Hasten slowly, it seems, when there's more fun to be had grabbing headlines and encouraging legal populism through exceptional action against the odious Mr Ferguson or Bill Henson. Changes to the NSW jury regime have been glacial, with women for example becoming eligible for service as late as 1947 - many years after gaining the vote - through Jury (Amendment) Act 1947 (NSW) s 3.
Attorney-General John Hatzistergos is reported as indicating that changes to the Jury Act will "broaden the jury pool" by extending eligibility for jury service to people over 70, lawyers who do not practise in criminal law, former judges and magistrates, former prosecutors, defence lawyers and staff from law enforcement and emergency service agencies.
Bodies such as the NSW Council for Civil Liberties have raised concerns, questioning whether justice is served by removing the current exemption and thereby creating an environment in which legal experts are not only eligible but on occasion are required to serve on juries.
Opposition legal affairs spokesman Greg Smith SC, a former deputy director of public prosecutions and more recently noted for recording "a version of 'The Ballad of Epping Road' with members of my band, the Tokens", claimed that -
The presence of criminal law experts in the jury room could unduly influence less educated jurors.
The proposal to lift the prohibition on former judges, lawyers, particularly prosecution and legal aid lawyers, as well as former police raises serious issues as to whether these expert or specialist jurors will dominate deliberations in the jury room and influence jurors who defer to their greater knowledge and experience.
As it is not normal practice for the trial judge to question jurors as to why they reached a particular verdict, inappropriate domination of jury deliberations by an expert would largely remain secret.The Telegraph's editorial is more succinct, concluding that -
It should be noted that the NSW Council of Civil Liberties disagrees about some of those changes. Fine. This should be taken as a recommendation and calm anyone with doubts over the proposed alterations.Using that heuristic, NSWCCL opposition to suggestions that the editor be placed in a large vat of rancid tomcat grease and slowly boiled to death would signal that murder is a damn good thing. It is disappointing, given recurrent protestations from the Telegraph's publisher regarding journalistic standards and professionalism, that the editorial offers such a simplistic response to serious questions. They are currently exempt and therefore not available for jury duty but if the new legislation is passed they would not only be available but required to serve on juries unless they could show good reason not to.
On a different note there has been an appearance by at least one exponent of OPCA (the pseudo legal argument) in the latest Falamaki judgment. In Wollongong City Council v Falamaki [2009] FMCA 1204 the Court states 'The application filed by the person identified as Judge: David-Wynn: Miller is refused leave to appear as an expert witness or amicus curiae'.
This Petition is the result of a long running dispute between the applicant creditor, Wollongong City Council, and the respondent debtor, Dr Masood Falamaki, over approximately 12 years. This dispute relates to land use, housing and accommodation. Various proceedings have taken place in the High Court of Australia, the Land & Environment Court of New South Wales, the Supreme Court of New South Wales and the Local Court of New South Wales. As a result of these proceedings, a number of costs orders have been made and assessed in favour of Wollongong City Council. Dr Falamaki is of Middle Eastern origin and came to Australia as a migrant. The Court is advised that he holds a doctorate in structural engineering. ...
[13] The nature of the current adjournment application to a date in February 2010 is to enable an expert witness described as “Judge: David-Wynn: Miller” on the issue of “syntax fraud”.
[14] Ms Williams tendered Exhibit “A2” which she referred as being “the Amicus Curiae” prepared by Mr Miller. The accepted role of an amicus curiae is that of a person, not a representative of a party to the proceedings, being permitted to argue a point of law or fact before the Court, usually on behalf of some party indirectly interested: that is, a friend of the Court. It appears that the person who identifies himself as Judge: David-Wynn: Miller is attempting multiple roles in this case. First as that of a lay advocate for Dr Falamaki, arguing that the Creditor’s Petition is fraudulent due to syntax fraud, that of an expert witness presenting the technical argument in respect of syntax fraud and finally that of an amicus curae in assisting the Court to understand the offence of syntax fraud. ...
[17] In respect to expert witnesses, a Practice Note (CM 7) has been issued by Black CJ of the Federal Court on 25 September 2009 replacing previous Practice Notes on this issue. It clearly sets out the requirements of any witness who proposes to give evidence in proceedings and who purports to provide evidence wholly or substantially based on specialised knowledge. None of the provisions in the Practice Note have been complied with nor has any outline of evidence been provided to the other side or to the Court. From the limited behaviour exhibited in the Courtroom, it appears that the members of this linguistic cult wish to lecture the Court on syntax fraud and analyse Court documents (including the Petition) to establish that fraud has been committed by the syntactical structure of the document. A brief perusal of the documents so analysed appear to allocate dramatic structures that bear absolutely no resemblance to traditional grammar taught in this country in the last half century. ..
[25] Fraud at common law or in equity concerns the use of false representations to gain an unjust advantage. Syntax is the grammatical arrangement of words showing their connection and relationship (a set of rules for analysis of this connection and relationship). The concept of fraud perpetrated by syntax is not a concept currently reflected in the Commonwealth or State statutes or at common law.
[26] The preliminary argument advanced by Ms Williams and a large number of supporters present in the Courtroom, some of whom I am advised are specialists in the area, is that the Creditor’s Petition was fraudulent because of the structure of the syntax in that document. I enquired of Ms Williams whether her argument was that all Petitions issued were fraudulent because of their grammatical construction. She indicated that she did not wish to pursue this broader argument but wished to focus on the Petition currently before this Court. ...
[29] Ms Williams’ advancement of arguments in respect of syntax fraud can only lead to one conclusion: that all Petitions filed under the provisions of the Act are in effect invalid.
[30] The major procedural defect in her argument is that no affidavit material in respect of this issue has been filed in Court. None of the material tendered as Exhibits satisfy the requirements in respect of affidavit material. The legal representatives of the applicant creditor were not formally notified by the respondent debtor of his intention to advance arguments in respect of this issue.
[31] Further the person identifying himself as Judge: David-Wynn: Miller, a citizen of the United States of America and who claims to be a member of the “World Court”, or the person present in Court who identified himself as Stephen-Mark: Lymbery stating that he was also Judge, Postmaster and Banker, have failed to file any documentation required of an expert witness.
[32] In the circumstances I believe it is inappropriate to allow the ventilation of any submissions, arguments or claims in respect of syntax fraud. As this is the basis of the application for an adjournment, the application is dismissed.
