A Judge is judged not fit to Judge (some cases).

NeilsonIt’s a disgrace and a shameful episode for the District Court of New South Wales.
Judge Neilson ought properly resign as a judge. 

In 2014, District Court Judge Neilson was referred to the oversight body for judges to be investigated for his conduct during a trial involving a man who had allegedly has sexual contact with his sister during the 1980s.

At the time, there had been outcry over the judge’s comments which included the notion that the community may no longer see sexual contact between siblings and between adults and children as “unnatural” or “taboo”, just as homosexuality is now widely accepted.

He apparently also said: “A jury might find nothing untoward in the advance of a brother towards his sister once she had sexually matured, had sexual relationships with other men and was now available, not having (a) sexual partner.”

You read it right, that’s apparently, what he actually said. I have no earthly idea why a judge would ever need to say such a thing to a jury or to anyone in his or her court. It is intemperate at best. At worst, it bespeaks of a depth of ignorance that is horrifying in the mind of a judge.

Apparently, at the Judicial Commission, his Honour said he merely intended to indicate that the community was more aware of such conduct than it had once been. Yes, indeed, right. What a very fine dissemble for such an emphatic original statement.

opinionated

Early, the NSW Court of Criminal Appeal had sharply criticised  Judge Neilson after what they considered to be a “favourable” decision that a sexual assault by a 55-year-old man fell in the “mid-range” of seriousness because there had been no ejaculation involved and no physical violence. His Honour had apparently found in that case that because there was no ejaculation involved when the man raped his niece she “had not been exposed to the risk of pregnancy or having some sexually transmitted disease”.

At the time, the victim had been aged 15 and 16 and she had been attacked in 2007 and 2008 at her family home. The rapist uncle was in a de facto relationship with the girl’s mother — his sister — at the time.

Justices McCallum, Schmidt and (now District Court Chief Judge, Mr Justice Derek Price) criticised Judge Neilson’s findings in their appeal decision finding that the conclusions of the District Court judge had been baseless and entirely questionable.

This week, the Judicial Commission of NSW – to whom the then Attorney General Brad Hazard had referred the District Court judge back in 2014 for his comments on the ease with which incest might be accepted, much the way homosexuality is now – has delivered a judgement upon the conduct of the Judge, after a public hearing had been held.

applesThe Commission has found that Judge Neilson should not be allowed to sit in judgement of cases involving sexual offences. The Commission didn’t refer him to parliament to be considered for expulsion as a judge, but found that his comments had the effect of undermining confidence in the judiciary. Inexplicably, in my view, the Commission found that although his honour had said what he said and had thereby brought the judiciary into some disrepute (by virtue of undermining confidence in the institution) nonetheless, the Judge had apparently not believed what he said.

According to the Sydney Morning Herald:

The comments included the opinion that, just as gay sex was socially unacceptable and criminal in the 1950s and 1960s but was now widely accepted, “a jury might find nothing untoward in the advance of a brother towards his sister once she had sexually matured, had sexual relationships with other men and was now ‘available’, not having [a] sexual partner”.

Following a public hearing last month, the Judicial Commission completed its findings this week, declaring that Judge Neilson’s actions amounted to “inappropriate judicial conduct”.

“The comments express views that are likely to lead members of the public to think that a judge of the District Court hearing a case involving allegations of criminal sexual misconduct doesn’t regard the alleged offences as significant crimes,” the three-member panel said in its findings.

“They diminish the significance of the victims of the relevant criminal conduct.”

During the commission’s hearing, Judge Neilson said he had simply meant that for modern juries, allegations of incest and pedophilia were no longer “inconceivable” or “unusual”.

incestThese judicial comments are scandalous. It cannot be said that they are anything other than judicial comments. As such they necessarily carry with them the weight of the District Court, of a judge, of legal integrity and deep-thought. It is in this way that such comments as those made by Judge Neilson completely undermine the community confidence. How can we be so confident in all those hallmarks of the judiciary when the comments are so clearly inconsistent with even the most basic learned wisdom.

The comments were offensive at the time he said them (last year) and they remain so now. Many of us in the legal profession hoped that somehow, his Honour had been misquoted or taken out of context, but the horrid reality is that this judge did indeed say those things. Incredibly, the Judicial Commission, despite some apparent misgivings over his Honour’s evidence (presumably on his own behalf) proceeded to accept that he has somehow rambled his way into an accidental oversight that can be entirely fixed by keeping him out of the fiery kitchen that is sexual assault cases.

But the truth is that this isn’t the first time the Judge has been a problem. When Judge Neilson was first placed on the District Court bench, it was politely said that his experience in civil cases was the cause of an apparent lacunae in relevant and helpful knowledge of criminal law. Whatever the truth of that statement may be, the reality is that since then he has presided over a significant amount of criminal trials to the extent that it cannot possibly be said that he lacks the sort of experience required to be a judge in criminal law and to be a member, usefully, of the criminal courts judiciary.

Yet that experience seems to have bought him to the point where not only would he say such manifestly absurd comments, he lacked the judgement to perceive the lack of need to engage in such a discourse in the first place. Such commentary is, in my respectful opinion, egoist and self-indulgent: reflecting a judge’s desire to have their opinions heard or to express their self-appraised intellect by the airy ventilation of their percolating (but perhaps undercooked) opinions.

rrm1bThis brings us to the rub of the problem. The Judicial Commission has decided this Judge is not fit to judge sexual cases – but presumably he remains fit to Judge.

What a remarkable suggestion that throws up – is it at last the case that the Judiciary of NSW and those that stand in judgement of their conduct, may actually accept that some judges are suitable for certain types of cases but not others? When a judge is sworn into their office, they swear an oath to be a judge of the court and to apply and uphold the law without fear nor favour. They do not undertake a noble course of judicial conduct in relation to certain types of cases. They do not pick and choose and those that appoint them similarly do not pick and choose their cases for them (or at least not openly).

Indeed, so protective has the judiciary been of its guarded independence that any whiff of a suggestion that a solicitor or barrister are engaged in “judge-shopping” is stamped out and referred for the most stringent of misconduct investigations. Judge shopping is the process by which a party, dissatisfied with a judge that has been allocated to their case, seeks to cause the matter to have to be adjourned so that it might end up in front of another judge (the ways in which judge shopping allegedly operates are many and varied and would take far too much time to summarise here). The point behind the prohibition against judge shopping is to ensure that all lawyers and indeed parties to criminal justice trials approach the court with the same level of respect irrespective of how that court is staffed. It ensures the appearance of consistency of judges (that is, “it doesn’t matter who you get, a judge is a judge is a judge” – type thinking) while also making a fair claim as to the dignity of those that sit as judges.

solastyearHowever, we now have a District Court Judge rolling around the lists who isn’t allowed to sit on one particular kind of case, but apparently can sit on anything else? This seems an anomalous approach to both the system of judicial conduct and its associated traditions. It also invites speculation among the legal profession going forward – if another judge is known to behave in a particular way in respect of certain types of trials, should an application be made to have them remove themselves from such a trial? Is the concept of perceived bias about to be expanded to include some new doctrine of horses for courses – the “Neilson Principle” is emerging here.

Of course, it’s likely  that none of that was given too much thought prior to working out how to deal with Judge Neilson. Clearly he is a capable lawyer who has a lifetime of experience behind him. His manner of speech – and the delicacy and opprobrium with which he can correct a lawyer’s latin pronunciation by reference to which school they went to is quite well known. As are his lengthy and at times Lewis Carrollean judgements that often saw him sit well past the usual closing time of courts as his honour engaged in a comprehensive discourse on the law as he saw it. But there is a basis now to doubt, and to doubt to a very real degree, the suitability of this Judge to be a judge. That basis comes from the finding, that is inescapable in the decision of the Judicial Commission, that his Honour has a limited capacity to judge – so much so that he should be removed from sitting in judgement of one of the types of trials that figures very frequently and with statistical significance in the daily lists of New South Wales District Court.

Yet sit on he shall and the parties who are accused and must stand for judgement will have to put up with it. Such will be the delicacy of the subject, the partial yet public repudiation of a judge’s judgement, few will dare to say anything or to raise as a very real prospect that something is very and terribly wrong with the judgement of Judge Neilson.

benchThat opinion is based upon two things – what he said in 2014 and the decision that he must have made to say it. If his honour simply said what he said in an off-the-cuff manner, then that too raises questions. The concepts implicit in his statements reveal a depth of unenlightened and deeply unread assumptions. His comparison with homosexuality is abhorrent and the sort of thing that ordinarily the liberal left would cry blue murder over. The notion that a judge would enlist the enlightenment of modern attitudes toward homosexual people to demonstrate the evolution of attitudes towards incest and familial sexual assault is something heinous to consider and deeply offensive not only to those who are victims that go before this judge, but to everyone who has had to stand by and what his honour engage in sentencing of sexual assault offenders in the past – to say nothing of the feelings of outrage and disgust that those child sexual assault victims who happen to be homosexual must be feeling when they hear of what his honour thinks. 

And think it he does. The Judicial Commission may well have found as a matter of fact that his honour himself did not believe the comments he made, but I have his Honours own words to judge by and judge him I shall, as I am entitled to do as a citizen of this state. Any man who compares incest with homosexuality – no matter how vaguely – deserves to be called out for the profundity of their stupidity and ignorance that such a comparison implies. Moreover, if a judge says the things this judge has said, then in my humble opinion, he should be no judge at all.

Senator Bill Heffernan has called for judicial institutions to be referred to the Royal Commission into Institutional Responses to Child Sex Abuse. If only the learned Senator bothered to follow (even in passing) the Royal Commission proceedings, he might realise that the Royal Commission is presently engaged in exactly that. But it would be very helpful and worth while for the Royal Commission to consider at some length the point and the conduct of Judge Neilson – for it will remain a weather bell for dumbed down judicial wit (at best) or a warning of seriously impaired judgement (which, frankly, seems more likely in the present case).

Judge Neilson ought properly be ashamed of himself. He has always prided himself on the bench as being a learned man of some intellectual significance – so much has been clear in his pronouncements from the bench. When a smart man goes to war, his crimes are all the worse because he knows what it is he is doing. If his Honour was just foolhardy and ignorant perhaps we could dismiss it. But he is a judge, of the District Court of New South Wales – someone that we are called upon to respect and dignify with institutional obeisance and fidelity. Nothing in this case commends itself to such a principled approach and it might be said, fairly I think, that his Honour should do the gentlemanly thing and pack up his bat and ball and head home, calling a declaration to the proceedings and gently fade into the ranks of retired judicial officers. In that way he will cease to be a burden to the District Court (a judge who can only do certain types of cases) and a stone around the neck of the community’s respect for the judiciary.

neilson2I stand up for judges as a matter of course. I have great respect for their sacrifices and the discipline needed to approach the task at hand. But I cannot remain silent while a judge is gently moved into a pasture of restricted duties because he said something that should have him sacked. The Parliament should take it upon itself to recall the judge and remove him from his commission. Judges must be expert, they must be dignified, they must be respectful and respectable. Mistake are made, and everyone is human, but judges are called upon to judge us. If they cannot restrain themselves, then they must be restrained from further judgement and returned to the community where they are free to express their views or their conceived or ill-expressed statements that notionally don’t reflect what they actually believe.

I don’t know why a judge would say something they didn’t think was right – especially if they intend to act consistently with their oath of office.

Resign, retire or Parliament ought appoint a special prosecutor to review his case on their behalf with a view toward making an independent finding.

Anyhow, another day, another question for further thought.

Aaron Kernaghan

This Article is the personal opinion of the author and does not reflect the views of Kernaghan & Associates. In expressing his opinion, the author is doing so without fear nor favour and in fervent hope that no professional body would take exception to the notion that a lawyer is entitled to demand judges be what judges are supposed to be and that the legal institutions of New South Wales are sufficiently robust as to be able to allow and even encourage its lawyers to engage in meaningful, if slightly cynical and ever so slightly humorous, discourse on the subject. God save the Queen.

Locations of specialist domestic violence legal support units announced

Following the announcement earlier this week by Prime Minister Malcolm Turnbull that a $100 million package would be used to respond to family and domestic violence through a Women’s Safety Program, today the Attorney-General’s department has provided specific details of what his portfolio’s $15 million will fund.

Attorney-General for Australia, Senator the Hon George Brandis QC, appeared this morning on the ABC program, Insiders. When asked by host Barrie Cassidy whether he could provide further details on how that money would be spent, he responded:

“Yes I can Barrie. I think it’s emblematic of the new Government, that this is our first major announcement, although there had been much work done during the previous Government as well, to bring us, to put this into shape. Some $15 million, the $100 million of new money that was announced by the Prime Minister and Senator Cash last week, will be spent within the Attorney-General’s portfolio to fund twelve specialist domestic violence units within community legal centres in areas of Australia identified as being areas of particular need, and I’m announcing today the location of those areas.”

Subsequently, in a Media Release issued today, those locations have been announced.

South-West Sydney, NSW;

the Dubbo region, NSW;

North-East Melbourne, VIC;

the Mallee region; VIC;

priority locations within Brisbane and the Gold Coast, QLD;

Townsville, QLD;

North-East Perth, WA;

the Kimberley, WA;

Elizabeth, SA;

North-West Tasmania;

Alice Springs, NT; and

Canberra, ACT.

Additional funding will be provided to establish health justice partnerships between a local hospital or health care centre and the new domestic violence units at:

Brisbane and the Gold Coast, QLD;

North-East Perth, WA;

Elizabeth, SA; and

Alice Springs, NT.

For the full media release please see:
http://www.attorneygeneral.gov.au/Mediareleases/Pages/2015/ThirdQuarter/27-September-2015-Locations-for-specialist-domestic-violence-legal-support.aspx

domesticviolence1-300x228

Redress – What the PM should say about Child Abuse Redress

turnballpmThe Royal Commission into Institutional Responses to Child Sexual Abuse have recently delivered a report on how to achieve redress in a systemic and unified way across Australia. The obvious upshot of their reports is to ensure that resolution by restitution may be made available in a way that is equally delivered and universally available across the country – without any worry as to which state you may be in or which regulatory regime may be in issue.

But the report requires leadership from political power sources to deliver on its promise to victims and survivors (including their friends and families) across the nation. In truth, only federal politics has sufficient scope and ambit to achieve it and it should be done as part and parcel of a national response to the issue.

The Royal Commission is the first step in a national level approach. To devolve the benefit of its considered opinion down to a state by state approach is to take one giant leap backward while seeking to make two steps forward. The Royal Commission must be seen as the first brick in a wall that is going to continue needing building and effort to create the sort of protections and resolutions for victims of abuse the country over.

The Federal Government famously eschewed the opportunity to participate in a cooperative and positive way when it declined to endorse the approach of the Royal Commission to the issue of redress when it was being considered in oral submissions. Since then, evidence has been given by survivors of how the Government’s own response and short-shrift written submissions pained them for the apparent callousness with which they were perceived by the government.

While people rush to tweet memes about how having a new PM means it’s time to change your smoke alarm, perhaps there will be some out there who have sufficiently overcome their indignation over the political intrigues of the day to invest some of their moral outrage in encouraging our new Prime Minister to depart from the folly of the past and stand forward in a defiant posture on the issue of redress. Prime Minister Turnball could ensure his re-election if he stood up and said something as simple as this:

“I have spoken before about the need for Australia to be a place of respect for women. But now I speak to the children of Australia. Those that were abused as children and carry the hurt and pain across the generations. We have heard your stories. And to those that care for them, we hear you and admire the witness you continue to bare. And to those children who are out there right now, wondering how to escape a cycle of violence and exploitation – I’m looking to you.

Today I say that this government declares a state of emergency on child abuse. I care about drug use, I care about domestic violence, but I care most for those that cannot care for themselves and this government will stand against any person who sexually abuses a child, and any institution that harbours that person will be required to pay for it. I have appointed a committee of exemplary individuals to implement the findings of the Royal Commission, both now and going forward and I will make it my pledge to this nation, that as Prime Minister I will deliver on redress and safety for children, both in our present, and in our long and tragic past. In this way, I hope to end the long years of suffering and greet all those who have waited for so long with the acknowledgement and the respect that is their due.”

A simple speech, one that I wrote in three minutes. Not too hard to say. Certainly worthy of an Australian Prime Minister. Or for that matter, any minister or elected representative. It must surely stand to get them elected. Who would disagree with this? It would be a matter of pan-lateral support.

Now is the time to move forward on those poor children. To find them and lift them up out of poverty and disenfranchisement. Otherwise the legacy of the Royal Commission will be nothing more than a collection of headlines about wayward cardinals. The people of Australia deserve so much more.

In the meantime, it will fall to CLAN and bold organisations like them to try to move the debate forward and seek a worthy response to the most righteous of issues.

Aaron Kernaghan.

Science Proves Everything: Negativity and the Need for an Adjustment in your Life

12009802_10154270478662222_1898233758239847607_nSo  having negativity in your life will only breed further negativity for you.

So much is the conclusion of a sixteen thousand year study conducted by the Human Race and the Institute of Divine Interventions. In the study, human participants (it isn’t clear if they were voluntary) were housed in a garden in which every thing they required was made available. The environment, named Eden, ensured maximum positivity and happiness.

As the experiment continued, the controllers introduced regulatory regimes in which random objects that ordinarily would have been available to the human participants, became the subject of close scrutiny or prohibitions on use. In one experiment, an apple was designated as being unavailable for use or there would be serious repercussion.

The presence of that apple, began a process of gradually disenchantment and discontent that resulted in its use, in violation of the experiment rules. The result – the human participant was expelled from the experiment with her family unit, who proceeded to kill one another. Coronial inquiries are still going on at a theological level in relation to that but charges are not expected to be laid.

Does creating a negative experience in a positive life impact that life in such a way as to begin a process of gradually overwhelming the life? Possibly. The experiment continues…

In other news, the word shower has come to be used to describe all manner of weather condition, even though the correct terminology is “rain shower”. Alas.

Happy Birthday to You

Happy Birthday

In a highly anticipated ruling today, one of the world’s most recognisable songs, ‘Happy Birthday to You’, has been brought into the public domain after US District Judge George H King ruled Warner/Chappell Music did not own a valid copyright to the song.

Two years ago Warner/Chappell, the music-publishing arm of Warner Music Group, had a class action lawsuit filed against it by several artists. Brought in 2013, these artists claimed that ‘Happy Birthday’ was not under copyright and should be free for anyone to use.

Under the ruling, ‘Happy Birthday to You’ is no longer subject to copyright and artists seeking to publically perform it no longer need to pay a licence fee to use it.

Originally written by sisters Patty and Mildred Hill, the song has been the subject of numerous copyright claims over the years. Accordingly, District Judge King examined the song’s long history finding that the copyright originated with the Hill sisters’ publisher, the Clayton F Summy Co, later known as Birch Tree, which was acquired by Warner in 1988. Summy Co. obtained registrations to ‘Happy Birthday’ in 1935 according to documents filed with the Court.

In the 43 page ruling District Judge King stated:

“Because Summy Co. never acquired rights to the Happy Birthday lyrics, Defendants, as Summy Co.s purported successors-in-interest, do not own a valid copyright in the Happy Birthday lyrics.”

Whilst those who have the song sung at private birthday gatherings have rarely been at risk of a lawsuit, whenever the song is used for commercial purposes Warner has enforced its copyright rights. It is estimated they have taken $2 million in royalties each year.

For a full link of the ruling, please see:

http://www.shadesofgraylaw.com/media/00065570.pdf

The Dark, Dark Pit of Despair

200px-Pitofdespair-Harlow

We’ve all been there right?

It made me think, where is this pit? It must have a location?

Turns out, it does.

The pit of despair was a device fashioned by a psychologist (Harry Harlow) used in animal experiments to contemplate how clinical depression worked. The way the device worked was that monkeys were put in the chamber after bonding with their mothers. Within a few days, they became listless and remain huddled in a corner.

Of course, this was an American psychologist. A long time ago and a galaxy far, far away (1970s).

The experiments were criticised for transgressing moral and ethical lines and for achieving little more than confirming what people already knew – if you break people’s social ties, they break down. It seems Harlow stood by his work and was heavily invested in understanding the experience of being in the pit of despair.

Animals were harmed in this experiment. That’s the sad thing.

THIS DAY IN HISTORY?

451  The Battle of Chalons: Flavius Aetius‘s victory over Attila the Hun in a day of combat, is considered to be the largest battle in the ancient world.

524 Kan B’alam I, ruler of Maya state of Palenque, was born (d. 583).

1187  Saladin began the Siege of Jerusalem.

1378  Cardinal Robert of Geneva, known as the Butcher of Cesena, was elected asAvignon Pope Clement VII, beginning the Papal schism.

1519 Ferdinand Magellan set sail from Sanlúcar de Barrameda with about 270 men on his expedition to circumnavigate the globe.

1633  Galileo Galilei was tried before the Congregation for the Doctrine of the Faithfor teaching that the Earth orbits the Sun.

1697 The Treaty of Rijswijk was signed by France, England, Spain, the Holy Roman Empire and the Dutch Republic ending the Nine Years’ War (1688–97)

1737  The finish of the Walking Purchase which forced the cession of 1.2 million acres (4,860 km²) of Lenape-Delaware tribal land to the Pennsylvania Colony.

1835  Farroupilha’s Revolution began in Rio Grande do Sul, Brazil.

1842  James Dewar, Scottish chemist, was born (d. 1923).

1848  The American Association for the Advancement of Science was created.

1854 Battle of Alma: British and French troops defeated Russians in the Crimea.

1857 The Indian Rebellion of 1857 ended with the recapture of Delhi by troops loyal to the East India Company.

1860  The Prince of Wales (later King Edward VII) visited the United States.

1863  American Civil War: The Battle of Chickamauga ended.

1870  Bersaglieri corps entered Rome through the Porta Pia and completed the unification of Italy.

1871  Bishop John Coleridge Patteson, the first bishop of Melanesia, was martyred on the island of Nukapu.

1881  Chester A. Arthur was inaugurated as the 21st President of the United States following the assassination of James Garfield.

1891  The first gasoline-powered car debuted in Springfield, Massachusetts.

1906  Cunard Line’s RMS Mauretania was launched at the Swan Hunter & Wigham Richardson shipyard in Newcastle upon Tyne.

1914 Kenneth More, English actor, was born (d. 1982).

1920  Foundation of the Spanish Legion.

1930 Syro-Malankara Catholic Church was formed by Archbishop Mar Ivanios.

1934 Sophia Loren, Italian actress, was born.

1942 Holocaust in Letychiv, Ukraine. In the course of two days German SS murdered at least 3,000 Jews.

1946  The first Cannes Film Festival was held.

1954  The Mazengarb inquiry into ‘juvenile delinquency’  was released. It blamed the perceived promiscuity of the nation’s youth on the absence from home of working mothers, the easy availability of contraceptives, and on young women who enticed men into having sex.

Mazengarb report released

1957   Alannah Currie, New Zealander musician (Thompson Twins), was born.

1957  Michael Hurst, New Zealand actor, was born.

1962 James Meredith, an African-American, was temporarily barred from entering the University of Mississippi.

1967  The RMS Queen Elizabeth 2 was launched at John Brown & Company, Clydebank, Scotland.

1970  Syrian tanks entered Jordan in response to continued fighting between Jordan and the fedayeen.

1971 – Todd Blackadder, New Zealand rugby player, was born.

1973  Billie Jean King beat Bobby Riggs in The Battle of the Sexes tennis match at the Houston Astrodome.

1979  Lee Iacocca was elected president of the Chrysler Corporation.

1979  A coup d’état in the Central African Empire overthrew EmperorBokasa I.

1984  A suicide bomber in a car attacked the U.S. embassy in Beirut killing 22 people.

1990 South Ossetia declared its independence from Georgia.

2000  The British MI6 Secret Intelligence Service building was attacked by a Russian-built Mark 22 anti-tank missile.

2001 In an address to a joint session of Congress and the American people, U.S. President George W. Bush declared a “war on terror”.

2002  The Kolka-Karmadon rock/ice slide started.

2003 Maldives civil unrest: the death of prisoner Hassan Evan Naseem sparked a day of rioting in Malé.

2011 – The United States ended its “Don’t Ask, Don’t Tell” policy, allowing gay men and women to serve openly for the first time.

2014 – The John Key’s National-led government was re-elected for a third term.

<p>Source: <a href=”https://homepaddock.wordpress.com/2015/09/20/september-20-in-history-7/”>September 20 in history</a></p>