Seinfeld makes it to court

I’ve written previously on how Alice in Wonderland has made it into many Court judgments. Well, now Jerry and Elaine have made it into a judgment too!

In Parish Oil Co Inc v Dillon Companies Inc, the US Court of Appeals in Colorado mentioned Seinfeld in an anti-trust case:

Indeed, the plaintiffs’ reading would apparently render unlawful in the State of Colorado a promotional gimmick so common that it features in an episode from Seinfeld:

JERRY: “Atomic Sub”? Why are you eating there?

ELAINE: I got a card, and they stamp it every time I buy a sub. Twenty four stamps, and I become a Submarine Captain!

JERRY: What does that mean?

ELAINE (embarrassed): Free sub.

Seinfeld: The Strike (NBC television broadcast Dec. 18, 1997).

If the first twenty-four sandwiches are sold for $4 apiece at a cost to the maker of $3, the customer who follows through and redeems the offer will have spent $96 to buy $75 worth of sandwiches. But the last one is sold below cost (in fact, it is “free”), making it illegal under the plaintiffs’ version of the UPA. We do not believe the Colorado legislature would have acted so cavalierly as to ban such customer-rewards programs—indeed, to make them criminal—without more clearly expressing an intent to do so.

The plaintiff had sought to challenge a scheme whereby consumers at a particular supermarket got reduced cost petrol from a particular supplier if they had purchased groceries of a specified value. I’m sure this is familiar to all and sundry (our house abounds in vouchers for cut-price petrol from various outlets).

I think it’s awesome that the Court used Seinfeld to illustrate its point.

Now my only wish is that a court use the episode from Treehouse of Horror IV  to illustrate the concept of nemo dat quod non habet (you cannot give what you do not have). In a portion of this episode, Ned Flanders appears as the devil and tempts Homer with a donut in exchange for his soul. Homer, of course, accepts the offer and signs the contract. He cannot resist eating all of the donut, and the devil appears to claim his soul. However, Marge and Lisa are able to show that Homer could not give his soul to the devil because he had already given his soul to Marge on their wedding day (Marge produces a signed photo as evidence of this). Accordingly, the devil cannot take Homer’s soul, but turns his head into a huge donut… There you have it: nemo dat quod non habet in a nutshell.

Well, I’m a property lawyer, of course my wishes are nerdy.

(Via Core Economics)

The law weighs in on the side of gingers

I was commenting to a learned friend and colleague that the posts which receive the highest hits on this blog are the ones which deal with discrimination towards red heads. The comment threads on the posts reveal that there’s a lot of proud gingers, and a lot of insane people with a prejudice against red hair. My colleague told me that discrimination against those with red hair is in fact enshrined in the law as the epitome of unreasonable exercise of executive power.

Any lawyer who has studied administrative law knows of the concept of Wednesbury unreasonableness, where a decision of an administrative power can only be overturned by a Court if it is “[s]o outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.” (Council of Civil Service Unions v Minister for the Civil Service (the GCHQ case) [1985] AC 374, 410 per Lord Diplock).

In Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223, a cinema challenged the exercise of discretion by the Wednesbury Corporation to grant a licence for the operation of a cinema with the condition that no children under 15 were admitted on Sundays. The Court said the decision of the Corporation could only be challenged if it had been shown that it had taken into account matters which should not have been taken into account, or failed to take into account matters which should have been taken into account, or made a decision so unreasonable that no reasonable authority could have made it. The cinema failed to make out any of these bases.

In explaining what kind of a decision represented an unreasonable one, Lord Greene MR said:

It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word “unreasonable” in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting “unreasonably.” Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L.J. in Short v. Poole Corporation [1926] Ch. 66, 90, 91 gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.

{emphasis added}

So, all you anti-gingers out there are guilty of Wednesbury unreasonableness – a decision so unreasonable that no reasonable person could take it. No lesser authority than the English Court of Appeal tells you so. (Hmm…I wonder if Lord Greene had red hair?)

Why, oh why? Juries and the reasons for their decisions

It’s easy to be an armchair judge or jury member. I must admit that I was surprised when I read that Thomas Towle was found not guilty of six counts of culpable driving causing death. Instead, the jurors found him guilty of dangerous driving causing death, which is a lesser offence carrying a lesser sentence.

In 2006, the car Towle was driving spun out of control and crashed into a group of teenagers walking home from a party, killing 6 of them and seriously injuring 4 others. After the accident, he fled the scene, leaving his four year old son and ten year old daughter in the car. The parents of the dead teenagers have been outraged and distressed by the lesser conviction, particularly after it emerged that Towle had prior driving offences about which the jury had not been told. Of course, the reports that Towle’s father blames the “sinful” teenagers rather than his son for the accident will distress the parents even further.

But I also know from my own days in practice that it’s very different sitting through an entire case than it is reading a newspaper report. Indeed, the Victorian Setencing Advisory Committee prepared a report on public perceptions of sentencing which established exactly that. In the executive summary to the report it is stated that:

• In the abstract, the public thinks that sentences are too lenient
• In the abstract, people tend to think about violent and repeat offenders when reporting that sentencing is too lenient
• People have very little accurate knowledge of crime and the criminal justice system
• The mass media is the primary source of information on crime and justice issues
• When people are given more information, their levels of punitiveness drop dramatically
• People with previous experiences of crime victimisation are no more punitive than the general community
• People with high levels of fear of crime are more likely to be punitive
• Despite apparent punitiveness, the public favours increasing the use of alternatives to imprisonment
• Despite apparent punitiveness, the public believes that the most effective way to control crime is via programs such as education and parental support, rather than via criminal justice interventions
• Despite apparent punitiveness, public sentencing preferences are actually very similar to those expressed by the judiciary or actually used by the courts
• Despite apparent punitiveness, the public favours rehabilitation over punishment as the primary purpose of sentencing for young offenders, first-time offenders and property offenders
• Despite apparent punitiveness, public support for imprisonment declines when the offender makes restorative gesture

{emphasis added}

The report is well worth reading in full if you have a moment. Essentially, the only criminal cases about which we are told in the media are the “juicy” and shocking ones, where the result is newsworthy and sensational. Of course, media outlets like to focus on outraged victims and/or their families in these cases. Further, we only know a small proportion of the facts that come before a judge and jury, and studies have shown that when people are given more facts, their views of an appropriate response change. So I’m wary of claims that sentencing is “too lenient”. In individual cases, mistakes happen, but it is not an across-the-board phenomenon.

Back to the Towle case. The four principal charges against Towle were:

• Six counts of culpable driving causing death;
• Four counts of negligently causing serious injury;
• Six counts of dangerous driving causing death;
• Four counts of dangerous driving causing serious injury.

There were other charges, but I won’t mention them here. The first two were the more serious charges, with culpable driving carrying a penalty of up to 20 years in gaol. The second two were the alternative lesser charges, with dangerous driving carrying a penalty of up to 5 years in gaol. In order to prove that Towle was guilty of culpable driving, the prosecution had to prove that Towle was “grossly” negligent, whereas for the lesser charge of dangerous driving, the prosecution merely had to prove that Towle was negligent. In judging whether Towle’s driving was grossly negligent, or merely negligent, the jury could not be swayed by the horrific consequences of the accident or Towle’s cowardly actions afterwards. The question was to what degree the driving up to the accident was negligent?

I can’t answer that question. I don’t know all the information which the jury received. It is clear that he was speeding, with his son sitting on his lap, but I don’t know what the expert evidence was.

We also don’t know what the sentence will be yet. Justice Cummins will consider that question on Monday. However, in that context, I thought I might look at another report by the Victorian Sentencing Advisory Committee, which provides a “snapshot” of sentences for culpable driving causing death. It was interesting to note that the most common sentence of imprisonment for the more serious offence of culpable driving was four years with a non-parole period of two years. The median principal imprisonment level was 5 years. So even if Towle had been convicted of the more serious offence, according to the law of averages, he may still have been facing a sentence of around 5 years. It will be interesting to see what the sentence is. I suspect it will be at the higher end for dangerous driving, but I can’t say for sure.

The other question which has been raised in the light of this case is whether juries should explain their verdicts. Dr Mirko Bagaric and Colin Lovitt QC presented opposing points of view in The Herald Sun today. Presently, juries are not allowed to explain their verdicts to the press or anyone else. This is in contrast to the US, where juries can give interviews to the press explaining why they decided as they did. Sometimes this creates an unpleasant media circus where jury members are hounded by the press.

I think I sit somewhere between Bagaric and Lovitt. I think it’s important for juries to give an idea of why they decided as they did to maintain public confidence in the criminal justice system. As I’ve noted above, the more facts people know about a decision, the more likely they are to find it acceptable. But I think it is really important that individual jury members not be interviewed or identified by the press, and they certainly should not be hounded. I would favour an agreed written statement of reasons produced by the jury, to accompany the handing down of a verdict. Of course, the problem with this is that it may lead to more appeals in criminal cases if a potential flaw is found in the jury’s reasoning. But then, as Bagaric says, isn’t it fairer that we redress flaws than leave them hidden? And I think it’s always better to know than to be left in the dark. It may be that the jury had perfectly explicable reasons for deciding as they did in this case, and I think they should be allowed to give a statement justifying their decision.

Through the looking glass darkly?

After the rather serious and contentious nature of my previous post, I thought I might move to less serious material (hat tip to Dave Bath for sharing this with me).

Comparative Law Blog notes that Lewis Carroll’s books Alice in Wonderland and Through the Looking Glass are the most widely quoted children’s books in judgments. I loved those books when I was little.

The passage which is most cited in judicial statements is an interchange between Alice and Humpty Dumpty. Humpty tries to convince Alice that “un-birthdays” are better than birthdays because there is only one birthday, but 364 “un-birthdays” in a year.

‘…As I was saying, that seems to be done right—though I haven’t time to look it over thoroughly just now—and that shows that there are three hundred and sixty-four days when you might get un-birthday presents—’

‘Certainly,’ said Alice.

‘And only one for birthday presents, you know. There’s glory for you!’

‘I don’t know what you mean by “glory,”’ Alice said.

Humpty Dumpty smiled contemptuously. ‘Of course you don’t— till I tell you. I meant “there’s a nice knock-down argument for you!”’

‘But “glory” doesn’t mean “a nice knock-down argument,”’ Alice objected.

‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean—neither more nor less.’

‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’

‘The question is,’ said Humpty Dumpty, ‘which is to be master— that’s all.’

The last three sentences are cited in those cases where a party is trying to argue that it can unilaterally determine the meaning of a word which has multiple meanings. As the Comparative Law Blogger says, this is problematic because:

…the speaker gets to unilaterally determine the meaning of his words precludes all form of communication when applied to ordinary life, but leads to absolute power when applied to legal commands. It is not mere retroactivity, therefore, that is objectionable; it is the absolute power that comes with being both legislator and judge.

The problem is that someone who is supposed to follow the law does not know what the law is (until the other side tells them they have breached it). This quote was famously used by Lord Atkin in dissent in Liversedge v Anderson [1941] UKHL 1; (1942) AC 206, and has subsequently been used in Australian cases, including:

• Anteden Pty Ltd v Glen Eira City Council [2000] VSC 366 at [30];
• Klason v Australian Capital Territory [2003] ACTSC 104 at [88] (in which the delightful neologism “Humptyspeak” is also coined in para [89]);
• Opal Group Holdings (Aust) Pty Ltd v Franklins Ltd [2002] NSWCA 196 at [41];
• Re Franklin Mint Pty Ltd v Commissioner of Taxation [1993] FCA 28 at [44];
• Minister for Immigration v Yusuf [2001] HCA 30 at [112] – [113];
• Gary Ian Smoker v The Pharmacy Restructuring Authority [1994] FCA 1487 at [7];
• Re Slavko Nikac; Rifat Hassan Gogebakan and Alexander Sorenson v Minister for Immigration [1988] FCA 400 at [41]
• Austral Constructions Pty Ltd; Re Austral Construction Pty Ltd Certified Agreement 2003 PR941051 [2003] AIRC 1467 at [1]; and
• Coomera Land Development Corporation Pty Ltd v Urban Land Development Pty Ltd [2006] QDC 365 at [1].

However, Humpty is not the only Carroll character to have featured in judgments.

The Cheshire Cat has also featured in an New South Wales Supreme Court judgment, Jennings v Credit Corp Australia Pty Ltd [2000] NSWSC 210 at [40]:

 I would prefer to test the matter by analysing the nature of the defect in the Respondent’s Statement of Liquidated Claim and then determining its consequences for the status of that claim in the context of the relevant rules as applicable to a Local Court dealing with a civil claim. It is only by so doing that one can answer the question whether, in the events that happened, “an action is brought on the cause of action” within the meaning of s63(2) of the Limitation Act 1969 (NSW), so as to be protected from extinguishment as statute barred. The analysis therefore requires consideration of the status of the equitable assignee’s writ or claim. This is in circumstances where the debtor had not at any time moved to set the writ aside or stay the action, such that it might be said to be voidable but not void, as in the case of judicial review setting aside a determination for breach of rules of natural justice. In that analogous context, courts now generally favour a “relative” concept of invalidity. This allows courts to hold that a decision is “void ab initio”, as if it had never been made, but only once a competent court declares that it was so made in breach of rules of natural justice. But even after avoidance the cases confirm that such a decision has practical and even legal effect, like the smile on the cheshire cat, lingering after the cat has vanished. See Lewis Carroll: Alice’s Adventures in Wonderland Ch 6: “I’ve often seen a cat without a grin”, says Alice. “But a grin without a cat, that’s the most curious thing I’ve ever seen in all my life.”; see Aronson & Dyer “Judicial Review of Administrative Action” (LBC, 1996) at 485 and for a good example of such judicial treatment Forbes v Trotting Club (NSW) [1979] HCA 27; (1979) 143 CLR 242 at 277. The present case is stronger; there never was any setting aside nor even an application to do so on this ground before the legal estate was got in. There was simply resistance to the Plaintiff’s substitution application when made after the legal estate was acquired and after a further assignment.

There is a reference to the Walrus and the Carpenter in Re Richard Bateman and Georgina Gay Bateman v Barbara Jean Slayter [1987] FCA 58 at [18]:

Having regard to these matters, as well as to the matters I have already discussed in relation to the cash flow projections, I am satisfied that the directors had no basis for the assertion that there was no risk of loss or the prediction that all loans obtained to set up the business would be repaid within one year or, if the statement that the concept was proven be regarded as merely a matter of opinion, for the assertion of such an opinion. I am satisfied that all three of them must have known the situation. What had been “proven” was that the concept of franchising was capable of returning large sums to the franchisor. In the circumstances, to invite persons to join the company as franchisees upon the basis that they would get the benefit of a proven concept was akin to the invitation to join in a treat which the Walrus and the Carpenter extended to the oysters in Through the Looking Glass.

The Hunting of the Snark has featured in a Queensland judgment, R v Robinson [1998] QCA 50:

It is well known that lay people often wrongly conclude that because a person has repeatedly said that something has occurred, therefore it must for that reason be true. They are often inclined to the view that mere assertion, particularly if repeated, necessarily means that what is asserted is true. Lewis Carroll ‘s statement in Hunting of the Snark that “What I tell you 3 times is true”, is quite incorrect. Merely saying something does not necessarily make it so. There are several references to statements made by the complainant in ex.1 and in his oral evidence. The first was in 1994 to his 18 year old neighbour. Then there was the statement to his mother and his further reference of statements made to his mother, father, grandmother and various other persons above referred to.

The Snark also gets a guernsey in Uniquema Pty Ltd v Commissioner of State Revenue [2002] VSC 157 at [3]: ‘Goodwill can be an elusive concept and as difficult to hunt as a snark.’

The poem Jabberwocky gets a reference in Re Johnson & Johnson Australia Pty Ltd v Sterling Pharmaceuticals Pty Ltd [1991] FCA 310 at paras [8] – [9] of the judgment of Burchett J, where the nature of the word “caplet” is considered:

Not every word is a blank disc upon which any recognizable significance can only be moulded by usage; some words have a currency from the moment they are minted, bearing a perceptible, even if previously unfamiliar image. A brilliant example of sustained use of new-coined words to convey an imprecise, but yet vivid, descriptive meaning is to be found in Lewis Carroll’s Through the Looking Glass:

“‘Twas brillig, and the slithy toves
Did gyre and gimble in the wabe:
All mimsy were the borogoves,
And the mome raths outgrabe.”

“Caplets” is not only more prosaic than this; it conveys, at any rate in the context of the illustrations upon the packet and the actual articles within it, not to say the accompanying repetition in ordinary language, a plain and direct meaning. No one looking at the packet could doubt that the product was sold under the name Tylenol, that the company concerned in its sale was Johnson and Johnson, and that it had been made up in the form of the stated number of caplets. If a person, who had not seen the product before, had any doubt about the exact form of the drug which was a caplet, that doubt could not have survived the briefest examination of the packet and its contents.

Even the Queen of Hearts gets a mention in South Australia v O’Shea [1987] HCA 39 at [10]:

… It was said, on behalf of the State, that the diverse considerations which might have influenced different members of Cabinet “are not the sorts of matters on which one would expect a person to have a right to be heard simply because the right to be heard on matters like that is, with respect, a somewhat empty right”. To echo the rhetoric of Lord Atkin in Liversidge v Anderson (at p 245), I know of only one authority which supports such an approach to the right to be heard in relation to matters founding an effective decision that indefinite incarceration should be imposed or continued otherwise than as punishment for a specific proven offence. “‘No, no,’ said the Queen. ‘Sentence first – verdict afterwards'” (Alice in Wonderland, ch.xii). I reject that approach. 

I wonder what Carroll would have thought if he had know his works would have been so popular with judges? Probably it’s best that some quotes aren’t used, I think I’d get worried if a judge started quoting the Queen’s shout: Off with her head!

How the mighty may fall

I’ve never received a speeding ticket. Indeed, until this year, I was such a goody-two-shoes that I had never even received a parking fine, but the exigencies of working, mothering and studying forced me to take parking risks that I would never have previously taken, and I have received 2 parking fines in 2007. It’s depressing when you get the fine. But I paid each off immediately, so that the slate was wiped clean and I didn’t have to think about it any more. Better to get rid of it immediately.

Hence, I have been following the allegations against former judge Marcus Einfeld with interest. Put shortly, the allegations are that in order to get out of paying a speeding fine, he falsely swore statutory declarations that he was not driving his car at the time. The speeding offence was alleged to have occurred on 8 January 2006. He nominated one Teresa Brennan, a US law professor, as the driver of the car, but she had died in January 2003 in a car accident. Clearly she could not have been driving the car at the time.

I understand that he is an intelligent man and was a very good judge. If the allegations are found to be correct, I cannot quite understand how someone who seems to have done so much good as a judge and as an advocate of human rights law could get into such a mess. The prosecution case is that Mr Einfeld was concerned that he might lose his licence as a result: but surely that’s better than being convicted of perjury. Even if he does not stand trial or is not convicted, his name has been tarnished by the allegations.

I tend to take a dim view of speeding because when I was 15, my younger sister was hit by a car when I was standing just behind her. If the driver had been driving 5km faster, she would have been dead. As it was, her leg was broken and she was concussed. That moment when she flew into the air and landed in a crumpled heap on the road still sticks with me today. I think that’s why I’ve never gotten a speeding fine.

The same law applies to all of us, and if we break the law, we should wear the consequences, no matter who we are. Isn’t that a fundamental principle of the rule of law? Perhaps it’s silly of me, but if the allegations against Mr Einfeld are established, I will feel rather cynical about his professed championship of human rights and the rule of law. To err is human: but on the other hand, you have to practice what you preach, even in small matters like speeding fines.

Update

Mr Einfeld has been committed to stand trial.

Supernatural suing

I was talking to a friend, and we both feel a bit sick of all the political jockeying in the news at the moment. So, let’s look at some different news.

1. Luis, Armand and Angel

I wrote a post about bizarre lawyers last year. One was Philipino judge Florentino V. Flores Jr, a trial judge who believed he was assisted by three elves, Luis, Armand and Angel. As this article in the Wall Street Journal explains, the story doesn’t end there. Apparently, belief in elves (or “duwende“) is common in the Philippines, and Mr Floro has become a cause celebre.

Mr. Floro has become a regular on Philippine television. Often he is asked to make predictions with the help of his invisible friends. “They say your show will be taken off the air if you don’t feature me more often,” was Mr. Floro’s reply to one interviewer.

The day after Mr. Floro’s first appearance on television last year, hundreds of people turned up at his house in a dusty Manila suburb hoping he could use his supernatural powers to heal their illnesses. Now Mr. Floro, who travels by bus, is regularly recognized on the street.

The Supreme Court says its medical clinic determined that Mr. Floro was suffering from psychosis. Even so, a series of disturbing incidents appear to have the nation’s top jurists rattled. According to local newspaper reports, a mysterious fire in January destroyed the Supreme Court’s crest in its session hall, and a number of members of the court and their close family members have developed serious illnesses or have fallen victim to car accidents.

Enough bizarre things have happened that in July, the Supreme Court issued an en banc resolution asking Mr. Floro to desist in his threats of “ungodly reprisal.” The Supreme Court’s spokesman declined to elaborate.

Apparently it’s all down to Luis, the “king of kings” and avenger elf, rather than Mr. Floro personally.

2. Take that, God!

When I was a little tacker, we had a series of crazy RE teachers whom I may have mentioned before. In any case, one of them told me God was omnipresent and omnipotent, and so I ran around the house with a pair of scissors, snipping them in the air, saying “I’m cutting God up into pieces!” Until my mother caught me.

I can’t help thinking that Ernie Chambers is indulging in the adult version of my childhood behaviour. He is a US Senator who has filed a suit against God.

Chambers says in his lawsuit that God has made terroristic threats against the senator and his constituents, inspired fear and caused “widespread death, destruction and terrorization of millions upon millions of the Earth’s inhabitants.”

The Omaha senator, who skips morning prayers during the legislative session and often criticizes Christians, also says God has caused “fearsome floods … horrendous hurricanes, terrifying tornadoes.”

He’s seeking a permanent injunction against the Almighty.

Chambers has a serious intent. He is trying to make a point about a suit filed by Tory Bowen. Bowen alleges that she was the victim of sexual assault and rape. You might recall her case from an earlier post, where I discussed the fact that the trial judge had banned the words “rape”, “sexual assault”, “victim” and “assailant” from the trial. Bowen is now suing that judge personally for violating her free speech rights. It appears that the Federal judge hearing that case has said that the action is potentially vexatious and does not disclose a cause of action.

Chambers wanted to make the point that you could file a legal suit against anyone (or indeed, any Higher Entity) for any kind of offence, and there’s not much anyone can do about it, even if the action is frivolous and vexatious.

(Via Law.com)

Update

Obviously I wasn’t the only one who noticed a strange halo-like phenomenon around Chambers’ head in the photo accompanying the AP article… Maybe God is trying to tell him something?

(Via Boing Boing)

More on choosing judges

Women are represented in the law as judges, barristers, solicitors, attorneys-general, law makers and court administrators. They identify an issue quickly, focus on it and persuade rather than dictate. Mostly, women who work in the law are goal oriented. They readily identify their litigation goal, their judgment goal.Women provide perspective. They search out the resolutions.Women have finely honed organisational skills (hence they make excellent juniors and instructors in litigation, sometimes of itself a distinct disadvantage).

Women are adaptive and flexible. They have identified the open and closed areas of legal practice. Thus, women have remained in the traditional fields of family law, conveyancing and criminal prosecution but expanded into relatively new areas, taxation and revenue law, planning and environmental law, administrative law, human rights law and indigenous land rights law. In so doing they have avoided the more adversarial, combative zones of commercial law and common law.

Women bring to the law a strong sense of method. This is borne out in the judgment writing of women in the superior courts…

(Extract from speech by Marilyn Warren, current Chief Justice of the Supreme Court of Victoria, on 15 May 2003 to Victorian Women Lawyers)

I’d like to explore my own ambivalence about the words of Chief Justice Warren above. Are women different to men? Do they bring different qualities to a role? Before I had male cousins, I would have said that women and men were the same, but I no longer believe this. In general, women and men do have different approaches to matters. That is not to say that either approach is better than the other. It is also not to say that all women are the same. Most people will have a mixture of “masculine” and “feminine” traits. For example, my husband will kill me for writing this, but I am better at reverse parking and spatial tasks than he is (typically thought to be a more masculine trait). Further I am far more adversarial than my husband. He does not like confrontation. I don’t like it either, but if I have to confront someone, I will. And there are women who are far more aggressive than any man, and far less caring. Think about someone like Maggie Thatcher – hardly a stereotypically “feminine” woman.

I guess I’m wary of gross generalisations, and the idea that women are somehow better than men. We aren’t better than men, sometimes we’re just different. But I do think that many women have a very valuable perspective to add to the judicial bench. With this in mind, I am considering the appointment of Justice Kiefel to the High Court of Australia.

Will Justice Kiefel bring a different perspective to the Court? I really hope so. I don’t care if it’s as a result of her gender or not. To me, the point for celebration is not that Her Honour is a woman, but that she shows some signs of having independent thought processes. The present High Court is so hidebound. I don’t know if this is some kind of pendulum effect – whether the Court is at pains to swing away from the perceived “activism” of the 80s and 90s. I think that this is mistaken. To try to keep the law static is as much activism as is attempting to change the law. It also has a political agenda behind it.

The whole point of being on the High Court is that the law is (within reason) what you say it is. You are not bound by precedent. A High Court should both explain what the law is and develop it if necessary. By contrast, recent judgments of the House of Lords in the last 10 years have been interesting and one gets the feeling that they actually have open minds. I find myself almost wishing that there was still an avenue of appeal to the Privy Council. {Zounds, can a republican like myself really be saying that? Shows how desperate times have become… Note for US readers: republican = anti-Queen-as-head-of-Australia in this context}

So, congratulations, Justice Kiefel. May you make a difference!

Attack of the clones

Sir Gerard Brennan (formerly Chief Justice of the High Court of Australia) has warned against allowing governments to appoint “judicial clones” who will just follow the government’s wishes. I do share Sir Gerard’s concern about the appointment of willing judges who will countenance any extension of the law. But I’m not sure how to resolve it.

Sir Gerard has suggested the institution of a more formal and transparent process, including a judicial selection committee. I’ve written about this issue before. I suspect that if the government wants a certain type of judge appointed, they can stack the judicial selection committee with appointees.

I am disappointed with the current High Court, though, speaking as a lawyer and academic who is passionate about property law, restitution and equity. Take, for example, the recent decision of Farah Constructions Pty Ltd v Saydee Pty Ltd [2007] HCA 22. I’ve never read such a profoundly negative and snarky judgment in my whole life. It doesn’t assist in outlining what the law is – it just says what it isn’t.

The whole judgment smacks of a personally motivated desire to smack those uppity restitution lawyers on the head and put them back in the box which they belong. I suspect Heydon J is behind it, given the nitpicking factual approach, and his Honour’s general attitude (expressed in the Introduction to Meagher Gummow and Lehane) that restitution lawyers represent “the enemy”. The Court of Appeal’s judgment preceding it erred in the other direction, with an overly enthusiastic embrace of restitution (finding restitutionary principles to be a basis for knowing receipt for breach of fiduciary duty, when the parties did not raise this argument or have a chance to respond to it). I think either approach is inappropriate. One cannot let one’s personal enthusiasms or dislikes for a particular area of law into a judgment. It’s not about point-scoring.

To my mind, it is important for judges to keep in mind that you are not fighting a personal battle championing a particular interpretation of the law, you are making a decision which will affect individuals involved in profound ways. Of course, one can’t divorce politics from the law, and indeed, as I have discussed earlier, it is intrinsic to the law. But one can try to minimise personal concerns and try to make the law conherent and fair. What does it matter whether a principle is restitutionary, equitable or based in the common law, as long as it works fairly and produces just and predictable outcomes? (Yes, I’m a fusion fallacist, and proud of it.)

Portrayal of accused and the law

Dave Bath at Balneus has an interesting post comparing the court sketches of Dr Haneef, noting that the sketches in the Murdoch press make Dr Haneef look somewhat like a Neanderthal.

Now it could just be a matter of personal interpretation. I must confess that when I worked in and around the court system, I used to occasionally do sketches of people (witnesses, barristers etc). Some sketches were better than others. Some people might have been a bit offended had they seen some of my renditions. Sometimes a sketch took on the character of a parody, even when I hadn’t intended it to do so. Perhaps that’s what happened to the Court artist.

But Dave makes another interesting point in a later post – is it legal to present a defendant in a way which is unflattering and may lead members of the public to draw adverse conclusions about that person?

This area of the law is called “contempt of court by publication”, and it is a somewhat byzantine jurisdiction. There is an inherent jurisdiction in the court, and also legislative provisions preventing contempt of court. Contempt by publication covers the publication of material which might tend to adversely influence a jury before trial. There is of course a balance between freedom of speech and the right of a defendant to a fair trial. The question is also how far media representations do actually influence jury members. According to the WA Law Reform Commission Report on Contempt, a study (M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity (2001)) found:

1. Jurors often believed that newspaper coverage of their trial was inaccurate and/or inadequate.

2. Juries were equally successful in identifying the relevant issues regardless of whether the publicity was negative or positive towards the accused. Also, the quantity of negative publicity did not seem to make a difference to the proportion of verdicts that were ‘safe’.

3. In trials where the evidence was equivocal [that is, not strong in favour of guilt or clearly insufficient]…there was greater reason to believe that publicity may have affected the verdict.

As a lawyer who has seen cases that she has worked on reported in the press, I would agree that you really can’t trust press reports, and that it is quite a different thing to sit in court and watch witnesses testifying to reading about it in the paper. Also, seeing someone in the flesh is very different to seeing them in a photograph or even on television. Personally, I discounted much of what I had read or seen in the press in favour of my own first-hand impressions. But I don’t know if I was influenced subconsciously in any way.

In fact, this is not the first time issues like these have arisen in a high profile case. My mind went back to the media coverage of that terrible event, the Port Arthur massacre, perpetrated by Martin Bryant. Some of the papers, including The Australian, ran a picture where the Bryant’s eyes had apparently been digitally altered in order to emphasise the whites of his eyes, which gave him a crazed look. The then Director of Public Prosecutions, Damian Bugg, issued writs against various media outlets for contempt of court in the light of concern that the sensationalised media reporting would prejudice the defendant’s chance of getting a fair trial (and thus make Mr Bugg’s job much harder).

However, the then chair of Australian Press Council, David Flint, argued that Australian newspapers regularly ignored contempt-of-court provisions, indicating that the law needed to change, rather than the newspapers.

Clearly it’s not a straightforward question. I will be very interested to see what Dr Haneef looks like in a photo, and whether the Murdoch press’ portrayal is fair or not.

Illiberalism

I was very surprised to read that US Judge Richard Posner advocates secret trials for terrorists. Obviously, attendees at the Australian Bar Association were surprised too. I don’t agree with Posner’s view: it is vital that trials take place in public, with due process. I had always thought Posner was a libertarian at heart. He is, of course, the doyen of the Law and Economics field.

As I have said before, I once briefly dated a guy who was a libertarian with a law and economics bent. As I argued back then, the problem I have with law and economics is that it presumes people are rational and will act in ways which are self-interested. I think human beings are much more complicated than that. We don’t always behave in rational ways. If we did, society would be much easier to fix, but life would be much more boring.

Funnily enough, that guy later got into New Age stuff…thus proving my point. I believe he does work with crystals (or something like that) these days. On the odd occasions I see him (about once a year), I’m tempted to question him on how he reconciles his ultra-rational past with his ultra-irrational present, but in the end, meh, live and let live.