Precedent Suitable for a Nation of Sheep.

A speech caught my eye, by Lionel Murphy at the  Labor lawyers Conference in Adelaide in 1979 (with thanks to Bernadette for the referral):

Doctrine of precedent eminently suitable
for a nation overwhelmingly populated by sheep.


“My fellow lawyers, and in that I include the distinguished legislators who are here this evening.
The law and its procedures in most respects are out of date, inefficient and often unjust. This is known by everyone, except 90 per cent of the bar and 95 per cent of the judges.
The civil and criminal laws are complex and bewildering to the average person, even specialists have difficulty in understanding some of them. Defamation, privacy, corporate crime, industrial law and a host of other areas scream for change. Property rights are still preferred to civil, political and personal rights.
The out-of-date laws and procedures are not only unjust to individuals and groups, they also result in a huge burden of social cost. Most lawyers are resistant to change. Many of them are resolutely determined to oppose any change. Only public pressure will bring about the necessary changes.
Let us turn to some of the areas whee change is necessary. 
The criminal justice system in Australia and not only in Australia, is a disgrace to civilised society.
We know that at the lower end of the scale there are pressures to plead guilty, which prove irresistible to most persons caught in the system. It’s, they say, easier for a camel to go through the eye of a needle, than it is for a rich man to go to jail.
The committal proceedings we have are a public scandal, especially in the area of corporate crime. Committal proceedings are dragged out, public time is wasted and an enormous amount of public expense is incurred and very often, where frauds have been perpetrated against the public, little or nothing happens. We can provide better procedures than this.
In the indictable matters, trial judges often have to give directions, which are absurdly complex and overloaded with detail. The judges are often engaged in technical exercises that they hope will satisfy the Court of Criminal Appeal rather than illuminate the minds of the jury.
The direction that a trial judge is now supposed, for example, to give on self-defence could not be understood by a jury of 12 intelligent corporate lawyers, and I suspect not by most judges who have to administer that branch of the law.
A distinguished law officer in South Australia appealed to the High Court for some enlightenment on this area, but those present, including myself, felt unable to assist him.
It is really regrettable that the legal system can be viewed  with such a lack of confidence by the public that it achieves little of its aimed goals and it falls with great severity on the poor in the community and those least able to defend themselves.
Corporate frauds against the public are often committed with the assistance of accountants and lawyers, who close their eyes to what they know is happening.
There seems to be some kind of magic, which prevents the law on aiding and abetting or counselling being applied to those professionals without whose assistance the crimes could hardly be successfully carried out.
The United Nations Congress on prevention of crime and the treatment of offenders was due to be held in Sydney in 1980. This has now been cancelled by the Australian Government. Some think that Australia does not need to learn anything about the treatment of offenders and perhaps our history shows that that may be correct.
Two hundred years ago Europeans came to a country inhabited by peaceful people living in harmony with their environment, with an ancient system of law and a highly developed system of social justice. They had no need of the goods, the law, or the ideas of the invaders.
For these offences the British Government took away their land, wiped most of them out and brutalised and degraded them.
We continue to degrade them, to discriminate against them and to deny them elementary human rights. They are only one per cent of our population.
Fifty per cent of our population are women. The women of Australia were once in the forefront of the struggle for emancipation of women and the struggle for civil and political rights
Whether or not this was an offence, we have systematically denied them civil and political rights, sometimes overtly and by means of law, but very often covertly.
Consider the judiciary. There has never been a woman on the High Court or the Federal Court. Recently complaints were made that no judge had ever come from the three smaller states.
But, the fact that no woman has ever been appointed rouses no comment.
The community tolerates sex discrimination, men tolerate it, women tolerate it. One only has to go to a racecourse and see that in the official enclosures there are invisible lines across which women must not pass. The control of that, of course, is in the State legislatures, often in the State governments, but nothing is done about it.
If we turn to other areas where reform is needed, there are signs in Australia that we are about to repeat the unfortunate experience with labour injunctions and contempt citations against trade unions issued by ordinary courts.
The union injunctions brought the courts into such real contempt in the United States that their intervention was outlawed by legislation, but indications here and elsewhere are that the lesson has not been learnt by the experience of others, but is to be learnt by ourselves.
In the area of tax avoidance, this is the rich man’s province.
Some of the best brains of the law devote their energies to tax avoidance. Some of the work of the legislators is designed to overcome the work of the tax avoidance experts, but anyone conversant with the field knows that the Treasurer is standing there like King Canute.
He may hold back the waves immediately in front of his feet, but no more. While the tax laws are interpreted in the way that they have been it’s not possible for legislation to overcome tax avoidance.
As fast as one loop-hole is closed, 20 will be able to be opened and the answer, as everyone knows, is not how the law is drafted but how it’s interpreted.
I move to the doctrine of precedent, and that’s a favourite doctrine of mine. I have managed to apply it at least once every year since I’ve been on the bench.
The doctrine of precedent is one that whenever faced with a decision, you always follow what the last person did who was faced with the same decision.
It is a doctrine eminently suitable for a nation overwhelmingly populated by sheep. As the distinguished chemist, Cornford said, “the doctrine is based on the theory that nothing should ever be done for the first time”.
The vast part of the common law, which is the area not occupied by constitutions and legislation, is still judge made. It’s called the common law, which disguises its true nature that it is judge made, or decisional law.
The judges having made the law, or it having been made by their predecessors, they are entitled to bring it up-to-date, but they often neglect to do so under the excuse that only parliament can do this.
This excuse is contradicted by 700 years of the history of the common law and if it were not so we would still be deciding cases according to the law of Stephen I.
The myth that judges do not make law is still subscribed to by many judges. The community is entitled to ask how then has the common law changed beyond recognition in areas not controlled by statutory law?
There are many great judges who repudiated this myth. There was the great judge, Coke, who is well remembered for his career. He commenced as a controversial Attorney General and went on to become a revered judge.
In modern times, many luminaries, such as Justice Holmes and Lord Denning, have laughed at the myth that judges do not make law. It’s been described as infantile or puerile, and so it is.
It should be admitted judges can change the law in the areas left to them by constitutions and legislation. They should not change it by stealth; they should change it openly, and they do not have to change it by small degrees; they should change it as much as they think necessary.
It is intellectually dishonest to change the law by distinguishing cases and other devices, when what is called for is a frank repudiation of the ground of the previous decision and an acknowledgment that a new approach should be taken.
Essentially this is a non-democratic process, because it is left to a group of appointed people. This is largely unavoidable because the representative system is not really capable of dealing with the day-to-day adaption of the law in certain areas. That’s the lesson of history.
Being aware of the undemocratic nature of it, it is essential that the appointed law makers be exposed to the democratic process. Their decisions should be freely available and the reasons publicised and subjected to informed scrutiny and criticism, and to the legitimate pressure of public opinion.
The social function of the judges needs to be understood, studied, criticised and improved.
The myth that the judges cannot make law is readily used to justify the judges not making law, and if that were accepted that would be a triumph of conservatism over what has proved to be essential to the evolution of our society.
If one looks back at what’s happened to society, one sees that it has moved from the feudal system through the mercantile and the industrial revolution and into our modern complex society.
Much of the change has been accompanied by vast changes in the law and those vast changes have, for the most part, been accomplished by judicial decisions. In some cases, and in many cases, the law lagged behind the social changes while in other areas, the law was in advance, and helped to promote the social changes.
Take one example. Mansfield was well-know for taking out-of-date commercial laws of Great Britain, and going to the merchants and finding out what their practices were and almost single-handedly rewriting the commercial law of Great Britain.
That was instrumental in the evolution of London to become the commercial centre of Europe and in its way an important factor in the enormous growth of the British Empire.
The growth of trade, the growth of imperialism was made possible, to a large extent, by the fact that Britain was this commercial centre, that it had a set of sensible laws and others wanted to deal with it, and that trade and commerce could flourish.
There are many examples throughout the history of the law of the sensible adaptation of the laws to the necessary changes in society. 
Regrettably in this century, one has seen the large amount of abdication of judicial responsibility in Great Britain. From 1898 to 1966 the British judiciary contended that once the law was made, in all events by the House of Lords, it was not changeable other than by parliament.
That brought about a tendency to freeze the law and we have suffered in Australia by our tendency, as part of the post-colonial syndrome, to follow this trend even more zealously than did the British.
The response of the legislatures to the judges declining to adapt the law has been to set up law reform commissions. This is one of the main reasons for the establishment of the Australian Law Reform Commission. But had the judicial function been properly exercised, I think it would have been unnecessary to have the law reform commissions, which proliferate in Australia.
However, it gives the public a forum through which to press for changes in the law and enables them to participate in the legal process in the areas, which were formerly the preserve of judicial decision.
In another respect the public has had an important part to play, which is now diminishing. The public participation in the judicial process is in two ways.
One is very indirect and that’s in the appointment of the judges by the legislature and executive representatives of the people.
The other is the jury system and that’s an extremely important function of the people in the judicial process.
Regrettably again, that area of participation is diminishing and it’s an anti-democratic process which is being pursued. The argument for taking away the juries in corporate crime is said to be that the cases are too complex for juries to understand. I believe that’s nonsense.
The traditional approach of the law has been that if you have a complicated subject matter, the answer is not to do away with the juries and have decisions by experts, but to bring experts into the court-room and give the evidence by experts to the jury.
No corporate fraud is more complicated than was a poisoning case, the trial of William Palmer, for strychnine poisoning. If you want to run through the history of the law you will find again and again cases of the greatest complexities which were handled and handled admirably by the jury system.
The trend towards doing away with the jury has very strong implications, which are inimical to the freedom of the people.
We need definition and development of the law in may areas – childrens’ rights, prisoners’ right, those of other disadvantaged groups.
We need community legal education beginning in the schools; we need provision of legal aid as an instrument to equalise opportunity.
This will require change in the attitudes of academics, of practitioners, government as well as private, and of judges.

The impetus for change will not come from the establishment lawyers, it will come from lawyers like you. It is worthy of the efforts of Labor lawyers; it is a labour of love.”

No More Lunch Break?

Article from Lawyers Weekly:

“Phew! US law firms can breathe a sigh of relief after a US Supreme Court ruled that their lawyers can continue to beaver away for the billable hour without taking a lunch break.


As CIO Today reports, last week the California Supreme Court unanimously ruled that employers are under no obligation to ensure that their employees actually take their lunch break to which they are legally entitled.

The case arose after lawyers acting on behalf of workers argued that abuses are routine and widespread at companies which do not ensure employees take their designated lunch break. The lawyers claimed that employers take advantage of workers who do not want to leave their colleagues during busy times.

While most lawyers would be familiar with the unspoken expectation that they work through their lunch break (and their breakfast and dinner in many cases) to meet their billable targets, now it has been confirmed that law firms don’t have to stop it from happening.

In a win for law firms across the state, the Supreme Court ruled that requiring businesses to order breaks would be unmanageable and that the decision should be left to workers.

Well, Folklaw can only laugh at the thought of a lawyer deciding to walk out of the office to take an hour for lunch while their colleagues give them piercing looks of disapproval as they do what it takes to clock their seven-odd hours of billable work.”

Time for another Royal Commission in NSW

In 1995 a groundbreaking and significant review into Police corruption and practices in general was conducted. Known as the Wood Royal Commission it delved into the depths of Police misconduct, ultimately leading in no small part to the resignation of then Commissioner Lauer and paved the way towards an overhaul of the force, the employment of greater professionalism and improved conduct protocols across the board.


Today NSW Police have some of the best educators, training and faculty development at the Police College and again throughout an officer’s career.

However the incident on the weekend in which two boys were shot by Police raises sufficient question for there to be a review conducted, by a senior judicial figure, as to the use of violence by NSW Police.

In recent months, there has been a number of incidents involving Police violence. It is timely to remind those young officers in the force, whose memory may not stretch back so far as 1995, of the valuable lessons learned and the changes (for the better) that Commissioner Ryan implemented.

What of the Police Integrity Commission I hear you say? It is irrelevant. I have acted for a client who was thrown against the wall sufficiently to cause his apparent unconsciousness. When reported to the PIC, their response was that it wasn’t sufficiently serious for them to investigate.

Take the hands out of the PIC and put it back in the hand of Justice Wood, the fellow who’s skill and compassion sought out wrong and set the state on the path to making it right.


For more coverage see this morning’s article in the SMH from whence the above picture came.

Aaron Kernaghan.

Bad Cops Keep Their Jobs

This from todays Daily Telegraph online:

“TWENTY law-breaking police have been allowed to keep their jobs despite being involved in cover-ups, assaults and destroying drugs which have been seized. 

Their punishment was “forced disciplinary transfers” allowing them to work as law enforcers by accepting moves to different commands. [AK: also known as a “Hospital Pass“]

The most notorious case involved a detective who had “sexual intercourse with a civilian in a police car while on duty” which was uncovered by The Sunday Telegraph last year.

The married officer – formerly of the Redfern command – was demoted but kept his job despite the police taking out an AVO to keep him from the woman, a teenage model.

The other cases of serious and at time criminal misconduct include:

– A senior constable who sprayed a colleague with insulin as a “practical joke”.
– An officer who allowed a civilian to drive a police vehicle with the siren on – and then tried to cover it up.
– Two budding forensic investigators who cheated on their physics exam.
– An officer who turned a blind eye to a drug detection and destroyed the evidence.
– A sergeant who badly bashed his wife and kept an unlicensed air rifle at home.

Details of each case were provided to The Sunday Telegraph following a Freedom of Information request, which took two months.

The officers received their disciplinary transfers between July 2009 and March 2012.”

Full article here.

Bizarre Weekend: Orange? You’re Fired

More from Folklaw

The enthusiasm of an American law firm’s employees for happy hour – and their decision to dress for the occasion – has had executives “seeing orange” and firing them all.

RollOnFriday reports that 14 employees of a law firm in Florida were sacked because they all wore orange t-shirts to work on pay day.

Apparently, employees at law firm Elizabeth R Wellborn rocked up to work sporting the bright orange attire last week. According to them, this is something they have always done on pay day and, in order to celebrate a few more dollars in the bank, they descend on the local bar for happy hour. 

The orange uniform, they say, fosters “a feeling of togetherness”. 

Unfortunately, such solidarity was lost on the firm’s new management committee and the whole orange team was promptly called into a conference room and fired.

Why, you ask? 

The management team thought the orange shirts were part of a secret protest by employees, who are now suing the firm for wrongful dismissal. 

Unfortunately, though, the “at will” Florida employment law means you can fire anyone for any reason at all (well, almost), and this includes their wardrobe.

The firm’s sacked administrative supervisor has insisted that the bright attire was not worn in protest (of what exactly, Folklaw is not entirely sure) but instead helped them “get in the mood” for cheap beer. 

And, she added, she just happens to like wearing orange.

“Orange happens to be my favourite colour. My patio is orange. My lipstick was orange today.”

The firm has refrained from commenting.

Static-99 Test Fails the Test

We have opposed reliance by courts on the results coming from Static-99 tests since they started to regularly appear in reports prepared for sentencing procedures with courts in Western Australia and South Australia are notable in their criticisms of the failing of the test.
According to the website www.static99.org The Static-99 is a ten item actuarial assessment instrument created by R. Karl Hanson, Ph.D. and David Thornton, Ph.D. for use with adult male sexual offenders who are at least 18 year of age at time of release to the community. It is the most widely used sex offender risk assessment instrument in the world, and is extensively used in the United States, Canada, the United Kingdom, Australia, and many European nations.
West Australian Supreme Court, Mr Justice John McKechnie suggested “the main reason the WA DPP applied to keep sex offender Leslie Fred Free behind bars after his five-year jail term expired was his ‘high-risk’ score in the test.
The Supreme Court judge dismissed the DPP’s application, criticising the test’s reliance on 10 static, or unchanging, risk factors.
“This application highlights the limitations of Static-99,” his written ruling explained.
“The respondent will remain at a statistical high risk of offending under Static-99, no matter what interventions occur and how much he changes his lifestyle, because it takes no account of dynamic factors.”
Static-99 is used more than any other test, and in many countries, to measure a sex criminal’s chances of reoffending.
Justice McKechnie concluded that “uncritical acceptance” of its results negated the purpose of treatment programs offered in prisons.
As a growing band of legal and psychological researchers across Australia queries the use of Static-99 for sentencing, judges in other states have to date accepted the results apparently without question.”
This is covered expansively in an article from perth.com.au which can be found here.
Then there is this interesting article from the Connecticut Law Review which provides useful information about how the Static-99 test works.
See the full judgement of Mr Justice McKechnie here.
For a more recent example of the way Static 99 is taken into account by courts, see this example also from West Australia.

New President of the NSW Children’s Court

Attorney General Greg Smith SC has announced the appointment of District Court Judge Peter Johnstone as president of the Children’s Court of NSW.  Judge Johnstone has served on the bench of the District Court since 2006. He has also served as a Deputy Chair of the Medical Tribunal since 2008 and as a part-time Commissioner of the NSW Law Reform Commission since 2010. Prior to taking public office, Judge Johnstone worked as a solicitor for 33 years. He held a number of senior positions at Blake Dawson Waldron including National Chief Operating Partner and Managing Partner of the law firm’s Sydney and Melbourne offices.


Judge Johnstone will begin a five year appointment as President of the Children’s Court on 1 June 2012. He replaces Judge Mark Marien, who will return to the District Court.

Further information here.

Children in Custody? Champagne!

A group of lawyers are participating in an event designed (we assume) to bring awareness to the plight of juveniles in custody.
They are going to gaol overnight on Friday, 11 May 2012 in a Sydney juvenile detention centre. Let’s hope they do better than what has happened in the past in adult cells. 
In an article in InBrief, we are told that barristers “are working with Whitelion, an organisation working with Juvenile Justice to secure opportunities for young people involved in the youth justice system or at risk of involvement.  Whitelion secure employment and provide support and guidance to assist in helping the kids to not reoffend and get their lives back on track.”
The event will involve the barristers having to raise $3,000.00 to secure their release on bail. “They will  be stripped of possessions, fingerprinted, photographed and subjected to interrogation. They will also appear before a magistrate in a mock court proceeding before being sentenced to cell time. Attorney General Greg Smith will be pardoning their release the next day.”
Check out their inmate profile page. Apparently all funds go to Whitelion (a non-for-profit charity).
A worthy event? Of course, children, like adults, aren’t “interrogated”, they are interviewed. You can raise as much money as you like, doesn’t mean you’ll get bail. That is often to do with whether or not as a juvenile you have somewhere to live, somewhere safe to go. Many practitioners have seen the awful plight of a child being kept in custody because there is nowhere else for them to go. As to why Police would be photographing children, its beyond me. 

But all is well – as the website for Whitelion notes, if you participate the good news is that (like all juveniles who are release from detention) you too can partake of “a well-deserved champagne breakfast.” Or if the promise of champagne is not enough for you,  you can always opt out by fleeing gaol at 11 PM to avoid the sleepover. 

I appreciate the sentiment but for me at least, there is something very awkward about seeing the words “Children” “Juvenile” “In Custody” “Champaign” and “Mock Court” all in the same article. Surely this sort of thing isn’t to be made light of? Gaol is never sleepover.

Does all this talk of champagne puts you in the mind of the apocryphal Marie Antoinette?
Aaron Kernaghan.

Corrective Officer Bashes Inmate

The Sydney Morning Herald and TEN News are covering the disgraceful situation in which corrective services officers have been stood down after they bashed a prisoner who had spat in the face of one of the officers. Graphic camera footage released yesterday shows the officers punching the prisoner in a holding cell. 

Read the full story here

The footage (which is shown in an accompanying video clip at the above link) shows thuggish and disgraceful behavior – initially by the prisoner in spitting at an officer but then by an officer in a response that is the very worst demonstration of physical misconduct by people who have control over citizens. We are told that the prisoner received two months gaol for spitting at the officer. 

The officer is awaiting a sentence of his own. It’s not clear if he’s in custody while he waits for it.

What is encouraging is that one of the officers on hand reported the incident and clearly, whoever was operating the video cameras in the cells at Newcastle, knew enough about the inappropriateness to pan and zoom so as to ensure the incident was properly recorded. What is surprising is that we only hear about this now – months after the incident took place.

Aaron Kernaghan.

Judge’s Views on Other People’s Views

The NSW Supreme Court’s Chief Judge at Common Law, Mr Justice McLellan delivered a speech to the Rule of Law Institute of Australia on 29 March 2012.

The speech, which was picked up by the Sydney Morning Herald, puts forward the Judge’s view that sentencing judges need to have a keener sensitivity to the public opinion of those crimes for which they are sentencing. His Honor doesn’t suggest that judges should do what shock-jocks tell them, only that they consider carefully the opinions that are often expressed on talk-back radio and other similarly “democratic” forums for the expression of views. The speech exhorts the relevance of informed opinion to the judicial function on sentencing and makes reference to interstate examples of the experience of courts trying to do precisely that.


The speech is not especially long and worth reading in full coming as it does from a judge who regularly sits in the Court of Criminal Appeal and hears appeals against the harshness of sentenced handed down by other judges. The speech doesn’t go into any analysis of how public opinion of a crime in general must be offset against the requirement that punishment fit the crime in particular nor does it offer any thoughts regarding the concept that public opinion of a crime is usually incapable of being anymore informed than about the crime objectively and not the particulars of the incident before the court. This is especially so in the case of sexual offences where the law in NSW is such that a great deal of information that can be potentially relevant to an informed opinion cannot be published or, out of caution, is not published or otherwise available to the commentating public.

Justice McLellan does have some keen observations however:

“The reduced incidence of violent crime and property crime in our community since 2000 is not reflected in public opinion. Nor is the high conviction rate for these crimes being recognised by the community. People perceive sentences to be too lenient. Rightly or wrongly, many people believe that inadequate sentences are a major cause of crime, if not the main cause.”

His Honor sees a division in between people based on where they “get their news from”:

“People who get their news from talkback radio and the tabloid media are among
those who hold the courts in the lowest regard.4 Many in the legal community as well as some in the general community dismiss the legitimacy of their views.5 It is likely that those who read the Sydney Morning Herald, listen to Richard Glover or watch ABC television will have different responses to these issues than readers of the Daily Telegraph and listeners to Alan Jones or Ray Hadley.”

On the other hand, regular practitioners in criminal law not only do not dismiss Alan Jones or Ray Hadley – they have an awareness of those views and indeed have given interviews to them or actively contribute to the commentary that those commentator’s programs facilitate. One judge has been interviewed on-air on such a program. For defence lawyers, our clients frequently “get their news” from such sources as His honour is referring to.

Much could be said about whether or not all news is in fact news as opposed to mere opinion. For now, the speech will resonate, no doubt, through sentencing submissions by Crown Prosecutors. Time will tell if it marks a turning point towards increased sentences or more generous concession to the views of the public gallery.

Given the need to keep public opinion informed, is it now time to revisit whether or not we should have cameras in court?

Aaron Kernaghan.