A Barrister's Blog

The lighter side of law

Indecent Language

Posted on May 25, 2018

In January 1972, Kim Dalton was sentenced to 28 days imprisonment for using indecent language. He had apparently used the three words “f**k”, “f**ked” and “c**t” in Elder Park (an inner city Adelaide park on the banks of the Torrens). Well, it was 1972 and it was in Adelaide.

There was an appeal against sentence (see Dalton v Bartlett (1972) 3 SASR 549).

Hogarth J (at 556-557) seems to engage in some grammatical gymnastics to avoid putting the words into his judgment:

The words may be used simply to denote a feeling of hostility by the speaker to the hearer, or to fate in general, or to convey an emotion of anger or irritation. In many cases, they are completely neutral and devoid of meaning or emotional content. In some circles it seems to be a usage almost de rigueur in private conversation for the present participle of the verb in question to precede most nouns, even on so prosaic occasion as a request to pass the butter. This usage presumably arose from a desire to impress on the hearer the virility and masculinity of the speaker. But there is a continuous process by which language, like money, loses its value; and in this usage the word has lost all meaning. It may be full of sound and fury, but it signifies nothing.


In my personal experience (which involves hearing all three words used probably many thousands of times in the course of a period of some six years in the army during World War II) the words as most commonly used are almost always used in a sense which is not indecent. They may properly be characterised as either uncouth or offensive; I personally find them so on most occasions, particularly when used in public or in the presence of women. But in this case the appel­lant was not charged with the use of offensive language; and it is no offence to be uncouth. In any case, what is uncouth is merely a matter of personal opinion; and to establish that the words are offensive evidence of context and circumstance is necessary, just as in the case of alleged indecent use.

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The Mention

Posted on Apr 24, 2018

Apparently true  story (relayed to me by a reliable source) of a recent mention which occurred in Court 5.2 at the Downing Centre Local Court:

Solicitor:     “May I mention the matter of Fu?”

Magistrate: “How do I spell that”

Solicitor:       “F U your Honour”

….court erupts in laughter.

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Habeas Corpus

Posted on Mar 27, 2018

In April 2017, Justice Lucy McCallum had to deal with an urgent out of hours application for the issue of a writ of habeas corpus. The petitioner apparently stubbornly refused/ignored her Honour’s “hints” that a bail application would be better received without the embellishment of insistence upon medieval modes of address or ill-informed incantation of God’s law and Magna Carta.

Nevertheless her Honour dealt with a number of arguments, including:

[9] First, it was suggested that the applicant was arrested for conduct which is incapable of amounting to an offence. The petitioner explained that the applicant was charged after being found in possession of cannabis. The petitioner contended that all plants were given to man by God, citing Genesis 1:29 of the King James Version Bible 1611, which states:

And God said, Behold, I have given you every herb bearing seed, which is upon the face of all the earth, and every tree, in the which is the fruit of a tree yielding seed; to you it shall be for meat.

[10] The point might have been made in response to the petitioner’s submission that, according to those words, if it is God who supplies cannabis to man, it is for nutritional rather than recreational purposes. In any event, I took the view that the matters contended for by the petitioner would not afford a defence to an offence against ss 10 or 23(1)(c) of the Drug Misuse and Trafficking Act 1985 (NSW), which prohibits the possession of cannabis in a number of forms, regardless of its origin.


[25] Unsurprisingly, the petitioner concluded his submissions by citing Magna Carta (version not identified).

Being a Judge must be exasperating at times. It’s difficult to help people who can’t help themselves.

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The Third Time

Posted on Feb 23, 2018

On Australia Day, Radio National’s Law Report replayed an episode about the birth and development of our legal system. How did our democracy and strong independent legal system evolve from a bunch of desperate convicts and their jailers? This post was inspired by one of the stories in that program.

Conditions were harsh in 1788 and early trials were conducted by the Judge-Advocate and six officers (a majority of 5 out of the 7 was required for a capital offence). The first Judge Advocate (the key position in the criminal “justice” system)  was Captain David Collins who exercised both prosecutorial and judicial functions without proper independence.  Despite the conflict, history apparently shows he generally did his best to act fairly and lawfully.

It only took about a month from the arrival of the first fleet before the first execution occurred. Thomas Barrett and three others were convicted of “feloniously and fraudulently taking away from the public store beef and pease, the property of the crown.” It’s not hard to see why half starved convicts might steal food and also not difficult to see why a raid on the stores was taken very seriously by the authorities.

There is an interesting back story to Barrett. This was in fact the third time he had been sentenced to death (did he have learning difficulties?). In 1782 his death sentence for stealing a silver watch was commuted to transportation. He was then held on a convict hulk awaiting transportation and was one of several prisoners who led a “rebellion”. His second death sentence for his part in that episode was also reprieved and he ended up in the first fleet in Australia in 1788. However, his luck ran out on 27 February 1788 when he was tried, convicted and the “court” ordered his execution to be carried out before sunset on that day. He was hanged from a tree near the corner of what is now Essex and Harrington Streets in Sydney (where I took the photograph of the plaque).

What happened to the three others? The youngest was bullied (at gunpoint apparently) into being the hangman and was pardoned for accepting the role as common executioner. The other two were given a 24 hour reprieve before being led back to the hanging tree the next day. They were then also spared death by order of the Governor (but undoubtedly needed clean underwear). They were then “banished to some uninhabited place”!!

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Posted on Jan 29, 2018

You’ve probably noticed over the holidays that NSW has introduced a refund scheme on various drink containers and there have been a few media stories about the Reverse Vending Machines.

The details of how it all works are set out in Schedule 1 of the Waste Avoidance and Resource Recovery Amendment (Container Deposit Scheme) Act 2016 (“CDS Act”). The CDS has the admirable aim of reducing and dealing with waste and promoting the “recovery, reuse and recycling of empty beverage containers” (s19). However, the devil is in the detail. Both “beverage” and “container” are defined terms (ss 21 and 22) but both have exclusions provided by the regulation.

CDS Regulation 4 is definition of “excluded beverages” which are (a) milk (other than flavoured milk); (b) cordial; (c) concentrated fruit or vegetable juice; and (d) registered heath tonics. Cordial and health tonics are defined terms.

CDS Regulation 5 deals with “excluded containers”. The short version is:

  • any container smaller than 150mL or bigger than 3L is excluded;
  • unless it’s a glass container designed to contain wine or “spirituous liquor” (both of which are defined terms) in which case it is excluded regardless of size;
  • containers for flavoured milk or fruit and vegetable juice (or a mixture of the two which contains at least 90% juice) are excluded if they’re bigger than 1L; and
  • containers made of cardboard, plastic or foil (or any combination of the three) which are designed to contain 1L or more of wine, wine based beverage (separately defined term) or water (including mineral water and spring water) are also excluded.

Is it just me or would there have been an easier way to draft this to make it clear it applies to plastic soft drink bottles and smaller non-alcoholic glass bottles? I’m also thinking the flavoured milk lobby must be a thing?

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The Xmas Party

Posted on Nov 17, 2017

If you work in HR, this post will give you nightmares. If you are an employee and you want to know how to behave at a Xmas party to ensure you don’t have a job to return to next year, you could follow the example of Mr Keenan (a former team leader at the Leighton Boral Amey Joint Venture). Amongst other things make sure you:

  1. have a few beers before you get to the party, and then have another 10 (plus some spirits) between 7pm-11pm;
  2. tell one of the General Managers for Boral (who is also on the Board) to f*ck off;
  3. tell the (female) Executive Team Coordinator that “All those Board members and managers are f*cked, they can all get f*cked and that  [Name] [LBAJV Contract Manager] is a c*nt;
  4. then with no warning whatsoever, suddenly reach forward, hold another [female] employee’s face on both sides with your hands, and kiss her on the mouth;
  5. find another female office mate, speak close to her face, use an aggressive demeanour and several times say: “I want to ask for your number, but I don’t want to be rejected”;
  6. attempt several times to touch the dimple on the chin of a different female employee despite the fact she pulled away each time; and/or…
  7. round off the night by engaging in the following exchange with yet another female employee while you wait for a taxi home:

Mr Keenan: My mission tonight is to find out what colour knickers you have on.

Ms [name]: They are white, touch my skirt and I’ll kill you.

Great response….shame it was necessary. Just to further demonstrate that he really didn’t “get it”, the whole sad and sorry saga is set out in Keenan v Leighton Boral Amey NSW Pty Ltd (yes – that’s right, Keenan sought reinstatement on the basis that his dismissal was harsh, unfair and unjust). Doh!

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