Hate crime in Broulee

Pictured above (ABC News: Holly Tregenza) is a power line easement just outside Broulee.  Here, on the afternoon of Sunday 2 February 2020, the body of Peter Keeley, 56, was found. His feet and arms were bound with masking tape (the arms behind his back) and there was also masking tape around his head.  A nearby car still contained the keys, his wallet and his mobile phone.

Keeley had been lured with the prospect of a sexual encounter from Canberra to this spot by AN, aged 17. They had been communicating on Grindr since the previous afternoon.  When they got to the spot (after Keeley picked AN up at Broulee), AN attacked Keeley and was almost immediately joined in the assault by LM and WD, also both 17, who were lying in wait nearby as a result of a plan which had been hatched between them earlier that afternoon.  The trio beat and bound Keeley and left him there.  Keeley was found dead about an hour later by a man who had gone there to walk his dog.

All three were charged with murder.  AN and LM were acquitted in a judge-alone trial, because the possibility could not be ruled out that Keeley had died just from the drugs he had been taking, in particular methamphetamine.  Justice Walton’s reasons for this are here.  The murder charge against WD was then withdrawn.

AN, LM and WD pleaded guilty to specially aggravated kidnapping under s 86(3) of the Crimes Act – the special aggravation consisting of the kidnapping having been committed in company and on the occasion of assault causing actual bodily harm.

You can read the sentencing judgment here.

AN was sentenced to 5 years and eight months with a non-parole period of 3 years and 8 months, eligible for release in December 2025.  LM got 4 years 4 months, non-parole 2 yrs 11 months (eligible for release June 2024) and WD 3 yrs 10 months, non-parole 2 years 7 months (eligible for release in September, ie, already by the time the judgment was handed down).

Justice Walton held that  AN, LM and WD were entitled to “discounts” for pleading guilty of 12.5%, 20% and 15% respectively.  This is a reduction in the sentence which would otherwise be imposed, on account of the utilitarian value of a plea in saving society the aggravation and expense of a trial. The differing discounts relate to the differing circumstances in which pleas of guilty had been offered by each.  He held that AN’s culpability was greatest as the instigator (it could not be proved that LM and WD had any involvement until about 1pm on Sunday, by which stage AN’s plan to lure Keeley was well-advanced).  WD benefited from ameliorating circumstances relating to a deprived upbringing.

It’s a mug’s game to argue about actual sentences.  So many things go into the mix.  Young offenders are entitled to a more lenient treatment: there is a greater emphasis on rehabilitation than either retribution or deterrence.

All the same, if you can bear to read the judgment, your blood may well boil, as mine did, at some of the arguments offered by the offenders’ representatives to talk the sentencing range down.  All sorts of straw men were put forward as potentially more serious specially aggravated kidnappings which could have occurred and which would be offences which might attract a top of the range sentence – the maximum sentence being 25 years.  There was no torture (how do we know? – OK I realise that this just means no torture was proved beyond reasonable doubt), no ransom demand, and, best of all (at [156] of the judgment):

the precise period of the detention is not known since it ended when the victim passed away for an unrelated reason. …There is no suggestion that the intention of the offenders was to detain the victim for a long time and the court could not be satisfied beyond reasonable doubt that the offenders detained the victim for more than a few minutes. At most, it could have been for the 30 minutes suggested by the Crown. In any event. the period of detention was well short of the hours or days which are often involved in more serious examples of the offence.

His Honour rejected the “few minutes” submission, but to me the obvious rejoinder to that is that even if technically the detention only lasted while the three offenders were present, its effect continued after they left the scene, as they must have been aware.  As the court held, on the basis of agreed facts, when the offenders left the deceased, he was in a very vulnerable position. Having been seriously assaulted, he was left unable to move or call for assistance. He was left alone in a remote area.  No attempt was made by any of the offenders to obtain medical assistance for the deceased. 

As to the “no ransom demand,” that seems to be lining this crime up for comparison against totally different types of kidnappings. 

His Honour identified that the vigilante aspect of the crime was one which called out for deterrent sentencing, but he also said “it was not an adult-like offence” [227].  This was a further reason for not punishing them as adults, and hence effectively letting them off or at least substantially reducing the deterrent imperative in sentencing.

And here is the rub.  It all starts with the characterisation of the offence and the offenders’ motives.  This was what the judge said about that:

Motive and Purpose of Detention

161.       The submission of the Crown with respect to motive has been set out in AN and LM (No 1). AN accepted that the purpose and the motive of the kidnapping was to derive “some sort of attempt to humiliate the [deceased] and to dissuade him from sexually exploiting underage young men in the future”. There was no attempt to hold the deceased for ransom and it was submitted that the expectation was that the deceased would eventually free himself (although it is not at all clear given the binding of the deceased how that expectation may have been held by the offenders).

162.       I consider there is considerable force in the submission advanced on behalf of WD in this respect. The purpose of the detention was to facilitate, in the case of AN and LM, to assault, intimidate and humiliate the deceased. In the case of WD it was the opportunity of assaulting, intimidating and humiliating the deceased. I agree that that purpose is less serious than to torture, or sexually assault the deceased or to hold him for ransom but it nonetheless reflects at the offending’s serious [sic].

163.       As to the question of motive, I accept the submission of the Crown and WD that the motive for the offence and the acts of intimidation, humiliation and assault was the perception that the deceased was a paedophile.

164.       This is not a mitigating motive. Nor is it an aggravating one. This is vigilante conduct, but it should not be taken into account as an aggravating factor, particularly since intimidation, humiliation and assault are integral to the offence as charged: Sorensen v R [2016] NSWCCA 54 at [128] – [129]. Whilst the motive does not elevate the objective seriousness of the offence, it is relevant, in my view, as to the question of general deterrence, although counterbalanced with other factors I will discuss. This is particularly so, because, as the Crown submitted, the offenders were each of the distorted view, at the time, that their behaviour was justified. This Court should actively discourage the type of vigilante justice which lays at the centre of the offenders’ motive.

165.       An additional motive for AN was to rob the deceased of drugs he expected him to bring.

It’s not possible to follow up the reference to AN and LM (No 1) because that case (R v AN; R v LM [2021] NSWSC 1657) which was the decision acceding to AN and LM’s application for a separate judge-alone trial on the murder charge is for no very clear reason not published on the internet.

If the prosecution had submitted that “the motive of the kidnapping was to derive “some sort of attempt to humiliate the [deceased] and to dissuade him from sexually exploiting underage young men in the future” that is, in my opinion, an insulting trivialisation of the trio’s motives.  Likewise and even more so even if understandably if that was a defence submission.  The motive was not merely to dissuade “the [deceased]” but to punish him.  This was ostensibly because he was a pedophile, but even that doesn’t quite tell it all.

The basis of the claimed belief that Keeley was a pedophile was (1) in the Grindr chats with AN, Keeley had told AN that he had once had sex with someone who he was told was 16 but who turned out to be 14 and (2) because he wanted to have sex with AN.  (LM told the police (sentencing decision at [127]) that the plan was formed: “because [AN] is underage, and he [ie Keeley] wanted to meet up with [AN] to have sex, from what I’ve heard, and that he has had sex with a 14 year old in the past.”)

Leaving aside that AN had told Keeley that he was 18 (which he may not have told the others), AN was not “underage.”

Lurking behind this belief and ascription of labels is something going waay back with which gay people are all too familiar.  We could still be at Alexandria and the murder of Richard Johnson.  To describe the crime as a vigilante crime sells it short.  It is a hate crime, in the sense that the motive is a hatred for a despised group which is accompanied by a perceived entitlement to mete out punishment to the despised group.  The despised group at the outset was homosexual men, because that is what AN sought out in Grindr.  We don’t know what he thought he would do but he was never there in search of gay sex.  He was always there with malicious, hateful motives.  Justice Walton acknowledged that in what he possibly thought was just a wry remark at [194] when he described the Grindr messages between AN and Keeley:

“The content of the communication unambiguously demonstrated an intention of the two to meet for the stated purpose (in retrospect probably untrue from AN’s point of view) of engaging in drug-taking and sexual activity.”

Keeley’s mention of the time he had sex with a 14-year-old was confirmation of what AN was predisposed to believe.  AN only learnt of it because he had embarked on a hateful course of action from the outset.

The elision of gay man with pedophile is familiar to gay men as something analogous to the blood libel for Jews.  It lingered in the grudging equalisation of the gay age of consent.  It’s definitely still out there.

Practically speaking, many vigilante crimes are also hate crimes, in the sense of motivation by hatred of a group, because it is the perception of a group as despised which emboldens the vigilantes to act.  This is a point which has recently been made in Western Australia following the death of Cassius Turvey.  In my opinion (well, I would say that wouldn’t I, as a member of such a victim group) that is an aspect of vigilantism which needs to be specifically addressed and denounced in sentencing over and above merely condemning people for taking the law into their own hands.  Hate crimes hurt the group against which they are directed.  It is not just a matter of what these young turds did to Mr Keeley.

Actually, s 21A(2)(h) of the Crimes (Sentencing Procedure) Act says that it is an aggravating factor (ie warrants additional punishment) if

“the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability)”

which makes surprising (to me) the judge’s remark that it was not an aggravating factor that a motive for the crime was the perception that Keeley was a pedophile.

I need to get this off my chest and move on.  There is more I could say about the judgment, even though I understand that, because the offenders are young offenders, much of it is a kind of Dutch auction to talk the sentence down from what would normally be imposed to something more “rehabilitative.”  All the same, I can’t help mentioning two more things.

Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act identifies “remorse” as a mitigating factor in sentencing.

When AN was arrested, he was of the belief that he was responsible for Keeley’s death.  Quite frankly, but for the reasonable doubt, I expect that will be the view of many.  The reasonable doubt got them all off the hook for criminal responsibility.  AN said to his father at this moment:

“Dad, I’m sorry Dad…I didn’t do it on purpose, it was an accident, I didn’t mean it to happen. I didn’t mean to Dad. I didn’t want it to happen.”

At [239] Justice Walton says: “the immediacy of the admission in such circumstances amounts to tangible evidence of remorse and contrition.”

Really?  Sorry to his Dad that he’s got into trouble, coupled with exculpatory statements in relation to Keeley’s death is an indication of remorse?  Puhleez! (OK, I can have a queeny moment here if I like.  No-one’s going to kill me for it, are they?)

Finally, because the offence for which AN, LM and WD were being sentenced was aggravated kidnapping, his brother and former wife were not able to read victim impact statements to the court.  That is because relatives are only victims if someone has been killed.  The only person who got to speak up for Mr Keeley in any way was Chantelle Walsh, a young druggy associate whose statement got into evidence in the murder trial.  Her statement is summarized at [196] to [209] of that judgment.  It’s not much, but in a case which otherwise is far from devoid of a kind of pervasive victim-blaming (see [193] of the sentencing judgment for an example), it’s worth a read.

I suppose I’d better get on with my life now.

The man in the iron mask

A man has been found guilty  and imprisoned in Canberra in secrecy so complete that the prison administrator (if you can believe this) did not even know what he was in gaol for.  He has now been released after what could have been about a year inside or maybe more (it’s a secret, you see).  Likely as not he is still on parole. His identity and details of his crime still cannot be published.   See [2019] ACTSC 311.

I find this pretty disturbing. The judgment mentions  that orders were made about the conditions of the man’s imprisonment with the man’s consent and it seems likely to me that he pleaded guilty to whatever the offence or offences were.  But is his consent (if given: someone claiming to be him on twitter says not) the end of the matter?  What about open justice? What agency is being protected from embarrassment by these secretive acts done in our name?

Postscript: more here.

PTSD Snowflake

The NSW Legislative Assembly has been debating the Reproductive Health Care Reform Bill – a private members’ bill which seeks to remove abortion from the Crimes Act and to bring NSW law roughly in line with the law in Queensland and Victoria. Within Australia, only NSW still deals with abortion as a specific offence under the Crimes Act.

In so many respects this is a replay of the agonizing process of “homosexual law” reform and specifically the marriage equality debates leading up to 2017.  On the anti-reform side all the usual road-blocks are thrown up.  There must be consultation.  The change is rushed.  The change and the path to change should be offset by obstacles and even set backs (not in the town-planning sense).

There is misrepresentation of the current state of the law and of the effect of the bill if passed.

Amendments proposed by attorney-general  Mark Speakman will make the position worse for persons seeking abortions (and those performing them) than they are under the judge-made (and for that reason inherently uncertain and liable to reconsideration) work-arounds under which abortions are presently performed. Unsatisfactory as the mutable status of such judge-made law is, it would be better there were no new Act than the Act as so amended. That’s a wedge of sorts.

The NSW Legislative Assembly now webcasts its debates and I have been watching some of them.  It is a depressing spectacle.

And if the bill passes the Legislative Assembly unscathed or amended, we still have the Legislative Council to go.

Oh, joy.

Postscript: the bill passed.  Speakman’s worst amendment didn’t get in but there are still some pretty unsatisfactory provisions.  Not that the proponents of any of these amendments including Speakman ended up voting for the bill as so amended anyway.  The pr flak painting him and Stokes as “peacemakers” was nonsense.

There was some weak wavering by temporizers in the middle watching their back against organized religion in their branches.  That’s democracy at work.  Women and the general community support for availability of abortion are less tightly organised than the “pro-life” groups.  The RC Church still has political muscle to flex.

It’s reported that supporters of the bill in the public gallery cheered.  My own response would have been a more modified rapture.

Law skool memories

Every one knows about the snail in the ginger beer bottle (though it was never actually proved to have been there) and probably a few people who dropped out of law courses can remember the Carbolic Smoke Ball case, but there are plenty of other cases that stick in one’s memory.

One came to mind today with a news story from the ABC.  A former deputy mayor is facing charges that he murdered his brother in Victoria and his mother in NSW.

In the body of the story was the following:

Cross-border crime presents ‘complex legal issues’

Mr Brand was a police prosecutor for 12 years in NSW and said he had not dealt with a serious cross-border criminal case like this before.

Excuse me!  That’s not a cross-border crime!  That’s two crimes, one on each side of a border.

To be fair, Mr Brand didn’t say it was – only the author of the sub-headline.

A cross border crime is one posed by the question, asked rhetorically of us in Criminal Law:

A man  fires a shot across the Murray River  and kills someone.  In which state has the homicide occurred?  Victoria or NSW?

The answer is: where the person was hit by the bullet.  (There are some other technicalities such as the year-and-a-day rule.  I don’t think it matters where the victim actually died.)

The more amazing thing is that there was  actually a High Court case about this.  That case is Ward v R [1980] HCA 11; (1980) 142 CLR 308.

Edward Donald Ward shot and killed Alexander Joseph Reed beside the Murray River near Echuca. He fired from the top of the steep bank of the river down at Reed, who was fishing by the river’s edge, some thirty feet below.

Ward fired from the Southern bank. He was tried and found guilty of murder in the Victorian Supreme Court. The High Court upheld his appeal because the river bed was in NSW. The border had been fixed in 1855 as being at the southern side of the “whole of the watercourse.”  The whole of the watercourse did not just mean where the water was at a particular time or even where water normally flowed, but the watercourse as defined by the banks.  Reed was killed in NSW.

This wasn’t merely academic, because if the homicide occurred in NSW Ward had available to him a defence of “diminished responsibility” which if accepted would reduce the offence from murder to manslaughter.  This defence did not exist if the case was to be tried as a crime which took place in Victoria.  (However, it was also a question of jurisdiction.  The appeal was upheld on the basis that the Victorian court had no jurisdiction.)

So, to the ABC news site I say: come back to me when you have a real cross-border (alleged) crime to report!

I’ve found it surprisingly difficult to track down Ward’s ultimate legal fate.  The best outcome for him would have been that a plea of guilty to manslaughter was accepted.  (Postscript: it seems he was still convicted of murder on the retrial – see comment below.)

Diminished responsibility  was abolished in NSW in 1998 and replaced with substantial impairment

Homeless in Mangerton

Just now there is an orgy of opinion-writing about homelessness.

The issue is topical because of the death of Courtney Herron, of no fixed address, whose savagely beaten body was recently found in Royal Park in Melbourne.

On top of the usual stuff about toxic masculinity, Catherine Lumby and a journalist weighed in with a piece sporting the headline: “Next time you have a meeting dominated by men, consider how it is affecting homelessness.”

The basic thesis seemed to be encapsulated in this passage:

Domestic violence is experienced by one in six Australian females – with an incident occurring every two minutes in this country. Domestic violence is also the dominant pathway to homelessness for women.

Ask most people why people are homeless and they are likely to say it’s because of drug and alcohol addiction or mental health issues. In fact, research initiated by the bipartisan Council of Australian Governments found that domestic and family violence is the leading cause.

It seems unbelievable, but one in three Australian women have experienced physical violence from the age of 15. It’s a tough statistic to get our heads around. And even tougher when you realise that most of that violence occurs at the hands of men they trust – those they are in an intimate relationship with or related to.

The most common reason women give for seeking support from government funded homelessness services is domestic or family violence.

….

There are women living on the street with their children. Living in their cars. Afraid to go to homeless shelters because they don’t want to deal with more violence and they want to protect their children.

….

Why are women still relegated to the lower ranks of organisations despite their educational and professional achievements? Why is feminised labour like childcare, primary school teaching and nursing still undervalued? Why do we accept indirect discrimination in hiring practices?

And why do we think it’s OK for women and children to be treated as property? This is at the heart of domestic and family violence. It’s a hard truth.

Which is why we should all take a turn participating in or supporting the Vinnies Sleepout and spending some time thinking about that truth. And thinking about how we might more urgently address female disadvantage in the workplace as a way to tackle the root causes of domestic violence and homelessness.

There has also been quite a lot of recent publicity of studies showing increases of homelessness amongst older women.  An instance here.

There are a lot of different kinds and causes of homelessness.

The homelessness of Courtney and her alleged assailant seem pretty clearly to have been an caused by a mixture of “drug and alcohol addiction or mental health issues” of the sort to which Lumby and her co-author refer.

Another quite common type of homelessness is that recounted by Wendy Squires in The Age, of which she writes:

I don’t want to dwell on how and why I ended up homeless. It was an escalation of parental circumstance from which I felt I had no choice but to flee.

That was when she was still at school. That strikes me as a kind of liminal phase not so remote from just “leaving home” and likely to be relatively surmountable – provided all other things are equal or a bit better than equal. You are young; you don’t have much ballast or stuff.

The growing homelessness of older women is mostly part of the general category of homelessness arising from poverty.  Whilst female disadvantage obviously contributes to this for women, homeless men still outnumber homeless women in all age groups, according to ABS 2016 figures.

Every private-rental low-income tenant is just a no-grounds termination or a tipping-point financially adverse event away from homelessness – and that’s a lot of people.  It is futile for most such people to even contemplate seeking public housing – the queues for that are as meaninglessly long as the “queues” for offshore refugees.

The statement that “domestic or family violence” is the “most common reason” women give for seeking support from government funded homelessness services has to be read in that light: the general homeless mostly do not even bother seeking such assistance. The figures must be skewed by women with children who do because they actually have a chance of receiving it.

In my own little sallies into the criminal law, I have seen more than enough of the vulnerability of the druggy and mentally disturbed homeless.  The lower reaches of the criminal law are awash with it.  Police know about it though they become hardened to it in their role as society’s garbage collectors and boundary enforcers.  The criminalisation of drug law has a large part to play.

A particularly grim example, though hardly in the lower reaches of the criminal law, is described in unusual detail in [2018] NSWSC 978 – in which, after a 7-week judge-alone trial, Justice Hamill dealt in agonising detail (as he was required to) with the last days of Mark Dower and the responsibility of Mark Jenkin for Dower’s death.

Dower had spent some years teaching English as a foreign language in Finland. You’d have to be a reasonably personable and educated person to do that, and also, one would think, quite adventurous. He had married; he had a daughter.  His wife died.  His life fell apart.  He became an alcoholic and also had mental health problems.  He returned to live in the Wollongong area where (I infer) he had grown up.

Dower became homeless and fell into a terrible milieu of drug users and ex-cons in a public housing estate at Mangerton,  an inner western suburb of Wollongong.

There was no need for Dower to be homeless on economic grounds.  Courtesy of his time in Finland, he was a man with two pensions.  This seems to have become well-known in Mangerton.

Dower was ripe for exploitation and he was exploited.  To his new protectors, and particularly to Mark Jenkin, he became a cash cow escorted to the ATM at milking time or forced to hand his keycard over for Jenkin’s use.

In 2015, aged just 53, Dower died in Jenkin’s flat where he had been for a bit under a week.

Jenkin claimed that he had been caring for Dower and that Dower didn’t want to be taken to hospital because he was afraid of being subjected to electric-shock therapy (which he had been in the past).  Hamill J did not accept this because Dower had  presented himself at hospital on numerous occasions, including on one occasion where he said he had been assaulted by a “martial arts expert” to whom he had lent money to to feed the assailant’s drug addiction.  (The hospital presentations had abated during a period when Jenkin had been in custody.)

Dower had told an old school friend that Jenkin was standing over him for his money but that he was scared to go to the police because he feared Jenkin would kill him if he did so.  He also told a shop-keeper about it one time when he was unable to repay credit he had been extended.

Dower’s fear that Jenkin would kill him had he gone to the police was not so fanciful as you might think.

RS, described by Jenkin in intercepted calls as “a fuckin’ street-working fuckin’ junkie fuckin’ deadset moll” had turned up at Jenkin’s flat just after Dower’s death.  Not long after this, Jenkin lost his key to the flat when he himself was assaulted in retaliation for a burglary he had committed of an ex-girlfriend’s place.  As a result Dower’s body, by this stage almost a week in Jenkin’s bath, needed to be taken out of the flat through the window. RS helped Jenkin do this.  The body was left in a laundry block at the flats which Jenkin had taken over as his own by placing a padlock on it.

Presumably Jenkin was planning to dispose of the body further, but before he got around to it he was arrested for the burglary.  A bit over a week later,  RS anonymously tipped the police off that there was a dead body in Jenkin’s laundry.

Rumours reached Jenkin in gaol that RS was “going crown.”  She was (unless others and Jenkin have remained stumm) the only person who had actually seen Dower dead in Jenkin’s flat.  Phone calls by Jenkin from gaol were intercepted in which Jenkin urged his step-brother to shut  RS up for good by giving her a “hot shot.”  The step-brother tried to source some heroin but the supplier told the court she wouldn’t sell it to him as she hadn’t sold to him before and wasn’t going to start then.

That seems a surprising twist of heroin-dealing ethics and you have to seriously wonder about it, though it could just have been prudence.  The dealer understood that ice rather than heroin was the step-brother’s drug of choice though she denied selling the step-brother anything.

Hamill J’s judgment includes an almost comical roll-call of the numerous witnesses who were potentially unreliable because they were drug users, alcoholics, suffered from mental problems or had drug-addled memories, who may have been concerned to minimise their own involvement in the circumstances surrounding Dower’s death or any conspiracy to murder RS or whose evidence for the prosecution might have been given in return for leniency about their own involvement or in relation to other matters.

There is a lot more forensic detail in the judgment about the indignities (and worse) to which Mr Dower was subjected whilst he was in the flat.  Videos probably taken by Jenkin were recovered from a phone which was in his possession at his arrest.  It must have been heart-breaking for Dower’s daughter, whose identity has been suppressed.

Justice Hamill suspected that Jenkin in fact struck a blow which killed Dower (in which case he would have been guilty of murder), but because it was a circumstantial case and other potential mortal assailants could not be excluded, Hammil J found Jenkin  guilty of manslaughter on the basis that Jenkin had assaulted Dower when he was in the flat and failed to obtain medical assistance for him, as a result of which Dower died.  It’s the same basis on which, for example, parents who fail to take their children to a doctor can be found guilty of manslaughter.

Jenkin was also found guilty of conspiracy to murder RS.

He received a total sentence of 19 years with a 14-year non-parole period.

Twinks and Tipstaves

Bernard Gaynor is a conservative Catholic activist and blogger.  His conduct as such was too conservative (or more accurately, just too much) for the chief of Australian Defence Force.  He’s particularly down on GLBTIQ types.

Garry Burns is a self-appointed gay activist whose specialty is making complaints about people who vilify gay people.  If you like (and others might say in his dreams) he could be described as a mixed avatar of Peter Tatchell and Quentin Crisp with a touch of John Inmans thrown in.  He likes to make jokes about his pussy – though of course that is really Mrs Slocum, isn’t it?

Garry has been going after public homophobia and anti-gay vilifiers for a while.  From memory, going back, it started with him confronting vilification from his neighbour in public housing, but after that and particularly with the arrival of the internet he widened his field of vigilance.  The public housing is not irrelevant.  As a pensioner in public housing Burns is the perfect complainer and plaintiff as he is practically speaking immune from fear of any adverse costs orders.

Burns makes complaints to the appropriate anti-discrimination bodies and as he is in NSW eventually hauls those he has complained about up before the relevant NSW tribunal – NCAT.  (Other states don’t all have such favourable laws for bringing this sort of complaint.  Under NSW law, apologies and compensation can be ordered.)

Or at least he did.  Eventually Gaynor and another of Burns’ targets scored a victory on a constitutional point.  The point was not that NSW law could not apply to Mr Gaynor in Queensland (for one thing, that would probably come up against the Gutnick case about publication on the internet occurring at the point of receipt), but rather that state governments could not establish Tribunals (which are administrative bodies rather than courts) and confer on them jurisdiction to deal with disputes between residents of different states.

Even before this finally went to the High Court, the NSW parliament enacted a workaround so that discrimination cases which could not be brought in NCAT could instead be “kicked upstairs” to the Local Court or the District Court, which undoubtedly were courts.

(In the meantime (unless it has now been resolved) there is still an incredible inconvenience that NCAT is no longer available as a low-cost forum for consumer disputes between interstate parties or even for landlord-tenant cases where the landlord is resident interstate.)

But back to my story.

Last Thursday, trumpeted in The Australian but nowhere else, Mr Gaynor had fresh proceedings before the NSW Supreme Court to stop Mr Burns from bringing cases against him in the Local Court pursuant to this “workaround.”  The matter was due to be heard before Justice Harrison.

But before the hearing could get under way, Gaynor’s barrister, Peter King, former member for Wentworth, son-in-law of Ian Sinclair and counsel of choice for out-there right-wing clients, had an oral application to make.

It was that Justice Harrison disqualify himself from hearing the matter on account of apprehended bias.

Apprehended bias is not a claim that a judge is actually biased, but a claim that a fair-minded observer would consider that there was a possibility (real, not remote) that the judge might be unable to consider the matter in an unbiased way.  It follows from the principle that justice must not only be done but be seen to be done, and also, in a practical sense, because of the almost-impossibility of proving actual bias.

It has to be raised with the judge.  Judges almost never disqualify themselves and indeed they are under a duty not to be wimps and disqualify themselves just to avoid the aggravation.  Then (provided you have raised it with the judge) if the judge finds against you you can raise apprehended bias as an appeal point.

First you need some background.  Supreme Court judges have two personal assistants.  One is the associate; the other the tipstaff. Tipstaves used to be retired military men wearing a long frock coat who knocked on the court door to announce the judicial entry and carried the judicial staff, though doubtless  they had other duties. Nowadays they are more likely to be recent law graduates – the positions are generally not advertised and appointments are made by the judge personally.

The starting point of the application was that, a few days before the hearing, Justice Harrison’s tipstaff had sent a series of emails to the parties inquiring about the status of the parties’ submissions – that is, were there to be any other submissions, are these the submissions, please provide them where there were none on the file, and the like.

It is generally assumed such messages are  sent with the authority of the judge, even if it is only a standing authority to attend to housekeeping matters in relation to impending cases.  Messages to and from the court are routinely copied to all parties to dispel any suspicion of private communications on the side.  Parties (especially litigants in person) sometimes fail to observe this but the courts are scrupulous.

Gaynor took exception to the emails on two counts.  First, the tipstaff emailed Burns and asked about his submissions, even though Burns was not taking an active part in the case and had filed a submitting appearance – (there’s probably a more complicated story behind this because it is hard to think  of Burns being such a shrinking violet).  So why was Burns being asked if he had any submissions?  Secondly, Peter King had already provided his submissions.  Wasn’t the tipstaff (and hence the judge) saying, in effect “Is this all you’ve got?””

This doesn’t seem like much to base an apprehended bias application on.  Justice Harrison said that, at the time the message was sent, neither he nor anyone in his chambers  knew that Burns had filed a submitting appearance as this had not caught up with the court file which they had just received.  Even where parties have already filed submissions, it is unexceptional to check that those are the final submissions and that there are not any more submissions or revised submissions or further submissions in reply in the pipeline.  It’s basically a kind of housekeeping.

But that was not all. Justice Harrison’s tipstaff has a very distinctive and hence readily googleable surname.  Gaynor is after all a man of the internet, so naturally he embarked on some sleuthing of his own.

And he found out that the tipstaff was gay.  Not only was he gay, but he had written a letter to Honi Soit  (the Sydney University student newspaper) in 2013 defending the Mardi Gras, volunteered for ACON, published a few more articles including a scholarly article about whether transmitting/contracting AIDS should still be considered grievous bodily harm in the criminal law, been an extra in a film “Wear it Purple” and participated in a group including a Mardi Gras float of that name, and on his Facebook profile timeline had posted a copy of a flyer for the Sydney University 2013 Queer Revue “Peter Pansexual.”

A review of “Peter Pansexual” had described it as follows:

“Directors Tom Murphy and Bro Reveleigh brought together a loud, proud, fabulous and unashamedly crude hour and a half worth of consistently laugh-out-loud funny skits. Highlights included the ongoing storyline starring Captain Cock and her dildo hands, the beautiful Fran Gianpanni’s rendition of ‘I’d Gaffa Tape My Balls’ (sung to ABBA’s ‘The Winner Takes It All’), and a Julius Caesar/Romeo and Juliet/Mean Girls mashup sketch.

Head Writer, Blythe Worthy, stole the show with her consistently excellent performances and lovely voice. One of the show’s real strengths was its diverse, nuanced portrayal of the many shades of sexuality. While there were, of course, the requisite gags starring dildos and twinks, the show roamed far beyond stereotypes and sequin jokes and even came perilously close to salient social commentary in parts.”

And there was more.  In October 2018, during the storm over the joint letter from the heads of Sydney Anglican Diocese schools claiming that they needed to be exempted from anti-discrination laws, somebody, now Justice Fagan’s tipstaff, had posted somewhere a comment to the effect “Thankfully my school didn’t sign this ridiculous, backward letter. But many did. [plus a bit more].  And Justice Fagan’s tipsfaff was now Justice Harrison’s tipstaff’s Facebook Friend!

So I suppose the application boiled down to:

1. The judge’s tipstaff had sent the emails;
2. The judge had chosen a tipstaff with pro-gay and therefore anti-Gaynor views;
3. The tipstaff had a Facebook friend who in 2018 expressed other “anti-Gaynor” views.

(1) can hardly have amounted to much on its own; (3) was almost nothing; did (2) take things to some kind of tipping point?

As to 2, Harrison J said:

The personal views of my tipstaves are largely unknown to me, except to the extent that they are revealed in the context of the relationship I have with them as my assistant in chambers. My current tipstaff’s employment was neither influenced by nor dependent upon his social or political views. It was, in contrast, significantly informed by his outstanding academic and employment credentials.

So the answer is no.  The application was dismissed.  (Gaynor v Local Court of NSW & Ors [2019] NSWSC 516)

One publicaton by the tipstaff that Gaynor did not choose to complain about was a rather good submission to the NSW parliamentary inquiry into historical gay hate crimes in Sydney – which I guess was based on a research project for his law degree.  (Correction: google tells me probably his honours thesis for his BA.)

Postscript: others have commented here.

PPS 28/6: Mr Gaynor’s substantive application has now been dismissed. ([2019] NSWSC 805) If Gaynor appeals, he has laid the foundation for an appeal on the basis of apprehended bias.

EF

In breaking news, the Victorian state government has announced a royal commission into the affair of “Informer 3838.”

This follows the publication, after a short delay, of the High Court’s decision on 5 November in AB (a pseudonym) v CD (a pseudonym) EF (a pseudonym) v CD (a pseudonym) [2018] HCA 58.

The background is succinctly summarised in the first paragraph:

Early in February 2015, the Victorian Independent Broad-based Anti-corruption Commission provided to the Chief Commissioner of Victoria Police (“AB”), and AB in turn provided to the Victorian Director of Public Prosecutions (“CD”), a copy of a report (“the IBAC Report”) concerning the way in which Victoria Police had deployed EF, a police informer, in obtaining criminal convictions against Antonios (“Tony”) Mokbel and six of his criminal associates (“the Convicted Persons”). The Report concluded among other things that EF, while purporting to act as counsel for the Convicted Persons, provided information to Victoria Police that had the potential to undermine the Convicted Persons’ defences to criminal charges of which they were later convicted and that EF also provided information to Victoria Police about other persons for whom EF had acted as counsel and who later made statements against Mokbel and various of the other Convicted Persons. Following a review of the prosecutions of the Convicted Persons, CD concluded that he was under a duty as Director of Public Prosecutions to disclose some of the information from the IBAC Report (“the information”) to the Convicted Persons.

That’s all very hush-hush, isn’t it? Surely the identity of the Chief Commissioner of Victoria Police and the Victorian Director of Public Prosecutions can’t be that much of a secret?

EF, of course, is another story.

CD’s intention set the cat among the pigeons, though it took a while for the wheels of justice to grind into action. To cut a long story short, in mid to late 2016, EF and AB appied to the Victorian Supreme Court for injunctions restraining CD from passing on the relevant information to the criminals in question. Ginnane J knocked them back in June 2017 (1) (2). On appeal, the Victorian Court of Appeal knocked them back in November 2017. The police and EF obtained special leave to appeal to the High Court in June 2018, which has now also knocked them back, unanimously revoking the grant of special leave.

The basis of the revocation was an acceptance by the High Court (on the police’s say-so rather than EF’s) that EF could be adequately protected by the Victorian Police. In that case, the need to uphold the integrity of the criminal law system (to which EF’s conduct and the police’s conduct in encouraging and exploiting her in it is a scandalous and outrageous affront) trumped any other bases on which EF’s identity as a police informant was entitled to be kept a secret.

All of these proceedings were conducted in camera.

Obviously, Mokbel and the various convicted persons will know straight away who EF is.

I know nothing about Victorian criminal lawyers, but it took me about 5 minutes to make a pretty good guess. And if I’m right, then there’s enough information out there already about EF for Mokbel et al to at least suspect that EF was working with the police. I suppose they might have thought she was working with the police for them. (See comments here: in truth the cat must well have been not only among the pigeons but out of the bag a good 4 years ago.) It’s not as if such characters are above acting on a mere suspicion.

Nevertheless, the court has made orders prohibiting the disclosure other than in specified exceptions of “the real name or image of EF in connection with these proceedings” and the proceedings below until 5 February 2019. Presumably that is to give EF a head start should she decide to go into witness protection and (I surmise) the state an opportunity to act if she declines to do so and her children need to be taken away from her so that they can go into protection.

It’s a murky world out there. I hope that EF and her children escape reprisal. Meanwhile, she and the police have surely made life more dangerous for other lawyers and their families in the future.

Suing Gina Rinehart- an update

Under the title Deep Pockets, I have been maintaining now for some years a post which endeavours to keep track of developments in the long-running dispute between Gina Rinehart and some of her children.

The latest instalment in this saga, listed in my chronology as number 52, is an interlocutory decision delivered by Justice Brereton on 5 November 2018 on a notice of motion which was first brought by Bianca in September 2015 after, following orders made in May 2015 that Bianca replace Gina as trustee of the family trust, Gina failed to deliver all of the trust documents to Bianca.

Since nobody clicks on the links, this is what I have written there about the latest decision:

52.   (5 November 2018) Hancock v Rinehart (Trust documents)[2018] NSWSC 1684

This was a notice of motion filed on 3 September 2015.  Paragraphs 4 to 17 of Justice Brereton’s reasons for judgment are devoted to  its “labyrinthine procedural history.”  Suffice to say that considerable parts of that history are unsuccessful rearguard actions mounted by Gina and her camp, including 38A, 41, and 42 above, though some of the intervening delays involved documents belatedly produced or discovered in the hands of third parties.  Submissions finally closed in August 2017.

After mulling over it for a mere 15 months, Justice Brereton determined that Mrs Rinehart had not handed over all of the trust documents which she was ordered to hand over on 28 May 2015, and that she should be required to swear an affidavit verifying her production in terms of his decision as to what should and what need not be handed over, which she could at least potentially be cross examined on at a later date.

That would be a first for Gina or close to it: the beauty of being a very rich person is that you never actually have to do anything yourself.  Everything can be attended to by others who will do what you want and tell you as best they can what you want to hear whilst shielding you in many cases from direct scrutiny.  Even now, the scale of the task of identifying and producing trust documents to the new trustee is such (though I wonder maybe not so much as is claimed involves  the identification of documents as opposed to the vetting of documents to see whether they might be withheld) that if cross examined Gina could presumably palm the responsibility off on some minion, at least so as to avoid any direct censure.

As it was, Brereton J did not  find that Gina had deliberately withheld documents  or that there was an absence of good faith in her compliance with the orders (see [101]).  That’s the beauty of all that expensive advice and arguable though ultimately unsuccessful grounds for withholding them. Nor was he prepared to find that Gina had acted so unreasonably (once again, there were arguable points) so as to attract the sanction of an order for costs on an indemnity basis.

 

Just to put this in context:

• the proceedings commenced in September 2011, triggered by the proposals advanced by Gina on the eve of her youngest child’s twenty-first (maybe twenty-fifth, whichever was the one significant for the passing of trust interests to all of the children) birthday;
• In October 2013, when an actual trial was imminent, Gina’s counsel announced that she no longer wished to continue as trustee of the trust – though it was evident that she still affected to jump rather than be pushed and wished to play a part in the selection of her replacement.  – I have called this a “Clayton’s capitulation.”
• In mid-2014, there was a contested hearing on who should be the replacement trustee;
• In May 2015, Brereton J published his decision that Bianca be the new trustee.

That is only one strand of the multiple fronts on which this dispute is being fought.  On another front, Gina’s victory on appeal to the Full Federal Court that proceedings brought by Bianca alleging breach of trust by her in siphoning off various mining interests from the trust should be referred to arbitration has been appealed by Bianca and is set down for hearing on 13 November 2018.

The “Deep pockets” that I had in mind in my main post on this topic were obviously Gina’s.  It is a scandal, hardly unique to this case, that deep-pocketed defendants’ rearguard actions, even when ultimately unsuccessful, are so rewarded, without even the censure of indemnity costs.   It doesn’t help that judges are busy people and decisions (reasons must be prepared carefully because an appeal on any arguable point is almost inevitable) are such a long time coming.

 

 

Internecine shenanigans

When judgments are published on the internet, they are published with a section, supposedly for indexing purposes, called “catchwords.”  The cognoscenti have been having a bit of a chuckle over the catchwords to Gladys Hargraves v Susan Eveston [2018] NSWSC 505, a judgment by Justice Hamill:

CIVIL LAW – unpleasant litigation – contract dispute – loans from mother to daughter – internecine family dispute – where loans formalised by deeds – whether terms of deeds varied by subsequent conversation between parties – dispute as to whether conversation occurred – where neither party presents as a witness of credit – financial shenanigans – palpable personal animosity – dark looks across the public gallery – tsk-tsking – objectively established chronology – not satisfied conversation occurred.

The case was about a loan for $1.7 million from Gladys to Susan.  There was a written agreement documenting this loan. Susan did not dispute that she had to repay it, but claimed that as a result of a conversation with her mother in September 2016 she did not have to repay it until another family dispute (in which she and her husband claimed to be owed a similar amount by a family company) was resolved.   This was the conversation  which Justice Hamill was not satisfied occurred – basically because the first mention of it by Susan was very late in the piece.

There was some colourful detail because Susan was forced to admit in cross examination that she had stolen some money from a family company (she said that she had worked in family companies for some years but was not paid at a level commensurate with her responsibilies).  Maybe this was the stuff which elicited the “tsk-tsking.”  Otherwise  it wasn’t really a very complicated or legally  interesting case, apart perhaps for the considerable wealth of the family involved.

Meanwhile, a more humble family has been slugging out before Justice Robb the question of who owned 14 Prout Street Cabramatta. His judgment is Lay v Pech [2018] NSWSC 460.

Maybe there was less eye-rolling and tsk-tsking because, as his Honour observed, the parties were all of Cambodian background.  This was relevant on at least one parties’ case because of the obligation of a son to look after his mother according to traditional Cambodian values.

Ms Lay sued her son, Poly Pech, for orders that she was the beneficial owner of a house which was legally in Pech’s name.  The legal owner of the property at the time of its purchase in 2010 was  Mr Tai, her then-de facto, who joined Ms Lay as plaintiff.

Ms Lay and Mr Tai said that Mr Tai had bought the property in 2010 because Ms Lay lacked an income which would enable her to obtain a mortgage.  Later, in 2015, it was transferred to Mr Pech.  Ms Lay and Mr Tai said that this was part of a de facto property settlement between them, but that the intent of the transfer was that Ms Lay become the beneficial owner and not Mr Pech.

Mr Pech said that the property had always been his, and that it had first been purchased in Mr Tai’s name because Mr Pech had a bad credit rating, that Pech had provided the initial deposit, and that payments made by his mother or Mr Tai were explicable as rent paid to him.  The transfer to Mr Pech in 2015 was not part of a de facto settlement between his mother and Mr Tai, but rather because he was by then in a position to obtain a mortgage.

Mr Pech faced at least two difficulties.  The first was that he said he was earning about $50,000 a year at the time the property was purchased, whereas for a number of years his PAYG summaries and tax returns only referred to an income of $20,000.  This, Justice Robb said, did not reflect well on his credit (ie, his believability).  It probably also means that he was substantially paid in cash.  The second (and this is my interpretation) was that even on Mr Pech’s case,  mortgage payments made by Mr Pech were made by him to his mother who was then the person responsible for paying these into the bank which turned up as amounts deposited in NSW (for much of the time Mr Tai was away working in Queensland).  This meant that when Justice Robb went to analyse the banking records, he only gave Mr Pech credit for what was actually banked by Ms Lay.  Is it possible that Mr Pech paid his mother more than she banked?  Justice Robb does not appear to allow for that possibility. Maybe she wasn’t asked that.

That may be because his Honour had other reasons for favouring Ms Lay’s and Mr Tai’s account, including patterns of payment and expenditure on renovations which Robb J found more consistent with Ms Lai being the intended beneficial owner, and what his honour considered to be exaggerations in Pech’s account of his involvement in undertaking renovation work.

But Ms Lay herself also had a bit of a problem, which is that (as far as I can amount) she had been receiving Centrelink payments (as an invalid pensioner) on the basis that she was a single person for the period of her de facto relationship with Mr Tai, when every indication is that his income would, if the truth were know to Centrelink, wholly or very substantially preclude her receiving such payments.  She may also have been receiving rental assistance in relation to her occupation of a property which she now says she was the true owner of all along!  (Correction: I initially wrote “all along” but actually that was an issue which she and Robb J both danced around and away from probably because of this.  But it still doesn’t seem as though she was ever actually paying rent.)

Ms Lay’s status as a Centrelink recipient is probably why it appears to have been common ground that she was never the source of monies paid off on the mortgage, on the assumption that her living expenses fully accounted for her Centrelink income.  Indeed it appears that Mr Tai subsidised her living costs.

It’s obviously a murky tale.  I wasn’t there at the trial but I get the distinct feeling that the entire story has not been told on either side.

Pech made a last-ditch submission that if the judge found for Ms Lay, he should still decline to make an order in her favour because of the illegality of her conduct.  Justice Robb rejected this argument, on the basis that the illegality was not sufficiently bound up with the reason for the equitable ownership that she now claimed.

Further, as Robb J put it (at [63]):

Mr Pech went so far as to submit that, if his defence of illegality was not accepted by the Court, the Court should not grant the relief sought by the plaintiffs without imposing a condition that Ms Lay first make a disclosure to Centrelink, and then pay whatever amounts are required by Centrelink to remedy the consequences of her unlawful conduct. While that may be a proper course for the Court to take in an appropriate case, it may be observed that this was a very aggressive submission for Mr Pech to make against his mother.

I’m a bit surprised that Robb J found “aggression” in the context of such litigation, where, incidentally, Ms Lay’s lawyer had effectively pinged Pech for tax evasion, to be at all remarkable.  I expect there was a fair bit of antagonism on both sides.  Maybe (too many “maybe”s in this post, I know) what his Honour meant was that it was a vindictive submission: making his mother pay Centrelink back would not advance Pech’s own position in the slightest.

Anyway, with a lot of giving Ms Lay the benefit of the doubt and declining to draw in my opinion almost inescapable conclusions along with a lot of dodging around what the position was for the almost 5 years up to the date of the transfer to Mr Pech when Ms Lay was almost certainly receiving rent assistance in relation to claimed rent paid to Mr Tai, his Honour declined to impose such a condition.  He didn’t even refer the papers.

 

 

 

 

 

Grinding slow

News is in this morning (well, yesterday by now) of the conviction of Ron Medich for the murder of Michael McGurk.  McGurk was shot in December 2009 outside his home in Cremorne.

How could the wheels of justice grind so slow?

I asked my neighbour in chambers, who is more au fait with the criminal law. His explanation was the layers of hitmen, getaway driver and fixer that had to be worked through first, sentenced and turned prosecution witness. (It was never the crown case that Medich fired the gun himself.)

Another which occurred to me is the capacity of a well-resourced defendant to delay things by prolonging the committal process.  It is true, as my neighbour pointed out, that where witnesses (as here) are informants that is a recognized category where you will be entitled to have a crack at them in a committal hearing.

Medich’s committal hearing was way back in 2013.  That was a mere three years or so after Medich was arrested, so hardly accounts for the delay.

No fewer than 18 22 36 judgments (the last one is No 2324 26 42) by Justice Bellew relating to the trials (over which he presided) and proceedings leading up to them have now been published .

The first trial was initially set down for 25 August 2014.

Medich applied  for the trial to be permanently stayed.

Bellew J reserved judgment and vacated the  trial date – R v Medich (No 1).

He vacated the trial date because he anticipated an appeal either way he decided the application and there would not be time for that before the scheduled start date.  His judgment includes this (retrospectively) delicious passage:

I also recognise the fact that the deceased’s family would no doubt want a trial to take place at the earliest possible time so as to have some closure of the matter. I also recognise that the accused wishes to have his trial at the earliest possible time. Notwithstanding all of those matters, the practicalities of the situation are that there is no alternative other than to vacate the trial date.

In September 2014 Medich’s application for a stay was dismissed (R v Medich No 2).  (So it turned out vacating the trial date must have taken the heat off Justice Bellew to deliver a decision as well.)

So far no judgments on any appeal against that by Medich have been published.

UPDATE, 23 May 2018:

A judgment has now been published online: MEDICH v R [2015] NSWCCA 281. This was heard in August 2015 with the appeal dismissed on 13 November 2015.

In November 2015  Medich’s trial was listed to commence on 11 July 2016, with an estimate of 3 to 4 months.

On the morning the trial was due to commence, the prosecution provided two lever-arched folders of documents to Medich’s legal team.  The jury, which had already been empanelled, was discharged and the trial date vacated.   (R v Medich (no 6))

The first trial finally ran from January to April 2017.

Yesterday’s conviction was after a second  trial which started at the beginning of this year.