Archive for March, 2009

They fuck you up…

March 23, 2009

The latest issue of the South Sydney Herald, which I picked up in Glebe the other day when dropping off my bike to be serviced, has a number of ads from Adults Surviving Childhood Abuse.

Some of these ads have also been run on television, and you may have seen them: the father-of-the-bride speech with the “joke” (in fact all too true) by the father that after having sex with his daughter, the first thing he said was “Don’t tell your mother.” Or (and it was the print version of this which caught my eye) a bloke cheerfully doing the ironing whilst wearing a t-shirt saying “My ‘Uncle’ raped me when I was 8 and all I got was this lousy t-shirt.”

At the bottom of the ad and another print ad in the same magazine is what is presumably thought to be the second punchline (once attention has been grabbed by the t-shirt) and the message:

IF ONLY IT WAS THIS EASY TO GET OVER CHILD ABUSE
FOR MORE THAN TWO MILLION AUSTRALIANS IT ISN’T

(They don’t do subjunctive in ad-land.)

At the ASCA site there is some explication of this statistic:

Statistics on Australian adults surviving child abuse: In 2008 an Australian University-initiated study of over 21 thousand older Australians, the largest of its kind to date found that over 13% reported having been sexually or physically abused in childhood. These figures did not include those emotionally abused or neglected or forced to live with family violence. In an earlier study from 2005, a personal safety survey conducted by the Australian Bureau of Statistics 18% of people over 18 reported having experienced physical or sexual abuse before the age of 15. Emotional abuse, neglect and being forced to live with family violence were excluded yet again. Australia’s current population is around 21.5 million. So as you can see 10% of this number exceeds the 2 million we have used- let alone if we used the real percentages from these studies and added the additional figures from the forms of abuse and neglect not considered by them. The figure is more likely to be double that quoted.

We’ve all heard statistics like this in the past. I always wonder to what extent they lump together minor and major incidents, and isolated and sustained abuse. If child abuse really as common as all that (note that ASCA wants to bump the figure up to 20% of the population), then a lot of people are going to have to learn to get over it, because there just isn’t enough counselling to go round so many. My own suspicion is that in fact a lot of people do learn to “get over it,” at least when the incidents were relatively minor or isolated. Admittedly, I may be generalising from my own experiences: I suffered much worse and more harmful abuse from my fellow children on account of my sissiness than from any adult, and I expect this is so for many gay men.

The first study referred to by ASCA is presumably the one summarised here:

OBJECTIVES: To determine whether childhood physical and sexual abuse are associated with poor mental and physical health outcomes in older age. DESIGN: Cross-sectional, postal questionnaire survey. SETTING: Medical clinics of 383 general practitioners (GPs) in Australia. PARTICIPANTS: More than 21,000 older adults (aged >60) currently under the care of GPs participating in the Depression and Early Prevention of Suicide in General Practice (DEPS-GP) Study. Participants were divided into two groups according to whether they acknowledged experiencing childhood physical or sexual abuse. MEASUREMENTS: Main outcome measures targeted participants’ current physical health (Medical Outcomes Study 12-item Short Form Survey, Version 2 and Common Medical Morbidities Inventory) and mental health (Patient Health Questionnaire-9 and Hospital Anxiety and Depression Scale). RESULTS: One thousand four hundred fifty-eight (6.7%) and 1,429 participants (6.5%) reported childhood physical and sexual abuse, respectively. Multivariate models of the associations with childhood abuse indicated that participants who had experienced either childhood sexual or physical abuse had a greater risk of poor physical (odds ratio (OR) = 1.35, 95% confidence interval (CI) = 1.21-1.50) and mental (OR = 1.89, 95% CI = 1.63-2.19) health, after adjustments. Older adults who reported both childhood sexual and physical abuse also had a higher risk of poor physical (OR = 1.60, 95% CI = 1.33-1.92) and mental (OR = 2.40, 95% CI = 1.97-2.94) health. CONCLUSION: The effects of childhood abuse appear to last a lifetime. Further research is required to improve understanding of the pathways that lead to such deleterious outcomes and ways to minimize its late-life effects.
Revue / Journal Title
Journal of the American Geriatrics Society ISSN 0002-8614
2008, vol. 56, no2, pp. 262-271 [10 page(s) (article)] (36 ref.)

When I read that, it isn’t clear that the two figures for physical and sexual abuse are mutually exclusive categories, so it may not be correct to add 6.7% and 6.5% and get “over 13%” as ASCA does, and it is far from clear that all of those 13% reported problems as a result of this, as opposed to the higher risks (OR) referred to. So, in other words, I think the second line of the punchline, “for over two million Australians,” is an exaggeration, even though it is undeniable that the effects of childhood abuse can persist throughout people’s lives.

The figure which ASCA purports to get from the ABS also seems to add together figures which must count the same people twice. The figures I have found, on a cursory search, are:

9.4% of men and 10% of women experienced physical abuse before the age of 15 years.
4.5% of men and 12% of women were sexually abused before the age of 15 years.

In the meantime, in the Supreme Court of NSW, well-known-softy Justice David Kirby (probably now just Justice Kirby now that his brother is off the bench) has extended the limitation period to allow CG, now aged 28, to sue her father and her uncle for some pretty horrendous sexual abuse which she experienced as a child between the ages of 4 and 11.

At least as against her father, it is undeniable that some abuse occurred, as he pleaded guilty to two counts in November 2006. The uncle didn’t commit the abuse. He was told of it when CG was about 6, after she had told her sister about it, after which he and the mother intervened in some way with the result that (CG said) the abuse stopped for about a year (and then it resumed). There were some of the familiar sequelae:

16 During the period of abuse and after, [CG] found it difficult to concentrate at school. Her behaviour deteriorated once she went to High School. She began to associate with an older group. She smoked cigarettes and soon became addicted. By the age of 12 she was regularly using alcohol and cannabis. She began to truant. Unsurprisingly, her school results were poor. She was repeatedly suspended and ultimately expelled. Dr Pickering recorded the following history, providing her reasons for such behaviour: (p 3/4)

“ … if she was not under the influence of some substance, she felt stressed and agitated, and more importantly she could not stop herself thinking about the abuse. Attempts to block these thoughts therefore became the central theme of her (existence) through this period of time. Indeed, [CG] stated that through her life she has been trying to feel ‘normal’ and to do so she needed either to be under the influence of some substance or to have something that was strongly distracting.”

17 Having left school, Ms G. began part time work in a veterinary clinic. She had had, by that time, a number of sexual partners, usually much older. One partner introduced her to heroin. She then lost her job because of drug use. Her boyfriend was arrested for armed robbery and imprisoned. She was, by that time, injecting heroin. By the age of 18 she began working as a prostitute. She also resorted to crime, in association with other prostitutes. She was charged with robbery in company after snatching a bag, and also for stealing a motor vehicle and the possession of a prohibited drug. She was placed on probation for 12 months and required to undergo counselling at the Juvenile Justice Centre in Blacktown.
18 Her drug taking reached the point where her family intervened, apparently on the initiative of her sister who contacted her uncle. In mid September 1999, her uncle arranged for her to enter a 24 hour detox programme with The Poplars Hospital at North Epping. Upon discharge, she was provided with various medications, including Naltrexone, which she took for seven months. The treatment was ultimately successful, although she replaced her addiction to heroin with heavy alcohol consumption and cannabis. She gave the following history to Dr Lisa Brown: (p 7)

“Ms G. said that … she used both of these substances for their calming effect and also because it distracted her from thinking about her past experiences of abuse.”

19 During the period that she was taking Naltrexone, [CG] lived with her parents on the south coast She felt uncomfortable in doing so, but had no choice. She was destitute. During 1999 to 2001 she occasionally worked, mainly as a cleaner. She described herself as having many brief sexual encounters, “one night stands”, and as a result of one she became pregnant. Her daughter, Jessica, was born in July 2001.
20 By the time of Jessica’s birth, [CG] had met her boyfriend, Glenn. Glenn urged her to move out of her parents’ home. At about this time, she had the following realisation, which she described to Dr Lisa Brown: (p 8)

“When her daughter was around three months of age, [CG] said that she experienced the realisation when looking at her father holding the baby that there were possible risks to her daughter of being sexually abused by her father.”

21 Ms G. disclosed these concerns to an early childhood nurse, who contacted DOCS. Soon thereafter, Ms G. moved out of her parents’ home, as her boyfriend had been urging. She was able to satisfy DOCS that the child was not at risk. She did not see her father.
22 Ms G.’s boyfriend also urged her to report her father’s sexual abuse to the police. Her sisters had also been abused. She therefore sought their support. The older sister was said to be too fragile to provide such support. The other sister aligned herself with her mother.
23 On 5 June 2003, Ms G. did report the matter to the police. She described how she was passing a police station and made a “spur of the moment decision” (Dr Brown: p 11). She felt that if she did not do it immediately, she would avoid it, possibly indefinitely. Over the months that followed, she saw the police a number of times. On 17 November 2003, she signed a statement that formed the basis of the prosecution of her father on two counts of indecent assault of a person under the age of 16 years under his authority.

Usually, you have until you are 18, and then 6 years after that, to sue for a wrong done to you in your childhood. If you are suing in relation to a personal injury which was caused negligently or as a result of nuisance or breach of duty, a shorter period of three years applies. However, there is provision in the Limitations Act for the clock to be stopped for any period when you are under a disability. CG’s uncle said (or to be more precise, his insurer’s lawyers said, as to which more below) that, if CG could give a statement to the police, then she could have gone to her lawyers, so that even if the clock was stopped after she was 18 until then, it in any event started running in 2003 so that the proceedings, brought in 2008, were out of time. (At first they assumed that a 6-year period applied, and so latched onto the time when CG told the nurse about the abuse and her fears for her daughter which led to her moving out of her parents’ house.) CG said, and Kirby J accepted, that it was not until she heard her father plead guilty in the District Court at Nowra in November 2006 that the weight was lifted from her so that she was able to go and see lawyers about suing anyone. As a result, the clock was “stopped” until then, so that the action was brought in time.

It is a terrible story, but it is hard to know exactly how this case is going to make anything better. Well, some money will help CG, but this will presumably be at the cost of impoverishing her mother (assuming she lives in a house jointly owned with the father, who is now in gaol) and also, indirectly, taking money away from both her sisters who, according to CG, were also abused. It does not seem possible for a parent, being sued directly or indirectly in this way to bring into account whatever benefits they have provided to their child.

The [maternal] uncle is being sued because CG says that he “acted as the family medical practitioner, writing prescriptions when they were needed and performing similar tasks.” This may be the case, but it may also be disputed: how many avuncular prescriptions make you the family medical practitioner? He is being sued for negligence and breach of statutory duty, namely, a failure to report as required by s 148B(3) of the Child Welfare Act 1939. I expect it is the deep pockets of his medical defence union which are thought to offer the prospect of gold at the end of the rainbow.

PS: the title of this post (for those few who may be unaware) comes from Philip Larkin.

Foiled!

March 18, 2009

As I have mentioned before , Opera Australia is a company limited by guarantee. You can become a member (akin to a shareholder) on signing the guarantee provided you are and for as long as you remain a shareholder. This entitles you to attend any general meetings and, amongst other things, to vote on the election of directors. Last year I attended the Opera Australia Annual General Meeting with the express intention of voting against Rowena Danziger’s re-election to the board. Shamefully, at the critical moment my nerve failed.

It is reasonable to assume that there may be a number of people who have been forming plans to attend this year’s annual general meeting and, at the very least, ask a few pointed questions. There are a few questions I would like to ask, such as what steps the company took (if any) to get reasonable attendances for Lady Macbeth of Mtsensk. Perhaps someone from the company has even read my own humble blog and anticipated that I too would turn up this year.

Since 1996 (the AGM after the OA took over the enterprise and assets and also, to be fair, liabilities of Opera Victoria), the meeting has been held in Sydney. Last year it was held on 22 May, and it has been held at about that time for a few years, so far as I am aware. It is likely that any people planning to attend or take part will have been anticipating a similarly timed and located meeting this year, particularly if they are rustling up any proxies and are in any way planning to attend in what might be thought of as a dissident capacity.

Yesterday, Dr Ziggy Switkowski, the chairman of the board, announced that this year’s meeting will be held in Melbourne on 9 April 2009 (which is Maundy Thursday). Thereafter (though obviously this is not binding and can be changed at will) the annual general meeting will alternate between Melbourne and Sydney.

There is, of course, good reason to offer Melbourne members a better opportunity (such as the AGM is, which is very little) to participate in the affairs of the company. Any advantage in heading off any trouble or embarrassment to the board could only be co-incidental.

Wasn’t that clever of them?

Hamburger Ensemble 2

March 16, 2009

On Saturday night to the Australia Ensemble.

This was the second time that day I had headed east along Gardiners Road. In the afternoon, I went to Wylie’s Baths for a swim. In between, the heavens opened and the box gutter at the back of our house spectacularly failed. There was another downpour in the first half of the concert. The John Clancy Auditorium is not acoustically rain-proof, and in the first half the music had to contend with the rumble of rain on the roof, as well as the occasional thunderclap.

Roger Covell appeared at a microphone just before the concert began to tell us that the new Steinway had arrived, by air [!], just the day before. He acknowledged the support of UNSW vice-chancellor Fred Hilmer. For all we know, Hilmer could have brought the piano back as part of his excess-baggage allowance.

We had to wait until the second half of the concert to hear it. The first half was:

Joseph HAYDN (1732-1809): String Quartet Opus 77 No.1 Hob. III:81 (1779) – 200th anniversary of the composer’s death

Brett DEAN (b 1961): Winter Songs for tenor voice flute (doubling piccolo and alto flute), oboe (doubling cor anglais), clarinet (doubling bass clarinet), bassoon and horn (2000)

P and I had a little laugh when the string quartet came on at the beginning of the concert. There was a whisper behind us and it was true, Irina Morozova has regained a little of the weight she shed about two years ago. She doesn’t look any the worse for that, though perhaps the dress she was wearing was acquired in the intervening leaner years.

I really enjoyed the Haydn. How can one not? – especially when played so well. Dene Olding emitted the odd little squeak, but that’s because he is a bit of a risk-taker. I sit close, so I could overcome the rumble of the rain by occasionally cupping a hand to my ear (it’s amazing the difference this makes, though I guess if you had bigger ears all the time you would just get used to it). When there was a thunder-clap, Dene made a little face and a kind of chuckle went through the audience: we were all in this together in a good-humoured Haydnesque kind of way.

As Thomasina has commented, the Dean, a setting of poems by e.e.cummings (Covell prefers “E.E.”) was more about the wind instruments than the singing or the poems. P felt the same, and I was forced to agree at interval that Serenade for tenor, horn & strings it ain’t. Paul McMahon, the tenor, had a bit of a thankless task getting wound up about dogshit in suburban slushy snow in the first movement; the second and third movements were stiller and more “poetic,” with the obligatory thoughtless cough half a second before the end as the importance of stillness was being proclaimed. It was even more of a shame than in the Haydn that the rain noises obscured the full character of some of the more novel wind writing.

At interval, the weather cleared, and Robert Johnson and Dene Olding returned with Ian Munro at the new piano for the Brahms Horn Trio.

In the pre-concert leaflet which is sent to all subscribers, Professor Covell went into not inconsiderable contortions to explain that, although Brahms specifically asked for a natural “Wald-” horn, Robert Johnson would be playing the modern variety. The long and the short of it was really that the modern horn is more reliable, and even that, God knows, is unreliable enough. (The piece itself is appreciably shorter than, say, the admittedly much later clarinet trio, which I take to be in part owing to Brahms’s recognitions of the difficulties facing the horn player.)

The downside of this, or so it seemed to me, is that the tone of the modern horn is thicker than the natural horn, though this is probably more a question of the bore than the mechanism or lack of it per se. The question of balance in such an ensemble is tricky enough, but I was left wondering if it would have been otherwise had a natural horn been used, especially in the first three movements, where the horn felt a bit like a bull in a china shop. Certainly, that’s not because of any failing by Robert Johnson: the recording I listened to beforehand also sounded this way. Only in the last movement, when everyone was letting rip, did the balance really feel comfortable.

And the new piano? P’s and my consensus was “very smooth,” but beyond that this was not really the piece to tell much. Maybe that’s the thing about Steinways. They are so the norm that it just sounded like “a piano.” Obviously, the action is regular, the tone consistent. I can imagine the low chords in the slow movement having a bit more air in them on the Stuart. There was a hint of more to come when Mr Munro allowed it to let loose a deep Rolls-Royce-ish kind roar a couple of times in the last movement, but for the rest we will really have to wait and hear.

Fashion notes

For the Haydn, Dene Olding sported the thick-framed spectacles which have also been a feature of his recent SSO appearances. Perhaps he and Richard Miller, the SSO’s timpanist, have been to the same optometrist recently. For the Brahms, he changed to another pair, possibly in order not to eclipse Ian Munro and Robert Johnson. Or could some broader principle of sympathy be at work here? I’m told that in the lengthy criminal trial to which I have referred before, the jurors have started synchronising the colours of their outfits from day to day.

It’s a bust

March 14, 2009

In today’s SMH (in fact the story was first published yesterday though a small detail about the identity of the school seems now to have been removed):

A 16-year-old charged with supplying drugs has been denied bail at Bidura Children[‘]s Court this morning after the magistrate expressed concern about the possibility of further offences.

We are told (emphasis added):

The boy’s inner-city school principal saw him arriving late for school about 11.30am yesterday and demanded to search his bag.

The boy gave permission and police allege the principal found 94 tablets, believed to be ecstasy, with an estimated street value of about $3000.

Tell me the boy had a choice.

This sort of statement instantly arouses my suspicion. In the first place, it inevitably comes from the police and then from the principal. That the police say this indicates that they know that there is an issue here.

There is a suppression order on the identity of the school which necessarily extends to the identity of the principal, but I have been told enough about the principal in question to raise considerable doubts in my mind. There is a discretion to exclude evidence which has been improperly obtained. Evidence obtained by an unlawful search would be such evidence, and there must be at least an argument that this extends to evidence obtained by a threat: obviously there is a range of at least implicit threats in the situation where a principal asks to search a boy’s bag. If he knew he had the drugs in the bag, why would he have agreed to the search? On the other hand, he might just have thought the game was up, and that he was inevitably “busted.”

It is true that in some circumstances (eg: “Who nicked Jones’s ruler?) teachers have some powers of search which arise from their position in loco parentis and their necessary power to impose discipline in a school, though the old cases about teachers’ powers to detain or administer corporal discipline may not all stand up to contemporary scrutiny. Given that the boy was just on his way into the school, it’s not clear whether the usual rationale for the power of search arose, and that the boy couldn’t have just turned around and run straight out, albeit that this may have meant that he could never return.

He may well now be wishing he had done so.

Where a teacher is using powers of search to obtain evidence of a serious criminal offence, that is such an extraordinary use of his loco parental power that arguably the teacher should not go further without securing the presence and specific authority of the parents. The NSW Department of Education has policies for this sort of thing, but the documents setting these out are kept in the decent obscurity of its intranet.

Brief notes

March 13, 2009

Last Friday night, to the SSO, Ashkenazy, Jansen, Dvořák violin concerto, Shostakovich 10 (possible nickname: “I will survive”). Full house. When Mr A announced that March 5 was the anniversary of Stalin’s death, some of the audience burst into applause. I instigated this, though I may not have been the only instigator. To be honest, I did it to liven things up and to get into the spirit of the occasion. It’s not that I don’t feel for those who were cheered by Stalin’s death but I’m probably still marginally glad he survived Hitler, even if he gave him a big hand with the deal over Poland first.

The other comical moment of the evening was when I looked more than once in search of my erstwhile neighbour from last year who has moved to the row behind, and kept catching instead the eye of a visitor, I guess from Singapore. I had stood behind him in the queue at the box office at the Mardi Gras film festival on one occasion and seen him at a few other sessions. I think he must have recognized me, because he kept giving me a very glad eye in return.

There was a shockingly ignorant burst of coughing from right at the front just 2 or 3 seconds before the end of the first movement of the Shostakovich which provoked what I took to be a sarcastic little bow from Mr Ashkenazy and, if they were hoping to record this for posterity, probably a few thousand dollars worth of patching time.

On Wednesday with D to Lady Macbeth of Mstensk. This is the opera that first got Shostakovich into hot water.

When we walked in I had a double take: where was the audience? My neighbour was told by the usher that they were expecting a house of 700, which is a little over 50%, and I suspect even that included an element of papering. There is an enormous orchestra (strings 12-10-7-7-5, I think – might have been only 10 first violins; 2 harps; 3 flutes/piccolos; 4 clarinets; extra brass; etc) and chorus (leavened with more than the usual number of body-beautiful non-singing male extras) and a sizeable cast of principals. My guess is perhaps 130 performers all-up, which economically speaking is hardly an encouraging ratio.

There have been comments elsewhere complaining about those who walk out: I blame much, much more the OA management for failing to take steps to fill the house. The production was always going to be a loss leader: that makes it all the more egregious that public money was wasted by leaving seats empty. Surely something could have been done to attract some of the crowd who went to hear the other end of the DEsCH-Stalin story the previous weekend?

It’s a terrific piece (uneven in parts, but far better than a curate’s egg) and I hope to find time to say more about it and maybe see it again (there are 4 more performances), so perhaps I have an interest in motivating AO to be more realistic about their pricing when there are so many seats going begging. Sir Richard Armstrong was fine but yes, I did miss Mr Hickox. D and I thought the onstage wanking a little overdone, and I thought the bevy of genuflecting babushkas at the father-in-law’s deathbed unnecessarily distracting.

It was a bit of a jolt to realise that it is almost 7 years since I last saw this. Where has the time gone? Perhaps it really is time I bought a new suit.

Thursday to the SSO’s 6.30 series which featured the Leipzig Thomanerchor. This was better than I expected (expecially so far as their capacity to sonically fill the hall was concerned) though there were times when the orchestra sounded more than it should have like a scratch band coming along for the ride – there is a certain Germanic briskness which they did not always catch.

I had been cynical in advance about the SSO palming this choir off on their 6.30 series audience, but it turned out to be a canny move to match the youthful performers and audience. Andrew Ford’s onstage commentary, especially introducing the Mendelssohn setting of Psalm 42 in the second half, was very well-judged, and offered food for thought to all (though perhaps some of his younger listeners might have needed a little more guidance about what he meant by “the bourgeoisie”).

Hamburger Ensemble

March 11, 2009

For some years now the Australia Ensemble has had a Stuart piano.

The Stuart piano is made by Wayne Stuart up at Newcastle (Australia). It purports to incorporate various technical innovations, and in particular a clearer sound and less murky harmonics.

It has been a quixotic point of resistance against the growing monoculture in concert grand pianos as a result of the hegemony of Steinway at the expense of other brands such as Bösendorfer or Bechstein. Perhaps it might be more accurate to say that there is a triopoly: Kawai and Yamaha hold some ground, but one suspects this is principally a question of price rather than any great differentiations in the sound and design of the piano.

I have played a Stuart piano once. It is hard to say much on such a limited experience, but my first feeling was that it was a difficult bugger to play, if only because it was different. Ian Munro, the pianist in the Australia Ensemble, has had more time to get used to it, but my guess is that he may still have been left cursing under his breath from time to time, especially if he was playing something where our aesthetic expectations are already Steinway pre-determined.

I have heard the Stuart piano on numerous occasions over the past few years. There are times when I miss the consistent and big creamy sound of a Steinway, expecially for late Romantic repertoire, but I have always appreciated the Stuart because of its distinctiveness, as well as its less overbearing sound in ensemble. I definitely prefer it in, say, Beethoven, Schubert, and even Schumann and Brahms.

Last year we were told that the Stuart piano was reaching the end of its useful concert life. This seems surprising because it is not as if the piano has had a punishing concert schedule. On the other hand because of its distinctiveness pianists have probably needed to practise more on that very piano than would otherwise be necessary.

The implication was that it was being rested and restored but that it would be back. The Ensemble now says in its latest newsletter:

In the meantime, the North Shore Sydney piano firm of Theme and Variations has been hiring us a Steinway grand piano on favourable terms for the Ensemble’s recent Saturday night concerts. The relationship blossomed in the latter part of last year into proposals for the purchase by UNSW of a new Steinway concert grand.

There is something just a little too unctuously poetic about that second sentence. I bet the relationship “blossomed” – the chance to slap down the upstart would have been too good to resist, and of course, on the part of Theme and Variations, the proposals were to sell a Steinway. T&V is the authorised Steinway dealer, and you can hardly blame them for that.

A new Steinway has been selected in Hamburg and is on its way. It may even be here this coming Saturday.

Well, this is all-too understandable, but disappointing. (It must be even more disappointing for Stuart and for Mr Albert of Albert & Sons who has backed Stuart and who in part donated the piano to UNSW for obvious promotional reasons. The Panglossian tone of the announcement may also rub some of the people involved in raising the remainder of the funds to purchase the Stuart up the wrong way.) It’s also sad that the piano is allowed to slink off without a proper and fair-and-square farewell. That’s for us, of course, not the instrument – I don’t take the pathetic fallacy so far.

An ideal solution would be to retain and maintain the Stuart for some repertoire (I really don’t think it was so totally clapped out as to be unuseable but, if so, to replace it with another Stuart) and use a new, probably Steinway, piano for the repertoire where it is the better choice. That is almost certainly a luxury that the ensemble cannot afford and that the university is not in a position to support.

Instead, pianistic quasi-biodiversity has taken another body blow.

He’s my hero

March 9, 2009

Kristian Bolwell is my hero.

Last July, he was dining at the Cooper’s Arms, a quite swankily done-up pub on the corner of Hordern Street and King Street in Newtown. Police arrived with sniffer dogs and proceeded to execute a sniffer-dog search of everybody present. Not exactly a pleasant turn of events when you are dining out, even if you have nothing to fear.

As Mr Bolwell later said:

“There were eight police and they sealed off the entrances, most stood by the doors and looked fairly mean….A group of them had one guy [Lee Besford] surrounded and it looked to me like they were being intimidating, so I asked if he needed legal advice.”

Mr Bolwell is a solicitor. He said he showed his solicitor’s identity card at the time.

Police weren’t happy about that. They never are. They hate witnesses, to coin a phrase. How can they go about their lawful business of harrassing and intimidating people on a random basis pursuant to their powers to execute sniffer-dog searches if pesky solicitors start popping up and offering people legal advice?

They knocked Mr Bolwell to the ground and pinioned him face-down, arrested him and charged him with hindering police, resisting police in execution of their duty and failure to obey a police direction.

Mr Bolwell sustained a cracked rib.

Senior Constable McCulloch, Constable Jones, Constable Healey, Constable Meyer and Constable Dunn [remember those names and smile and go quietly if you see them!] were all present at the hotel and testified during the trial at the Downing Centre.

During her testimony, Constable Dunn said Mr Bolwell “pushed past” police to approach Mr Besford and appeared “mildly intoxicated”. [Doh! He was at the pub!] Constables Chandler [who did not give evidence], Healey and herself all warned him to move away, she said, but he refused – claiming he was a solicitor. Constable Dunn said she saw Constable Healey trapped between some chairs and the accused – at which time Constable Healey tried to push Mr Bolwell away. But she said that Mr Bolwell resisted by using his body weight to push against Constable Healey. However, Constable Healey said Mr Bolwell “eased past him” and approached Mr Besford.

Local Court Magistrate Dr Gabriel Fleming found that there were inconsistencies in the evidence and that the security footage which was also tendered offered insufficient evidence that police were hindered from doing their duty. Subsequently all charges were dismissed and the police were ordered to pay Mr Bolwell’s legal fees.

I can’t say I would have had the courage to do what Mr Bolwell did. But then, unlike Mr Bolwell, I am not a former Greens parliamentary staffer and campaigner against arbitrary use of police powers, including random sniffer-dog searches like this.

Mr Bolwell has indicated he may be taking further proceedings against the police. This may be harder than beating the charges, because when you are a defendant to criminal charges you only have to raise a reasonable doubt, whereas to bring a civil case for assault or wrongful arrest the burden is considerably higher – you have to prove your case on the balance of probabilities and (in general terms) the police are allowed quite a lot of leeway – you have to establish that they acted without reasonable cause. It’s rare that anyone has a victory of the sort that Adam Houda had, and even in that case we haven’t heard that it has hurt the police officers’ careers at all.

Acting Superintendent of Newtown Local Area Command, Superintendent Matt Appleton, said:

“Dog operations are a legitimate and appropriate policing strategy [….] We are looking to attack the problem of drugs in the community and to keep the community safe.”

Greens MLC Sylvia Hale renewed her call that the police stop using sniffer dogs for random raids. You can read the ombudsman’s 2006 report about the use of sniffer dogs here. Quite apart from the points the ombudsman makes about proportionality and efficiency of these raids, you have to ask whether the success such raids achieve is worth the price of rubbing everybody’s noses in their helplessness in the face of the might of the state, personified by bullying police. I guess my views on this are reasonably clear.

Messy lives and a tangled web

March 6, 2009

Under the Property (Relationships) Act 1984 (NSW), people who have been in a de facto relationship which has come to an end can apply for an adjustment of their respective property interests. The usual principle is that their affairs should be disentangled in accordance with their respective contributions to property they have each acquired during their relationship. The exact wording is:

On an application by a party to a domestic relationship for an order under this Part to adjust interests with respect to the property of the parties to the relationship or either of them, a court may make such order adjusting the interests of the parties in the property as to it seems just and equitable…

and this is to be done “having to regard to”

the financial and non-financial contributions made directly or indirectly by or on behalf of the parties to the relationship to the acquisition, conservation or improvement of any of the property of the parties or either of them or to the financial resources of the parties or either of them

and (this is the feminist clause, at least in its genesis):

the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the parties to the relationship to the welfare of the other party to the relationship or to the welfare of the family constituted by the parties and one or more of the following, namely …[paraphrase: a child of the parties (this means both of them) or accepted into their household].

For relationships coming to an end on or after 1 March 2009, this act no longer applies, and different principles will apply under the (Commonwealth) Family Law Act, but there are still plenty of cases in the pipeline where the 1984 act will apply.

As a judge rightly pointed out in a matter where I recently appeared, people can have messy lives. It can often be difficult to work out exactly what the legal basis of their proprietary interests are, not least where they have had their own reasons for muddying the waters. The recent judgment in Whiting v Whiting provides a good example of this. The particular question it poses as I see it is what is the position when, after the relationship comes to an end, one of the parties receives an inheritance which is greater in amount as a result of contributions by the other or even by both of them together during the period of their relationship?

Mr Whiting and Mrs Whiting lived in a de facto relationship from 1968 to 2001. Mrs Whiting had a son from a previous relationship who grew up with them.

Mr Whiting was a builder and, it seems, also a developer. His businesses ran into financial difficulties. That is pretty much par for the course for builders and also for developers. In 1993, the Whitings moved from near Grafton (on the NSW north coast) to Bankstown (a suburb of Sydney) to live with and near Mrs Whiting’s mother, Mrs Holley. Mr Whiting built a second house on Mrs Holley’s block of land there.

In 1998, Mr Whiting went bankrupt as a result of a guarantee he had given for a loan to one of the companies through which he conducted his businesses. He was examined on the application of his trustee in bankruptcy, apparently in an attempt to identify whether his half share (the other half was owned by Mrs Whiting) in WTH, the company through which he had conducted his operations as a builder, was worth anything as a result of the house which had been built on Mrs Holley’s block of land. Mr Whiting said at that time that his [quasi] mother in law had given them somewhere to live so that they wouldn’t have to pay rent. When asked what Mrs Holley had given him in return for building a house on her land, he said “Nothing. Not a thing.” He said that there was no agreement between the company and Mrs Holley in relation to the construction of the house.

That is understandable – it wasn’t in his interests to assert any entitlement which would pass to his trustee in bankruptcy to be divvied up amongst his creditors. Nor was it in Mrs Whiting’s interest that any part of the property then owned by Mrs Holley and likely to pass to her would be subject to such a claim. But it would come back to bite Mr Whiting.

Mr Whiting continued to work as a builder, using WTH (at this stage half owned by his wife and half owned by the trustee in bankruptcy) as a vehicle for this. Mrs Whiting was involved as she was also a shareholder and (it seems) a director, perhaps the only director, and funds received by the company and paid out were banked or dealt with in an account of hers, as well (it would seem) as in account in the name of company. Not all the funds were banked. Mrs Whiting’s signature thus appeared on cheques, but her evidence was to the effect that she had no real knowledge of affairs and acted under the control of Mr Whiting.

In October 1999 Mrs Whiting bought the shares formerly owned by Mr Whiting from the bankruptcy trustee for $75,000. Her cousin (subsequently executrix of Mrs Holley’s estate) Mrs Houghton said that she had lent her this money out of her own (Mrs Houghton’s) own funds, and a written loan agreement had been drawn up by solicitors to record this. Mr Whiting said that this was a sham and the money really came from cash which was kept in a safe in their house, presumably being in part the unbanked funds received by the company which, in effect, Mr Whiting was operating, and otherwise from Mrs Whiting.

If so, this was a sham which Mr Whiting had some part in. In this way he had worked for the company and accumulated funds (when normally as a bankrupt you are required to make contributions over a fairly minimal wage towards paying off your debts) with which he probably got the trustee off his back and Mrs Whiting (but in reality Mr Whiting, so long as the relationship lasted) regained control of his business. In addition, the cash came from takings which were presumably never disclosed in the accounts of WTH or otherwise disclosed to the Taxation Office.

The relationship came to an end. On 25 March 2001 Mrs Holley asked Mr Whiting to leave and he was escorted from the property by the police.

After that, the business of WTH came to an end. Mrs Whiting collected amounts due to the company and presumably paid off the debts; she sold a truck and some other equipment. Any money left over, she kept. She said this was about $23,000.

In 2001 Mr Whiting commenced proceedings against Mrs Whiting for an adjustment of property following the end of their de facto relationship, and against Mrs Holley claiming that she held the property on constructive trust for him in respect of his contribution in relation to building the house and on the basis of various promises he said she had made to him. Mrs Holley was suffering from cancer and obtained an order for an expedited hearing (that is, an order for the matter to be determined more quickly). Justice Bryson dismissed the proceedings on 14 June 2002 because Mr Whiting had not complied with procedural directions. The effect of such a dismissal was simply to bring the proceedings to an end: it did not amount to a judgment in Mrs Whiting’s or Mrs Holley’s favour, though before Mr Whiting could commence fresh proceedings he would need to pay their costs of the dismissed proceedings.

Mrs Whiting died on 1 October 2002. Mrs Whiting inherited the bulk of her mother’s estate. In effect, this was the house, which was sold. Mrs Whiting bought another house with the proceeds and a relatively small mortgage.

You can understand that Mr Whiting may well have felt aggrieved. Whatever arrangement he and his wife had entered into to protect or retrieve his business and the accumulated and ongoing profits of his labours from his bankruptcy led, in the end, to all of those assets, such as they were, belonging to his wife (except, possibly, for some cash – see further below). He had built a house on his quasi-mother-in-law’s land, but his case had been thrown out of court because he wasn’t able to get it ready in time before she died. And now it was Mrs Whiting who ended up receiving whatever increase in the value of the property resulted from that house being built.

In April 2006, Mr Whiting commenced fresh proceedings against Mrs Whiting under the Property Relationships Act. He needed to obtain an extension of time to do this, but that was granted to him. His heart must have sunk when he found out that his case was to be heard by the same judge who had previously thrown his case out, since retired and now serving as an acting judge.

NSW judges are obliged to retire at 72. I am not a fan of the increasing practice to re-appoint them after that on acting commissions. The attraction for the state is that these appointments are cheap because they do not lead to fresh judicial pensions arising and they are for a fixed term so that, if judicial business declines, the state is not left with a judge who potentially must be kept in office until retirement age. There are other questions also about whether such judges have the necessary independence, since clearly the Attorney General need not re-appoint any acting judge whose decisions the government isn’t happy with.

And there is another factor which it is difficult to avoid being blunt about. Justice Bryson is a well-respected judge (he became a judge of appeal before he retired) but even before he went to the Court of Appeal he had a bit of a reputation for grumpiness on the bench. He’s always been prepared to be forthright and to make robust findings of fact. That’s good if he’s going your way but not so good if he’s going against you. These are characteristics which do not tend to diminish with age.

Obviously Mr Whiting’s case had its difficulties. He was caught up in a tangled web, but he was not the only one. After their separation, Mrs Whiting had entered into a number of transactions with her mother, including the sale of her jewellery collection (“the accumulation of many gifts which Mr Whiting had made to her over many years”) to her for $5,000 and subsequent purchase back, which appear highly colourable as attempts to disguise and minimise Mrs Whiting’s assets in order to foil any claim by him. Mr Whiting said the jewellery was worth between $50,000 to $100,000, but Justice Bryson rejected this evidence as Mr Whiting was not an expert valuer of jewellery. All Mr Whiting could have said was how much he paid for it, though obviously that might be less or more than it would now be worth. It’s not clear why he did not attempt to do this, other than the obvious difficulty one might have in giving evidence of such matters, particularly on the hop once the evidence was objected to at trial.

It would have been hard for Mr Whiting to get expert evidence as to the jewellery’s value because at a time when Mrs Whiting knew that Mr Whiting claimed the jewellery was worth, Mrs Whiting said that she had flushed it all down the toilet after “what she seems to have regarded as a disheartening experience at a mediation session.” Justice Bryson didn’t believe this, and found that she had either sold it or still had it.

So there was every reason why Mr Whiting might feel and behave rather combatively. Acting Justice Bryson took a set against him for this very reason. He said:

“Mr Whiting gave me a very poor impression while giving evidence. He gave evidence in a highly combative way, with some expressions of hostility. I do not regard his evidence as reliable.”

The remaining big ticket item in the dispute was whether any part of the enhancement of the value of the the property by reason of the building work undertaken by Mr Whiting or his company, now in Mrs Whiting’s hands, should be considered to be property of the relationship now available to be divided up. If it was property of the relationship, then it would generally then fall to be divided according to what the respective contributions of the parties were to that property, though in the case of such a long standing relationship this would usually be divided fifty-fifty.

Of course, Mrs Whiting received this from her mother after the relationship came to an end, so that usually it would not be considered to be property accumulated during the relationship. Gifts from family members during a relationship are normally credited to the person whose relative made the contribution.

Bryson AJ seems to have considered this question to be determined by whether or not Mr Whiting was entitled as against Mrs Holley to a constructive trust in his favour, so that whatever the extent of that trust, it was really his property before it came to Mrs Whiting. I am not sure if this is really the right approach. The statute requires consideration of “the financial and non-financial contributions made directly or indirectly by or on behalf of the parties to the relationship to the acquisition, conservation or improvement of any of the property of the parties or either of them or to the financial resources of the parties or either of them ” What about the extent to which Mr Whiting’s efforts increased the value of what Mrs Whiting ultimately inherited?

I also think his Honour overlooked the extent to which the improvement in the value of the house and also the company’s assets arose from the manner in which, as is common, Mr Whiting worked through his company but did not necessarily take payment in full from the company from his work, being content to leave the value of his labour in the company which at first he and his wife, and later he and his wife, owned.

This seems to me to be tied up with the source of the $75,000 with which the trustee was bought out. Here the clincher was the involvement of the cousin, Mrs Houghton, since his Honour wasn’t necessarily going to believe either Mr or Mrs Whiting.

At this stage, the best I can do is to quote from His Honour’s judgment:

21 In October 1999 Mrs Whiting bought the shares formerly owned by Mr Whiting from the bankruptcy trustee Mr Donnelly, in whom the shares had vested upon the bankruptcy. The price paid was $75,000.00. According to the evidence of Mrs Whiting and of Mrs Pam Houghton, her cousin, who was then a bank officer, the $75,000.00 was paid to Mr Donnelly by bank cheque which Mrs Houghton obtained, from her own resources, in an arrangement to lend that amount to Mrs Whiting. The arrangement is evidenced by a written loan agreement, prepared by solicitors.
22 According to Mr Whiting’s case this was not the true source of the $75,000.00 which was paid for the shares. He alleges that Mrs Whiting put money into Mrs Houghton’s control, and into Mrs Houghton’s bank account, by misdirecting funds in several ways and in several different instalments; one of these was by taking money in cash out of a safe in the house at Daphne Avenue which Mr Whiting and Mrs Whiting then occupied. It is not clear whose money this is said to have been: it is hardly likely to have belonged to Mr Whiting himself, in his circumstances as a bankrupt, and if it belonged to WTH it is not Mr Whiting’s business to complain if it was misappropriated, because he did not have any interest in the company at that time. The most probable origin of the funds in the safe were that they arose from work for which WTH was entitled to payment. If one real source of funds to pay for the shares was money out of the safe as Mr Whiting alleges, that would not be a contribution by Mr Whiting to Mrs Whiting’s acquisition of half the shares and consequent control of WTH.
23 I do not accept the account, given by Mr Whiting in paragraph 18.6 of his principal affidavit, according to which Mrs Whiting told him, not that she was to buy shares in WTH but that she had to pay the official trustee’s firm $75,000.000 “because they say they are going to take my mother’s home. I will pay them from the money in the safe and will take the rest out of the business bank account”. In Mr Whiting’s evidence he took $45,000.00 in money from the safe in the house at 19A Daphne Avenue and gave it to Mrs Whiting, and she told him that she and her mother would put the money in Mrs Houghton’s account, “or similar”. He mentioned other sources from which he conjectured money was obtained to pay to Mrs Houghton. I do not believe what he says about these things. I do not believe that he gave approximately $45,000.00 of the money in the safe to Mrs Whiting, and I do not believe that Mrs Whiting received any such sum, or that she put it and other sums into Mrs Houghton’s control, so as to give colour to the $75,000.00 being advanced by Mrs Houghton. Mr Whiting’s narration, which has elements of fantasy, is far outweighed by Mrs Houghton’s evidence: she appeared to me to be a sober and careful witness, a person very unlikely to be constructing a sham transaction, and I find that she was truthful about the origin of the money advanced. An aspect of what Mr Whiting says which I regard as strikingly improbable is Mr Whiting’s claim that he did not know at the time that Mrs Whiting was acquiring the shares in WTH. However this is significant only as to his credibility.
24 I am satisfied and I find that Mrs Whiting bought the shares using money lent to her by Mrs Houghton. I do not doubt the evidence of Mrs Houghton and I regard it as clear that she was the true owner of the money which she advanced.
25 In my finding Mr Whiting’s claim or theory about the true source of the $75,000.00 is luridly improbable. Evidence of Mrs Whiting, and also the evidence of Mrs Houghton, showed that the loan transaction was genuine, and they adhered to their evidence firmly. My confidence that their evidence on these subjects was accurate is not disturbed by what were said to be anomalies in their explanations of some banking transactions from about that time: or by any difficulties in their explaining banking transactions from later times. It is not surprising, and in no way suggests that their evidence on the main subject was fabricated, that they were unable to explain in detail other transactions recorded in their bank accounts about that time: or at later times. It would be unremarkable that cousins with a good relationship had other transactions or that there were other aspects of this transaction which they are unable to explain after 10 years.

I am never happy when a judge purports to determine such matters on demeanour or even on the basis that a witness is otherwise respectable. In my experience, such people are capable of all sorts of things, especially in family disputes. Bank officers are perfectly capable of lying with composure.

Whilst the relationship was subsisting, the obtaining of the shares in WTH by Mrs Whiting was not adverse to Mr Whiting’s interests: as a bankrupt he could hardly have purchased the shares himself and it was likely that it was necessary to give the impression to the trustee that Mrs Houghton was the source of the funds to buy the shares. It is true that it is mystifying that Mr Whiting claims not to have known that Mrs Whiting had purchased the shares, but in the light of the previous hypothesis explored by the trustee that WTH had some interest in Mrs Holley’s property or entitlement to be paid by her, the account that the payment was necessary to prevent the trustee taking Mrs Holley’s house seems quite plausible and I don’t find it particularly improbable that Mr Whiting didn’t understand the exact form of the transaction as opposed to what he said he had been told of its effect or its motivation. He doesn’t seem really to have turned his mind to who owned the other half of WTH at this time, even though he was still conducting his business through it and so allowing it to obtain any profit from that work (subject, that is, to how he dealt with the money in the safe).

As a cousin with good relations with Mrs Whiting and, it seems, Mrs Holley, there is every reason why Mrs Houghton might have got involved with this and now adhere to a version which advantaged Mrs Whiting. There is a strange coincidence between the $45,000 claimed to have been in the safe and the $30,000 said to have been lent by Mrs Houghton to Mrs Holley and the total of $75,000 paid to the trustee. It is not clear how, if ever, Mrs Whiting repaid the $75,000 to Mrs Houghton, though it is clear that they could not explain all the transactions between them. I don’t think Mr Whiting’s claims can be dismissed as “luridly improbable.”

In the end, his Honour disregarded the jewellery, which he held Mrs Whiting had (or its proceeds) and the cash from the safe, which he held (for reasons which he doesn’t really make clear) Mr Whiting had taken. He was left with the following assets of the relationship:

35 The assets at separation which had sufficient value and of which is sufficient is known for notice to be taken of them are these:

All the shares in WTH. These yielded $23,996.53, which Mrs Whiting received.

Furniture — Mrs Whiting has the furniture and I treat it as worth $10,000.

Optus Shares — these yielded $3000 which Mrs Whiting received.

Billiard table — this was sold and Mrs Whiting received $1000.

Kawai Grand Piano — Mrs Whiting has the Piano and I treat it as worth $1000.

1988 Honda Car — Mrs Whiting kept the car and it was worth $5,000.

36 I attribute the total $43,996.53 to the assets which went to Mrs Whiting on separation. This is a very imprecise evaluation.

His Honour is clearly not a musician or even a pianist. The piano was bought in 1989 and Mr Whiting said it was worth $10,000. That seems about right to me. Unless it is in truly terrible condition, it certainly can’t be worth less than seven or eight grand.

To return to the judgment:

38 This is meagre value indeed for a relationship which lasted over 30 years, and very little to fight a three-day lawsuit over, but it is all there is. A great deal was done about property work and earnings during the relationship. Mr Whiting was busy with building and development projects. Mrs Whiting was the main contributor at home and she worked for much of the time. At times there was considerable prosperity, with overseas holidays. Her son was about five years of age when the relationship began and left when he was seventeen. Mr Whiting took the place of a father towards him in many ways, although looking backwards the son is not happy with all his treatment and things ended badly between them. Still Mr Whiting did make a significant contribution at the time. Decades of effort and contribution by both parties produced very little result in terms of property acquired. Each party made large contributions of the kinds mentioned in s 20(1)(a) over the decades, of work and effort and also contributions of the kinds in s 20(1)(b), and there is no way of attributing the small proceeds to one or the other which can improve on equal attribution. The only assets at separation now available are the Grand Piano and some of the furniture. Money proceeds of assets can no longer be traced, but contributed in a general way to Mrs Whiting’s present asset position.
39 The power to order adjustment extends to all property now owned by the parties. Considerations of justice and equity relate primarily to assets at separation. Considerations of justice and equity could lead to a discretionary order for adjustment if they related to property acquired after separation, but only by reference to considerations which relate the acquisition to contributions made during the relationship. In concept contributions made during the relationship could bring about an acquisition after separation, but that has not happened in this case. In concept there can be contributions to welfare after separation, but that has not happened in this case.
40 Unlike what usually happens when proceedings are brought soon after separation, the parties re-established themselves in the five years and more until these proceedings were commenced. The parties’ present assets are available to be the subject of an order for adjustment. In the almost 8 years since separation Mr Whiting has re-established himself in business, has a home and an investment property in which he has minority co-ownership interests in his later relationship with a new partner, and has significant mortgage debts which he has earning capacity to enable him to deal with. Mrs Whiting has had employment most of the time. Mrs Whiting has a home which is mortgaged for an amount which it will be difficult for her to deal with having regard to her relatively modest earning capacity. Mr Whiting is relatively better off than she is. Mrs Whiting’s present asset position is almost wholly attributable to Mrs Holley’s testamentary gift. It is probable and I find that Mr Whiting obtained a large amount of cash at separation, used it to help re-establish himself and has not revealed its existence or value. This strongly disposes me against awarding him any sum: I do not know whether such an adjustment would be just. In a similar way I do not know what value passed to Mrs Whiting in the jewellery; but she is not asking me to award anything to her.
41 In my judgment the Court’s order should require delivery to the plaintiff of the Grand Piano, which is the only significant asset from the relationship now traceable; Mr Whiting values it at $10,000, but this is more than it is worth. No other adjustment should be ordered.
42 This is not a case where either party should have an order for costs.

That does not strike me as entirely fair.

Mrs Whiting gets away with the jewellery because she has it or its proceeds and therefore is not asking to be awarded anything in relation to it, but Mr Whiting has the unknown amount of cash held against him on what to me seems to be pretty flimsy (and certainly totally unarticulated) reasoning. No account has been taken of the extent to which his work contributed to the balance of the proceeds from the company or the value of Mrs Holley’s property when sold which then passed to Mrs Whiting, even if that work should be counted as part of their joint efforts (and maybe this is where the case went off the rails). In other words, I don’t agree with his honour or at least I have considerable doubts on the basis of the reasoning as he sets it out that:

In concept contributions made during the relationship could bring about an acquisition after separation, but that has not happened in this case.

I can’t see how it is at all relevant that other money received by Mrs Whiting can no longer be traced: she is better off by its receipt, even if she has spent it.

To take into consideration their relative financial positions now would be relevant under the Family Law Act now but it is really stretching it to bring it in under the rubric of what is just and equitable under the Property (Relationships) Act.

The problem for Mr Whiting is that the vigour (aka forthrightness) with which Acting Justice Bryson has made adverse conclusions about his credit is likely to be an obstacle to any appeal.

At least he got the grand piano.

She was a vixen when she went to school

March 5, 2009

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This is maybe my favourite line in A Midsummer Night’s Dream. It comes from the scene where all sorts of ancient grudges emerge between Helena and Hermia.

On reflection, though, this set me wondering. I doubt if Thesean Athens (OK, that’s a legendary concept, but any historical counterpart) had much by way of school education for girls, and the position in Elizabethan England (given Shakespearian anachronism, this seems the appropriate criterion) can scarcely have been any better. I found a reference to girls and boys both going to “petty school,” which was apparently something a bit like infants school, where instruction seems to have been given by women (as in the later “dame’s school”) in an essentially domestic environment. This surprised me, because in this period you only ever read literary references to schoolboys (you know, dawdling on their way to school, etc), but on reflection it is possible that until boys were “breeched” (ie, put into pants) boys and girls could be and were taught together. Any further education for girls was definitely obtained privately. Elizabeth herself was such a prodigy because of the tutoring she received, which was entirely atypical, even for royalty.

All of which is to say that last Saturday I went to hear the SSO’s performance/production of A Midsummer Night’s Dream at the Opera House.

The night was balmy and the atmosphere deliciously festive. Across Farm Cove some rehearsal for the Mardi Gras Harbour Party (shamefully shut down by the police dog squad two years ago) appeared to be in progress; one large cruise ship was docked at the International Terminal at Circular Quay, and another loomed luminously over Fort Denison in the middle of the harbour. Oddly, all of Hunter Street was declared a “Special Event Clearway” for the whole weekend – an aftermath, I can only guess, of the visit of the big Cunard ships a couple of years ago which has ever since sent the authorities into over-reactive bouts of traffic jam avoidance. A finger-nail sliver of moon hung in the western sky.

I was trepidatious as to how amplified actors would come across in the Concert Hall and also as to how loud they would be in relation to the orchestra. These fears proved to be well founded. The concert hall acoustic has a fairly generous echo which detracted from the clarity of some of the orchestral playing, as ever. I have found I tend to be more sensitive to this the more well-known the music (and hence recording-imprinted my acquaintance with it) is. And the overture, in particular, is a piece from my earliest orchestral listening experience.

The acoustic was even worse when dealing with the actors, especially when they raised their voices or were towards the front of the stage, when there seemed to be a kind of anticipatory pre-echo. Things were better when they spoke more slowly or more quietly. My main bug-bear, that amplification produces disparities of scale and is demeaning to any acoustic elements with which it is combined, was not dispelled, though I adjusted myself to overcome it as the evening went on.

An acquaintance who went on an earlier night said that many people near him (he was sitting near the front of the stalls) couldn’t follow the play at all and that there were quite a lot of walkouts at interval. I did notice a few more people than usual leaving at interval, but I put some of that down to the fact that, unlike the first half of a concert, the first half of a play nearly always labours under an expository burden. In addition, something which is a bit different will always encounter some resistance.

Allowing for all that, and overcoming the occasional irritation about the amplification, the whole thing was nevertheless delightful. I know, I’ve already said the atmosphere was deliciously festive, but I’m struggling to go to elegant variation when the literal sense is spot on. By the end of the evening, and for many points along, I was hugging an inward smile and warm glow that it is difficult to go beyond cliches to describe.

The orchestra (trimmed down a little – only 6 double basses) was in fine form even if occasionally things seemed to be a bit of a scramble. I would have preferred the Nocturne to be a little slower, but the dramatic context for the Entr’acte as Helena wandered alone in the woods was a revelation – as were, it seemed to me, some reverse-reminiscences between Mendelssohn’s and Britten’s music for the rude mechanicals’ performance at the end. The play was realised well, and by the end of the second half, the audience seemed well caught up in it.

Mr Ashkenazy had a small speaking role. I realised I had never heard him speak. His Russian accent was thicker than I expected.

And I cannot neglect to mention the Ophicleide! I have a special allegiance to this instrument (GB Shaw’s oft quoted “chromatic bullock” presumably really refers to the fact that historically it is without progeny) and it was at a performance at S James King Street about 10 years ago by a scratch band (mostly made up of SSO players) hired by the rich older friend of a young conductor that I first heard it in the flesh, in this very overture.

One of the pleasures of this sort of thing – a special pleasure, I think, of “classical” culture, is a sense of participation with the past – via Mendelssohn, reading the play with his family in German and English (I bet that must have sounded pretty funny) back to Shakespeare and the richness of allusion within the text itself – right back, indeed, to Theseus and Hypolita, the folk myth of Puck and Robin Goodfellow and the enchanted wood. These are deep cultural roots. Pictured above is volume 2 (which I took with me to read at interval) of a 12 volume series of Shakespeare’s plays . I had thought it was my grandmother’s, but on reflection it must have been my great-grandfather’s or even his father’s. That’s my own, strangely consoling, part of the same vertical and even vertiginous experience of the past, even though, sadly, one volume has gone missing. The title page is as pictured below:

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You say hijab; I say jihad…

March 4, 2009

Or vice versa.

In the heart of Western Sydney, five men are facing terrorism charges. They are amongst 8 men who were arrested in NSW and a further 9 men who were arrested in Melbourne in November 2005, just four days after legislation was passed creating some of the offences with which they were charged. They had been under surveillance for the previous 18 months. They have been in gaol ever since. The trial is likely to set a record so far as its length is concerned: it could easily go for the rest of the year and longer.

The charges are serious: some indication of the sentences they might be facing might be gleaned from the 20-year sentence (15 years non-parole) dished out to an offender by the same judge in 2006, which was upheld on appeal by the Court of Criminal Appeal from which special leave to appeal has been refused by the High Court.

The trial commenced with consideration of preliminary legal matters early last year. The trial before the jury commenced in about November last year.

Typically, the prosecution opening got a big splash at the beginning of the jury phase of the trial, but since then there has been remarkably little press coverage. One reason may be that the daily grind of a long trial is just too boring; another is possibly the existence of suppression orders.

The wonderful thing about suppression orders is that you don’t even get told that they exist. They make it difficult for justice to be seen to be done – usually thought of as quite an important consideration. You could go to court and see for yourself what is going on. In fact, that is why we know that there was at least one suppression order, because it was subsequently lifted.

As a result we now know that, shortly after the commencement of the jury phase of the trial, a number of jurors complained that they had been followed from the court to where they were parked by a woman wearing a hijab who had sat at the back of the court and who acted suspiciously, including writing things down. They seem to have feared she was noting their vehicle registration numbers for the purpose of any possible subsequent reprisal against them.

The judge had previously ordered that some of the more elaborate security proposals not be implemented because they would be too prejudicial, but that doesn’t mean that the brouhaha and extreme sense of drama may not all the same have done their work in exciting the jurors’ fears.

A note was passed to the judge about this on 26 November 2008; the suppression order was lifted to enable this to be reported on 20 December 2008.

The judge told them all that he would have the police investigate the matter, but that they shouldn’t assume that the accused had anything to do with it any more than a football team had anything to do with over-the-top behaviour by the team’s supporters. Of course this statement contains a big “even if” premiss which is itself potentially pretty prejudicial.

Presumably the woman in question has since been investigated: that would be a very serious offence, and we have heard nothing of any charges being laid, though they too might be the subject of a suppression order for all we know. It seems to me to be highly probable that if a number of jurors had reason to find the parking location convenient, so might anybody else who chose to attend the trial.

At what point do such fears in themselves provide a basis for saying that the jury has been prejudicially tainted?

The judge told the jurors to keep an open mind and asked them if they were able to. Through the foreman, they replied “”Every juror remains able to discharge his or her task as a juror in this trial impartially.”

In the immortal words of Mandy Rice-Davies, they would say that, wouldn’t they?

In case you are wondering, I’ve not named the judge or the venue or the offender who has been sentenced because I don’t want this page to be found by any jurors in the event that, contrary to directions which must have been given to them, they engage in any casual googling about any of this. You can click on the links to find those things out.