again (maybe in another 20 years; maybe sooner) I would for my own protection feel obliged to ring the Sydney Flying Squadron and ask them if they’ve got anything planned for the evening.

Papers referred 2

December 4, 2008

In his recent decision Chen v Zhang Justice Rein has struggled with some rather complicated sets of facts as well as a lot of Chinese names in a case involving a claim by Mr (“Peter”) Chen to ownership of “a business known as “Heaven on Earth”, a Chinese Karaoke restaurant and “hostess” lounge, as it was described, at Crows Nest.”

It was Mr Chen’s case that he had initially held 20% of the business and had purchased an additional 50% share in about October 2006 for $130,000. For various reasons which he advanced, mostly to do with requirements for a liquor licence and his capacity to give security for a guarantee of the lease, he said that the lease for the business and the business itself were put in the name of a company, Global Goldstar Pty Ltd, which was owned by Shun Xuan (William) Zhang, who was the brother of his longstanding friend, Wei (Vincent) Zhang. It was Mr (Peter) Chen’s case that William was to receive a payment for the use of his company, including for his giving a guarantee to secure the lease. Chen’s wife, Carol Liu, remained involved in the management of the business up to July 2008. At this point, she was excluded from the operation of the business.

The Zhangs’ case was that the business was theirs, and that they had sacked Ms Liu when they found that she was taking more than the $1,000 per week which they said she was entitled to be paid.

The judge clearly thought that the real reason that the business was put in the hands of Global and the Zhangs was that at the time Chen said he bought the additional share in the business, he was facing charges of money laundering and investigation under proceeds of crime legislation. This was in relation to a series of what were ultimately found to be 333 international money transfer transactions from 14 January 2003 to 4 November 2003 transferring various amounts of money, all less than $10,000, in cash and totalling $3,088,311 in all, to the accounts of six people, one of whom was his brother, at four banks in Hong Kong with the apparent intention of avoiding paying income tax on that money. On 27 March 2008 Chen received a swingeing sentence for this of fifteen years six months ten days (which was a reduction already after taking into account eleven months twenty days spent on remand) and a non-parole sentence of nine years six months ten days from 22 October 2007 (when he was found guilty) to 1 May 2017.

At the time Chen claimed to have purchased the business in October 2006, he had already been charged, and was facing requirements to provide affidavits of his assets and liabilities under the proceeds of crime legislation. In February 2007 Chen provided such an affidavit. That affidavit did not refer to any interest in the business, and nor did it include some other liabilities which were relevant to his account as to how he acquired the business.

Mr Chen said that this was because the affidavit only had to deal with his assets as at 18 October 2006, because the requirement to file the affidavit related to a claim by a Mr Au to the return of a sum of $130,000 found by Australian Federal Police in a vehicle driven by Mr Au and in which Peter was a passenger and seized by them. The judge didn’t buy this.

The Zhangs said that the fact that Mr Chen didn’t mention his interest was because he didn’t own any share in the business. The judge wasn’t so sure about that either.

There is a lot more detail in the judgment which if you are interested you will have to read yourself.

His Honour was not convinced by any of the critical witnesses on either side:

There were a number of aspects of the evidence of each of Peter, Carol, Ms Kuen [Peter’s sister, who he said had lent him money], William and Vincent which make it difficult to accept their credibility. I was left with the impression that they have each endeavoured to present a version of events that avoids the truth, because, for differing reasons, the truth is uncomfortable for them.

Whoever owned the business, the proceedings exposed that double accounts had been maintained and that large amounts of money had been taken out of the business which had not been disclosed to the relevant authorities, including (no surprise here) the tax office. There were also questions of whether the arrangement was entered into to conceal the involvement of Mr Chen, who had a criminal record, from the liquor licencing authorities.

71 Given that neither Peter, on the one hand, or the Zhangs on the other, assert that what was done was part of a scheme to permit Peter to retain his interest but to avoid the business falling under the scrutiny of or within the grasp of authorities, or to preclude rejection or termination of the liquor license, I am left with two competing versions of events as to what occurred, neither of which, in my view, is supported by credible evidence. The plaintiff bears the onus of proof and has failed to establish the agreement asserted. In my view, the plaintiff’s summons should be dismissed.
72 If I had been persuaded that an agreement was reached between Peter and William in the terms alleged by Peter, then, in my view the obvious inference and the one which I would draw, is that it was made in an endeavour to hide Peter’s involvement in the business in order to avoid the prospect of scrutiny and possible seizure of assets by the AFP/ACC and to enable the business to obtain and retain a liquor license that would not have been able to be obtained or retained, had his involvement been disclosed. In my view, the Court should not grant equitable relief in such circumstances: see the discussion in Meagher, Gummow & Lehane’s Equity Doctrines and Remedies (4th edn) 3:110-135 and Kettle and Gas Appliances Ltd v Anthony Hordern and Sons Ltd (1934) 35 SR (NSW) 108, 51 WN (NSW) 190 per Long Innes J, p 93, which although dealing with a different type of case, provides an example of misconduct or deception that will suffice to enliven the operation of the maxim. This lack of “clean hands” or illegality argument was not advanced by the defendant (it is inconsistent with their version of what occurred) but I raised the point during the hearing and in my view it is not dependent on the position taken by the defendant for their own forensic reasons. Mr Gracie argued that to preclude relief would leave the business in the hands of a wrongdoer and that referral of the matters to the relevant authorities would suffice. I do not accept that the Court, exercising its equitable jurisdiction, should grant relief where a party has entered upon a scheme of deliberate deception of public authorities.

But this did not mean that the defendants should get off scot-free:

75 It seems clear on the balance of probabilities that Peter has not provided full details of his assets and liabilities to this Court, and to the AFP or ACC even on his evidence, because he says he owed his sister a further $117,0000 as at 27 February 2007. From the copy of the taxation return of Global in evidence, and Exhibits including H, 9 and 10, it appears that Global may not have declared all of its earnings to the Australian Taxation Office and it is possible on Carol’s evidence that insufficient payroll tax has been paid by Global in respect of wages. I think that the evidence of William and Vincent concerning the deposit of $46,000 in five separate payments raises issues as to possible breaches of the Financial Reporting legislation. I direct the Registrar to provide a copy of this judgment to:
(1) the Australian Federal Police
(2) the Australian Crime Commission
(3) the Australian Taxation Office
(4) the Registrar of the Liquor Licensing Court
(5) the Office of State Revenue (in relation to possible payroll tax issues)
so that these matters can be investigated, should the relevant authorities regard that as appropriate.

76 I direct that Exhibits be held by the Court for a period of six months to allow any of the above authorities to make applications to the Court for access to the documents.

Note about money laundering sentences

Mr Chen is appealing the money-laundering conviction. [Postscript: the appeal, including an appeal against the sentence, has since been dismissed.] As to that stiff sentence, the reasons for this can be followed up in the Court of Criminal Appeal’s judgment in a rare crown appeal against the sentence dished out to the subordinate who actually carried out the transactions. In this they increased the sentence at first instance of 3 years (one year and nine months non-parole) to five and a half years with 3 years and 4 months non-parole. The offence hinges around knowing or being reckless that the funds are to be an instrument of crime. If the crime in question is tax evasion (Mr Chen had a legitimate business exporting seafood, in particular abalone, to Asia, and the subordinate at least was sentenced on the basis that he believed that this was the source of the funds) then these sentences for money laundering seem pretty stiff in comparison to the actual sentences that are generally dished out for tax offences themselves, let alone other white collar crimes involving much larger amounts of money.

For further explanation of the title of this post, see Papers referred.

Further postscript:

This is more a nuts and bolts point from the perspective of a practitioner and the perrennial problem of being paid.

Mr Chen also appealed Rein J’s decision, unsuccessfully, as it turned out. This morphed into a disciplinary complaint against his solicitor, brought following a complaint by his barrister, who wasn’t paid for the appeal (Ms Liu ducked out of the appeal hearing at lunch time, ostensibly to get a cheque from the Bank, but never returned) which was ultimately dismissed in August 2012. It doesn’t look as if the solicitor got paid at all, as the money which was paid into trust at the start to pay the costs of the trial at first instance all went to the barrister, and the appeal thereafter seems to have been conducted on spec.