Exhumation

In Carly White v Candice Williams [2019] NSWSC 437 in dealing with burial rights in relation to a dispute between an  Indigenous man's de facto spouse and mother has considered law regarding exhumation, succession and the significance of "Aboriginal cultural, spiritual and religious beliefs"
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The judgment states

 The Deceased, Patrick Norman Fisher, was an Aboriginal man born on 3 August 1986. He passed away on 7 February 2018 without a will. 

The proceeding was commenced by urgent application to the Equity Duty Judge on Monday 18 February 2018. Carly White (‘the Plaintiff’) sought urgent orders that she be appointed the administrator of the estate of the Deceased and for orders entitling her to take possession of the body of the Deceased and to bury him at the La Perouse/Botany Cemetery, Sydney. The Plaintiff commenced proceedings after discovering that the Deceased’s mother had asserted a status as senior next of kin and the coroner had released the Deceased’s body to be buried at Cherbourg in Queensland. 

The Plaintiff’s application was opposed by Candice Williams (‘the Defendant’) who was the mother of the Deceased. She stated that she wished for the Deceased to be buried on country in Cherbourg. 

On 23 February 2018 Justice Rein ordered that the body of the Deceased be released to the Plaintiff for burial at La Perouse/Botany Cemetery. His Honour made it clear that this was not to be considered a final decision. 

These proceedings concern the question of what final orders should be made for the burial of the Deceased, even though the Deceased has already been buried. That is, there was little if any discussion about the law surrounding exhumation, specifically exhumation under Aboriginal law and custom. 

Given that the Deceased has already been buried, the Plaintiff simply seeks a declaration that she is entitled as against the Defendant to bury the Deceased’s body in Sydney. 

Although there is no formal application by the Defendant for corresponding relief in her favour if the Plaintiff is unsuccessful, the appropriate order would be a declaration to the effect that the Defendant is entitled to make an application for exhumation to the Secretary of the Department of Health pursuant to Reg 69 of the Public Health Regulations 2012 (NSW). 

... The issue before the Court is whether the Plaintiff or the Defendant was or is entitled to arrange for the burial of the Deceased and further to decide where the Deceased was to be buried. 

The starting point in this type of case is that there is no property in human remains (Smith v Tamworth City Council [1997] NSWSC 197; (1997) 41 NSWLR 680 at 690), but if the deceased left a will, the executor has the right to arrange the burial (Smith v Tamworth City Council at 691). If the deceased dies intestate, the administrator is in the same position. 

The Succession Act 2006 (NSW) then guides who will be considered next of kin and entitled to make an application for administration. Relevantly, the next of kin is any surviving spouse (Part 4.2, Division 3), then any children of the Deceased (s 127) and then a parent of the Deceased (s 128). 

For various reasons set out below both parties here assert they have that entitlement. The Deceased was an Aboriginal man which gives rise its own special and important considerations. In matters such as these the Court exercises its inherent jurisdiction. As to the various factors that arise, I can do no better than embrace some remarks of Doyle CJ, Chief Justice of South Australia, in the matter of In the Estate of Jones (deceased); Dodd v Jones (1999) 205 LSJS 105; [1999] SASC 458, where he said in a somewhat similar situation which confronts the Court in this case (at [29]-[32]):

In the end, it seems to me that I am confronted with two fairly clear and opposing claims. One is the claim of a de facto spouse, which has some support by reference to common law principles, and also gets the support of community attitudes that are fairly widespread in Australian society. The other is the claim of the father, which is supported by genuinely held beliefs about Aboriginal custom and law, beliefs which should be respected as far as possible. There are a number of cases suggesting that usually the person with the best claim to the letters of administration of the estate of a deceased, who dies without making a will, have the right to determine the place and manner of burial. 

I refer to two in particular they are Smith v Tamworth City Council [1997] NSWSC 197; (1997) 41 NSWLR 680 and Meier v Bell, Butterworths Unreported Cases BC 9700457. In Jones v Dodd (1999) SASC 125; 202 LSJS 201 the Full Court accepted that this was the usual approach. That is, by the usual approach I mean the reliance on these common law principles. But the Full Court did not accept that this was a binding principle to be applied in all cases, especially if there was no likelihood that letters of administration would be obtained: at 11 in particular. Perry J, with whose reasons the other members of the court agreed, said in particular at 11: 

“In my opinion, the proper approach in cases such as this is to have regard to the practical circumstances, which will vary considerably between cases, and the need to have regard to the sensitivity of the feelings of the various relatives and others who might have a claim to bury the deceased bearing in mind also any religious, cultural or spiritual matters which might touch upon the matter in question.” 

To understand that statement in context, it is important to bear in mind that Perry J did recognise that what I might call the common law approach, was the usual approach. He merely said it was one not to be rigidly applied. Also considering that statement I have to bear in mind that while the wishes and views of the defendant could be classed as religious and spiritual and perhaps the wishes and views of the plaintiff cannot, nevertheless the plaintiffs own beliefs have cultural significance because they are beliefs that would be widely shared in contemporary Australian society.

More recently in 2014, Nicholson J made some pertinent comments in State of South Australia v Smith [2014] SASC 64; (2014) 119 SASR 247 as follows (at [22]-[23]);

The received view at common law is that there is no property in a dead body; no person is entitled to ownership of a deceased’s remains. It is usually accepted that, where a deceased has left a will, the executor of the estate has the right to arrange for the burial of the body, or where there is no named executor or no will, the person who is entitled to take out letters of administration of the estate with or without a will annexed has the right. 

The common law position was summarised by Young J in the matter of Smith v Tamworth City Council: 

It can be seen from the cases that where a person has named an executor, that named executor has the primary privilege of burying the deceased’s body. Where there is no executor named, and the deceased leaves an estate, the person entitled to administration is usually the person who is responsible for the burial of the body and for the payment of the funeral expenses. That person may recoup such expenses out of the estate. As the burial usually takes place before there is a grant of administration, one looks to see the person who is most likely to get the grant of administration. As the grant follows interest, the person with the largest interest will normally be the person who is the one expected to bury the body. In circumstances where a deceased has died intestate, as in this matter, there remains support for the notion that the person eligible to apply for a grant letters of administration has the right of burial. However as noted in the judgement of Perry J (with whom Millhouse and Nyland JJ agreed) in Jones v Dodd, such an approach is problematic in situations where it is highly unlikely that a grant will be sought: Where there is no estate, and where there is no likelihood of any application for a grant of administration in intestacy ever being made, an approach based on extent of interest, or entitlement to apply for a grant, takes on an air of unreality.

His Honour went on to note (at [34]):

The authorities decided in this State, considered to this point, suggest that no standard approach or hard and fast rule can be formulated and applied when determining a burial dispute of this nature. The proper approach, ultimately, requires a balancing of common law principles and practical considerations, as well as attention to any cultural, spiritual and religious factors that are of importance. Further, it is the unique factual context of the dispute itself which will determine the weight which particular factors should be accorded. 

His Honour then identified four main considerations that could assist in the resolution of the dispute, whom might be entitled to take out letters of administration (at [47]), any Aboriginal cultural matters and concerns (at [55]), the Deceased’s own wishes (at [61]), and the wishes of any living close relatives (at [65]). 

In this Court, Campbell J in 2016 in Darcy v Duckett [2016] NSWSC 1756 at [27], in a not dissimilar set of circumstances accepted Nicholson J’s analysis that the proper approach ultimately in such a case required a balancing of common law principles and practical considerations as well as attention to any cultural, spiritual and/or religious factors that are of importance. Rothman J made reference to the authorities again more recently in 2017 in Abraham v Magistrate Stone, Deputy State Coroner [2017] NSWSC 1684. His Honour however, applied principles enunciated by Young J in Smith v Tamworth City Council. However Smith was not a case which concerned Aboriginal persons. In my view, the approach of Doyle CJ, Nicholson J as articulated by Campbell J in this Court, is the appropriate approach to be adopted. 

The Defendant in this case has no assets and died intestate. No application for letters of administration will ever likely be made. The Plaintiff nonetheless says the question as to who is the appropriate person to make such application should be considered. For example there are many authorities that support the view that where an estate exists but there is no will, a spouse or de facto spouse has been considered relevantly eligible to make such application and as a result is regarded as the person who is expected to attend to the burial. In determining whether in accordance with the authorities the Plaintiff is the best person to take out letters of administration, the nature of her relationship with the Deceased is highly relevant. To be regarded under the law as a de facto, requires many factors to be taken into account. This is apparent from the Interpretation Act 1987 (NSW), s 21C(2),(3). The factors there identified are really a checklist rather than one which is exhaustive with no particular priority. 

However there is no inflexible rule that priority to apply for administration necessarily determines the question of the release of the remains (Jones v Dodd [1999] SASC 125; (1999) 73 SASR 328 at [46], [47]), and the relevance of a de facto relationship is minimised to some extent by Part 4.4 of the Succession Act. Relevant religious, cultural and spiritual matters may well play a role together with any views expressed by the Deceased. The latter factor, the authorities suggest should be accorded considerable weight (See State of South Australia v Smith and also Frith v Schubert (2014) SASR 247 at 261). In cases such as these specific regard should be had to certain practices regarded as important by many Aboriginal people, in particular, the desire to be buried ‘on country’ (that is on ancestral lands). However, as illuminated by the expert evidence of Dr Babidge (discussed in detail below), there are occasions were practical considerations have made this ‘ideal’ unattainable. There are further particular cultural and spiritual practices that were raised in this case, including the importance of visiting and tending to the grave. 

Likewise the wishes of the Deceased’s children should carry very great weight. In particular I note the decision of Templeman J in the Supreme Court of Western Australia, in Reece v Little [2009] WASC 30, where the wishes of the children were considered extremely important particularly in the context where their mother expressed the importance of visiting their father’s grave for the purpose of grieving and mourning (at [85], [86], [97]). (see also Frith v Schubert at [57]). In State of South Australia v Smith the particular ‘living close relatives’ considered by Nicholson J to be most relevant were in fact the Deceased’s two children, he stated (at [72]) Ultimately, in my view, the interests of the deceased’s children should be accorded a greater weight than the interests of the Coober Pedy extended family even those of the maternal aunties. The nature and closeness of the respective relationships (children as against extended family) support this. 

The Court must ultimately make an evaluative judgement, taking into account all the relevant factors, including any cultural and spiritual matters, and the specific factual circumstances of the case (Darcy v Ducket [27]).

Sackar J noted in relation to  Religious, cultural and spiritual concerns

The Court may also have regard to spiritual or cultural values in resolving disputes over the privilege to dispose of a Deceased’s remains. 

The Plaintiff’s case is that the Deceased was born and raised in Redfern not in his father’s blood country, Cherbourg. Burial at La Perouse/Botany, a place where many Aboriginal people are buried, is reflective of his bond and connection with Redfern/Waterloo, which according to Dr Babidge is recognised among Indigenous people as a distinct Aboriginal community. And although a region of relatively recent origin it is nonetheless characterised by kinship ties, geographical focus on the centre of the built environment (‘the Block’) and authority figures in Aboriginal corporate bodies associated with the area. In addition Aboriginal people from across NSW and the Continent identify with a Redfern/Waterloo community, and the political activism and resistance to assimilationist government policies. Dr Babidge of course also accepts that Cherbourg is such an area as well. Although unable to identify any specific traditions that apply in Redfern or Cherbourg, Dr Babidge says that although the concept of blood connection to country is still important in contemporary Aboriginal life, it is common for many people to pass away some distance from their ancestral country. In particular Dr Babidge referred to the importance of being able to visit and tend to the grave, indeed this was emphasised in the evidence of many other witnesses. 

The Deceased clearly viewed himself as part of the Redfern/Waterloo community. Amongst his many tattoos was the word ‘Waterloo’ tattooed on his body together with the names of his sons. He played football in the area, went to school there and clearly the Redfern community regarded him as one of them. The latter is very much supported by the reaction of so many people in the area after his death. I am satisfied that the Deceased associated predominately with an urban Aboriginal culture. Over the years he had travelled to Cherbourg it seems on only three occasions [T162/35-163/14]. His contact physically at least with Cherbourg was somewhat sporadic. However it is also fair to observe that he was brought up respecting Aboriginal traditions as they pertain to country. 

Dr Babidge acknowledges the significance of burial on country. But she also comments that this is an ideal and there is a relative preference to be buried near family because of the importance of family maintaining contact with the Deceased person through visiting their grave. I should note that only one of his relatives lives near Cherbourg, his auntie Lillian. Apart from her, almost without exception, everyone else would have to travel some distance to visit his remains in Cherbourg. I consider it would be a considerable hardship for his sons and even his mother, notwithstanding her current stance. In my view, notwithstanding his visits to Cherbourg, and his deep affection and respect for his father and grandfather as a matter of practical reality, he had a much more intense and passionate attachment to the Redfern/Waterloo area, not just because of his urban lifestyle but because that is where his sons and the Plaintiff reside, as well as his mother and other family members. A decision to bury the Deceased in Cherbourg would, in my mind, give that location undue emphasis. 

There is a tension between the more traditional customs in Cherbourg and a more urban understanding of Aboriginal law/lore in the Redfern/Waterloo community. Clearly the Deceased had a strong connection with both communities and he was indeed seen by many different people as belonging to both locations. 

The evidence, which I accept, is to the effect that the Plaintiff and her sons visit the grave regularly. As no doubt do others. His mother feels presently unable to do so, partly no doubt because of this case, but also candidly indicated that she would probably visit his grave if orders were made that his body remains at La Perouse/Botany. Sadly she has forced herself to grieve without importantly visiting his grave. The Plaintiff gained an understanding from the Deceased that he had been traumatised not being able to regularly visit his own father’s grave. I accept that the ability of close family members to be able to visit and tend to the grave should be considered extremely important and awarded considerable weight.

The Court concluded

In the end, a Court has to make an evaluative judgement as to who is best suited or best able to deal with the remains of the Deceased given the various factors identified in the authorities. In my view in this case the Plaintiff and/or her children are the persons best able to deal with the Deceased’s remains consistent with his background, some of his wishes and the importance of the urban Aboriginal culture he was so deeply absorbed by.  

Had I decided otherwise, a question of whether exhumation should or should not be ordered would have arisen. As it was not a topic of argument before me I make no final determination on the matter. However I do note the position of Justice Young in Tamworth that (at 689), ‘once a body had been buried, it was not to be disturbed’. However I also note the relevant principles of Division 4 of the Public Health Regulations 2012, which now guide the process of exhumation.

Online Ticketing and the ACL

In Australian Competition and Consumer Commission v viagogo AG [2019] FCA 544 the Federal Court has found that under the Australian Consumer Law ticket reseller Viagogo AG made false or misleading representations and engaged in conduct liable to mislead the public when reselling entertainment, music and live sport event tickets, in breach of the Australian Consumer Law.

The ACCC comments

The Court found Viagogo misled consumers by claiming tickets to certain events were scarce when the scarcity only referred to the tickets available on its resale platform and didn’t include tickets available elsewhere. 

“Viagogo’s claims misled consumers into buying tickets by including claims like ‘less than 1 per cent tickets remaining’ to create a false sense of urgency,” ACCC Chair Rod Sims said. 

The Court also found that using the word ‘official’ in its online advertisements was misleading. As a result of this, consumers were misled into thinking they were purchasing tickets from an official site, when in fact Viagogo is a ticket resale website. 

“We urge consumers to only buy tickets from authorised sellers, or they risk their tickets being dishonored at the gates or doors,” Mr Sims said. 

The Court also found that from 1 May 2017 to 26 June 2017, Viagogo’s website claims drew consumers in with a headline price but failed to sufficiently disclose additional fees or specify a single price for tickets. The additional fees included a 27.6 per cent booking fee which applied to most tickets.

Yes, a 27.6% fee

“Viagogo was charging extraordinarily high booking fees and many consumers were caught out,” Mr Sims said. 

“Today’s Federal Court decision is a reminder to businesses that consumers must be clearly told that there are additional fees associated with a displayed price.” 

The Court will determine penalties and orders against Viagogo at a later date.

Burley J comments

In section 3.3.2 above I have described the operation of the website. Each of the webpages is rich in information and provides access to additional information by clicking on links available. None of the pages can be seen in its entirety on a single screen of device likely to be used by the ordinary consumer. The consumer is directed to select links that meet his or her desire in terms of ticket acquisition. As one moves through the process, the website encourages, with increasing urgency, the consumer to advance through the acquisition so that the opportunity to acquire the desired tickets is not lost. This process has the effect, if not the design, of distracting the consumer from content that is available (or that might be available by following other links) beyond that which is immediately needed to progress through the site, and corralling him or her towards speedy completion of the purchase. The use of an interactive website is to be contrasted with other media by which goods or services are promoted and sold. In the present case the website serves the function of both promoting the sale of tickets and also enabling a consumer to enter the transaction. The consumer is drawn not only into a marketing web, but also into a transactional web. The site encourages the consumer to commit to a transaction; he or she selects the event of interest, then in the Tickets and Seating Selection Page is invited to choose the desired number of tickets and, once selected, commit (or at least signify an interest in doing so) to “Buy” them for a nominated price. At each stage the consumer is assured that tickets are running short, that time is running out to buy, and that the tickets that they have selected will soon be released to other, competing purchasers. The increasing urges to completion and the “hurry up” messages create such an impression that the consumer is at risk of missing out on tickets, that he or she is likely increasingly to confine attention to only that information necessary to enter details and complete the transaction.

Further

I am unable to accept the submission advanced by viagogo that it is likely that the ordinary consumer would by the time of viewing the Tickets and Seating Selection Page be aware that the seat being sold in a ticket “marketplace” or that accordingly an additional booking fee would be expected. The first premise of this proposition is that adequate notice is provided to the consumer that the viagogo site is in fact one that only facilitates a ticket exchange. The second is that the ordinary consumer would assume, without being told, that a booking fee in the order of 28% of the total ticket price would be levied by the organiser of the exchange. Neither premise is established. 

At this point the ordinary consumer, being reasonably astute to his or her own interests, is unlikely to be aware that viagogo is operating as ticket marketplace, facilitating the re-sale of tickets held by third parties. There is no dispute that prior to engaging with the viagogo website, the ordinary consumer is not likely to be aware of viagogo or its activities. For the reasons set out in [150] above, and addressed below in the immediate context (see [168]), I do not think that the website at the pages prior to the Tickets and Seating Selection Page sufficiently alerts a consumer to that fact. Nor, for the reasons set out below, do I consider that the prior pages alert the consumer to the fact that there will be a significant further charge levied, over and above the price of the ticket. I accept that the ordinary consumer would ordinarily expect to pay a small handling fee. As much was said by Ms Bolding, who expected to pay a fee of between $2 and $8. But the evidence indicates that the viagogo “VAT and Booking Fee” is in the order of an additional 28% added to the price of the ticket. That is a significant impost that was not disclosed at this point. In this regard I consider that the combined effect of the “Buy” button and its placement directly beneath the price on the Tickets and Seating Selection Page amounts to a headline representation of the ticket price. The question then becomes whether or not it has been qualified by material sufficiently drawn to the attention of the consumer to neutralise the effect of that representation; Medical Benefits Fund at [37] (Stone J, Moore and Mansfield JJ agreeing). 

The fact that viagogo adds a VAT and Booking Fee of A$37.50 to the price per ticket is not disclosed until the final Review Page. That notification takes place after the consumer enters his or her name and credit card details, but prior to pressing the “complete” button to finalise the transaction. Although it is perhaps a close run thing, I consider that at this point an ordinary consumer reasonably astute to his or her interests is adequately notified of the charge. 

In this regard the matters to which viagogo draws attention are not sufficient to give notice to the ordinary consumer who (viagogo accepts) is not likely to have heard of viagogo or to know of its activities, that the particular tickets they seek are being offered by a third party who is not viagogo. Nor do they convey notice that viagogo will levy a handsome impost for its services beyond a handling fee. The following further points are relevant to this conclusion:

(1) The Terms and Conditions are not readily apparent on the website. They are to be found via a link at the base of each page in the end section. Navigation of the website to locate and/or acquire tickets does not oblige the user to scroll down to that point, and the link to terms and conditions is in fine print and not prominent. I consider it likely that a not insignificant number of consumers would not locate or click on those conditions prior to reaching the Tickets and Seating Selection Page. If done, the evidence is not clear what would be seen. The evidence of Ms Burke is that by clicking on a link to “Help Centre” on an email received from viagogo after acquiring tickets she was directed to a site from where she could click through to “Terms and Conditions”. She exhibits the pages. For present purposes I infer, as seems likely, that these are the same terms and conditions accessible from the end section. In submissions viagogo draws attention to clauses 1.2, 2.4 – 2.6 and 3.1 – 3.4. These identify that viagogo is a ticket re-seller, and that the price is fixed by the third party owner of the tickets, but make no mention of the fee that viagogo charges for its involvement in the transaction, or what that fee may be. 

(2) The event description on the Event Specific Page does, in the case of the Book of Mormon production, refer to viagogo as a “ticket marketplace” and that one can also “sell tickets”. I address this further in [150(3)] above. In my view this information does not convey to the ordinary consumer that the particular tickets of interest are re-sold by a third party for an additional (and sizeable) handling fee. I note that the reference to a marketplace is absent from the Cat Stevens Event Specific Page. 

(3) The information in the General Notes on the Tickets and Seating Selection Page (see [59] above) does convey that prices are set by sellers and exclude booking and delivery fees in what can only be called the fine print buried in the final bullet point. I do not consider that the ordinary user is likely either to click on the drop-down arrow to see those notes or to absorb the details therein. The heading “General Notes” does not draw attention to the fact that important information relevant to the purchase is present. In the context of the pop-up “hurry up” messages present on the page (as to which see [56] above), I find it unlikely that the ordinary consumer would read those notes. In some versions of the Tickets and Seating Selection Page, the General Notes are displayed without the need to click on an arrow. That difference is, in my view, immaterial given the small font size and the position of the bullet point at the end of the list.

MeToo

'Beyond #MeToo' by Deborah Tuerkheimer in (2019) New York University Law Review (Forthcoming) comments

 The #MeToo movement has ushered in a new kind of sexual misconduct accusation — accusation leveled through informal channels of communication. A functional analysis shows that unofficial reporting can advance important ends. But the rise of informal accusation should be of special concern to legal scholars and lawyers, who generally proceed from certain assumptions regarding the primacy of formal systems of accountability. These basic assumptions need revision if, by aiming to satisfy goals that our laws and legal institutions fail to achieve, informal reporting channels are serving as substitutes for the officially sanctioned mechanisms of accountability that monopolize scholarly attention. Unofficial reporting pathways are imperfect legal workarounds; their prevalence means that the law of sexual misconduct has been consigned to a relative state of quiescence. Over time, survivors, long disserved by the criminal law, by campus disciplinary processes, and by workplace complaint structures, have mostly turned away from the systems that have forsaken them. A needed redesign of official complaint channels should be informed by the benefits of informal reporting, along with a commitment to awakening law.

Dirani, Open Justice, Privacy and Abhorrent Material

With the recent Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 (Cth) in mind it is useful to note R v Dirani (No 33) [2019] NSWSC 288, where the New South Wales Supreme Court refused the media application for access to relevant trial exhibits for the purpose of publication and broadcasting of the contents of the trial exhibits following the delivery of verdict.

The Court determined that the interests of the administration of justice were served by the adoption of cautious and conservative approach where media sought access to electronic evidence tendered in a terrorism trial.

Johnson J states

On 11 March 2019, the jury retired to consider its verdict in the trial of the Accused, Mustafa Dirani, upon an indictment charging conspiracy to do acts in preparation for a terrorist act with an alternative count of knowingly taking part in the supply of a firearm.

Whilst the jury was deliberating, applications were made by media interests for access to trial exhibits to permit publication and broadcasting of their contents following the delivery of verdict. On 12 March 2019, I heard submissions from the Crown and Senior Counsel for the Accused and made a number of rulings and provisional rulings on the media applications: R v Dirani (No. 32) [2019] NSWSC 275.  

As the judgment in R v Dirani (No. 32) made clear, it was open to media interests to appear to press an application for access to exhibits which I had indicated provisionally would be refused.  

On 13 and 14 March 2019, Mr Sibtain of counsel appeared for Channel 9, Channel 10 and the Australian Broadcasting Corporation. He pressed an application for access to Exhibits E, F and AJ, which was opposed by the Crown and Senior Counsel for the Accused.  

Access was sought as well to other exhibits with that application not being opposed by the parties. Access was granted to these other exhibits. Immediately prior to the delivery of a verdict by the jury on 14 March 2019, I made an order refusing the media application for access to Exhibits E, F and AJ and stated that I would publish my reasons for this ruling at a later date. 

This judgment contains my reasons for that ruling. I note that the jury returned a verdict of guilty to the first count on the indictment, an offence of conspiracy to do acts in preparation for a terrorist act contrary to ss.11.5(1) and 101.6(1) Criminal Code (Cth).

In referring to the exhibits the judgment states

Exhibit E is a chart entitled “Membership in ‘The Bricks’ WhatsApp Group and Association Links”. The document identifies by way of names, photographs and dates of birth, Raban Alou, Milad Atai and the Accused. In addition, Exhibit E identifies by name, photograph and date of birth nine other persons who were members of the “The Bricks” WhatsApp group. Various lines and words appear on the chart suggesting associations between persons including some contentious areas.  

Exhibit E was tendered as an exhibit early in the trial to introduce the names of a number of persons to the jury to allow an understanding of the detailed documentary and oral evidence which was to follow. At all times, the Crown made clear that the persons identified in Exhibit E (apart from Raban Alou, Milad Atai and the Accused) were not said to be criminally involved in the conspiracy charge against the Accused. This aspect was reinforced during the trial through detailed cross-examination by Senior Counsel for the Accused of the case officer, Detective Sergeant Mardi Forsyth.  

Exhibit F is a disk containing a compilation of CCTV footage of events from about 3.48 pm on 2 October 2015 depicting Farhad Mohammad at various locations inside the Parramatta Mosque until 4.09 pm, with him then departing the Mosque and walking in the streets of Parramatta towards the New South Wales Police Headquarters in Charles Street, Parramatta where the murder of Curtis Cheng took place. Exhibit F ends with footage of Farhad Mohammad before he reached the vicinity of the New South Wales Police Headquarters, so that the terrorist act itself is not depicted.  

The footage in Exhibit F inside the Parramatta Mosque depicts other people, as well, who (apart from Raban Alou) were incidentally and innocently in the Mosque at that time for purposes quite unrelated to the planned terrorist attack.  

Exhibit AJ is a USB stick comprising a CCTV compilation of events at various locations and times in the period 29 September 2015 to 2 October 2015. Exhibit AJ depicts events involving a number of persons including the Accused, Raban Alou, Farhad Mohammad and his 20-year old sister, Shadi Mohammad.  

As noted in R v Dirani (No. 32) at [17], the Crown prepared a USB stick (MFI 68) which contains only the surveillance footage of the movements of the Accused, Raban Alou and Talal Alameddine from the time the Accused and Raban Alou left the Parramatta Mosque in separate vehicles at about 1.26 pm on 2 October 2015 and then travelled to Jones Park, Mays Hill where a meeting took place between Raban Alou and Talal Alameddine. Thereafter, the men travelled in their vehicles in convoy to Warwick Road, Merrylands, where Raban Alou and Talal Alameddine stood together talking on the footpath for some minutes with the Accused sitting nearby in his vehicle. Talal Alameddine then walked to his home in the next street whilst the Accused and Raban Alou drove in their separate vehicles to Merrylands Oval car park where they waited for some time for the arrival of Talal Alameddine, who travelled to that location on a bicycle. After a further discussion between Raban Alou and Talal Alameddine, with the Accused being in the vicinity nearby, Talal Alameddine departed on his bicycle. Then the Accused and Raban Alou travelled in their separate vehicles to a location in Lane Street, Wentworthville where they remained for some time. MFI 68 concludes at a point when the Accused departed that location in his vehicle at about 2.42 pm.  

The footage extracted in MFI 68 was of considerable importance as evidence in the trial. The media were granted access to MFI 68 (including access for copying) with the consent of the parties in the trial.  

The balance of Exhibit AJ (other than MFI 68) contains surveillance and CCTV footage at different locations in the period 29 September to 2 October 2015. This includes footage of Farhad Mohammad (and others) at different times inside and outside the Parramatta Mosque, and Shadi Mohammad with Farhad Mohammad on occasions before her departure from Australia on 1 October 2015 to travel to the Middle East.  

Exhibit AJ also contains extensive footage of other persons inside the Parramatta Mosque for innocent purposes associated with prayer and religious devotion with these persons being entirely unconnected to any plan to commit a terrorist act. Footage also includes a large number of persons who emerged from the Parramatta Mosque after the prayer service in the early afternoon of Friday, 2 October 2015 with those persons standing in Marsden Street talking amongst themselves before dispersing. Although Raban Alou and the Accused were present in Marsden Street after the prayer service, the other persons depicted in the footage were not criminally involved in these events.

In a statement of some Relevant Principles Johnson J comments

The principle of open justice is a fundamental axiom of the Australian legal system and it is appropriate to have regard to the principle when determining applications for access to exhibits: John Fairfax Publications Pty Limited v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101 (“Fairfax v Ryde Local Court”) at 525 [60]. Neither the media, nor the public at large, have a right of access to court documents. The open justice principle is a principle and not a freestanding right. There is no common law right to obtain access to a document on the court record: Fairfax v Ryde Local Court at 521 [29]-[31].

There is a public interest in facilitating fair and accurate reporting of proceedings in court: Fairfax v Ryde Local Court at 523 [47]. The entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public, and nothing should be done to discourage fair and accurate reporting of proceedings: John Fairfax Pty Limited v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324 at 353 [20]; Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at 321 [33]. It has been said that the media are “the eyes and ears of the general public”, not all of whom can attend court proceedings: Attorney General v Guardian Newspapers (No. 2) [1990] 1 AC 109 at 183. An application for media access to exhibits should proceed on the prima facie assumption that a fair and accurate report of the trial will occur: R (Cth) v Elomar and Ors (No. 3) [2008] NSWSC 1443 at [24].

In Registrar of the Supreme Court (NT) v Nationwide News Pty Limited [2018] NTSC 22, Grant CJ said at [21] (footnote omitted): “The requirement that proceedings be held in open court does not oblige the court to provide access to exhibits and court records. A proceeding is properly conducted in open court if the public has a right of admission to that court which is reasonably and conveniently exercisable. An open court does not necessarily become ‘closed’ because there is no right to access exhibits or court records, or because a request by a member of the public or media for access to exhibits or court records is refused.” I agree with this general statement of Grant CJ which accords with authority.

It is appropriate to refer to s.314 Criminal Procedure Act 1986 which states: “314 Media access to court documents (1) On application to the registrar, a media representative is entitled to inspect any document relating to criminal proceedings, at any time from when the proceedings commence until the expiry of 2 working days after they are finally disposed of, for the purpose of compiling a fair report of the proceedings for publication. (2) The documents that a media representative is entitled to inspect under this section are copies of the indictment, court attendance notice or other document commencing the proceedings, witnesses’ statements tendered as evidence, brief of evidence, police fact sheet (in the case of a guilty plea), transcripts of evidence and any record of a conviction or an order. (3) The registrar is not required to make documents available for inspection if the documents are not in the possession or control of the registrar. (4) The registrar must not make documents available for inspection if: (a) the proceedings are subject to an order prohibiting their publication or a suppression order, or (b) the documents are prohibited from being published or disclosed by or under any other Act or law. (4A) This section does not limit the operation of any other Act or law under which a person may be permitted to inspect documents relating to criminal proceedings.”

It has been said in a number of decisions that s.314 has no application to circumstances where the media seek access to electronic and photographic exhibits in a criminal trial. In R (Cth) v Elomar and Ors (No. 3), Whealy J said at [10]: “... I do not consider that s 314 of the Criminal Procedure Act has any bearing on the existence and extent of my power as trial judge to permit the media to have access to the exhibits in question. Section 314 is a relatively confined power conferring jurisdiction on the Registrar to allow access to the media to documentary material in his or her possession. The section says nothing as to the extent of the Court's power to allow access in an appropriate case to exhibits of all kind that may be in its possession or control during the trial.”

In R v Gatt (No. 5) [2018] NSWSC 447, Schmidt J held at [5] that s.314(2) did not extend to an application for CCTV footage which was an exhibit at a trial. In R v Abdallah (No. 3) [2015] NSWSC 121, Adamson J noted (at [14]) the joint submission of the parties that s.314(2) did not apply to an application by the media for access to CCTV footage and an audio recording which were exhibits at the trial. In R v Brewer (No. 1) [2015] NSWSC 1471, Bellew J at [8] noted that neither party in that case submitted that CCTV footage fell outside the terms of s.314(2).

With respect to s.314, I agree with what Whealy J said in R (Cth) v Elomar and Ors (No. 3) and Schmidt J in R v Gatt (No. 5). Section 314 Criminal Procedure Act 1986 is directed at a different scenario. It does not apply to an application by the media for access to exhibits made to the trial or sentencing Judge during or after the criminal proceedings at which the Judge has presided, in particular where the application relates to video, audio or other electronic exhibits. Apart from the text of the section itself, there is nothing in the legislative history of s.314 which supports a construction that the provision applies to media applications such as those being considered in this judgment.

The applications made by the media representatives in the present case sought access to trial exhibits by way of applications made for the purpose of Practice Note SC Gen 2, “Supreme Court - Access to Court Files”. Paragraphs 6 and 7 of Practice Note SC Gen 2 state: “6. Access to material in any proceedings is restricted to parties, except with the leave of the Court. 7. Access will normally be granted to non-parties in respect of: * pleadings and judgments in proceedings that have been concluded, except in so far as an order has been made that they or portions of them be kept confidential; * documents that record what was said or done in open court; * material that was admitted into evidence; and * information that would have been heard or seen by any person present in open court, unless the Judge or registrar dealing with the application considers that the material or portions of it should be kept confidential. Access to other material will not be allowed unless a registrar or Judge is satisfied that exceptional circumstances exist.”

Reference has been made to this Practice Note in a number of decisions where access is sought by the media to exhibits tendered in criminal trials in the Supreme Court: R v Xu (No. 1) (2005) 152 A Crim R 17; [2005] NSWSC 73 at 20-21 [17]- [23]; R v Sam (No. 5) [2009] NSWSC 543 at [4]; R v Sam (No. 16) (2009) 196 A Crim R 138; [2009] NSWSC 544 at 140 [5]; R v Abdallah (No. 3) at [14]; R v Brewer (No. 1) at [9]; R v Wran [2016] NSWSC 1026 at [8], [17] and R v Gatt (No. 5) at [5].

Where, as in the present case, the media applications for access are made to the Judge who is (or has) presided at the trial or sentencing hearing, it should be kept in mind that the Judge has control of the proceedings. Further, as Grant CJ observed in Registrar of the Supreme Court (NT) v Nationwide News Pty Limited at [25], the Judge “will have read or otherwise viewed the exhibits adduced during the proceedings and be familiar with the forensic and public interest considerations involved” with these features to be applied in determining any media application.

Where application is made by the media to the trial or sentencing Judge, whether under Practice Note SC Gen 2 or otherwise, the Court will exercise a discretion in determining whether access will be granted. The exercise of discretion will take into account all relevant considerations, including the principles referred to at [36]-[38] above, together with other features which bear upon the particular exhibit in the case at hand. Courts have recognised and emphasised the existence of such a discretion, in particular where the media seek access to video, audio or photographic exhibits for the purpose of copying and subsequent publication and broadcast: R v Xu (No. 1) at 20-24 [18]-[43]; R v Benbrika and Ors (No. 26) [2008] VSC 452 at [4]- [8]; R v Sam (No. 5) at [6]; R v Sam (No. 16) at 141 [12]; Registrar of the Supreme Court (NT) v Nationwide News Pty Limited at [29] and R v Gatt (No. 5) at [6]. Further, the exercise of discretion to be undertaken is not a narrow process. The media application in this case is not merely to inspect or view the exhibits so that a written description of their contents can be published as part of a fair and accurate report of the evidence in the trial: cf R v Abdallah (No. 3) at [19]. The application is to copy the exhibits for the purpose of electronic publication and broadcasting. There are additional factors to be considered on such an application.

Where application is made for access under Practice Note SC Gen 2, it is appropriate to keep in mind the statements of Hoeben J (as his Honour then was) in HIH Insurance Limited (In Liquidation) v General Re Insurance Australia Limited [2006] NSWSC 128 (“HIH Insurance”) at [10] and [13]: “10 Both the applicants and the respondents base their submissions on Practice Note SC Gen 2 as though the practice note was a rule of court. This, it seems to me, misunderstands the function of a practice note. Practice notes are issued with the authority of the court, by the Rule Committee, usually under the signature of the Chief Justice. Practice notes are clearly important in influencing the practice and procedures of the court, but they are not rules of court. In my opinion, their principal function is to provide guidance to the Profession as to how the broad discretion conferred on the court in relation to access to court files is exercised. ... 13 As indicated, the practice note offers authoritative guidance as to how the discretion which resides in the Court would ordinarily be exercised. In formulating the Practice Note no doubt regard was had to the underlying principles and distinctions made in the case law which has developed over recent years in Australia. It is by recourse to those underlying principles that the Practice Note provides guidance though without preordaining the outcome. The context and circumstances in which the application is made will also significantly influence the way in which the Court exercises the discretion.”

Significantly, Hoeben J stated at [21]-[22] with respect to documents which had been used in open court: “21 As a start point I do not accept the proposition put forward by the applicants that the principle of open justice requires that access be granted unless there are exceptional circumstances why it should not be granted. This matter was considered in John Fairfax Publications Pty Limited v Ryde Local Court [2005] NSWCA 101; (2005) 62 NSWLR 512 at [29] where Spigelman CJ said: ‘Neither the claimant, nor the public at large, have a right of access to court documents. The ‘principle of open justice’ is a principle, it is not a freestanding right. It does not create some form of freedom of information Act applicable to courts. As a principle, it is of significance in guiding the court in determining a range of matters including, relevantly, when an application for access should be granted pursuant to an express or implied power to grant access. However, it remains a principle and not a right.’ In that judgment the Court noted that there was no common law right to obtain access to a document filed in proceedings and held as part of a court record. 

To the extent that the Practice Note provides guidance on this issue, it does not assist the applicants in the absence of the applicants putting forward a proper reason for why they should have access to the documents sought at this time.”

In R v Abdallah (No. 3) at [15], Adamson J posed the task of the Court on the media application for access in the following way: “As the material sought was played in open court, access ought be granted unless I consider that the material, or portions of it, should be kept confidential.”

In R v Xu (No. 1) at 21 [23], [26], Kirby J appears to have approached the application for media access upon the basis that there was a prima facie right of media access to exhibits unless “wholly exceptional circumstances” exist. There are difficulties with this approach. The authorities to which his Honour referred in support of this proposition deal with applications to close the Court, not media applications for access to exhibits: R v LMW [1999] NSWSC 1111, applying David Syme & Co Limited v General Motors - Holden’s Limited (1984) 2 NSWLR 294 at 310.

In my view, there is no foundation for adding a “wholly exceptional circumstances” gloss to the discretionary exercise required where an access application is made under Practice Note SC Gen 2 or the general law. In HIH Insurance at [21] (see [52] above), Hoeben J rejected the existence of an “exceptional circumstances” test in determination of an access application made under the Practice Note. The approach of Adamson J in R v Abdallah (No. 3) (at [53] above) accords with this approach. It will be observed that the only reference to “exceptional circumstances” in Practice Note SC Gen 2 (at [46] above) appears in paragraph 7 concerning material not otherwise referred to in the paragraph. That “exceptional circumstances” test has nothing to do with the present application.

To the extent that my conclusion with respect to R v Xu (No. 1) involves a departure from the approach taken by Kirby J, I have had regard to the rule of comity referred to in Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 at 193 [57] and express the view respectfully that Kirby J was wrong in introducing a “wholly exceptional circumstances” test. To the extent that the exercise of discretion in a media application for access to trial exhibits raises broader questions concerning the administration of justice, it should be kept in mind that the concept of the administration of justice is a multifaceted one: Rinehart v Welker at 323 [39]. Where a media application for access to electronic exhibits is made whilst the jury trial is still on foot, there are additional factors to be taken into account in favour of refusal of the application until after verdict: R v Sam (No. 5) at [19]-[29]. After a verdict is returned, or in sentencing proceedings, these additional factors which applied during a jury trial will fall away.

Many factors may bear upon the exercise of discretion in a particular case, including: (a) the grief and distress which may result for the family of victims of violent crimes, including the fact that constant repetition of images can be quite traumatising for the immediate families of victims and also the community: R v Abdallah (No. 3) at [24]; R v Hemming [2015] VSC 351 at [33]; R v Brewer (No. 1) at [16]; R v Gatt (No. 5) at [11]; (b) the fact that murders and other serious crimes are not “entertainment” and ought not be the subject of repeated electronic reporting unless there are proper reasons unconnected with “entertainment”: R v Hemming at [33]; (c) the privacy of persons not said to be involved criminally in the events in question: R v Benbrika and Ors (No. 26) at [7]; R v Jovanovic (2014) 285 FLR 108; [2014] ACTSC 98 at 115 [42]- [43]; R v Abdallah (No. 3) at [23]; (d) the fact that, even when published electronically by the media as part of a fair and accurate report of criminal proceedings, visual and audio evidence so captured will be let loose and available on the Internet or other social media platforms for replay and rebroadcasting with no realistic prospect of control or recall given the lack of current controls on further use of electronic material: Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at 71-73 [71]- [80]; R v Abdallah (No. 3) at [21].

Concern about capture and further broadcasting of visual evidence on the Internet or other electronic platforms for criminal purposes is especially relevant in the area of terrorism offences. The proponents of violent jihad have demonstrated a capacity for sophisticated electronic propaganda to promote their cause, whether in the name of al-Qaeda, Islamic State or another prescribed terrorist organisation. As will be seen, the praise of so-called martyrs who have died in the commission of a terrorist act is exemplified by the evidence in this case concerning Farhad Mohammad. The murder of Curtis Cheng by Farhad Mohammad was the first case where the commission of a terrorist act in Australia in the name of violent jihad has caused the death of a person: R v Alou (No. 4) (2018) 330 FLR 402; [2018] NSWSC 221 at 404 [7].

The media access applications in R (Cth) v Elomar and Ors (No. 3) and R v Benbrika and Ors (No. 26) arose in the context of terrorism trials. However, those trials (fortunately) did not involve completed terrorist acts which had caused death, injury or destruction of property. There is an additional feature arising in the present case which must be considered in the context of this application.

The Court's reasons for Decision Refusing Access to Exhibits E, F and AJ are stated thus -

The importance of the open justice principle is to be emphasised together with recognition of the significant role of the media in informing the public as to what has happened in a criminal trial. The trial Judge has a discretion to release exhibits with that discretion to be exercised in the particular circumstances of the case. I was satisfied that there is a risk that Exhibit E (if reproduced in the media) may be viewed simplistically, and in a misleading fashion, if it was taken (wrongly) that all the persons identified on the chart were in some way involved in criminal activity associated with the trial of the Accused.

The potential for Exhibit E to be misunderstood and to convey a misleading impression lay at the forefront of issues to be considered on the application by the media for access to it for publication. This was particularly so as journalists had been present in Court on few occasions during the trial. The media would not have acquired an understanding of the role of Exhibit E which would have occurred if journalists had been present regularly during the trial.

The Court was taken by Mr Sibtain to the decision of Whealy J in R (Cth) v Elomar and Ors (No. 3) where his Honour granted access during a criminal trial to photographs of weapons which had been tendered at the trial. I note that the media has already had access to the photograph of the firearm used to murder Curtis Cheng which is contained in Exhibit J. With respect to Exhibits F and AJ, the privacy of persons who may be innocently and incidentally depicted in photographic evidence in a criminal trial is a relevant factor to be taken into account on such an application: R v Benbrika and Ors (No. 26) at [7]; R v Abdallah (No. 3) at [23].

It is necessary to keep in mind the vivid and permanent nature of video evidence which is capable of being broadcast and rebroadcast and further dissemination via the Internet and other electronic platforms. Once footage of this type is broadcast, it is not presently possible to control or recall. The material is available generally to not only responsible media outlets, but others who may seek to use or misuse it for their own sinister purposes.

This is a matter of particular significance where evidence arises in a terrorism case and where material such as that contained in Exhibits F and AJ includes CCTV footage taken in private religious premises where persons are gathered for the purpose of prayer and religious devotion. The capacity to misuse material of this type for the purpose of fanning prejudice is not farfetched in contemporary society and is an important factor to bear in mind in the exercise of discretion as to whether access to electronic exhibits ought be granted.

As noted earlier (at [60]), the circumstances giving rise to the murder of Curtis Cheng on 2 October 2015 constituted the first lethal attack in Australia by supporters of a prescribed terrorist organisation. Other prosecutions, including those in R v Benbrika and Ors (No. 26) and R (Cth) v Elomar and Ors (No. 3) involved proceedings for conspiracy to do acts in preparation for a terrorist act. Those trials did not involve a terrorist killing or circumstances where the terrorist killer was himself killed as occurred in the present case. 

Here, there is a capacity for the killer, Farhad Mohammad, to be praised and described as a martyr by those supportive of Islamic State and other extremist jihadist groups. This is illustrated by Exhibit L in the trial, the Islamic State publication “Dabiq”, released on 18 November 2015 which, in the course of praising “the martyred ‘lone’ knights of the Khilafah who struck out against the kafir and apostate enemies near them” then stated: “Amongst these brave knights of tawhid and jihad was fifteen-year old Farhad Khalil Mohammad Jabar, who on ‘2 October 2015’ struck the crusaders of Australia and killed one of their personnel.”

Elsewhere in the trial evidence, Raban Alou expressed delight in a recorded conversation with his wife, Sharna Perger, on 3 October 2015, describing Farhad Mohammad as “a soldier” and “a martyr” who had been “killed in the path of Allah” (Exhibit P). In other intercepted telephone conversations on 4 October 2015, Raban Alou referred to Farhad Mohammad as “a lion” who “will be in Paradise” (Exhibit P). It is not difficult to see how video evidence of Farhad Mohammad could be deployed in promotional propaganda by advocates of violent jihad.

Although the geographical boundaries of Islamic State have now been eliminated, it is widely known that supporters of Islamic State (and related terrorist groups) continue to operate in various parts of the world including the Philippines and elsewhere. Their propaganda machine, with videos broadcast on electronic platforms (some of which were adduced in evidence at the trial), is likely to continue to operate so that the praising of those who have died in the cause of Islamic State, characterised as martyrs, is likely to recur. Reference was made earlier (at [71]) to the publication in “Dabiq” in November 2015 which lauded the criminal acts of Farhad Mohammad in this way.

By reference to the six submissions advanced on behalf of the Crown and joined in by Senior Counsel for the Accused, I express the following conclusions.

I accept that the protection of privacy of persons who happened to be present in locations depicted in evidence, but who are not said to be involved criminally in the events in question, is a legitimate factor to take into account in determining whether to grant access to video footage in evidence.

It is the case that CCTV footage has become increasingly a form of evidence tendered in criminal trials. At times, CCTV footage depicts persons in public or private places, including persons not said to be criminally involved in the events which are the subject of the trial. In many cases, the use of pixelation or blurring of the faces of persons may be sufficient to protect those persons from unjustified linkage with criminal acts.

In this case, however, CCTV footage depicts persons in a private place of worship within the Parramatta Mosque and in a public street outside the Parramatta Mosque. I do not think that the use of pixelation or blurring of faces will serve to de-identify persons who are at those locations innocently for the purpose of attending a prayer meeting, and then standing in the street thereafter engaged in civil conversation. There are features of the persons which would allow identification even if their faces were obscured.

Further, the fact that CCTV footage depicts these persons in their place of worship provides an additional feature to be taken into account in the exercise of discretion.

The depiction of CCTV footage of persons worshipping in the Parramatta Mosque on the afternoon of 2 October 2015 adds nothing to the process of fair and accurate reporting of the evidence in the trial. There is no impediment to a written description of these events being reported by the media. Further, there is a significant overlap between concerns raised in the Crown’s first submission, and the third submission which raises legitimate concerns that the broadcasting of this footage may encourage both voyeurism and sensationalism concerning persons present in the Parramatta Mosque on that occasion. The Crown’s fourth submission overlaps with this as well, in that there is a concern that broadcasting of this material will make the footage available for irresponsible Internet access by persons with strong anti-Muslim beliefs.

The submission made by Mr Tedeschi QC picks up this theme as well (see [35] above) in that the broadcasting of this material and thus its consequential availability for Internet dissemination, may be used by persons interested in magnifying strong anti-Muslim feelings.

Although my ruling was made on 14 March 2019, it is impossible to disregard the terrible events which occurred the next day in Christchurch where many people were murdered in mosques at which they were present for peaceful religious purposes by way of Friday prayers. What is already in the public arena about that atrocity fortifies the concern that extremist anti-Muslim groups could use for criminal purposes, electronic evidence arising from a terrorism trial.

I am satisfied that these features constitute powerful reasons for refusing the media access to Exhibits F and AJ at this trial.

The Crown’s fifth submission raised a further significant issue. The broadcasting of images contained in Exhibits F and AJ may serve to magnify the grief and distress already being experienced by the family of Curtis Cheng. The capacity for repeated playing of images of persons and events on the afternoon of 2 October 2015 undoubtedly would have this adverse and damaging effect.

Further, the remaining members of the family of Farhad Mohammad may suffer grief and distress as well from the ongoing and open-ended broadcasting, no doubt repeated on electronic platforms, of Farhad Mohammad and even Shadi Mohammad as contained in Exhibits F and AJ. These factors operate as well against a grant of access to the media to these exhibits.

Intellectual Freedom And Procedure

In Ridd v James Cook University [2019] FCCA 997 Vasta J states

Some have thought that this trial was about freedom of speech and intellectual freedom. Others have thought that this trial was about the manner in which academics should conduct themselves. Some observers may have thought that this trial was about the use of non-offensive words when promulgating scientific ideas. Media reports have considered that this trial was about silencing persons with controversial or unpopular views.

Though many of those issues were canvased and discussed throughout the hearing of this matter, this trial was about none of the above. Rather, this trial was purely and simply about the proper construction of a clause in an Enterprise Agreement [EA]. Whilst the Court acknowledges that there may be consequences that touch upon these other issues because of the Court’s construction of that clause, none of those consequences can play any part in the determination of the proper construction of that clause.

The clause in question is cl.14 of the James Cook University Enterprise Agreement. It is headed “Intellectual Freedom”. It, and it alone, is the focus of this judgement. Even though in this application, the Applicant is asking for the Court to make declarations that the Respondent breached the Enterprise Agreement and therefore contravened s.50 of the Fair Work Act 2009 (Cth) (“the FW Act”), the parties have asked me to simply rule whether certain findings and directions were lawful.

If I find that they are lawful, that will be the end of the litigation. If I find that they are unlawful, I will give the parties the opportunity to make submissions about declarations and penalty.

The Court continues

The Concept of Intellectual Freedom 

Intellectual freedom is also known as academic freedom. It is a concept that underpins universities and institutions devoted to higher learning. Obviously such institutions must have administrators that care for the governance and proper direction of the institution. However, the mission of these institutions must undoubtedly be the search for knowledge which leads to a quest for truth. In reality, intellectual freedom is the cornerstone of this core mission of all institutions of higher learning.

This is so because it allows ideas to conflict with each other; to battle and test each other. It is within this “battle” that the strengths and weaknesses of ideas are found out. In this process, there comes “learning”. And with learning comes discovery.

At its core, intellectual freedom mandates that academics should express their opinions openly and honestly, while inviting scrutiny and debate about those ideas. Unless opinions are expressed in this way, the growth and expression of ideas will be stifled and new realms of thinking will cease to be explored. That will lead to intellectual and social stagnation and a uniformity of thought which is an anathema to the concept of higher learning and social progress.

Intellectual freedom allows academics to challenge the status quo and encourage critical analysis. History tells of many people who did so.

During the last 160 years, arguably the two most prominent scientists/academics to challenge the status quo have been Charles Darwin and Albert Einstein. The ideas brought forth by both of these men were extremely controversial and offended several of their academic peers as well as many others in the greater society. That is how it should be and without intellectual freedom, the world would have been denied the benefit of ground-breaking thought and intellectual risk taking of the sort that encourages innovation and other scholastic enquiries.

There is great power in intellectual freedom. But with great power there must also come great responsibility. There must, at times, be some degree of restraint so that there is no descent into anarchy. That is a fine balance and one that has challenged legal thinkers both past and present. And that, in turn, is why there is often an uneasy tension between those responsible for the administration of an institution of higher learning and those responsible for promulgating the ideas that give the institution their raison d’etre.

Turning to specifics

Professor Peter Ridd was the head of physics at JCU from 2009 until 2016. He managed the University’s marine geophysical laboratory for 15 years. His qualifications are detailed in his affidavit and there has been no realistic challenge to those qualifications.

As far as the reporting structures at JCU went, Professor Ridd reported to his “line supervisor”, Professor Ronald White. Professor White reported to the Dean, Professor Marcus Lane. Professor Lane reported to the Head of the Division of Tropical Environments and Societies, Professor Gordon. Professor Gordon reported to the Senior Deputy Vice Chancellor, Professor Chris Cocklin. Professor Cocklin reported to the Vice Chancellor, Professor Sandra Harding.

As explained already, one of the associated entities with JCU is the CoE. That institution is headed by Professor Terry Hughes. Professor Hughes also reported to Professor Cocklin. Professionally, Professor Ridd had been concerned with the quality of the scientific research that had been published about the state of health of the Great Barrier Reef. He had published a number of papers on the need for better quality assurance. In his opinion, the health of the Great Barrier Reef had been frequently misrepresented.

Relevant Chronology

On 16 December 2015, Professor Ridd sent an email to Peter Michael, a journalist with News Limited.

In effect, this email suggested that the reports regarding degradation of the Great Barrier Reef by sediment were not reliable. Overall, the email was critical about the methodology used and the conclusions made. The email even suggested questions that Mr Michael might wish to pursue with the organisations responsible for those reports. Mr Michael, somewhat surprisingly, simply sent the whole email on to Professor Hughes and asked for his comments.

Professor Hughes wrote to Professor Cocklin making a complaint about the fact that Professor Ridd had written to Mr Michael. Professor Hughes characterised the email of Professor Ridd as one that was “spun” and claimed that it had attacked his integrity and that of the institutions generally.

he matter was investigated under the Code of Conduct and Professor Ridd was given a formal censure and a “direction” as to how he was to conduct himself in the future. Professor Ridd then wrote an essay which was published in a book called “Climate Change - The Facts 2017”. This essay questioned the conclusions about the degradation and damage to the Great Barrier Reef. As a result of this chapter, Professor Ridd was invited to appear on the television show “Jones and Co” which was broadcast on Sky News channel. The interview occurred on 1 August 2017 at 8:44 PM. Professor Ridd answered questions from the host, Alan Jones, and the co-host, Peta Credlin.

A condensed summary of the interview was brought to the attention of Professor Hughes. He contacted both Professor Cocklin and Professor Harding complaining that Professor Ridd was “trashing JCU’s relationship with ARC, GBRMPA and AIMS again”.

n 24 August 2017, Professor Ridd was contacted by the HR manager for JCU who alleged that there was a prima facie case of serious misconduct committed by Professor Ridd. The HR manager directed that Professor Ridd maintain confidentiality.

Professor Ridd engaged solicitors to respond to the allegation.

There is a great deal of correspondence that issued back-and-forth.

JCU also went through all of the emails that Professor Ridd had sent from his university email to see if there were any other breaches of the Code of Conduct.

On 23 October 2017, JCU wrote to Professor Ridd further alleging that he had denigrated colleagues and failed to maintain confidentiality in a number of emails that he had written to various people. On 20 November 2017, Professor Ridd launched these proceedings stemming out of the actions of JCU.

On 21 November 2017, JCU found that Professor Ridd had breached the Code of Conduct, had denigrated Professor Hughes, had denigrated the University and interfered with the disciplinary process and had breached confidentiality.

JCU gave Professor Ridd a final censure and again made a direction regarding confidentiality.

Notwithstanding the timing, there is no suggestion that JCU knew that Professor Ridd had launched these proceedings at the time the final censure was given.

On 22 November 2017, an article appeared in The Australian newspaper detailing the application that had been filed in this Court. Subsequent to this article, it became clear that Professor Ridd was not accepting of the final censure, nor the order to maintain confidentiality.

Professor Ridd started a “Go Fund Me” page to ask for donations for his legal expenses and wrote a “flyer” explaining what he saw as his predicament. He also published material from the disciplinary processes on a “WordPress” website. A number of media articles were also published where it was obvious that Professor Ridd had spoken to the journalist involved. 

On 13 April 2018, JCU wrote to Professor Ridd and determined that nine further allegations of breaching confidentiality directions, breaching directions and breaching the Code of Conduct had been substantiated. The letter indicated that termination was appropriate but that the final decision would be made by the Vice-Chancellor.

On 2 May 2018, the Vice-Chancellor terminated Professor Ridd’s employment.

All in all, there have been 17 allegations of misconduct made against Professor Ridd.

Professor Ridd has asked the Court to determine whether or not those findings, and the directions regarding confidentiality et cetera, were unlawful. JCU have submitted that all 17 findings, and the actions taken thereon, were justified.

Further

The University has claimed that this Court can find no comfort in authorities in the United States that deal with the concept of intellectual freedom. This is so because Australia has no underlying constitutional right to freedom of speech as expressed in the First Amendment to the United States Constitution.

The University submits that to describe “intellectual freedom” as a “fundamental right” has no basis in authority. 

The University submits that the way in which cl.14 of the EA must be interpreted is only by having reference to the words themselves; and that the exercise of intellectual freedom must be done in accordance with the Code of Conduct.

It seems to me that such an approach is far too narrow. One wonders why the clause finds itself in the EA at all if the approach the University is submitting is correct. There is very little that is said in cl.14 that does not have a corollary in the Code of Conduct. As was pointed out earlier, parts of the Code of Conduct read as though they are an attempt to rewrite the Intellectual Freedom clause.

The question then becomes “if the University is correct, why is there a clause in the EA devoted to intellectual freedom?” It would seem that the whole of cl.14 is redundant if it is the Code of Conduct that determines how any academic or intellectual freedom is to be exercised.

As discussed earlier in these reasons, the concept of intellectual freedom is not recent and is extremely important as it helps to define the mission of any university. Whilst it may not be a “fundamental right”, it is nonetheless the cornerstone upon which the University exists. If the cornerstone is removed, the building tumbles. The EA is made at the enterprise level and provides terms and conditions for the employees to whom it applies. The fact that there is a clause devoted to intellectual freedom in the EA is an illustration of how fundamental the concept is to employees of a university.

It must be remembered that an Enterprise Agreement is a formal agreement that must be ratified by the FWC and cannot be changed unless the FWC gives its imprimatur. Therefore, it is the document that is the basis from which other JCU documents gain their power.

The University submits that the right to exercise intellectual freedom provided by cl.14 is subject to the other terms of the EA, which must be read together with cl.14, as part of the context of the clause. This includes cl.13 (which talks of the Code of Conduct), cl.8 (which defines misconduct and serious misconduct) and cl.54 (which prescribes the steps to be taken by the University to address allegations of misconduct or serious misconduct).

To do requires one to limit the concept of intellectual freedom and make it subservient to clauses that relate to behaviour.

The wording of cl.14 does not show that there is any such limitation on its power or applicability.

Whilst cl.14.1 speaks of the commitment of JCU to act in accordance with the Code of Conduct, it does not, in that clause, bind anyone other than the university itself with the Code of Conduct. The clause puts its own limitations on intellectual freedom. The clause speaks of a “responsibility to respect the rights of others”. As referred to earlier in these reasons, there is no right to harass, vilify, bully or intimidate those who disagree with the views espoused.

The clause links the rights to intellectual freedom to the responsibilities of staff to support the University as a place of independent learning and thought where ideas may be put forward an opinion expressed freely. The clause speaks of what staff should do and what they must do.

When the clause already has sufficient limitations on the right to intellectual freedom, it seems incongruous to then impose other limitations that have not been expressly identified.

If the clause is truly meant to be subject to compliance with the Code of Conduct, such a limitation would have been spelt out in the clause itself.

 The conclusion by Vasta J is

The fundamental error made by the University is one that pervades their conduct throughout the whole of their interaction with Professor Ridd.

The University has assumed that the Code of Conduct takes precedence over cl.14. That is why there is no reference to cl.14 in any of the reasons given for the findings. It is easy to understand why this fundamental error has been made. If one truly believes that the Code of Conduct is the lens through which all behaviour must be viewed, then cl.14 is simply superfluous and can be ignored. But this is not the reality of the situation. It is actually cl.14 that is the lens through which the behaviour of Professor Ridd must be viewed.

To use the vernacular, the University has “played the man and not the ball”. Incredibly, the University has not understood the whole concept of intellectual freedom. In the search for truth, it is an unfortunate consequence that some people may feel denigrated, offended, hurt or upset. It may not always be possible to act collegiately when diametrically opposed views clash in the search for truth.

Many aspects of the Code of Conduct cannot sit with the concept of intellectual freedom and certainly contravene cl.14. For example, the Code speaks of the need to “value academic freedom, and enquire, examine, criticise and challenge in the collegial and academic spirit of the search for knowledge, understanding and truth”. The University has denounced Professor Ridd because his enquiry, examination, criticism and challenge was not, in their view, done in the collegial and academic spirit. But there is no need for such enquiry, examination, criticism or challenge to be done that way under the rights conferred upon Professor Ridd by cl.14.

The University have been at pains to say that it is not what Professor Ridd has said, but rather the manner in which he has said it, that is the underlying reason for the censure, the final censure and the termination. But the University has consistently overlooked the whole of what has been written. They have concentrated on small, almost incidental parts of what has been said and then used the Code of Conduct to pass judgement on those small parts, with the intention that the flow on effect of that judgement would impugn the whole of what Professor Ridd has written.

The Code of Conduct is subordinate to cl.14 of the EA. And what is said by Professor Ridd must always be looked at in its whole context. The University have continually “cherry-picked” portions of the writings of Professor Ridd and said “that is not the exercise of intellectual freedom”. But it is the whole of what is written that must be looked at rather than excerpts taken out of context.

If the whole of what is said is objectively an exercise of intellectual freedom, then the protections of cl.14 apply. As was said earlier, in the search for truth, some people may be offended, even insulted. Sometimes, it is just not possible to be “collegial” in the search for truth. But if what is occurring is in furtherance of intellectual freedom, then cl.14 protects it.

It is only when behaviour is not covered by cl.14, that the Code of Conduct can apply. Clause 14 means that it is the right of Professor Ridd to say what he has said in any manner that he likes so long as he does not contravene the sanctions embedded in cl.14. That is at the heart of intellectual freedom.

That is why intellectual freedom is so important. It allows academics to express their opinions without fear of reprisals. It allows a Charles Darwin to break free of the constraints of creationism. It allows an Albert Einstein to break free of the constraints of Newtonian physics. It allows the human race to question conventional wisdom in the never-ending search for knowledge and truth. And that, at its core, is what higher learning is about. To suggest otherwise is to ignore why universities were created and why critically focussed academics remain central to all that university teaching claims to offer.

In light of the above, I make the following rulings:

The first finding made by the University was unlawful because it breached the rights that Professor Ridd had pursuant to cl.14. The censure given to Professor Ridd was unlawful as it contravened cl.14 of the EA.

The First Speech Direction was unlawful in that it sought to interfere with the rights that Professor Ridd had pursuant to cl.14.

The Second Finding made by the University was unlawful because it breached the rights that Professor Ridd had pursuant to cl.14.

The First Confidentiality Direction was unlawful because the University had no power to give that direction, and even if it did have the power, such a direction was in contravention of the rights that Professor Ridd had pursuant to cl.14.

The Third Finding made by the University was unlawful because it breached the rights that Professor Ridd had pursuant cl.14.

The Second Confidentiality Direction was unlawful because the University had no power to make such a direction, and even if it did have the power, such a direction was in contravention of the rights conferred on Professor Ridd by virtue of cl.14.

The Fourth Finding made by the University was unlawful because it breached the rights of Professor Ridd had pursuant to cl.14.

The Fifth Finding made by the University was unlawful because it breached the rights of Professor Ridd given to him by cl.14.

The Sixth Finding made by the University was unlawful because it breached the rights of Professor Ridd given to him by cl.14.

The Seven Finding made by the University was unlawful because it breached the rights that Professor Ridd had pursuant to cl.14.

The Eighth Finding made by the University was unlawful because it breached the rights that Professor Ridd had pursuant to cl.14.

The Third Confidentiality Direction was unlawful because the University had no power to make such a direction, and even if it did, such a direction contravened the rights of Professor Ridd pursuant to cl.14.

The Second Speech Direction was unlawful in that it sought to interfere with the rights Professor Ridd had pursuant to cl.14.

The Fourth Confidentiality Directions was unlawful because the University had no power to make such a direction, and even if it did, such a direction contravened the rights of Professor Ridd pursuant to cl.14.

The no satire direction was unlawful in that it sought to interfere with the rights Professor Ridd had pursuant to cl.14.

The Fifth Confidentiality Direction was unlawful because the University had no power to make such a direction, and even if it did, such a direction contravened the rights of Professor Ridd pursuant to cl.14.

The Second Censure was unlawful because it contravened cl.14 of the EA.

The Ninth Finding made by the University was unlawful because it related to the breach of a direction which was of itself unlawful.

The Tenth Finding made by the University was unlawful because it related to the breach of a direction which was of itself unlawful.

The Eleventh Finding made by the University was unlawful because it related to the breach of a direction which was of itself unlawful.

The Twelfth Finding made by the University was unlawful because it breached the rights that Professor Ridd had pursuant to cl.14.

The Thirteenth Finding made by the University was unlawful because it breached the rights the Professor Ridd had pursuant to cl.14.

The Fourteenth Finding made by the University was unlawful because it related to the breach of a direction which was of itself unlawful.

The Fifteenth Finding made by the University was unlawful because of breached the rights that Professor Ridd had pursuant to cl.14.

The Sixteenth Finding made by the University was unlawful because it breached the rights that Professor Ridd had pursuant to cl.14.

The Seventeenth Finding made by the University was unlawful because it had no substance whatsoever, and even if there were the slightest scintilla of evidence, it was contrary to the rights that Professor Ridd had pursuant to cl.14. The termination of Professor Ridd’s employment was unlawful because it punished Professor Ridd for conduct that was protected by cl.14 of the EA.

Scam and Disability

In R v Latemore [2019] QCA 55 Sofronoff P has considered scamming by a Qld police officer -

The applicant had a normal and reasonably happy upbringing. His parents brought him up well and decently. He also did well enough at school but decided to leave school at grade 9. He went to work at an aquarium business and later bought it from his employer. He sold it and then worked in different positions. He married at 19 but that marriage ended after three years. In his mid-twenties he applied to join and was accepted by the Queensland Police Force. By then he had completed grade 12 schooling by correspondence and had begun to study for a Business Diploma and a Justice Administration Diploma. He succeeded in earning these diplomas and was sworn in as a constable in 1996. 

[2] He married again in 1997. There was a child of the marriage. He was an honest and reliable Queensland policeman for 10 years. He was promoted to senior constable in 2003. Between 2005 and 2009 he was often appointed an acting Sergeant. 

[3] From late 2008 the applicant began to act in a way that was abnormal for him, judged by his past life and what it showed about his character. Indeed, his behaviour was bizarre. For reasons that will become clear, it is desirable to relate the applicants total offending, including the State offences to which he pleaded guilty and for which Judge Robertson sentenced him in January 2016. I will later identify the Commonwealth offences for which he was sentenced separately by Judge Long three years afterwards, in February 2019, and which are the subject of this application. 

[4] In August 2008 the applicant bought an expensive watch on eBay, an “Omega Seamaster James Bond 007 Limited edition”. It cost him $3,812.94. He paid for the watch using PayPal, which furnishes certain guarantees of completion. After he received the watch, he falsely claimed that he had never received it. During 2009, he persisted in this claim and even reported to police that the watch had been stolen in transit. He obtained a refund of the purchase price and a refund of import duty. 

[5] In May 2005 the applicant had obtained an ABN and had registered for GST as a sole trader. Why he did this at that time has not been explained. However, in the same month in which he fraudulently obtained his “James Bond” watch, August 2008, he notified the ATO that he elected to report GST on a quarterly basis and then, in October 2008, submitted a claim to the ATO for a refund of GST in the sum of $3,341. His BAS recited sales and purchases that he claimed he had made but, in fact, there was no business, and there had been no sales and no purchases. The ATO paid the money into his nominated bank account. This was count 1. 

[6] In June 2010 he tried to defraud the P and C Association of his daughter’s primary school of $1,000 worth of chairs. He was then President of the P and C Committee. 

[7] In late 2010 he bought an iPad at Myer for $879. He left the store and then returned and claimed that the box was empty when he opened it. He was given a replacement iPad. 

[8] In early 2011 he tried to steal some water spraying equipment from Bunnings and made ludicrous attempts to talk his way out of trouble when confronted, including the use of barely plausible forged receipts. 

[9] He repeated his BAS fraud in March 2011 claiming $7,857, in July 2011 claiming $9,090, and in September 2011 claiming $8,811 and, once more, the ATO paid him the sums he claimed. These were counts 3, 4 and 5. 

[10] On 10 December 2011 he repeated his eBay trick, this time by ordering and paying for a laptop. After he received the computer, he claimed he had not received it. When he got the replacement, he falsely claimed that he had returned it, and asked for and obtained a refund of the purchase price. In the case of the laptop that he had bought, he then additionally claimed to the vendor that he had returned the replacement that had been sent to him and tried to get a full refund while keeping the two laptops. In the same month he was able to shoplift about $3,000 worth of goods from David Jones while leaving a brilliantly lit trail leading directly to himself. 

[11] Two days after he bought the laptop, on 12 December 2011, the applicant lodged a BAS falsely declaring sales of $225,000, purchases of just under $10 million and claiming a GST refund of $879,253. This became count 6. In support of the claim, the applicant faxed the ATO a forged “Bill of Sale” evidencing the purchase of a yacht for $8,997,073. This became count 7. In the following days, in response to ATO phone inquiries, the applicant told a set of easily detectable lies to cover his tracks. 

[12] On 10 January 2012 the applicant lodged a further BAS, this time claiming a refund of $83,519. The money was not paid because the whole file was then under internal investigation. The applicant made repeated calls to the ATO chasing payment. This was count 8. 

[13] The ATO arranged to interview the applicant. On 17 February 2012, four days before the scheduled interview, the applicant called the ATO and said that he needed to amend some BAS statements (counts 3, 4 and 5) because “the contracts won’t be going ahead”. He had been paid the money and was told how to reverse the position, but never did so. During the subsequent interview, the applicant said that the first submitted BAS, count 1, related to the purchase of a Mazda for resale. Records that were easily accessible, and which the ATO accessed, showed that the car had been registered in his wife’s name, it was the car she always used, it had been insured as a private vehicle and, in any case, his wife had disposed of it in November 2011. During the same interview he falsely said that the BAS lodged in January related to the purchase of Mercedes Benz cars for resale. He falsely said that he was in the used car business. He provided forged documents to support that story. The furnishing of these documents became counts 9 and 10. 

[14] In March 2012 the applicant lodged another fraudulent BAS claiming a $15,940 refund. This sum was paid. This was count 12. In response to further inquiries, he later furnished the ATO with forgeries to support this claim. This was count 13. 

[15] In February and March 2012, having applied for and received an American Express card, he used it to buy almost $9,000 worth of property and then falsely claimed that he had never received or used the card. 

[16] In June 2012 the applicant lodged his last fraudulent BAS. The ATO paid him $93,257.50. 

[17] In late 2012 he tried to defraud a cabinet maker whom he had retained by pretending that he had paid $5,000 that he had not paid. He created false paperwork to support his story. 

[18] In early 2014 he repeated his earlier fraudulent method to get another expensive camera from an online vendor. He then sold the camera to somebody but sent the buyer a box containing cheap crockery instead.

The Court notes -

19] The oddity of this offending was largely explained by the applicant’s deteriorating mental health. In 1999, after being diagnosed with a tumour on his pituitary gland and after suffering a laceration to his arm, he was referred to a doctor to establish whether he was fit to continue as a police officer. He was found to be fit. In 2000 he consulted a psychiatrist because of stresses caused by workplace bullying. He was diagnosed with “Obsessional Personality Traits” and with a pre-disposition to depression. He was injured in a traffic accident in 2003 after which he began to suffer migraine headaches. In 2006, and again in 2007, he suffered a needle stick injury. Undoubtedly, those injuries must have resulted in acute anxiety about their possible effects. He required surgery for an injury in 2006. In October 2007 a psychiatrist diagnosed him as suffering from an adjustment disorder with mixed anxiety and depressive symptoms and another psychiatrist who saw the applicant a little later related this condition to the injuries he had suffered. The applicant made a claim for workers’ compensation. Undoubtedly his mental state had existed for some time before the actual diagnoses. 

[20] In January 2008, while in this mental state, the applicant was called upon to resuscitate an elderly woman but those efforts were unsuccessful. In the next month he was headbutted and, as a result, his jaw was dislocated and some of his teeth were broken. He was dealing with continuing workplace bullying and his expected promotion to Sergeant did not come. In November 2009 he collapsed at work and in June 2010 he collapsed at home. By no later than 2010 the applicant was seriously ill. He was suffering from major depression, post-traumatic stress disorder and continuing migraine attacks. He was self-medicating with alcohol. Over the next two years he was admitted to hospital several times and tried to kill himself repeatedly. 

[21] In February 2010 he came under the care of a psychiatrist who negligently misdiagnosed his condition and then prescribed a set of wholly unsuitable medications. These drugs taken in combination were capable of producing, and did produce, periods of delirium and intermittent impairment of his cognition. They would make him liable to great impulsivity. They would cause anxiety, irritability and mood swings from depression to manic grandiosity, confusion and impairment of the ability to understand the moral nature of his actions. The errors were later discovered and correct medicines were prescribed. 

[22] On 3 December 2010 the applicant was discharged from the Police Force on medical grounds. 

[23] In the middle of 2011 his wife left him taking their child. The divorce was acrimonious. It involved his wife’s obtaining a restraining order against him and it also led to the Family Court holding the applicant in contempt and jailing him although, it seems, that decision was later set aside.