A Barrister's Blog

The lighter side of law


Avunculus Bob


Posted on Dec 20, 2016

I have previously blogged about David Ross QC and his quirky personal court book which became a textbook, “Ross on Crime” (now in its 7th edition). Amongst many other blogworthy features, the book has an appendix of latin terms, which I first came across quite by accident. In amongst the entries I found the following:

res gesta

res ipsa loquitur (the thing speaks for itself)

res judicata

Robertus avunculus tuus est (Bob’s your uncle)….what!?….

After I got over the initial surprise it caused me to have a quiet chuckle and to make a note to self to turn it into this entry on my blog. I have since done a bit more research on David Ross and discovered that he played didgeridoo, trombone and sousaphone. He was also a keen canoeist and educator and is also the author of an advocacy textbook. Apparently he also loved his latin and he arranged for a sign with “Robertus avumculus tuus est” to be placed on the wall outside his room in John Starke Chambers. Ross QC died on Christmas Eve in 2009. An abridged version of his eulogy is online and makes good holiday reading about an interesting and diverse life in the law.

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The Conjunction


Posted on Nov 25, 2016

obsceneThe meaning of simple words such as “and” and “or” (or shorter/longer) is not always as clear cut as you might at first think.

The 30 May 1956 edition of People magazine included an article entitled “Love in the South Seas”. The article was almost exclusively concerned with the sexual habits of Polynesians in their native islands, who apparently compared with Westerners were abnormally oversexed. The article was found to be obscene under Victorian law at the time. More details about the article appear in the judgment of the Victorian Supreme Court. Associated Newspapers sought special leave to appeal to the High Court (see Associated Newspapers v Wavish) .

The argument was about the construction of section 169 of the Police Offences Act 1928-1954  (Vict.) which provided:

(1) In this Part—obscene’ (without limiting the generality of the meaning thereof) includes

(a) tending to deprave and corrupt persons whose minds are open to immoral influences; and

(b) unduly emphasizing matters of sex, crimes of violence, gross cruelty or horror.

Dixon CJ found that: “In relation to the definition of the word obscene’ in s. 169 (1), we are of opinion that the word and” does not mean that what is stated in pars. (a) and (b) provides cumulative conditions which must be both fulfilled before an article” can fall within that definition. It is enough if the article has the tendency described in (a) or has the undue emphasis described in (b).”

So, was the article obscene? Dixon CJ said: “In this particular case four members of the Court have read the article carefully and are of opinion that it is clearly within the definition of obscene”. For myself, I have not read the article through but I have seen sufficient of it to leave me with no doubt that their Honours are entirely right in the view they have taken.” So there – application refused!

Creative commons acknowledgement for the photograph (which is not obscene – it’s a clothes hook).

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Criminal Mooning


Posted on Oct 24, 2016

mooning-gnome

Victoria has recently had a major overhaul of its laws dealing with sexual offences. One of the purposes was to try and differentiate between more serious sexual offences (such as “flashing” which is now “sexual exposure”) and the less serious “offensive or indecent behaviour”.

It was always an offence under s17(1)(d) of the Summary Offences Act 1966 (Vic) to behave in a riotous indecent or offensive manner. However, one of the amendments made by the Crimes Amendment (Sexual Offences) Act 2016 is to introduce the new section (1A) which provides:

“For the purposes of subsection (1)(d), behaviour that is indecent offensive or insulting includes behaviour that involves a person exposing (to any extent) the person’s anal or genital region.

Example

Mooning or streaking”

 [No, its not a typo – these examples appear in the legislation].

The penalty for a first offence is a maximum of $1550 or 2 months in jail. So, there you have it, the quintessential sign of disrespect (thinking Braveheart) is now a crime in Victoria.

Before I leave section 17, I also note that it is also an offence to sing an obscene song or ballad in or near a public place within hearing of any person being or passing therein. It appears this is also an offence in SA and the NT but not in other states. Thankfully, the Ball of Kerrymuir (only google it, if you’re not easily offended) can still be sung with impunity in Sydney.

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Emu Wars


Posted on Sep 30, 2016

emuIn November 1932, the Commonwealth government received (and acceded to) a peculiar request for assistance from WA wheat farmers whose crops were being damaged by emus. A succinct summary is in the speech by Senator Sir George Pearce given on 18 November 1932 (see Hansard at 2570):

It was explained to me that the use of rifles for the extinction of the birds was quite ineffective, because only one or two birds could be shot before the remainder scattered far and wide. Ordinary fences such as keep out dingoes and kangaroos offer no obstacle to emus, for the birds take them in their stride, or knock them down, and thus let the rabbits into the crops.

I was asked to allow machine guns [yes – machine guns!] belonging to the Defence Department to be used for the destruction of the birds, the farmers undertaking to pay for the necessary ammunition…..I ultimately agreed to allow three members of the permanent military personnel to go into this district with the guns, on the State Government undertaking to give them their railway fares and pay for the ammunition used.”

The so-called “emu war”, perhaps unsurprisingly, attracted criticism in the press and wasn’t very successful in reducing emu numbers. The military were quickly withdrawn. Some of the quotable quotes from the time included:

  1. Comments by ornithologist Dominic Serventy: “The machine-gunners’ dreams of point blank fire into serried masses of Emus were soon dissipated. The Emu command had evidently ordered guerrilla tactics, and its unwieldy army soon split up into innumerable small units that made use of the military equipment uneconomic. A crestfallen field force therefore withdrew from the combat area after about a month”; and
  2. After the withdrawal, Major Meredith compared the emus to Zulus and commented on the striking manoeuvrability of the emus, even while badly wounded: “If we had a military division with the bullet-carrying capacity of these birds it would face any army in the world… They can face machine guns with the invulnerability of tanks. They are like Zulus whom even dum-dum bullets could not stop.

If you want to know more about this bizarre history have a look at the Wikipedia entry or the academic article “Feathered foes: soldier settlers and Western Australia’s ‘Emu War’ of 1932” (2006) Journal of Australian Studies (88): 147-157.

.it must have seemed a good idea at the time!

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Etiquette


Posted on Aug 24, 2016

etiquetteWilson v Department of Human Services – re Anna [2010] NSWSC 1489 was a particularly nasty case in the parens patriae jurisdiction of the NSW Supreme Court which has become better known for the comments of Palmer J about misplaced courtesy in court:

106 The second matter calling for comment occurred in the conduct of the case in this Court but it is not peculiar to this case – it has been observed by a number of Judges in the Supreme Court and it is currently the subject of discussion between this Court, the Bar Association and the Law Society. I refer to the practice of advocates, which seems to have developed over recent years, of announcing their appearances to the Bench or beginning the examination of witnesses with the salutation “Good morning, your Honour” or “Good afternoon, Mr Smith”. I am informed that this is a practice which has developed in the Magistrates’ Courts. The Supreme Court is of the view that it is a practice which should be abandoned in contentious litigation.

107 Lest it be thought that this view is the relic of a stilted and now-outdated judicial self-esteem, let me illustrate, by reference to what occurred in this case, how the practice can cause substantial misperceptions prejudicial to the conduct of a fair trial.

108 Mr Chapman, who is obviously a highly experienced and capable solicitor frequently conducting cases in the Children’s Court, routinely greeted me with the salutation of “Good morning, your Honour” or “Good afternoon, your Honour” each time he announced his appearance at directions hearings and on each day of the trial. In accordance with the usual etiquette of this Court, Mr Moore of Counsel did not. Mr Chapman’s apparent familiarity with the Judge could have caused a misapprehension in the mind of Ms Wilson, already distrustful of the judicial system, that Mr Chapman enjoyed a relationship with the Judge which was something more than merely professional. Such a suspicion should never be allowed to arise. A Judge should not feel compelled to allay such a suspicion by rebuking an advocate for misplaced courtesy.

109 More importantly, Mr Chapman routinely began his cross examination with the salutation “Good morning, Ms Wilson (or Mrs Wilson)”. He was met with a stony silence. How could Ms Wilson or Mrs Wilson greet politely the man who was avowedly intent on taking Anna away from them by destroying their evidence? A witness in their position would inevitably feel it to be the most odious hypocrisy to be compelled to return the salutation with a polite “Good morning, Mr Chapman”.

…..meanwhile, in the High Court, the transcript of the show cause hearing in Plaintiff M89/2013 starts with:

PLAINTIFF M89/2013 appeared in person.

MR J.D. BROWN: Good morning, your Honour, I appear for the first defendant. (instructed by Australian Government Solicitor)

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The Immigrant


Posted on Jun 30, 2016

chineseIt usually takes clear statutory words before a court will interpret legislation as taking away fundamental common law rights. This is known as the principle of legality which in Australia can be traced back to Potter v Minahan (1908) 7 CLR 277.  Briefly:

When James Minahan tried to enter Australia in 1908, a Customs official administered to him a dictation test on the basis that he was an ‘immigrant’ within the meaning of the Immigration Restriction Act 1901 (Cth). Mr Minahan failed the test and was charged with being a prohibited immigrant found within the Commonwealth. This would have been unremarkable for the time, except that Mr Minahan had been born in Victoria. His father took him as a child to China, where he lived for 26 years until his attempted return.” [from an article by Brendan Lim published in (2013) 37 MULR 372].

It was unsuccessfully argued that ‘“immigrat- ing” into Australia must be taken to mean “entering” Australia i.e.that every person entering Australia is prima facie an immigrant. The decision in Minahan’s favour ultimately rested on the finding that the legislature did not intend to deprive any Australian-born member of the Australian community of the right after absence to re-enter Australia.

There’s something about this case and present immigration policy that makes me uneasy….

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