A Barrister's Blog

The lighter side of law

Complete Freedom

Posted on Jun 26, 2017

On 1 December 2016, Luke Moore’s appeal against his conviction for dishonestly obtaining a financial advantage by deception was allowed by the Court of Criminal Appeal. Aspects of Leeming JA’s leading judgment (yes, they let equity lawyers sit in criminal appeals) are mildly amusing:

  1. Mr Moore opened (with a zero initial balance) an account with St George Bank at a branch in Goulburn on 11 March 2010. “The account was styled, not inaptly, a “Complete Freedom” account“(at [4]);
  2. The account quickly ran into overdraft and kept going. When it was closed in August 2012 there was a negative balance of $2.1M;
  3. A police raid on Mr Moore’s home in December 2012, recovered inter alia signed pictures by Led Zeppelin, Bob Dylan, Guns N’ Roses, Foo Fighters and Usher, an Amy Whitehouse frisbee and the keys to an Aston Martin DB7 Vantage coupe. There was also a 2001 Maserati sedan, a 2006 Alfa Romeo 156 and a 6.1m boat. The list goes on (see [13]-[16]);
  4. His Honour observed (at [17]) that “It is perfectly plain that there was a mistake of some kind within the Bank. As a matter of civil law, a mistaken payment gives rise to a right to recovery. To be quite clear about it, the notion sourced in board games of a windfall “Bank error in your favour” is a very poor guide to the position at law. It has been the law for centuries that a party making a payment by mistake is entitled, subject to defences, to recover that payment.”; and
  5. Also that: “It is plain that Mr Moore behaved not only extremely foolishly but also dishonestly” (at [19]).

BUT  “…an element of the offence with which Mr Moore was charged is deception. The unusual aspect of Mr Moore’s conduct was that there was nothing covert about it. The statements issued by St George recorded each debit, and charged a fee and interest, and stated with complete accuracy Mr Moore’s growing indebtedness” (at [23]).

So, there you go, there was no deceit. …I doubt he’ll go very well in the inevitable civil proceedings.

Creative commons acknowledgment for the photograph.

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Hot Potato

Posted on May 26, 2017

I usually associate Western Australia with mining (and sharks) and not with agriculture and certainly not with potatoes. I was accordingly,  a bit surprised when I recently came across the Marketing of Potatoes Act 1946 (WA) which regulates the sale of ware potatoes. A ware potato is an unprocessed, WA grown potato for which there are reasonable grounds for believing is to be sold for human consumption (s 5).

Section 22 makes it an offence (yes, a crime) to purchase or take delivery of more than 50kg of ware potatoes without complying with the Act. The Act says you are only allowed to sell or deliver potatoes to the Potato Marketing Corporation of Western Australia and its agents or with the relevant permit.

In the prosecution for this heinous crime, failure to produce to an inspector, the sales docket, delivery note or relevant consignment advice from the grower which contains the “prescribed information” is prima facie evidence of a contravention of the provisions of the Act. The maximum fine is $2000 for a first offence and $5000 for a subsequent one. In making a request for documents, the inspector must have had “reasonable cause to believe the person charged was in possession or control of a quantity of potatoes at a material time“.

Lest it be thought all this is a joke, it appears that there has been a long running dispute between the Galati family and the Potato Marketing Corporation in the courts of WA, including an application for an interlocutory injunction.

Adds a whole new dimension to the Wiggles song “Hot Potato” doesn’t it?

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457 no more

Posted on Apr 26, 2017

You couldn’t escape the “storm in a teacup” immigration news about the axing of the 457 visa last week. Last time I looked at a DIBP annual report there were about 100,000 (yes, they’d all fit in the MCG) 457 visa holders in Australia. As was reported there are now 216 less occupations (on the new STSOL and MLTSSL) which are eligible for a temporary working visa and some of those are subject to “caveats”. For instance the occupations below, are subject to the dual caveat that they must be located in a regional area (a defined term by postcode) and positions can’t be unskilled farm hands. Consequently, there won’t be any bee-keeping or sugar cane growing in Martin Place.

 Apiarist 121311  Fruit or Nut Grower 121213  Mixed Livestock Farmer 121317
 Aquaculture Farmer 121111  Grain, Oilseed or Pasture Grower (Aus) / Field Crop Grower (NZ) 121214  Pig Farmer 121318
 Beef Cattle Farmer 121312  Grape Grower 121215  Poultry Farmer 121321
 Cotton Grower 121211  Horse Breeder 121316  Sheep Farmer 121322
 Crop Farmers nec 121299  Livestock Farmers nec 121399  Sugar Cane Grower 121217
 Dairy Cattle Farmer 121313  Mixed Crop and Livestock Farmer 121411  Vegetable Grower (Aus) / Market Gardener (NZ) 121221
 Flower Grower 121212  Mixed Crop Farmer 121216

If you’re wondering, the 6 digits is an ANZSCO code where you can look up the skills and qualifications necessary for just about any occupation including “sex worker” (see my previous post about Classification of occupations). Sex worker is not on the list of skilled occupations for the 457 visa.

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Struck off

Posted on Mar 28, 2017

Mr Singh practised as a lawyer in New Zealand, Fiji and Australia. He was admitted in Queensland in 2002 but the Queensland Law Society  refused to renew his practising certificate from 1 July 2008 when it discovered (i.e. wasn’t informed) that Mr Singh had been convicted in Fiji, on 25 October 2006, of the offence of attempting to pervert the course of justice.

Whether or not he was fit and proper for practice became an issue in disciplinary proceedings, where you can read the whole sorry story. However, the last few paragraphs of the Tribunal’s decision only affirms my view that it’s generally way better to “own up and deal with it” rather than have something like this published about you:

[49] As the recitation of the various proceedings in Fiji shows, however, he has taken every conceivable avenue of appeal in relation to his criminal conviction, and the disciplinary proceedings there. He also raised every conceivable argument to contest the proceedings before this Tribunal, all of which were without merit. He has, in earlier submissions to this Tribunal, maintained that he was entrapped by the Office of the Director of Public Prosecution, Fiji because of its jealousy at his success in courts there.

[50] Those submissions compel the conclusion that he does not, even now, fully perceive and have real insight into the seriousness of his offending, or the fact that its elements involved an attempt to gravely subvert the proper administration of justice. Remorse is an emotion which can readily be propounded, but its actual presence is not always easy to discern. Its presence, in Mr Singh’s case, would be more readily found if his conduct in the face of a serious charge in the past decade – beginning, as the passage from the sentencing remarks set out above shows, with an absolute denial, and continuing for some years through a welter of proceedings in which legal stratagems were relentlessly used to avoid sanction – did not belie it.

[51] The Tribunal is, for these reasons, left unpersuaded that Mr Singh has (despite the long period of time which has elapsed) appreciated the seriousness of his misconduct or that, by dint of time and a better appreciation of the nature of his offending, the continuing cloud it leaves over the question of his fitness to practise has been diminished, or expunged.

[52] The offending was, on any view, of a very serious kind: it involved dishonesty which goes to the heart of the justice system. Despite the fact that it occurred almost a decade ago, nothing that has happened since can be seen to reduce or allay its seriousness and it continues to raise a grave doubt about Mr Singh’s fitness to practise. While the passage of time is material, its effects must be weighed against the events discussed earlier and, in particular, Mr Singh’s own conduct.

[53] In light of the seriousness of the original offending, and in the circumstances attaching to this matter, the Tribunal is driven to conclude that Mr Singh’s name must be removed from the local roll.

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Conditions of entry

Posted on Feb 24, 2017

As many readers of this blog will know, day 2 of the Sydney (cricket) test in January each year is “Richie Day”. I have since discovered that the Richie’s have their own website with details of what you have to do if you want to be one. There is even a Richie’s code of conduct that must be abided by.

I was at the SCG on Richie Day this year. The Richies had 3 trumpeters amongst them. It was quite amusing when Nathan Lyon’s new spell was heralded with a rendition of “The Lion Sleeps Tonight” (the Tokens 1961, wimoweh etc etc). However, I did wonder how could it be that an environment so hostile to the beach ball could be trumpet friendly.

The answer is in the Cricket Australia conditions of entry which prohibit the bringing in of any “stadium horn (including without limitation, a vuvuzela or caxirola), loud hailer or similar device“, but is silent on other instruments. Interestingly the corresponding conditions for the Waratahs and the AFL both provide that prior written consent is required to “bring into the Venue any musical instruments“. The A League doesn’t say anything about musical instruments, but does ban skateboards and rollerblades (which are not mentioned for the other sports). So, trumpets (but not horns) are allowed at the cricket but not at the football.

The following general condition of entry applicable to all events brought a civil liability smile: “Patrons should be aware that sporting equipment such as footballs or cricket balls may be kicked or struck from the playing field into the seating areas during events. Patrons are advised this can occur at any time“.

Acknowledgment for the photograph: http://www.therichies.com.au/

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The Physicist Judge

Posted on Jan 31, 2017

What do cannabis sativa, viagra, carcinogens and epidemiology, the BRCA1 polypeptide, and a Norwegian roll-on/roll-off container ship have in common? This was the question posed by Justice Michelle Gordon in a recent paper she delivered at the University of Western Australia. The answer is (of course) (now former) Chief Justice Robert French, whose successor, Susan Kiefel was sworn in yesterday.

French (like me) has qualifications in both science and law and he told the following blogworthy anecdote about his early legal career in a paper he gave in 2011:

“Nearly 40 years ago, as a newly minted lawyer who happened to have a science degree with a physics major, I was keen to take on cases which involved scientific questions. One such case concerned a young man riding a motor bike who was clocked at twice the speed limit by a radar gun. He insisted that he had only been travelling at the speed limit. The radar gun works by transmitting a radar beam at a certain frequency. When that beam hits a moving object it is reflected back and its frequency shifts upwards. This is called the Doppler Effect. The radar gun combines the reflected signal with the outgoing signal to produce a resultant frequency called the ‘beat frequency’ which is a function of velocity. According to that beat frequency, the gun produces a readout of speed.

I remembered from my basic physics that the speed of a wheel at the top is twice the speed at the axle. So if the motor bike were travelling at a speed ‘V’, the spokes at the top of the wheel would be travelling at the speed 2V relative to an external observer. Could this be the explanation for the disputed reading? Had some of the reflected beam come off spokes travelling at twice the speed limit even though the bike itself was travelling within the law? Could my client have been telling the truth? I engaged the services of a PhD student. We brought to court a bicycle wheel, a radio frequency generator and a couple of oscilloscopes. The magistrate was transfixed by the evidence. However, he didn’t know very much about physics. In the end he said he would rely upon the policeman’s personal estimate of the speed and convicted my client. He was probably right to do so.”

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