Current Issues (May 2013)
by Acting Justice Peter W Young AO
BALANCING FEARS OF TERRORISM AND BASIC FREEDOMS
Recently, a man came to the door of my chambers saying that the bathroom door had been reported as defective. I could not remember ever reporting any problem or indeed experiencing any. However, I invited him in, he had a quick look at the door, found nothing wrong and left. I thought later, I should have been more careful and asked for further identification as the man could have been a terrorist planting a bomb.
But then my mind reverted to an incident of about 15 years ago of which I only have anecdotal evidence. A woman phoned the New South Wales Supreme Court switch (a position now abolished) and said she had planted a bomb in the court. The switchboard operator said, “Oh no, madam, you don’t place bombs in our court, it’s the … Court you want”. The caller said, “Thank you, do you know their number?”, thus showing the call was a hoax, though it was duly reported.
There is a tension between taking proper precautions against terrorism and preserving freedoms. Bus spotters and photographers in London often report that they are harassed by that new class of citizen police in London who just cannot contemplate the thought that anyone would want to photograph a bus unless they had a malicious intent.
On the other hand, the Sydney Daily Telegraph reported in January that passengers flying out of Australia are trying to board flights with bullets, knives and handcuffs in their carry-on luggage. Of the more than 1,000 dangerous items seized, the most common were bullet keyrings made of spent shell casings – 273 were confiscated last year according to the Office of Transport Security. Another 208 rounds of live ammunition were found in passengers’ handbags. Airport officials also detected 167 toy guns; 151 knives were also seized, as well as 146 self-defence sprays. Some passengers tried to board planes with batons and knuckle-dusters, with more than 50 of each item seized. However, this must be balanced by the number of little old ladies and others who have had their knitting needles, sewing bag scissors or bottles of water confiscated.
Where do we draw the line? There is a lot of money being made by people providing protection against terrorist threats. However, when there is an actual incident, the blame starts being pointed at those who are perceived not to have done enough.
THE WHOLE TRUTH ABOUT PERSONAL SAFETY
When a witness is sworn, he or she swears to tell the truth, the whole truth and nothing but the truth.
In the early hours of Sunday morning in an outer Sydney suburb, there was an horrendous gang rape of a young woman. Nothing can excuse this. Needless to say, there was considerable publicity in the metropolitan newspapers.
As was expected, there was reaction from the New South Wales Rape Crisis Centre. The Sydney Daily Telegraph reported its spokesperson as saying that the community should be angered and appalled by this gang rape incident, but should not jump to conclusions, or accept victim-blaming excuses, or decide that we need to say half the population should live in fear or limit their living to avoid sexual assault. Any thought that women should change their movements to avoid this violence should be rejected. It is the offenders who are wrong.
The penultimate sentence is basically true, but it is not the whole truth. If a person exercises their rights to the full, they may not lead a happy life. Thus, when driving, good advice is, “look out for the car on your right and the fool on your left”.
At schools, children who do not take care of their possessions and leave money lying about are disciplined. They are not the criminal like the child who steals their money, but they are not taking care of their own possessions. If I walk down a street and see a rowdy group of drunken young men and women and I have any common sense and an alternative, I will go out of my way to avoid contact. It is the group who will be in the wrong if I am attacked and robbed: however, my fate is to a degree in my hands. One can be dead right and right dead.
In the case being referred to, it would seem that the woman in question did nothing to jeopardise her own safety. That is not necessarily always the case. Despite the truth of the penultimate sentence, we do not live in a perfect world and all of us, men and women, have to adjust our behaviour to what is necessary to protect ourselves from harm, whether or not we feel that doing so is an abrogation of our rights.
There has been recent debate as to whether (a) there is a marked discrepancy between the way regular children’s court magistrates deal with crime by children as opposed to cases that come before the “ordinary” magistrate and (b) whether some children of Aboriginal families deliberately commit crime so as to go to gaol and escape family violence.
The Australian of 8 January reported that sentences handed to children varied widely depending on where they lived. The first national study of the country’s children’s courts, based on hundreds of interviews with magistrates, other judicial officers, and a range of stakeholders, has called for an overhaul of the system. The review found that the lack of specialist children’s court magistrates in many locations across Australia’s eight jurisdictions was leading to vastly different sentences for the same crimes. The three-year study found that children in regional and remote communities were getting harsher sentences because of a lack of a specialist children’s magistrate in these areas.
Aboriginal children in outback New South Wales are deliberately committing crimes so that they can be sent to gaol to escape “constant and brutal domestic violence”, according to a serving magistrate who has decried a critical lack of sentencing options for some of the nation’s most disadvantaged children. Magistrate Roger Clisdell has taken the extraordinary step of publicly highlighting the social catastrophe he sees unfolding daily in his courtroom in response to suggestions that country magistrates were punishing Aboriginal children with harsher sentences than city-based offenders.
Magistrate Clisdell furiously rejected claims that the judiciary was engaged in a perverse campaign of “social engineering” to protect child repeat offenders from the desperate circumstances of their home lives. “I’m not a social engineer, I’m a magistrate”, Magistrate Clisdell said. “We act in good faith and we don’t arbitrarily lock up anyone, particularly juveniles. (Jailing) is never done lightly and always as a last resort.” Magistrate Clisdell said the real issues lay in the endemic violent crimes committed against women and children, often unreported, that drove children out on the streets late at night.
Magistrate Clisdell, who served as the magistrate in Bourke and Brewarrina in northwest New South Wales between 2010 and last year, and now sits in Parkes Local Court, said it was unfair to compare city and regional areas, as sentencing options were far greater in the city.
This is a topic on which strong views are held by proponents and opponents. When it comes to the crunch the result of any popular vote tends to be in the hands of those who have no strong views. To date, as expected, the majority of those who have doubts vote “No”.
Thus, if gay marriage is to succeed, it will probably have to be by a method other than popular vote.
One possibility is to enact federal or State law. At the time of writing, there is a Bill promoted by the Greens before the Commonwealth Parliament. The Bill aims to remove references to the definition of marriage as being exclusively between a man and a woman. The Sydney Morning Herald suggested that this was merely a stratagem to put pressure on the Liberal Party rather than a Bill with an expectation of success. However, if it be a genuine attempt to change the law, how could it be effective?
The Commonwealth Parliament has power to pass legislation on “Marriage and Divorce”. There must be a strong argument that “Marriage” has the meaning it had in 1900, which clearly was a “voluntary union of one man and one woman for life excluding all others”. Whilst the High Court may construe that phrase widely, as a 1930s court did with “Posts and Telegraph” (see R v Brislan; Ex parte Williams (1935) 54 CLR 262), it is hard to see how the Parliament itself can increase its jurisdiction merely by changing a definition in its own statute book. However, a respectable contrary argument is presented in Nygh, Conflict of Laws in Australia (at [24.6]ff).
28 YEARS ON THE BENCH
I was sworn in as a New South Wales Supreme Court Judge on 4 March 1985. Although I retired on 23 April 2012, I survived as an acting judge and am still sitting on the Supreme Court Bench 28 years later.
Things have changed a lot since 1985. Even at first instance in equity, the amount of paperwork has grown substantially and the time in court reduced. Further, when one started a trial in 1985, one started from scratch. Now, one is confronted with counsel who have been involved in many pre-trial hearings or interlocutory motions and who will almost certainly say when one raises a query, “That matter was disposed of before Justice X last March”. As what is often meant is that a couple of solicitors made an informal agreement on the point in Justice X’s court, of which there is no record and the alleged agreement seems to be contrary to law, one queries, only to get the answer, sometimes respectfully put, that one should just stop questioning what that great jurist, Justice X, did and get on with deciding what the parties want decided.
Also, 28 years ago, one tended to have a tipstaff who was an ex-army/navy man with no knowledge of the law but who was expert in scrounging necessary equipment from the court’s supply. Now one has a young lawyer who is more qualified academically than oneself, who probably was not even born when one first mounted the Bench.
Some things are better, some things are worse, but the job is still the same: to find a solution to people’s problems either by encouraging them to find an acceptable answer themselves or decide disputed questions according to law. However, in many cases, the facts raise completely fresh problems so that one has to call up as much learning as one can of analogous situations or authorities from overseas, to produce a just result and guide lawyers and courts in the future.
BIZARRE CASES OF THE PAST
Antiquarian law book catalogues can make interesting reading, though the prices asked for some of this material means that reading the catalogue is as far as one can pursue them. Two items in recent catalogues of the Law Book Exchange of New Jersey caught my eye as illustrations of legal problems of yesteryear.
The first case, Trevett Against Weeden was tried before the Honourable Superior Court of Rhode Island, In the County of Newport, September Term, 1786: “On Information and Complaint For Refusing Paper Bills in Payment for Butcher’s Meat, In Market.”
It would seem that the State of Rhode Island had just authorised its banknotes as legal tender. The plaintiff bought meat from a butcher and tendered a banknote in payment, which the butcher refused to accept. The plaintiff sought the court to enforce his right to pay with a banknote. However, the court found for the defendant, and held that it was unconstitutional for the State to demand acceptance of its paper money.
The State legislature was not amused, and the judges were called before the State legislature, where they defended their actions. This event received a great deal of public attention. I have not yet found what happened in the legislature and I do not have sufficient interest to fork out US$1,000 to buy the book.
The second case also comes from Rhode Island, Dorrance v Fenner, tried in the Court of Common Pleas in Providence County in 1801. The allegation was that Fenner, the Governor of Rhode Island, defamed a Judge of the Court of Common Pleas (Dorrance) saying that Dorrance had charge of the body of a suicide and exchanged it with a doctor in exchange for a beaver hat which he had the effrontery to wear when officiating at a public meeting.
The promotional material for the pamphlet dealing with the case says that it is illuminating as to the then activity of body snatching. The verdicts in two pieces of litigation between these men who were obviously political rivals is said to be “confusing”. I could have found out why for only US$650.
DO YOU RECOGNISE THESE SUPREME COURT JUDGES? TEN TRIVIA QUESTIONS
Q 1: Which Supreme Court judge enjoyed woodwork and had a room in the basement of the court building set up as a carpentry workshop?
Q 2: Which Supreme Court judge was attacked and wounded by his Japanese manservant?
Q 3: Which Supreme Court judge announced from the Bench at the start of a country circuit that he had seriously considered sending certain local hotel keepers to prison for contempt of court because they had not provided accommodation for him and his staff and that such a gross affront to a Supreme Court judge on the King’s business would not be tolerated?
Q 4: Which Supreme Court judge’s Australian marriage would have been void if contracted in England?
Q 5: Which judge presided at the first circuit sittings of the Supreme Court of New South Wales, in which month and year and at which towns?
Q 6: Which future Supreme Court judge, while playing cricket at university, was dismissed for 100 by a ball that killed a swallow in its flight?
Q 7: Which Supreme Court judge was accused in Parliament of soliciting a loan from the plaintiff in partnership proceedings pending before him and resigned soon afterwards?
Q 8: Who had to be re-admitted as a solicitor in order to be appointed a Supreme Court judge because he had not been a barrister for the requisite period?
Q 9: Which Supreme Court judge, on the appointment of a new chief justice direct from the Bar, wrote to the press complaining of the injustice of the appointment and the insult it represented to serving judges?
Q 10: Which Supreme Court judge’s judgments were thrown into doubt when it emerged that they had been given after he reached the statutory retiring age, he being under the impression that he was a year younger than he actually was?
1. Chief Justice Malcolm referred to this pastime of Albert Asher Wolff (Judge 1938-1959 and Chief Justice 1959-1969, Supreme Court of Western Australia) in a speech made on 9 June 2003 to mark the centenary of the opening of the Supreme Court building in Perth.
2. The Age (Melbourne) of 3 August 1917 reported an attack on William Shand (Judge 1908-1925, Supreme Court of Queensland) by his Japanese servant, Masajiro. The assailant had been dismissed and retaliated by beating the judge’s head on the floor of his chambers. The Rockhampton court house caretaker heard the commotion and, accompanied by his 13-year-old son (who was armed with a stick), managed to rescue the judge. Masajiro fled but was later arrested.
3. This announcement was made at Bathurst in November 1950 by Francis Aloysius Dwyer (Judge 1948-1953, Supreme Court of New South Wales). A report appeared in The Sydney Morning Herald of 8 November 1950 (p 1). The matter was canvassed in the press over several days, with speculation whether the King’s business attended to by a judge was distinguishable from the King’s business attended to by the local postman.
4. According to the relevant entry in the Australian Dictionary of Biography, the 1849 marriage at Melbourne (then in New South Wales) of William a’Beckett (Judge 1846-1852, Supreme Court of New South Wales and Chief Justice 1852-1857, Supreme Court of Victoria) to his deceased wife’s sister would have been void in England under Lord Lyndhurst’s Act of 1835, but Acts of the British Parliament passed after 1828 did not apply to New South Wales and the marriage was therefore “voidable only by sentence of an Ecclesiastical Court”.
5. The Sydney newspaper The Australian of 5 August 1829 reported that James Dowling (Judge 1827-1837 and Chief Justice 1837-1844, Supreme Court of New South Wales) was about to embark on the first circuit sittings, visiting Campbelltown, then Windsor and finally Maitland (or Wallis Plains). According to the Sydney Gazette and New South Wales Advertiser of 1 September 1829, there were 13 trials in the space of four days at Maitland, involving 19 accused of whom five were sentenced to death, with the executions to take place on 1 September 1829.
6. Following the death of George John Robert Murray (Judge 1912-1916 and Chief Justice 1916-1942, Supreme Court of South Australia), the Full Court sat on 23 February 1942 to pay tribute to his memory. Justice Angus Parsons referred to various aspects of the late Chief Justice’s life and career, including his time reading law at Cambridge after graduating BA from the University of Adelaide. The particular cricket match took place at Cambridge. The remarks of Justice Parsons appear in a memorandum at the start of  South Australia State Reports .
7. This aspect of the career of Thomas William Horne (Judge, 1848-1860, Supreme Court of Tasmania) was reported in The Mercury (Hobart) of 22 October 1860.
8. When Frank Tennison Brennan (Judge 1925-1949, Supreme Court of Queensland) was appointed, only barristers of at least three years’ standing and solicitors of at least five years’ standing were eligible. Brennan had only recently been admitted to the Bar after being a solicitor for more than five years. He was, on his own motion, removed from the roll of barristers on 10 March 1925 and re-admitted as a solicitor. The matter was reported in The Advertiser (Adelaide) of 11 March 1925 in an article which concluded by suggesting that the question whether the earlier period of practice as a solicitor would count, would be argued when he presented his commission before the Full Court. (It does not appear that this occurred. The career of Justice Brennan is noted in McKenna J, Supreme Court of Queensland: A Concise History (Queensland Supreme Court Library, 2012), esp p 205, shortly to be reviewed in the Journal.)
9. The letter from Hartley Williams (Judge 1881-1903, Supreme Court of Victoria) concerning the appointment of John Madden as Chief Justice was published in The Argus (Melbourne) of 9 January 1893.
10. This matter was the subject of several press reports, including in The Sydney Morning Herald of 1 June 1929. James Lang Campbell (Judge 1922-1929, Supreme Court of New South Wales) was born in Scotland and the doubt about his age was resolved only after his birth certificate was obtained from that country. Parliament later passed the Judicial Acts (Validating) Act 1929 (NSW) to validate judicial acts performed by the particular judge after attaining the age of 70 years.
The citation for this article is (2013) 87 ALJ 295.