A Barrister's Blog

The lighter side of law

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?

Creative commons acknowledgment for the photograph.

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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!

Creative commons acknowledgment for the photograph.

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Negotiating Technique

Posted on Oct 27, 2017

A few months ago, I went to a seminar about jury issues that was given by Judge Haesler SC of the District Court. One of the topics was the procedure which has to be followed before a judge can accept a majority verdict. Majority verdicts are still controversial and are a departure from the common law position of unanimity which has existed since the 14th century. In times gone by, the trial judge didn’t have power to discharge a jury if they were unable to agree. So what would happen? Apparently:

In England this extended… to putting the jurors, if they were unable to reach agreement, in a cart and driving them to the county boundary following the assize judge on his travels to the next county. There, they were left ‘”without meat or drinke, fire or candle’ until they were starved or frozen into  agreement..?’ Cheatle v The Queen (1993) 177 CLR541 a 551 citing Coke, Institutes, 19th ed (1832), vol 2, 227.b.[e].”

That got me thinking that it sounds like a technique which could have been appropriately utilised in some of the more difficult mediations that I have attended. I don’t think it will take off though.

Creative commons acknowledgement for the photograph.

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The point

Posted on Sep 28, 2017

There is a requirement that a notice of appeal must identify the grounds briefly but specifically. Draftspersons[deliberate attempt at gender neutral political correctness] would do well to keep the following observations in mind:

“It is inherently unlikely that any personal-injuries action would give rise to 14 issues or that any intermediate appellate court in this country would make so many errors. Australian, as well as United States, counsel would be well advised to heed Judge Aldisert’s statement [referring to  Aldisert, Opinion Writing, (1990) at 8] that when he sees ‘an appellant’s brief containing seven to ten points or more, a presumption arises that there is no merit to any of them'”(per McHugh J in Tame v State of New South Wales (2002) 211 CLR 317 at [70]);

or the even worse version…

“Where an Equity Division judge experienced in the field to which the litigation relates delivers a long, detailed and careful judgment which attracts so much hostile fire from so many quarters, it may be inferred that it is probably correct in every respect” (per Heydon JA in Cadwallader v Bajco Pty Ltd & Ors  [2002] NSWCA 328 at [27]).

 Creative commons acknowledgment for the photograph.
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Coat of Arms

Posted on Aug 25, 2017

I’m not sure if anyone else has been watching Annabell Crabb’s documentary “The House“. I was surprised to learn that a number of designs for the large coat of arms above Parliament House were rejected because the kangaroo wasn’t “demonstrably male”. I set a couple of bemused law students loose on trying to verify this, but to no avail. I did, however, find some interesting facts about the coat of arms.

We all know that the kangaroo and emu were chosen for the coat of arms because neither can move backwards.  Another factor was that they were both large enough to be positioned in scale. I also discovered an interesting parliamentary debate about changing the original 1908 version of the coat of arms (pictured) to the version which we now know and which was adopted in late 1912.  House of Representatives hansard on 31 October 1912 records the following:

Fenton: Let us have a decent Australian coat-of-arms on our writing paper. The kangaroo depicted is most un- lifelike, and, as for the poor, unfortunate emu, with its leg tucked up against the Australian shield …
Atkinson: Could an emu stick up its leg in that way?
Fenton: I do not know; but I know that an emu can kick out well behind, and pretty well as hard as a horse can.
Kelly: The habits of heraldic animals however, are not altogether founded on established fact, and it is not the fault of the College of Heralds that the emu in this case is asked to do something which would in ordinary circumstances horrify it. It seems to me that the emu and the kangaroo are hardly symbolic of the best qualities of the Australian people. They have the smallest heads of any of the animal kingdom. Is that a mark of the Australian people?.….The emu and the kangaroo are so built that they hardly fit into the heraldic atmosphere, and I think we make ourselves ridiculous when we endeavour to carry on the traditions of the Old World with some of the wild creations of our Australian fauna.

Hmmm, the good old world!

If you want to read more of this debate it is on the APH website.

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