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Supreme Court Justice killed just three weeks after retiring

Former South Australian Supreme Court Justice Malcolm Blue has tragically died, just three weeks after retiring. The 70-year-old had been looking forward to spending quality time with his friends and family after retiring, when he was involved in a tractor accident at a vineyard in Willunga South on Saturday morning. South Australian Police were called to the scene after the accident, where police said he died at the scene from his injuries. After his 13-year role as a Supreme Court judge where he earned the respect of politicians and legal professionals, Blue retired in August, as his family said he had been looking forward to spending more time with his family during his retirement. “We are devastated by Malcolm’s loss. He was a much-loved and loving father, partner and brother, and cherished his family,” his family said in a statement <a href="https://www.adelaidenow.com.au/news/south-australia/justice-malcolm-blue-remembered-as-a-great-south-australian-after-death-in-farming-tragedy/news-story/49330193603000f8a0cbf7933b5b7eea?amp" target="_blank" rel="noopener" data-link-type="article-inline">to News Corp.</a> “Malcolm was always kind, funny, smart and wonderfully supportive for family, friends and legal colleagues. He was both gentle and brilliant and will be missed terribly." “Having achieved so much during a long and distinguished legal career, Malcolm was looking forward to spending more time with his family on the property." “Malcolm will be deeply missed by his partner Angela, daughters Charlotte, Victoria and Alex, three sisters, along with his extended family, many friends, and colleagues in the legal fraternity.” SA Premier Peter Malinauskas praised Blue’s service to the state at a press conference on Sunday. “Mr Blue was a great South Australian who served his community exceptionally well over a very long period of time,” Malinauskas said. “I’m sure that South Australia will appropriately honour him as someone who’s made a major contribution.” Chief Justice of South Australia Chris Kourakis said Blue’s death was felt across Australia’s judiciary and legal profession, saying, “Justice Blue was a pre-eminent intellect and jurist who selflessly devoted his energy to the work of the court and making justice more accessible to the people of South Australia.” Image credits: 7News

Caring

Kathleen Folbigg pardoned after 20 years behind bars

Jailed in 2003 and considered at the time to be Australia’s most prolific female serial killer, Kathleen Folbigg has now been pardoned over the death of her four children and will be released without delay. Folbigg, 55, was convicted of killing her three children Patrick, Sarah and Laura, and was also found guilty of the manslaughter of her firstborn Caleb between 1989 to 1999. Her babies were aged between 19 days and 19 months. The historic convictions have not been quashed as that can only be done through the Court of Criminal Appeal. Folbigg has always maintained her innocence, insisting that her children had each died of natural causes, and as a result she has served 20 years of a minimum 25-year prison sentence. NSW Attorney General Michael Daley announced the pardon, saying Folbigg had endured “a terrible ordeal” and there was a possibility she could sue the government if the convictions were quashed, a legal step which goes beyond a pardon. "What is the difference between today and what has transpired in the past? New evidence has come to light," he said, referring to new scientific evidence submitted in an inquiry into the death of the babies. Former NSW Chief Justice Tom Bathurst KC is leading the inquiry and is now writing up a final report for the NSW governor. Daley said he had received a phone from Chief Justice Bathurst last week that "he had come to a firm view" about what the outcome of his report would be. Prosecutors argued Folbigg smothered her children during periods of frustration and insisted that some of her diary entries were admissions of guilt. New scientific evidence has now cast sufficient doubt on her guilt. Folbigg and her two daughters were found to carry a rare genetic variant, CALM2-G114R, which can cause cardiac arrhythmia and sudden death. According to cardiology and genetic experts, the genetic verity was a “reasonably possible cause” of Sarah and Laura’s death. The variant was not found in Caleb or Patrick. Images: Facebook

News

Can juries still deliver justice in high-profile cases in the age of social media?

The recent <a href="https://theconversation.com/why-was-the-lehrmann-trial-aborted-and-what-happens-next-193382" target="_blank" rel="noopener">sudden end</a> to the Bruce Lehrmann trial last month raises again whether the jury is fit for purpose in a 21st century hyper-connected world. That jury’s service in the Lehrmann case ended peremptorily after it was revealed to the judge that material downloaded from the internet (which was highly relevant to the case and not introduced as evidence) had been found in the jury room. A retrial has been <a href="https://www.news.com.au/national/nsw-act/courts-law/bruce-lehrmann-retrial-confirmed-for-2023-says-act-director-of-public-prosecutions-shane-drumgold/news-story/6012323f3d863985ce5a001f10a3a7eb" target="_blank" rel="noopener">set for late February</a>. Lehrmann had been accused of raping former Liberal Party staffer Brittany Higgins, to which he pleaded not guilty. The costs so far (to both parties and the court) could well exceed a million dollars. With easy access to the internet available to any juror who owns a mobile phone, is it conceivable that all jurors will abide by the strict instructions of a judge admonishing them to pay attention only to the evidence adduced in the trial? Are instructions to jurors to avoid media sources meaningless given the accessibility of the internet? These aren’t new questions. In 2005, <a href="https://www.parliament.nsw.gov.au/researchpapers/Documents/trial-by-jury-recent-developments/jury%20and%20index.pdf" target="_blank" rel="noopener">a report</a> prepared for the NSW Parliamentary Library Research Service observed: <blockquote> Prominent cases in recent years […] have illustrated the legal problems that can occur when jurors, despite judicial instructions to confine their deliberations to the evidence before them, undertake their own research, discuss the case with non-jurors, or visit a place connected with the offence. The increasing amount of legal information available on the internet is a cause for particular concern. The Jury Amendment Act 2004 […] prohibits jurors from making inquiries about the accused or issues in the trial, except in the proper exercise of juror functions. </blockquote> But for all the warnings and threats of consequences, a juror may still stray down <a href="http://www.lawfoundation.net.au/ljf/site/templates/grants/$file/UNSW_Jury_Study_Hunter_2013.pdf" target="_blank" rel="noopener">the path of private sleuth</a>. It’s easy to do and Australians have a voracious appetite for social media. In 2018 <a href="https://www.yellow.com.au/wp-content/uploads/2018/06/Yellow-Social-Media-Report-2018-Consumer.pdf" target="_blank" rel="noopener">a survey reported</a> 62% of Australian adults use social media sites every day, and 34% use them more than five times a day. This becomes particularly problematic when the eyes of the world are fixed on cases such as these. The sudden and unexpected end to the Lehrmann trial prompts a more fundamental question: should we continue to persist with juries at all? <h2>Two sides</h2> There are two sides to the argument regarding retention of the jury. On the one hand, juries have stood the test of time. The idea of being tried by one’s peers was entrenched by the <a href="https://www.bl.uk/magna-carta/articles/magna-carta-and-jury-trial" target="_blank" rel="noopener">Magna Carta of 1215</a>. Even though the jury as we know it didn’t crystallise until about 350 years ago and has been through a number of permutations since then, there would be few people who could argue against its symbolic legitimacy given its staying power. Over that time, juries have been given sustained examination in Australia by the <a href="https://www.lawreform.justice.nsw.gov.au/Documents/Publications/Reports/Report-48.pdf" target="_blank" rel="noopener">New South Wales Law Reform Commission</a>, the Queensland <a href="https://www.ccc.qld.gov.au/sites/default/files/Docs/Publications/CJC/The-jury-system-in-criminal-trials-in-qld-Issues-paper-1991.pdf" target="_blank" rel="noopener">Criminal Justice Commission</a>, the <a href="https://www.parliament.vic.gov.au/images/stories/committees/lawrefrom/jury_service/report_volume_1.pdf" target="_blank" rel="noopener">Victorian Law Reform Committee</a>, and most recently by academics at <a href="https://cdn.csu.edu.au/__data/assets/pdf_file/0007/3452182/Jury-Reasoning-v2-NEW-BRANDING.pdf" target="_blank" rel="noopener">Charles Sturt University</a>, to name a few. Juries have survived largely intact throughout this exercise. On the other hand, there are doubts about their efficiency. Juries took a hit after the High Court decision <a href="https://theconversation.com/the-jury-may-be-out-on-the-jury-system-after-george-pells-successful-appeal-135814" target="_blank" rel="noopener">in the George Pell appeal</a> where the judges, in allowing the appeal, ruled that no jury, properly instructed, could have reached a guilty verdict in his trial. What’s more, it’s overstated to say that trial by jury is a fundamental bulwark of fairness in the criminal justice system. Indeed, 92% of criminal matters in Australia are dealt with in the <a href="https://www.abs.gov.au/statistics/people/crime-and-justice/criminal-courts-australia/latest-release" target="_blank" rel="noopener">magistrates courts</a>, where there are no juries. Of the remaining 8% referred to the “superior” criminal courts (Supreme, District and County), more and more defendants are choosing “judge alone” trials (in jurisdictions where that option is available). For example, in NSW, <a href="https://theconversation.com/jury-is-out-why-shifting-to-judge-alone-trials-is-a-flawed-approach-to-criminal-justice-137397" target="_blank" rel="noopener">up to a quarter of accused persons</a> are now electing to be tried without a jury. Other studies have highlighted how jurors <a href="https://www.sciencedirect.com/science/article/abs/pii/S0194659507000470" target="_blank" rel="noopener">overrate DNA evidence</a> despite judicial directions, which may lead to <a href="https://researchdirect.westernsydney.edu.au/islandora/object/uws:10533" target="_blank" rel="noopener">far more jury convictions</a> than are warranted, and how jurors’ perceptions of guilt and innocence can be affected by the <a href="https://researchdirect.westernsydney.edu.au/islandora/object/uws:44141" target="_blank" rel="noopener">positioning of defendants</a> in the courtroom. <a href="https://espace.library.uq.edu.au/view/UQ:331175" target="_blank" rel="noopener">Another study</a> found that although jurors report they understand directions, they often don’t appear to use those directions in arriving at a decision. And finally, as the Lehrmann trial has illustrated, it’s not unusual for jurors to ignore or misunderstand the instructions that have been given to them. But, what about the ability of juries to apply some of their own “commonsense” justice? True, there are examples of juries wielding their own commonsense stick. For example, a verdict that <a href="https://www.coursehero.com/file/p7dtm6g/R-v-R-1981-28-SASR-321-South-Australian-Supreme-Court-King-CJ-Jacobs-Zelling-JJ/" target="_blank" rel="noopener">occurred in 1981</a> when a South Australian jury returned a verdict of not guilty for a woman who had been charged with the murder of her husband. The jury decided that the defence of provocation (only available to reduce murder to manslaughter) exonerated her, figuring that, in the time before the victim’s death, his severe and persistent abuse of his family had pushed his wife to breaking point. There is, however, a contrary argument. Research has revealed that “commonsense” <a href="https://onlinelibrary.wiley.com/doi/epdf/10.1111/lapo.12181" target="_blank" rel="noopener">comes with coded biases</a>, such that telling jurors to use their commonsense is futile, given it’s difficult (if not impossible) to erode such biases. <h2>Are there other options?</h2> One alternative to the jury is mixed judiciaries used in some European countries, where one may find a panel of judges or <a href="https://academic.oup.com/book/32863/chapter/275978049?login=true" target="_blank" rel="noopener">a combination of judges and lay people</a>. But the common law world has never looked like following that lead. Another alternative in use in Australia is a judge alone trial, although <a href="https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/RP9697/97rp11" target="_blank" rel="noopener">that option</a> isn’t always available, and by virtue of <a href="https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/RP9697/97rp11" target="_blank" rel="noopener">Section 80 of the Constitution</a> isn’t available in a trial of a serious federal offence. Indeed, there’s no guarantee that judges themselves are immune from social media influences. While there’s a widespread belief that judges are more capable than juries of putting <a href="https://chelmsfordlegal.com.au/trial-by-judge-alone-is-it-possible-and-if-so-is-it-preferable/" target="_blank" rel="noopener">to one side their own prejudices</a>, the rules regarding sub judice contempt (discussing publicly a matter that is before a court in a manner that may influence the outcome) applies equally to judge alone and jury trials. Adding to the policy confusion, there’s some evidence trials by judge alone do make a difference to the outcome. The NSW Bureau of Crime Statistics <a href="https://stacklaw.com.au/news/criminal-law/trial-by-jury-vs-trial-by-judge-alone-whats-the-difference/" target="_blank" rel="noopener">examined NSW trials between 1993 and 2011</a> and found defendants were acquitted 55.4% of the time in a judge alone trial, compared to 29% in a jury trial. Another reform idea is to allow jurors to <a href="https://scholar.google.com/citations?view_op=view_citation&hl=en&user=dMsPrLwAAAAJ&citation_for_view=dMsPrLwAAAAJ:7PzlFSSx8tAC" target="_blank" rel="noopener">raise questions with the judge</a> during breaks in the trial, including asking about things they may have “accidentally” come across on social media. A judge could send the jury out while the lawyers present to the judge how they think the questions should be handled and answered. However, this idea has yet to excite policymakers. In the end, we must accept there are flaws in jury process. But finding acceptable alternatives has proved difficult, hence the reluctance of governments to abandon the status quo. Judges will continue to warn against private sleuthing, but one suspects that it will, from time to time, continue regardless. One can only hope the disaster that befell the Lehrmann trial sends a salutary lesson to prospective jurors henceforth: listen to what the judge tells you, and during the course of the trial leave your favourite search engine alone. This article originally appeared on <a href="https://theconversation.com/can-juries-still-deliver-justice-in-high-profile-cases-in-the-age-of-social-media-193843" target="_blank" rel="noopener">The Conversation</a>. Image: ABC

Legal

The High Court of Australia has a majority of women justices for the first time

In appointing Justice Jayne Jagot to the High Court, the Albanese government has made history: for the first time, the court will have a majority of women on its bench. We have come a long way. At the turn of the 20th century, women were not permitted to practise law in any Australian jurisdiction. And even when those formal barriers to admission were eventually removed, informal barriers meant the law remained a man’s world. For more than 80 years after its establishment in 1903, the High Court of Australia remained the exclusive preserve of men. It was not until 1987 that Mary Gaudron, became the first woman to serve on the court. Women have been appointed to the High Court with some regularity over the past decade. Yet only seven women have been appointed of a total of 56 justices. The first woman to serve as Chief Justice of the High Court, Susan Kiefel, was sworn-in in 2017. Justice Jayne Jagot will replace Justice Patrick Keane on the High Court, which means four of the seven justices will be women. In <a href="https://ministers.pmc.gov.au/dreyfus/2022/appointment-high-court-australia" target="_blank" rel="noopener">announcing</a> the appointment, Attorney-General Mark Dreyfus explicitly acknowledged the historical significance of the appointment, noting “this is the first time since Federation that a majority of Justices on the High Court will be women”. He described the new judge as an “outstanding lawyer and an eminent judge”. The government is largely unrestrained in making their appointments beyond a <a href="https://www.legislation.gov.au/Details/C2004A02147" target="_blank" rel="noopener">requirement</a> they consult with state attorneys-general and the appointee meets the minimum qualifications of admission as a legal practitioner. Certainly, there is nothing that compels the government to consider the value of diversity in making its appointments. Moreover, there is little transparency and accountability in the process – the government is not required to shortlist against publicly available selection criteria or to account for its decision-making. <h2>Australia needs greater transparency in appointing judges</h2> Calls to reform High Court appointment practice to improve diversity, transparency and accountability are not new. Importantly, these criticisms have very rarely been personal (about the suitability of individual appointees). However, these calls were renewed in 2020 in response to allegations that Dyson Heydon had sexually harassed legal associates during his time as a Justice on the High Court of Australia. In an <a href="https://theconversation.com/deep-cultural-shifts-required-open-letter-from-500-legal-women-calls-for-reform-of-way-judges-are-appointed-and-disciplined-142042" target="_blank" rel="noopener">open letter</a> to then Attorney-General Christian Porter, more than 500 legal women called for reforms to how Australia appoints and disciplines its judges. It called for shortlisting against publicly available criteria, including legal knowledge, skill and expertise, as well as essential personal qualities (such as integrity and good character). It was further proposed that the value of diversity in judicial appointments should also be respected in formulating criteria. More recently, the Australian Law Reform Commission’s new <a href="https://www.alrc.gov.au/news/without-fear-or-favour/#:%7E:text=The%20ALRC%20concluded%20that%2C%20given,public%20confidence%20in%20the%20judiciary." target="_blank" rel="noopener">report</a> on judicial impartiality outlined a series of recommendations. One of those recommendations was for a more transparent process for the appointment of federal judicial officers. Historically, there has been little appetite for formal reforms to High Court appointment practices. Successive governments have often <a href="https://journals.sagepub.com/doi/abs/10.1177/1037969X1504000305" target="_blank" rel="noopener">avoided explicitly</a> commenting on the value of a more diverse judiciary. It remains to be seen whether the government will seek to implement formal reforms. However, Dreyfus is <a href="https://www.auspublaw.org/blog/2022/08/the-alrc-on-judicial-impartiality-and-the-momentum-towards-judicial-appointments-reform" target="_blank" rel="noopener">understood</a> to be sympathetic to a more open and transparent appointment process. In announcing the most recent appointment, he explained the extensive consultation undertaken by the government, which was certainly more far-reaching than we have seen in recent years. It consulted with all state and territory attorneys-general, the heads of the federal courts, and state and territory supreme courts. It also spoke with state and territory bar associations and law societies, National Legal Aid, Australian Women Lawyers, the National Association of Community Legal Centres and deans of law schools. Justice Jagot’s appointment has been <a href="https://www.lawyersweekly.com.au/wig-chamber/35635-lawyers-laud-historic-appointment-of-jayne-jagot-to-high-court" target="_blank" rel="noopener">widely praised</a> within the legal profession. Although legal commentators emphasised that it was a welcome milestone for women, it was nonetheless <a href="https://www.afr.com/politics/labor-gets-it-right-with-latest-high-court-pick-20220929-p5blyq" target="_blank" rel="noopener">framed</a> as something of a happy (if politically expedient) coincidence given her eminence as a jurist. <h2>Why do women judges matter?</h2> In answering this, it is worth remembering the classic quote from Ruth Bader Ginsburg in response to questions about when there will be “enough” women judges on the United States Supreme Court. Ginsburg replied there would enough <a href="https://www.theguardian.com/commentisfree/2012/nov/30/justice-ginsburg-all-female-supreme-court" target="_blank" rel="noopener">when there were nine</a> (that is, all of them). Acknowledging that people were shocked by this response, Ginsburg famously countered <blockquote> there’s been nine men, and nobody’s ever raised a question about that. </blockquote> This exchange demonstrates how accustomed we are to the idea that judging is the domain of men. This very notion is reminiscent of the question posed by American lawyer Carrie Menkel-Meadow: “what would our legal system look like if women had not been excluded from its creation?” We can never know the answer to this question. Nor can these institutions necessarily be remade in a way that escapes their masculinist origins. And yet, a majority of women judges sitting on an apex court is still significant, both nationally and internationally. The process of “letting women in” has chipped away at these foundations and opened up possibilities for transformation. This is not because there is a distinctive women’s judicial voice (there isn’t). It is because a majority of women judges sitting on the High Court makes an important symbolic statement about women’s admission to legal authority in Australia. When an institution once occupied only by men admits women into its space, the <a href="https://www.routledge.com/Law-Women-Judges-and-the-Gender-Order-Lessons-from-the-High-Court-of-Australia/McLoughlin/p/book/9780367230357#:%7E:text=Resources%20Support%20Material-,Book%20Description,Court's%20historically%20masculinist%20gender%20regime." target="_blank" rel="noopener">existing gender</a> relations and gender norms cannot remain unaffected. We saw this in 2020 with the revelations about sexual harassment on the High Court and Chief Justice Susan Kiefel’s decisive response, which was widely praised. The admission of women to historically masculine domains does have the potential to disrupt institutional norms. Australia is certainly not the first apex court to have a majority of women justices. For example, the Federal Court of Malaysia has a <a href="https://www.fcfcoa.gov.au/node/224" target="_blank" rel="noopener">majority</a>(8/14) of women. But compared with other Western democracies, Australia has been progressive on this issue. In the UK, there is currently one woman on a bench of 12; in the US 4/9, New Zealand 3/6 and Canada 4/9. Of course, there will always be those who say gender shouldn’t matter. But gender has always mattered. It mattered for the first 80 years when only men were permitted to exercise legal authority at the peak of our legal system. And it still matters in 2022, when the High Court has a majority women justices for the first time. This article originally appeared on <a href="https://theconversation.com/the-high-court-of-australia-has-a-majority-of-women-justices-for-the-first-time-heres-why-that-matters-191675" target="_blank" rel="noopener">The Conversation</a>. Image: Shutterstock

Legal

Lynette Dawson's family responds to guilty verdict

Lynette Dawson’s family have called for one final request from Chris Dawson after he was <a href="https://oversixty.com.au/news/news/stunning-chris-dawson-verdict-handed-down" target="_blank" rel="noopener">found guilty of murdering his wife</a> after she “disappeared” 40 years ago. Justice Ian Harrison found Chris Dawson guilty of Lynette’s murder - 40 years after she went missing from the family home in Sydney's Northern Beaches in January 1982. The trial, which gained worldwide traction thanks to the podcast Teacher’s Pet, saw the incredible decision handed down following a seven week trial and a marathon four hour ruling. Lynette’s brother, Greg Simms has said justice has finally been served after she was murdered by someone who loved her. “I’m a little emotional - after 40 years, my sister has been vindicated,” he said. “This verdict is for Lyn. Today her name has been cleared. “The court has found what we believed to be true for so many years: Chris Dawson took the life of our beloved Lyn back in 1982.” Unfortunately, Lynette’s parents and other brother passed away in the years following her murder, not knowing what would come out of the case. Mr Simms has since called on Dawson to do the right thing and reveal where he buried Lynette so she can finally rest in peace. “We would also love to remember those who loved Lyn who are not here to see this judgement,” he said. “She is still missing, we still need to bring her home. “We would ask Chris Dawson to find it in himself to finally do the decent thing and allow us to bring Lyn home to a peaceful rest, finally show her the dignity she deserves.” When the case reopened, Dawson requested a judge-only trial due to the popularity of the Teacher’s Pet podcast, stating that the jury would have their decisions impacted by it. This required Justice Harrison to outline the reasons behind his decision also saying that the prosecution had to prove beyond reasonable doubt that Lynette was dead, that Dawson had killed her with the possible involvement of assistance of others, and that he disposed of her body. The Supreme Court justice shared several findings to support his decision and weighed in on evidence presented during the trial, including ruling that Lynette had died on the date alleged by the prosecution and dismissing claims from Dawson that he contacted his wife as “lies”. Justice Harrison said it was “simply absurd” and defied “common sense” that Lynette would be in contact with the person “who was the reason for her departure” from her home. He also ruled that Lynette didn’t leave home voluntarily, with the prosecution providing multiple reasons that were “strongly persuasive” when considered together, including that she adored her children, hadn’t taken any clothing or personal items with her, was mentally stable, and was dependent on her husband to drive her everywhere. “Lynette Dawson is dead … she died on or about 8 January 1982 and she did not voluntarily abandon her home,” he told the court. Justice Harrison dismissed claims from the defence that Lynette was spotted after January 8. He found that Dawson told JC, “Lyn’s gone, she’s not coming back, come back to Sydney and help look after the kids and live with me”, when he picked her up from a camping trip at South West Rocks with friends between January 10 and 12. However, he said that he disagreed with claims that Dawson was motivated to kill his wife because of financial reasons, nor that he had in his mind that he would kill her when he left with JC. “That decision was made following their return and after the teen had left for South-West Rocks,” Justice Harrison said. He said that he was “satisfied” that Dawson resolved to kill Lynette while JC was camping. Following the verdict, Dawson was taken into custody, with his lawyer, Greg Walsh, telling Justice Harrison that Dawson would likely apply for bail before his sentencing hearing, a date for which hasn’t been set yet.

News

George Floyd deserved a better life

George Perry Floyd, Jr. was murdered when Minneapolis police officer Derek Chauvin sank his knee into Floyd’s neck for nine minutes and 29 seconds. Video footage went viral within hours, helping to inspire protests against racism and police violence that lasted all the American summer of 2020. But while the size of the protests was unprecedented, the activism of that summer had <a href="https://theconversation.com/the-fury-in-us-cities-is-rooted-in-a-long-history-of-racist-policing-violence-and-inequality-139752" target="_blank" rel="noopener">deep roots</a>. Journalists across the United States and indeed the world, focused attention on that history of protest, as they had done during the 2014 police killings of Eric Garner, choked to death in New York, and Michael Brown, shot in Ferguson, Missouri. At the Washington Post, reporters and researchers devoted significant resources to a six-part series, <a href="https://www.washingtonpost.com/nation/2020/10/12/george-floyd-america/" target="_blank" rel="noopener">George Floyd’s America</a>. Now, two of those journalists, Robert Samuels and Toluse Olorunnipa, have expanded the work into a book: <a href="https://www.penguinrandomhouse.com/books/703358/his-name-is-george-floyd-by-robert-samuels-and-toluse-olorunnipa/" target="_blank" rel="noopener">His Name Is George Floyd: One Man’s Life and the Struggle for Racial Justice</a>. When Floyd was born in 1973, 200,000 people were incarcerated in the US. By the time of his death, as Samuels and Olorunnipa point out, that number exceeded 2 million. The proportionate rate of growth of that number in <a href="https://usafacts.org/data/topics/security-safety/crime-and-justice/jail-and-prisons/prisoners/?utm_source=usnews&utm_medium=partnership&utm_campaign=fellowship&utm_content=bracketed_link" target="_blank" rel="noopener">Texas</a>, where Floyd grew up, is even worse. <a href="https://www.usnews.com/news/best-states/articles/2021-10-13/report-highlights-staggering-racial-disparities-in-us-incarceration-rates" target="_blank" rel="noopener">African Americans are locked up at 4.75 times the rate of white Americans; Latinos at 1.3 times the rate</a>. This <a href="https://www.sentencingproject.org/wp-content/uploads/2021/05/intl-rates.png" target="_blank" rel="noopener">extraordinary rate of incarceration</a> is a political choice rather than a reflection of more violent criminals being locked up. Rates of incarceration <a href="https://citeseerx.ist.psu.edu/viewdoc/download;jsessionid=ED19CF648065ABC51FE1605ED5D77E32?doi=10.1.1.462.6544&rep=rep1&type=pdf" target="_blank" rel="noopener">increase</a> with political conservatism and the increased rates of poverty, income inequality and unemployment that accompany that conservatism. Extensive investment in prisons, jails and police forces has created a self-perpetuating system that evolves by producing the very criminals it locks up. This life-and-times biography poignantly depicts the mechanisms by which African Americans, especially male children and adults, become disproportionately the fodder for that system. A long history of racism, it might be said, funnelled George Floyd to prison. <h2>The grandson of sharecroppers</h2> Floyd’s two parents were both born to <a href="https://www.merriam-webster.com/dictionary/sharecropper" target="_blank" rel="noopener">sharecroppers</a> in North Carolina. The cycle of poverty in which they were trapped was not of their own making. Black Americans have been prevented from building wealth from the moment slavery ended. Floyd’s great-great-grandfather, for example, who was born into slavery in 1857, amassed land worth $US30,000 in 1920, but his white neighbours stole it from him by a mixture of fraud underpinned by the threat of violence. That tale is absolutely typical for a majority of Black families in the US South. The knock-on effects have been intensified by government policies that meant for generations, Black Americans had <a href="https://theconversation.com/to-see-the-legacy-of-slavery-look-at-present-day-school-systems-43896" target="_blank" rel="noopener">fewer opportunities for education</a>; <a href="https://www.nytimes.com/2020/06/25/opinion/sunday/race-wage-gap.html" target="_blank" rel="noopener">earned</a> <a href="https://www.washingtonpost.com/business/2020/06/04/economic-divide-black-households/" target="_blank" rel="noopener">less</a> even for the same work; and were <a href="https://www.npr.org/2021/11/17/1049052531/racial-covenants-housing-discrimination" target="_blank" rel="noopener">prevented</a> <a href="https://aas.princeton.edu/news/2020-pulitzer-prize-finalist-history-race-profit-how-banks-and-real-estate-industry-undermined" target="_blank" rel="noopener">from buying property</a> that would <a href="https://www.vox.com/identities/2019/12/4/20953282/racism-housing-discrimination-keeanga-yamahtta-taylor" target="_blank" rel="noopener">build wealth over generations</a>. Desperate for a better life for her three children, Floyd’s mother uprooted them to Houston, Texas, when Floyd was four. There, they lived in public housing in the segregated <a href="https://www.gpb.org/news/2020/07/20/george-floyds-third-ward-reflections-on-the-neighborhood-made-him" target="_blank" rel="noopener">Third Ward</a>. Government policies that requisitioned homes from Black residents elsewhere in Houston had forced them into this section of the city. In the Cuney Homes development, known as “the Bricks,” even today the median income is <a href="https://www.washingtonpost.com/politics/george-floyd-neighborhood-stimulus/2021/04/09/59f57e7c-9623-11eb-962b-78c1d8228819_story.html" target="_blank" rel="noopener">US$15,538</a>, well under half the <a href="https://fred.stlouisfed.org/series/MEPAINUSA672N" target="_blank" rel="noopener">national average</a>. Floyd attended the local Jack Yates Senior High School, opened in 1926 when education was segregated by race and never the equal of other Houston schools catering to white children. As Floyd grew to 193 centimetres tall, he learned to offset the alarm that his size and colour induced in people. He became self-deprecating and deliberately easy-going, charming people across generations everywhere he went. Excelling at football, he secured entry to college. But Floyd’s dreams of playing pro football were stymied by his academic achievements. Never good at tests, Floyd fell behind by middle school and struggled to graduate high school. There were just not the resources in the schools to make up for living in poverty in an overcrowded flat with the responsibilities of caring for relatives. After four years at two colleges, Floyd dropped out and returned to Houston. Not long after, he was arrested for the first time for selling drugs. Samuels and Olorunnipa do an extremely good job of showing that at every node along the passage toward being turned into fodder for the prison-industrial complex, Floyd’s chance of escape was significantly less than that of a white man of the same age. Reading how Floyd’s options narrowed, it was impossible not to share his frustration and despair. <h2>Forensic exposé of injustice</h2> Quotas for arrests meant police sought the “low-hanging fruit” of petty drug dealing done on the streets. Misconduct charges for these police officers are common: the cop who arrested Floyd in 1997 for selling drugs was sacked in 2002 after being charged with theft and hampering arrest. The officer who arrested Floyd in 2004 was “later accused of falsifying charges in hundreds of drug cases, including the one involving Floyd.” Chauvin himself had faced <a href="http://complaints.cuapb.org/police_archive/officer/2377/" target="_blank" rel="noopener">29 charges</a> of misconduct and internal investigations prior to murdering Floyd. (Only 18 appear on the city’s police internal affairs records.) But because <a href="https://www.brennancenter.org/our-work/research-reports/state-policing-reforms-george-floyds-murder" target="_blank" rel="noopener">records of “decertification” are patchy</a>, such “wandering” officers can often get themselves <a href="https://www.pbs.org/newshour/nation/wandering-cops-moving-from-department-to-department-is-a-roadblock-to-police-accountability" target="_blank" rel="noopener">rehired</a>. The officers can stay unaccountable by targeting impoverished men who, unable to afford lawyers, are more likely to accept plea deals. Floyd was never tried by jury; he rather accepted eight plea deals. He knew that even if he got to court, the decision was unlikely to be positive because the state of Texas does not provide public defenders. Rather, the court pays for a private lawyer to defend those who can’t afford their own representation. Judges in Harris County, where Houston is located, more often than not will appoint lawyers who had donated to their election campaigns. In 2007, police arrested Floyd for a violent assault on evidence provided by a dubious photo ID process. (It has since been improved.) Facing up to 40 years of prison, a reluctant Floyd accepted a plea deal for five. Claustrophobia made Floyd’s time in prison difficult, and yet he discovered that none of the mental health, drug addiction, or education programs included in legislation such as the notorious <a href="https://www.brennancenter.org/our-work/analysis-opinion/1994-crime-bill-and-beyond-how-federal-funding-shapes-criminal-justice" target="_blank" rel="noopener">1994 Crime Bill</a>, which sloshed billions of dollars into prison building, were available. As the authors point out, it was only after the <a href="https://www.communitycatalyst.org/blog/how-structural-racism-fuels-the-response-to-the-opioid-crisis#.YtX8puxBxqs" target="_blank" rel="noopener">opioid crisis</a> hit white communities that such funds were expended. In short, whereas policymakers declared crack cocaine a crime problem, they saw opiate addictions, more commonly associated with white people, as an epidemic or public health emergency. The man responsible for prosecuting the case against Derek Chauvin, Jerry Blackwell, knew well the racism inherent at every level of what we uncritically call “the criminal justice system.” Blackwell anticipated the defence would claim that Floyd’s drug use or some physical anomaly was the reason he had died. He therefore required an independent medical examiner review the coronial findings into Floyd’s death. That person, and the examiner who worked for the Floyd family in the civil case against the city of Minneapolis (which the city settled before trial for a <a href="https://www.npr.org/2021/03/13/976785212/minneapolis-agrees-to-pay-27-million-to-family-of-george-floyd" target="_blank" rel="noopener">record $US27 million</a>), both questioned whether the autopsy had been conducted correctly. Specifically, they doubted whether the incisions made on Floyd’s body were sufficient to ascertain the cause of death. And, indeed, the defence claimed that Floyd’s drug use and a supposedly enlarged heart had contributed to his death. This was not unique; as the authors report, in 2021 researchers found evidence that medical examiners “had misclassified or covered up nearly 17,000 deaths that involved police between 1980 and 2018”. All this detail might make the book sound dull, but the research is woven lightly through the account of Floyd’s life so as to maintain momentum. We learn too about Floyd’s family, friends, girlfriends, and his young daughter Gianna. The authors bring to life Floyd’s ability to take people as he found them, underpinned by a deep Christian faith in God. <h2>Activism</h2> The final third of the book, which focuses on events after Floyd’s death, is also gripping. Even as we know the outcome, the twists and turns in the criminal case against Chauvin make for heart-in-the-mouth reading. Chauvin was <a href="https://theconversation.com/relief-at-derek-chauvin-conviction-a-sign-of-long-history-of-police-brutality-159212" target="_blank" rel="noopener">convicted of murder and manslaughter</a> and is serving a 22-and-a-half year sentence. And in <a href="https://www.theguardian.com/us-news/2022/jul/07/derek-chauvin-sentenced-violating-george-floyd-civil-rights" target="_blank" rel="noopener">early July</a> a federal judge sentenced Chauvin to 21 years in prison for violating George Floyd’s civil rights – the sentence will be served concurrently.) Even more striking is the depiction of the bravery of protestors in Minneapolis and of Floyd’s family members, especially his brother, Philonise Floyd, as they seized an opportunity they never wanted – as spokespeople for justice. Joined by the civil rights veterans, the Reverends Jesse Jackson and Al Sharpton, Philonise campaigned hard for federal legislation to reform policing. Republican opposition to the hardest-hitting sections of the <a href="https://www.congress.gov/bill/117th-congress/house-bill/1280" target="_blank" rel="noopener">George Floyd Justice in Policing Act</a>, introduced to Congress in February 2021 by Rep. Karen Bass, meant the bill foundered – and has still not been passed. Unlike all the earlier sections of the book, the activism around police and legislative reform is not given quite the context it deserves. Although Samuels and Olorunnipa interviewed 400 people for their book, activists who have long campaigned against police brutality and for the <a href="https://www.versobooks.com/books/2426-the-end-of-policing" target="_blank" rel="noopener">dismantling</a> of the entire criminal justice system in favour of a society built on <a href="https://www.teenvogue.com/story/what-is-prison-abolition-movement" target="_blank" rel="noopener">equal distribution of resources</a>, such as <a href="https://www.youtube.com/watch?v=oVjMNMG6Mxo" target="_blank" rel="noopener">Angela Davis</a> and <a href="https://www.nytimes.com/2019/04/17/magazine/prison-abolition-ruth-wilson-gilmore.html" target="_blank" rel="noopener">Ruthie Wilson Gilmore</a>, do not appear. Nor is there much comment on the <a href="https://www.brennancenter.org/our-work/research-reports/state-policing-reforms-george-floyds-murder" target="_blank" rel="noopener">efficacy of prior efforts</a> to reform the criminal justice system via legislation. Banning choke-holds, for instance, will not end police murders when Black lives are still not regarded as mattering as much as those of white people. This criticism aside, His Name is George Floyd is a monumental achievement – a work of activism in itself. Bringing Floyd vividly to life, it makes an impassioned and persuasive plea for the dignity and preciousness of life. The book’s cover deliberately evokes the <a href="https://www.torranceartmuseum.com/staffpicks/2021/1/7/i-am-a-man-written-by-hope-ezcurra" target="_blank" rel="noopener">posters held aloft during the 1968 workers’ strike in Memphis, Tennessee</a> (when Martin Luther King, Jr. was killed), that proclaimed “I Am a Man.” George Floyd was a man, too, who deserved a better life. This article originally appeared on <a href="https://theconversation.com/george-floyd-deserved-a-better-life-a-new-book-charts-his-trajectory-from-poverty-to-the-us-prison-industrial-complex-and-the-impact-of-his-death-182947" target="_blank" rel="noopener">The Conversation</a>. Images: Penguin

Books

“May justice be done”: Ben Roberts-Smith’s trial comes to an end

The defamation trial launched by Ben Roberts-Smith against Nine newspapers has come to an end after four years, with Justice Anthony Besanko left with the final task of condemning or clearing the war veteran’s name. Mr Roberts-Smith’s lawyers are hoping that finding in their client’s favour will see his name cleared and result in the largest defamation payout in history, while a finding in favour of his journalist opponents could validate their claims he committed “the most heinous acts of criminality” while serving in the SAS. The lengthy case drew to a close on Wednesday after over 100 days of evidence, more than $25 million in legal fees and two weeks of closing speeches. Arthur Moses SC, Mr Roberts-Smith’s barrister, used his closing statement to push the fact that Nine had the burden of proof to prove their claims the Victoria Cross recipient had murdered unarmed prisoners, “(Nine) published allegations and stories as fact that condemned Mr Roberts-Smith as being guilty of the most heinous acts of criminality that could be made against a member of the Australian Defence Force, and indeed any citizen,” Mr Moses said. “It depends upon recollection of events that occurred during missions more than 10 years ago… Recollections which are contradicted either by their own witnesses, our witnesses and Defence Force documents.” “They have urged upon the court a case which is one of mere suspicion, surmise and guesswork to condemn a man, who served his nation with great distinction, as a war criminal.” Mr Moses called on Justice Besanko to reject Nine’s case “in all forms”. Meanwhile, Nicholas Owens SC, representing Nine, closed his case by returning to the claims and counterclaims, including the question of Mr Roberts-Smith’s motive in killing six detained Afghans when he had transported hundreds of others safely back to Australia bases, which Mr Roberts-Smith said Nine had left unanswered. When he opened his case in June 2021, Mr Owens said that even “the most brutal, vile member of the Taliban imaginable” can’t be killed once detained and “to do so is murder”. On Wednesday, he returned to this point and said Mr Roberts-Smith killed the detainees simply because they were “enemy combatants”. “We say that was a powerful motive that operated in relation to all of these incidents… it was a motive to kill Taliban insurgents regardless of the lawfulness of doing so,” Mr Owens told the court. Justice Besanko thanked lawyers on both sides, as well as the legal team for the Commonwealth government who had been on-hand every single day in court to keep highly classified material out of the public sphere. With the trial conducting itself in a combination of open and closed court, with sensitive information and testimonies being held in closed court, the full scope of evidence Justice Besanko must consider isn’t well-known. It is also unknown just how long it will take Justice Besanko to reach a verdict, given the sheer volume of evidence and documents, but it is expected to take many months. Nick McKenzie, one of the journalists Mr Roberts-Smith launched his case against, took to social media following the trial’s conclusion to summarise the claims made against Mr Roberts-Smith and call for justice to be done. <blockquote class="twitter-tweet"> Roberts-Smith trial is now over, save for judgment. 4 years ago RS launched it. Such stress for all involved: SAS eye witnesses who accuse RS of murders/cliffkicking of innocent Afghan father, Afghans who witnessed the same, brave woman who spoke up about DV. May justice be done. — Nick McKenzie (@Ageinvestigates) <a href="https://twitter.com/Ageinvestigates/status/1552124223669149696?ref_src=twsrc%5Etfw">July 27, 2022</a></blockquote> “Roberts-Smith trial is now over, save for judgement,” the Age journalist wrote. “4 years ago RS (Roberts-Smith) launched it. Such stress for all involved: SAS eye witnesses who accuse RS of murders/kicking of innocent Afghan father, Afghans who witnessed the same, brave woman who spoke up about (domestic violence). “May justice be done.” Image: Getty Images

Legal

"Deeply saddened" Prince William demands "swift justice" for tragic death

Prince William has sent out a heartfelt message following the tragic death of a senior wildlife ranger in Africa that he met recently – while also pleading for “swift justice” in retaliation for the murder. "I'm deeply saddened to learn of the killing of Anton Mzimba who I spoke to in November," the Duke of Cambridge wrote in a tweet. <blockquote class="twitter-tweet"> I’m deeply saddened to learn of the killing of Anton Mzimba who I spoke to in November. Committed and brave, rangers like Anton are central to the conservation of Africa’s fantastic wildlife. Those responsible must swiftly be brought to justice. My thoughts are with his family. W — The Duke and Duchess of Cambridge (@KensingtonRoyal) <a href="https://twitter.com/KensingtonRoyal/status/1552313081367257089?ref_src=twsrc%5Etfw">July 27, 2022</a></blockquote> The head ranger at Timbavati had been the subject of ongoing death threats for quite a while, the non-profit organisation “Helping Rhinos” revealed when confirming news of his passing. "Anton Mzimba, was shot and killed outside of his home last night," the organisation tweeted on Wednesday July 26. <blockquote class="twitter-tweet"> Head of Ranger at Timbavati, Anton Mzimba, was shot and killed outside of his home last night. This follows recent death threats and highlights the daily threat facing Rangers. Our deepest condolences to Anton’s loved ones and co-workers at this difficult time <a href="https://t.co/fRayloiFjB">pic.twitter.com/fRayloiFjB</a> — Helping Rhinos 🦏 (@HelpingRhinos) <a href="https://twitter.com/HelpingRhinos/status/1552240245088964608?ref_src=twsrc%5Etfw">July 27, 2022</a></blockquote> "This follows recent death threats and highlights the daily threat facing rangers. Our deepest condolences to Anton's loved ones and co-workers at this difficult time." Prince William spoke with Mzimba in a conference call in November 2021 during a visit to Microsoft headquarters, to learn more about how technology was being used to disrupt the illegal wildlife trade. The Duke of Cambridge, through the Royal Foundation, founded United for Wildlife in 2014 and is passionate about stopping the trade. "Like so many others, I am deeply saddened by the numbers of elephant, rhino and pangolin who have been illegally slaughtered for their tusks, horns and scales," the Duke, who is also patron of the Royal African Society, said ahead of a visit to Africa, a few years ago in 2018. "But the illegal wildlife trade also has a devastating human impact. Too many brave rangers are tragically killed each year by poachers. Communities see their tourist livelihoods threatened. This is why I am committed to doing what I can to help end this terrible, global crime." Image: Getty

News

“There are different paths to justice”: Former choirboy’s father takes George Pell to court

Content warning: This article includes mentions of child sexual abuse (CSA). The father of a former choirboy allegedly abused by George Pell has launched a civil case against the cardinal and the Catholic Church. After being convicted of abusing two choirboys during his time as archbishop of Melbourne in the 1990s, Cardinal Pell was acquitted by the High Court in 2020, having served 13 months in prison before gaining his freedom. The father of one of the victims, who died of a drug overdose in 2014, was told about the alleged abuse by police a year after his son’s death, according to the <a href="https://www.abc.net.au/news/2022-07-14/george-pell-father-former-choirboy-civil-action-cardinal-church/101236968" target="_blank" rel="noopener">ABC</a>. He has now launched legal action against Cardinal Pell and the Catholic Archdiocese of Melbourne in the Supreme Court of Victoria for “damages for nervous shock” that were related to finding out about the allegations, according to the statement of claim lodged in court. The father, who cannot legally be named and has been given the pseudonym RWQ, and his solicitors from Shine Lawyers claim Cardinal Pell and the Archdiocese were negligent. They allege the cardinal is liable for RWQ’s mental injury because it would have been reasonably foreseeable that he would suffer from nervous shock after learning of the alleged abuse, and that the Archdiocese breached a duty of care to him. RWQ is claiming general damages, and special damages, and seeking compensation for “past loss of earning capacity and past and future medical and like expenses”, though the sum he is seeking will only be revealed if the matter goes to trial. Lisa Flynn, the Chief Legal Officer for Shine Lawyers, said the separate criminal case and High Court proceedings involving the cardinal won’t affect the civil case. “The High Court made some decisions in relation to the criminal prosecution against [George] Pell, our case is a civil case against George Pell and the Catholic Archdiocese,” she explained. “There are different paths to justice.” If you are in need of support you can contact Lifeline on 13 11 14, or Bravehearts on 1800 272 831 or Blue Knot on 1300 657 380 for support relating to sexual abuse. Image: Getty Images

Legal

"No interest in justice!" Andrew O'Keefe's courtroom explosion

Disgraced TV host Andrew O'Keefe has screamed at a magistrate in his latest court appearance, claiming he had “no interest in justice” and was threatened with contempt of court after he was again denied bail. As O'Keefe fronted Sydney’s Central Local Court on Wednesday afternoon, he appeared visibly distressed and frustrated. The 50-year-old was hit with six charges in January after police alleged that he grabbed a woman by the throat, punched her and pushed her to the ground, to which he pled not guilty to all charges. Mr O’Keefe has been remanded in custody since his arrest and lost his last bid for bail in the NSW Supreme Court in March. Defence lawyer Sharon Ramsden presented a fresh application for bail on Wednesday, in which she argued that more evidence had been served on Mr O’Keefe that outlined the “lack of injury” on the complainant. Over the bail hearing that lasted almost two-hours, Mr O’Keefe was audibly frustrated over what was being said in court. A prosecutor opposed the bail application and said there was “no new information” to warrant the request, “There’s not fresh circumstances in what has been put before the court … he has been in rehab nine times,” he said. Mr O’Keefe spoke over the prosecutor to deny the allegations as magistrate Daniel Reiss warned him he would be “going backwards by speaking up”. “That’s simply not true Your Honour,” Mr O’Keefe said, raising his voice. “I’m just getting the truth out there.” Mr O’Keefe continued to interrupt and shake his head in frustration as magistrate Daniel Reiss told the court of the 50-year-old’s mental health and drug issues. The magistrate warned that Mr O’Keefe was bordering on being in contempt of court. “I’ve dealt with many defendants, some are psychotic and are not as hard to deal with as you. Someone with legal qualifications and 10 warnings should know how to deal with it,” Mr Reiss said. Mr Reiss denied bail, saying he was not willing to allow the “unacceptable risk” of letting Mr O’Keefe leave custody. Mr O’Keefe gathered his papers and stood up before saying, “The transcript will say I was not arguing, I was trying to help you Your Honour.” “You have no interest in justice,” Mr O’Keefe continued before storming out. Mr O’Keefe will return to court for a hearing in June. Image credits: A Current Affair

News

The International Court of Justice has ordered Russia to stop the war

The International Court of Justice (ICJ), the top court of the United Nations, has <a href="https://www.icj-cij.org/public/files/case-related/182/182-20220316-ORD-01-00-EN.pdf" target="_blank" rel="noopener">ordered Russia to “immediately suspend” its military operations in Ukraine</a>. What does the decision mean, and what happens next? We already knew Russia’s invasion was illegal in international law. But the ICJ decision now makes it virtually impossible for anyone, including Russia, to deny that illegality. It is also impressive because Ukraine used a creative strategy to get the ICJ to hear the case, based on the <a href="https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf" target="_blank" rel="noopener">Genocide Convention of 1948</a>. <blockquote class="twitter-tweet"> READ HERE: a summary of the <a href="https://twitter.com/hashtag/ICJ?src=hash&ref_src=twsrc%5Etfw">#ICJ</a> Order indicating provisional measures in the case concerning Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (<a href="https://twitter.com/hashtag/Ukraine?src=hash&ref_src=twsrc%5Etfw">#Ukraine</a> v. <a href="https://twitter.com/hashtag/Russia?src=hash&ref_src=twsrc%5Etfw">#Russia</a>) <a href="https://t.co/joZ3kWkfiQ">https://t.co/joZ3kWkfiQ</a> <a href="https://t.co/D6YsHmVHOH">pic.twitter.com/D6YsHmVHOH</a> — CIJ_ICJ (@CIJ_ICJ) <a href="https://twitter.com/CIJ_ICJ/status/1504137139625279492?ref_src=twsrc%5Etfw">March 16, 2022</a></blockquote> Russia’s legal arguments about the war Russia’s president, Vladimir Putin, gave <a href="https://www.spectator.co.uk/article/full-text-putin-s-declaration-of-war-on-ukraine" target="_blank" rel="noopener">several justifications for invading Ukraine</a>. Some had little to do with the law, such as his complaints about NATO. But two were legal arguments. First, he claimed Russia was acting in “self-defence”. Self-defence is <a href="https://www.un.org/en/about-us/un-charter/chapter-7" target="_blank" rel="noopener">an established reason to use military force</a> in international law. But Putin suggested Russia was defending the two breakaway parts of eastern Ukraine it recognises as sovereign states: Donetsk and Luhansk. Legally, these are <a href="https://theconversation.com/how-russias-recognition-of-breakaway-parts-of-ukraine-breached-international-law-and-set-the-stage-for-invasion-177623" target="_blank" rel="noopener">still parts of Ukraine’s own territory, not independent states</a>, which makes nonsense of this argument. Second, Putin claimed Ukraine was committing genocide against ethnic Russians (where “genocide” means certain acts committed with “<a href="https://treaties.un.org/doc/publication/unts/volume%2078/volume-78-i-1021-english.pdf" target="_blank" rel="noopener">intent to destroy</a>” an ethnic group or another defined group). This is just as factually and legally flimsy as the self-defence argument. If both arguments are weak, why did Ukraine focus on genocide in the case before the ICJ? To understand, we have to look at the court’s jurisdiction: that is, its power to decide some legal issues but not others. The jurisdiction of the ICJ The ICJ hears disputes solely between sovereign states (in contrast to the separate International Criminal Court, which tries individuals for committing things like war crimes). The ICJ does not automatically have jurisdiction over every state and every issue. There is no global government that could give it that power. Like many other aspects of international law, <a href="https://www.icj-cij.org/en/basis-of-jurisdiction" target="_blank" rel="noopener">its jurisdiction relies on states giving consent</a> – agreement – either directly or indirectly. Some states have given consent by making general declarations. Other states have consented to particular treaties that give the ICJ the power to decide disputes related specifically to those treaties. Since Russia has not made a general declaration, Ukraine could not ask the ICJ to rule on its self-defence argument. But Russia is a party to a relevant treaty, the <a href="https://treaties.un.org/doc/publication/unts/volume%2078/volume-78-i-1021-english.pdf" target="_blank" rel="noopener">Genocide Convention</a>. Ukraine’s creative strategy was to try to bring the case within the ICJ’s jurisdiction by arguing that Russia was making a false allegation of genocide to justify its illegal invasion. The order made by the ICJ Russia did not turn up to the courtroom in The Hague for the initial hearing in early March (though it did write the ICJ a letter outlining its view). That is a change in its behaviour. After Russia invaded Georgia in 2008, Georgia similarly brought a case to the ICJ and tried to use <a href="https://treaties.un.org/doc/Publication/UNTS/Volume%20660/volume-660-I-9464-English.pdf" target="_blank" rel="noopener">a different treaty</a> to bring it within the court’s jurisdiction. Russia participated in the case and actually had <a href="https://www.icj-cij.org/en/case/140" target="_blank" rel="noopener">significant success</a>. Its failure to turn up this time signals its disengagement from international institutions. <blockquote class="twitter-tweet"> International Court of Justice is ruling on Ukraine's appeal for an order for Russia to halt its invasion. Russian officials and lawyers have not turned up for the session. <a href="https://t.co/oucPjgQ5Hp">pic.twitter.com/oucPjgQ5Hp</a> — Julian Borger (@julianborger) <a href="https://twitter.com/julianborger/status/1504111254205521926?ref_src=twsrc%5Etfw">March 16, 2022</a></blockquote> Of the 15 judges, almost all agreed to <a href="https://www.icj-cij.org/public/files/case-related/182/182-20220316-ORD-01-00-EN.pdf" target="_blank" rel="noopener">order Russia to “immediately suspend” its military operations</a>. There were two dissenters: the judges of Russian and Chinese nationality. This was what is called a “provisional measures” order – an emergency ruling made before the court hears the whole case. Provisional measures are binding. That is important. It means even if Russia maintains incorrectly that the invasion is legal, it is now breaching international law anyway by failing to comply with the ICJ’s order. However, a binding ruling is not the same as an enforceable one. Just as there is no global government to give the ICJ more power, there are no global police to enforce its decisions. For example, in 1999, the ICJ <a href="https://www.icj-cij.org/en/case/104" target="_blank" rel="noopener">ordered the United States to delay executing a German man on death row</a>. Although the court confirmed such a provisional measure was binding, it could not actually stop the execution. But ICJ decisions can play a more subtle role. They shape the narrative for law-abiding states and within the United Nations. This ruling might help to embolden other states, including some that until now have been sitting on the fence, to contribute to actions like suffocating Russia’s economy with sanctions and arming Ukraine. What happens next? All the ICJ has done so far is to order provisional measures. It has not even found conclusively that it has jurisdiction in the case. It might be a long time before it decides the case as a whole. But it has hinted it is receptive to Ukraine’s arguments. It has noted that it “<a href="https://www.icj-cij.org/public/files/case-related/182/182-20220316-ORD-01-00-EN.pdf" target="_blank" rel="noopener">is not in possession of evidence</a>” to support Russia’s allegation that Ukraine has committed genocide. Another strength of Ukraine’s case is that there is, in any event, no rule in international law automatically giving one state a right to invade another state to stop a genocide. One reason is that a cynical aggressor could manipulate or abuse such a rule. That is basically what this case is all about.<img style="border: none !important; box-shadow: none !important; margin: 0 !important; max-height: 1px !important; max-width: 1px !important; min-height: 1px !important; min-width: 1px !important; opacity: 0 !important; outline: none !important; padding: 0 !important;" src="https://counter.theconversation.com/content/179466/count.gif?distributor=republish-lightbox-basic" alt="The Conversation" width="1" height="1" /> <a href="https://theconversation.com/profiles/rowan-nicholson-945547" target="_blank" rel="noopener">Rowan Nicholson</a>, Lecturer in Law, <a href="https://theconversation.com/institutions/flinders-university-972" target="_blank" rel="noopener">Flinders University</a> This article is republished from <a href="https://theconversation.com" target="_blank" rel="noopener">The Conversation</a> under a Creative Commons license. Read the <a href="https://theconversation.com/the-international-court-of-justice-has-ordered-russia-to-stop-the-war-what-does-this-ruling-mean-179466" target="_blank" rel="noopener">original article</a>. Image: Getty Images

Legal

"What about justice?" Tempers flare on Q&A over Christian Porter debate

A Liberal senator and a Labor MP clashed on ABC's Q&A on Thursday night over a question around the historical rape allegation against Attorney-General Christian Porter. On Wednesday, Porter revealed himself as the minister at the centre of a rape claim involving a 16-year-old girl in Sydney in 1988. He has never been charged and police confirmed there was "insufficient evidence" to proceed with an investigation and labelled the matter "closed". The question was asked by an audience member and immediately caused tension on the panel. The question that was asked was whether the panel thought Prime Minister Scott Morrison should launch an independent inquiry into the allegations against Mr Porter. Queensland National Party Senator Susan McDonald threw her support behind Mr Porter, saying she felt “deeply” for the woman and her family but that the justice system must be adhered to. “We do have a system of justice in this country. We do have a police service that is well resourced and the most capable of understanding whether or not evidence needs to go to trial. And they have closed the matter,” Senator McDonald said. “I don’t think that this is an easy subject but we can’t have a situation where allegations equate to guilt. And I think that the minister has made a full statement and I think that we need to some justice in the law and the rules of the land, because otherwise, you know, do we back a kangaroo court and a court of public opinion?” <blockquote class="twitter-tweet"> Should the Prime Minister launch an independent inquiry into the rape allegation against Christian Porter? <a href="https://twitter.com/hashtag/QandA?src=hash&ref_src=twsrc%5Etfw">#QandA</a> <a href="https://t.co/24SVvJVM14">pic.twitter.com/24SVvJVM14</a> — QandA (@QandA) <a href="https://twitter.com/QandA/status/1367413261134483457?ref_src=twsrc%5Etfw">March 4, 2021</a></blockquote> Western Australia Labor MP Anne Aly cut in, asking: "What about justice for the victim?" “We keep talking about justice for the accused. What about justice for the victim?” she said, to a round of cheering from the audience. “I am infuriated by this because I’m sick and tired of the lip service that we hear in parliament about hearing victims’ voice, about listening to women, about respect for women, and right now is a moment.” Aly also said it was time for the Prime Minister to show leadership and launch an independent inquiry. “What did he do? He came out and he said, ‘Well, I have asked him if he did it and he said no, and that’s enough for me.’ And then suddenly you’ve got all of these men invoking justice, justice, justice,” she said. “That inquiry will either exonerate Christian Porter and prove his innocence, as he is — as he is saying, that he is innocent, or it will prove otherwise. Either way, this is a serious, serious allegation. It needs to be treated seriously,” she said.

"Justice for Chloe": Unbearable choice for grandfather accused of cruise ship fatal fall

<div class="post_body_wrapper"> <div class="post_body"> <div class="body_text redactor-styles redactor-in"> A grandfather accused in the fatal fall of his granddaughter Chloe from an 11th storey window of a cruise ship pleaded guilty on Thursday to negligent homicide. Salvatore "Sam" Anello said that he wanted to help end "this nightmare" for his family. His 18-month-old granddaughter Chloe slipped from his grip and fell 46 metres from an open window on a Royal Caribbean Cruises' Freedom of the Seas ship in July 2019 as the ship docked in Puerto Rico. Puerto Rico prosecutor Laura Hernandez said Anello would be sentenced on December 10th. “We have found justice for Chloe,” she said. A representative for Anello’s attorney, Michael Winkleman, said in a statement to America’s NBC TODAY that Anello will not serve any jail time and will serve his probation in Indiana. “This decision was an incredibly difficult one for Sam and the family, but because the plea agreement includes no jail time and no admission of facts, it was decided the plea deal is in the best interests of the family so that they can close this horrible chapter and turn their focus to mourning Chloe and fighting for cruise passenger safety by raising awareness about the need for all common carriers to adhere to window fall prevention laws designed to protect children from falling from windows,” Winkleman said in a statement. Winkleman also added that the family would continue its civil suit against Royal Caribbean with the goal of discovering why the window was allowed to be open. Anello, 51, said that he did not know that the window in the children's play area was open. “I wasn’t drinking and I wasn’t dangling her out of a window,” he said in a previous statement. He said he is colourblind and might not have realized the tinted window was open. “We will continue the fight for justice for Chloe and to hold Royal Caribbean accountable for its brazen failure to follow the standards designed precisely to prevent children from falling out of windows,” Winkleman said in his statement. </div> </div> </div>

Legal

Mum who took on road tolls in court loses “faith in the justice system”

Heidi Jackel says she has lost “faith in the justice system” after being hit with a massive bill for unpaid road tolls that could force her to sell her home. The mother of two has taken on the might of toll road giant Transurban and lost. "I've always believed there is some justice in the justice system," she says. Ms Jackel maintains she honestly thought she paid $14,500 in administration fees that were sprung on her after she did not pay tolls. "I would not wish this on my worst enemy," she said back in August to A Current Affair. "No one should have to go through this... no one." Ms Jackel had been hit with a $22,000 bill for unpaid tolls which includes over $14,700 in administration fees. Ms Jackel was unaware her etag had stopped working but accepted that it had and paid the $7000 in unpaid tolls. But she thought the $10 and $20 administration fees were exorbitant, so she took it to court. "It was so hard," Ms Jackel said. "I'm really sorry." Westlink M7 told Ms Jackel the administration fees were charged by Roads and Maritime Services, which she disputed. "They (Westlink M7) know as well as I do that... that charge is, is… it's a rort… it's ripping people off," she said. Unfortunately, a court has backed the road toll company and ordered Ms Jackel to pay the admin fees. "It's very disappointing," she admitted outside of court. "Because it means that anyone can charge an admin fee and not prove that that's the actual, real admin cost. “The rich people and the big companies, they just get away with doing whatever they like. Ms Jackel has revealed she is scared for what her future holds. "I don't know... will I lose my house? I don't know, I have no idea," she said. "I don't have $15,000. I don't even have $5000... all I have is the house." She says she has found “the silver lining in this dark, dark cloud,” which is that she will not have to pay Westlink M7's legal costs.

Legal

Ruth Bader Ginsburg forged a new place for women in the law and society

Justice Ruth Bader Ginsburg’s <a href="https://www.abc.net.au/news/2020-09-20/what-ruth-bader-ginsburgs-death-means-for-donald-trump/12519640">death</a> has generated an outpouring of grief around the globe. Part of this grief reflects her unparalleled status as a feminist icon and pioneer for women in the legal profession and beyond. There is already considerable interest in what her departure means for the future of the US Supreme Court, and indeed, the wider political landscape. But to understand that, we must reflect on her legacy. In 1956, Ginsburg enrolled in Harvard Law School, one of only nine women in her year alongside about 500 men. Reflecting the prevailing mindset of the time, which regarded the study and practise of law as the proper domain of men, the Harvard dean, Erwin Griswold, <a href="https://www.thecrimson.com/article/1993/7/23/ginsburg-blasts-harvard-law-pin-testimony/">asked each of the nine women</a> how they could justify taking the place of a man. Ginsburg’s answer, that she wanted to better understand her husband Marty’s career as a lawyer (he was the year ahead of her at Harvard), belies the reality of the enormous contribution she would make to public life in the subsequent six decades. The number nine would come to be significant in marking her success in a profession traditionally dominated by men. In 1993, she took her place on the nine-judge Supreme Court as the second woman appointed in its history. In more recent years, in response to questions about when there will be “enough” women judges, Ginsburg replied there would enough <a href="https://www.theguardian.com/commentisfree/2012/nov/30/justice-ginsburg-all-female-supreme-court">when there were nine women</a> on the Supreme Court. Acknowledging that people are shocked by this response, Ginsburg famously countered “there’s been nine men, and nobody’s ever raised a question about that.” This exchange points to just how ingrained the idea that judging is men’s work had become. A formidable mind Long before President Bill Clinton resolved to nominate Ginsburg to the Supreme Court, Ginsburg had established a reputation as an academic (she was the second woman to teach law full-time at Rutgers University and the first woman to become a tenured professor at Columbia Law School). She was also known as a feminist litigator, leading the American Civil Liberties Union’s campaign for gender equality. Ginsburg’s nomination to the Supreme Court was an uncontroversial appointment. She was regarded as a restrained moderate and was <a href="https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=103&session=1&vote=00232">confirmed by the Senate 96 votes to three</a>. Although there were some concerns she was a “<a href="https://books.google.com.au/books?id=2vwUCgAAQBAJ&pg=PA166&lpg=PA166&dq=%E2%80%9Cradical+doctrinaire+feminist%E2%80%9D+ginsburg&source=bl&ots=czf2V7bZm8&sig=ACfU3U1S2Dh6FVpm8o7uhDnEvlGAwoLQiA&hl=en&sa=X&ved=2ahUKEwjwgdiYmvXrAhWlF6YKHdc1ClwQ6AEwA3oECAEQAQ#v=onepage&q=%E2%80%9Cradical%20doctrinaire%20feminist%E2%80%9D%20ginsburg&f=false">radical doctrinaire feminist</a>”, her credentials were bolstered by her record on the United States Court of Appeals for the District of Columbia Circuit (she was appointed by President Jimmy Carter in 1980). Ginsburg had spent the 1970s pursuing <a href="https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2253&context=facpub">a litigation strategy</a> to secure woman’s equality — although she would <a href="https://achievement.org/">describe</a> her approach in broader terms as the “constitutional principle of equal citizenship stature of men and women.” In a series of cases, she <a href="https://supreme.justia.com/cases/federal/us/411/677/">sought to establish</a> sex, like race, is a visible, immutable characteristic bearing no necessary relationship to ability. By extension, she argued, legal classifications on the basis of sex should be subject to the “strict scrutiny” required in cases where there were distinctions or classifications on the basis of race. To put it more bluntly, pigeon-holing on the basis of sex should be unconstitutional. The nub of her argument, whether acting for men or women plaintiffs, was that treating men and women differently under the law <a href="https://www.oyez.org/cases/1972/71-1694">helped to</a> “keep woman in her place, a place inferior to that occupied by men in our society.” Outside the court — and inside, too Feminist theorists have sometimes expressed reservations about the extent to which a legal system designed by men to the exclusion of women can ever be fully appropriated to achieve equality for women. While some feminists have seen much promise in the possibility for law reform, others have been more circumspect. This tension is reflected in the <a href="https://www.northeastern.edu/lawstudentaffairs/wp-content/uploads/2018/07/When-the-First-Quail-Calls.pdf">two-pronged strategy proposed</a> by Professor Mari Matsuda — that there are times to “stand outside the courtroom” and there are times to “stand inside the courtroom”. Ginsburg’s legacy in life and law reflects the latter approach. Her faith in the law is reflected in her approach to stand inside the courtroom (literally as a litigator and a judge) to transform existing legal categories. In this way, her approach was <a href="https://repository.uchastings.edu/hastings_law_journal/vol63/iss5/4/">reconstructive</a> rather than radical (which is not say that some of her thinking wasn’t radical for its time). Ginsburg sought to reconstruct sex roles and emphasised men and women alike were diminished by stereotypes based on sex. Importantly, Ginsburg did not simply pursue formal equality (the idea that equality will be achieved by treating everyone the same). Rather, she advocated for affirmative action as a principle of <a href="https://www.jstor.org/stable/4099346?seq=1#metadata_info_tab_contents">equality of opportunity</a>. She favoured incremental rather than radical change, reflecting a view that such an approach would minimise the potential for backlash. Her critique <a href="https://time.com/5354490/ruth-bader-ginsburg-roe-v-wade/">of the strategy</a> adopted in the landmark 1973 case Roe v Wade (the case upon which US reproductive rights are based), and her departure from the feminist orthodoxy on this point, reflected her preference for incrementalism. Legacy on the bench Ginsburg’s jurisprudential contributions on the Supreme Court continued the legacy she began in the 1970s. One of her most <a href="https://supreme.justia.com/cases/federal/us/518/515/">significant majority opinions</a> in 1996 required the Virginia Military Institute to admit women. Importantly, this was because it had not been able to provide “exceedingly persuasive justification” for making distinctions on the basis of sex. Although this standard fell short of the “strict scrutiny test” required in cases involving classifications on the basis of race, it nonetheless entrenched an important equality principle. But it was perhaps her judicial dissents, sometimes delivered <a href="https://www.supremecourt.gov/opinions/06pdf/05-1074.pdf">blisteringly</a> in the years where she was the lone woman on the bench (prior to President Barack Obama’s appointment of <a href="https://www.nytimes.com/2009/05/27/us/politics/27court.html">Sonia Sotomayor in 2009</a> and <a href="https://www.theguardian.com/world/2010/may/10/barack-obama-nominate-elena-kagan">Elena Kagan in 2010</a>), that seem to have really captured the wider public imagination and catapulted her into the zeitgeist. It was in the wake of her 2013 dissent in a <a href="https://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf">case about the Voting Rights Act</a> that she reached the status of a global feminist icon. A <a href="https://notoriousrbg.tumblr.com/">Tumblr</a> account was established in her honour, giving her the nickname “Notorious RBG” (a title drawn from the rapper Biggie Smalls’ nickname Notorious B.I.G). A 2018 documentary <a href="https://iview.abc.net.au/show/rbg">RBG </a> chronicled her legacy and status as a cultural icon, and a 2018 motion picture <a href="https://www.imdb.com/title/tt4669788/">On the Basis of Sex</a> depicted her early life and cases. Ginsburg’s celebrity certainly expanded during her time on the court — but this is not to say to it has been without controversy or critique, even from more liberal or progressive sources. She has been criticised for her decisions (for example, a particular decision about <a href="https://www.law.du.edu/forms/writing-competitions/documents/winners/7.pdf">Native Americans and sovereignty</a>), for her comments about <a href="https://www.washingtonpost.com/news/arts-and-entertainment/wp/2016/10/13/sorry-it-turns-out-ruth-bader-ginsburg-is-not-your-liberal-cartoon-superhero-after-all/">race and national anthem protests</a>, and for being too partisan — particularly in her criticism of President Donald Trump. (<a href="https://www.bbc.com/news/world-us-canada-36796495">She called him a “faker” and later apologised</a>.) A great legacy Did Ginsburg’s feminism or celebrity undermine her legitimacy as a judge? Questions of judicial legacy and legitimacy are complex and inevitably shaped by institutional, political and legal norms. Importantly, her contributions as a lawyer and a judge have done much to demonstrate how legal rules and approaches previously regarded as neutral and objective in reality reflected a masculine view of the world. Over 25 years ago, Ginsburg <a href="https://www.nytimes.com/1993/07/21/us/the-supreme-court-excerpts-from-senate-hearings-on-the-ginsburg-nomination.html">expressed her aspiration</a> that women would be appointed to the Supreme Court with increased regularity: “Indeed, in my lifetime, I expect to see three, four, perhaps even more women on the High Court Bench, women not shaped from the same mold but of different complexions. Yes, there are miles in front, but what distance we have travelled from the day President Thomas Jefferson told his secretary of state: ‘The appointment of women to [public] office is an innovation for which the public is not prepared.” That Ginsburg came to share the Supreme Court with two women, Kagan and Sotomayor, must have given her some hope that women’s access to places “where decisions are being made” was at least tentatively secure, even if hard-won feminist gains sometimes felt tenuous at best. Ginsburg was a trailblazer in every aspect of her life and career. The women who follow her benefit from a legacy that powerfully re-imagined what it means to be a lawyer and a judge in a legal system that had been made in men’s image. Written by KCasey McLoughlin. Republished with permission of <a href="https://theconversation.com/ruth-bader-ginsburg-forged-a-new-place-for-women-in-the-law-and-society-146540">The Conversation.</a>

Caring

The law, defences and penalties for making a false accusation in NSW

<a href="https://www.dailymail.co.uk/news/article-7846859/British-student-faces-jail-Cyprus-urges-Boris-Johnson-intervene.html?ns_mchannel=rss&ico=taboola_feed">It has been reported</a> that a 19-year old British student is facing up to 12 months in prison after being convicted of ‘public mischief’ for falsely claiming that 12 Israeli men gang-raped her in Ayia Napa, a resort town on the southeast coast of Cyprus. A Cypriot judge found that the woman had manufactured the claims due to her ‘embarrassment’ after being filmed by several of the men having consensual sexual intercourse with them. ‘The defendant gave police a false rape claim, while having full knowledge that this was a lie’, the judge remarked, adding ‘[t]here was no rape, or violence’. He described the woman’s accusations as ‘grave’ and refused a defence request to adjourn her sentencing proceedings. But the woman’s supporters have questioned the verdict and called upon the British Prime Minister Boris Johnson to intervene. She has been on bail since the end of August 2019 after spending a month behind bars. Her sentencing is scheduled to take place on 7 January 2020. The crime of making a false accusation in NSW <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ca190082/s314.html">Section 314 of the Crimes Act 1900</a> (NSW) (‘the Act’) makes it an offence punishable by up to seven years in prison to make a false accusation. To establish the offence, the prosecution must prove beyond reasonable doubt that the defendant: <ol> <li>Made an accusation against another person,</li> <li>By doing so, intended the other person to be subjected to an investigation,</li> <li>Knew accusation was false, and</li> <li>Knew the accused person was innocent.</li> </ol> The offence encompasses situations where a person makes a <a href="https://www.sydneycriminallawyers.com.au/blog/false-sexual-assault-allegations-ruin-lives/">false complaint to police</a>, knowing the person they are accusing is innocent of the accusation. The crime of public mischief Alternatively, <a href="https://www.sydneycriminallawyers.com.au/criminal/legislation/crimes-act/public-mischief/">section 547B of the Act</a> prescribes a maximum penalty of 12 months in prison for the offence of public mischief. To establish the offence, the prosecution must prove beyond reasonable doubt that the defendant: <ol> <li>Knowingly made a false representation that an act had been done, or would been done, or that an event had occurred,</li> <li>The representation was made to a police officer, and</li> <li>The representation called for an investigation by the police officer.</li> </ol> The offence covers situations where: <ul> <li>The representation was made to a person other than a police officer,</li> <li>The nature of the representation reasonably required the person to communicate it to a police officer, and</li> <li>The person did communicate it to a police officer</li> </ul> The charge may be preferred to one of ‘false accusation’ in situations where the prosecution is unable to prove that the accuser intended another person to be prosecuted, or knew the other person was innocent. The crime of perjury If the accuser testified in court or swore a statement under an oath or affirmation, they may be prosecuted for the offence of perjury under <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ca190082/s327.html">section 327</a> of the Act, which carries a maximum penalty of 10 years’ imprisonment. To establish the offence, the prosecution must prove beyond reasonable doubt that he or she: <ol> <li>Made a false statement under oath or affirmation,</li> <li>It was made in, or in connection with, judicial proceedings,</li> <li>It concerned a matter which was material to those proceedings, and</li> <li>The defendant knew the statement was false or did not believe it was true at the time it was made.</li> </ol> The maximum <a href="https://www.sydneycriminallawyers.com.au/blog/what-is-the-offence-of-perjury-in-new-south-wales/">penalty for perjury</a> increases to 14 years where the complainant intended to procure the conviction or acquittal for a ‘serious indictable offence’ – which is one that carries a maximum penalty of at least five years in prison. The crime of perverting the course of justice And section 319 of the Act prescribes a maximum penalty of 14 years in prison for <a href="https://www.sydneycriminallawyers.com.au/criminal/legislation/crimes-act/perverting-course-of-justice/">perverting the course of justice</a>. To establish that offence, the prosecution must prove beyond reasonable doubt that the defendant: <ol> <li>Engaged in an act or made an omission, and</li> <li>By doing so, intended to pervert the course of justice.</li> </ol> The definition of ‘<a href="https://www.sydneycriminallawyers.com.au/blog/what-is-perverting-the-course-of-justice/">perverting the course of justice</a>’ is ‘obstructing, preventing, perverting or defeating the course of justice or the administration of law’. Examples of perverting the course of justice may include: <ul> <li>Attempting to bribe a police or judicial officer to avoid being prosecuted or punished,</li> <li>Falsely swearing or declaring that another person was responsible for an offence,</li> <li>Using a victim’s phone or email in an attempt to create a defence to a crime,</li> <li>Encouraging or bribing another person to plead guilty to an crime they did not commit, or</li> </ul> provide a false alibi, or give false testimony in court. Defences A number of <a href="https://www.sydneycriminallawyers.com.au/criminal/defences/">defences may apply to the above charges</a>, including: <ul> <li>Duress,</li> <li>Necessity, and</li> <li>Self-defence.</li> </ul> Alternatively, it may be possible to have the charged <a href="https://www.sydneycriminallawyers.com.au/services/mental-health-applications/">dismissed on mental health grounds</a> under <a href="https://www.sydneycriminallawyers.com.au/blog/drafting-section-32-applications-a-guide-for-criminal-lawyers/">section 32 of the Mental Health (Forensic Provisions) Act 1990</a>. Written by Ugur Nedim. Republished with permission of <a href="https://www.sydneycriminallawyers.com.au/blog/the-law-defences-and-penalties-for-making-a-false-accusation-in-nsw/">Sydney Criminal Lawyers</a>.

Travel Tips

Cruise ship heartache: Little Chloe’s next step for justice

The parents of a child who plunged to her death after suffering a 46-metre fall from a cruise ship window are suing for millions as they release the chilling picture of where she died. The toddler, Chloe Wiegand was in the hands of her grandad near to a window when she slipped. However, her heart-stricken family insist the blame lies with the “negligent” cruise line, which they are reportedly launching legal action against. The heartbreaking photograph taken of the tent covering the part of the deck that Alan and Kimberly Schultz’s baby girl died, was taken by a criminal investigator and is now being used in a negligence suit. They are reportedly accusing Royal Caribbean of breaching safety protocols and standards. The snap shows the view which Chloe’s grandad Salvatore “Sam” Anello had been balancing Chloe when he slipped and fell while the ship was docked in San Juan, Puerto Rico. It also shows a partial space between the wooden railing that Mr Anello held his granddaughter and a large, glass window that could be completely opened. Mr Anello is facing up to six years behind bars after he was charged with criminal neglect – however Chloe’s parents are adamant the blame lies in the hands of the cruise ship. Mr and Mrs Schultz are sticking by their daughter’s grandfather, insisting nothing is worse than “what has already happened”. The family have reportedly filed a suit against Royal Caribbean to figure out why the 11th storey window was allegedly left open. It is reported the family will receive “unlimited” damages for “pain and mental suffering” if their claim is successful, as Chloe died on American soil and not in the high seas. The grieving family’s lawyer say it will be impossible to “put a figure” on their grief however, saying “four simple words – caution these windows open – and we wouldn’t be talking about his. “A sticker, a decal with the Royal Caribbean logo, anything, and Chloe is still with us.” The family will claim in court that little Chloe was being “closely supervised” by her granddad at the time of her death. They will further maintain Mr Anello was “unaware” one of the large panes of glass surrounding the ship’s 11th floor had been slid open when he carried his granddaughter over to the railings. The case alleges the window was the only one open “among dozens” and there was no clear indication that it had been opened. The lawsuit also claims there was a 46 cm gap between the wooden railing and the open window, which made it even more difficult for a horrified Mr Anello to reach over and grasp for his toddler as she plunged to her death. They also allege that Mr Anello being colourblind made hard for him to differentiate between the glass and the open window. Chloe’s family have insisted the toddler liked to bang on glass, just as she did when at her brother’s hockey games – which is why her grandad had sat her on the wooden railing. In November, it was reported there is video evidence that supports the grieving family’s claim that Mr Anello was unaware the window was open – a potential bombshell for both the case against her distraught grandad and the family’s Royal Caribbean suit. Royal Caribbean has refused to comment further but described Chloe’s death as a “tragic incident”.

News

“Dangerous nuisance animal”: Man accused of ripping kookaburra's head off named and shamed

The lawyer for a Perth man who is alleged to have ripped the head off beloved Kevin the Kookaburra has called the bird a “dangerous nuisance animal” that should have been dealt with by the Parkerville Tavern much earlier. The Parkerville Tavern is where the man is alleged to have grabbed the local favourite known as Kevin, ripped his head off and thrown the bird under the table. Ross Williamson said that his client Daniel Welfare had left the country after a barrage of death threats and attacks over last week’s killing via social media. However, Williamson would not confirm whether or not his client was guilty of being responsible for the death of Kevin. He has also issued restraining orders to two women who he has accused of issuing an “online vigilante campaign” against his client. However, the women said that they will not stop until Welfare is brought to justice. Tania Scheulin, witness to the incident, has been outspoken about this. “I will never stop until the person that did this has some repercussions for it, charged by police or gets a fine.” <blockquote class="twitter-tweet" data-lang="en"> There's a new development in the case of a kookaburra that had its head ripped off at a Hills pub. <a href="https://twitter.com/kamingock?ref_src=twsrc%5Etfw">@KaminGock</a> <a href="https://twitter.com/hashtag/9News?src=hash&ref_src=twsrc%5Etfw">#9News</a> <a href="https://t.co/TQe8N6qICt">pic.twitter.com/TQe8N6qICt</a> — Nine News Perth (@9NewsPerth) <a href="https://twitter.com/9NewsPerth/status/1189124300785123329?ref_src=twsrc%5Etfw">October 29, 2019</a></blockquote> However, Williamson has said that he has previous information relating to Kevin’s behaviour at the Tavern and that kookaburras are an invasive species in WA. "The kookaburra is an invasive species in WA," he said to <a rel="noopener" href="https://www.9news.com.au/national/perth-kevin-the-kookaburra-beheaded-man-leaves-australia-death-threats-crime-news-wa-australia/e3c92ab2-5af5-4df1-bca7-c5b5f9089de2" target="_blank">9News</a>. "Until recently you could shoot them with impunity and people used to do that and get a community service award for doing that sort of thing. "This particular bird I have reports about. It has attacked children. It's injured the faces of children... this bird is - or was - a dangerous nuisance animal and the Parkerville Tavern should have done something to deal with it." He has also criticised the state government’s role in the case. "I noticed the Police Commissioner, with the Police Minister at his side, called a press conference saying they are going to prosecute my client over the demise of a pest - a harmful, nuisance bird," he said. "I hear nothing about the police investigating and prosecuting people for making threats to harm, kill and rape my clients. "I call on the police to do that - to investigate this criminal vigilante."

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Justice for Kevin: Man who tore kookaburra's head off could face prosecution

A man who tore the head off a kookaburra in a Perth pub in front of families with young children may still face prosecution. The man, allegedly in his 40s, was at the Parkerville Tavern, when the beloved but chip stealing resident kookaburra known as Kevin stole some chips off his plate. The man allegedly grabbed the kookaburra, pulled the bird's head off and threw it under the table. Kevin was beloved by locals who attended the pub. An RSPCA spokeswoman told AAP that the organisation had not given up on pursuing the man but said that the Animal Welfare Act was unclear. Agriculture and Food Minister Alannah MacTiernan has promised to search legal avenues surrounding native wildlife protection. “It is pretty disgusting I think everyone is rightly appalled. We are now checking with the department whether or not this can be characterised as an act of animal cruelty,” she said on Monday to <a rel="noopener" href="https://10daily.com.au/shows/10-news-first/a191028drqhz/shock-and-disbelief-as-man-who-allegedly-ripped-head-of-kookaburra-may-not-be-prosecuted-20191028" target="_blank">10daily</a>. “I think everyone in this community would say there should be some penalty for behaving in this way. And that’s what we are very determined that we will sort this out.” Environment Minister Stephen Dawson has said that a review of the Animal Welfare Act is underway. “If the allegations are true, this is a despicable act. The Department of Biodiversity, Conservation and Attractions (DBCA) and WA Police are conducting a joint investigation into the incident,” he said. “The State Government currently has a review of the Animal Welfare Act underway, with an independent panel due to provide advice to the Agriculture Minister next year. “Cases like this will be examined as part of the review.”

Family & Pets

How robo-debt class action could deliver justice for tens of thousands of Australians

The announcement by Gordon Legal of a <a href="https://www.abc.net.au/news/2019-09-17/robodebt-centrelink-class-action-lawsuit-announced/11520338">class action</a> to compensate victims of the government’s so-called robo-debt scheme is welcome, perhaps even groundbreaking. Standing alongside class action litigator Peter Gordon at a press conference in parliament house on Tuesday, former opposition leader and shadow government services minister Bill Shorten said the <a href="https://gordonlegal.com.au/about/">legal veteran</a> was the man who “took on big tobacco in America, took on asbestos cases, took on thalidomide compensation”. Gordon said he only began looking at robo-debt when Shorten took over the portfolio in May and invited him to examine the government’s curious behaviour of wiping the debts at the centre of legal challenges rather than pursuing them and establishing its right to the money in court. What is robo-debt? Robo-debt is a part-automated process in which recipients of government benefits are sent letters asserting that they owe the government money because they have been overpaid. Many of the debts are <a href="https://www.notmydebt.com.au/the-issue">false or highly inflated</a> because they are calculated using an inaccurate formula that averages employment earnings over a series of fortnights rather than identifying what actually earned in the relevant fortnight. Robo-debts have been routinely overturned as lacking a legal foundation when appealed to the first level of the Administrative Appeals Tribunal. Although the rulings have always been accepted by Centrelink in the individual cases taken before the Tribunal, Centrelink has not applied them to cases not taken to the tribunal. Nor has Centrelink <a href="http://www.unswlawjournal.unsw.edu.au/wp-content/uploads/2018/03/006-Carney.pdf">ever challenged</a> those individual rulings at the second level of the tribunal, where the hearing and the reasons for decision are made public. A Federal Court challenge by two Australians who are arguing the illegality of robo-debts remains underway, but Centrelink <a href="https://www.theguardian.com/australia-news/2019/sep/06/centrelink-wipes-robodebt-in-second-case-set-to-challenge-legality-of-scheme">wiped both debts</a> after the case was launched. Argument remains about whether this means there is still a live legal issue to be heard. The case is not expected to return to court until December. What is “unjust enrichment”? What is incontrovertible is that very large sums of money are being raised by a scheme that verges on extortion. “<a href="https://gordonlegal.com.au/news/gordon-legal-to-fight-illegal-robodebt-clawback/">Unjust enrichment</a>” is the term Gordon Legal plans to use in the action, a term that applies when one entity is enriched at the expense of another in circumstances the law sees as unjust. It is also investigating whether the so-called collection fees levied by Centrelink should be refunded and whether those who have wrongly paid all or part of the amounts claimed should be paid interest on the amounts collected and whether they are entitled to compensation. Between July 2016 and March 2019 the government issued <a href="https://www.theguardian.com/australia-news/2019/feb/06/robodebt-faces-landmark-legal-challenge-over-crude-income-calculations">500,281</a> robo-debt notices, asserting debts of A$1.25 billion, with the average being $2,184, but not uncommonly as much as $10,000. Much less has as yet been collected, but tax return garnishees, debt collection agencies and staff “quotas” are <a href="https://www.theguardian.com/australia-news/2019/may/29/centrelink-still-issuing-incorrect-robodebts-to-meet-targets-staff-claim">driving it up</a>. What’s different about the class action? The class action differs from Administrative Appeals Tribunal reviews or Federal court actions by seeking remedies for a whole class of people, not only those with the knowledge or personal stamina to lodge an appeal. It is form of legal process that cannot be stopped or slowed by wiping the debts of a few individuals. Being a judicial process, it is aired in public (first-tier tribunal decisions remain private). What’s being claimed? The simple argument that will be put is that the government has obtained monies to which it was not lawfully entitled. Not having a lawful basis for the collections (their being, in a sense, an unwarranted “tax” on the supposed debtors), it will be argued that it should return (“restitute”) the monies and pay damages as compensation for unjust enrichment. There are a number of <a href="http://www.austlii.edu.au/au/journals/UWSLRev/2001/2.html">special features and technical requirements</a> to be satisfied before a class action can successfully be lodged for consideration, including obtaining a sufficient number of plaintiffs. Where to now? It is still very early days. There are many procedural and legal hurdles yet to be crossed. However, unlike the paths trodden to date, the class action holds the potential of being able to deliver justice to the many rather than to the few who win private victories without ever testing the government’s powers in open court. Written by Terry Carney, Emeritus Professor of Law, University of Sydney. Republished with permission of <a rel="noopener" href="https://theconversation.com/robo-debt-class-action-could-deliver-justice-for-tens-of-thousands-of-australians-instead-of-mere-hundreds-123691" target="_blank">The Conversation</a>.

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“Dangerous nuisance animal”: Man accused of ripping kookaburra's head off named and shamed

Justice for Kevin: Man who tore kookaburra's head off could face prosecution

How robo-debt class action could deliver justice for tens of thousands of Australians

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