Archive for October, 2010

Scenic ride to work 2

October 30, 2010

Since the cruise ships have been banished from soon-to-be Barangaroo, they are now docking at White Bay.

Well that was what I first wrote and what I first thought when I spotted this, but it is definitely wrong: first, this is Glebe Island rather than White Bay, and secondly by Saturday the same ship was round at Barangarooo. See also Victor’s comment below.

The proposed White Bay terminal is dreamt of or sold as something like this.

One reason I say “dreamt” is because the picture is impossibly romantic as it does not include any buildings on Barangaroo. See the substantive link here.

I know that such ships are really just a big machine floating on the water, but the floating on the water thing still carries for me some mystery of the sea. I took the first picture from one of the last other remnants of the “working harbour,” the wharf where concrete is deliverered to Blackwattle Bay.

Then I rode around under the ANZAC bridge for this more direct shot.

Obviously, things have been quiet at work lately if I have time to do this sort of thing on my far-from-early ride in.

Weekley Park

October 30, 2010

I quite like this piece of public art in a park in Stanmore where, I confess, I sometimes pause for a ruminative cigarette on my bike ride to work.

The park is the remnants of the grounds of a house “Annandale” owned by the Johnston family (of Johnston Street, Annandale). The house was demolished and the lands subdivided between 1905 and 1915.


October 25, 2010

Via Thomasina a little while back, I read with interest of this theory on the facilitative role of under-developed copyright law in enabling Germany to catch up and even overtake Britain in the Industrial Revolution during the nineteenth century.

Copyright definitely remains “under-developed” in China. To tighten it up too suddenly (assuming one wanted to) would be a bit like a credit squeeze on whole hosts of businesses which operate on unpaid-for intellectual property capital – noting of course that intellectual property capital is only property or capital if you can get someone to pay for it or have to pay for it yourself.

I picked up the Schubert (Badura Skoda) (25 RMB) and Bach (Henle) (17 RMB) when last in Shanghai. They are official, Chinese editions of their European originals – nothing copyright busting about them, save to the extent that their original publishers necessarily accepted a copyright fee fixed in some proportionate way to a Chinese rather than German or Austrian cost in the shops.

I’ve mostly been playing Schubert – impromptus and the odd musical moment. There are heavenly half hours and (OK, I’m not quite up to tempo yet) more there, though at times one can begin to wonder if one might be approaching too much of a good thing.

Vapid remark by judge

October 24, 2010

So, what’s new? Of course, I mean no disrespect to the judge in question personally.

In 2007, Leduva, whose appearances in the courts I have noticed on this blog before, engaged Mr Mr Nader Mohareb to undertake some consulting work for them as a structural engineer in relation to a project Leduva was undertaking in Hurstville.

Mr Mohareb said that the terms of the engagement were governed by the written terms (dated 13 April 2007) he (or, to be precise, his company) provided Leduva prior to their engaging him (to be precise, engaging the company); Leduva said he was retained on a different basis, apparently some kind of trial basis to establish his expertise and competence.

Leduva changed architects. Mr Mohareb said that he had done work based on the plans provided by the first architects, and that he had then done extra work as a result of the changes by the second architect, and that he was entitled to charge extra for this work at an hourly rate as set out in his written terms. An invoice was sent to this effect on 13 February 2008.

Shortly after, Leduva terminated Mr Mohareb’s company’s retainer.

Mr Mohareb said that his terms of service (in a manner which common in contracts for personal services and employment though less common for engagement of a consultant) provided that if his retainer was terminated, he was in effect entitled to serve out a 60-day period or to be paid in effect in lieu of notice based on an assessment of the work which, had he served the 60-day period, he would have done in this time.

It is difficult to be precise about the figures, but as far as I can make out Mr Mohareb claimed he was owed $40-something-K for the work he had done (including the extra work) and twenty-something $K under the payment in lieu of notice. The total was about $68K. Mr Mohareb gave up his claim to any amount over $60K and commenced proceedings against Leduva in the Local Court (whose jurisdiction limit is $60K).

Leduva of course said that the terms of service did not apply (and also made other complaints about Mr Mohareb’s work) but also said that such a term of service was unenforceable as being not a fair estimate of Mr Mohareb’s loss and therefore a penalty (that’s a slightly specialized area so I won’t try to go any more deeply into that here) and hence unenforceable.

Mr Nohareb said that within the 60-day period he would have finished the job so that one way or another, as a combination of work already done and work which he would have done he was entitled to the full price for the job, plus, that is, the extra price for the extra work.

The case was heard over 4 days of trial (there will have been prior court mention dates) in March and August 2009 (ie, about a year after the termination of Mr Mohareb’s retainer and non-payment of his claim). There were further submissions, judgment was reserved, and finally delivered in February 2010 with further orders made in April. It was in Mr Mohareb’s favour. Along the way the magistrate expressed an unfavourable view about the Messrs Taouk, the witnesses for Leduva:

(a) “I found both the Taouks not to be credible witnesses” (T 9.38 – 26 February 2010);

(b) “Mr Amerr Taouk’s evidence was at times just not believable. He was hesitant and evasive when answering questions …” (T 9.39-.40 – 26 February 2010);

(c) “… the Taouks are not naïve businessmen and at no stage … was there documentation saying otherwise than what the [plaintiff] says happened” (T 10.26 – 26 February 2010);

(d) “Mr Mohareb was unshaken in cross-examination and impressed as a witness of truth. Where there is conflict in the evidence between the plaintiff and the defendant … I will accept the evidence of the plaintiff” (T 9.48-T 10.01 – 26 February 2010). I should note that in this extract the plaintiff to whom the Magistrate was referring was NM. [that is a reference to the company]

Undeterred by this, Leduva appealed to the Supreme Court.

The appeal was heard by Justice Garling on 13 October 2010 and judgment was handed down by him on 22 October 2010.

His Honour dismissed the appeal: that is, he upheld the decision of the magistrate in Mr Mohareb’s favour.

Then his honour remarked:

134 The parties, who were engaged in mutual commercial activities over two and a half years ago, have now engaged in litigation over a relatively small sum of money (ie $60,000). The Local Court has devoted four days to the hearing of the matter. The learned Magistrate has devoted additional time to the consideration of submissions and the preparation of a judgment. She accepted the case contended for by NM and rejected, largely on the unchallenged grounds of credibility and demeanour, the case contended for by Leduva. Leduva has sought to appeal against that judgment to the Supreme Court which has heard all of the arguments on its appeal, and rejected them. It cannot be said that either of the parties has not had the full benefit of the system of justice which the State provides, and to which they are entitled. The legal costs must now exceed, or else go close to exceeding the sum originally in issue.

135 This case serves as a good example of the benefits which would enure to parties who engage in alternative dispute resolution by means such as mediation.

I am surprised at such a remark by a judge who has found so comprehensively in favour of one party when the circumstances suggest a very determined defence by Leduva, ultimately unsuccessful, including by evidence which was not believed, in an industry where the tough-minded refusal of payment on any range of pretexts is so endemic that at least for building contractors there is now a statutory regime for security of payment. It is far from clear that mediation offered any advantages to Mr Mohareb.

Enough with this “the parties.” I know there is a temptation for judges to regard the warring parties before them as children who should just manage to patch up their own disputes and in some sense both equally to blame for the existence of the dispute, but in this case I think his Honour could have spared Mr Mohareb any such implied rebuke or, if not quite a rebuke, sermonizing.

Afterthought 2016/7: after following Mr Mohareb’s subsequent litigious adventures (2017: 21 judgments in proceedings brought by him though some are applications in those proceedings against him; the 22nd on that list is an unsuccessful bid by the A-G to have him declared a vexatious litigant), now I am not quite so sure.  In 2009-10 there was also a stoush in Queensland.

Postscript 2019:

Whilst not actually declared a vexatious litigant, on the application of Mr Palmer, a fellow resident of Scotland Island who has faced a barrage of litigation brought by him, Mr Mohareb has now effectively been put in the same category as a vexatious litigant in relation to any future proceedings to be commenced by him against Mr Palmer or any other proceedings commenced by him in NSW.  (Palmer v Mohareb [2019] NSWSC 975)

Meet the Music

October 23, 2010

On Thursday, I went to my last Meet the Music concert for the year.

It may be my last such concert for a while, because after 2 years I have given up my subscription to the series. That’s partly because I have diverted my available funds (supposing those to be finite or at least subject to some government of my susceptibility to temptation) to meet the expense of the SSO’s heftily-priced guest soloists for next year. Despite the excellent seat available to me [here is the proof, for the cognoscenti, of its excellence: this season I sat next to David and Alison Gyger, who must be two of Sydney’s most inveterate concert- and opera-goers], other aspects of the series and most of all the inconvenience of an early start weighed in the balance against continuing the commitment.

It was a memorable night.

More than usually, the concert was in two halves. I know that sounds logically silly so I must explain. Unusually, there were two conductors: Richard Gill in the first and Thomas Ades in the second. And each half was a “big” half, so that the program as a whole was a good deal longer than usual, comprising:

[Conductor: Gill]
Paul Stanhope: Fantasia on a Theme by Vaughan Williams
Tchaickovsky Piano Concerto No 1 – Maxwell Foster, piano

[Conductor, Ades]
Ades: Asyla
Tchaickovsky: Nutcracker Suite No 1

I have heard the Stanhope before. I know the Vaughan Williams tune and as a one-time singer from the English Hymnal I probably have “RVW” engraved on my [musical] heart (cf Mary I and “callous”). I liked best the opening and closing sections. I was less keen on the middle sections, which seemed to owe a debt to Bernstein and West Side Story and to be less true to either RVW or Stanhope himself, as though he was trying to be Matthew Hindson or even Graham Koehne and to write something snappy for the Yoof – my heart generally sinks when I hear a kit drum in an orchestra. A lot of the more interesting figurative detail within the beats seemed pretty much overlooked by Mr Gill.

Maxwell Foster is a winner of the ABC Young Performer of the Year. He is not long out of school in Melbourne and has just started studies in London. I am reasonably sure that within even a year and certainly within 2 he will in at least some ways cringe at his performance of the Tchaickovsky. That doesn’t mean that he didn’t play well, but this is a work which has a high scope for this. I wouldn’t have thought his performance was as good as any one of a number of Sydney Piano Competition finalists over the years. But of course it was still enjoyable – it’s the Tchaickovsky piano concerto, for God’s sake! The audience lapped it up. Peter McCallum gives a more analytical account in passing in the SMH; I would mostly have preferred that Foster lighten up in the quiter and more scampering textures – and yes and not only in the example Mr McCallum gives from the performance he saw, there were some odd mismatches of tempi between soloist and orchestra.

The real treat of the evening was to hear Thomas Adès conduct his own breakthrough prize-winning orchestral work from about 1997, Asyla. We owed this to Ades’ more substantial recent engagement in Melbourne. I wonder if limited availability on Adès’ part was the reason he was conducting only half the program: I wouldn’t want to think that it was because Mr Gill could not be deprived his half.

I first heard an Adès piece when Imogen Cooper included one in her program in Sydney, I guess, about 1997 (probably Traced Overhead which she premiered at Cheltenham in 1996). I’ve liked what I’ve heard since. I really do want to see one day his opera about the [in]famous (especially to law students) Duchess of Argyll: Powder her Face – even if the notorious fellatio scene proves too much for me (more likely, it would be insufficient in the MFN department).

The most striking aspect of Asyla was for me the extreme orchestration and the assuredness with which it was compositionally invoked and, in the performance, directed. I’m afraid it rather showed up Stanhope as directed by Gill. For one thing, Adès showed that you don’t need a drum kit to get orchestrally funky. But there was one intriguing possible resemblance: both works ended with what I can only think as a post-modernist take on the Mahlerian hammer-blow of fate – not so much a thud as [echoes of Frank Kermode’s final essay on Eliot and the shudder] a shrug. Actually, I’m still not 100% sure if the Stanhope one wasn’t just an accident on the night.

If the concert had finished then, it would have been quite substantial fare. A busload of schoolchildren trouped out from the front right stalls. But there was more!

The Nutcracker Suite was lively and inevitably enjoyable, though it did suggest that Adès’s particular advantages as a conductor are best on display when he conducts his own work. Andrew Ford, who gives an onstage commentary in this series, was at pains to argue that Tchaikovsky had created orchestral effects which we still think of as modern, but I think this was quite unnecessary – I suspect him of really wanting to say that orchestral effects which we think of as modern are very like Tchaikovsky, which seems to me a slightly different and slightly preachy proposition. He’s not immune to this as he had another dig in his talk about talking about how music feels as not being talking music at all, which felt to me like a slightly snobbish and misguided rejection of madrigalism and musical semiotics as sitting somewhere critically below the salt, an attitude not dissimilar to his declaration in a previous concert that if you don’t have something original to say you shouldn’t compose at all.

At the risk, nay the certainty, of repeating myself: a memorable and despite any critical comments I have let loose, enjoyable night. It may have helped that in the morning judgment was handed down not entirely but more than sufficiently in my clients’ favour in a legal battle which has been going on for one client for more than ten years, and in which I have been involved for more than three. That’s also the sort of thing which is inclined to cheer one up.

Die Walküre

October 23, 2010

Shanghai, 17 and 22 September.

Die Walküre is the most popular episode of the Ring. More than the others, it can stand on its own as almost a romantic opera.

That’s how I first heard it, in effect, as an instalment in the then Australian Opera’s cut-off-at-the-knees cycle, which was done with cut-down orchestrations prepared by Stuart Challender.

That production was the occasion of a rather charming (even if just a little self-serving) anecdote offered by Simone Young in her recent interview (no longer available directly) with Norman Lebrecht. Simone was called in at short notice to play (she says she was sightreading) the first act of Die Walküre, which, apparently (ie, according to her), she did triumphantly. Challender was the conductor (which suggests it was not the opening season, unless he himself was assisting Cillario). Afterwards, Challender said to her “The last person to do that was me. I think I hate you.” A mere transcription does not capture the slightly camp inflection but simultaneously entirely friendly tone which Simone gave to the last sentence. (I just mention that because of the subsequent drama which Challender endured as a result of his forced coming out in public when the press moved to publicise his HIV-positive status in 1991.) After this Young was engaged as Challender’s assistant or as a repetiteur (I forget the exact details), and Challender offered her his support and encouragement, taking her off to second-hand record shops (my guess: Ashwoods) to scout out recordings by great conductors of times gone by and ultimately encouraging her to head to Europe to further her experience.

I can still remember the excitement of the opening of the Vorspiel/first act of that performance, which was probably also an early time when I got to sit relatively close to the orchestra.

I also have favourable memories of the Sydney Symphony’s concert performance of 1997 conducted by Edo de Waart and including the mighty Alessandra Marc as Sieglinde.

Since then, I saw it as part of the whole cycle in Beijing in 2005 (I am a completist: I have seen all the Chinese performances of the Ring cycle) but at least until I recently reread Andrew Byrnes’ (abridged) account, bore few particularly specific memories, apart from the failure of Wotan’s spear to ignite the fire round Brunnhilde in the last act. Of course, as my first Ring cycle the whole occasion remains wreathed in a first-time glow. Cheryl Studer was Sieglinde.

During the first run of Das Rheingold in the Shanghai Grand Theatre I felt that I was missing out on the detail of the string articulation. From Die W onwards I sat on a riser of sorts (a rolled-up towel if you must know) and whether or not that really made a difference, I found the situation much improved.

Oddly, in the first performance of Das Rheingold there had been constantly audible prompting. This did not recur subsequently.

The curtain rose on Hunding’s hunting party rushing about and then finally returning to his snow-swept camp, which looked as though it was somewhere on the Eastern Front in the winter of 1943 or 44. This was one of a number of occasions where the production chose to “bulk up” the stage picture by the addition of non-singing characters, including one a distinctly unfearsome and scarcely grown german shepherd dog. The meal when served was heated up military rations.

There was some pantomime-ish comedy when Siegmund searched for a weapon in various spots, even finding a gun at one stage. (Hunding of course was armed with a gun which lead to the usual anachronistic ridiculousness of sword versus gun when it came to their showdown.) To the right of the stage, a large log was draped with a piece of cloth of sort. I wanted to shout out (this is the pantomime-aspect) “Over there!” or “Look behind you.” as Siegmund looked everywhere but the right spot, even if, at that point, the odds were that he might only find a golf putter or cane a la Donner and Wotan’s implements.

Spring, when it came with love, was a distinctly muted affair. Snow falling at the back of the stage was obscured by a fire-curtain; no gate blew open or tree sprouted.

Up in Valhalla (now, furnished, even more Berchtesgadenish) Wotan and Fricka’s domestic was a cracker. Given that it appeared that Wotan presumed to keep framed pictures of all his bastard Walsungen on the coffee table, Fricka’s indignation was either surprising or justified, depending on how you look at things. Fricka had some devastating business with lipstick and handbag at the end of the argument which made the outcome of the argument clear to the returning Brunnhilde. Catherine Foster as Brunnhilde displayed the mannish side of her nature by tossing (overarm, not underarm) apples of eternal life whilst hoi-o-ho-ing. Fortunately, some Miss-Piggy-ish faux-shy-girlish mannerisms were toned down by the second run.

On the run, Siegmund and Sieglinde rested in an abandoned and shot-up jeep, still somewhere on the snow-swept notional (my notion) retreat from Stalingrad (satisfying flurries of snow from the leaf blowers in the wings – obviously if so it couldn’t actually be a Jeep per se). I didn’t feel Wotan was quite fearsome enough when he appeared: Greer Grimsley is better at suave than angry – there was nothing to match the baritronic sneer with which I still recall John Wegner dispatching Hunding in the SSO concert performance (“Geh hin, Knecht! Knie vor Fricka”), for example.

In the last act, the Valkyries (who can never fail to please) assembled on a battlefield, selecting from a stage full of the fallen (more bulking up of the stage action) heroes for Valhalla, who then rose and ascended the ladders at the back of the stage or, as time ran short, wandered off into the wings. Not all were chosen and some corpses remained. At the end Wotan (apparently a non-smoker) searched through their pockets to find a lighter to set of the fire around Brunnhilde, by now draped with his military greatcoat for her long slumber. This is the way the world ends, I thought, not with a bang but a Zippo. The fire itself was real and right across the back of the stage.

Nidus revisited

October 22, 2010

I have written before about the judgment of Justice Owen in the case brought by the liquidator of The Bell Group Limited and numerous subsidiaries against two syndicates of about 20 banks in total who in 1989-1990 took security over practically the entirety of those companies’ assets. The trial ran for 404 days. The judge, Justice Owen, was confronted with a massive task in writing his judgment. It was a task which threatened to overwhelm him. It took him 2 years.

One strategy he adopted as a means of coping was to sprinkle his (very lengthy) judgment with obscure words. It was more a matter of judicial whimsy as a survival strategy than judicial humour as it is usually exhibited (with compulsory deferential chuckles by all counsel present).

“Nidus” was one such word, as in the following paragraph:

708 A nidus in the plaintiffs’ case is the allegation that at the commencement of, and during, the Scheme Period the main companies in the Bell group were insolvent. Lack of solvency is an element of almost all of the causes of action contended for by the plaintiffs.

All of which is by way of a shout out to my fellow blogger and Shanghai-Wagnerite, Wanderer, who has had excruciating cause to contemplate the nidus of his recently diagnosed kidney stones. He suspects dehydration during his time in Shanghai (which is not a city where anybody drinks the water straight from the tap). It would be fitting if the first stone formed at the moment that Alberich cursed love at the beginning of Das Rheingold.

Helpfully, perhaps as a result of diversionary therapy embarked upon by sufferers from the condition, Wikipedia provides a lengthy (but, given the percentages, only scratching the surface) list of famous kidney stone sufferers. This includes the following:

Opera singer Birgit Nilsson painfully passed a kidney stone following a concert in Göteborg, Sweden.

I haven’t chased up the reference there to see if the program for the concert can be identified, but it does raise the possibility that it was Wagner rather than Shanghai that is to blame for Wanderer’s plight. Who can embark upon Das Rheingold (which has no interval) or the longer acts of Siegfried or Götterdämmerung in a fully hydrated state?

If, in addition to the relief that any helpful substances may provide, Ms Nilsson’s example can serve as any consolation to him, I hope it does.

Der Rosenkavalier

October 20, 2010

To tell the truth, there’s something about all that Quin-Quin and Bichette stuff between Octavian and the Marschallin that kind of makes me want to stick my finger down my neck and be sick, well, metaphorically and gesturally speaking. And what kind of a young man having an affair with an older, married, woman does not realise the necessary limits of such a relationship? Oh well, I suppose Oktavian was only 17: one must make allowances for age.

Despite all the swoonable bits about the passage of time [“Get a job!” I say, as a cure to such ennui and Schadenwhatever, “or at least a profession!” – possibly a difficult proposition for either Marschallin or Rofrano] and bittersweetness of love relinquished, it’s really all about the Musik. Last night I went to see this and I was not disappointed. It was obviously a gig which had been pencilled in by Mr Hickox for himself – the late season big loss-leader (breaking out, as it were, from Britten). OA provided a cast which was about as good as one could expect from it, with the added attraction of an import, Manfred Hemm, as Ochs. Stephen Bennett was quality casting in two tiny roles. Warwick Fyfe was in fine and even stentorian form as Faninal. There were even the brothers Choo. (I’m concurring with the general chorus of praise for Cheryl Barker, Catherine Carby and Emma Pearson, especially when they sang together.) Andrew Litton replaced RH: he drew a lot out of the orchestra (I probably sat far too close to judge that fairly; I would have preferred a big-orchestra seating configuration as in, eg, Lady M of M, with the woodwind to the fore – it’s cruel to bury them towards the back of the substage part of the pit even if from where I sat there was a distinct viola payoff). I wouldn’t say Litton was a conductor who gave a lot to the singers. At times I felt it was up to them to keep up with and an eye on him rather more than it need have been.

Every ancient member of the company was there, or so it seemed: Anson Austin (my first Italian Tenor), Donald Shanks (ditto Ochs), Robert Allman, Robert Gard. It’d be nice to think that means that the most discerning were out in droves, but it probably also signifies that company rush and its variants were being deployed in force.

It’s nice to see them [the ancients, that is] there, but the apparent failure of Opera Australia to attract more than about 6,000 normally-paid attendances [on my guesstimate – surely not more than 7,000] to a run of 8 performances of Rosenkavalier is a bit depressing. Sydney has always been more of an Italian opera kind of town: Wagner and after (ie, Strauss) have never had a wide appeal.

With Rosenkavalier, the length of the opera (in at 7.00, out at about 11.25) probably deters some. It is not really an opera calculated to appeal to first-time opera goers. But I would have thought that more fifth- or sixth- time goers might have been enticed, including (once the state of the box office became apparent) by appropriately and sufficiently attractively priced offers.

Can’t say that I saw many of those.

Hail Saint Mary!

October 18, 2010

This past weekend, my father visited from Canberra.

On Friday night we saw Equus at the New Theatre in Newtown. This was a thoroughly agreeable excursion. At about 7.15 we resolved to go, at about 7.25 we set off in the car; by 7.35 we had secured an excellent parking spot right in front of the theatre and our tickets. These were $28 each for D and me; $22 for my father. (When the young man at the box office asked if there were any concessions, I asked if he could just have a discount for being old and for having seen the first Sydney and New Theatre production of Reedy River, not to mention the first Sydney run (at the Old Tote) of Equus in about 1974. It turned out that the mere assertion of a seniors card did the trick.) There was a bar and you could take your drinks into the theatre after interval (or at the beginning of the show, for that matter). The performance was of a quite satisfactory standard and certainly an honest and better than that rendition of the work. It included male frontal nudity. D and I approve of MFN as a matter of principle – we see it as a question of equal rights. It’s nice to have your rights vindicated.

On Saturday night my father and I went to hear the SSO. It must be many years since my father went to an orchestral concert and he enjoyed it greatly, including (I had been concerned) the Rite of Spring in the second half. What particularly struck him, as one who has not attended such concerts, was the wide dynamic range and, I think, by extension and my own inference rather than direct statements by him, the presence and excitement of live performance. We dined afterwards, which was rather later than my father is accustomed to dine. He surprised himself by sleeping in until 10 am on Sunday.

That afternoon, I took my father to see an old friend: his colleague for many years with whom he lunched almost daily for that time. The trip up to Sydney had in part been planned with such a visit in mind.

At some point in the day I needed to go into town to check something at the mill. We avoided going in when enthusiasts for the canonisation might have been crowding the city streets and finally made a short run in after an early dinner.

Today I was able to get home in time (after a disappointing morning in court) to take my father to the airport for the afternoon flight back to Canberra. He mentioned that he had been round to the shops to buy a paper and joked that no doubt I would be eager to read the wrap-around supplement acclaiming the new saint.

All of which is a long way round to dipping my lid to Charles Waterstreet in the Sun Herald this Sunday. After some amusing enough jokes about the failure of the Cockatoo Island comedy festival this week, he takes the occasion of a comment attributed to Tim Fischer: “with Mary MacKillop, it was 1881 when she passed through [Albury] and the vicar threw her out of Albury and she had to stay in a shanty hotel before catching the train . . . Typical of the absolute bastardry that she was forced to face on too many occasions. ”

In 1881, my family ran that “shanty hotel”. My father, brothers and sister grew up there. My great grandmother worked her fingers to the bone to make MacKillop’s stay overnight as peaceful and as comfortable as another Mary’s and her common-law husband, Joseph, and non-biological child, Jesus, were in another shanty hotel with stable in Bethlehem some years earlier. Waterstreet’s Hotel should be a shrine like Lourdes and Fatima and not just described as a “shanty hotel”. Many pilgrims stayed there overnight, Tim, because there was no standard gauge and they changed trains while enjoying the hospitality of my forbearing family.

Yes, Waterstreet’s Hotel has been described as a bloodhouse, and boys at my school wouldn’t come home with me for a squash because the sawdust was six inches thick in the bar to mop up the blood, but it was home to us and MacKillop. Many patrons claimed to have seen her appearing on the walls in their beautifully appointed rooms, the Weeping Walls near Wagga, but after dad hosed them down the damp and the visions disappeared. During the late shift, when the lights were turned down to avoid police detection and the railway workers came to drink a well-earned pint or two, there was talk of a gathering of angels appearing above the red neon sign in running writing on the roof spelling out “Waterstreet’s Hotel, Drink More”. Bona fide travellers spoke of a sense of peacefulness and grace and uplift upon waking in the morning before eating Mrs Westie’s big bacon breakfast.

This “shanty hotel” was and is a sacred site, which should be returned to my family to be held in trust for travellers on their way through on the Hume Highway, or by rail. The family has kept all the tea towels from the hotel, which, because of the way they were folded and kept in the leaking back shed, appear to have a replica of Mary in repose or passed out.

Her sainthood was held up for many years because of her alleged love of the sacred sherry. It is claimed she was introduced to it in Albury. Be that as it may, I have a dream of a day when the Pope will speak from the Holy Wrought Iron Verandah of Waterstreet’s Hotel, when the sons of former publicans can sit down at the table of brotherhood with the daughters of Pharisees and cry out: “Free beer, free beer, free at last!”

I particularly like the bit about the tea towels and the segue into a Martin Luther King finale.

Holding the line at the Local Court

October 13, 2010

The line I mean is the line about arbitrary use by police of their powers.

There have been times when the line has almost totally been left up to the subjective beliefs of policemen. Even if that wasn’t the law as law, it was effectively the law as the result of the traditional magistrate’s question: “Why would the policeman lie?” – a line only finally disposed of in the High Court comparatively recently.

If you try to sue police for stepping over the line, at least in relation to lawful arrest, they still really have that benefit of the doubt, so long as they hold a genuine belief as to the need. The line is a little bit different when they themselves must rely on the reasonableness of their use of force.

To step back a bit further, from a legal realist perspective, you need to take into account the variations between (typically for such cases) magistrates, especially when one considers the permutations between readiness to accept the police view (and hence, one way or another, convict) on the one hand, and the subsequent severity or mildness of the punishment meted out.

It has suggested to me, for example, that David Heilpern, who has been the presiding magistrate for more than one police-powers-ish acquittal, can in other instances (though maybe not in such “police powers” cases) wield a possibly surprisingly firm sentencing hand. It’s hard to know what kind of generalization can be made by anyone about these sorts of things: the variables are so multiple.

Nevertheless, Magistrate Heilpern did deliver a stirring judgment at the beginning of this year on the subject. Mr Alkan was subdued by the use of tasers and then arrested, after which certain evidence was obtained from him. The court (ie, “Heilpern LCM” as we say in the trade) rejected that evidence, on the basis that it was obtained after an unlawful use of near-lethal force by the police. To be legal, such force and the arrest must be reasonable. In this case they were not. The evidence was rejected under section 138 of the Evidence Act (which relates to the exclusion of unlawfully obtained evidence), the charge in question could not be made out.

Here is an abridged extract from the judgment:

…. The officer must not arrest unless the police officer suspects on reasonable grounds that it is necessary to arrest.
54 It is uncontested, as submitted by the prosecution, that this officer formed the subjective opinion that the arrest of the defendant was necessary. Having viewed the CCTV and analysed the evidence, I have formed the view that there were no reasonable grounds for this opinion in the key period …. The courts, and indeed the parliament of this state have been saying loud and clear that arrest, the deprivation of liberty, is the last resort.
[citation of some cases; he had already referred to the relevant statute]
59 The higher courts in this state have spoken loudly and clearly. Parliament has spoken loudly and clearly. The Local Court has spoken clearly …The police, like every other citizen are bound by these laws. Whether at common law or by s99 of LEPRA [the legislation about powers of arrest], the arrest must be reasonably necessary.
60 In this case I am satisfied that on either the common law or s99 , on an objective view the arrest was unnecessary. The officer’s opinions were not reasonably formed, he did not act reasonably in arresting the defendant and there were no reasonable grounds for forming the view that arrest was necessary at the time he shot the defendant with the Taser.

I particularly like the little magistracial [is this a word? magisterial didn’t seem sufficient] distinction in:

The higher courts in this state have spoken loudly and clearly. Parliament has spoken loudly and clearly. The Local Court has spoken clearly

which I took to be just a tiny weeny joke, though you could just see it as becoming curial modesty. The Local Court can’t speak loudly.

I was doing my own bit to hold the line in the Local Court this week, though I did not score such a stunning result as Winston Terracini (Lyndon’s brother) did in R v Ali Alkan. No evidence was excluded, and there was no finding of unlawful force or arrest.

The defendant was charged with assaulting police officer when the officer was in the execution of his duty. (Section 58 Crimes Act. The maximum penalty in the Local Court is 2 years but the overall maximum penalty to which the Local Court is to have reference when setting any sentence up to the 2 years is, I think, 5 years. However, for an assault of this nature even if proved it is quite likely that on a first offence no conviction would be recorded.)

The assault alleged was that the defendant threw a hot [as opposed to potato-crisp] chip at the policeman’s back or the back of his head. Whoever threw the chip was out of shot on the CCTV, which did show the defendant being forcibly moved on by the police officer in question just before the chip appeared to have been thrown. The defendant swore he had done nothing and the policeman’s partner officer swore he’d seen the defendant throw it. It was oath against oath.

You have to wonder how the police justify bringing a prosecution for such a trivial offence: two police (one of whom had to come to Sydney from a station in the far west of the state) were tied up for the whole court-sitting day, and one court (basically 3 people in terms of staff) plus a prosecutor were employed for a full afternoon. That’s not counting the prior 2 court dates and the defendant’s own resources (including me, as it happened).