‘DPP refuses to provide lawyers’ (SMH, 30 July 2009)

Troubles have been brewing in the judicial circle between Nicholas Cowdrey QC and the judiciary, and it has everything to do with funding.

‘DPP refuses to provide lawyers‘ (SMH, 30 July 2009)

In a nutshell, the Director of Public Prosecutors have refused to provide prosecutors in some recent criminal trials, in protest over the lack of public funding for public prosecutions.

Mr Cowdery opened a new front in the battle between the state’s courts, prosecutors and Government when he refused to provide prosecutors to a Hunter Valley court for four trials next week. He threatened to do the same elsewhere in NSW if funding to his office was not increased.

‘‘It was a drastic step but it should have come as no surprise to the State Government,’’ Mr Cowdery wrote in the Newcastle Herald on Tuesday.

‘‘The Government commonly responds to these crises by shooting the messenger, in this case, me … Anything to take attention away from the truth: which is that it has not accorded high enough priority in its spending to this essential function of government.

‘‘The problem is simply not having enough people [because there is not enough money] to send to the courts where cases are listed. That is not a difficult concept to grasp.

‘‘This is not a Newcastle or Hunter problem, it is statewide. It has started in the Hunter … unless something is done, it will spread.’’

Put simply, this basically amounts ot limited industrial actions by the public prosecutors.  However, there are possible legal percussions, as Judge Coolahan angrily pointed out, this course of action comes close to ‘perverting the course of justice’.

‘Judge raises ‘technical rape’ problem’ (SMH, 24 July 2009)

This is an interesting case on the technical difficulties associated with the definition of ‘rape’.

‘Judge raises ‘technical rape’ problem‘ (SMH, 24 July 2009)

The criminal case in Tasmania involves a defendant by the name of Arvind Prasad, 36, who was accused of carnal knowledge of a girl without consent.  The girl also happened to be under 17 and had Prasad not been charged with rape, he could have been charged with statutory rape.  The facts of the case, however, are not straightforward.

Prasad and his victim, who had been close friends for about a year, were drunk when she was staying overnight in separate rooms at his Launceston home.

However, it was not a sexual relationship, Justice Crawford said.

Some time after attending to her about midnight when she was sick from drinking, Prasad got into bed with his victim, waking her but she made no objection, pretending to be asleep, he said.

It was then he used his fingers a couple of times, committing the crime of aggravated sexual assault.

Justice Crawford said, in the law’s eyes, Prasad did not have consent to do that.

He then had intercourse briefly with her before changing positions to continue having sex with her.

“Once again, the girl made no objection but continued to pretend to be asleep,” Justice Crawford said.

Justice Crawford said that legally a person does not consent to an act unless they say or do something to communicate consent.

Shortly after, Prasad rolled her onto her back and got on top of her.

This time, she made it clear that she was not consenting by striking him in the face and saying: “Don’t”.

He stopped what he was doing and got off her, Justice Crawford said.

Prasad and his victim, who had been close friends for about a year, were drunk when she was staying overnight in separate rooms at his Launceston home.

However, it was not a sexual relationship, Justice Crawford said.

Some time after attending to her about midnight when she was sick from drinking, Prasad got into bed with his victim, waking her but she made no objection, pretending to be asleep, he said.

It was then he used his fingers a couple of times, committing the crime of aggravated sexual assault.

Justice Crawford said, in the law’s eyes, Prasad did not have consent to do that.

He then had intercourse briefly with her before changing positions to continue having sex with her.

“Once again, the girl made no objection but continued to pretend to be asleep,” Justice Crawford said.

Justice Crawford said that legally a person does not consent to an act unless they say or do something to communicate consent.

Shortly after, Prasad rolled her onto her back and got on top of her.

This time, she made it clear that she was not consenting by striking him in the face and saying: “Don’t”.

He stopped what he was doing and got off her, Justice Crawford said.

In other words, while Prasad was engaging in sexual acts with the victim, he did not receive any indication that the victim was objecting to his sexual advances.  However, according to Chief Justice Evan Crawford, this did not constitute ‘consent’.  Hence, in the eyes of the law, he committed rape.  However, Crawford CJ did admit to difficulties in deciding sentencing, due to the circumstances of the case.

“I find the sentencing task a difficult one because of circumstances that are unusual so far as the issue of consent is concerned.”

Justice Crawford noted that had the victim objected to the two illegal acts that led to a definite rebuff, that was observed, then the man would not have committed those crimes.

“He will be sentenced on the basis that if she had indicated earlier that she objected to what he was doing, he would not have committed either crime,” Justice Crawford said in his judgment.

“Nevertheless, he will also be sentenced on the basis that she did nothing to indicate she was consenting and that he was aware, or if not, he ought to have been, that she appeared to be asleep when he got into bed with her and took off her clothes.“

The article also makes brief mention of a similar case in South Australia, in which the defendant, Matthew Sloan, 29, continued to engage in sexual activities with a drunk woman who gave consent prior to passing out.  The defendant is convicted of ‘technical rape’, but the judge is yet to deliver sentence.

Do religions have rights? ‘Ireland bucks trend with anti-blasphemy law’ (The Register, 8 May 2009)

There have much criticisms at the Human Rights Council in recent weeks for their passing of a resolution that condemns attacks on religions as a human rights violations.  Most of the countries that passed the resolution in the Human Rights Council were Muslim countries, who sees this as a way of combatting ‘Islamophobia’.  Many human rights non-government organisations however have labelled this as an attack on ‘freedom of expressions’.

Ironically, one country that might find itself supporting this resolution is the Republic of Ireland.   ‘Ireland bucks trend with anti-blasphemy law’ (The Register, 8 May 2009) The particular person responsible for this rather problematic law is the Irish Minister of Justice.  The proposed law hits prospective blasphemers in the pocket.

“A person who publishes or utters blasphemous matter shall be guilty of an offence and shall be liable upon conviction on indictment to a fine not exceeding €100,000.”

What does it mean to “blaspheme”?  According to the proposed legislation, a blasphemous act is one that is

grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion; and he or she intends, by the publication of the matter concerned, to cause such outrage.

Does that mean that atheists cannot criticise or satirize religions in Ireland?  How about comedians who want to satirize religions in comedy clubs.   Certainly this appears to be the case.  The proposed legislaton arose out of a 1999 case in which a Dublin newspaper was prosecuted for a satirical article attacking religions, thereby violating a clause in the Irish constitution that

“the publication or utterance of blasphemous, seditious, or indecent material is an offence which shall be punishable in accordance with law.”

However no such law actually existed.  (See explanation on Corway v Independent Newspapers (1999) Irish Supreme Court.)  Therefore the judge had to dismiss the case.  This raised the attention of the Oireachtas Committee on the Constitution.  However, rather fixing it by removing the arguably outdated clause in the constitution, they decided to make it legally enforceable.

This raises a legal and philosophical question.  Do religions even have ‘human rights’?

‘Muslim waitress wins payout over ‘figure-hugging’ dress’ (SMH, 16 June 2009)

This is an interesting lawsuit, even though it is not an Australian case.  As an anti-discrimination lawsuit, it falls under British common law, which often influences judges’ decisions in Australia.

A Muslim cocktail waitress has won a 3000 pound ($6090) compensation payout for having to wear a figure-hugging red dress she said made her feel “like a prostitute”.

A Muslim waitress in Britain, Fata Lemes, 33, has been asked to wear a summer uniform while the male staff have not been asked to do.  The summer uniform was ‘figure-hugging’ which the tribunal has judged as ‘gender-specific’.  The tribunal found in her favour.

“The respondents did not introduce a summer uniform for male waiting staff. Unlike the women, the men were not required to switch to brightly coloured, figure-hugging garb.”

Forcing her to wear the dress if she wanted to continue working at the bar “violated her dignity”, the panel decided, and created a “humiliating” environment.

The panel found: “Her perception was that wearing the dress would make her feel as if she was on show, as if she was being presented as one of the attractions which the Rocket Bar was offering its customers.

“In our view that perception was legitimate and not unreasonable. We are reinforced in this conclusion by the striking contrast between the dress and the dark, loose-fitting attire which would remain the men’s uniform.”

“The respondents did not introduce a summer uniform for male waiting staff. Unlike the women, the men were not required to switch to brightly coloured, figure-hugging garb.”

Forcing her to wear the dress if she wanted to continue working at the bar “violated her dignity”, the panel decided, and created a “humiliating” environment.

The panel found: “Her perception was that wearing the dress would make her feel as if she was on show, as if she was being presented as one of the attractions which the Rocket Bar was offering its customers.

“In our view that perception was legitimate and not unreasonable. We are reinforced in this conclusion by the striking contrast between the dress and the dark, loose-fitting attire which would remain the men’s uniform.”

‘Wife could be free by 2011 after chopping up husband’ (SMH, 27 June 2009)

This is a peculiar case and one wonders if justice has been sacrificed in the interests of due process.

‘Wife could be free by 2011 after chopping up husband’ (SMH, 27 June 2009)

A WOMAN who admitted to shooting her husband and chopping up his body might be out of jail by the end of 2011 after pleading guilty to manslaughter.

Joyce Chant, 57, was originally charged with murder, but after a jury was unable to reach a verdict earlier this year she admitted to killing her husband after he produced a gun during an argument in their violent marriage.

Chant said that she felt threatened by Wayne Chant and lost control, shooting him dead and dismembering his body. Justice Roderick Howie sentenced Chant to a minimum of three years and five months’ jail for manslaughter and 10 months for interfering with human remains. But he said he did not believe her latest version of events and would have sentenced her on different facts if a jury had found her guilty. However, he was bound to accept the facts which had been agreed by the Crown when it chose to accept her guilty plea, and sentenced her accordingly.

“She is in my opinion capable of … attempting to manipulate the court,” Justice Howie said. “I do not believe she is in the slightest way remorseful for the death of her husband.”

A WOMAN who admitted to shooting her husband and chopping up his body might be out of jail by the end of 2011 after pleading guilty to manslaughter.

Joyce Chant, 57, was originally charged with murder, but after a jury was unable to reach a verdict earlier this year she admitted to killing her husband after he produced a gun during an argument in their violent marriage.

Chant said that she felt threatened by Wayne Chant and lost control, shooting him dead and dismembering his body. Justice Roderick Howie sentenced Chant to a minimum of three years and five months’ jail for manslaughter and 10 months for interfering with human remains. But he said he did not believe her latest version of events and would have sentenced her on different facts if a jury had found her guilty. However, he was bound to accept the facts which had been agreed by the Crown when it chose to accept her guilty plea, and sentenced her accordingly.

“She is in my opinion capable of … attempting to manipulate the court,” Justice Howie said. “I do not believe she is in the slightest way remorseful for the death of her husband.”

How is it possible that a woman can be convicted of manslaughter when she proceeded to dismember her husband’s body after she shot him?  How can there be a lack of criminal intention?  Understandably, the judge expressed strong doubts about the integrity of the defendant.  However, he was bounded to accept the decision reached between the Crown prosecution and defence legal team.

A legal ‘what could have been’.

‘Soaring jail rates justify change of tactics: report’ (SMH, 25 June 2009)

It is a tragic but well-known fact that Aboriginal people are over-represented in the prison population.  This is despite numerous governmental reports done on this problem, including the Royal Commission into Aboriginal Deaths in Custody (1987-1991).  In unravelling this tragedy, causes and effects are often confused.  What is certain is that this problem is causing multiple problems for social well-being of the Aboriginal community.

Some statistics from this article, ‘Soaring jail rates justify change of tactics: report’ (SMH, 25 June 2009), illustrates the problems.

Eighteen years after the Royal Commission, the number of indigenous women in prisons has more than tripled to make up one-third of all inmates, and more than half of the 10 to 17-year-olds in juvenile detention are indigenous.

Eighty-three per cent of the Northern Territory’s inmates are indigenous, and in Western Australia it is 41 per cent. NSW, with 20 per cent, has the fourth highest proportion.

Eighteen years after the Royal Commission, the number of indigenous women in prisons has more than tripled to make up one-third of all inmates, and more than half of the 10 to 17-year-olds in juvenile detention are indigenous.

Eighty-three per cent of the Northern Territory’s inmates are indigenous, and in Western Australia it is 41 per cent. NSW, with 20 per cent, has the fourth highest proportion.

Clearly the current policy, whatever it maybe, is failing.  Radical rethinking is needed.  That is the focus of the newly released report, ‘Bridges And Barriers: Addressing Indigenous Incarceration And Health‘, published by the Australian National Council on Drugs.

The committee’s chairman, Associate Professor Ted Wilkes, said governments persisted with ineffective law and order policies in pursuit of votes and ignored the remnants of structural racism in Australia’s justice systems.

“It’s time to step back … and ask what all this [incarceration] is going to mean for indigenous people,” he said.

The report recommends an education support fund for every young indigenous person, a relaxation of the eligibility criteria for treatment and indigenous-specific diversion programs.

It also calls for a national network of indigenous youth wellbeing centres, a drug and alcohol campaign directed at indigenous youth and a network of residential rehabilitation centres.

In a nutshell, the current law-and-order approach is failing the Aboriginal (and non-Aboriginal) community, and one should reinvest in strategies that focuses on rehabilitation and long-term crime prevention.

‘$200m heiress wins pre-nup case’ (SMH, 3 July 2009)

This case highlights the increasing legal legitimacy of pre-nuptial agreement in the eyes of common law.

‘$200m heiress wins pre-nup case‘ (SMH, 3 July 2009)

The case involves one of Germany’s wealthiest woman, Karin Radmacher.  Before her subsequentlly failed marriage to Nicolas Granatino, they signed a pre-nuptial agreement in which they both agreed that in the event of a marriage breakup, they would not try to claim each other’s assets.  The marriage was conducted in London, so it came under English common law, which can still have residual influence on judge’s decisions in other common law jurisdictions like Australia.

Unfortunately for both, the marriage failed.  Granatino decided to test the legal validity of the pre-nuptial agreement and attempted to claim part of Karin Radmacher’s considerable assets.  At the first court hearing, Granatino was successful in challenging the legal validity of the pre-nuptial agreement.

A court last year awarded Frenchman Granatino 5.6 million pounds ($11.39 million) of her 100 million pound ($A203.5 million) fortune after they divorced in 2006 despite the agreement.

At the heart of Granatino’s legal agreement is that the landscape of the marriage has changed ever since the arrival of their children, therefore the pre-nuptial agreement should be set aside.  However, Radmacher successfully challenged the decision in the Court of Appeal.

Radmacher asked the Court of Appeal to overturn the ruling on the basis of the agreement, which was recognised in France and Germany but had not been legally binding in Britain.

In backing the pre-nuptial agreement on Thursday, Lord Justice Matthew Thorpe, one of three judges hearing the case, said courts should give “due weight” to such agreements when deciding future cases about dividing assets.

He said he believed it had become “increasingly unrealistic” to regard such contracts as void.

Radmacher asked the Court of Appeal to overturn the ruling on the basis of the agreement, which was recognised in France and Germany but had not been legally binding in Britain.

In backing the pre-nuptial agreement on Thursday, Lord Justice Matthew Thorpe, one of three judges hearing the case, said courts should give “due weight” to such agreements when deciding future cases about dividing assets.

He said he believed it had become “increasingly unrealistic” to regard such contracts as void.

This case has set a legal milestone in English legal history, and will have interesting ramification on other common law jurisdictions, such as Australia.