Survivor Fraud

Serial scammer Samantha Azzopardi - out of custody in Victoria - has been arrested in Sydney after yet another instance of seeking support from a philanthropic or official body on the basis that she is a distraught victimised teenager rather than a 34 year old with a history of impersonation in Australia and overseas.

Azzopardi - who has used names such as Dakota Johnson, Emily Peet, Lindsay Coughlin, Georgia McAuliffe, Harper Hernandez, Samantha Azzapadari and Harper Hart - was last year sentenced in a Victorian court to time in prison, having faked qualifications for employment as a live-in nanny and then taking away two small children. 

In previous incidents - some of which are noted here, here and here - she pretended to be a child or teenager who was a member of a Swedish royal family, a Russian gymnast whose family died in a murder-suicide, and a young victim of human trafficking.

During her time as a nanny in Victoria she dressed in school uniform, visited a nearby counselling service and presented herself as a pregnant teenager. When was arrested she refused to provide her identity information or the children’s names, gave cryptic responses and locked her phone to prevent access. 

In 2013 she appeared in Dublin, appearing distressed and refusing to speak but indicating through hand signals that she was 14. A large-scale search followed, involving police, child welfare experts, missing persons services, Interpol, a forensic science laboratory, the immigration bureau, the domestic violence and sexual assault unit. The deception was ultimately detected and she was returned to Australia, escorted by police. 

 The incident attracted global media attention. US author Maria Konnikova wrote that the supposed victim of abuse 

 seemed dazed and distressed as she wandered down O’Connell Street, looking around timidly, a helpless-seeming terror in her eyes. … She was dressed in a purple hoodie under a gray wool sweater; tight, darkly colored jeans; and flat, black shoes. Her face was ashen. She was shivering. A passerby, stunned by her appearance, asked if she needed help. She looked at him mutely, as if not quite grasping the essence of the question. Somebody called the police. … 

She was a teen-ager—fourteen or fifteen, at most. At five feet six, she weighed just more than eighty-eight pounds. Her long, blond hair covered a spiny, battered back. Once she did talk, some days later, it became clear that she had only the most rudimentary grasp of English—not enough to say who she was or why she’d appeared as she had. But the girl could draw. And what she drew made her new guardians catch their breaths. One stifled a gasp. One burst out crying. There she was, a small stick-like figure, being flown to Ireland on a plane. And there she was again, lying on a bed, surrounded by multiple men. She seemed to be a victim of human trafficking—one of the lucky ones who had somehow managed to escape. 

Three weeks later, the girl still wasn’t talking—or, at least, nothing she said made much sense. The state was throwing everything it had at getting her help. Who was she? Where was she from? Into early November, the Irish authorities poured more than two thousand man- hours into a hundred and fifteen possible lines of inquiry. Door-to-door queries. Reviews of CCTV footage. Missing-persons lists. Visits to airports, seaports, rail stations. Guesthouse bookings. Did anyone fail to turn up, or fail to return? It was costing a pretty penny—two hundred and fifty thousand euros— but every cent was worth it if it brought them closer to helping a child regain her lost home and her fragile sanity. 

 A year later she appeared in Calgary, Canada, claiming she was a 14 year victim of abuse named Aurora Hepburn, who had escaped a kidnapper. After extensive investigation she was convicted on a mischief charge for misleading Calgary police. She was deported with a police escort on the flight to Australia.

It appears that she'd gone to Canada within six months of deportation from Ireland. In the interim she scammed people in Sydney and Perth with claims about her fictitious family, and later persuaded social services in NSW that she was a teen victim, enrolling in a school and being placed in a foster home.

In 2010, after she had attempted to use a fake Medicare card to procure services in Rockhampton she was charged with two counts of false representation, one count of intention to forge documents, and one count of contravening directions. She was convicted in Brisbane Magistrates Court, with a $500 fine. Later that year she was convicted on four counts of false representation over another fake identity, with a $500 fine. In 2012 she was sentenced to six months in prison for attempting to illegally collect social welfare benefits, suspended for a year. A few months later she reportedly pled guilty in Perth Magistrates Court to three counts of opening up accounts under a false name, one of inducing someone else to commit fraud, and one of intent to defraud by deceit. In 2017, after she used a fake California birth certificate, she was charged in NSW with "dishonestly obtaining financial advantage by deception, for the education, counselling, food, accommodation and electronics she was given while posing as Harper." She pleaded guilty and was sentenced to a year in prison. It is unclear how much time she spent in prison in Victoria before engaging in the alleged offences in Sydney this year.

Given the recurrent behaviour - imprisonment seems to have no effect on what has variously been characterised as a psychological problem or cold-blooded con by soomeone without psychiatric issues - she will presumably be appearing again in this blog in 2024 if not earlier.

Fictions

‘The Talented Mr. Mallory’: literary scammers, pain-for-profit, and selves made of others' by Alyson Miller in (2021) 18(2) New Writing: The International Journal for the Practice and Theory of Creative Writing 197-212 comments 

In 2019, Dan Mallory, book editor turned author of the enormously successful thriller, The Woman in the Window, was exposed as a pathological dissembler. Faking cancer, an Oxford PhD, a prestigious career, and tragic family deaths, Mallory constructed a distressing history in order to gain authority and influence. Examining the complexities of the fraud in relation to other contemporary fakes, this paper contends that impostors expose the value systems of power, especially those situated within gatekeeping institutions that enable grifters to thrive. It asserts that despite humiliating exposure, or the excoriation of outraged readers, the impostor invariably succeeds, perpetuating an exclusive monoculture in which the same voices, both real and imagined, are heard and received. The Mallory controversy emerges within a succession of impostures fixated on crossing boundaries from privilege to disadvantage and trauma, revealing an identity politics located within the commodification of the marketable ‘other’. The hunger for narratives of ‘authentic’ suffering comes to represent a form of literary virtue signalling which exploits ‘otherness’ to satisfy middle-class stereotypes and prejudices. Imbricated with issues of appropriation and theft, the fake treats suffering as an object to be possessed, yet also functions to uncover a sequence of literary and cultural fault-lines. 

 Miller states 

 Invariably described as charming, handsome, and clever, Dan Mallory, book editor turned novelist, is also a pathological dissembler (Parker 2019). With the release of The Woman in the Window (Finn 2018), a psychological thriller about an alcoholic agoraphobe, Mallory garnered extraordinary literary success: the manuscript sold in a two-million-dollar two-book deal, entered the Times bestseller list at number one, and has recently been adapted for film, starring Amy Adams and Gary Oldman (Parker 2019). A ‘hodgepodge’ (Crispin 2019) re-imagining of Alfred Hitchcock’s Rear Window (1954) and Jon Amiel’s Copycat (1995), The Woman in the Window nonetheless attracted enormous industry support, lauded by Stephen King as ‘unputdownable’, for example, whilst Gillian Flynn pronounced the novel an addictive and ‘mesmerising … noir for the new millennium’, with ‘stunning twists’ and ‘beautiful writing’. Yet it is in the extra-textual emplotments in which Mallory’s talent for fictivity evolved into ‘Nabokovian game-playing’ (Parker 2019). Via a contradictory series of bizarre autobiographical claims, Mallory constructed a complex alternate double-life, including significant traumas such as surviving a brain tumour and the death of a brother by suicide, alongside more aggrandising fabrications: modelling for Russian Vogue; working as an editor at prestigious publishing houses; and achieving a doctorate from Oxford. In line with the scandal surrounding James Frey, after a New Yorker exposé revealed the extensive, if not dichotomous, narrative of suffering and brilliance to be a sequence of cynical and calculated deceptions, Mallory was denounced as a Mr. Ripley performance artist, a charismatic impostor with a long history of ‘duping … with false stories about disease and death’ (Parker 2019). In a response statement, Mallory confessed to yet further suffering, claiming to be ‘afflicted with severe bipolar II disorder’, and experiencing ‘crushing depressions, delusional thoughts, morbid obsessions, and memory problems’: ‘It’s been horrific, not least because, in my distress, I did or said or believed things I would never ordinarily say or do – things of which, in many instances, I have absolutely no recollection’ (qu. ABC 2019). 

As Christopher L. Miller observes in Impostors, ‘deception is fundamental to literature’ (2018, 3), whilst the fraud – or the hoax, imposture, or forgery – is as old as writing itself. Surrounded by ‘screens, fakes, avatars, simulacra, and all manner of imitation’, contemporary audiences arguably attend less to the Platonic exhortation against the gap between mimesis and ‘true reality’, than to the Aristotelian enticement to revel in the fictional and the virtual, to embrace the pleasure of the unreal (3-4). The recognition of language as a form of creative play and of the mimetic as being ‘capable of so much more than truth-bearing’ (5) also frees the literary work, particularly in terms of its attachment to the figure of the author. Indeed, Roland Barthes argues that by removing an insistence on the role of the ‘Author-God’, and understanding text not ‘as a line of words releasing a single “theological” meaning … but as a multi-dimensional space in which a variety of writings, none of them original, blend and clash’, both fixed meaning and signifying limits are rejected and refused (1977, 146–147). If the identity of the author is obsolete, and there is, Miller contends, ‘no origin to steal’, language itself reigns and hoaxing is not only ‘utterly inconsequential’ but also ‘entirely permissible’ (2018, 6). Certainly, it is rhetoric adopted by Mallory, who repeatedly, if not conveniently, insists on the irrelevance of the life of the writer: ‘I am not especially interested in author bios. I am buying their novel, not their memoir. I view it as a sign of respect not to want to know too much’ (qu. Benedictus 2019). Barthes thus asserts that the separation of a text and its author results in liberation from singular or ‘ultimate meaning’ which, as a ‘tissue of signs, an imitation that is lost, infinitely deferred’, is now constituted by the reader (1977, 147). Yet in the context of literary fakes, the clarity of such a borderline is radically unsettled, complicating not only ideas about the construction of self, but also the consequences of imposture. Whilst the manoeuvrings of a fraudulent author are often framed in terms of the enactment of a postmodern vision of identity, defined by a protean urge towards reinvention, the scandals surrounding fakery are also trapped within a ‘crossfire between play and truth’ (Miller 2018, 7). 

The effect, as this paper contends, is less concerned with arguments for the possibilities of an endlessly transforming selfhood; rather, it is about the revelation of a series of anxieties about privilege, representation, and power, in which the politics of identity are located within the marginalisation and commodification of the marketable ‘other’. Certainly, the fabrications created by Mallory seem fixed on obscuring ideas about stable subjectivities, suggesting a blurring of distinctions between real and unreal selves. Rooted in complex layers of literariness, and defined by gothic tropes of haunting, doubling, and liminality – augmented by admissions of mental illness – such a strategy alludes to notions of subjectivity as a series of narrative constructions that might be re-visioned in profound or shocking new formulations. It is an undoubtedly tempting proposition, yet in the context of fakes, also deeply problematic, imbricated with issues of appropriation and theft, of the plagiary of bodies as ‘raw material to be moulded, made up, made us of, and made off with’ (Young 2017, 434). As Kevin Young argues in Bunk, whilst the fraud or hoax ‘once meant to glorify’, the modern desire to ‘horrify’ denotes a radical shift through which suffering and trauma are regarded as objects to be possessed (98). Indeed, the rationale employed by impostors that suggests authenticity is little more than a façade or performance to be enacted is, as Cathy Park Hong contends, borrowing from James Baldwin, often a ‘delusion of whiteness’ that wilfully denies the systemic and material inequalities which inform the realities of ‘self’ and ‘other’:

The avant-garde's ‘delusion of whiteness’ is the specious belief that renouncing subject and voice is anti-authoritarian, when in fact such wholesale pronouncements are clueless that the disenfranchised need such bourgeois niceties like voice to alter conditions forged in history. The avant-garde's ‘delusion of whiteness’ is the luxurious opinion that anyone can be ‘post-identity’ and can casually slip in and out of identities like a video game avatar, when there are those who are consistently harassed, surveilled, profiled, or deported for whom they are. (2014)

Indeed, the Mallory imposture exposes the perverse capitalisation of marginality by fakes, who utilise discourses of ‘otherness’ as a vehicle through which to gain status and celebrity – representing a level of success traditionally denied to those who exist outside centres of power but made interesting and appealing by those whose performances neatly align with the expectations of majority culture

Fantastica

The Guardian reports conviction (and release on parole) of Samantha Azzopardi - who appeared in this blog here and here - after Australia, Ireland and Canada.

Azzopardi has a long history of dishonesty offences. In 2013 she showed up in central Dublin claiming to be a teenage sex-trafficking victim from eastern Europe. It cost the Irish government hundreds of thousands of dollars before her true identity was exposed. 

After being deported she emerged in Canada, where she said she was a victim of sexual assault and torture. 

In Australia, she convinced a Perth family she was a Russian gymnast named Emily whose entire family had been killed in a murder-suicide in France. 

In Sydney she passed herself off as a schoolgirl more than half her age. 

Azzopardi has criminal convictions for dishonesty offences in Queensland, Western Australia and New South Wales, as well as for Commonwealth offences. 

Explanation? A psychiatrist reportedly referred to 'a highly traumatic upbringing including emotional neglect and physical abuse', characterising Azzopardi as having 'a severe personality disorder and pseudologia fantastica' - a '“rare but dramatic” psychiatric disorder involving an “extreme type of lying”'.

Another footnote for my forthcoming book on identity crime.

A 2017 SMH piece noted her conviction on fraud charges after Azzopardi posed as a 13-year-old Sydney high school student named Harper Hart, using a fake Californian birth certificate and pretending to be a child sex-trafficking victim. 

The piece is interesting as a quantification of crime costs, stating 

 Her lies cost NSW charities and government departments more than $155,000, a figure updated from an initial calculation of $20,000. ... 

Hornsby Local Court heard that Irish authorities spent more than $400,000 trying to establish who she was and where she had come from. ... 

Canadian authorities spent $150,000 on their investigation before realising she was the same woman at the centre of the Dublin saga. Azzopardi was charged with public mischief in Calgary and faced a maximum sentence of five years in prison but, after pleading guilty, she was sentenced to the two months she'd already served in custody. Again she was sent home to Australia. ... 

The Sydney court heard she had to trick NSW authorities into thinking she was still a teenager. She was given an iPad, a phone and Opal card from the not-for-profit Burdekin House, an ambulance transfer paid for by Good Shepherd Australia and medication from the NSW Department of Family and Community Services. The $155,000 cost of her frauds included counselling costs and wages. 

Skimming and Survivor Fraud

In Islam v R [2020] NSWCCA 236 Tariqul Islam has been unsuccessful in an appeal after convicttion for 'skimming' offences. 

Wilson J states that Islam had entered a plea of guilty in the Local Court and was committed for sentence with respect to the following offences: 

 An offence contrary to s 93T(1A) of the Crimes Act 1900 (NSW) that the applicant knowingly participated in a criminal group by directing the activities of the group, knowing that his participation contributed to criminal activity. This offence carries a maximum sentence of 10 years imprisonment; and

An offence contrary to s 192J of the same Act that the applicant dealt with identification information, being credit card information for over 550 persons, intending to commit fraud. This offence similarly carries a maximum sentence of 10 years imprisonment. 

The Crown's statement of agreed facts  indicated that 

 The applicant was the “ringleader” of a group of men, all taxi drivers, who were involved in a scheme to “skim” the data from credit cards of unknowing taxi passengers, thereafter producing a clone of the victim’s credit card which could be used to withdraw cash or purchase goods. Between late August 2017 and late January 2018, the applicant directed the activities of the four other men who were involved, and many hundreds of thousands of dollars were fraudulently obtained by them.  

The applicant managed the scheme, recruiting taxi drivers to participate, instructing them in the use of a “skimming device”, cloning fraudulent credit cards, and subsequently directing the activities of his co-offenders. 

The applicant had possession and control of five devices known as “Ghost Terminals”. Ostensibly portable EFTPOS terminals, participating taxi drivers used the devices to collect a fare from a passenger who had used the taxi driven by the particular member of the group. In fact, the terminal did not process a charge on the passenger’s credit card in payment for the journey; instead, it “skimmed” or recorded the data contained on the magnetic strip on the card, which included the personal identification number, or “PIN”, necessary to access cash machines. 

The applicant’s practice was to distribute the Ghost Terminals to his four co-offenders, who used them to record the credit card details of passengers of the taxi service. The men would then meet at a pre-arranged location and return the terminals to the applicant. The applicant paid the drivers a fee for each card “skimmed”. The applicant used the data recorded by the drivers on the terminals to clone credit cards using the skimmed or stolen data. For all practical purposes, the cloned card functioned in the same way as the original credit card it copied, and the cards were then able to be used to withdraw cash or purchase goods. 

Electronic surveillance by police officers of the applicant recorded him instructing other group members in the use of cloned cards – which he provided to them – in automatic teller machines (“ATM”) to withdraw sums of money from the accounts of the victims of the group. The applicant was careful to use different ATMs for each group of transactions, and to instruct his co-offenders to make modest withdrawals of $500 or less to avoid exceeding any daily withdrawal limit. He also provided information as to the conduct of his co-offenders, to assist them to avoid “looking suspicious”. 

The applicant was followed by police officers on a number of occasions as he and a co-offender drove from place to place, using multiple cards in ATMs located around Sydney to withdraw sums of money. At the end of any particular day, the applicant counted the money stolen in the various transactions and paid the relevant co-offender a share of the fraudulent takings. He was observed to direct these outings on multiple occasions. This scheme was reflected by the s 93T(1A) offence. 

The drivers were progressively arrested by police until, on 26 January 2018, the applicant was arrested at his home in Marrickville. His home was searched. Police officers found a sum of cash on the applicant’s person, and a laptop computer which contained card cloning software that could be used to clone credit cards. The laptop also held the credit card information of 557 specific individuals, of which 98 sets of information had already been used to clone cards and make fraudulent cash withdrawals. The information was held by the applicant to facilitate the commission of further fraudulent activity (the s 192J offence). 

Electronic surveillance during the course of the investigation into the applicant’s conduct established that he had been stealing and cloning credit card data for the previous three years, and had fraudulently obtained between $250,000 and $300,000. 

Throughout the period that the applicant was directing these fraudulent activities, he was at liberty subject to conditional bail granted to him by the Supreme Court, he having been earlier charged with 19 counts of obtaining a financial advantage by deception, contrary to s 192E(2)(b) of the Crimes Act. He was in fact awaiting the completion of sentence proceedings with an intensive correction order (“ICO”) in contemplation when he was charged afresh. 

The matters were not able to be joined and dealt with together because the applicant did not enter pleas of guilty to the second set of charges until well after the finalisation of the first set. 

The applicant’s criminal history as it was before the sentencing court reveals that the applicant was convicted before the District Court of 11 of the outstanding sentence matters, with the balance of 8 offences taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the “CSP Act”). On 20 April 2018, an aggregate sentence of 2 years imprisonment was imposed upon him, to date from 19 December 2017 and expiring on 18 December 2019. A non-parole period (“NPP”) of 15 months imprisonment was specified, which concluded on 18 March 2019. The sentencing judge, his Honour Acting Judge Armitage, made a finding of special circumstances pursuant to s 44(2) of the CSP Act in the applicant’s favour, reducing the NPP by 3 months on the ordinary statutory ratio that would otherwise have seen the applicant serve a NPP of 18 months. Parole was made subject to the supervision of the Community Corrections Service, with a direction that the applicant accept drug rehabilitation and psychological services. 

The only other matter in the applicant’s criminal history was a conviction for common assault in December 2016, which was dealt with by way of a fine. 

Information relating to the 2018 proceedings was provided to the sentencing court in April 2019. The Crown tendered the indictment containing the 11 counts contrary to s 192E(1)(b) to which the applicant had pleaded guilty, the Form One document with details of the 8 further offences that the applicant acknowledged having committed and asked to have taken into account on sentence for those matters on indictment, an agreed Statement of Facts, a Pre-Sentence report (“PSR”) and an ICO Assessment Report. 

The facts of the earlier offences were broadly similar to those before his Honour Judge Williams SC. They came to light when police officers in Picton observed the applicant and another man parked in suspicious circumstances in the township late at night on 29 May 2016. The applicant’s companion was found to be the subject of an arrest warrant, and to be in Australia unlawfully. A search of the car in which the men had been seated located the sum of $11,900 in cash, secured by a band; numerous blank and marked white credit cards; documentary records of various bank accounts including cardholder names and PINS for each; ATM receipts evidencing withdrawals and attempted withdrawals made in Helensburgh and Picton from multiple accounts held at varying financial institutions; and some smaller amounts of money, with the largest single amount being a sum of $1590 in cash. Stolen financial data was found on the white credit cards when they were later forensically examined. It was also determined that 20 of the cards seized had been used in Picton in a 63 minute period on the night of 29 May 2016 to steal $9,180 in cash, with another $570 stolen in fraudulent ATM withdrawals at Helensburgh earlier that evening. 

The applicant’s fingerprints and DNA linked to him were later found on a number of the items from the car. The applicant, when interviewed by police, denied any knowledge of the counterfeit credit cards or the cash found, and denied attending any ATM. 

The PSR that was before the District Court when the applicant was sentenced in 2018 for these 2016 offences reported that the applicant was a Bangladeshi national who came to Australia in 2008, with his family intending to pay for his tertiary education in this country. When his family in Bangladesh experienced financial strain and could no longer support his education, the applicant ceased his studies and took on various unskilled jobs. The applicant told the author of the PSR that he had been “propositioned” by his co-offender (an Indian national who was deported prior to sentence) and became involved without being aware of his offending until it had begun. His only reason for participating was the financial gain his offences gave him. He expressed regret at the loss to the victims of the offences, but “sought to minimise his responsibility” for his crimes. 

(As it turned out, rather optimistically) the author assessed the applicant as posing a low risk of re-offending. 

An ICO Assessment Report similarly observed that the applicant sought to minimise his responsibility for his crimes, although considered him to have made some positive changes by securing employment, and expressing an intention to give up what had been his acknowledged daily use of cannabis. He was regarded as suitable for an ICO.

In Canada Shehroze Chaudhry, who has portrayed himself as a former ISIS member living freely in Canada (and under the alias Abu Huzayfah appeared in the award-winning New York Times podcast Caliphate where he described conducting public executions) has been charged with faking his involvement in ISIS. 

He has been charged under section 83.231(1) of the Criminal Code; dealing with terrorism hoaxes, apparently the first in Canada's history. Chaudhry's Facebook profile has described him as Abu Huzayfa, a mujahid and jihadist. He has reportedly posting on social media and told reporters since 2016 that he was a former member of the ISIS religious police in Syria. 

Investigation by the RCMP’s Toronto Integrated National Security Enforcement Team resulted in the terrorism hoax charge, with a spokesperson stating

Hoaxes can generate fear within our communities and create the illusion there is a potential threat to Canadians, while we have determined otherwise. As a result, the RCMP takes these allegations very seriously, particularly when individuals, by their actions, cause the police to enter into investigations in which human and financial resources are invested and diverted from other ongoing priorities.

Chaudhry's activity - whether for personal gratification or profit - is analogous to the survivor fraud noted elsewhere in this blog.

Speed

Lance Armstrong and Tailwind Sports Corporation (Armstrong's former team management company) has been ordered by an arbitration panel to pay US$10m in a dispute with Dallas-based SCA Promotions in what the promotions company characterised as an “unparalleled pageant of international perjury, fraud and conspiracy”.

SCA has asked Texas’ 116th Civil District Court to confirm the arbitration ruling; an Armstrong lawyer reportedly predicts that the order will be overturned by a judge.

SCA paid Armstrong and Tailwind around US $12m in bonuses during a career in which Armstrong won seven Tour de France titles. As highlighted elsewhere (eg here and here), the titles were removed after Armstrong and his US Postal Service teams were found to have used banned performance-enhancing drugs.

 SCA disputed the bonuses in arbitration in 2005, with Armstrong continuing to deny doping (including testimony on oath). As part of a settlement in 2006 SCA paid Armstrong US$7m. Fast-forward to the  report from the US Anti-Doping Agency and inevitable confession interview with Oprah. SCA sued Armstrong to retrieve its payments, with the dispute going back to the original arbitration panel.

That panel has now announced that

Perjury must never be profitable. Tailwind Sports Corp and Lance Armstrong have justly earned wide public condemnation. That is an inadequate deterrent. Deception demands real, meaningful sanctions.

The arbitration majority said the $10m was a penalty for Armstrong’s lying and efforts to intimidate or coerce witnesses in the previous case.

Media reports that Armstrong  is being sued by the federal government and former teammate Floyd Landis in a whistleblower action over the team’s sponsorship contract with the Postal Service.

Truthiness Again

Given my interest in survivor fraud (Wilkomirski, Head, DeFonseca, Khouri, Armstrong), memoir (Mortenson) and credulity I was interested to see the announcement by publisher Tyndale House that it will belatedly stop selling The Boy Who Came Back From Heaven: A Remarkable Account of Miracles, Angels, and Life beyond This World by Alex Malarkey and Kevin Malarkey.

The best-seller is an example of the 'heavenly tourism' genre in which a child recounts a visit to heaven - typically a postmortem visit, with the deity idiosyncratically allowing the tot to return to earth with good news. The visit is presented - breathlessly - as a matter of fact, rather than belief or allegory. Elsewhere I've cruelly described another example as a form of religious kitsch.

In this instance Alex's supposed visit took place while he was in a coma after a car accident that left him paralyzed. He supposedly saw his father (the co-author) get caught by an angel - presumably you don't need a seatbelt or airbags if an angel is looking after you - during the crash.

Revelations? The gates of heaven are "tall" and "looks like it has scales like a fish". He met Christ and Satan (the latter apparently making a special guest appearance after crash-site conversation with Alex). Angels are "big and muscular, like wrestlers" ("if you didn't know they were friendly, they would be scary").

Alex has now recanted, stating "I did not die. I did not go to Heaven". Quelle surprise.

Tyndale is reported as stating

We are saddened to learn that Alex Malarkey, co-author of ‘The Boy Who Came Back from Heaven,’ is now saying that he made up the story of dying and going to heaven. Given this information, we are taking the book out of print.

Devout consumers presumably won't be starting a class action.

Fake

Another incident of survivor fraud, with reports that 26 year old Australian woman Samantha Azzopardi (aka Aurora Hepburn) has again claimed to be a teenager who was a victim of prolonged sexual abuse.

Azzopardi reportedly "walked into a Calgary health centre on September 16 alleging she was a 14-year-old who was the victim of an abduction and prolonged sexual assault". She  allegedly told Canadian investigators she'd endured years of violent sexual abuse and torture. (She appears to have made a missing persons report about her fake identity).

Shortly thereafter

the Calgary Police Service was notified of a similar, world headline-making case investigated last year in Dublin.

After liaising with Irish authorities, it was determined the woman in Calgary was Azzopardi. Azzopardi is charged with public mischief to mislead a peace officer and faces up to five years' jail.

Due to her multiple aliases, Calgary police have released a photo of Azzopardi in the hope the public can provide information about her movements in Calgary.

Irish authorities last year also took the rare step of releasing her photo after she was found wandering Dublin streets and led Irish police to believe that she was a teenage sex-trafficking victim.

Azzopardi drew pictures apparently showing herself being raped, forcing Irish police to release the photo of her in a bid to find her identity.

Azzopardi was subsequently sent back to Australia, where she had a history of fraud-related charges.

It appears that Azzopardi previously posed as a teenage orphan and a cancer patient. The Brisbane Courier-Mail last year reported that

she was convicted in Brisbane Magistrates Court in September and October 2010 for charges relating to making false representations and forging documents and was fined $500.

In June last year she pleaded guilty in Perth Magistrates Court to offences relating to welfare fraud and was sentenced in October to six months imprisonment, suspended for 12 months.

Her life of fantasy included a claim to be a gymnast in one instance and to be born in France in another and her 40 aliases included the name Dakota Johnson.

Tsunami Survivor Fraud

The Age reports on another instance of survivor fraud, this time involving a supposed tsunami survivor  with the usual heroic tale of endurance and over-achievement.

Chris Dawn-Manuel touched hearts with his story of the orphaned teenager "crippled by grief and guilt" because he alone survived the 2004 Boxing Day tsunami while his family perished on the Indian coast.

He was the child left to beg on the streets of Chennai – bullied, branded by gang violence and nurtured on crime – yet he endured for years to scrounge an existence.

Dawn-Manuel even saved enough money to educate himself and complete a degree in India and, from 2010 in Australia on a student visa, achieve another at Monash University.

But this uplifting tale of ruin to recovery has now been exposed by diligent police as a pack of lies.

Not only are his parents and brother alive, but he participated in two sham marriages in Melbourne – with a third ceremony proposed – ran an illegal brothel in South Yarra and forged a psychiatric report for an earlier court appearance.

Fortunately no references to long-distance treks through the snow accompanied by wolves.

The Age reports that Dawn-Manuel referred to his supposed history in pleading guilty to "sophisticated deception and false identity charges involving $660,000".

The first doubts about its authenticity emerged when prosecutor Temple Saville announced at the end of Mr Farrington's plea that investigators had material "contrary" to Dawn-Manuel's story.

Judge Gaynor declared she wanted the matter resolved and adjourned the hearing for investigation. When it resumed last week, and with lead investigator Senior Detective Simon Hunter's explosive new statement in her hands, Judge Gaynor exclaimed: "God bless my soft, little old heart."

"I was so sorry for him," she said of her first reaction to his early life. " ... come in, spinner", she added ruefully. "It's like a doorstopper novel ... it's amazing," Judge Gaynor said of the "complete and utter fraudster". ...

Detective Hunter stated that throughout the investigation by members of the Heidelberg crime investigation unit it was apparent Dawn-Manuel was "skilled in the art of deception" or "fabricating stories to suit his needs". Detective Hunter said it was "completely implausible" that as a beggar he finished school, attained a degree in India and then came to Australia to undertake another at Monash.

Instead, he had been "raised in a well-off and respected family", given a good education and the chance to study in Australia but voluntarily committed crimes for his own benefit.

He had shown no remorse for his actions and "continues to fabricate lies and stories to diminish his responsibility and accountability".

Dawn-Manuel pleaded guilty to three charges of obtaining a financial advantage by deception, three of attempting to do so and one of possessing identity information.  The Crown argued that during 2012 and 2013 he

created an identity fraud scam by obtaining information, partly through Optus mobile phone application contracts, which held names, addresses, employment details and contact phone numbers. He used this information to apply for credit cards online through GE Capital Finance, NAB and ANZ by including accurate personal details of the "applicants", created fictitious email addresses and had the credit cards and PINs mailed to vacant rental properties where he collected them. 

He is reported to have obtained 45 credit facilities with a combined value of $660,500 and tried to get more with a total value of $858,999. He used the fake authority to buy goods and recruited others as "shoppers" to buy for him. A police search of his home  found 48 credit cards and 65 fake driver's licences in various names with pictures attached of him or of the "shoppers".

Wolves and survivor fraud

The Massachusetts Court of Appeals has ordered Misha Defonseca - famous for the deeply implausible 1997 Holocaust memoir - to forfeit her share of a US$32.4 million judgment that she won from her publisher Mt Ivy Press and the publisher's principal, Jane Daniel, in 2005.

Defonseca and ghostwriter Vera Lee were awarded the money in a 2001 Middlesex Superior Court judgment regarding rights: the ghostwriter sued Daniel (arguing that her rights as coauthor had been violated) and Defonseca alleged that the publisher hid profits in offshore corporate accounts and broke promises to publicise the book. The jury in that case awarded US$7.5m in damages to Defonseca and US$3.3m to Lee. The judge tripled the damages, to nearly US$10m for Lee and US$22.5m for Defonseca, because of the allegedly egregious conduct. The jury also awarded rights in the book to Defonseca, who sold it to several European publishers. It became a film in France.

Daniel responded by research into the truth of Defonseca's tale. As I've discussed elsewhere in talking about identity crime, the egregious exploitation by Defonseca of the Holocaust was bizarre and deeply repugnant. Adoption by and long-distance travel with a pack of wolves?

Daniel determined that Monica Ernestine Josephine De Wael (Defonseca's real name) was enrolled in a Brussels school in 1943 instead of traipsing around Europe with her furry friends. She wasn't Jewish. There were no wolves. There were no 3,000km journeys through the snow.

On the basis of the research Daniel and Mt. Ivy sought to have Defonseca's judgment vacated. They were initially unsuccessful, with the Court noting that action was out of time. In 2010 the Massachusetts Court of Appeals decided that the publishers had a case, commenting that the plaintiffs "have alleged an extraordinary fraud that touched every part of Defonseca's case against them and resulted in a huge verdict".

Defonseca appealed, arguing that even though her story had been proven false, she believed it was true during the book-publication process. Belief, it appears, is everything. "This story is mine. It is not actually reality, but my reality, my way of surviving". The same might also have been said by Mortenson, Frey, Wilkomirski, Armstrong and other memoirists.

In affirming the 2010 judgment the Massachusetts Court of Appeals commented that

Here, we express no opinion as to whether Defonseca's belief in the veracity of her story was reasonable. However, we agree with the second motion judge that, whether Defonseca's belief was reasonable or not, the introduction in evidence of the actual facts of her history at the trial underlying Mt. Ivy I could have made a significant difference in the jury's deliberations.

In Mt. Ivy Press, L.P., & another vs. Misha Defonseca the Court stated

This is the third, and hopefully the last, of a trilogy of cases that have played out before us. [FN3] Having twice before considered issues relating to the publication of the defendant's memoir of survival during the Holocaust (the details of which have now been revealed as false), we are now asked to decide whether it was proper for the court below to vacate a substantial judgment against the plaintiffs. We conclude that it was.

Facts.

In 1995, Misha Defonseca entered into an agreement with plaintiff Jane Daniel and her company, Mt. Ivy Press, L.P. (Mt. Ivy), to publish a memoir of her experiences in Europe during the Holocaust. Entitled Misha: A Mémoire of the Holocaust Years, the work told the harrowing story of Defonseca's survival as a young girl during the Holocaust "thanks to her strong will and guile as well as, incredibly, the aid of a pack of wolves, who 'adopted' and protected her, providing food, companionship, and affection." The story even included her killing a Nazi soldier.  Mt. Ivy I, 63 Mass.App.Ct. at 539. Since English was not Defonseca's native language, she was paired with a ghostwriter, Vera Lee, to assist in the writing of the book. See id. at 540.

Throughout the publication process, Mt. Ivy and its principal, Jane Daniel, engaged in many highly improper representations and activities which need not be detailed here. See Mt. Ivy I. Suffice it to say that the improprieties resulted in a jury verdict against Daniel and Mt. Ivy in favor of Defonseca in the amount of $7.5 million, and for Lee in the amount of $3.3 million. The trial judge found for Lee and Defonseca on their G.L. c. 93A claims, and trebled the damages, resulting in judgments of $9.9 million for Lee and $22.5 million for Defonseca. See Mt. Ivy I, 63 Mass.App.Ct. at 546. This court affirmed the judgments. Id. at 562.

Following our decision in Mt. Ivy I, in a saga also worthy of a book or movie, Daniel doggedly pursued the question whether, in fact, Defonseca's tale was true.  Defonseca had claimed to have no knowledge of her true name, believing that she was the daughter of a Jewish couple named Reuven and Gerusha (she did not know their surname), and that she had been assigned the identity of Monique De Wael to protect her from the Nazis. Against this backdrop, Daniel pursued her inquiries. 

Among other efforts, Daniel secured the discovery assembled by her former attorneys. While sifting through the various documents, she came upon what appeared to be an innocent bank record. Startlingly, the document contained information, provided by Defonseca to the bank, indicating her date of birth, place of birth, and her mother's maiden name.

Armed with this information, Daniel expanded her search, seeking Defonseca's official records in Belgium. Stymied by the country's privacy regulations, Daniel contacted a genealogist in Belgium who investigated Catholic baptismal records in Etterbeek. Information was discovered corroborating that found in the bank record.

With smoking gun in hand, Daniel returned to court to right what she perceived to be Defonseca's wrong. Daniel and Mt. Ivy filed an independent action under rule 60(b), arguing that the hefty judgments be vacated. The plaintiffs met with defeat. In the trial court, the motion judge (first motion judge) dismissed the claim for failure to show "extraordinary circumstances" that might warrant relief under rule 60(b)(6).  See Mt. Ivy II, 78 Mass.App.Ct. at 345, and cases cited. The plaintiffs appealed, and the case returned to our court, where their fortunes partially turned.

In Mt. Ivy II, we reversed the judgment insofar as it dismissed the claim against Defonseca, observing that "[Daniel and Mt. Ivy] have alleged an extraordinary fraud that touched every part of Defonseca's case against them and resulted in a huge verdict. It is true, as [Defonseca] point[s] out, that the book's authenticity was not the central issue at trial. Despite this, it is difficult to imagine that this information, had it been known to Daniel and Mt. Ivy, would not have provided a meritorious defense to at least some of the claims, especially those claims based on the contract.... It is equally implausible to suggest that the information, if it had been presented to the jury, would not have affected the substantial rights of the parties." Mt. Ivy II, 78 Mass.App.Ct. at 348 (internal quotation marks and citations omitted). 

Thereafter, Daniel and Defonseca engaged in discovery proceedings in Superior Court, and in July, 2012, a judge of that court (second motion judge) allowed the plaintiffs' motion for summary judgment on their complaint for rule 60(b) relief, vacating the underlying judgment for Defonseca.  Before us, Defonseca appeals, claiming that the second motion judge erred in allowing the plaintiffs' motion for summary judgment on their independent action for rule 60(b) relief. ....

The present case is unique. The falsity of the story is undisputed. The summary judgment materials in the record appendix establish that Defonseca was born Monica Ernestine Josephine De Wael, on May 12, 1937, in Etterbeek, Belgium, and was baptized on May 19, 1937. See note 8, supra.

Under oath, Defonseca averred that, notwithstanding her present understanding that her story was false, she believed throughout the book production process and trial underlying Mt. Ivy I that her story was true; her parents were in fact taken away when she was four years old and murdered in Nazi concentration camps;  and, last, she believed herself to be a Jew, and in fact joined a temple and was bat mizvahed after she emigrated to the United States.

The book contract between Defonseca and Mt. Ivy provided: "The Author [Defonseca] represents and warrants ... that ... with respect to the Work as submitted by the Author, ... (vii) all statements of fact are true or based upon reasonable belief." Here, we express no opinion as to whether Defonseca's belief in the veracity of her story was "reasonable."  We also acknowledge the findings of the first motion judge in his memorandum on the rule 12(b)(6) motion, that the plaintiffs' conduct "is not made any less egregious because of what we now know." See note 9, supra. However, we agree with the second motion judge that, whether Defonseca's belief was reasonable or not, the introduction in evidence of the actual facts of her history at the trial underlying Mt. Ivy I could have made a significant difference in the jury's deliberations. See Mt. Ivy II, 78 Mass.App.Ct. at 348. The underlying judgment in Mt. Ivy I must therefore be vacated. 

Conclusion.

This case has had a legal life of over fifteen years.  All involved have been bloodied. Defonseca's story has been shown to be false. As for Daniel, she also has been shown to have acted highly inappropriately, as evidenced by the still valid multi-million dollar judgment against her in favor of Vera Lee, the one least blameworthy person in the entire affair. Hopefully the saga has now come to an end.

Facilitation and Forfeiture

With reference to the recent item on delation in the Australian Public Service I note 'Lance Armstrong’s Positive, if Reluctant, Step in a Sport’s Purification' by Juliet Macur in the latest NY Times

Last summer, Lance Armstrong sat a few feet from me and said he would never “rat out” his friends by publicly revealing who had helped him dope and who had known about his doping. Not a chance. No way. The last thing he would ever do.

He simply said that “everybody” around him had known about his drug use, and that snitching on those closest to him would be a violation of his duty to be loyal to those who had been loyal to him.

If that was true — and, if the past is any indication, one can never be sure of the truth when talking to Armstrong — it must have been painful for him to turn on those friends late last year when he answered questions about his doping as part of a lawsuit.

Armstrong settled the suit, which was brought by an insurance company seeking to recover $3 million in bonuses it had paid him for winning three Tour de France titles. But before settling, he reluctantly submitted answers to 16 questions about his doping, and those answers became public Wednesday as part of another lawsuit in which Armstrong is a defendant.

In documents released as part of a whistleblower lawsuit, Lance Armstrong reveals for the first time that several key members of his cycling team knew or aided him in doping.

In those answers, first reported by USA Today, Armstrong did exactly what he told me he would never do: He named some names.

A sampling: Johan Bruyneel, his longtime team manager; Chris Carmichael, the coach who made a name for himself as Armstrong’s adviser; Michele Ferrari, Pedro Celaya, Luis Garcia del Moral — three doctors who worked either with Armstrong personally or for his United States Postal Service team; Pepe Martí, a former trainer; and Thom Weisel, who supported the team financially.

The Victorian Law Reform Commission's The Forfeiture Rule: Report comments

 The forfeiture rule is a common law rule of public policy. It is an expression of the fundamental principle that crime should not pay, and it conveys the community’s strongest disapproval of the act of homicide. The rule disentitles an offender from benefits that, in normal circumstances, they would have received on the deceased person’s death. It is not a punishment but it is a significant consequence that, in most cases, should not be disturbed. 

At common law, the rule is hard and fast. If the rule applies, it applies without regard to the features of the particular homicide. While it rightly applies without exception to the offence of murder, the inflexible application of the rule in every other homicide is out of step with developments in the criminal law. Unlawful killings continue to attract the most severe penalties, but a range of substantive offences and sentencing options has emerged in recognition of the breadth of circumstances in which a death can occur. 

In Australia as well as overseas, concern has been expressed about the harsh effects that the forfeiture rule can have. A driver of a car who causes an accident that kills their partner because of a momentary lapse in concentration is unable to receive anything the partner left them by will. A person who, as part of a suicide pact, assists a terminally ill loved one to commit suicide and then fails in their own suicide attempt, loses the right to the deceased person’s interest in the house they bought together. An innocent child of an offender is unlikely to inherit the property that the offender forfeited upon killing the child’s grandparents. 

The response in some other jurisdictions has been to introduce legislation that either excludes particular homicides from the operation of the rule or gives the courts a discretion to modify the effect of the rule on a case-by-case basis. 

The Commission has concluded that Victoria needs a Forfeiture Act that does both. It has reached this conclusion after consulting with members of the public, community organisations, legal practitioners, judges, academics, and organisations with valuable experience in administering estates. I thank those who contributed for their time and insights.

The Commission's Terms of reference were

to review the common law rule of forfeiture and the circumstances in which it should no longer be appropriate for a person who has killed another person to benefit from that death, including by way of survivorship or as a beneficiary under a will or under intestacy rules. The Commission should consider existing exceptions to the forfeiture rule, such as where a person is found not guilty of a killing because of mental impairment. 

The Commission should make recommendations on the need for legislative or other reform in Victoria to clarify when and/or how the forfeiture rule should be applied, or to replace the common law. 

If legislative reform is recommended, the Commission should propose specific legislative mechanisms for giving effect to these recommendations. The Commission should consider judicial approaches and legislative developments in both Australian and overseas jurisdictions.

The Commission comments

On 29 October 2013, the Attorney-General asked the Victorian Law Reform Commission to review the common law rule of forfeiture. The forfeiture rule prevents a person who has unlawfully killed another from inheriting from their victim or acquiring another financial benefit from the death. It is an unwritten rule of public policy enforced by the courts. It has no statutory basis yet overrides the words of a will, entitlements provided in legislation, and legally binding agreements to which the deceased person was a party. 

The rule applies where the court is satisfied, in civil proceedings, that the person was responsible for an unlawful killing. A person acquitted in criminal proceedings, or not prosecuted for a criminal offence at all, may still be precluded from obtaining a benefit. The only exception in Victoria is where the person is not guilty because of mental impairment. Emerging in the late 19th century from common law doctrines that stripped murderers and other felons of their property, the rule remains relevant today.  It conveys the community’s strongest condemnation of the act of unlawfully taking another human life. 

The rule is not applied often, as it is directed to circumstances where the person responsible for the death stands to benefit from the deceased person’s estate or otherwise as a result of their close relationship with the deceased person. However, of the 85 homicides in Victoria last year, 27 (33 per cent) were committed by a family member.  It is likely that in many of these cases the forfeiture rule prevented the person responsible from obtaining a benefit. 

Need for reform 

Although the public policy is sound, the rule requires reform for two reasons: clarity and fairness. The scope of the rule as it applies in Victoria is unclear. There is no doubt that it applies to murder, but the reach of the rule to all forms of unlawful killing, including inadvertent and involuntary acts, is unsettled. Where it does apply, the effect that the rule has on the subsequent distribution of forfeited benefits is uncertain. 

The rule can operate unfairly because it is applied inflexibly and without regard to the moral culpability of the person responsible for the unlawful killing. This is at odds with changes in community attitudes, as reflected in the greater range of criminal offences and sentence options today compared to when the rule was first articulated. 

The application of the forfeiture rule can also have unfair consequences for third parties as it can affect their potential rights to take a forfeited benefit. Those affected may include alternative beneficiaries named in a will, other beneficiaries of the deceased person’s estate, the innocent descendants of the unlawful killer, and any person who co-owns property with the unlawful killer and the deceased person as joint tenants. 

Legislative responses in other jurisdictions 

Responding to similar concerns, other jurisdictions have introduced legislation to replace or augment the operation of the common law rule. New Zealand’s Succession (Homicide) Act 2007 (NZ) (‘the NZ Act’) codifies the rule. It sets out the homicides to which the rule applies, excises those to which it does not apply, and specifies its effect on the distribution of the benefits to which the person would have been entitled. 

The United Kingdom has taken a minimalist approach. The Forfeiture Act 1982 (UK) (‘the UK Act’) leaves the scope and effect of the rule at common law intact, but gives the court a discretion to modify its effect if required by the justice of the case. The Australian Capital Territory and New South Wales subsequently introduced legislation that is closely modelled on the UK Act: the Forfeiture Act 1991 (ACT) (‘the ACT Act’) and the Forfeiture Act 1995 (NSW) (‘the NSW Act’). 

The key difference between the three statutes is that the NSW Act was amended in 2005 to give the court a discretion to apply the rule to a person who has been found not guilty by reason of mental illness. There have been no recorded applications under the ACT Act to modify the effect of the rule. Five such applications have been made under the NSW Act, and a further three to apply the rule to a person found not guilty of an unlawful killing because of a mental illness. All applications under the NSW Act have been successful. However, most cases concerning the forfeiture rule are not made under the Forfeiture Act but involve applications seeking clarification of the effect of the rule and a determination as to where the offender’s interest is to be redirected. 

Proposed Forfeiture Act 

The Commission released a consultation paper and sought submissions on possible options for reform, based on the approaches illustrated in the NZ, UK, ACT and NSW Acts. A recurring theme in submissions and consultations was that legislative reform is needed, to provide certainty about the scope and effect of the rule and to overcome concerns about the lack of regard to the offender’s moral culpability. 

The Commission concluded that Victoria should introduce a Forfeiture Act that draws both from the reforms in New Zealand that codified the rule in order to create greater certainty and from the reforms in New South Wales and elsewhere that introduced a discretion to ensure greater fairness in the application of the rule. The proposed Forfeiture Act would specify the unlawful killings to which the rule applies and, either directly or by consequential amendment to other legislation, clarify its effect. To overcome concerns about the harsh effects of the rule, certain offences would be excluded from its operation. In addition, the court would have a discretion, on application, to modify the effect of the rule on a case-by-case basis where required by the justice of the case. 

Scope of the rule 

The determining factor for the Commission in defining the scope of the rule for the purposes of the proposed Forfeiture Act is the moral culpability of the person responsible for the unlawful killing. For clarity, the Commission recommends establishing a nexus between the unlawful killings to which the rule applies and murder and other indictable homicide offences under the Crimes Act 1958 (Vic). In the interests of justice, the Commission recommends excluding from the scope of the rule a small number of homicide offences where any perpetrator is likely to be considered to have low moral culpability and the offence does not warrant a bar on the offender taking a benefit from the deceased person. These are: • dangerous driving causing death • manslaughter pursuant to a suicide pact with the deceased person or aiding or abetting a suicide pursuant to such a pact • infanticide. 

These offences were identified in submissions and consultations and have been excluded from the rule in other jurisdictions. Motor manslaughter is excluded at common law from the operation of the rule in the United Kingdom, and the NZ Act excludes killings caused by negligent acts or omissions, killings in pursuance of a suicide pact and infanticide. Given the nature of each of these offences and the low moral culpability of the offenders, any application to modify the effect of the rule in the circumstances of these offences would be likely to succeed. The exclusion of these offences will therefore create greater certainty and will reduce costs to the estate resulting from unnecessary litigation. 

Judicial discretion 

Under provisions similar to those in the UK, ACT and NSW Acts, the court in Victoria would have the discretion to modify the effect of the rule as required by the justice of the case. However, unlike the equivalent legislation, the proposed Forfeiture Act would expressly direct the court to consider the moral culpability of the person responsible for the unlawful killing and set out the evidence to which it should have regard. An interested person—who could be the person responsible, the executor or administrator of the deceased person’s estate, or any other person who in the opinion of the court has an interest in the matter—would be able to make an application for a forfeiture modification order. The procedural details of the scheme would be modelled on the UK, ACT and NSW Acts. 

Unlike the NSW Act, however, the proposed Forfeiture Act would not empower the court to extend the scope of the rule beyond the limits of the common law to persons who have been found not guilty by reason of mental impairment. The Commission does not consider that the rule should apply to a person who is not morally culpable for the unlawful killing. 

Effect of the rule 

The deceased person may leave a will that appoints the person who is later responsible for their death as executor. If the deceased person does not leave a will, the court usually appoints a person who is a major beneficiary to administer the estate. The Commission recommends that the proposed Forfeiture Act should clearly preclude a person who is responsible for the death from taking up an appointment either as executor or administrator. This would be achieved by deeming them to have died before the deceased person. As the person’s responsibility for the death may not be established until some time after the death, the Commission also recommends that the court be given an express power to pass over a person who applies for probate or administration where there are reasonable grounds for believing that they committed an offence related to the deceased person’s death. 

The effect of the rule on the entitlements of innocent beneficiaries and third parties would also be clarified. In some circumstances, another beneficiary under a will, or a descendant of an offender, may stand to gain a share of the estate but only if the offender dies before or shortly after the deceased person. Even though they are innocent of any wrongdoing, they are unable to take a share if the offender is alive but precluded by the rule from inheriting. This will be the case even if it is likely that the deceased person would have wanted them to inherit or if they were the deceased person’s closest living relative. To overcome this problem the Commission recommends deeming the offender to have predeceased the deceased person. 

The Commission also recommends that a person who is responsible for the death of a person should be disentitled from making an application for family provision in order to obtain a larger share of the deceased person’s estate. 

If the deceased person and the offender owned property as joint tenants, perhaps in conjunction with one or more other people, the rule has consequences for the beneficiaries of the deceased person and any innocent joint tenants. In normal circumstances, the deceased person’s interest in the property would vest in the surviving joint tenant or tenants in accordance with the law of survivorship. 

Where one surviving joint tenant is responsible for the death of another, courts have taken different approaches to determining the impact of the rule. The favoured approach has been to deem that the person responsible for the death holds the deceased person’s share on constructive trust for the deceased person’s estate. The Commission recommends that the interest of the person responsible for the death should be severed at the time of the death. This is clearer, simpler and fairer. These clarifications would make it easier for an executor or administrator to distribute the deceased person’s estate and reduce the associated legal costs. If the outcome is unfair in any particular circumstances, the court could, on application, modify the effect of the rule.

The report features the following Recommendations

1 Victoria should introduce a Forfeiture Act that defines the scope and effect of the common law rule of forfeiture and provides for the Supreme Court, on application, to modify the effect of the rule if the justice of the case requires it. 

2 The purpose of the Forfeiture Act should be set out in the legislation and include: (a) to reinforce the common law rule of public policy that a person who has unlawfully killed another person cannot acquire a benefit in consequence of the killing and, in so doing, to: (i) manifest the community’s denunciation of unlawful killing (ii) deter persons from unlawfully killing others for financial gain (b) to modify the application of the rule to exclude offences where justice requires (c) to provide for the effect of the rule to be modified if the justice of the case requires it in view of an offender’s moral culpability and responsibility for the offence (d) to codify the effect of the rule on rights of succession. 

3 The Forfeiture Act should specify that, subject to the exceptions in Recommendation 4, the forfeiture rule applies only where the killing, whether done in Victoria or elsewhere, would be murder or another indictable offence under the Crimes Act 1958 (Vic). 

4 The Forfeiture Act should specify that the forfeiture rule does not apply where the killing, whether done in Victoria or elsewhere, would be an offence under the Crimes Act 1958 (Vic) of: (a) dangerous driving causing death (b) manslaughter pursuant to a suicide pact with the deceased person or aiding or abetting a suicide pursuant to such a pact, or (c) infanticide. 

5 The existing exception to the common law rule of forfeiture for persons found not guilty by reason of mental impairment should be retained. 

6 The Supreme Court should be empowered to make a forfeiture rule modification order if satisfied that, having regard to the offender’s moral culpability and responsibility for the unlawful killing and such other matters as appear to the Court to be material, the justice of the case requires the effect of the rule to be modified. 

7 In determining the moral culpability of the offender, the Supreme Court should have regard to: (a) findings of fact by the sentencing judge (b) findings by the Coroner (c) victim impact statements presented at criminal proceedings for the offence (d) submissions on interests of victims (e) the mental state of the offender at the time of the offence, and (f) such other matters that in the Court’s opinion appear to be material to the offender’s moral culpability. 

8 The Forfeiture Act should empower the Supreme Court to make a forfeiture rule modification order that modifies the effect of the rule in such terms and subject to such conditions as the Court thinks fit. 

9 Where a person has unlawfully killed another person and is thereby precluded by the forfeiture rule from obtaining a benefit, and the unlawful killing does not constitute murder, that person, or another ‘interested person’, should be able to apply for a forfeiture rule modification order. 

10 An ‘interested person’ should mean: (a) the ‘offender’ (a person who has unlawfully killed another person) or a person applying on the offender’s behalf (b) the executor or administrator of a deceased person’s estate, or (c) any other person who in the opinion of the Court has an interest in the matter. 

11 The property, entitlements and other benefits that may be affected by a forfeiture rule modification order should be specified in the Forfeiture Act and include: (a) gifts to the offender made by the will of the deceased person (b) entitlements on intestacy (c) eligibility to make an application for family provision under Part IV of the Administration and Probate Act 1958 (Vic) (d) any other benefit or interest in property that vests in the offender as a result of the death of the deceased person. 

12 On the making of a forfeiture rule modification order, the forfeiture rule should have effect for all purposes (including purposes relating to anything done before the order was made) subject to modifications made by the order. 

13 On application by an interested person, the Supreme Court should be empowered to revoke or vary a forfeiture rule modification order if the justice of the case requires it. 

14 An interested person (as defined in Recommendation 10) should be able to apply for revocation or variation of a forfeiture rule modification order if: (a) the offender is pardoned (b) the offender’s conviction is quashed or set aside and there are no further avenues of appeal available in respect of the decision to quash or set aside the conviction, or (c) in all other cases—if the Court considers it just in all the circumstances to give leave for such an application to be made. 

15 If a forfeiture rule modification order is revoked or varied, the forfeiture rule should have effect for all purposes (including purposes relating to anything done before the order was revoked or varied): (a) in the case of a revocation—subject to the terms on which the Court revokes the order, and (b) in the case of a variation—subject to modifications made by the varied order. 

16 The Forfeiture Act should provide that, unless the Supreme Court gives leave for a late application to be made, an application for a forfeiture rule modification order must be made by the later of: (a) if the forfeiture rule operates immediately on the death of a deceased person to prevent the offender from obtaining the benefit concerned—within six months from the date of the death of the deceased person (b) if the forfeiture rule subsequently prevents the offender from obtaining a benefit— within six months from the date on which the forfeiture rule operates to preclude the offender from obtaining the benefit concerned (c) six months after grant of probate of the will of the deceased person or letters of administration of the deceased person’s estate (d) six months after all charges of unlawful killing laid against any beneficiary have been dealt with. 

17 The Supreme Court should be permitted to give leave for a late application for a forfeiture rule modification order if: (a) the offender concerned is pardoned by the Governor after the expiration of the relevant period (b) the offender’s conviction is quashed or set aside by a court after the expiration of the relevant period and there are no further avenues of appeal available in respect of the decision to quash or set aside the conviction (c) the fact that the offender committed the unlawful killing is discovered after the expiration of the relevant period, or (d) the Court considers it just in all the circumstances to give leave. 

18 The Forfeiture Act should provide that a conviction in Victoria or another Australian state or territory is conclusive evidence that an offender is responsible for the unlawful killing. 

19 The transitional provisions should be based on section 9 of the Forfeiture Act 1995 (NSW). 

20 The Administration and Probate Act 1958 (Vic) should be amended to provide that, where a person appointed executor by a will or who is otherwise eligible to be appointed administrator is precluded by the forfeiture rule from acquiring an interest in the deceased’s estate, the person is to be treated as having died immediately before the deceased person. 

21 The Administration and Probate Act 1958 (Vic) should be amended to provide for the Court to pass over a person who applies for a grant of representation where there are reasonable grounds for believing that the person has committed an offence related to the deceased’s death. The provision should be based on section 348 of model legislation proposed in the December 2009 report of the National Committee for Uniform Succession Laws to the Standing Committee of Attorneys-General on the administration of estates of deceased persons. 

22 Part 4 of the Wills Act 1997 (Vic) should be amended with the effect that: (a) where a will contains a devise or bequest to a person who: (i) disclaims it, or (ii) has been precluded by the common law rule of forfeiture from acquiring it the person is, unless a contrary intention appears by the will, to be treated for the purposes of the Act as having died immediately before the will-maker, and entitled to the devise or bequest at the time of the deemed death. (b) this amendment does not affect the Court’s power under the Forfeiture Act to modify the effect of the forfeiture rule 

23 The Administration and Probate Act 1958 (Vic) should be amended with the effect that: (a) for the purposes of the distribution of an intestate’s residuary estate, a person who: (i) is entitled in accordance with section 52 to an interest in the residuary estate but disclaims it, or (ii) would have been so entitled if not precluded from acquiring it by the common law rule of forfeiture is to be treated as having died immediately before the intestate, and entitled to the interest in the residuary estate at the time of the deemed death (b) this amendment does not affect the Court’s power under the Forfeiture Act to modify the effect of the forfeiture rule. 

24 Part IV of the Administration and Probate Act 1958 (Vic) should be amended to disentitle persons to whom the forfeiture rule applies from making an application for family provision in respect of the deceased person’s estate. 

25 The effect of section 50 of the Transfer of Land Act 1958 (Vic) should be amended to provide that, where a joint proprietor has been unlawfully killed (within the meaning of the Forfeiture Act) by another joint proprietor, the property shall devolve at the death of the victim as follows: (a) where the offender and the victim were the only joint proprietors, as if the property were owned by each of them as tenants in common in equal shares (b) where there were more than two joint proprietors, as if: (i) the offender holds their interest as a tenant in common (ii) the surviving innocent joint proprietor(s) take the victim’s interest by survivorship (iii) as between the offender on the one hand and the innocent joint proprietors on the other hand, a tenancy in common exists (iv) as between the innocent joint proprietors, a joint tenancy exists. 

26 If an offender obtains registration by survivorship under section 50 of the Transfer of Land Act 1958 (Vic) before it becomes apparent that the forfeiture rule applies, the Registrar should be empowered to rectify the Register appropriately. 

27 Payments that would have been made to a person who is responsible for unlawfully killing a person who is a member of a state statutory defined benefit superannuation scheme or who otherwise has pension entitlements under state legislation should be redirected as if that person had died before the victim.

Truthiness

Shades of the class action against Greg Mortenson in news of a class action in California over memoirs by Lance Armstrong.

The class-action complaint was filed in federal court in Sacramento against Armstrong and publishers Penguin and Random House for fraud and false advertising for selling Armstrong's It's Not About the Bike and Every Second Counts as works of non-fiction. The plaintiffs claim that they purchased the books as non-fiction and accordingly felt "duped", "betrayed" and "cheated" after Armstrong revealed that his performance as a cyclist had been illicitly 'enhanced' through use of chemicals. So much for years of vehement denial by the sports star (or for gullibility on the part of fans regarding Armstrong's record seven Tour de France titles in a sport with a long tradition of doping).

I've written elsewhere that latitude for exaggeration, deliberate elision or imperfect recall has meant that there is little case law regarding claims by readers for damages from authors (or publishers) over fictions that were marketed as "searingly truthful". Authors presenting manuscripts to agents and publishers or film-makers may be guilty of fraud but are not on oath and thus do not breach expectations regarding perjury.

Most litigation has accordingly involved -

• efforts by publishers or third parties such as film producers to claw back payments made to authors on the basis that the author was providing an accurate account of their own life rather than an overheated fantasy
• defamation action by relatives or associates of the memoirist.

In responding to a class action in 2006 James Frey and Random House unusually agreed to provide refunds to individuals who purchased A Million Little Pieces, the supposedly truthful memoir unkindly described by one critic as A Million Little Lies. Neither the publisher nor author admitted liability. The refund was not offered outside the US.

Random indicated that it was concerned about fraud on the part of buyers (authorial creativity is apparently another matter). The refund was thus conditional on consumers providing both proof of purchase (eg extracting a page from the book) and a sworn statement declaring "that they would not have purchased the work had they known that Frey had not been entirely straightforward in his account".

It has been reported that the plaintiffs' lawyers received US$783,000 (compared to Frey's earnings, at the time of settlement, of US$4.4 million). Some 1,730 people were members of the action, substantially less than the 3.5 million people who purchased the book. The refund per person is reported as US$15.81. Do the maths.

Points of entry to the legal literature are Jessica Lewis, 'Truthiness: Law, Literature & the Problem with Memoirs' (2007) 31 Rutgers Law Record 1-17; Samantha Katze 'A Million Little Maybes: The James Frey Scandal and Statements on a Book Cover or Jacket as Commercial Speech' (2006) 17 Fordham Intellectual Property, Media & Entertainment Law Journal 206-23; Jason Kessler, 'First Amendment Protection for False Commercial Speech by a Publisher Regarding the Truthfulness of Its Publication: A Response to Litigation Arising over James Frey's A Million Little Pieces' (2006) 24(3) Cardozo Arts & Entertainment Law Journal 1219-1238.

Murk and Mitty

Posts in this blog over several years have noted incidents of 'stolen valour', ie people appropriating military honours and illicitly enjoying the respect due to those who have served under fire.

One example was Rex Crane, who received both esteem and substantial Commonwealth support. Michael Nicholson pretended to be a colonel and, using fake identity papers, gained entry to Randwick Barracks.  Reg Newton spun tales of derring do as a secret agent. Gordon Tisdell was recurrently but undeservedly featured in The Australian, the Sydney Morning Herald and even in the London Independent as a heroic Vietnam veteran.

Tisdell was quoted by AAP on Anzac Day 2010 (as a self-identified survivor of the Battle of Long Tan) as stating "You remember the times you had in the army and the mates you went away with. Some of them didn't come back". Later that year he was revealed to have not served in Vietnam – or indeed in any war. Rather than participating in fighting against the Vietcong, he spent his time on a dairy farm at Gloucester, New South Wales. I've commented elsewhere that dairy cows are fierce beasts, no doubt, but we can reasonably assume that they do not attack you with knives, grenades and other things that kill.

In his response to queries by SMH journalists Tisdell explained that -

I've never been a fraud in my life. I was just wearing my relatives' medals ... Defence came here today to see me. They said I'm not allowed to say anything. They brought the photographs out and showed them to me. They said not to say anything otherwise I get six months in jail.

There is now a large literature about people who have preyed on our good nature (or our howling credulity) in concocting ‘extreme memoirs’, including supposedly factual accounts of how they were victims of satanic rituals or other horrors, were fed by wolves or otherwise deserve our compassion and our dollars. An example of such identity exploitation is Norma Khouri, whose Forbidden Love: A Harrowing True Story of Love & Revenge in Jordan (Random House, 2002) recounts the author's life in Jordan, from which she fled after the honour killing of her closest friend. The book was an international best-seller, with Khouri touring the world after gaining temporary residence in Australia, appearing on network television in the US and in numerous interviews when not "in hiding" out of supposed fear for her life. Alas for the truth. Khouri was revealed to have a US passport (having lived in Chicago from 1973 until 2000 after leaving Jordan when she was three), a husband and two children (rather than being a virgin) and several US siblings.

In 2001 a panel of special masters from the California Commission on Judicial Performance (CJP) found that Judge Patrick Couwenberg of the Los Angeles County Superior Court "misrepresented his educational and military backgrounds to various sources, including the governor who appointed him". Couwenberg was charged with

(1) misrepresenting his educational background on his Personal Data Questionnaires when seeking judicial appointment; (2) falsely representing, in the course of seeking a judicial appointment in 1996, that he was a Vietnam veteran; (3) misrepresenting his educational background, legal experience and affiliations on his 1997 Judicial Data Questionnaire; (4) falsely representing to the judge who was to introduce him at the public enrobing ceremony that he was a Vietnam veteran who had received a Purple Heart; (5) falsely representing to attorneys that he went to Vietnam, had a master’s degree in psychology and had shrapnel in his groin received in military combat; (6) falsely telling a newspaper reporter that he was in Vietnam in 1968 and 1969; and (7) making false statements about his education and military experience in letters and in testimony to the commission during its investigation of his conduct. 

Couwenberg’s lawyers said that he deserved an opportunity to remain in office on the basis that his statements were not malicious but were "the product of a psychological impairment". The CJP found that Couwenberg lied to the commission in sworn testimony by claiming to have participated in covert operations with the CIA in Southeast Asia in 1967 and 1968. Couwenberg claimed that some of his misstatements were intended to be humorous and that others were typed onto official forms by his wife, based on statements he had made to her 20 years earlier

In the latest incident the Brisbane Times reports that the Hines twins - John and George - have been charged under the Defence Act 1903 (Cth) with falsely representing to be a returned soldier, sailor or airman and improper use of service decorations.

John Hines is reported as indicating that he will contest the charges, on the basis that he served in a specialist unit titled Military Assessment Surveillance Keep (MASK) in the 1960s. That unit was supposedly secret, advanced as the reason for why Hines does not appear in conventional Defence records about surveillance activity in Australia, Vietnam, Borneo, Mozambique, Cambodia, Nigeria and Thailand. Hines also claims to have spied on former prime minister Harold Holt. "I wasn't really comfortable with doing surveillance on the Prime Minister but those were my orders."

The brothers were reported to police after attending this year's Anzac Day parade in Brisbane in an unconventional uniform and medals.

Hines is reported as stating that it would be ridiculous for someone to make up his background.

I have nothing to hide ... to know about us you would have to be at a pretty high level," he said. "What sort of person would write a 1700 page manuscript over a couple of years, get uniforms made up, wear all these medals and go and stand out like a beacon at an Anzac Day parade purporting to be a regular Australian soldier? "I have never said and I have never written anywhere that I was part of the regular Australian army. MASK was backed by the Australian government, not the ADF, the UK government and the American government.

What sort of person indeed.

I'm a sensible type of person, I'm not a thief or a bloody axe murderer, I lead a normal life, I'm not a frustrated person, I've been a policeman I know the law, I'm not about to break the law and do something on such a grand scale and purport to be service man from the regular army.

The Times reports that

Hines said it took him so long to emerge with his story because he signed a "40 Year Secrecy Act" when he first joined MASK. 

There is of course no such Act in Australian law.

The ANZMI imposters watchdog site quotes Hines as stating that -

I had a Pension Hearing before the DVA where I produced an old rusty Battle Axe in a glass frame (which was MASK’s primary close quarter fighting weapon) with the words embossed into the metal ‘M.A.S.K. Special Forces – 1966’. It was a training axe. I spoke about MASK for quite a while, but the Female Chairperson hardly looked at me and the case was over before it started. 

Unofficially I have been told that I'm the highest decorated soldier in Australia - ever. CARO and MAS don't have anything past my CMF records and even some of them have been altered.

Phantom POWs?

I've been working on a law journal article regarding what US commentators have characterised as 'stolen honour', ie people who have falsely claimed to have been awarded military decorations or more broadly be entitled to public esteem (and benefits such as service pensions) for exemplary activity as a member of the armed/police forces.

Those claims, similar to instances of 'survivor fraud' (psychologically disturbed or merely opportunistic people claiming to be survivors of the Titanic, the Lusitania, 9/11, the Victorian Bushfires, the Shoah or satanic rituals), are an inevitable feature of our society. Impostures by people who believed their own lies or who merely wanted others to believe them are discernable from at least the time of Imperial Rome.

An interesting aspect is the bizarre nature of some claims (eg a perpetrator claiming to have walked across wartime Europe while being fed by wolves) and what might seem to be egregious risk-taking on the part of some claimants (eg awarding yourself trivial honours is less likely to attract attention than decorating yourself with the Victoria Cross), an excess that arguably indicates psychological disturbance - or sheer howling stupidity - rather than a rational assessment of an easy way to cash in.

Australia's Charles Sturt University fired James Montgomery, who modestly claimed to have been awarded the Victoria Cross (somewhat rarer than a Nobel Prize) and to have served as a US Marine, a US Navy SEAL, an Australian SAS Captain, a SAS Major, a Commando and a RAN Reserve Captain. No, he wasn't employed as a lecturer in creative writing.

Another aspect is the delay in detection of some fraudsters and the failure of gatekeepers,including specialists used by some large corporations that face substantial reputational risk in appointing senior executives with bogus CVs. One example was CV embellishment by Jeff Papows of IBM, which provoked the UK Register to comment -

So he's not an orphan, his parents are alive and well. He wasn't a Marine Corps captain, he was a lieutenant. He didn't save a buddy by throwing a live grenade out of a trench. He didn't burst an eardrum when ejecting from a Phantom F4, which didn't crash, not killing his co-pilot. He's not a tae kwon do black belt, and he doesn't have a PhD from Pepperdine University.

I was thus interested to read in today's Melbourne Age that the Australian Federal Police are investigating an alleged fraud by 83 year old Arthur Rex Crane, federal president of the Prisoners of War Association of Australia. Crane has reportedly been on the highest level of service pension since 1988, received a substantial ex gratia payment and claimed to be one of Australia's youngest prisoners of war.

Crane reportedly alleged he was captured by the Japanese in 1942, became a prisoner of war at 15, was imprisoned in Singapore's Outram Road jail, had his hands nailed to a tree by his captors and had his head smashed by a soldier wielding a baseball bat. Alas, the Sydney Morning Herald reported that throughout the war the 83-year-old lived in Adelaide and had never served in the military. His supposedly dead brother is alive and well. When confronted by journalists, he reportedly responded "It is me living a lie, isn't it?"

A media release [PDF] from the federal Veterans Affairs Minister Alan Griffin describes the matter as disgusting -

Personally, I think for anyone to impersonate a prisoner of war is disgusting. It is a betrayal of all the values our veterans stand for. ... This matter should be pursued to the fullest extend of the law and I am confident that the AFP will do so. I eagerly await the outcome of that investigation."

Crane's alleged offence echoes deceptions such as those involving 'Major' Reg Newton, who rose to become junior vice-president of the 8th Division Association in Australia. Newton claimed a Military Cross and bar ("awarded MC for heavy action Laos"). He had supposedly been in service as a secret agent during the Cold War (setting up escape lines in East Germany in 1951), been wounded in Korea, almost killed in Mongolia and decorated by King George VI.

Unfortunately for him, after basking in the esteem of his fellows and being featured in newspaper articles, he was sprung in 2006. A NSW court heard that he was never a major, had never won a Military Cross and indeed never served overseas. The court was apparently unimpressed with reports that he explained discrepancies and the absence of documentation on the basis that his work was "top secret".