Archive for the ‘law’ Category

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.

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.

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.

Do not leave the village

May 20, 2016

That’s what the original Inspector Barnaby in Midsomer Murders frequently said to witnesses or suspects.  Given the main way of being eliminated as a suspect in Midsomer, you have to wonder why anyone obeyed him.

Christopher Sharkey and Donya Nissi met in 2003 or 2004.  Sharkey, 20/21, was an internet whizzkid.  Nissi was just finishing or had just finished school.  They moved to Orange where Nissi went for her university studies.  At this time Sharkey’s business, Ozstays or Stayz (if there is a distinction I’m not sure what it is) was already doing quite well.

In December 2004 they became engaged at a concert by “The Whitlams” in Newtown.  Spectacularly, Sharkey set the proposal up by arranging for the lead singer, Tim Freedman,  to sing “The Lady in Red” (or a fragment of it, anyway) and announce that “this is for Donya from Chris” before he popped the question.  He had told Freedman that this was Donya’s favourite romantic music.

In 2005 they bought a house at [MM] Denison Road Camperdown in both their names.  Sharkey provided the cash for this, or most of it.

At the beginning of 2006, Sharkey (by now 23/24) and his business partner sold their interest in the Stayz business for $12.7 million.  Sharkey received half of this. He used some of that to pay of the mortgage on [MM] Denison Road.  He also gave substantial presents to his father and to Nissi’s parents to pay off their home loans.

In late 2007, Sharkey and Nissi bought the neighbouring property to No [MM], being [NN]Denison Road.  Sharkey paid for this.  Sharkey said that the property was put in Nissi’s name to protect it from claims that might be made against him.

Almost immediately after that, Sharkey decided he wanted to raise money for his business ventures and investments.  He set up a family trust which borrowed money for which both No [MM] and No [NN] were given as security.

The relationship between Starkey and Nissi broke down in mid 2008, though the break-up seems to have been clandestine – they still went as a couple to family occasions.  Sharkey moved out into shared accommodation and Nissi stayed in No [NN] with Sharkey’s dogs.  (No [MM] seems to have been tenanted.)

In 2011 Sharkey wanted to raise more money for his business ventures.  He proposed selling No [MM] for this purpose.  In March they reached an agreement (recorded in writing). Sharkey or the Trust would would not contest the ownership of No [NN] and would make no more loans against it and repay the loans then secured against it by the end of 2012.  Nissi agreed that the entire proceeds of sale of No [MM] would go to Sharkey.

Later that year Sharkey went to America where he worked with his brothers on their internet ventures.

Sharkey or the Trust did not repay the monies secured against No [NN] by the end of 2012, and stopped making payments on the mortgage at the end of 2012.

In 2013, after demands from the bank, Nissi refinanced the debt and rented the property out, presumably in order to meet the mortgage.  Sharkey commenced proceedings that in truth No [NN] was his and Nissi should convey the property to him; Nissi cross-claimed for performance of the March 2011 agreement (so far as Sharkey had agreed not to contest the ownership of No [NN]) and damages for its breach (so far as she had been put to expense to repay the mortgage when he did not).

The matter came on for hearing in February 2015 before Justice Robb.  Most of the facts above come from his judgment, finally handed down in September 2015.  Some of them may be a bit inaccurate because judges often don’t get every detail right and if such details don’t make a difference to the outcome or the matter is ultimately resolved they will stand uncorrected.  To save any suspense, I should add that Nissi was successful, though the amount of damages is yet to be assessed, mostly it seems because Nissi was unsuccessful in tendering in the course of the trial some of documentation proving components of her damages claim .  That just shows how hard-fought the trial must have been, because in fact the damages will presumably could well be continuing by reason of any interest on the mortgage debt that Nissi is probably still paying.  But maybe Sharkey, who is now in America, doesn’t really care all that much.

Which is what Nissi was worried about last February. If she won, she would be secure in her ownership of No [NN], but how would she get the money part of her claim?  Sharkey was now living in the USA.  Perhaps he had put his assets in the name of his new partner, as he said he had done with Nissi, to make himself proof against judgment.  When the hearing started, he gave evidence that he had negligible assets in Australia.  And in the opening by his counsel, some remark had been made about the witnesses returning to the USA as soon as they had given their evidence.

Nissi’s team jumped into action.  They engaged separate counsel, John Hyde.  On 18 February he went off to a different judge (the duty judge, Justice MacDougall) while the trial before Robb J was still going on and obtained an ex parte injunction preventing Sharkey from leaving the country.  Ex parte means they went before Justice MacDougall without forewarning Sharkey.

You can make ex parte applications when the nature of the order is such that if the other side knows you are going to seek the order (which is usually to stop them doing something) they might just go and do it before you can get the order, in which case it will be too late.  Such orders are always made in a way which brings the matter back to the court shortly after for the person bound by the order to have a chance to say why it should be discharged or should not have been made in the first place.  There is a duty when making an ex parte order to disclose all relevant circumstances to the court.  If you haven’t, that is the first ground on which the other side is entitled to have it discharged.

The problem for Nissi was that what was said by Sharkey’s counsel about Sharkey’s witnesses leaving immediately had been misinterpreted.  On a fair interpretation, and in the light of previous correspondence, it was clearly only a reference to witnesses other than Sharkey.  John Hyde told MacDougall that Sharkey too proposed to depart precipitately.

Justice MacDougall  made the orders at about 11.40am.  The orders required Sharkey to deliver up his passport to the Court.  They also provided for the matter to come back before him at 2pm.  This would normally be the point at which Sharkey would have his first opportunity to argue against the orders.  Pursuant to leave granted by MacDougall J, the orders were served on Sharkey in the precincts of the court during the morning-tea adjournment of the trial before Justice Robb.

It must have been a bombshell.  Sharkey’s side had just completed their case.  The matter had to be raised with Justice Robb because of the listing before Justice MacDougall at 2pm.

In correspondence over lunch Sharkey’s lawyers complained about the ex parte application and whether all relevant matters had been disclosed.  They even asked Nissi’s lawyers if they had disclosed to MacDougall J that Sharkey’s wife is more than six months’ pregnant and was also looking after a 10 month old child on her own.  Feelings were running high.

The matter shuttled backwards and forwards between MacDougall J and Robb J over the next day or so.  Robb J was reluctant to deal with an application to set aside an order made by MacDougall J.  There was also the question of the time available before Robb J to complete the substantive hearing, from which arguments over the ex parte orders would obviously be a distraction. Whilst Nissi had a separate barrister engaged, Sharkey did not.

Ultimately, the further consideration of the ex parte order was heard by MacDougall J on 25 February 2015.  His Honour set it aside on the basis of material non-disclosure.  Even then, transcript was not available of the 18 February ex parte hearing.  Once the transcript was available, John Hyde wrote to the judge and the other side apologizing for statements he made about what he had said on the 18th which proved to be incorrect.

This is an illustration of something that Macdougall J himself referred to when setting aside his earlier decision, because he accepted that the mistake about what had been said by Sharkey’s barrister about witnesses leaving was an innocent one.  As Justice Kunc later said (see further below):

It is, regrettably, an all too common experience for solicitors, counsel and even judges to think they heard something said in court which is ultimately not borne out by the transcript (assuming that the transcript is not itself in error). Context and preconceptions brought about by which side of the record someone is representing can have a powerful influence on the way something said in court may be heard. Different people will hear different things. Furthermore, particularly in circumstances of urgency, one person’s account of what they heard if given to another may create a predisposition in that other to read the transcript in a particular way. That is what occurred in this case

Just a bit ironically, given that his application to set aside the injunction was based on a misrepresentation to the court by Hyde concerning statements made on Sharkey’s behalf leading to an inference that Sharkey  was planning to flee the jurisdiction, Sharkey did in fact leave Australia for the USA on the evening of the day the injunction was set aside – though he was held up at immigration because the court order had not yet been taken off the books.  He eventually made his (delayed) flight but his luggage did not catch up with him for about 30 days.

This shows the strictness of the rule that an ex parte order will be discharged if there is a material misrepresentation.  The order was discharged even though the risk to Nissi of getting no money from Sharkey if she succeeded existed whether Sharkey left the jurisdiction immediately after giving evidence or at any time before he paid her what he might be found to owe or provided security for that amount.

Then again, you might think it a tall order to require Sharkey to remain in the country until then. Potential judgment creditors are usually only entitled to what was originally called a Mareva order preventing the dissipation or concealment of assets if it can be shown that there are such assets and there is reason to believe they will be secreted away in order to render the judgment futile.

Justice Robb delivered judgment in Nissi’s favour in September 2015, but the question of the amount of her damages was deferred to a further hearing.

In October, Sharkey changed lawyers.  His new solicitors, Bransgroves, wrote to Nissi’s solicitors complaining about the conduct of Nissi’s lawyers in obtaining the ex parte orders.  In this letter they said that this conduct was such misconduct that those lawyers could not be trusted to conduct Nissi’s case with the necessary dispassionateness and that they should therefore not continue to act for Nissi. The letter included allegations such as “grave misstatement of the law”, “recklessness”, “professional misconduct”, “complete fabrication”, “wilful deception” and “connivance.”

In February 2016 Sharkey filed a notice of motion seeking orders from the court that Mr Hyde and Ms Nissi’s solicitors, EMC, no longer be permitted to act for her.  In submissions for that application, Peter King (Malcolm Turnbull’s predecessor as member for Wentworth) repeated many of the accusations made by Bransgroves, albeit in more temperate terms.

Once lawyers’ personal interests are involved the forensic temperature always rises.  Classically, you see that in arguments about costs, where the argument (personal costs orders aside) is about loss of face and which side’s lawyers are going to have to get their clients to pay their fees and maybe also the other side’s.

This is all the more so when allegations of professional impropriety are made – if only because then it is likely that Hyde’s and the solicitors’ professional liability insurance policies were enlivened.  Even though it was unlikely that Mr Hyde would have any ongoing involvement in the case, he could hardly be expected for that reason to acquiesce in such a judgment on his conduct. The hearing of the notice of motion was a veritable festival of silk on the respondents’ side.

In the course of the hearing, before Justice Kunc, Peter King eventually resiled from the more florid accusations of professional misconduct, or at least no longer relied on them.  His Honour held, consistent with Macdougall J’s decision (and with the observations quoted above), that the mistake about whether Sharkey was planning to “abscond” immediately after giving his evidence was an understandable misunderstanding.  Sharkey’s application was dismissed.

Sharkey had applied for orders preventing not only the individual solicitors involved within EMC but also the entire firm be restrained from acting for Nissi.  Kunc J held that there was no basis for the application other than against the two partners involved so that the remaining partners were entitled to have Sharkey’s notice of motion summarily dismissed against them.  That’s over and above the fact that the application was eventually dismissed against the two partners involved.  The costs consequences for Sharkey of bringing an application with no basis (and at a time when the two partners who had been involved had undertaken or offered no longer to be involved) have yet to be determined.

EMC also applied for orders that the Bransgroves letter and Mr King’s submissions repeating the allegations made in it be removed from the Court file as containing material that was “scandalous and oppressive.”

Kunc J agreed that the letter was entirely inappropriate in tone and that this infected the submissions so that both were scandalous and oppressive.  But for the possibility that the matter would go further (such as by an appeal) he would have had them removed from the file.  Instead he ordered that they be placed in a sealed envelope in the Court file marked “Not to be opened without further order of the Court.”

Back to Midsomer.

Rather quaintly, the order preventing Mr Sharkey from leaving was described as an order in the nature of ne exeat colonia.  That’s a local adaptation of a historical English order ne exeat regna.

It means “Do not leave the colony.”

Afterword:

I speculated above that maybe Mr Sharkey, now in America and with negligible assets in Australia, doesn’t care all that much about the damages claim. Subsequently, Ms Nissi sought to amend her cross claim to include a claim for indemnity from the Trustee of the trust on the basis that, as a guarantor, she had repaid debts owed by it. I’m guessing this is because the Trust has assets which are amenable to enforcement even if Mr Sharkey does not (again the whole ne exeat problem). Ms Nissi had made a claim to be subrogated, described as “misconceived” and dismissed.  I can’t be bothered to rake through the facts to work out the misconception unless it is simply that it was back to front.

Robb J refused the amendment because it was too late and because, unless further evidence were to be led, consistent with his reasons to date it was doomed.  Robb seems to have taken the view (at [57]) that someone has blundered on Ms Nissi’s side.  Always an easy conclusion to reach in hindsight.

Sting in the tail

October 15, 2015

I have previously posted about the decision of Justice Stevenson in relation to the apartments at Wolli Creek sold off the plan and then unsold pursuant to a sunset clause by Kaymet Corporation and associated parties.

There is now a judgment about costs.  This also refers to an interlocutory decision in the course of the trial rejecting an expert report tendered by the defendants which seems to have been directed to whether delays because of a need to comply with conditions imposed by the State Rail (or whatever the authority then was) were foreseeable or not.

I have previously posted on the difficulties developers can have if they are building anywhere near a railway.

What is odd is that the question of whether delays because of difficulties dealing with State Rail did not really emerge as an issue in the final judgment at all because in the end his Honour only considered whether endeavours by the builders were reasonable or not going forward from the date of the contracts.  I doubt the defendants’ legal advisers were starting at hares in trying to put on this evidence: there must have been an argument about what reasonable endeavours involved which they were attempting to meet but which somehow fell by the wayside.

But the sting in the tail is that to preserve their spanking new apartments to be sold to them in the event they won, the purchasers obtained (by consent) an injunction preventing the defendants from selling or letting the apartments.  Naturally, they had to give an undertaking as to damages for this: that is, an undertaking to pay the developers what they lost if it turned out that the plaintiffs were wrong, as has come to pass.

Reportage of this case has from time to time quoted the developers as complaining that they had lost $2 million rent.  That is what they have been talking about: the money they could have made (they say) by renting out the apartments in the intervening period.

At first I had thought (thinking mainly of the injunction preventing sale): “No matter, the defendants will have suffered no loss.  The properties have appreciated in value well over any holding costs and they can still sell them new.”

Now I am not so sure.  But I am beginning to wonder if the hitherto mysterious failure of the defendants to register the strata plan may not be associated with a plan on their part to claim loss of rent pursuant to the undertaking for damages (because until the strata plan is registered they cannot sell anything) AND to sell the apartments for their present value – inevitably more than that for which they were “sold” off the plan in 2009-2010 or even sellable for in 2013 when the injunction was granted or in  mid-2014 when the apartments were probably habitable and lettable.

That is going to excite a lot of wailing and gnashing of teeth indeed.

One law for the rich

February 13, 2015

Gina Rinehart has obtained an order for preliminary discovery, entitling her lawyers to preview the upcoming episode of the TV series concerning her (which is presumably coming up to the bit where she hounded Rose Porteus through the courts in a second inquest into the death of Lang Hancock – an episode rightly described by then WA Attorney-General, Jim McGinty, as “a savage waste of public resources”) in order to decide whether to seek an injunction against its publication.

Back in 2010, Wendy Hatfield, about to be defamed in an instalment of the ‘Underbelly’ franchise, did not fare so well. She was refused orders for preliminary discovery concerning that series. The judge held (and the Court of Appeal upheld) that she had to wait and see and get damages afterwards if she was defamed (which she was).

Perhaps Rinehart’s lawyers learnt from where Hatfield’s lawyers failed, but it is difficult to escape the conclusion that there is one law for the very rich and another for the rest of us.

Which is probably a truism, if you think about it even a little bit. Even if I am affronted, I shouldn’t be surprised.

Update

Justice Garling’s reasons finally (24/3) published.  On a cursory reading, it looks like Channel 9 was hoist by its own publicity, which suggested, amongst other things, that while everyone else should stay in on Sunday night to watch the program, Mrs Rinehart might like to go out for dinner.  I don’t find his Honour’s distinguishing of the Wendy Hatfield decision quite so convincing.

Inappropriate

September 11, 2014

 

Inappropriate

That’s the caption beneath this photo, of two angry young people, published with a story about them by Geesche Jacobson in the Sydney Morning Herald in April 2011.

It starts relating how, the day their father died in July 2010, the brother and sister:

were told his former girlfriend intended to claim against his $1.5 million estate, even though his will named his two children as his only beneficiaries.

The sister:

said she was upset and angry. ”It felt so inappropriate … My brother and I haven’t had time to mourn our father.”

That was nine months ago and so far the estate has spent $22,000 in legal fees.

…..

”I think we will win the case. It is just unfair that we will have to go through the whole process,”

[the sister said.]

By the time Justice Lindsay handed down his reasons for judgment in March 2013 (after a trial in the second half of 2012) he found that an amount equal to more than half the fund of $1,407,257.03 or thereabouts available to meet the competing claims (comprising a net estate valued at about $635,718.72 together with superannuation of about $771,538.31) had been spent on lawyer-client costs.

There had been two failed mediations and the brother and sister had joined the proceedings as defendants themselves in addition to the executors. They did this because they were not happy with the settlement that the executors had reached with the “former girlfriend” and her children at one of the mediations.

They lost, though the “former girlfriend” didn’t get everything she asked for (at the trial she asked for enough to buy a flat and a bit extra).

To be fair to the brother and sister, his Honour found their father had concealed from them and their mother the true state of his relationship with the “former girlfriend” and even actively misled them about it. She was not, as in his words they contended, “nothing more than a gold-digging welfare cheat.” The judge held that she was in a de facto relationship with the deceased [sorry: that’s lawyer-talk in these cases which is hard to avoid – I’m sick of calling him “the father,” don’t want to use a pseudonym, and don’t want pronoun confusion to suggest the judge was shacked up with her] and had been since 2004. She and her four children from a prior relationship had also been dependent upon and members of the same household as him. This made them eligible for an award from the estate.

She was awarded $175,000; her children $50,000 between them; plus costs.

The brother and sister were left to pay their own costs and repay their mother with what was left over after the executor’s costs were paid from the remainder of the estate.

On my very rough reckoning, that probably is an outcome of brother and sister – not more than $500K, “ex-girlfriend” and her children – $225K less the shortfall between what they had to pay their lawyers and what they recovered from their costs from the estate – maybe they got $175K by the end between them, and lawyers – $725K or more.

That’s inappropriate.

But what I think is really inappropriate is Geesche Jacobson’s original partisan story. How did it come to be written?

Free kick

March 7, 2014

Mrs Mickle was a music teacher at Orange High School.

Apparently she was much-loved by her students, or at least some of them.  In 2012, when the then principal of the school, Mrs Angus, was retiring, some of them proposed that on the occasion of the principal’s retirement function the school’s music centre be named the “Mrs Mickle Music Centre.”

Just pausing there: that is in my opinion an entirely ridiculous suggestion.  Not because Mrs Mickle was or was not an excellent teacher, but because she was still teaching at the school and had some years of teaching left. It’s not clear why the retirement (actually only retirement as principal after 7 years at Orange High) of Mrs Angus should be the occasion of this announcement. What was the perceived link?

Andrew Farley, who had left the school a year before, seems to have disagreed with the idea.  There may have been some history here, because his father had previously been teacher in charge of music and arts at the school and had left the school in 2008, at which time Mrs Mickle had taken over his position on an acting basis.

Andrew vented his feelings on twitter and facebook.  Mrs Angus, who apparently spent time on a regular basis dealing with issues arising from social media coverage of her school, saw what he had written. She drew it to the attention of Mrs Mickle.

Mrs Mickle engaged lawyers.  They wrote a letter to Mr Farley late in November.  At first he did not respond, but after a second letter sent on 12 December, he replied on 20 December 2012:

“All comments referred to by you have been removed from my social media pages.”

which appears to have been the case, and

“I apologise unreservedly to Mrs Mickle for any hurt or upset caused to her by statements made on my social media page.”

You might think that would have been an end to it, apart from the question of paying Mrs Mickle’s lawyers.

But it was too late. Mrs Mickle was on the law-path. She sued Mr Farley for defamation in the District Court.

Unfortunately for Mr Farley, that led to a bit of a change of heart. He filed a defence of justification – that is that what he said, or some of it. was true. That is a rash thing to do: if you do that you undo all the reduction of damages which might have followed from an apology, and also risk having aggravated damages found against you.

That’s the thing about an apology. It’s only of use if you give up defending anything you said. You might say that the test of the sincerity of the apology is just that, but like a plea of guilty, then you just have to wait for the plaintiff to do what he or she wants to get vindication and even, quite possibly, just a little bit of retribution. And in defamation there will be the defamed person’s lawyers, often with contingency fee agreements, riding shotgun on the bandwagon.

You can choose not to defend what you said, but defend your right to say it in the circumstances. This is a defence of privilege – either absolute as in the well-known parliamentary privilege, for example (or when giving evidence in court or reporting court proceedings) or qualified privilege. The difference, put simply, is when the privilege is qualified it must not be abused – you have to act reasonably and not maliciously. So, for example, you can report reasonable suspicions to the police, but not maliciously make something outrageous up because you want to get someone in trouble.

There is a procedure where a person who has defamed someone may make an “offer to make amends” which could be a total defence. But it was too late for that. That must be done within 4 weeks of a complaint being made. People who have said something rash or angry in a social context frequently do not realise how seriously the law is going to take what they have done and are rarely sufficiently legally advised at the outset to take advantage of that.

Mr Farley withdrew his defence of justification, and replaced it with a defence of qualified privilege. We don’t know exactly what the basis for it was, but it was struck out by Judge Olsson in October 2013 and the matter set down for trial on assessment of damages in November, which is when it came before Judge Elkaim.

By this time, Mr Farley had had enough. Who knows, he probably had run out of money for legal representation. It probably didn’t seem worth spending another $20,000 or more to be on a hiding to nothing. He did not turn up to the hearing.

Maybe that was a calculated gamble. But it gave Mrs Mickle and her lawyers a free kick against him.

Mrs Mickle gave evidence. One thing that particularly upset her was the suggestion that she may have had something to do with Mr Farley’s father’s departure from the school.

Mrs Angus also gave evidence. She is one person who may well have had something to do with the circumstances of Mr Farley’s father’s departure. She attested to Mrs Mickle’s excellence as a teacher, amongst other things.

Judge Elkaim awarded Mrs Mickle $85,000 ordinary damages and $20,000 aggravated damages. There will also be an order for costs and presumably costs orders had already been made as a result of the striking out of the defence. That was in November.

This month, after a story appeared in the press about the decision, his judgment was published on the internet.

It’s an unusual judgment, because unlike most defamation judgments the matter complained about was not included in the judgment. So we really have absolutely no means of seeing for ourselves on what basis the figure of $85,000 was plucked from the air. And a few other free kicks also went through to the keeper (OK: that metaphor is mixed and in fact positively wrong.)

That included a kick against Mr Farley’s father, described by the judge as having “left the school in 2008 in order to attend to personal issues.” The judge said there was “absolutely no evidence” to support Mr Farley’s apparent belief as to something different and in particular any involvement by Mrs Mickle in this. Of course there wasn’t.

His Honour said:

The plaintiff has said, and I accept, that all of the imputations that are set out in the Statement of Claim are untrue.

How could he have found otherwise? Defamatory imputations unless defended are presumed to be untrue.

Judge Elkaim also remarked that Mr Farley had never been taught by Mrs Mickle. I suppose the point of that was to explain why whatever bad thing Mr Farley said about Mrs Mickle cannot have had any proper foundation or motivation which would amount to a qualified privilege. Judge Olsson had already decided that, so Judge Elkaim’s observation was otiose.

In a country high school I doubt you need to be in a teacher’s class to have some knowledge and idea of the teacher and a music teacher is likely to have a more public profile than merely to her direct students. But there was nobody there to suggest otherwise.

Exemplary justice has been done. Mr Farley may well elect to go bankrupt (update: he has done so). If he is still a student, he could serve out his bankruptcy without making much of a contribution towards his debts. He would afterwards have a bad credit rating which he will need to explain every time he tries to get a loan. If so, Mrs Mickle may get something, but mostly only vindication. Who knows on what basis her lawyers are to be paid, if at all.

Grubby

December 3, 2013

Over 6 years ago I wrote in Mob Justice about Ray Hadley’s hounding of Mr and Mrs Ahmed, proprietors of a fish-and-chip shop at Carlingford Court. Mr Ahmed had been convicted of sexually molesting a teenage female employee. Mr Hadley was not satisfied with the sentence handed out, let alone that the man was appealing his conviction. Hadley took it upon himself to drive the couple out of Carlingford Court, that is, to hound them out of business.

At the time, the couple successfully staved off an eviction notice from the landlords. However, Mr Hadley’s campaign continued. It took in Mrs Ahmed as well as Mr Ahmed. The shop ultimately closed down in October 2008.

Maybe, just maybe, there is still some justice in the world. It took a while, but yesterday a jury found that Mr Hadley had defamed Mrs Ahmed. It is now up to Justice Nicholas, one time doyen of the Sydney defo bar,* to determine the damages payable – not, it seems, despite suggestions in the press to that effect, by Mr Hadley himself, but by his employer, Harbour Radio.

Sometimes defamation can seem a bit of a “poncey tort” – as a colleague of mine likes to call it, where no real loss has been sustained by the plaintiff. Cases get taken on by lawyers on a contingency basis and after a while it is the costs tail which is wagging the vindication dog. Such cases can give contingency basis lawyering a bad name.

In this case Mrs Ahmed suffered a real financial loss as a result of the campaign led by Mr Hadley on his employer’s radio station. It is unlikely that she has been able to bring the case unless her lawyers were prepared to act on a contingency basis. This case strikes me as a good rather than a bad advertisement for contingency fees.

For Harbour Radio, defending the claim is just a business cost. It has been a long and hard-fought case.

The report in the Fairfax press says “Fairfax Media understands Hadley is considering an appeal.” He would, wouldn’t he – even if, as Hadley is not a party, that can’t quite be right.

*Apart that is, from Clive Evatt, counsel for Mrs Ahmed, who was rather amusingly (for the cognoscenti) identified as “Clive Evatt QC” in one early report of the trial, subsequently revised to retract the postnominal.

Postscript 2015

Mr Hadley and Harbourside have had a partially (but significantly) successful appeal: Harbour Radio Pty Ltd v Ahmed [2015] NSWCA 290

This was heard on 24 November 2014 with judgment handed down on 24 September 2015. Unclear why it should take three judges so long to make up their minds.

A dangerous place

September 13, 2013

Recently I was doing my turn as duty barrister at what Charles Waterstreet aptly calls “the Drowning Centre” – the complex of courts in the old Mark Foy’s building now known as the Downing Centre after the long-term NSW Attorney-General in the 50s and 60s (and Catholic/right wing Labour power-broker), Reg Downing.

In fact, the Downing Centre, at least in its Local Courts part (the District Court is another matter), presents the courts’ mildest visage: it does not (at least normally) deal with persons in custody, so there is no dock and all the terrible apparatus (“Take the prisoner down!”) which goes with that. Of course, there are the now ubiquitous security searches at the entrance – a legacy of 9/11, can you believe.

Prisoners in custody are dealt with at the Central Criminal Court in Liverpool Street. Now that really is an old-school court. When you go there after the Downing Centre, it seems like a step back in time. Unfortunately, pictures are scarce. (Security, you know.) The main court is cavernous and, by modern standards, huge: you can feel the majesty of the law. That this particular manifestation has a shabby air simply lends a gothic touch.

My client was facing charges to do with child pornography and child abuse material.

I’m not going to talk about my client’s case.

Yesterday the ACT Attorney-General announced the appointment of a new Chief Justice for the ACT Supreme Court. The appointee is Helen Murrell. I must have too much time on my hands because I decided to have a quick scan of her published judgments.

One recent judgment delivered by Judge Murrell is a sentencing decision: R v Jack [2013] NSWDC 171. It’s a not unrepresentative example of a child-pornography sentencing.

Mr Jack was found guilty of the following five charges:

(1)Between about 1 July 2009 and 14 April 2010 at Peakhurst, the offender used a carriage service to access child pornography material (s 474.19(1)(a)(i) of the Criminal Code (Commonwealth)).

(2) Between 15 April 2010 and about 26 January 2011 at Peakhurst, the offender used a carriage service to access child pornography material (s 474.19(1)(a)(i) of the Criminal Code (Commonwealth)).

(3) Between about 18 January 2010 and 14 April 2010 at Peakhurst, the offender used a carriage service to make available child pornography material (s 474.19(1)(a)(iii) of the Criminal Code (Commonwealth)).

(4) Between 15 April 2010 and about 26 January 2011 at Peakhurst, the offender used a carriage service to make available child pornography material (s 474.19(1)(a)(iii) of the Criminal Code (Commonwealth)).

(5) On or about 25 January 2011 at Peakhurst, the accused possessed child abuse material (s 91H(2) of the Crimes Act 1900 (NSW)).

The maximum penalty for each of the Commonwealth offences is 15 years, and for the NSW offence, 10 years.

From mid 2009 to January 2011 (when he was arrested) Mr Jack downloaded and shared (by means of a file sharing program called Gigatribe) approximately 22,000 images and 1,000 multimedia files. They were overwhelmingly of boys aged up to about 14 (the judge doesn’t say what the lowest age was). It is worth quoting the breakdown of the files (at [5]:

The material in question has been analysed and classified into six categories. The first five categories follow those developed in the UK guideline judgment of Oliver & Ors [2002] EWCA Crim 2766. The sixth category is a category utilised in the child exploitation tracking system. Category 1 is images depicting erotic posing with no sexual activity. The offender was in possession of 18,520 Category 1 images and 332 Category 1 videos of children. The images focussed on genitalia and children dancing and undressing. The offender was in possession of 2,087 images and 696 videos of children performing sexual acts on themselves and each other, which fell into Category 2, being sexual activity between children or solo masturbation by a child. In relation to Category 3, nonpenetrative sexual activity between adults and children, the offender was in possession of 712 images and sixtyone videos that fell into this category. In relation to Category 4, penetrative sexual activity between adults and children, the offender was in possession of 559 images and 188 videos of children engaged in penetrative sexual intercourse or sexual activities with adults. In relation to Category 5, sadism or bestiality, the offender was in possession of thirtyseven images and thirty videos of children engaged in sadistic acts or bestiality. In relation to Category 6, animated or virtual images on videos, the offender was in possession of twelve images.

Category 6, you will see, is not the most serious category. It is a special category for Australia (maybe even just for NSW) because of the (out-on-a-limb) decision of Justice Michael Adams that animated and virtual images (in that case it was depictions of characters from “The Simpsons”) depict a person and so can be either child pornography or child abuse material.

Mr Jack was about 30 at the time of the offences and is now 33. He could not have the benefit of any attribution to him of remorse or any discount for a plea of guilty because Mr Jack maintained somebody else had downloaded and shared the files (which was not believed by the jury). He was a teacher and worked in the Anglican church with the young: there was no suggestion that he had engaged in any actual sexual conduct with such people and he had glowing character references to that effect. It was also likely he would have difficulties in gaol associated with his diabetic condition and the need for insulin injections – something which apparently the prison system is basically incapable of dealing with.

Judge Murrell sentenced him to total combined sentence of 3 years and 3 months, with an effective non-parole period of 2 years.

That’s not unusual. There’s nothing particular to see about Judge Murrell here.

To me this is a harsh punishment for a person who has yielded to the temptations of the internet to explore his repressed (and forbidden) sexuality, especially when you might well think that in the religious context of his life the specific direction of the sexuality might well have been partly influenced by its repression generally.

John Stuart Mill, I think it was, made the point that all punishment is harm and it must still be justifiable as some kind of good. There is so much of this material available on the internet; it must mostly be a matter of chance whether a particular person is apprehended: do we really think we will stamp it out this way? How can we justify such punishments?

The internet: it’s a dangerous place.