Contempt

A friend has pointed to Prothonotary of Supreme Court of New South Wales v Rakete [2010] NSWSC 5, in which the Supreme Court found that steel fixer Te Rana Rakete was guilty of contempt of court for filming a high-risk and vulnerable Crown witness during a criminal trial in the District Court on 17 September 2008.

That trial involved defendants Hassan Ibrahim, Scott Orrock and Paul Griffin, with charges including malicious infliction of grievous bodily harm, malicious wounding, assault and related matters. The current judgment reports that the Crown argued that members of the Sydney Chapter of the Nomads Motor Cycle Gang attacked members of the Newcastle Chapter of that gang at the latter's clubhouse. One victim was Crown witness and sometime Newcastle Nomads sergeant-at-arms Dale Campton, alleged to have been shot in both knees and beaten by the accused.

SMH coverage in 2008 reported that

Mr Campton was stripped of his club jacket and a gold ring with the club's insignia on it, and then was pulled to his feet and forced to stagger inside to the clubhouse, where he was again punched and knocked to the floor, Mr Barr said.

The Sydney members then left the clubhouse and rode off on their bikes.

Police arrived soon after to find one of the Newcastle Nomads trying to wash large pools of blood away, Mr Barr said.

They found a .22 calibre bullet lying on the ground, several .45 shell casings, some blood-soaked clothing and blood "running down the driveway and the backyard of the clubhouse, as well as pooling around the motorcycles", Mr Barr said.

When police interviewed Mr Campton in hospital two days later, he would not identify his attackers. "He said he didn't know who did it and he didn't want to know who did it," Mr Barr said.

It was only much later, in May 2006, that Mr Campton told police that Orrock, Ibrahim and Griffin had been involved in the attack, Mr Barr said.

Just made for Australian television! In October 2008 Ibrahim, Griffin and Orrock were acquitted.

Acquittal was, of course, independent of questions regarding whether Rakete had interfered with the administration of justice. The Supreme Court noted that -

It was considered that Mr Campton was a high risk or vulnerable witness as he had apparently broken some ill defined code of silence for which motorcycle gangs were thought to be notorious.

Rakete had attended the hearing as a member of the public and made a video recording of Campton in the court room. He had not sought permission to film in court. Court officers gained possession of Rakete's camera and recovered audio-visual content that the latter had deleted.

Rakete

expressly denied the suggestion when put to him that his purpose in filming the witness was to obtain Mr Campton's image in order that it might be used in some form of retaliatory action against him. [He] denied that he had gone to the seat in the viewing gallery that had the best view of the witness in the witness box. He also denied that he had ceased filming and had commenced to delete his recorded images only after he had been apprehended ...

In considering two charges against Rakete the Supreme Court noted "the proposition that the film was to be used in the course of some form of reprisal against the witness", commenting somewhat acerbically that -

This is stated with ease but explained only with difficulty. I am somewhat troubled by the unadorned notion that there is some available connection between the filming of a witness giving evidence and the fact or suggestion of reprisals against that witness for so doing. It would be different perhaps if the name and image of the witness were unknown or in doubt. In this case, somewhat counter-intuitively, the witness was so well known to the accused that they were standing trial for having shot him in the legs for transgressing some code by which they were all bound. He had not been intimidated before that happened and his position in the witness box rather suggested that he remained unintimidated. It also remains unexplained in such circumstances what relationship there is to be found between the hypothetically foreshadowed reprisals against him for giving evidence and the need for film of him in the witness box as he did so.

However, the Supreme Court found that the Prothonotary, representing the State, had established beyond reasonable doubt that the act had a tendency to interfere with the administration of justice. It was not established that the witness was filmed with the intent to interfere with the administration of justice. However, intention was not required; it was sufficient for the act of recording Campton to interfere with the administration.

The decision is a useful reminder for people not to make unauthorised happy snaps or home videos in courtrooms: leave Underbelly to the professional producers.

Bubble Trouble

Andrew Odlyzko, one of the more thoughtful and engaging analysts of internet economics and business history, has released a substantial paper [PDF] - 332 pages - on Collective hallucinations and inefficient markets: The British Railway Mania of the 1840s.

He writes that the 1840s irrational exuberance -

was by many measures the greatest technology mania in history, and its collapse was one of the greatest financial crashes. It has attracted surprisingly little scholarly interest. In particular, it has not been noted that it provides a convincing demonstration of market inefficiency. There were trustworthy quantitative measures to show investors (who included Charles Darwin, John Stuart Mill, and the Bronte sisters) that there would not be enough demand for railway transport to provide the expected revenues and profits. But the power of the revolutionary new technology, assisted by artful manipulation of public perception by interested parties, induced a collective hallucination that made investors ignore such considerations. They persisted in ignoring them for several years, until the lines were placed in service and the inevitable disaster struck.

In contrast to many other bubbles, the British Railway Mania had many powerful, vocal, and insightful critics. But the most influential of them suffered from another delusion, which misled them about the threat the Mania posed. As a result, their warnings were not persuasive, and were likely even counterproductive, as they may have stimulated increased investments.

The delusions that led to the financial disaster of the Railway Mania arose from experience with the railway mania of the mid-1830s. Seldom even mentioned in the literature, it was about half the size of the big Railway Mania of the 1840s (and thus still far larger than the Internet bubble). The initial financially exuberant phase of it did collapse. But it appears to have been unique among large manias in that a few years later it was seen as having collapsed prematurely, as projects started during its exuberant phase became successful. That mania demonstrates the difficulty in identifying bubbles that are truly irrational. Both railway manias provide a variety of other lessons about the interaction of technology and financial markets.

Must reading alongside Rob McQueen's A Social History of Company Law: Great Britain and the Australian Colonies, 1854-1920 (Aldershot: Ashgate 2009).

Dusty old archives

Having encountered a dismissive item about "dusty old archives" (apparently 'old' is antithetical to valuable in the eyes of internet true believers and the net, however evanescent, is good because not dusty) I've had another look at the National Archives' grand plan to eliminate its offices in Adelaide, Darwin and Hobart. Brisbane, Melbourne and Perth next on the list?

A correspondent has kindly pointed to a speech by one Kevin Rudd on 5 April 2001 [House of Reps Hansard, 5 April 2001, 26626-26627] -

It is with some irony that I rise in the House this evening in this year of the centenary of our Federation, a year in which we are celebrating the history of our Federation, after I have discovered that in my own electorate of Griffith the repository of the National Archives of Australia located at Cannon Hill is in the process of being sold.

This is of great concern to the residents of my electorate and also to those interested in the history of the State of Queensland and in its role in the Federation The collection at Cannon Hill comprises a rich and varied source of documents on Queensland's participation in the Federation. It also provides a rich resource for those interested in family histories to make use of in compiling their family genealogies.

On our side [ie the then Opposition] we are concerned about two or three things. The first is this: simply the economics of the proposition which is before us. When we look at the proposed rental costs of the replacement facility, which will be a much smaller facility, located as a shopfront within Brisbane's CBD, we are concerned that within a matter of simply five, six or seven years whatever savings may be gained through the sale of this facility at Cannon Hill will be lost in terms of the rental payments which will be made over the same period of time.

Our second concern of course relates to staff, who have been through a period, I think, of considerable duress as a result of this decision to sell the Cannon Hill repository for the National Archives, though I have received some assurances from the local manager of the National Archives of Australia that no staff member will lose their job. I will wait and see if that in fact is honoured.

However, our third and primary concern is this: the actual integrity of the collection. I have specifically sought assurances from the relevant Minister and from his department that not a single document will be destroyed as a consequence of this move. I have received a curious undertaking from the relevant officer of National Archives in response to the question which I have put to the Minister, along the lines that no records are being destroyed as a result of the sale of the Cannon Hill repository. Records are not being destroyed as a result of the Archives vacating the repository. The assessment and 'subsequent disposal' of the collection flows from the responsibility of the National Archives to identify and dispose of records of no continuing historical and administrative value. I am deeply concerned that the decision to sell the repository at Cannon Hill may become a pretext for a rapid culling and rationalisation of the existing holdings and who knows what documents may be destroyed as a consequence of that?

As I said before, local residents are deeply concerned about this, as are residents from right across the City of Brisbane and beyond who make regular use of this facility for a whole host of research-related purposes. Because of this and because of widespread community concern, the auction for the sale of this facility, which was scheduled for late March, has now mysteriously been postponed to 10 April. The stated reason for this is that those auctioning this piece of Commonwealth Government property on behalf of the Commonwealth are concerned that people who are concerned about any loss of documents may show up and disrupt the auction. I would have thought that was people's democratic right in the first place to express their point of view. Now we are told that DOFA, the department responsible, is going to conduct the sale of this asset in private at a local hotel away from the site so that media attention, presumably, will be minimised. I do not think that is the right way to go and I am quite disappointed that that decision has been taken.

We also have a precedent for this, Mr Speaker, in your own State of South Australia. The National Archives repository there was also sold, and I understand that there was a rationalisation of the shelf space from some 29 shelf kilometres of files to 3.5 shelf kilometres of files when that facility was relocated from Collinswood to a smaller building in Angus Street in the City of Adelaide. Our concern in Brisbane is exactly the same. If you have this massive contraction of shelf space it means that documents are going to be culled. Whether we call the process one of destruction or disposal becomes immaterial if documents disappear. That is why I have launched an FOI action against the government to get to the bottom of this. That is why I have put a question on notice to the minister to get to the bottom of this. I am seeking from him an unequivocal clear-cut undertaking that not a single document will be destroyed once the sale of this property occurs and the relocation of the collection to the other facility in the CBD, to other participating government departments or to any other facility belonging to National Archives elsewhere in Australia occurs. I have yet to receive that undertaking. I am optimistic that it will soon be delivered.

How things change once one is in power.

The Archives Advisory Council, sufficiently self-impressed to sponsor an official history titled A Necessary Safeguard, appears to be embracing a 'hermeneutic of acceptance'.

Faceborg

An 'expose' about Facebook practice - here.

Meanwhile Artnet News reports that Greek artist Xenofon Kavvadias is gaining attention over proposals to put "terrorist textbooks" on display in art galleries, a display that might open him to prosecution under the incitement and possession provisions of the UK Terrorism Act. Kavvadias reportedly plans to present texts such as the Manual of Afghan Jihad, the Mujahideen Poisons Handbook, and the Islamic Ruling on the Permissibility of Martyrdom Operations as part of an art exhibition. He is reported as saying that his goal is not to support terrorism, but rather free speech, wanting "to use art to reclaim something that is lost right now: freedom of publishing and freedom of expression"

Kavvadias exhibited the covers of three such books in plastic cases for his MA degree show at Central St Martins School of Art and Design. He has displayed entire books, sealed in cases, in a show at the 10 Vyner Street gallery.

Artnet News indicates that -

His grand scheme, according to the Guardian, is a library of banned books that would "create a portrait of demons and fears." But British courts have jailed people for possession of such documents (on the grounds that they incite terrorism), and Kawadias [sic] says he won't proceed in England unless he can secure assurances that he won't be prosecuted.

He'll exhibit in the Netherlands instead, it seems.

Nothing like virtual support of free speech: no opprobrium for displaying something nasty such as child porn, media attention for the bold plan to display 'terrorist textbooks' but no action unless there is a 'get out of jail free card' in the pocket beforehand?

Decorate the program with some quotations from Spivak and Bhabha and it's a virtual exhibition: just think about the white-on-white canvases on the virtual wall, or the [insert nastiness du jour] in the curator's vitrine

Send lawyers, guns and money

... or - on second thoughts - just steal a shotgun and a flatscreen TV during a domestic or retail burglary. That's one conclusion after reading a new 48 page study [PDF] from the Australian Institute of Criminology about firearm thefts.

Firearm Theft in Australia, 2007-2008 by Samantha Bricknell is the fourth in a series of AIC reports as part of the National Firearm Theft Monitoring Program (NFTMP).

That program was established to monitor the number of firearms reported stolen in Australian states/territories and to examine the nature and characteristics of those thefts. The program is meant to assist law enforcement and policymakers in development of initiatives to reduce the incidence of firearm theft and to provide data underpinning minimum standards for storage of firearms.

It reflects the National Firearms Agreement, National Handgun Control Agreement 2002 and National Firearms Trafficking Policy Agreement 2002 which some readers of this blog will recall as generating angst among recreational shooters. It also peeved reactionaries, for example one correspondent who delightfully claims that the Australian Constitution features an explicit right to bear arms - strangely enough that provision is always AWOL whenever I've looked - and that guns, lots of guns, are needed for when 'they' come to take him away. Indeed.

The agreements sought to prohibit and/or restrict certain types of firearms (eg semiautomatic rifles); establish new firearm licensing, registration, storage and training requirements; and introduce new penalties for trafficking firearms.

The new report "illustrates a consistency in the pattern of firearm thefts across Australia between 2004-05 and 2007-08". The AIC indicates that the overall number of firearms reported stolen during each year remained below 2,000. Some 1,700 firearms (via 708 individual theft incidents) were reported to police as stolen during 2007-08. Most of those thefts involved one or two firearms apiece. They were primarily taken from private resideces (including sheds or garages). Most thefts involved rifles and shotguns.

Most of the firearms were registered at the time of theft. The AIC comments that -

many owners continued to demonstrate carelessness or negligence in securing unattended firearms, leaving them in unlocked or easily penetrated storage arrangements or making no perceived effort to conceal or safeguard the firearm at all.

It goes on to comment that -

The fate of stolen firearms remains largely unclear, although some are certainly diverted into the illegal market. Data collated for the NFTMP described a steady 12 to 13 percent recovery rate for stolen firearms in each of the years considered. This means that by the end of each reporting period, upwards of 1,200 firearms remained unaccounted for. Some of these firearms are undoubtedly retrieved at a later stage, but others are known to have been used to commit subsequent criminal offences such as murder, attempted murder and armed robbery, or are used in suicide attempts. Overall, an average three percent of reported firearm thefts involved firearms subsequently known to have been used in crime (or sudden death) or were found in possession of known offenders. The real proportion, however, is likely to be somewhat higher.

Graffiti Implements

The war on crime in WA rushes on, with the Government reminding people that not only will they shortly be protected from 'bikies from hell' (civil liberties bah humbug?) but also be saved from 'the graffiti menace'.

The Criminal Code Amendment (Graffiti) Act 2009 (WA), in effect from 1 January 2010, makes it illegal in Western Australia to sell spray paint and 'certain marker pens or similar implements' to persons under 18 years of age because these items might be used for applying graffiti. It's a nice example of law's construction of age as a legal identity: old enough to drive and engage in sexual activity but not to purchase what the Attorney General's media release characterises as "graffiti implements".

That release indicates that -

The new laws will complement the efforts of government agencies, local governments and the community to combat graffiti vandalism by increasing existing penalties to deter offenders, and introducing new offences and penalties to prohibit the sale, and reduce availability, of graffiti implements to minors.

Under the new laws, it will be an offence for a person to sell a graffiti implement to a person under the age of 18. The penalty is a maximum fine of $6,000 for a first offence and a maximum fine of $12,000 for a subsequent offence.

Vendors of graffiti implements ("sellers and their employees") will have to take reasonable steps to be satisfied that the purchaser is not a minor -

This can be done by sighting a current driver’s licence or other suitable identification.

Given that God - or law - lies in the details, what is a 'graffiti implement'? It is defined in what is now Chapter 24 of the Criminal Code (WA) as spray paint or

a pen or marker pen, or similar implement, that –

1. has a tip over 6mm wide; and

2. contains a fluid that is not water soluble and can mark a surface.

Restless antisocials will presumably skip the statutory interpretation and get an older relative/mate to hand over the money on their behalf (eg throw a pack of implements into the family shopping cart on the next traverse through KMart) or appropriate an implement or two from the classroom. Call me romantic but somehow I don't imaging that the 'criminal organizations' referred to in the preceding post will build a thriving black market in implements of infamy.

The media release illustrates a grasp of practicalities (you can't decorate every checkout with a cascade of warnings) or merely of power relationships (ie retailers are an effective advocacy group). It asks "How do new graffiti laws affect sellers?". The response is -

The new laws will apply to retailers, wholesalers or any organisation that sells graffiti implements.

Do the laws require a notice to be displayed on sellers' premises?

No. However, it will be of benefit to the seller and customers to place a notice on all premises. The notice could be similar to those displayed in outlets which sell alcohol and tobacco.

The legislation's been spruiked as desirable, because "graffiti increased by more than 30 per cent in WA between 2003-04 and 2007-08". The media release indicates that -

Between January and November this year 191 adults were charged with 473 graffiti offences and five were cautioned.

Ninety-four adults were charged with 102 offences of being in possession of graffiti implements.

A staggering 277 juveniles were charged with 1,473 graffiti offences, which is why we have moved to make it illegal to sell graffiti implements to minors.

Further, 440 juveniles were either cautioned or referred to a juvenile justice team for 614 graffiti offences and 73 juveniles were charged with 81 offences of being in possession of a graffiti implement.

Make juveniles illegal, of course (perhaps retrospectively, as Mr Swift would say), and the problem will go away.

Restrictions on sale are now standard practice. Section 10c of the Summary Offences Act 1988 (NSW) prohibits sale of spray paint cans to people under the age of 18. The effectiveness of that measure is unclear. The UK Anti-Social Behaviour Act 2003 prohibits sale to those under 16.

associational autonomy

The ABC reports that WA Attorney General Christian Porter has defended the State Government's proposed anti-association laws on the basis that the statutes will target criminal organisations. Mr Porter told ABC Local Radio the laws would only be used to combat organised crime.

The proposals are a reflection of restrictions on associational autonomy apparent in the anti-OMG (ie outlaw motorcycle gang) statutes in South Australia and NSW that have been highlighted in this blog. The WA statutes would reportedly give WA police the power to ban people from 'associating with certain groups and from visiting some establishments'.

Mr Porter claims that the legislation is appropriate -

You have to show to the relevant standard that an organisation, in this case we say that there are criminal organisations in the form of bikie clubs, that they are a criminal organisation

That's a nice slide from 'organised crime' as in bureaucratised 'Murder Incorporated, Don Corleone and the mafia through to 'criminal organisations'. Criminal because they behave in a criminal way or because they've been dubbed as 'criminal organisations' while the cameras roll?

Tom Percy QC, highlighting concerns, is reported by the ABC as commenting that the laws are a draconian attack on basic civil liberties and will not just target bikie gangs' -

It's about basic freedoms, but specifically the right to associate with whom you want to associate, it's also about whether the government has the right to take that freedom from us. I say, it hasn't.

The fact that this legislation could even be contemplated that we can even think about it in a civilised country in 2010, demonstrates the glaring need in Australia for a constitutional Bill of Rights