academics behaving badly

Bad news for Megumi Ogawa, the former lecturer in law and justice at Southern Cross University (Lismore) who attracted attention over mooning the bench during a trial for making threats to Federal Court officials. She has been refused leave to appeal to the High Court - Megumi Ogawa v The Queen [2010] HCASL 188. 

 Ogawa has been in and out of Queensland and Federal courts, often as a self-represented litigant (SRL). (One chronology, as of 2008, is provided here as part of the judgment in Ogawa v Parker [2008] FCA 388. Other cases are noted at * below.) 

 Overall it is a sad story of someone who appears to be talented and energetic - eg is the author of several papers and of Protection of Broadcasters' Rights (Martinus Nijhof, 2006) - but has what one student characterised as "serious issues", with a history of clashes with university colleagues, the Immigration Department, the Education Department, people on the bench and court staff. 

 Last year a District Court jury in Brisbane - reported in The Queen v Ogawa [2009] QDC 238 - found Ogawa guilty of two counts of using a carriage service to harass and two counts of threatening to kill court staff on various dates between 12 April and 19 May 2006. Ogawa had sent 83 emails over two days in April and made 176 phone calls to the Federal Court registry and chambers (eg to Christopher Young, the Associate to the Chief Justice of the Federal Court), including threats to kill court employees Tim Conrad and Jane Musset. 

 She was jailed for contempt over her conduct in court during trial, with Durward J punishing Ogawa's "disgraceful" behaviour and commenting - arguably with some hyperbole - that it was unlikely any Queensland court had witnessed such scenes. Her behaviour included yelling and screaming loudly, claiming she was about to soil herself, struggling with Corrective Services security guards, trying to disrobe, and exposing her buttocks to a journalist - or in some accounts to the Bench - while being dragged into court in handcuffs. At one stage she was carried out of the courtroom, where she could be heard continuing to scream on her way to the watchhouse cells. She was unrepresented at the trial. 

The trial judge found that she had deliberately withdrawn instructions from each of seven legal representatives appointed by Legal Aid Queensland to appear on her behalf. It is difficult not to feel sorry for everyone involved in her disputes. The judge stood over the hearing of the contempt charge and the sentence proceedings, with Ogawa being legally represented. She was convicted of contempt, being sentenced for that offence and for the Commonwealth offences (ie misuse of the carriage service). 

Durward J said that he did not accept her acts were due to any psychological issues - "In my view you wilfully set out to disrupt court proceedings (with behaviour) I doubt many other courts have had to endure". He went on to comment that her conduct "has given rise to a real risk of undermining public confidence in the administration of justice". In providing remarks on her sentencing he ordered Ogawa not be present, saying he expected she would disrupt the court again, but ordered Ogawa that she be brought into the prisoner's dock to hear her punishment. 

Media reports from that time indicate that, handcuffed, she screamed non-stop as she was dragged into the court by three security guards who restrained her as she tried to struggle with them. The Age reports that "Judge Durward could hardly be heard over Ogawa's noise, which was echoing outside the courtroom and down the courthouse corridor". 

 The Queensland Court of Appeal, in a 52-page decision on R v Ogawa [2009] QCA 307, subsequently dismissed her appeal against the conviction for the Commonwealth offences and for contempt. She was legally represented on the hearing of the appeal. Her grounds of challenge to the convictions for the Commonwealth offences included the absence of an inquiry into her fitness to plead and the wrongful admission of certain evidence. The Court rejected each of the grounds, save those which complained of the wrongful admission of evidence. These challenges were upheld but the appeal was dismissed under the proviso to s 668E(1A) of the Queenslan Criminal Code, the Supreme Court being satisfied that there had been no substantial miscarriage of justice. 

 As discussed in Special Leave to Appeal (Brisbane: Supreme Court of Queensland Library 2007) by David O'Brien, the High Court does not accept all special applications. The High Court's rejection of her application notes that Ogawa had been unrepresented at her trial after the judge found she had deliberately withdrawn instructions from each of several legal representatives appointed by Legal Aid Queensland. French CJ however noted that Ogawa was legally trained, a person who held a PhD in Law awarded by an Australian university.

She has been diagnosed as having a borderline personality disorder. Her behaviour in court was highly disruptive, which led the trial judge to direct that she be removed from the courtroom. In the result, the applicant was unrepresented and largely absent throughout the trial

French said Ogawa's challenge to her conviction for contempt was on grounds which included that the charge was not properly particularised, that the trial judge had not properly examined the psychiatric evidence and erred by failing to refer the applicant to the Mental Health Court. Her application for special leave to appeal from the orders of the Qld Court of Appeal was on the grounds that the Qld court erred with respect to the need for a fitness hearing and challenge the application of the proviso. French CJ indicated that there had been no substantial miscarriage of justice. The Court of Appeal's conclusion was based upon a careful review of the evidence.

There are insufficient prospects of successful challenge to the applicant's convictions for the Commonwealth offences to warrant the grant of special leave to appeal. The applicant's challenge to her conviction for contempt of court also does not warrant the grant of special leave

* Some of the decisions include -

• Ogawa v The University of Melbourne [2004] FCA 1099 - here

• Ogawa v The University of Melbourne [2005] FCA 1208 - here 

• Ogawa v Federal Magistrate Phipps [2006] FCA 361 - here 

• Ogawa v Colbeck [2007] FCA 1910 - here 

• Ogawa v Colbeck & Anor (No. 2) [2007] FMCA 2127 - here 

• Ogawa v Secretary, Department of Education, Science & Training [2005] FCA 1472 - here 

• Ogawa v Registrar of the High Court of Australia [2006] FCA 607 - here 

• Ogawa v Minister for Immigration & Anor [2006] FMCA 1039 - here 

• Ogawa v Spender [2006] FCAFC 68 - here

nonsense kills

A reader, in commenting on my note of Cornel Du Toit's review, has pointed to yet another report of Nigerian kids killed by being thrown into rivers, buried alive, drenched with boiling water, set on fire or stabbed because they are supposedly witches.

Nonsense kills.

If you can embrace claims of reincarnation, precognition and remote healing as scientific fact, why not be consistent and accept similar nonsense about witchcraft? Surely the same quantum hocus pocus that supposedly makes the clouds and cancer disappear can make the milk curdle, the cows drop dead and an enemy's hair drop out.

With apologies to exponents of quantum mysticism, there are alternate explanations. I was struck by an account of a five year old Nigerian witch - Satan is obviously an enthusiast for work integrated learning from an early age - who was denounced by his church pastor after the child's mother died. The pastor kindly told the family that

"Godwin is responsible."

From his own investigation, questioning Godwin and talking with neighbors, Sam said that when a relative asked Godwin if he was a witch, "he said no and was beaten and made the confession that he actually killed the mother."

In the West we have fortunately moved on from the days of James I (Daemonologie, 1597) or Kramer & Sprenger (Malleus Maleficarum, 1486), recognising issues about the basis of proof derived from beating a motherless five year old into a confession and - I would hope - honouring the jurisprudence of figures such as David Hume or Friedrich von Spee, author of the 1631 Cautio criminalis, or, A book on witch trials.

The latter did not rely on gibberish about quantum holism and a 'transpersonal psychology' that claims reality for messages from the dead - or undead - delivered by valve radios. (Transistor radios and digital TVs, inconsistently, just don't seem to deliver, albeit such a "materialist" emphasis on consistency is entirely out of place in dealing most quantum mumbo jumble).

Instead von Spee offered observations such as -

[the accused witch] is executed even if she did not confess, for once the torture has begun, the die has been cast; she can no longer escape; she must die. So either she confesses or she does not. Whatever happens, she is done for in either case. If she confesses, the matter is clear, as I said, and she is executed. Any retraction is made completely in vain, as we showed above. If she does not confess, then the torture is repeated two, three or four times. ...

Should [the accused] in her torment roll her eyes in agony or stare, then this is new evidence. If she rolls her eyes, look! they say, she is searching for her concubine! If she stares, look! they say, she has already found him; she is looking at him. But if she does not break her silence after several rounds of torture, if her face is twisted in pain, if she sinks into unconsciousness, etc they shout that she is laughing or sleeping during the torture, that she is using the sorcery of silence, and she must be so much the guiltier. How fitting then that she be burned alive. This was recently done to several women who did not want to confess despite being tortured repeatedly.

The Nigerian account indicates that -

Godwin was locked up with his mother's corpse every night for three weeks with little food or water before a neighbor contacted Sam, who was able to rescue him. ...

"A child witch is said to be a witch when that child possessed with certain spiritual spells capable of making that child transform into cat, snake, vipers, insects, any other animal and that child is capable of wreaking havoc like killing of people, bringing diseases, misfortune into the family," Sam said.

"When a child is accused of being a witch -- that child is hated absolutely by everybody surrounding him so such children are sent out of the home... But unfortunately such children do not always live long. A lot of them, they're either killed, abandoned by the parents, tortured in the church or trafficked out of the city."

Perhaps the Club of Budapest, World Wisdom Council and GlobalShift University could provide a few of the kids with a ticket out of the killing fields rather than burbling about the Akashic Field in World Futures and other fora. Less attention to propagating absurdities such as 'Mayan Calendar 2012' endism and the "oneness process" or repackaging Cayce and Blavatsky, please, and focus instead on substantive action regarding law reform, education and economic development.

extreme pedestrianism

From the Oxford DNB biography of Robert Barclay Allardice [known as Captain Barclay] (1779-1854) -

Barclay's most noted feat was walking 1 mile in each of 1000 successive hours. This feat was performed at Newmarket from 1 June to 12 July 1809. His average time of walking the mile varied from 14 min. 54 sec. in the first week to 21 min. 4 sec. in the last, and his weight was reduced from 13 stone 4 lb to 11 stone. He was so little exhausted that he started for the Walcheren expedition on 17 July in perfect health. 

He had previously accomplished many similar if less dramatic feats, starting at the age of seventeen, when he walked 6 miles within an hour on the London to Croydon road for a wager of 100 guineas. Another outstanding - and rewarding - achievement was to walk 90 miles in 21 hours in 1801 for 5000 guineas. He also competed in a 24-hour race against the professional Abraham Wood, an unusual match, from which Wood had to withdraw with injured feet after six hours. 

Wagers and challenges aside, Barclay's own lifestyle was one of extraordinary vigour. In 1808, for instance, he started at 5 a.m., walked 30 miles grouse shooting, dined at 5 p.m., walked 60 miles to his house at Ury in eleven hours, then after attending to business walked 16 miles to Laurence Kirk, danced at a ball, returned to Ury by 7 a.m., and spent the next day partridge shooting, having travelled 130 miles and been without sleep for two nights and three days. In 1810-11 he rode twice a week 51 miles to hunt, and after hunting returned the same night. A year later he went 33 miles out and home three times a week for the same purpose.

Barclay died from a kick by a horse. Presumably now someone would be prescribing therapy for pedestrianism that involves forgoing sleep for two nights and three days.

just keep chanting the mantra

A succinct riposte in a recent short article questioning the fashionable quantum mysticism -

Just because the microscopic world governed by the laws of quantum mechanics has some counter-intuitive features does not provide a license for people to insert mystical ideas in order to satisfy their metaphysical desires.

Or, from my perspective, by all means relish natural law - there is indeed much to be said for figures such as Aquinas and Finnis - but do not claim that mysticism is "hard science".

Mumbo jumbo such as reincarnation, remote healing, precognition, the A Field and other claims recently derided in this blog are in my opinion not "hard science", unless "hard science" is read down to mean mere hypothesis and is accompanied by a value system that - however sincerely - seems to confuse correlation with causation, conflates hypothesis with proof and disregards alternative explanations, especially legally credible explanations for supposed quantum phenomena such as reincarnation or psychic messages from the dead.

It is difficult to see an Australian QC getting very far in the High Court with claims that people actually do get messages from the dead via valve radios, that mass meditation changes the weather, that those attuned with the infinite can levitate, or that the brains of true believers have indeed become "quantum wave transceivers". I continue to wonder what most senior lawyers would say in response to suggestions that 'recollections' from people who have been fed LSD by their physician authoritatively prove the truth of reincarnation. "Communication with entities that are no longer living in the familiar form in this world but are alive nonetheless"? Not very persuasive once you escape from the wacky world of quantum mysticism and other pseudo-science. (A "health warning" regarding that horrid, horrid scepticism is here.)

In my opinion there is much to be said for rationality, modesty (for example a wariness about a totalising 'Theory of Everything' such as that espoused by Ervin Laszlo and presented by some fans as fact rather than a deliciously zany hypothesis) and clarity.

Professor Cornel du Toit of the Research Institute for Theology & Religion, University of South Africa, in a (2009) 35(2) Studia Historiae Ecclesiasticae (2009) review of Robert Park's snappy Superstition: belief in the age of science  Princeton University Press, 2008), comments that -

Some readers may find it a sobering book, while others may have a sense of self-humiliation. Very few of us can describe ourselves as free from all superstition or some form of wishful thinking. But what harm is there in superstition? More than that, why is superstition so popular and pertinacious? Why does it make us feel good? Unfortunately, these are philosophical and sociological questions that exact physical scientists never ask. To them, as to the author of this book, it is purely a matter of upholding "pure" science in the face of quasi science – in itself no doubt an honourable enterprise, but to my mind too narrow.

The question of the possible harm that superstition entails is important, however. Alternative medicine, for example, robs people who pay fortunes to obtain a placebo effect. Superstition is certainly exploited to make big money. It is a multi-billion dollar project. In the case of religion it nurtures the belief that the things that befall people are punishments for sin or lessons that they need to learn. This inevitably determines the "victim's" relationships with others, usually to his or her detriment. Superstition is not always innocent. It is part of social systems of exclusion and inclusion, acceptance and rejection. It influences the respect/disrespect accorded to others and, of course, has a definite influence on various human rights issues. Underlying superstition is also the issue of fundamentalism – a topic necessarily associated with the operation of superstition if one is to understand it. Understanding the function and role of superstition in our lives deepens our self-understanding.

Aaron Rappaport of Hastings College of the Law at the University of California meanwhile offers a provocative - and to my mind largely unpersuasive - 68 page paper on 'Conceptual Analysis in Science and Law'.

He suggests that -

Ever since HLA Hart's magisterial work, The Concept of Law, conceptual analysis has been viewed as the dominant method of doing jurisprudence. Far less appreciated is the fact that it is also a central tool in the field of cognitive science. That may be surprising to some, given the differences in these disciplines’ mission: Legal theorists struggle with abstract questions about the “nature” of Law and Justice; cognitive scientists explore the workings of the human mind. If cognitive scientists and legal philosophers are doing different things when they do conceptual analysis, how do they differ?

Rappaport goes on to indicate that his paper -

offers the first full-scale comparison of the way conceptual analysis is used in these two fields. The paper’s conclusion is provocative and striking. It argues that cognitive scientists employ an appealing and coherent form of this key methodology, while legal theorists employ an approach that might be fairly characterized as a methodological muddle. The implication for legal theory is profound: If legal theory hopes to be a relevant and coherent discipline, it must re-imagine its methodological commitments and seek out a more appealing set of tools and methods. The concluding section of the paper grapples with that challenge, offering some thoughts on how jurisprudence can be placed on a more solid and appealing foundation.

For another view of the Hartian enterprise we might turn to Simpson's comments noted here or Mark Burton's perceptively irreverent article 'The Song Remains The Same: The Search for Interpretive Constraint and Rhetoric of Legal Theory in Hart and Hutchinson' in (1997) 20(2) UNSW Law Review 407-442.

Let's drop, let's drop the big one now

US performer Randy Newman, in Political Science, sang -

No one likes us-I don't know why
We may not be perfect, but heaven knows we try
But all around, even our old friends put us down
Let's drop the big one and see what happens

We give them money - but are they grateful?
No, they're spiteful and they're hateful
They don't respect us - so let's surprise them
We'll drop the big one and pulverize them

Asia's crowded and Europe's too old
Africa is far too hot
And Canada's too cold
And South America stole our name
Let's drop the big one
There'll be no one left to blame us

We'll save Australia
Don't wanna hurt no kangaroo
We'll build an All American amusement park there
They got surfin', too

Boom goes London and boom Paris
More room for you and more room for me
...

They all hate us anyhow
So let's drop the big one now
Let's drop the big one now

I couldn't help recalling that dissection of US defence policy after reading the suggestion, in The American Spectator, that the men in black should 'deal with' Wikileaks.

Former GHW Bush Undersecretary of Defence Jed Babbin (oh, come back Merkin Muffley, come back) suggests that

WikiLeaks should be hit with the cyber equivalent of napalm. Let's have that fire sale. Burn, baby, burn.

He argues that -

Unless we interdict and disrupt them, WikiLeaks and its progeny will have free rein to publish any secrets that may fall into their hands, or which they can convince or pay people to give them to publish. The courts are not agencies of national defense. The military and intelligence communities are and it is through them we should act.

Our government has the obligation to act aggressively to protect our secrets. We need to ... make the weapons to fit the fight. That includes development, deployment, and use of every cyber weapon our computer scientists can devise to protect our secrets.

Mr Babbin seems distinctly unimpressed by the US Constitution or by law. He writes that -

given Assange's actions are based outside the U.S., in nations where Assange is safe from U.S. court action, another "Pentagon Papers" case or even an attempt at prosecution would be pointless. But we have a right to act to protect our secrets. And act we must. So what should be done to prevent Assange from publishing them?

A friend of mine, a more-or-less retired CIA paramilitary operative, sees the solution in characteristically simple terms. "We should go get him," he said, speaking of Assange.

When my friend says "get him," he isn't thinking of lawsuits, but of suppressed pistols, car bombs and such. But as heart-warming as it is to envision Assange surveying his breakfast cereal with a Geiger counter, we shouldn't deal with him and WikiLeaks that way.

Presumably the exploding cigar and glow in the dark cornflakes went out with references to 'whack him' or 'put out a hit'.

Babbin suggests that -

The elegance of this is that if we can pull off a decisive cyber operation against WikiLeaks, it can and should be done entirely in secret.

Plausible deniability, anyone?

And it's easier said than done. WikiLeaks functions, according to one expert I conferred with, through a network of computer servers in several countries. Moreover, Assange has a small army of "supporters" helping to hide and distribute information. The servers' network is hidden behind a wall of anonymous communications links. That makes a cyber attack hard to do, but not impossible.

There are legal restrictions that could prevent our military cyberwarriors from holding the fire sale. Could, but perhaps -- if interpreted aggressively -- wouldn't. This would be a good time to follow the military motto that it's better to ask forgiveness than permission. ....

Which brings us back to the spooks. They have the capability, but will they use it?

Probably not. The intelligence community is now ruled by the Department of Justice with the backing of the White House.

What can I say? The spooks are supposed to be independent of the President? The 'intelligence community' should irradiate Iceland or Sweden? Just look after the cute kangaroos.

Grave News

A reader at Melbourne University has pointed to Electronic Voices: Contact with Another Dimension? (O Books) by Anabela Cardoso, described as -

This is the story of a normal woman who experienced the impossible: objective contacts with another dimension through loud and clear voices received by electronic means during Instrumental Transcommunication (ITC) experiments. 

Dr Cardoso, a senior diplomat, describes the astounding experiences that transformed her life since she started ITC research in 1997. She presents extracts of conversations with her deceased loved ones and other personalities who insisted that they live in another world. 

The level of agreement between communications received by the author and concepts, even words, recorded by other experimenters from Jürgenson and Raudive to contemporary operators, constitutes compelling evidence of the reality of the next world that awaits us all. As communicators from Timestream told Dr Cardoso: The dead pass through here, you pass through here!. Electronic Voices breaks new ground in the literature providing details of audio contacts, recorded under controlled conditions, with beings in an evolved dimension, which they describe as another space, beyond time. This evolved dimension of life corresponds to an evolved state of consciousness in the cosmic evolutionary sequence.

Perhaps unsurprisingly, it is endorsed by Ervin Laszlo, the Akashic Field guru and World Futures 'Global Evolution' editor, who states -

Anabela Cardoso, one of the foremost researchers of communication with entities that are no longer living in the familiar form in this world but are alive nonetheless, has written a book that merits being number one on everybody's reading list. It addresses the question that is the deepest and for ordinary mortals (who may yet prove to be more than mortals) by every count the most important; and she addresses it with remarkable acuity, modesty, and in the light of unquestionably convincing evidence.

Sorry, I'm inclined to regard the "unquestionably convincing evidence" as something that can indeed be questioned, that may not be convincing and that may not indeed be what an Australian court would consider to be credible evidence. 

Cardoso, like Laszlo, has founded and edits a journal -

Anabela Cardoso licentiate in Germanic Philology, Faculty of Letters, Lisbon University, Portugal and Doctor of Public Service (Honoris Causa by Roger Williams University, Bristol, R. I., USA. A Portuguese career diplomat since 1976, Dr. Cardoso was the first woman to hold a diplomatic post outside her county. A former member of the SPR, Dr. Cardoso's long-standing interest in questions related to consciousness research led her to start experimenting with ITC (Instrumental Transcommunication). In 2000 Dr. Cardoso founded the ITC Journal which has an Editorial Board of internationally recognised scientists and researchers of the paranormal. Dr. Cardoso is a regular contributor to the Journal and to other international psychical research publications and has given presentations on ITC and her work internationally. In the year 2005 Dr. Cardoso founded the ITC Journal Research Centre, in Spain where she currently lives. In 2007 she was awarded research grants by two international institutions.

Cardoso had received a grant in 2005 -

Anabela Cardoso and David Fontana have been awarded a grant of £8,500 ($15,400) for research into Instrumental TransCommunication (ITC.) The grant, funded by Mr. Oliver Knowles and administered by the Society for Psychical Research (SPR) in London, is for the study of ITC as it pertains to the vibrational aspects of paranormal phenomena. 

As reported by Cardoso and Fontana, "In sum, the proposal involves two main initiatives which it is hoped to carry forward concurrently. In one of them, samples of the voices received by Anabela and by up to five other leading researchers (already selected) will be submitted for acoustic analysis by acoustics expert Daniele Gullà and his team at Il Laboratorio in Bologna, Italy, a laboratory that specialises in the technical investigation of paranormal phenomena, and to an independent international laboratory that will be blind to the paranormal origin of the voices. 

The purpose of the analysis will be firstly to identify the acoustic characteristics of the voices in order to study the way in which their acoustic vibrations may differ from those of normal human voices, secondly to study the acoustic differences, if any, between EVP voices and DRV voices [DRV = Direct Radio Voice], and thirdly to study the acoustic differences, if any, between the voices received by different experimenters. In addition, if recordings made by communicators when alive are available, we hope to have these acoustically analysed in order to effect comparisons between their human voices and their ITC voices."

The legitimation of what in my opinion is generously tagged as "parascience" (including messages from the dead via valve radios or spiritual typewriters, remote healing, telekinesis and reincarnation) through the establishment of journals, conferences, research centres, grants, and endorsement by likeminded authorities is a fascinating process. 

 From the perspective of an avowed sceptic it is also all rather sad and can be construed alongside classic studies by Max Weber, Norman Cohn and others regarding religious belief and authority systems, works that for me are more persuasive than social constructionist studies such as Frames of Meaning: the Social Construction of Extraordinary Science (Routledge, 1982) by Harry Collins andTrevor Pinch. Authority and legitimacy are constructed but some things - despite claims by devotees of L Ron Hubbard, Bhagavan, Targ and Blavatsky - are not.