Lindsay Lohan Law Suit

Disaster-prone actress Lindsay Lohan last week (21 February) lost a lawsuit against a fellow celeb, rapper Pitbull. Lohan said the use of her name in the lyrics of Pitbull’s 2011 hit Everything was a violation of her publicity and publicity rights and caused her emotional distress.

She is mentioned in the line: “So, I’m toptoein’, to keep flowin’, I got it locked up, like Lindsay Lohan.”

US District Judge Denis Hurley dismissed the lawsuit, ruling the song a protected work of art, according to The Hollywood Reporter.

While he refused Pitbull’s lawyers’ attempts to have Lohan sanctioned for bringing a frivolous lawsuit, he did sanction her lawyer for plagiarism.

The plaintiff’s court briefs were apparently plagiarised from newspapers, law firms and other education websites.

The Hollywood Reporter said Lohan’s lawyer in the case, Stephanie Ovadia, didn’t dispute the accusations of plagiarism, but she did attempt to pass blame on to an of counsel of her firm.

She also tried to convince the judge that an early draft had inadvertently been submitted to the court and that an amended court brief had been attempted to have been substituted.

 Full story here.

Chris Murphy is Robbed!

High-profile Sydney lawyer Chris Murphy had his phone apparently stolen from his table when he had his back turned while breakfasting at a cafe in Darlinghurst, Sydney, the Newcastle Herald reported.

Murphy immediately took to Twitter in an attempt to get the phone back, tweeting CCTV footage of the woman who allegedly picked up the iPhone from his table.

He tweeted Twitter pals Channel Nine’s Tracy Grimshaw and television personality Charlotte Dawson informing them of the unfortunate incident.

He also urged his followers to help justice be served by viewing the CCTV and attempting to identify the alleged thief.

He also tweeted that: “It’s only a phone but sentimental value. Messages on it from 2ppl who have since died. Now they’re completely gone.”

Murphy said he had only turned his back for a moment or two to speak to a friend at another table and when he came back the phone was gone.

Full Story here.

Legal Aid Pulls Funding for Solicitors

In Victoria, Justice Betty King said she was frustrated lawyers seemed to be playing political games when a man’s fair trial was at stake.  Counsel for the defendant has applied for a stay of the trial because legal aid funding for an instructing solicitor has not been secured for the duration of the trial.

Under tight new guidelines, Victoria Legal Aid pays for an instructing solicitor only for trial preparation and to appear at trial for two half-days. The services of a junior barrister can be sought if the case is complex.

The defence counsel unsuccessfully applied for a junior barrister to assist him during the trial.

An independent person – a retired County Court judge – will now review that decision.

Meanwhile, the future of the trial hangs in the balance.

The stay application was the third request to delay a major Supreme Court trial.

Justices Lex Lasry and Terry Forrest have already stayed separate criminal trials due to the Legal Aid funding fiasco.

Justice Betty King was expecting to be informed if a VLA review had granted the barrister involved in the attempted murder trial a second barrister to assist.

Instead she was forced to criticise a letter sent by the barrister’s solicitor that stated a second barrister was not wanted.

Full Story here.

High Court Split?

A SELF-styled Muslim cleric accused of sending offensive letters to the families of slain Australian soldiers has lost a High Court bid to have the charges against him quashed.

Man Haron Monis, also known as Sheik Haron, was charged in 2011 with 12 counts of using a postal service in a way that a reasonable person would consider menacing, harassing or offensive.

He allegedly sent letters – and in one case a recorded message – to the relatives of several diggers killed in action in Afghanistan and the mother of an Austrade official killed in the bombing of a hotel in Indonesia. His co-accused, Amirah Droudis faces eight counts of aiding an abetting Mr Monis.

The letters allegedly began by offering condolences to the families, before launching into an “intemperate and extravagant” criticism if Australia’s involvement in Afghanistan. They also allegedly insulted the dead soldiers.

Lawyers for the pair argued the charges infringed on their constitutional right to free political communication.

Whilst the six High Court judges hearing the case unanimously agreed that the section of the Criminal Code under which the pair were charged restricts political communication, the bench was split in whether the section of the act was valid and justified.

Three High Court judges – Susan Crennan, Susan Keifel and Virginia Bell – called for the appeals to be dismissed on the grounds that the section of the act protects against the misuse of the postal service to deliver seriously offensive material into a person’s home.

In their joint jugement they noted that communications restricted by the act “are limited to those which are of a seriously offensive nature”.

“This does not suggest an effect upon the freedom which could be regarded as extensive. It does not prevent communications of a political nature which do not convey such offensive material,” they said.

But in separate judgments the three other High Court judges hearing the case – Chief Justice Robert French, Kenneth Hayne, Dyson Heydon – wanted to allow the appeals, arguing the section of the act was invalid.

Full Story here.

HR Laws Smash Free Speech?

The head of the Human Rights Law Centre (HRLC) has disagreed with the view of former Australian judge and ABC chairman James Spigelman that Labor’s overhaul of discrimination laws will have a “chilling effect” on free speech.

HRLC’s executive director Phil Lynch said that, while some of Spigelman’s concerns are valid, he doesn’t believe the Gillard Government’s Human Rights and Anti-Discrimination Bill 2012, which consolidates federal discrimination laws, is a threat to free speech.

At the Human Rights Day oration for the Australian Human Rights Commission on Monday (10 December), Spigelman warned that the Bill could make discrimination in all areas subject to provisions of the Racial Discrimination Act, which imposes liability for statements that offend, insult, humiliate or intimidate.

“Declaring conduct, relevantly speech, to be unlawful, because it causes offence, goes too far,” said Spigelman.

Last year the Federal Court applied Section 18C of the Racial Discrimination Act against newspaper columnist Andrew Bolt over blog posts suggesting it was fashionable for “fair-skinned people” of mixed ancestry to declare they were Aboriginal.

Spigelman argued that the new Bill could see this provision cover statements about age, gender and disability, resulting in “a significant redrawing of the line between permissible and unlawful speech … whether or not you like Andrew Bolt”.

 Full story here.

Judge Wants Wifi for People Held at Police Stations

A Canadian judge has recommended police stations get Wi-Fi so people being held there can use the net to search for a lawyer.

The Verge reported that Judge H.A. Lamoureux of the Provincial Court of Alberta made the recommendation when presiding over the case of a 19-year-old arrested for drunk driving.

According to The Verge, the young man was unsuccessful when he tried to call an attorney, and thinking he was only allowed one call like in Hollywood movies gave up.  

Rather than lecture the teen on the dangers of watching too much TV and proselytizing on the value of persistence, the judge with the great name decided to demonstrate to the court that he is one hip and connected dispenser of justice.

Full story here.

Court Tech Ban

Lawyers in NSW will be able to continue to use mobile technology in courtrooms to do their jobs, NSW Attorney-General Greg Smith has said.

The NSW Government introduced legislation in November to ban the transmitting of information from courtrooms after an incident that endangered the integrity of the court process. Peak bodies including the NSW Law Society and Bar Association are being consulted on the proposed regulation, which will exempt lawyers and journalists, for the purposes of media reports on court proceedings, from the restrictions in the legislation.

Lawyers regularly use smartphones and tablets in court to refer to legislation and other material on electronic file and to email colleagues, support staff and even clients involved in the case.

Full story here.

Possession of a Prohibited Weapon Charge Information

Possession or Use of a Prohibited Weapon
[Section 7 of the Weapons Prohibition Act 1998]

Maximum Penalty: 14 years imprisonment
Offence: A person must hold a permit to posses or use the weapon; even with a permit a person must have a genuine reason for possessing the weapon at that time. The offence is a table 2 offence. It is also an offence for a person who comes into possession of an unauthorised weapon and does not immediately surrender said weapon to the police. 

The list of prohibited weapons can be found in the Schedule 1 of the Weapons Prohibition Act 1998.

Defences: It is a defence if the person establishes that they had a valid permit as well as a valid reason for the possession of the weapon in accordance with the permit. It can also be a defence if the person was in the process of surrendering the weapon to the authorities.
Penalty: Factors affecting penalties include the method of concealment, the weapon involved and whether it was used in conjunction with any other offences.
Consideration is also given to prior criminal record and personal circumstances such as medical and employment status.

Self Defence on Trial

Article in yesterday’s Illawarra Mercury by Emma Spillet:

“A Wollongong solicitor has slammed charges brought against a former police diver who took on an intruder in his home.

James Friederich Clarke, 55, chased the prowler and hit him in the leg with a mallet after the intruder ripped his front door off and hit his partner in the face.

Although a victim of the home invasion, Clarke found himself before the court this week, receiving a nine-month good behaviour bond for harming the intruder.

Solicitor Aaron Kernaghan, who acted for Clarke, said the charge was a slap in the face.

‘‘My client and his partner were victims in the prosecution case against their intruder,’’ he said.

‘‘They made statements, they gave evidence and they went through the process of watching their assailant being charged before they were told not to come to court for his sentencing.

‘‘After being denied a role in the proceedings as a victim, Mr Clarke was then charged for assaulting the person who broke into his home… it’s a bizarre set of circumstances.’’

Mr Kernaghan believes the matter is a cautionary tale for home owners wanting to defend themselves against intruders.
Full story here.

Cultivate Cannabis Charge Information

Cultivate Cannabis
[Section 23 of the Drug Misuse and Trafficking Act 1985 (NSW)]

Maximum penalty: 20 years imprisonment depending on the number of cannabis plants cultivated.

Offence: When a person cultivates or knowingly takes actions in cultivating cannabis.
Cultivating includes the sowing or scattering of cannabis seeds, as well as plant, grow, tend or nurture such plants.
To knowingly take part in this one has to participate in any step of cultivation, arrangement of finances for cultivation or provide premises on which a step of process is undertaken.

Defence: It is deemed a defence if the person involved did not know or have any suspicion (or expect) that the plant was in fact a prohibited plant.

Sentences: The sentence/penalty is dependent upon the amount of plants cultivated.
A small quantity (5 plants):  10 years imprisonment
More than a small quantity (5 plants) but less than an indictable quantity (50 plants): 10 years imprisonment.
More than an indictable quantity (50 plants) but less than a commercial quantity (250 plants): 10 years imprisonment.
More than a commercial quantity (250 plants) but less than a large commercial quantity (1000 plants): 15 years imprisonment.
More than a large commercial quantity (1000 plants): 20 years imprisonment.
Considerations include plea of guilty, the entering of drug rehabilitation, criminal record, and other such conditions.