Merry Christmas Everyone

Merry Christmas Everyone

To all of you from all of us. Thanks to all our blog followers for the last 12 months, what a year! Have a safe and fun and interesting day and we will see you all next year!

Shocking Video of Police

Police Brutality?
Will there be anyone charged?

A former WA policeman appearing to punch and knee a prisoner in the head has been released after a lawyer for the constable failed in a court bid to suppress the video.

CCTV footage showed an 18-year-old man with his head seemingly pulled back by the force of a neck hold.

At one point, both his feet are off the ground and he is seen slumping, although there is insufficient evidence to conclude he lost consciousness. He is then taken to a padded cell and stripped naked by five police officers.

Three weeks later, the same officer is seen on camera punching and kneeing a 31-year-old man after the detainee hit him in the nose. The officer is later seen throwing the detainee to the floor, face down while his hands are cuffed behind him. He is then left face down and unresponsive.

The report concluded the actions of the former constable, who resigned in May, might constitute criminal assault.

“Might”??? What do you think? The footage is disturbing and caution should be used. Click here for the video and full article.

World Record for Christmas Lights goes to… a barrister.

Barrister Claims Guiness Records for Christmas Lights

A barrister in Canberra has made global headlines after switching on more than half a million Christmas lights to reclaim a Guinness World Record. A total of 502,165 lights are illuminating David Richards’ home in Forrest, smashing the world record for the most lights on a residential property.

Richards and his family originally won the title in 2011 with a 331,038-bulb effort. However, in 2012, they were outshone by a New York home that strung up a staggering 346,283 lights.

Anyone can visit the home to see the lights after dark until 26 December at 3 Tennyson Crescent, Forrest. Entry is via a gold coin donation.

Full story here:

Threatening a Judge? Post it on Facebook?

Facebook - post your confessions? Get found guilty...
Facebook – post your confessions? Get found guilty…

Two Maryland men have pleaded guilty to threatening the judges presiding over their respective cases. Zachary Mitchell and Justin Ferrell traded complaints about two Anne Arundel County judges in Facebook postings, reported The Baltimore Sun.

“I’ll hit ur judge and u hit mine lol,” Mitchell told Ferrell on Facebook, according to court documents.

Putting ‘lol’ at the end of a threat doesn’t make it ok guys…

The pair claimed they were just kidding, but the court was unconvinced. That might have had something to do with the fact that, according to a police informant, Mitchell allegedly tried to buy a gun for the ‘joke’ hit.

Full story here.

James Howell Comments: Stephen Hunter Appeal


James Howell – Senior Associate
Kernaghan & Associates Lawyers

Victorian man Stephen James Hunter has had his life sentence without parole confirmed by the Victorian Court of Appeal (VCA). In a split decision the VCA determined that despite Mr Hunter’s early guilty plea, he should never be eligible for parole.

Mr Hunter, who is now aged 47, was asking the Court to impose a non-parole period of thirty-five years or more, meaning that with time served he would have been eligible for parole in around thirty five years time, when he would be approximately eighty years old (assuming he lives that long).

In his dissenting judgment, Justice Priest, said “Nowhere, in any practical sense, did the (original) judge provide any amelioration of sentence for the utilitarian benefit of the plea of guilty (or the other mitigating features). He should have done so by fixing a minimum term. His failure to impose a non-parole period was out of step with current sentencing practice. In my view his failure to mitigate the life sentence by setting a non-parole period has resulted in a sentence that is manifestly excessive.

The difficulty of the current decision is very aptly outlined by his Honour who had earlier in his judgment said “Although it might readily be concluded that the prosecution’s case against the applicant was very strong, experience demonstrates that, on occasion, even those faced with an overwhelming Crown case choose to ‘roll the dice’. In those cases, the family and friends of the deceased are put through the ordeal of a trial. Witnesses are put through the trauma of having to testify. Time is expended and expense occasioned. By his plea the applicant ensured that those undesirable consequences were avoided. He deserved – but did not receive – credit for that.”

By disallowing Mr Hunter’s appeal has the VCA set a precedent which may mean future defendants are less likely to enter a plea of ‘guilty’ to such a charge because there is simply no benefit in doing so.

For more information read the article or the judgment.

Thank you Court Staff and Legal Aid Staff Everywhere


As we begin to rush towards the end of the year, the courts of the state are winding up to end their term. Customarily a large number of cases are dealt with in an attempt to finalise matters before the Christmas shutdown which in the case of the Local Court is usually a week or so but in the case of the District Court is several weeks.

As Christmas descends and lights, Santa and other seasonal magic fill media attention some of the great work of the Court system goes without a mention. It’s at this time of year that the people who work behind the counters of court Registries, Legal Aid and law offices throughout the state go that extra bit further, helping everyone out with their difficulties. 


Today I saw a fellow who was a bit down-and-out of luck. He couldn’t afford to lodge an appeal and he couldn’t sign his name or read the appeal form. He was helped out by a woman behind the court desk with dignity and style. The man left the court knowing what was going on and having been treated to the sort of respect that all of us would expect. It may not be just Christmas that brings this out in each other, but it’s certainly something that’s consistent with the Christmas spirit.

It’s easy while we’re all rushing about to be short with each other, but I just wanted to say a big thank you to those wonderful people who work behind the scenes at court, at Legal Aid and everywhere that lawyers do their work – you have made a year of litigation as smooth and efficient, respectful and respectable as possible. All this, with your customary professionalism.

Thank you and best wishes for the season and the new year.

Aaron Kernaghan – Principal Solicitor
Kernaghan & Associates



Revised Rules for Solicitors

From Justinian:

Already there is much smacking of chops at the fresh horizons that will open up now that some of the ethical standards have been compromised under the new solicitors’ conduct rules. 
The new regime has been adopted by SA, Qld and, as of January 1, NSW. Victoria has agreed in principle, but has yet to set a date. WA is holding out for the purer standards that it can set for itself. 

Among the most juicy, are amendments to the old rule against acting for more than one party. This change comes courtesy of the “large firm members” on the Law Council. 

For instance, the current rule 9 in NSW says that solicitors must cease to act for all the parties in proceedings or transactions if “obliged to act in a manner contrary to the interests of one or more of them”.  

Not so under the revised national ethical landscape. 

The new rule 11 is a fabulous confection of convoluted loopholes.  

Informed consent is preserved, but where an actual conflict arises between the duties owed to two or more clients, the solicitor or law practice may continue acting, provided that things are stuffed behind a Chinese wall. 

This suits the large firms down to the ground. 

The Law Council’s commentary on new rule 11 runs to six pages, reminding us that the longer the commentary the dodgier the rule.  

Then there is rule 12, widening the field to accommodate solicitors’ own interests and referral fees. This conflicts with rule 4.1.4: 

“A solicitor must also … avoid any compromise to their … professional independence.” 
Comparisons between the old and new rules in NSW can be found here.  

Sydney based law ethics guru Neil Watt, who had a hand in the formulation of the new conduct rules (although steadfastly opposed to rules 11 & 12) volunteered his services for free to conduct seminars for the Law Society. 

Instead, the Law Society turned the occasion into a nice little money spinner and charged to bring members up-to-speed on the new rules (at a reduced rate of $40 a head to cover “costs”). 

In the end the College of Knowledge ran Watt’s seminars for free and all were booked out in seconds.  

This seems like a weird turn of events. The College of Law is a commercial business, but provided the seminars without charge. The Law Society is supposed to be a not-for-profit, partially government funded, operation yet extracted a nifty fee from its members for what is an essential service. 

Criticise a Judge? Can the Judge Sue you?

On September 24 this year five justices of the NSW Court of Appeal grappled with the issue of whether judicial officers should continue to allow critics of judges to be sued for defamation, when all the critic had been doing was criticising a judge’s performance as a judicial officer.
Of the five judges who heard the case, two of them said that a judicial officer had no cause of action, while the other three said the opposite – that judges should continue to be able to sue.

The case concerned a lawsuit that Magistrate Pat O’Shane bought against Harbour Radio Pty Ltd (Harbour Radio) and the second defendant, Alan Belford Jones, in respect of alleged defamatory comments made and published by the Alan Jones and Harbour Radio about O’Shane’s conduct as and capacity to be a magistrate. 

By way of response, Jones and Harbour Radio said that the comments made weren’t defamatory because they were true.
O’Shane claimed she was defamed on two occasions.  Firstly, she said she was defamed when Jones said on a radio program on 27 May 2011, at approximately 6:44 am:
“My understanding is the complaints [against Maloney LCM] are in respect to what are said to be inappropriate comments. My understanding is there’s no reference to any wrong decisions based on law. But here’s the rub. Pat O’Shane can deliver the most diabolical and wrong decisions in law, and they go through to the keeper, Pat O’Shane.”
The second matter complained of was contained in statements made by on air on 6 June 2011,
“… I said last week, Pat O’Shane can deliver the most diabolical and wrong judgments at law and they just keep going through to the keeper.
Now Greg Smith most probably has limited powers as Attorney-General, but is [Maloney LCM] going to be forced to front the Parliament to defend himself? Pat O’Shane still strides the corridors of the Magistrates Courts.”
O’Shane claimed damages including aggravated damages, costs and interest.