Archive for the ‘law’ Category

I was there

September 11, 2017

Yesterday at D’s insistence and with him I did my part and went to the marriage equality rally in town.  There was a festival atmosphere on the train as we headed in with about 15 minutes to spare before the advertised start of 1 pm.

The last demonstrations I went to were the marches that broke many Australians’ heart – the big ones in 2003 against the invasion of Iraq.

The worst thing about such rallies is that practically every member of the organising coalition, and then a few more, has to have someone up there giving a speech.  This can really try one’s patience.  There is also the problem that in such a coalition on one issue, people will want to push the envelope out to the corner of their particular concerns.  Mostly I was with them at every corner and suspicious bulge to the package, but in the light of the “No” case campaigners’ attempt to make this postal opinion poll about every other issue than marriage of people not of a different sex, it would have been prudent, in my opinion, to keep things tight.

Bill Shorten gave a speech where he managed to reference “Climb Every Mountain,” “You’ll never walk alone,” the parable of the Good Samaritan and the St Crispin’s Day speech (those not here today will wish they were and say they were.)  There were probably more references that I missed.

So we stood out the speeches and after a longish wait to decant from Town Hall Square, headed along Park Street, Elizabeth Street, Phillip Street, Bridge Street and Young Street to Circular Quay where we were told Pauline Pantsdown had taken the stage in front of Customs House.  We didn’t actually see her as the square was pretty much full to capacity and we took the opportunity to catch a train home while we still could – just after 3.30.

It felt like a big rally to me so I was a bit peeved that it only ranked No 3 in the evening news. In some cases the rally was coupled with coverage of Malcolm Turnbull attending his own tame (I doubt if a single non-coalition-apparatchik gay person was in attendance) Liberals & Nats forum for the Yes campaign. As if Malcolm’s do was in any way comparable to tens of thousands of people on the streets.  Also a bit rich and doubtless calculated of him to hold it on this day.

I found myself immersed in a terrible emulatory hardness of heart waiting for “our” story to reach the screen: how dare those pesky Hurricane Irma types (No 1, though with predictably much more attention to the yet to suffer Floridians than the already devasted Cubans and Martinians) or Mexican earthquake victims vie with our just cause for attention?

There were lots of colourful costumes. My favourite was more subtle – a t-shirt in the style of an old pale blue Penguin paperback cover worn by a gent, about my age.  The book title?   An Ideal Husband by Oscar Wilde.

 

 

Nasty

August 7, 2017

Last Friday I drove out to Concord Hospital to pick up D, whom I had dropped off at 7am for day surgery.

For some reason the car radio was tuned to 98.5 fm.  According to Wikipedia:

2000FM (callsign 2OOO) is a multilingual community radio station broadcasting to Sydney in languages other than English from studios in the suburb of Burwood. It is a volunteer run organisation and is funded through listener support, grants and limited commercial sponsorship.[1]

The mission of 2000FM is to provide a service through dedication to enrich the cohesion of our cultural diversity via tolerance, understanding and respect for each other.[2]

When I turned the radio on just after setting off a man was reading from John Hewson’s article in the SMH, the substance of which was to complain that members of the Liberal Party who were agitating for a free vote on marriage equality were grandstanding at the expense of the coalition’s electoral prospects.

Hewson had written:

To be clear, I support same-sex marriage, and like so many who do, don’t, and are just a bit “here and there”, I would like to have seen the matter dealt with expeditiously, given what is perceived as widespread community support.

Up till then, I didn’t know what station I was listening to – I thought it might have been RPH (PH for print handicapped).  I was swiftly disabused of this when the reader interrupted his reading at this point to ask John Hewson, as a politician, if he ever would have been asked to write an article on SSM for the SMH if he did not say he was in favour of it.  Then I knew what side the wind would be blowing from.

Not that Hewson was actually there to answer the question.

From there on the reader interspersed Hewson’s text with his own comments. By the end (he hadn’t finished when I finally got out of the car) he was in full flood.

The argument as far as I recall it was:

  1. The trouble all began when we let same sex parents have children.
  2. Children hate to be left out or to be different.
  3. Same sex parents therefore wanted to be married so that they could go to parent teacher nights etc and be recognized. [so far an interesting inversion of the ‘all about the children’ arguments – it shows how people attribute to their opponents their own ways of thinking]
  4. So now they were trying to subvert our traditional notion of marriage, and take away our marriage, the institution of which we are a part;
  5. Which is part of our Armenian cultural heritage [he didn’t sound very Armenian, if that is possible, and maybe I’m a bit mixed up here with the announcements from time to time that the program was sponsored by St Gregory’s Armenian School – an institution which in fact was wound up some years ago with its premises at Rouse Hill now sold to Malek Fahid Islamic School and much productive – for lawyers – litigation]
  6. And not, (implicitly, like homosexuals) a matter of genital-to-genital.
  7. And now some of our politicians think they know better than us!
  8. there’s this Warren Entsch “not that I know Warren Entsch from a bar of soap – except that a bar of soap leaves you clean
  9. So you should get on your computers, I know you have them, and tell them that you don’t want it;
  10. Don’t let those homosexuals get their fingers on our marriage!

There was more with which obviously I disagree, and I haven’t remembered all the nasty swipes along the way – I’ve only really clearly the remembered the one at Entsch.  I think the “fingers” (why not hands?) remark was also associated in some way with some snide suggestion (maybe about genitals again) that made it seem nastier then than it does as I have reported it.

Meanwhile, today the Liberal Party, summoned by Malcolm Turnbull, has stuck to Tony Abbott’s poison pill.  It’s not that both major political parties (Julia Gillard was a particular disappointment and Penny Wong not much better) haven’t had to wrestle in their own ways with the art of the politically possible, but surely the politically possible is changing?  The biggest irony is that, at least from where I stood, Abbott’s slippery entrenchment of the plebiscite by a joint party meeting was the final nail in his political coffin, because it was not how many had understood his previous political undertakings, even if it was consistent with the fine print.

Even the statutory embedding of a man-woman definition into the Marriage Act in 2004 (one of John Howard’s many bad deeds, though not without accomplices) was such an entrenchment – because if there was nothing to try to resist in a last ditch way there was no point in it at all.

The only consolation I can see at present is that if the head of steam builds up strongly enough, the change, when it comes, will be less traded off for little sheltered pockets of bigotry.

Here’s hoping.

 

 

 

 

Conundrum 2

July 27, 2017

I’s taken me a while, but back to Calokerinos, Executor of the Estate of the late George Sclavos v Yesilhat; Yesilhat v Calokerinos, Executor of the Estate of the late George Sclavos [2017] NSWSC 666.

You will recall that George Sclavos, a pharmacist who had been generous to many or at least relaxed in his attitude to recovering monies lent to many, died suddenly aged 65, survived by his two nieces, Anna and Cleopatra, in whose favour an informal will was found.

Okan Yesilhat disputed the validity of the will. He said he was George’s surviving de facto partner. Okan said this relationship, of many years’ standing, had been a secret.

Obviously there must have been some kind of a relationship between George and Okan. George had advanced substantial sums of money to Okan – well above the other amounts known to have been advanced by him to others – and he had given Okan the means and authority to conduct his bank accounts.

To me, as a gay man, Okan’s claim of there being a sexual relationship is a plausible one. On reflection, perhaps that is putting it too simply. To me it is plausible that, if there was a sexual relationship, it would have been conducted in complete secrecy in the way that Okan alleged.

On the other hand, it is very easy to make up a story about someone who is dead. A court must scrutinize carefully any claims of dealings with deceased persons and especially where those claims rest entirely on the word of the surviving person who makes the claim.

Lawyers often talk about whether one judge or another is a good “draw” for their client. This preserves what in some ways must be a legal fiction, that there is some random process of selection of which judge hears a case. Often it may be that the selection of a particular judge from those available is a matter of chance, but the selection of judges itself is clearly far from being so.

In any case, it doesn’t look as Justice Slattery was a very good draw for Okan. As he said at paragraph [28] of his reasons for judgment:

The Court soon began to doubt Mr Yesilhat. Early in his evidence he explained how he deliberately deceived his first wife about his alleged relationship with George. Without a flicker of shame he elaborated upon a cynical scheme to mislead his first wife, Ms Susan Katri, into believing he was not with George at night. His story of lying to his first wife is barely worthy of credit. But the fact that Mr Yesilhat was prepared to parade such studied trickery carries its own significance. Why would one who shamelessly avowed deceit of a spouse, not practise deceit on this Court?

When I first read this, I thought “Whoah!” There seemed to be a kind of paradox  – a variant on “all men [sic] are liars” – in this case, “all closeted gay men are liars.” So is no self-confessed closeted man to be believed?

What Slattery J found “barely worthy of credit” (credit here means worthiness of being believed rather than reflecting well on the teller) was Okan’s claim that he used to go to a gambling club before leaving without placing a bet to spend time with George.  Okan said he did this so that he could produce the ticket to his then wife (who had already complained that he saw too much of George) as, in effect, an alibi.

Slattery J didn’t accept this.  I’ve inserted in bold the numbers for his reasons:

[211] (1) First, it is difficult to accept that Mr Yesilhat could have kept up this pretence for years, when he claims his visits to the deceased were regular. (2) Secondly, his claimed alibi was unstable. Other people frequented the same club and would have been able to see that Mr Yeslihat had left to go elsewhere. (3) Thirdly, such an alibi was likely to create quite separate domestic concerns: that he was gambling away the family’s money. He sought to answer that threat by explaining that this poker club was not one where gambling for money occurred. But that does not meet the problem that to a person being shown sign-in slips at a gambling club it may not have looked that way. (4)Finally, Mr Yesilhat’s case of arranging regular assignations with the deceased behind his first wife’s back infers that the deceased was complicit in this deception. How else could the deceased believe that a married Mr Yesilhat could spend so much time with him?

[212] (4A) But that is not consistent with the deceased’s character.  All the evidence about the deceased points to a man who  (4A1) had an open and friendly nature, (4A2) had deep moral feelings and religious scruples especially about his sex life, (4A3) maintained warm relationships with family and friends and (4A4) had never been involved in fraudulent activity. But Mr Yesilhat seemed comfortable to accept that the deceased was as dishonest as he was in conducting this relationship.

That’s a lot of reasons. Maybe 2 is the best, were it not that many affairs are conducted under cover of equally risky alibis.  My own skepticism would be of the elaborateness and consistency of the claimed ruse rather than its fragility – why not a variety of garden husbandly lies?   3 assumes Okan’s wife did not know/believe that no money was gambled at the club.  I don’t think I would be as ready as Slattery J is to take 1 and 4 (4A4 in particular is a stretch – how can you prove such a negative?) as from the start tending to preclude the truth of Okan’s account.

There’s a lot more in the judgment and the judge had plenty more reasons to which I find myself without the energy to do justice.  The thing is, unlike the rest of us who can afford a Marabar-caves sort of indeterminacy, he did have to make up his mind. That’s his job.

From which you’ll probably realise that Justice Slattery totally dismissed Okan’s claim, and upheld Cleopatra’s claim for repayment of all monies paid to or taken by Okan, with interest.  Okan’s story was just that: the story Okan had to tell if, following George’s sudden death, he was to avoid having to repay the money he had already received from George and hang on to the money he opportunistically grabbed by continuing to use after George’s death his capacity to operate George’s accounts. That Okan had obtained monies on such a scale and authority to operate George’s accounts in this way was not to be attributed to any sexual relationship between them, but rather that (at [312]) Okan was an “intuitive and manipulative individual” who well understood and was close enough to take advantage of George’s generosity.

So much (so far as the monies obtained by Okan and his company in George’s lifetime were concerned) for any credit in heaven which George professed a hope to attain on account of funds unrepaid at his death.

Nieces and intestacy

Why, asked Cleopatra (rhetorically), would she seek to forge a will as Okan claimed she had when, as George’s nieces, she and Anna stood to benefit anyway under what looked like otherwise being intestacy?

It is possible that this emerged during submissions as a result of a remark by the judge himself.  As he said at [688]:

the Court did raise the hypothesis in submissions that George’s nieces would take on George’s intestacy. But in the course of preparing these reasons it is clear that hypothesis was based on an erroneous assumption as to the present State of New South Wales law at the time of the deceased’s death. The nieces or nephews of an intestate in New South Wales have no entitlements; the State of New South Wales would be entitled to his estate: Succession Act, Parts 4.3 and 4.5.

I think his Honour’s first instincts were better than his afterthought.

This is the contents page to parts 4.3 and 4.5 of the Succession Act (part 4.4 deals with indigenous families) to which his Honour refers:

PART 4.3 – DISTRIBUTION AMONG RELATIVES
Note

   127.    Entitlement of children
   128.    Parents
   129.    Brothers and sisters
   130.    Grandparents
   131.    Aunts and uncles
   132.    Entitlement to take in separate capacities

   PART 4.5 – ABSENCE OF PERSONS ENTITLED

   136.    Intestate leaving no persons entitled
   137.    State has discretion to make provision out of property to which it becomes entitled

If you go by the contents listing alone, there is no section which, going by the headings, deals with the entitlements of nephews or nieces.  However, section 129 is as follows:

129 Brothers and sisters

(1) The brothers and sisters of an intestate are entitled to the whole of the intestate estate if the intestate leaves:

(a) no spouse, and

(b) no issue, and

(c) no parent.

(2) If no brother or sister predeceased the intestate leaving issue who survived the intestate, then:

(a) if only one survives-the entitlement vests in the surviving brother or sister, or

(b) if 2 or more survive-the entitlement vests in them in equal shares.

(3) If a brother or sister predeceased the intestate leaving issue who survived the intestate:

(a) allowance must be made in the division of the estate between brothers and sisters for the presumptive share of any such deceased brother or sister, and

(b) the presumptive share of any such deceased brother or sister is to be divided between the brother’s or sister’s children and, if any of these children predeceased the intestate leaving issue who survived the intestate, the deceased child’s presumptive share is to be divided between the child’s children (again allowing for the presumptive share of a grandchild who predeceased the intestate leaving issue who survived the intestate), and so on until the entitlement is exhausted.

If I am reading this aright, contrary to his Honour’s observations, nieces and nephews (and for good measure any intersex children of siblings) do have entitlements under intestacy in the event that their parents had an entitlement but predeceased the intestate person.  Siblings have an entitlement if a person dies without parents, spouse or issue.

If George died without leaving a will, under s 129(1), George’s parents having predeceased him and he dying single and childless, his brother would have been entitled to the whole of his estate. George’s brother having predeceased him, under s 129(3)(b), that brother’s daughters, ie, Anna and Cleopatra, his nieces, would have been entitled to share that brother’s presumptive share equally.

 

 

 

 

A conundrum

July 9, 2017

Maybe we are all unusual people, if you can only look closely enough, but George Sclavos, who for many years conducted a pharmacy at Leppington must have stood out.

From the late 1980s, George, who graduated as a pharmacist in 1973 when he was about 25, owned and ran a pharmacy at Leppington (near Campbelltown).  George never married and you’d have to say that the pharmacy really must have been his life.   He befriended many of his customers, including the local “down and outs” from the caravan park nearby whom he would often invite in after hours to spend time with him after the pharmacy had closed.

George was the “go to” man amongst his fellow shopkeepers at Leppington for making up a float at the start of the trading day.  He lent many people money, but if they didn’t pay him back was apparently content to leave that as something which would rest on their consciences or probably souls (he was devoutly religious) if they failed to repay him.  He told a friend “If I die and they owe me the money maybe God will put that in my credit to cover my sins.”

George was a heavy smoker, and it seems that other aspects of his shopkeeping lifestyle were quite unhealthy.  In 2013, aged 65, he died suddenly at the pharmacy.

George’s older and only brother, his father and his mother had predeceased him in 1980, 1979 and 1992.  He was survived by Anna and Cleopatra, his brother’s daughters.  George had told his nieces that they would find a will in his house.

George had lived since 1983 in a house in Strathfield first owned by his father and later by him.  He was a bit of a hoarder.  His nieces and family friends set about tidying things up in the hope that the will would surface in the process.

A document later admitted to probate as a informal will was found in George’s bible (which was on the table next to his bed), folded around an old photo of Anna and Cleopatra.  This appointed Cleopatra (who is a barrister by profession) as his executor and left George’s estate of about $6 million to her and Anna equally.

But there was another claimant.

Okan Yesilhat claimed he had met George in 1999 when Okan was 17 and George about 51.  Okan said he had been in a sexual relationship with George from that time and was in a de facto relationship with George at the time of George’s death.  Okan said that the document found in the bible must have been planted there and was not a will.  He said that probate of the will should be revoked, in which case (on his contentions) he would take the entire estate as de facto “widower” on intestacy.

As a fall-back Okan claimed family provision on the basis of his asserted relationship with George.  As a fall-back or parallel claim to that, Okan also said that money which he had received from George in George’s lifetime was a gift rather than money that Okan had to pay back. This was about $386K less payments by Okan or his company in George’s lifetime of about $82K – a net amount of $304K.

Okan had also taken money out of George’s accounts after George’s death using means of operating these accounts which George had given him.  Even if you are authorised to take money from someone’s accounts while they are alive, that authority ceases on their death and any money taken out after usually has to be repaid to the estate.  One way or another (as the heir on intestacy or by means of provision in a greater amount) Okan sought to resist having to repay these post-mortem amounts, of about $206K.  Okan had made a further $7-8K of withdrawals from George’s accounts which were reversed by the bank when it stopped the account at Cleopatra’s request.

Anna and Cleopatra knew about Okan, because in 2011 George had told them that he had lent upwards of $100K to Okan for a tyre business on Canterbury Road in Lakemba.  Anna and her husband had visited the business and met Okan not long after that.  You could not blame Anna and Cleopatra for feeling some disquiet about this, let alone about the full picture which came to light after George’s death, not only of the substantial amounts which had passed in his lifetime, but also the post-mortem withdrawals from his accounts.

But Okan’s claim of a 14-year homosexual relationship with their uncle came as a complete shock to them.  As far as they were aware, although unmarried, George had had a number of girlfriends in his life.  There was a bit more mystery over the circumstances in which George had harboured in his home from 2005 to 2008 a (since deceased) married mother-of-five sex worker with a drug problem whom he had met on Canterbury Road.

To Cleopatra and Anna Okan’s claims were not only a shock but a calumny.

Okan for his part maintained that his relationship with George was secret for cultural reasons.  He rubbed salt in to the wound (so far as Anna and Cleopatra were concerned) by claiming that George was dismissive of and said disparaging things about them.

By the time the matter came to trial, it emerged that if Okan was telling the truth, he had his own cultural reasons for keeping his relationship with George secret, including two marriages of his own.  For good measure, witnesses claimed that even when married he was seen consorting with other women.

There was no evidence from anyone, even Okan, of either George or Okan having any other same-sex relationship.

The matter was heard over 21 days in early 2016 before Justice Slattery. It took his Honour over a year to deliver his decision: Calokerinos, Executor of the Estate of the late George Sclavos v Yesilhat; Yesilhat v Calokerinos, Executor of the Estate of the late George Sclavos [2017] NSWSC 666.

That seems a long time, even if his Honour was off on leave for some of it, though the reasons are certainly lengthy.

If you’re the kind of person who likes to skip to the end of the book to find out the ending, or to look up the endings of TV serials on the internet (I am that kind of person) you can find out more there. Otherwise, you’ll have to wait until I have the energy to write another post.

Pointless III

June 8, 2017

Mr Chan becomes a defendant

Of course Chan was a defendant for the vexatious litigant proceedings, but those proceedings were concluded.

It is now necessary to go back to the last proceedings referred to in the judgment of Adamson J, involving TAFE NSW and the examination summons.

TAFE NSW obtained an order for costs in the proceedings brought by Chan against it.  TAFE NSW had those costs assessed.  Chan did not pay the costs.  TAFE registered the assessment as a judgment in the Local Court.  Once you register an assessment as a judgment you can then invoke the procedure of the court to enforce it.

An examination summons is a procedure where a judgment creditor can bring a judgment debtor before the court where it has obtained a judgment to answer questions about his assets.  The purpose is to enable the judgment creditor to obtain information about what means the debtor may have to satisfy the judgment, which the judgment creditor can then use to decide how to seek to recover its debt.

The first step is to serve a notice on the debtor requiring the debtor to produce documents in relation to his means.  TAFE did this in July 2010.  Chan failed to comply with this.

The next step is to get the court to issue an examination summons for the debtor to attend court and be examined. TAFE NSW did this, probably no earlier than late September 2010, as in October 2010 the Local Court made an order under Rule 38.3 for examination of Mr Chan, on 27 January 2011.

The examination was adjourned to 17 February 2011 after Mr Chan filed a notice of motion seeking an annulment of that order. His motion was later dismissed and he was ordered to submit to the examination in the Local Court on 17 March 2011.

The examination was deferred because in February 2011 Chan commenced the proceedings in the Supreme Court which were dismissed by Fullerton J on 30 June 2011.

On 6 December 2011, Chan appeared before Magistrate Atkinson on the occasion set down for the examination.  He sought another adjournment, on the basis that he intended to appeal Fullerton J’s decision. After considering the notice of intention to appeal which Mr Chan then produced, her Honour refused the further adjournment. It is worth pointing out that the time to commence any such appeal had well and truly passed and any application for appeal would have required leave of the court as a result of Justice Adamson’s orders made on 4 November 2011.  The time to appeal from those orders had also passed, and no leave had been sought to appeal from Fullerton J’s orders.

Magistrate Atkinson refused the adjournment and ordered Chan to enter the witness box to be examined.  Chan refused.  Magistrate Atkinson told Chan that if he refused, she would refer the matter to the Supreme Court for him to be charged with contempt of court.  Chan still refused.  The examination did not occur.

In February 2012, the Prothonotary of the Supreme Court commenced a prosecution of Chan for contempt of court.

This is a cumbersome procedure.  It also encountered many delays.

Chan was the source of many if not all of these delays.

Proceedings were commenced by summons in December 2009.

Chan sought legal aid – his application was rejected and the matter had to be stayed to permit him to appeal that rejection; he sought and was given pro bono legal advice, which it may be inferred he did not accept.  Twice.

In May 2014  Chan raised the question of his fitness to be tried, a question which the Prothonotary considered had to be resolved.  This too proved a protracted process as Chan declined to provide his own psychiatric report or to be seen by Dr Allnutt, the psychiatrist finally selected by the Prothonotary to assess Mr Chan’s fitness to be tried in 2015.  Ultimately Dr Allnutt opined that Chan was not unfit to plead.  On 20 August 2015, by now up to no 15 in published reasons for judgment, Schmidt J held that, though Chan suffered from a mental condition that involved either delusions, or paranoia or likely both, he was fit to be tried.

On 23 June 2016 Justice Schmidt found Chan guilty of contempt.  Her reasons are No 20.

On 21 July 2016, Justice Bellew made orders for Mr Chan to attend for a pre-sentence report and for the filing of submisions in time for a hearing on sentence to occur on 7 and 14 October 2016.

As ever, that was not quite to be, but a sentence hearing did go ahead on 16 November 2016.

A development

But meanwhile, in December 2015, Justice N Adams had held that before deciding to refer a non-co-operating witness to the Supreme Court for prosecution, a magistrate had to offer the witness procedural fairness, and in particular an opportunity to make submissions as to whether the magistrate should deal with the contempt themselves – which they have the power to do.  The significance of this is that if a magistrate deals with the matter, the maximum penalty is less.  Maybe also section 32 of the Mental Health (Forensic Provisions) Act 1990 could apply.  (That’s my speculation, not Justice N Adams’ and its application to someone like Chan would be problematic.)  If the magistrate had not given a witness an opportunity to be heard on this question a prosecution by the Prothonotary is invalid.

The Prothonotory appealed against this decision but in October 2016 the Court of Appeal dismissed that appeal – Prothonotary of the Supreme Court of New South Wales v Dangerfield [2016] NSWCA 277  .

At the sentencing hearing, the Prothonotary (not that the Prothonotary, a court official whose exact present identity is decidedly difficult to track down, does this themselves) brought Dangerfeld to the attention of Justice Schmidt, but submitted that it did not apply in the case of Mr Chan.

On 2 June 2017, in judgment No 23, Justice Schmidt held that Dangerfield did apply.

Chan had submitted that if it did apply, then that should be an end to the matter.  Justice Schmidt instead ordered that the findng of contempt be revoked and the question of how Chan should be dealt with should be referred back to the Local Court.  In other words, the clock should be wound back to the point where Chan had been denied the opportunity to make submissions as to whether the Local Court should deal with the matter itself.

Despite Justice Schmidt’s stating that, because the finding of contempt was made before the decision of the Court of Appeal handed down its decision in Dangerfield, the proceedings were not a nullity, it is hard to avoid the feeling that all that went before in the Supreme Court was therefore essentially pointless.

What was the point of the examination summons?

By the time TAFE NSW started the process which culminated in the examination where Chan refused to enter the witness box, there were already published reasons from which it could be inferred that costs orders had been obtained against Chan by a whole host of parties other than TAFE NSW in at least the litigation which I have described in Pointless I as:

  1. the tenancy appeal;
  2. the Public Housing complaints;
  3. the train ticket subpoenas;
  4. Perry defamation; and
  5. the Constitutional objection to court fees (finally disposed of on 30 August 2010).

By the time the examination went ahead, it could be reasonably inferred from published reasons for judgment that Chan had also been ordered to pay costs in:

  1. The Local employment training solutions litigation;
  2. The previous proceedings against Mr Tran referred to in the published judgments in those proceedings; and
  3. The vexatious litigant proceedings.

It was also apparent that:

  • in 2003 Chan had been tenant of a room in a house;
  • since 2005 Chan had been a public housing tenant; and
  • he was a Centrelink client (and probably had been for some time given that he had obtained public housing in 2005) most recently on Newstart allowance.  (In fact, by April 2016 he had graduated to a disability support pension.)

The first of these strongly suggested he was hardly a man of means to start with and the second and third made him practically judgment-proof.  You can’t garnish Centrelink payments (only Centrelink can do that). A public housing tenant has no house to be sold up.

A moment’s reflection ought to have led to the conclusion that this situation was unlikely to change, especially given all that Chan’s many litigious ventures indicate about the kind of person he was, of which TAFE NSW must have had its own multiple demonstrations.  Even if Chan did have some assets against which a judgment could be recovered, the proceeds of such recovery would be vulnerable to being clawed back as preferences if any other costs-creditors took the trouble to have their costs assessed and he were then sent bankrupt.  I strongly suspect that most if not all of those with costs orders against Chan concluded that it was pointless even incurring the costs of having those costs assessed.

In the light of the enormous public expense that has been incurred by the State of NSW in one guise or another to date in the pursuit of the contempt charges against Mr Chan, which has still not yet run its course, it seems to me a pity that TAFE NSW took a different view.

 

 

 

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Pointless II

June 7, 2017

This is the second post in a series of posts about Yau Hang Chan, his interaction with the court system (and some tribunals) and that system’s interaction with him.

A vexatious litigant

On 25 March 2011 the NSW Attorney-General commenced proceedings in the Supreme Court of NSW under s 8 of the Vexatious Proceedings Act 2008 (NSW) for orders prohibiting Chan from commencing proceedings in NSW and staying all proceedings in NSW without and subject to the leave of the Court.

When the matter finally came on for hearing on 18 October 2011, Chan did not appear.  He had previously filed submissions and sent various communications disputing the validity of the proceedings against him, including a message on the day of the hearing that he would not appear.  The matter proceeded.  On 4 November 2011 Justice Adamson made the orders sought.

Most of Pointless I was drawn from Justice Adamson’s reasons for judgment.  In addition to the proceedings listed in Pointless I, by the time the application was heard Chan had brought fresh proceedings in the Supreme Court against TAFE NSW.   These proceedings were in relation to steps (of which more in Pointless III) that TAFE NSW had taken towards enforcing costs orders it had obtained against him.  The proceedings were summarily dismissed by Justice Fullerton on 30 June 2011.

What my account has necessarily abbreviated is the full nature of Chan’s conduct which founded Justice Adamson’s decision.  You need to read her decision to appreciate the wide range of collateral issues raised by Chan in his proceedings, and the many claims which were made by him, many of them ultimately abandoned or never backed up or never backed up in any cogent way.

A hallmark of many vexatious litigants is a capacity to perceive grievances and to formulate claims and arguments but a reluctance to bring them to finality.  Faced with opposing arguments, fresh claims are brought, amendments and adjournments sought, applications are made to disqualify judicial officers.

This is tremendously and unfairly burdensome to opposing parties and also to the courts.  Just because the claims are meritless does not mean they can be ignored. Even if, in hindsight, Chan’s claims once dismissed can be seen as ridiculous and even foolish does not detract from the stress that they will have caused to those subject to them.

Ultimately a stop has to be put to it.  That stop does not prevent a vexatious litigant from attempting to bring a claim, but it does reverse the usual presumptive right of all persons to bring claims and the concomitant burden on the objects of those claims to respond to them.  Before a potential defendant or respondent need be troubled with the vexatious litigant’s claims, the court will consider whether the claim has arguable substance.

So you might think that Justice Adamson’s decision brought to an end Mr Chan’s entanglement with the court system and, more importantly, his entanglement of others.  What a relief.

But no.

What happened next is the subject of Pointless III.

 

Pointless I

June 6, 2017

This is the first in a series of three posts about Yau Hang Chan, vexatious litigant who currently faces the prospect of prosecution for contempt of court.

Like all long and sad tails, the beginning must lie buried in the mists of time, but it is necessary to begin somewhere.

Tenancy appeal

In February 2003 Yau Hang Chan entered into a residential tenancy agreement in respect of a room in a building at Croydon, for the term of one year commencing on 8 February 2003 and ending on 7 February 2004.  That, you might observe, is pretty much the most humble rental accommodation possible.  You can assume Chan was not a man of any substantial means.

On 3 December, the landlord gave him notice that he had to leave at the end of the term.  Chan did not leave and the landlords quite briskly obtained an order from the Residential Tenancy Tribunal for his eviction in March 2004.  Chan resisted this order by appealing (I infer some time in March 2004) to the Supreme Court, on grounds, mostly procedural, which were ultimately found to be baseless on 13 August 2004.  It counts as a mercy that he was then given until 27 August 2004 before the eviction order could be carried out.  He reached the end of the road with an application to the Court of Appeal for a stay pending an appeal to the court which was rejected on 24 August 2004.  Evictions are rarely carried out on the very first possible day, but nevertheless you can assume he was out pretty soon after that.

This must have been a dark time for Mr Chan.  On the other hand by his resistance he had effectively extended his occupation of the room for about six months, which was a pretty good result.

Chan’s situation was apparently desperate enough for him to be allocated public housing, which he moved into on 18 February 2005.

Unsuccessful TAFE studies proceedings 

By then Chan had enrolled in January 2005 in a course at Ultimo TAFE.  In the second half of that year he was enrolled in the subject “Develop and Apply Knowledge of the Library/Information Services Industries.”  This ran from July to 30 November. On 15 November his teacher informed him that he had failed a group presentation assessment task.

On 16 November 2005 Chan commenced proceedings challenging this in the Supreme Court against the the teacher personally and the TAFE Commission.  When the matter first came before the court on 20 November it was stood down to give the parties the chance to reach a negotiated resolution.  Mr Chan wanted to withdraw from the course without penalty.  The TAFE Commission said that he could withdraw but that a fail would still be recorded.  Chan withdrew and a fail was recorded.  You can see that from his position the negotiations were fruitless and probably they were always going to be.  Chan continued his proceedings.  These were ultimately summarily dismissed by Master Malpass (actually by then he was an Associate Justice but Master Malpass has a much more satisfying ring) in June 2006.

Mr Chan appealed unsuccessfully against this.  He made FOI requests and appealed decisions against them.  In 2008 he commenced fresh proceedings against his TAFE teachers’ superiors with claims in defamation, misfeasance in public office and negligence.  Those claims, other than the claim for defamation, were dismissed in December 2009.

Public Housing complaints

Meanwhile, almost as soon as Chan had moved into his public housing, he came into dispute with the Housing Department (a loose term because there were name changes for the relevant entity from time to time).  Some of these he agitated in proceedings in the CTTT (the Tenancy tribunal) leading to a deed of settlement in 2006.

Claims by Chan eventually included that, from the outset, the Department had wrongfully backdated his lease by one day, that officials had defamed him, and various matters concerning condition reports and smoke detectors.  In March 2008, Chan commenced proceedings against the Department.  In 2008 he also commenced proceedings against an officer of the Department for defamation (and other matters) in relation to a letter she had sent him about inspection of smoke alarms in his property.  Both proceedings were ultimately dismissed as hopeless by Justice McCallum in August 2009.

The train ticket subpoenas

On 22 January 2007, Rail Corp brought proceedings in Sutherland Local Court against Chan for allegedly travelling on a train without a ticket.  This led to satellite proceedings commenced by Chan in April 2008 against the Local Court (a magistrate had set aside a subpoena) and even (in December 2008) against an employee of Railcorp who had appeared for Railcorp in the proceedings against the magistrate to inform the court that Railcorp rather than the magistrate was the proper defendant – as a result of which Chan was permitted to amend his summons.  The proceedings against the Railcorp employee were dismissed in April 2009 and those against the Court (by which time the Attorney-General had also been joined) in September 2009.

Perry defamation

On 9 January 2009, Chan commenced proceedings against Ms Perry alleging conspiracy and defamation in a letter she had sent him in December 2007 from the office of the NSW Premier in response to letters from him complaining about certain conduct of the NSW Police Force and about certain legal proceedings.  These proceedings were dismissed by Justice McCallum on 27 November 2009 on the basis that Chan’s pleadings and draft pleadings disclosed no reasonable cause of action ( Chan v Perry [2009] NSWSC 1293). Along the way Chan made an application that Justice McCallum disqualify herself which she dismissed on 19 November 2009 ( Chan v Perry [2009] NSWSC 1278).

Police FOI case

On 30 December 2009, Chan applied to the ADT  for review of a decision by the NSW Police Force decision in respect of a decision it had made in a relation to a privacy complaint made by him in relation to its COPS records.  This application was ultimately dismissed for want of prosecution by Chan.

Constitutional objection to court fees

On 8 February 2010, Chan caused a summons to be issued from the High Court seeking a declaration that Schedule 1 of the Civil Procedure Regulation 2005 (NSW) (relating to court fees) was invalid.  On 10 May 2017 this came before Justice Heydon – transcript here.    Although Chan had failed to file a statement of claim as required by the rules, the case was remitted to the Federal Court.

In the Federal Court Chan also filed a notice of motion seeking that certain Local Court proceedings be stayed.  On 6 August 2010 Justice Perram dismissed that application and ordered that these proceedings be dismissed if Chan had not filed a statement of claim by 30 August 2010 and stayed until he did so.  Chan did file something but in March 2011 Perram J held that it was not a statement of claim and so the proceedings had been dismissed on 30 August 2010.

Local employment training solutions

On 17 May 2010, Chan commenced proceedings in the Federal Court for preliminary discovery against Mr Harris, an employee of Catholic Care Sydney, which operates the Local Employment Training Solutions (LETS) program. Preliminary discovery is a procedure where you can obtain documents relevant to a claim you might have in order to decide whether or against whom to bring it.  On the same day, Chan filed a statement of claim alleging that the report prepared by LETS and provided to Centrelink contained fraudulent and defamatory allegations and that those allegations were part of a conspiracy to injure him.  Both cases came before Justice Cowdroy for case management.

The application for preliminary discovery was ultimately dismissed for want of prosecution by Justice Cowdroy on 10 December 2010, but not before Chan had made an unsuccessful application that Cowdroy J disqualify himself because he had presided over a previous application by Chan in May 2009 for preliminary discovery.  Those proceedings were against Tran, an employment consultant to Centrelink, for documents relating to Chan.  Cowdroy J had made orders for preliminary discovery, Tran had produced some documents, Chan complained that production was incomplete and brought a notice of motion against Tran for contempt, Tran produced some more documents, Cowdroy J gave leave to Chan to withdraw the application for contempt and the proceedings were otherwise dismissed by Cowdroy J in June 2009.

Chan appealed against Cowdroy J’s refusal to disqualify himself and then against the final decision.  The appeals were ultimately dismissed (after various collateral issues were raised by Chan) by Justice Katzmann on 11 April 2011.  Chan instituted a fresh appeal which was dismissed by Justice Rares in May 2011.

By then, steps were underway to have Chan declared a vexatious litigant.  That will be the subject of the next post in this series.

 

Proposed travel ban for pedophiles

May 30, 2017

News  is out today that the Australian government, at the urging of HH Derryn Hinch, will be taking passports away from convicted pedophiles.  It is estimated that over 20,000 convicted sex offenders on the National Child Offender Register may lose their passports or their eligibility for them.

It’s a slippery slope, and we seem to be rushing headlong down it.  Here is one comment by “Mark II” on that story:

I think it’s a great initiative – I am no supporter of this government but I think this will sail through with bipartisan support. In fact, I’d extend it further, and say anyone convicted of a trafficking offence for drugs or serious financial misdemeanours should be barred from travelling, too. I’m not talking about a recreational marijuana user or kid who’s swallowed some E down the club – but anyone selling, sorry, you lose the right to be tempted a la Corby and the current clone. And – if you rob your employer or clients and go to jail for it – likewise. No escaping overseas to start anew and avoid your garnishee responsibilities.

At  least “Mark II” shows some awareness of the possible blanket-reach of such measures.  Good luck to him in expecting that the authorities will draw the right line between serious and minor offences – the current approach to even trace elements of drugs (which provide no evidence of intoxication or impairment) in roadside drug tests is a case in point.

Others cheerfully propose even more radical measures without such awareness.

My own feelings are more in line with this comment, by “Jack” (though “scum” is not a word I would choose to use even of people who do very bad things):

I agree child sex tourists are scum. But we need to be careful with populist blanket legislation because, as we have seen, it can have unintended consequences and it can impose excessive punishment on those individuals who are not likely to reoffend. This is why authorities, even in the USA, have questioned the fairness and effectiveness of blanket sex offender registers. So I’d rather see a targeted register, with judges having the option of putting a name on it.

 

If you follow the jurisprudence in NCAT and other tribunals dealing with applications for Working with Children Clearances (rough selection here), you will soon discover that a very broad range of people commit offences against children.  Only some of these are indicative of a settled tendency to abuse children; many others are products of specific situations which are not likely to be repeated or where the person convicted is likely to rehabilitate and has by now shown that to be the case. These, include juvenile “sexting,” obsessive curiosity in the face of the internet, difficult family and personal circumstances, immaturity and loneliness.

There is a whole heap of bus drivers who have done something wrong within their own family, often many years ago, but who have driven buses without incidents for decades, who are currently been deprived of their employment even though the likelihood of their offending against someone outside the family must be very small – as their incident free record since demonstrates.  They go to the tribunal to try to get a clearance but often fail because they lack the resources to mount a proper case.

Some people who have pleaded guilty many years ago to what then seemed a minor offence (which they might have defended) must now regret that decision bitterly.

To ban someone for life from leaving the country is a very simplistic response to a wide range of offences.

If there are to be travel bans, it would be better if these were imposed on a case by case basis when there is a real risk; they could be limited by time or subject to some procedure for review/extension.

I realise that whilst this could be done going into the future for fresh offences, it would leave unaddressed the question of historical offences.

It is not easy to see how this can be addressed.  The many difficulties just expose to me the fundamental wrongness of imposing a civil disability retrospectively in a blanket way.

Cases of notorious sex offenders in South-East Asian countries (mostly) are rightly a matter of outrage, but they must be a very small number compared to the 20,000+ on the Child Sex Offenders Register (plus those whose offences occurred too long ago for them to make it on to the register).

One possibility would be to impose a more selective ban, targeted to those with historic offences whose travel activities indicate repeated travel to “child sex tourism” destinations.  In the future, this would require more rigorous collection of destination information for overseas travellers, which at present is mostly based, I expect, on self-reporting on travellers’ return.

Whatever will be done will involve some overreach, and even if there is a mechanism for appealing against it, will inevitably work against the less well-resourced.  It will also work against people with family overseas who have legitimate reasons to visit them and for whom the usual assumption (and Government attitude) that a passport is a privilege rather than must be questionable.

In the meantime, we can expect charges of offences of this nature to be defended more vigorously than ever, with attendant trauma to complainants/victims.  This is already happening.  Even when there is a plea of guilty, the process of investigation (to ensure nothing worse happened) and prosecution has its own Heisenberg effect, as in the case of Christopher Ryan Jones which led to victim impact statements from victims who would probably otherwise have been happily oblivious of the wrong done to them.

 

 

 

 

 

Adrian Ashley of the House of Cooper

May 3, 2017

One day, Adrian answered a knock at his front door.  He was seized by two men.  Adrian said they were assaulting him; they said they were policeman (which, though in plain clothes, they were) arresting him on a bench warrant for failure to attend court in relation to a charge for possession of cannabis.

Adrian called out to Izabella-marie, who was in the house.  She phoned Keith for help.  Keith talked on the phone to the police but was ineffective in dissuading them from taking him to Newtown Police Station.  Keith (and maybe Izabella-Marie) went to the Newtown Court House.  Keith’s account of what happened there is as follows:

(18)   We [Keith] went into the court room, where the presumed magistrate (her office/title was undisclosed) was made aware that We believe the Man called by Adrian may be under false arrest due to the fact that due process of law to which Adrian was deprived and was not followed, as such the officers may have committed assault, abduction and kidnap in company without warrant.

(19)   One [Keith] was asked by the Magistrate if we wanted to apply for bail.

(20)   We made her aware that we wanted him released immediately due to the failure of the police officers to follow due process of law.

(21)   The Magistrate then asked “Mr Cooper” if he wanted bail? One informed her that Adrian was not a Mister as this is a military title and that he is not in the military and that the man known as Adrian uses no titles.

(22)   The Magistrate said “bail is refused” and left the court, knowing we were there to get Adrian released as we believe the Police officers may have exceeded the alleged authority which would be misfeasance of their office and therefore also committing a wrong/tort in their private capacity under common law.

On 26 April Keith went to the Supreme Court seeking a writ of habeas corpus for Adrian’s release.  He said (to paraphrase):

  • Adrian was a loyal subject of the Queen who believes the St James Bible to be the only law and has not consented to be governed by the laws of this state (having delivered a declaration to that effect to the police);
  • Possession of cannabis could not be a crime, citing Genesis:
    “And God said, Behold, I have given you every herb bearing seed, which is upon the face of all the earth, and every tree, in the which is the fruit of a tree yielding seed; to you it shall be for meat.”
  • The arrest was unlawful because (1) the police did not have the warrant with them; and (2) because it was effected violently.

None of these points succeeded before Justice McCallum, sitting as the duty judge.  As the application (which was procedurally irregular in many respects) had been brought outside usual sitting hours, she dismissed it and reserved her reasons, now published as Application of Adrian Ashley of the House of Cooper [2017] NSWSC 533.

As to the Genesis argument, McCallum J couldn’t resist a bit of judicial humour (at [10]):

The point might have been made in response to the petitioner’s [Keith’s] submission that, according to those words, if it is God who supplies cannabis to man, it is for nutritional rather than recreational purposes.

but seriously, folks:

In any event, I took the view that the matters contended for by the petitioner would not afford a defence to an offence against ss 10 or 23(1)(c) of the Drug Misuse and Trafficking Act1985 (NSW), which prohibits the possession of cannabis in a number of forms, regardless of its origin.

She held that is not necessary for police to be in possession of a warrant to effect an arrest under it.

The “Hutt River Province” argument was manifestly hopeless.  As she concluded [these numbers should start at 24]:

  1. I did not think it was reasonably arguable that the applicant’s [Adrian’s] affirmation and proclamation were effective to relieve him of the constraints imposed upon him by the law.
  2. Unsurprisingly, the petitioner concluded his submissions by citing Magna Carta (version not identified).
  3. After hearing from the applicant at length, I formed the view that no reasonable basis for a writ of habeas corpus was disclosed and, indeed, that the application was manifestly hopeless. In that circumstance, I did not consider it appropriate to grant the relief sought or to make orders for any further step to be taken in the proceedings.
  4. I wish to record that, during the hearing, I informed the petitioner on a number of occasions that it remains open to the applicant to make a release application under the Bail Act 2013 (NSW). The petitioner appeared to reject that proposition, evidently taking the view that a release application is only appropriate in circumstances of lawful detention, whereas he contends the applicant’s detention is unlawful. The petitioner’s view is misconceived in that respect and he potentially does the applicant a disservice in adhering to it. It is to be hoped that the applicant is aware of his entitlement (notwithstanding his stated position of eschewing the benefits and privileges conferred upon him by the State) to bring a release application under the Bail Act. Any such application is likely to be better received without the embellishment of insistence upon medieval modes of address or ill-informed incantation of God’s law and Magna Carta.

Oh, everything is so civilized in the Supreme Court, even if it is only on the surface.  Of course it didn’t get Adrian out of gaol.  Nevertheless, Justice McCallum heard Keith and allowed him to make his application at length, outside normal court hours, and even gave a little bit of judicial advice.

I wonder if things were all so sweet when, next morning, assuming the police delivered him up, Adrian was brought out of the cells to appear before Magistrate Greg Grogin at the Central Local Court.

Maybe they weren’t.  The charges in the Local Court are listed for mention on 11 May, again at the Central Court, which is the one set up best to deal with people already in custody.

Attitude problem

March 26, 2017

CRM, aged about 80, wanted a working with children check clearance so that he could work in a volunteer capacity.  Regulations under the Child Protection (Working with Children) Act specify a wide range of volunteer roles for which such a clearance is required.

He applied to the Children’s Guardian for this on 24 June 2015.

In 1953 CRM was charged with and was subsequently convicted of an offence of carnal knowledge.

If CRM was 18 at the time of committing the carnal knowledge offence this would count as a disqualifying offence under the Child Protection (Working with Children) Act 2012.  The Children’s Guardian would be obliged to refuse CRM a clearance. CRM could apply to NCAT for an enabling order to be issued with a clearance, but under section 28 of the Act, he would be presumed to pose a risk to the safety of children unless he could prove otherwise.  This is known as “the onus.”

The Children’s Guardian could not tell how old CRM was when he committed the carnal knowledge offence.  The relevant court records were missing and it may be presumed that CRM, if he had referred to it in his application, had not given the precise date.

CRM also had a conviction for obscene exposure.  On a Friday in May 1961 he exposed his penis to a 15-year-old girl on a train.  He was aged 26 at the time.

I am a bit surprised that this was not also a disqualifying offence but it was probably still an offence which would trigger a requirement that the Children’s Guardian undertake a “risk assessment” to determine whether CRM posed a risk (over and above the normal risk anyone poses) to the safety of children before deciding whether issue him with a clearance.

The first step if there is to be a risk assessment is that the Children’s Guardian inform the applicant of this and give the applicant the opportunity to provide further information.  Obviously, the Children’s Guardian would need also to find out from CRM when the carnal knowledge offence was committed.

CRM’s application went nowhere for about a year because he had not given an email address and apparently this prevented the Children’s Guardian from even sending him a letter.  As with Centrelink, the Children’s Guardian has moved its systems online in order to deal with the enormous volume of applications it has to process.

In May 2016, CRM rang the Children’s Guardian to complain that a year was a long time to wait to hear from them.  It’s not clear whether he got to speak to a person then but you can assume that at this point his call was merely logged.  A month later they rang him back.

Even then it does not look as though they asked CRM the right question.  CRM told them he was 18 when he was convicted.

A Children’s Guardian officer went ahead with a risk assessment and decided that CRM did not pose a risk to the safety of children.  Then someone higher up spotted the carnal knowledge offence and determined that CRM was a disqualified person.  The Children’s Guardian was obliged to refuse CRM a clearance, and accordingly knocked him back.

CRM applied to NCAT for an enabling order.  As is always the case, a barrister appeared for the Children’s Guardian.  CRM, by now 81, appeared for himself.

At these hearings, the Children’s Guardian puts into evidence (though the legal rules of evidence do not apply) its file and all the information it has collected.  CRM filed what the Tribunal called a “bundle of material” including the following:

  1. a Certificate II in Security Operations,
  2. a Notice of probationary appointment as Commissionaire at a Government Office, dated 23 June 1982,
  3. a Certificate, dated 18 June 1987, stating the applicant held the appointment of Special constable for the State of NSW in the capacity as Commissionaire,
  4. a heavy vehicle driver licence, a security industry licence and a bus drive licence in the name of the applicant,
  5. a number of references from past employers and friends dated 17 September 1978, 17 December 1981, 21 December 1982, 17 November 1987, 22 February 1988, 28 May 1988, 31 May 1990, 15 May 1991, 20 December 2001, 2 October 2003, 23 June 2008 and 3 May 2011, and
  6. a couple of newspaper articles in regard to “sex offenders” and the “criminal classes.”

You can tell from (6) that CRM really didn’t have much of a clue about how such hearings might proceed.  You can also infer that the point he wanted to make was that he had worked in a number of jobs with exposure to the public including children (he had retired as a bus driver in 2002) where he was trusted and without any incident or further complaint since 1961.  I expect his view was that what had happened was a long time ago when he was a much younger person and should not lead to the conclusion that he was a risk to the safety of children in the light of his blameless life since.  He obviously did not appreciate what the fuss was or would be about.

The tribunal in its reasons states that at the hearing CRM conceded that he was over 18 years of age at the time the carnal offence was committed.  That probably means that without that concession the Tribunal would not have been sure of that.  How sure could CRM have been of that?  Nevertheless, the concession stood.

CRM had spoken on the phone with officials of the Children’s Guardian when they conducted the assessment (which had led them to form the view that he did not pose a risk apart from being a disqualified person).  Notes of these conversations were amongst the material produced by the Children’s Guardian.  He also almost inevitably, since he was presenting his own case, gave oral evidence on which he was cross-examined by counsel for the Children’s Guardian.

The following is the Tribunal’s account of that material in relation to the carnal knowledge offence:

In July 2016, when initially asked by an officer of the respondent about the circumstances giving rise to the carnal knowledge offence, the applicant explained that at the time he was working for the salvation army and he had picked up “the woman” in a bus stop as she was all alone and had no place to go. He said he invited “the woman” to stay at his place. He said the woman “undressed herself” and they engaged in “consensual sex.” He said he later found out that “the woman” was underage and that she had escaped from the dormitory of a high school.

In a subsequent conversation that day, with another officer of the respondent, the applicant added he met “the child who was waiting at a bus stop and as he came from ‘Christian upbringing’ he felt compelled to assist her.” He said the child had indicated she had been kicked out of home and as his mother worked in social welfare he assisted the child to obtain appropriate accommodation. He said that when he returned, “nature took its course.”

In his oral evidence in these proceedings, the applicant said the victim of the carnal knowledge offence wore “a very revealing blouse” and that there “should have been something to protect” him. He said the victim jumped into bed with him and he re-iterated “nature took its course.”

The first two of these excerpts above are based on file notes of officials of the Children’s Guardian  It is likely that CRM called the (under 16) victim a “woman.” The use of the word “child” in the second is probably the official’s wording.

This is the Tribunal’s consideration of that material, emphasis added in the second extract:

While the age of “the woman” is unknown, the applicant has acknowledged she was a high school student and given the nature of the offence she must have been under the age of 16 years.

While we accept that the applicant’s recollection of events dating back to 1953 may not be clear, we nevertheless have considerable difficulty in accepting his account of events. The victim was a child, a high school student, who was unknown to him. She was vulnerable, alone and in all probability trusted him; otherwise she would not have gone with him. In such circumstances it cannot be accepted that there had been consensual sexual intercourse. Having regard to his evidence, we were left with the impression that the applicant has a complete lack of understanding about his offending conduct and the impact it may have had on the victim. He appeared to blame her for the situation he found himself in, rather than questioning his own behaviour.

it cannot be accepted that there had been consensual sexual intercourse

WHOAH!  Where did that come from, and what use is the Tribunal making of it?

With those weasel words I think the Tribunal has taken a step too far.  Of course I wasn’t there (and nor were they in 1953) but I have to very seriously doubt whether they have made a proper assessment of something an 81-year-old man has said about how it is that he came to commit an offence when he was 18 – when he was a lot younger than he is now and when the victim was not much younger than he was.

When charged with the obscene exposure offence in 1961, the victim had first told the police that he was (as the phrase used to be at railway toilets) “adjusting his attire” and that he should have been more careful.  However he subsequently admitted that was false and pleaded guilty.  The following is based, I expect, on the magistrate’s sentencing notes:

He told the Magistrate he had a very bad home life and his father sent him to a church home for boys. He explained his prior stealing convictions were due to having “got in with a crook mob”. He explained he had married in 1955, but his wife “had lost her desire for sexual relationships”, but they were still living together. He said this and their money worries had placed a great strain on him. The money worries were due to him having not been able to work because of illness. When asked if he had seen a doctor about his offending conduct, the applicant responded he had seen a psychiatrist once and that he didn’t take to him very well. He said he had discussed the matter with his wife and prior to admitting guilt he told the Magistrate that he had come to the “point of asking for some help in medical ways.”

The Tribunal noted that CRM did not in fact obtain any treatment.

The Tribunal was required to consider “the likelihood of any repetition by the person of the offences … and the impact on children of any such repetition.”  They found:

Given the applicant’s age and the fact that he has not reoffended in a similar manner for many years, the likelihood of him re-offending as he did in 1953 and 1961 is probably low.

OK, you might think – give him the enabling order.  But no, they were obviously troubled by all this “woman,” “revealing blouse” and “nature taking its course.”  They went on:

However, given his account of past offending, we are not persuaded the applicant the has any understanding today of child protection issues, or what he should do in circumstances where a child protection issue may arise and he is required to deal with it. As we have noted, the applicant appears to have blamed others for what occurred and we doubt he has at any time appreciated the seriousness of his offending in so far as it concerns issues of child protection.

Accordingly, even though there was a low risk of re-offending, CRM had not discharged the onus of proving he was not a risk to the safety of children because of his lack of insight when accounting for, at the age of 81, his conduct when he was 18 or (though I can’t quite see where this comes from in the tribunal’s account of his evidence) blaming his wife for his conduct when he was 26.

What is of concern to us is the applicant’s lack of understanding about the seriousness of his offending conduct in 1953 and again in 1961 and the impact that conduct may have had on the victims. Instead he continues to blame the victim, or his former wife, for the situation he found himself in. While we do not believe the applicant is likely to offend in a similar way today, given his responses to his prior offending, we are not persuaded the applicant has any understanding of child protection issues, or what he should do in circumstances where a child protection issue may arise and he is required to deal with it. It is for this reason that we find the applicant has failed to discharge his onus.