Archive for February, 2017

Amber Harrison and joking Justice MacDougall

February 27, 2017

Plenty have been transfixed by the feud between Amber Harrison and Channel 7.

In December 2012, Harrison, who worked for Nick Chan, in charge of Pacific Magazines, a Seven subsidiary, embarked on an affair with Tim Worner, CEO of the Seven Network.  Worner was older than Harrison, and married.

The main shareholder and chairman of Seven West is Kerry Stokes, a very rich and powerful man.

The Pacific Magazines offices were in Redfern (you can see the Seven offices, in the Eveleigh precinct, when you go past in the train). Worner worked at Jones Bay Wharf, in Pyrmont.

In October 2013, Ms Harrison’s work relocated to Jones Bay Wharf.  According to Harrison, that was when the difficulties with the affair began.  Amongst other things, she felt he was ignoring her and disregarding her during work hours.

Excuse me?

What part of a clandestine affair with a married man did Harrison not understand?  OK: theory is one thing but coming up against the practice could be another.

Harrison asked to be transferred somewhere else within the organization so she wouldn’t have to endure this.  Nothing came of this.  You might wonder about the governance implications if it had.

One thing Harrison also apparently wasn’t ready for (though again surely she should have been)  was the possibility that there might be other other women.  That seems to have precipitated the end of the “relationship” in mid 2014.

Right at the same time, Harrison became the target of an investigation about corporate credit card misuse.  Harrison doesn’t see that as a coincidence and you can see why she might see it that way.

Harrison agreed to pay back $14K of expenses and Seven paid her $100K.  But Seven wasn’t leaving things there.  It commissioned a report from Deloittes which identified $262K of unjustified expenses over a period of some years.

In November a second deed was entered into.  Under that deed, Harrison was made redundant.  Seven agreed to pay Harrison various amounts upfront and a further $150K in monthly instalments over 12 months.  A procedure was established for Harrison to be given access to documentation concerning the $262K.  To the extent that Harrison could establish that these expenses were legitimate, she would also receive those amounts.  A Mr Kite SC was appointed as a kind of referee for this.

There were other obligations on both sides, including “non-disparagement” clauses – though critically Seven’s obligation to not disparage Harrison was conditional on Harrison keeping her side of the bargain, whereas Harrison’s obligation was not so conditional.

Bruce McWilliam, Seven director and former Allens partner was in charge of things on Seven’s side and signed the deed for Seven.

Seven stopped performing its part of the bargain, including making the instalment payments, in March 2015.  Seven says that was because Harrison wasn’t performing her side of the deal, and in particular did not hand over her phone so that Seven could be sure that she had not retained any dirt on Seven or on Worner.  Given what has happened since there has to be something in that.

There must have been much more that went on.  In December 2016, Harrison went public with “explosive” allegations.

Some of Harrison’s more inflammatory claims were of affairs by Worner with other women (including some prominent broadcast personalities).  These were given internet exposure by muckraker, Stokes-hater and serial disregarder of court orders Shane Dowling, despite various court orders seeking to shut him down (1, 2, 3 and see als0 4).

Harrison also made claims of illegal drug use by Worner.  Nothing particularly out of the ordinary – just your usual cocaine stuff –  but potentially the most damaging allegations of all given the alleged criminality.

Seven was embarrassed.  It’s a bit of a governance issue if a company is paying $300+K to a discarded lover of a CEO, even if, as may be the case, some of this was taken off the top of bonuses which were otherwise to be paid to Worner.  And that’s before it became public that if Harrison could vouch for all the disputed credit card transactions she would have received over half a million dollars.

Seven commissioned Richard Harris of Allens to undertake an “independent review” of Worner’s conduct.

The review concluded that Worner hadn’t done anything wrong within the company apart from the affair itself, and that (unsurprisingly) the claims about illicit drug use could not be substantiated.  Nothing to see here.  The Seven board said that Worner had been punished enough already and that it was on with business.

One member of the board resigned at about this time, though she’s kept quiet about why.

Harrison was furious.  As far as she was concerned, the report was a whitewash and the investigation perfunctory and a foregone conclusion.  She started releasing material damaging to Seven which she still had (which you might think rather vindicated Seven’s claim that they were justified in breaking off the deal when she wouldn’t hand over her phone back in 2015) and tweeting about material which she had brought to Harris’s attention which she felt should have led to a different outcome.

Seven went to court and got an ex parte interlocutory injunction from Justice MacDougall shutting Harrison up – that is, without giving Harrison a chance to be heard. It was due to come back a week later, on 21 February  when Harrison would have her chance  to argue that the injunction be lifted or varied.

In the meantime, Jeff Kennett, a director of Seven, engaged in a twitter debate with Harrison.  Asked some needling questions in a press conference Kerry Stokes bridled at a question which referred to ‘alleged stealing’ by Amber Harrison.  He responded: “You say alleged stealing.  The facts of the matter are there were significant amounts of our money taken by her and no other excuse for it than just plain taken.”

It didn’t seem fair that Harrison should be subject to a gag order whilst Seven directors were free to take a kick at her.  That became a big part of her lawyer’s argument when the matter was back in court before Justice MacDougall on the 21st.  Not that it got very far.  Andrew Bell SC persuaded MacDougall to continue the injunction until further order.  The interventions by Stokes and Kennett were tut-tutted over but not so as to disentitle Seven to the continuation of the orders.

One of Harrison’s complaints was that, as well as stopping the payments to her, Seven had stopped the process of reviewing documentation for the credit card in order to vouch for the payments – which she was to receive if they were found to be legit.  So not only was the injunction preventing her from defending herself, but Seven’s halting of this process had prevented her from vindicating herself.

Here is the relevant passage of her affidavit:

harrison-affa-pars-35-36

harrison-36-40

The reference to paragraph 14 is to an earlier part of her narrative, about when the credit card discrepancies were first raised with her:

harrison-para-14

If I read this correctly, that means that of the $262K she was accused of misappropriating (on top of the $14K she had repaid) she had proved about $70K was legit in November 2014 (though possibly Kite SC had yet to determine this), found documents which would substantiate another $130K up to March 2015.  That’s about $200K out of $262 or $276K.  It’s not clear if paragraph 40 takes things much further – does she mean that overall she could justify a majority of the expenses?  200/276 is already a “majority.”   Maybe she meant “most.”

In his judgment, MacDougall summarises this evidence and this argument as follows (emphasis added):

Next, as to the submission that Ms Harrison could not respond to Seven’s campaign of “vilification”, it is enough to point out that she has had a full opportunity of putting her case before the Court, in an affidavit that would be read in open Court. She has done so. She has said what she wishes to say as to the matter of expenses. Her response was, if I may put it this way, a little coy. She said that, had she but world enough and time, she would be able to justify “the majority” of the suspect expenses identified in the Deloitte report. That is far from a complete disavowal of any improper use of the cards.

First, I don’t think that’s a fair summary of Harrison’s evidence.

And as for the allusion to Marvell’s “To his coy mistress” – I suppose that counts as a kind of judicial joke.  If so it is just plain unseemly, especially since his Honour downed the “mistress” by his decision.

Postscript

Harrison has foreshadowed a cross-claim.  In my opinion it is simply a rational response to MacDougall’s acceptance of an argument that the deed between her and Seven was on foot and she was bound by it.  Harrison has always claimed that Seven broke the deal.  If she wants to pursue that argument that is probably the only course she can take.

The link reports that Justice Sackar has given Harrison two weeks to file a cross claim. That strikes me as an unnecessarily brisk timetable when Harrison is the less-well-resourced party (whether she is right or wrong) who has already been forced to respond in very limited time frame to Seven’s ex parte application.  That can only be a limitation on her right to bring her claim as a cross claim – she would in my opinion always be free to take much longer to bring a claim in separate proceedings.

An opera-lover writes

February 23, 2017

My friendship with ST was forged in the mid 1980s at Newtown taxi base over our shared interest in opera and classical music.  In fact we had been students together a few years earlier in the Arts faculty at Sydney Uni and were in some common courses.  He was a slightly older student and shy and retiring; I was a bit of a youthful show-off.  So he already knew who I was.

ST devoted much more energy to the opera than I did.  I was a weekend night driver.  ST drove nights full-time – doubtless with some nights off to go to the opera though I wouldn’t put it past him to have sometimes left his cab for the duration of a performance.  A fellow barrister who in an earlier life doubled up cab driving with gigs as an opera extra tells me he used to leave his cab at the rank and slip in to do his stint as an animal in The Magic Flute.  Things were more relaxed in those now-olden days.

ST naturally knew when the opera came out on any given night and if he was nearby he would be there to work the Opera House rank.  Over the years he overheard quite a few conversations between company members who might have been more discreet if they’d realised how well-informed their driver already was.

ST gave up opera-going about eight years ago when he devoted himself totally to the care of his mother. She died in the middle of last year.

After allowing for a period of grieving, this summer season I tried to coax ST back to the opera.  The following, with one omission as indicated, is his response:

Greetings & Happy St Scholastica’s Day.

I’m not exactly fired up for recondite musical tableaux at the moment so I may end up giving the Polish offering a miss.  Not sure I know either Honeyman or Gore so that angle doesn’t help either [….] Even checking the brochure for dates enrages me as I see the highly good-natured, not to say personable in any of its misapplications, Jonas Kaufmann so misused, indeed abused, on its cover.

In Spring I was all for “Come back Moffatt, all is forgiven” but am currently reading his book, or at least constantly dropping off (after sleepless nights) over its pages.  Many productions go past with no mention at all, even singers like Eva Marton are completely ignored BUT there were EIGHT productions in the Concert Hall, the most surprising for me being Otello & Romeo & Juliette – why none this year?  The SSO has ‘squeezed’ dates before and one-offs should use the State.  Britten was sometimes used to ‘double’ Concert Hall shows & except for Dream they would all fit in the State,  There was much less destroyed in the Ultimo fire than I thought, so sex up some Kalmans, Lehars & Sullivans & use the Royal.  The opera theatre’s been closed before for Summer!  Mastersingers, Don Giovanni and Boheme have been done in English!  Grace was here in 1991 (recession time!) for Turandot. I can’t believe it – did I see her live?!  If I need to calm down I boil the kettle & recall that there’s a recital of Rachmaninov & Mussorgsky at Angel Place – but in the mid 70s there was a whole series of recitals in the Opera Theatre – the youth crowd getting Ewer & John Winther.  Cheers.

It doesn’t look as though he will be going back.

 

Last nights at the opera

February 23, 2017

Last Saturday night to Opera Australia’s La Traviata.

This production dates from 1994 or so.  It used to return roughly every three years.  Under the present management it has been returning every second year, and there’s been a Traviata on the harbour as well.

My friend, Ub, with whom I last went to this production in 2015, had been on Thursday.  “That woman’s amazing!” she told me.  She meant Ermonela Jaho , who was Violetta.  Ub was right: it was an amazing performance, and elicited a standing ovation from a full house which it is fair to say had probably come to see her.  Is it quibbling to ask if it crossed the line between acting and over-acting?  High-voltage acting is a bit like playing loud and fast, it mostly pleases.  If Violetta were really a woman who lived so much on the edge, why should the assembled party-goers be so shocked when Alfredo throws the money at her feet?

This was Jaho’s last performance for this run.  Maybe it is also the last time I need see this production, usually referred to as a “Moshinsky” production though I’d say a very big part of the credit goes to Michael Yeargan’s terrific sets.  The costumes are also good but it’s the set which really makes it.

As I’m not a critic I shan’t do a roll-call of the cast, other than to say that Ho-Yoon Chung was fine as Alfredo if a little mousey at first – hard for him to measure up against such a woman on the edge as Violetta.  What could she have seen in him?

Jose Carbo is still not for my money nasty enough as Germont.  Well, when I say nasty, I mean an insidious kind of sanctimoniousness.  I know the story requires him eventually to respect Violetta, but surely that’s only after she has agreed to do what he wants, and any sweetness before that need only be by way of persuasion.  After all, he does tell Violetta that her looks will fade and then because she is not married to Alfredo naturally he will leave her. That’s not very nice even if, were one to take the story seriously, it could hardly pose much of a threat to a woman dying of consumption (though she seemed to be doing better during her months in the country).

Footage on Youtube of a previous outing of this production shows three becostumed bullfighters who are dancing extras in Act II Scene ii.  We only had one who was banished to the back of the stage like a lost pony.  The dancing is the one point when the production flags a bit. To an extent that is inherent in the work: we need a bit of time to pass and the party atmosphere needs to be established before it can be disrupted.  I could easily get this scene mixed up with Act IV of Manon.

Violetta threw (and smashed) a glass in Act I.

There wasn’t very much if any of the blood-spotted handkerchief- more persistent coughing in the audience than on stage – well two persistent and more noisy than evidently ill shockers.  At the end I found I half-expected Alfredo to sing something over the final chords – “Mimi!” maybe?

On the Wednesday before I went to the last night of King Roger.  That made four times altogether.  In other operas I have seen four times in the one run – Masked Ball, Simon Boccanegra – the fourth time has been a bit of an anticlimax.  That wasn’t the case for KR because I was still on a learning curve and there was so much to get out of the music – especially the orchestration.  There was so much going on.

The house was pretty well full, though the tell-tale queue at the Opera Australia service desk before hand showed that the free-list were well in attendance.  Earlier performances had not been so full and I think there is something in Stuart Skelton’s criticism that when OA puts on a modern or difficult work it just sits back and waits for the the audience to come.  (That link includes a response/refutation by OA of some of his points, but I’d say you have to watch out for the fine print in that.)

Late in January I went with D to Cav and Pag.  I’ve left it too long to make any really detailed comments about it. I remember thinking that one was much stronger than the other but ironically I cannot now remember which.  Of course I enjoyed them, how could you not?

I wasn’t as moved as I have sometimes been by the intermezzo in Cav, and I wonder if that is because of all the business that was going on.

Diego Torres took both tenor roles more than creditably.

Pag is much more “Wagnerian” than Cav – which probably mostly means more lower brass.   Jose Carbo has not effaced my memories of Jonathan Summers whom I saw last time.

D didn’t twig that there was a kind of nightmare sequence going on towards the end.  The price of this and the elaborate parish hall for the play was that the denouement happened a bit further back on the stage and this reduced its dramatic impact.

And that wraps up my Opera-Australia-going for this year.

 

 

 

 

 

All stand for the judge – or else!

February 11, 2017

In 2013, by means of telephone intercepts, the AFP became aware that Hamdi Alqudsi was involved in assisting people to travel to Syria to join ISIS in its fight against the Syrian government.

That is an offence under s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 of which Mr Alqudsi was ultimately found guilty in 2016 after a jury trial before Justice Christine Adamson.  Details of the various telephone intercepts are set out in her sentencing remarks: R v Alqudsi [2016] NSWSC 1227He was sentenced to a term of imprisonment of 8 years, with a non-parole period of 6 years.

Alqudsi’s role, or at least the conduct that was detected and for which he was convicted, involved putting people in Australia in touch with an Islamic State recruiter, Baryalei, advising the would-be fighters about how to get there and liaising with the Islamic State people who were expecting them.  He planned to go at least to Turkey himself but was ultimately stopped from leaving Australia in September 2013.

On the morning of 18 September 2014, police in Australia carried out the biggest counter-terrorism operation in the nation’s history, with over 800 heavily armed officers targeting households in Sydney and Brisbane.

The immediate catalyst was an intercepted call from an ISIS operative to a younger sympathizer relaying instructions to commit a terror beheading against a random Australian target. The younger sympathizer said that he knew there were people ready to carry this out. Alqudi was presumably a target because of his known ISIS involvement (including with the operative).

Notoriously, very few charges were ultimately brought and none against Mr Alqudsi in relation to the plan to behead someone.

These were the classic dawn raids though this is a misnomer since such raids are generally conducted shortly before dawn.  The aim is to surprise people when they are asleep with maximum force to prevent resistance to arrest or, as in this case, to prevent any resistance and preempt any attempt to destroy evidence which may be in the premises which are authorised to be searched by a search warrant.

Seven heavily armed and balaclava’d police battered the door down and secured the premises.  The violence of their armed incursion into the house was justified on the basis that the execution of the warrant was investigation of a “terrorist” offence.  Then 4 AFP officers, who had been waited inside, entered and executed the warrant.

Mr Alqudsi, his wife Moutia Elzahed and her two teenage sons (then aged 14 and 16) sued the police for what they said was mistreatment in the course of the raid.  They said in their statement of claim:

The First Plaintiff [Elzahed] was punched in the ear, eye and head, was held and moved in a brutal manner; was handcuffed in an aggressive and hurtful manner, her ear bled, she was mentally and physically abused; she was screamed at and was humiliated. She suffered bodily and mental pain.

The Second Plaintiff’s [Mr Alqudsi’s] head was held by the officers who pushed his head down on the ground injuring it and his nose and preventing him from breathing, talking or calling out. He was wounded and punched on the back thereby aggravating a previous back condition. He was handcuffed in a brutal manner and his arms and wrists became sore and cramped; The Second Plaintiff suffered bodily and mental pain.

The Third Plaintiff was pushed down on the floor with violence by officers and handcuffed in an aggressive manner injuring his arms and wrists. He suffered bodily and mental pain on seeing and witnessing the assault and battery of his mother.

The Fourth Plaintiff was slammed on a cupboard and still has marks on his stomach. He also was pushed on the floor in a violent manner and handcuffed. He suffered bodily and mental pain as well as physical injury aggravated by the officer’s treatment of his mother.

8   At the said time and place referred to above the four Plaintiffs were wrongfully arrested and imprisoned by the officers who impeded their liberty by handcuffing and restraining them from moving freely and by keeping them under strict and constant control.

9    Further and in addition the officers intimidated the Plaintiffs by aggressively calling the Third and Fourth Plaintiffs terrorists, by aggressively calling the First Plaintiff a bitch and by beating and assaulting them, wearing balaclavas and carrying firearms and weapons and their general conduct in handling and by bullying and frightening them.

Mr Alqudsi’s claim was settled. That left Moutia Elzahed and the two sons.  The trial was heard by District Court judge Audrey Balla.

Ms Elzhahed refused to remove her niqab to give evidence.  Judge Balla refused to permit her to give evidence with her head covered, because she said this would deprive her of the means of assessing the witness’s credibility by seeing her face – [2016] NSWDC 327

You have to wonder about this.  If that were so, a blind or short-sighted person would be incompetent to act as a judge. Let’s not even go into those cases where judges or jurors have dozed off. People can keep a bold face or likewise be uncomfortable and look shifty according to their talents or nervousness.  Actual responses to questions and hesitations in giving answers are much more likely to be telling.  This is how Judge Balla dealt with this:

I am well aware that the demeanour of a witness and the viewing of their face is not the only way in which credibility is assessed.  In some cases the demeanour of a witness may be misleading.  However, neither of those considerations can, in my view, mean that I should be completely deprived of having the assistance of seeing her face to assess her credibility.

Largely as a result of this, she then dismissed the claims – [2016] NSWDC 353 .  (Other aspects of the claim had already been struck out by Judge Judith (“Judge Judy”) Gibson  – [2015] NSWDC 271. )

Judge Balla had another bone to pick with Ms Elzahed.  She had observed that Ms Elzahed had not stood when she entered and left the courtroom.  It is customary that all present in the court should do so, as a mark of respect.  She raised it with Ms Elzahed’s counsel, the redoubtable Clive Evatt (not QC).  Evatt told her that his client did not stand because she only stands for Allah.  Judge Balla drew his attention to section 200A of the District Court Act.  This section (recently introduced as a response to defiance by various Islamic “terror-related” defendants) provides:

A person is guilty of an offence against this section if:

(a) the person is an accused person or defendant in, or a party to, proceedings before the Court or has been called to give evidence in proceedings before the Court, and

(b) the person intentionally engages in behaviour in the Court during the proceedings, and

(c) that behaviour is disrespectful to the Court or the Judge presiding over the proceedings (according to established court practice and convention).

Maximum penalty: 14 days imprisonment or 10 penalty units, or both.

Judge Balla said:

“The law reflects community’s expectation that everyone who comes before a court should show respect for the judge and court. [….Possible ellipsis here as my source is the Daily Telegraph] Not standing up in court or refusing to follow a reasonable request fits that category.”

I expect Judge Balla was drawing on the second reading speech made on introduction of this law, as well as the definition of “behaviour” as “any act or failure to act.”

Ms Elzahed is now to be charged with an offence under that section – presumably for every occasion on which she failed to stand, the fact conveniently placed on the record by Judge Balla by raising the issue.

It will be an interesting question whether a failure to show a customary respect will amount to a positive act of disrespect according to custom.

My own feeling is that the essence of showing such respect is that it is voluntarily offered.  To say that it must be offered under pain of criminal prosecution robs it of that element.  There is already a law of contempt, although I am unaware of prosecutions being brought for merely failing to stand when the judge enters or leaves the court, or to offer the customary little bow when entering or leaving a court when it is in session.  If the law is as Judge Balla says it is you could be compelled to give evidence (by a subpoena), have your evidence rejected if you do not uncover your face and also be charged with an offence.

Is this necessary?  Did  Judge Balla need to raise the issue?  Even if ostensibly she was offering Ms Elzahed an opportunity to explain her failure to stand (bereft as it happens of the usual safeguards of right to silence when charged), it looks very much to me as though her Honour was stitching Ms Elzahed up.

Judge Balla’s behaviour in this case has not increased my respect for her.

Roxana!

February 6, 2017

On Saturday night with D to OA’s King Roger for the third time – I had been for a second time on Tuesday with my old friend Ub.

Ub’s husband couldn’t go and, at the last minute she asked a friend, Nt.  Ub thought Nt might be interested because Nt’s father was a musician and was Polish.  Those proved to be tenuous grounds for an affinity: Nt left at interval, citing sciatica and declining my offer (in my opinion generous given that their days as an OTC remedy are numbered) of some codeine-enhanced paracetamol.

Ub thought the opera very dark.  She didn’t mean the lighting.  For most of the opera, King Roger seems to be chronically depressed and bewildered, much given to calling out the name of his wife, Roxana (initially  just to shut her up but later as more of a cry for help).  This was a bit odd, given that we also learn he hasn’t been, um, Rogering her [sorry, couldn’t help that] for a while and that didn’t look like Roxana’s decision.

Both of them (Rog and Rox) and the crowd are seduced by the mysterious shepherd, who turns out in the end to be Dionysus – not that that is particularly clear in this production.  Male pole-dancers in rather brief trunks rise up and down the various levels of the Act II set which represents Roger’s mind.  This in turn is a allegory/proxy for Szymanowski’s and indeed for all of our minds.  It’s the human condition (Apollonian/Dionysian) but with added homoerotic overtones.  At the end of the opera Roger has ostensibly confronted all of these dark desires and overcome them but it doesn’t look like he’ll be returning to Roxana’s bed any time soon.  Ub didn’t find the ending very convincing: she’s an author and perhaps she could sense some “tell” of Szymanowski’s rewrite (in his original Rog ran away with the shepherd).

I’m making fun of it all a bit here.  The virtue of the production is that these themes (in human nature, the hero and the composer) are all laid out pretty clearly – if anything too clearly and schematically.

In Act III, the shepherd appears, supposedly (according to the libretto) as Dionysus but here dressed rather as Roger had been dressed at the beginning.   There was probably a point to this – but it entailed a sacrifice of what the libretto says should be the opera’s grandest moment.

On the Tuesday I sat next to an [even] older [than I] gay (I assumed) gentleman who told me that My Fair Lady had been terrific and that he wasn’t really so keen on these “discordant” operas. I attempted to demur on the grounds that diatonic notions of discord and resolution were superseded in the musical language adopted, but I knew what he meant. In fact, the more I recognise the various melodic motifs on repeated hearings the less discordant the music seems.  This must be linear harmony at work.

On Saturday, D and I sat next to a woman from a small town (1200 residents, she said) in Arkansas.  She had just spent 3 days pre-cruise in Sydney and this was her first opera, ever.  She stayed to the end.

I have warmed to Saimir Pirgu (the shepherd) and Michael Honeyman continues to impress.  It’s a terrific workout for the orchestra.

There’s been a bit of price-cutting for the remaining performances and I’ve snapped up one more ticket for the last night.