Crims, lawyers and OPCA as a 'linguistic cult'

Today's Sydney Daily Telegraph, useful for lining the cage of anyone who keeps cockatoos in a cage, has offered an editorial pronouncement on changes to the Jury Act 1977 (NSW) that are to be formally released today. The changes reflect recommendations in the NSW Law Reform Commission report of 2007 and build on the Jury Amendment Act 2008 (NSW).

 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.

Witness Protection

The judgment in Re a former protected witness [2006] VSC 291 concerns an application by the state Commissioner of Police in Victoria to cancel an entry in that state's Register of Births consequent on "termination of protection and assistance of a witness".

The witness had officially received a new identity (birth certificate in new name, Medicare card, passport, tax file number, driver licence etc) as part of the witness protection regime founded on the Witness Protection Act 1991 (Vic). The scope of that protection is described in a memorandum of understanding (or protection agreement) between the witness and the police force. There appears to be some customisation of memos, reflecting factors such as the danger to the witness seeking/being offered protection, what the witness offers in return for protection and the extent to which both sides are savvy in negotiating a deal. Governments have gone to court to prevent disclosure of memos; one rationale - discussed in my dissertation - is that disclosure of terms encourages 'protection shopping'.

Protection is typically dependent on the witness complying with certain conditions. Fundamental dishonesty in gaining the protection or refusal to part with promised information once that protected status has been gained invalidates the deal.

Governments can withdraw protection and on occasion have indeed done so. That withdrawal may involve revocation of the new identity with which the state gifted the formerly protected person. (Revocation includes non-recognition of identifiers in some official databases and surrender of passports and other documents.) The individual is formally "restored" or "returned" to that person's former identity.

The Supreme Court in Re a former protected witness commented that -

When a person agrees to give evidence in court in circumstances where there is a concern for her safety or welfare, the legislature has put in place statutory procedures to protect the witness. And, if I may say so, it is right and proper that this be done. Such a witness might have any of a number of motives for giving evidence, but the result is that information is provided to the police and evidence given in a court for the prosecution of a wrongdoer. For this, the community of Victoria should be grateful and it should acknowledge that such a witness may be running a serious risk in so doing. Witnesses who are prepared to run that risk are brave indeed. When it is thought desirable for them to cast aside their own identity and to assume a new identity for fear for their safety and that of their family, they should not be lightly required to return to their old identity. It may be that those whom they fear will thereby be able to find them and to do them harm. It may be that, with the passage of years, their new identity has become comfortable for them. They have acquired new friends, associates, business interests and all manner of contact with government departments and instrumentalities under their new name. Doubtless there are, in a case such as the present, arrangements in place whereby the witness's tax file number, passport, driver licence, bank accounts and Medicare records can be transferred from the new identity to the old identity. But is this what the witness wishes? Will the removal of the new identity expose the witness to risk? Is it reasonable to do this? What purpose will it serve?

Magic

Magic and the Law: A Collection of Essays (Carolina Academic Press) edited by Christine Corcos is now available.

Corcos is an academic and author of an engaging blog.

The collection includes -

It's in the Cards: The Law of Tarot (and Other Fortunes Told) - Julie Cromer

Unsympathetic Magic: Charitable Status and Magical Practice in the United Kingdom - Peter Edge

Rogues, Vagabonds, and Lunatics: How the Right to Listen Cleared the Future for Fortunetellers - Craig Freeman & Stephen Banning

Non-Mainstream Religions and the Law - Pamela Edwards

"Ghostwriters": Spiritualists, Copyright Infringement & Rights of Publicity - Christine Corcos

"When You Awake You Will Feel No Remorse": Stage Hypnotism and the Law - Garrett Epps

Now You Own It, Now You Don't: Copyright and Related Rights in Magic Productions and Performances - F. Jay Dougherty

Secrets Revealed: Protecting Magicians' Intellectual Property without Law - Jacob Loshin

Selling Secrets: Legal Problems of the Magic Market - Florian Faust

Principled Conjuring Tails: A Twenty-First Century Lawyer's View of the History of Animals in Magic - Rebekah Heiser Hanley

The Magic of Civil Procedure - Frederick Brodie

The Case of the Magician's Assistant: McAfoos v. Canadian Pacific Steamships, Ltd - Robert Jarvis

Legal Regulation and Licensing of Alchemy in Late Medieval England - Wendy Turner

On Death and Magic: Law, Necromancy, and the Great Beyond - Eric Gouvin

The Type of Possession Is Nine-Tenths of the Law: Criminal Responsibility for Acts Performed under the Influence of Hypnosis or Bewitchment - Susan Rozelle

Taking the Rabbit out of the Hat: Let the Animals Disappear from Magic Acts - Lisa Johnson

Hocus Ipsa Loquitur: The Affinity between Law and Magic - Noel Marcovecchio

Conjuring and the Courtroom: All I Needed to Know about Trying Cases I Learned by Doing Magic Shows - Kenneth Trombly

Smoke & Mirrors: The Escamoteur as an Expert Witness - Sydney Beckman

Perspectives, Mainly Scottish, on Evidence and Procedure in Witchcraft Trials - Richard Ramsey

"Low Connections": Some Wisdom for the Academic Lawyer in a History of English Magic - Marianne Wesson

Restless Digits

The Australian Communications & Media Authority (ACMA) - the national telecommunications & broadcasting regulator - has released its 2008/09 annual Communications Report.

The report is disfigured by the usual bureaucratic gush - "the evident enthusiasm with which Australians are engaging in the digital economy", "digital convergence is well and truly with us" - but is a valuable source of official statistics about connectivity. Lots of activity counts, of course, and not much evaluation of what people are doing when the digits are dancing to and fro ... a consequence of ACMA's sources and the way that it conceptualises its corporate mission. (After a night interpreting Commonwealth and state evidence statutes my brain's relying on cliches such as 'corporate mission').

Put aside the flummery that indicates -

During 2008-09, Australians continued to adopt new communication and media services and adapt their usage patterns to meet their specific lifestyle needs. Services such as 3G, VoIP and wireless broadband internet are being increasingly used, with factors such as lifestyle, age and family type shaping these choices. Australians increasingly seek flexibility in where and how they access communications and content.

Instead, graze some of the figures. ACMA indicates that the number of mobile phone services reached 24.22 million last year, up by 9.5%. There were 2.1 million wireless broadband services as of 30 June 2009, up 162% on the preceding year.

As with other advanced economies - one former colleague rang up, of course on the mobile, to sing 'die POTS, die' - the number of fixed-line phone services again declined, down by 3% to 10.67 million. All major carriers reported mobile network revenue exceeding revenue from the Public Switched Telephone Network (PSTN). There were 12.28 million 3G mobile services as of June 2009, up from 8.55 million in June 2008.

Normalisation of the internet - now as yawn-worthy as having a mobile and more popular than owning a cat (if the rather problematical stats about moggy ownership are to be believed) - is evident in continuing growth in subscriptions, with a reported 8.4 million internet subscribers in Australia at June 2009. That is up from 7.2 million at June 2008. Around 80% of Australians have an internet service at home. Most of those services are "broadband enabled"; broadband subscribers have risen 6.72 million. Wireless broadband subscribers accounted for 25% of all internet subscribers at June 2009, up from 11% at June 2008.

ACMA aggregates numbers from ISPs in reporting that during the 2009 June quarter Australians downloaded 99,993 terabits of data, up from 55,434 terabits. Not all of that was clips of Lady Gaga or Michael Jackson. The population supposedly "viewed 46.6 billion web pages from home", up from 38.9 billion in 2008.

It's not quite time to abandon 'dinosaur media' and commerce. ACMA claims that "online data and information services" generated revenue of $1.37 billion during 2008-09. Online advertising expenditure reached $1.7 billion by the end of 2008.

First hoons, now gawkers?

A friend has alerted me to proposals in South Australia for a 'bushfires gawker fine', likely to inconvenience the unpleasant partnership between 'mainstream' and 'citizen' media (with the former relying on DIY paparazzi to provide cheap images of live celebrities or dead nonentities.

The ABC reports that "a push is being made to impose a 'gawkers fine' on sightseers who hang around bushfire zones."

State/territory statute and common law provides some leverage in dealing with people who impede police, ambulance and fire service personnel in dealing with road accidents, house fires, industrial accidents and bushfires.

Port Lincoln mayor Peter Davis is reported, however, to have met with the South Australian Premier and Opposition Leader regarding a new law that would penalise "people caught by using their mobile phone cameras at bushfire scenes". The ABC report is sketchy but presumably such legislation would cover use of other digital still and video cameras, with exceptions for image capture by journalists (the latter being professional journalists rather than members of the 'citizen media').

Davis reportedly explained that he's seeking action -

when Parliament re-sits to immediately enforce the capacity of emergency service personnel to photograph these idiots' number plates and you'll get a 'gawkers fine'

That's more appropriate than demands by other figures earlier last year for life imprisonment, hanging, sterilisation or other nastiness to arsonists - questioned in my 'Burning With Indignation: Arson, Law and the 2009 Victorian Bushfires' in 15(1) Local Government Law Journal (2009) 35-45. A gawker fine alongside the hoon legislation discussed recently? Do we need special legislation for bushfires? Do we need legislation against any gawking?

Meanwhile the NSW Government, apparently still having trouble making sense of what went wrong with the 2008 'Henson' raid, discussed in David Marr's The Henson Case (Melbourne: Text 2009), is considering recommendations by the Child Pornography Working Party.

The 45 page report [PDF] by that Working Party is being spun in a predictable manner, given the unwillingness of an ailing government to avoid the temptation of voicing outrage and easy solutions.

Acting Premier John Hatzistergos has thus indicated that the 'artistic merit defence' - which contrary to hype has not been raised successfully on a large scale and thus has not protected legions of producers/consumers of child pornography - will probably be scrapped.

Although promising community consultation before legislation is introduced in the state parliament following the report, he commented that -

We have a situation where we have the clause being present almost as an excuse for child pornography. And that sets up a presumption that somehow it's OK for artists to create images that are pornographic. That's not the message that we want to get across.

In reality that statement is incorrect: there is no such legal presumption and it is unfortunate that such a statement is coming from a man who is also the state Attorney-General.

Media coverage of the report and its reception by the Government has highlighted the Working Party's recommendation that the maximum prison sentence for possessing child pornography should be doubled, ie increased to 10 years.

Mr Hatzistergos reportedly indicated that to his knowledge the 'merit' defence had not been successfully used in NSW and insisted that changes were not what the SMH characterises as "a knee-jerk reaction to the Bill Henson case of 2008", with Hatzistergos explaining that "It would be wrong to look at these laws in the context of any individual case".

While calling for deletion of the non-used 'artistic merit' defence the Working Party apparently has not suggested removal of the 'news and reporting' defence, with the Government hastening to add that the print/electronic media will continue to be free to feature images of kids.

Risk allocation

I've spent the morning reading Diana Wyndham's 1996 PhD dissertation (History, Sydney Uni) on Striving for National Fitness: Eugenics in Australia, 1910s to 1930s. It's an excellent account of aspiration, anxiety and sheer barking moonbat zaniness among proponents of 'racial' or other 'hygiene' from the 1860s onwards. I was thus in the mood for Paul Campos' feisty 'Undressing the Terrorist Threat: Running the numbers on the conflict with terrorists suggests that the rules of the game should change' in the 9 January online Wall Street Journal. Campos takes a statistics-based 'toughen up princess' stance regarding institutional overreaction that has seen US airlines instruct passengers to remain seated for the last hour of flight and Canadian lines reassure passengers that yes, it is ok to have a book in your lap. 

Campos argues that -

As to the question of what the government should do ... the answer is simple: stop treating Americans like idiots and cowards. It might be unrealistic to expect the average citizen to have a nuanced grasp of statistically based risk analysis, but there is nothing nuanced about two basic facts:

(1) America is a country of 310 million people, in which thousands of horrible things happen every single day; and (2) The chances that one of those horrible things will be that you're subjected to a terrorist attack can, for all practical purposes, be calculated as zero.

Consider that on this very day about 6,700 Americans will die. When confronted with this statistic almost everyone reverts to the mindset of the title character's acquaintances in Tolstoy's great novella "The Death of Ivan Ilyich," and indulges in the complacent thought that "it is he who is dead and not I." 

Consider then that around 1,900 of the Americans who die today will be less than 65, and that indeed about 140 will be children. Approximately 50 Americans will be murdered today, including several women killed by their husbands or boyfriends, and several children who will die from abuse and neglect. Around 85 of us will commit suicide, and another 120 will die in traffic accidents. 

No amount of statistical evidence, however, will make any difference to those who give themselves over to almost completely irrational fears. Such people, and there are apparently a lot of them in America right now, are in fact real victims of terrorism. They also make possible the current ascendancy of the politics of cowardice—the cynical exploitation of fear for political gain. 

Unfortunately, the politics of cowardice can also make it rational to spend otherwise irrational amounts of resources on further minimizing already minimal risks. Given the current climate of fear, any terrorist incident involving Islamic radicals generates huge social costs, so it may make more economic sense, in the short term, to spend X dollars to avoid 10 deaths caused by terrorism than it does to spend X dollars to avoid 1,000 ordinary homicides. Any long-term acceptance of such trade-offs hands terrorists the only real victory they can ever achieve. 

It's a remarkable fact that a nation founded, fought for, built by, and transformed through the extraordinary courage of figures such as George Washington, Susan B. Anthony and Martin Luther King Jr. now often seems reduced to a pitiful whimpering giant by a handful of mostly incompetent criminals, whose main weapons consist of scary-sounding Web sites and shoe- and underwear-concealed bombs that fail to detonate. 

[Overreaction to threats], in short, is made possible by a loss of the sense that cowardice is among the most disgusting and shameful of vices.