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22 May, 2008  
Goings on ...

Too much disclosure is never enough on the High … Magistrate washes out potty mouth … Yarraside’s acting judges drama … “Judicial disengagement” explored … Punch out

imageFrom the annals of transparency and chumminess comes W.R. Carpenter Holdings Pty Ltd v Commissioner of Taxation:

Gleeson: Mr Durack, during the 1980s Mr Stowe’s solicitor consulted me from time to time about various matters. So far as I recollect they had nothing to do with the matters the subject of this dispute, but I just mention that to the parties.

Durack: Yes, your Honour. For our part we were not aware of that, but certainly that causes us no difficulty.

Robertson: We are in the same position, your Honour.

Gleeson: Thank you.

Heydon: I am in the same position as the Chief Justice, I cannot recollect whether any of the matters that Mr Stowe saw me about related to a matter concerned with this appeal.

Durack: Your Honours, essentially the matters involved in this appeal are questions of principle, although I was going to take your Honours briefly to the facts of the two transactions involved. Once again, your Honours’ previous involvement, whatever it might have been, causes us no difficulties.

Hayne: I should also record that I understand that the Registry has informed the parties, or have asked the parties whether having regard to my wife’s engagement as counsel for the Commissioner at earlier stages of this litigation, if they had any objection at my sitting and I understand there is no objection to our sitting.

Durack: There is no objection, your Honour.

Kirby: I had a very enjoyable dinner with the tax group. You were present, Mr Durack, but I do not feel that disqualifies me. I just declare it in the spirit of transparency.

Durack: Thank you, your Honour.

* * *

I loved the story about Vic magistrate Jonathon Klestadt telling an accused who had pleaded guilty to various burglaries:

“You fucked-up up big time.”

He sentenced Ricky Willis, 35, to three years and eight months with a bottom of two years.

Trouble was that a batch of schoolgirls were in court and somehow Klestadt’s “f” word got back to chief maggie Ian Gray, who said:

“Clearly it is generally inappropriate for judicial officers to use language of this nature in court.”

Klestadt said he was sorry and explained:

“It can only very rarely be appropriate to use vulgar expressions in open court. However, in some cases the use of such language can have far greater impact on the consciousness of an offender than more prosaic expressions.”

“Fucked-up” is so much more poetic.

* * *

It was a festival of Jewish judges at the Sydney Dizzo on Thursday (May 15).

Two new judges, Len Levy and Michael Elkaim, were sworn in by acting judger-in-chief Ron Solomon.

It’s not all that often that you get a trifecta like that.

* * *

As every right thinking person knows the appointment of acting judges threatens the very soul of judicial independence.

VicBar Prez Riordan Minor said last week it’s a matter of “principle”, that’s why he’s boycotting the swearing-in of Barbara Cotterell and won’t be uttering any words of welcome.

imageBabs has been a magistrate for 18 years and on April 15 Vic AG, Rob (Fuckin’) Hulls (pic), announced her appointment as an acting judge of the County Court.

Her swearing-in looms on Monday (May 26) and Riordan Minor dashed off not one, but two press releases on Friday (May 16) saying that even though Babs is extremely well qualified for the job, she should not be appointed on an acting basis.

She could be subject to the influence of government, he said.

“How can a member of the public be confident that his or her case against the government or one of its instrumentalities such as WorkCover or TAC, will be decided without fear or favour by a judge who is dependent on the goodwill of the government for his or her continued employment.”

A clunky mouthful, but you get the drift.

“The bar has felt compelled to speak out.”

Funny, I couldn’t find much compulsion to speak out on this issue of fundamental principle when Dyson Hore-Lacy SC was appointed as an acting coroner in February last year, notionally for six months. Or when Peter White was appointed an acting coroner in April last year. Or when Michelle Ehrlich was appointed last June as an acting Children’s Court magistrate. Or when it was announced that Tim McDonald would return to the Magistrates’ Court as an acting maggie.

According to the bar, the difference is that Babs is appointed for five years but her appointment is only “activated” for 12 months and it can only be “reactivated” with the approval of the AG.

That may be so, but Hull’s people tell me that the appointment of acting judges is subject to guidelines, or at least an understanding with the heads of jurisdiction.

The AG makes the appointment, but it is the chief judge or chief justice who requests the “activation” of the appointment for a given period of time.

This arrangement allows acting judges to be moved on or off the factory floor to suit the work flow, and they don’t have to be paid while on the reserve bench.

imageThere is mention of the guidelines in the second reading speech of the Courts Legislation (Judicial Appointments and Other Amendments) Bill, 2004.

The development of the guidelines grew out of the discussion paper that Hulls referred to when he announced his intention to go ahead with a new arrangement for appointing acting judges to assist at the grindstone.

VicBar also took a principled stand against the appointment of Lionel Murphy (pic) to the High Court (full-time but political) and adopted a sniffy attitude to Bernie Teague’s appointment to the VicSupremes (full-time but a solicitor).

I understand that Riordan Minor has sent a message of congratulations to Cotterell when her appointment was announced in the middle of last month.

It’s taken more than a month for the bar to saddle up its high horse.

* * *

On Friday May 16) the High Court granted special leave to appeal in the “Sleeping Judge Dodd” case.

Two convicted narcotics importers, Rafael Cesan and Mas Rivadavia, sought special leave after the CCA in Sydney turned down their argument that their trial wasn’t fair because the judge snoozed for slabs on time throughout the proceedings.

Here’s some background.

Ian Dodd was one of the better Dizzo judges, but unfortunately he suffered from sleep apnea. He’s since resigned after the Judicial Commission said he should be “counselled” by Reg Blanch.

imageThe exchange on Friday in the High had its moments as Wendy Abraham for the DPP tangled with Smiler and Dice (seen here in more carefree days) on the concept of “judicial disengagement”.

Abraham: In the respondent’s submission, what occurred in this case, unfortunate though it was, is no different from any other case where a judge, for whatever reason, disengages from the proceedings. That person, nonetheless, is not following the proceedings. They may well be – they could be doing any number of things –

Heydon: If judges disengage from proceedings without falling asleep perhaps there should be some remedy against it.

Abraham: Why, with respect?

Heydon: Those responsible for finding facts and applying the law to them should be concentrating at all stages.

Abraham: I am not quibbling with that aspect, but what I am trying to demonstrate is, why is this case different? There is no doubt that on occasion judges disengage, they think about other things.

Gleeson: How do you know that?

Abraham: Well, one sees them reading books – obviously one is sitting during a trial for weeks on end. To suggest that at some stage a judge is not going to at least think of something else, in my submission is somewhat fanciful.

Gleeson: In the case of some barristers that is true.

Abraham: But, your Honours, that does illustrate the point: what of a judge that closes their eyes, not asleep, but to think?

Heydon: They are not sleeping.

* * *

Poor old Paddy Punch. The merchant of false alibi evidence has had his jam roll confiscated, his ticket torn up, ordered to pay the NSW bar ‘n’ grill’s costs for getting rid of him and held up to public scandal and opprobrium.

We reported the ADT’s findings of professional misconduct against John Patrick Punch last month – for leading evidence in an assault and robbery case that he knew to be false – and getting the crooks off.

In its decision of Wednesday the Bureau de Spank was in a very flint-hearted mood.

A couple of irrelevant priors surfaced: Punch was put off the track for three months in 1997 for failing to appear in the CCA, even though briefed to do so; and in 2003 he was reprimanded for trading for a period of three days as a barrister without a ticket.

Since then, until the dawn of the false alibi drama, which happened almost 13 years ago, he was blemish free.

Still that did not mean he can now be trusted, thundered the tribunal. The false evidence caper showed, “he lacked the qualities of character and trustworthiness which are necessary attributes of a person entrusted with the responsibilities of a legal practitioner”.

Further, there was no evidence of a change of character and it cannot be assumed that despite a lapse of time “a reformation has occurred”.

Even Punchy’s application for the order banning him from polite society to be stayed until the end of the month was rejected. The guillotine fell forthwith.

He’d asked for a bit of time to wind-up his booming criminal practice.

The ADT mentioned two other D & B cases, Cahill in 1987 and Clarrie Stevens in 2003. Both asked for stays before they were beheaded.

In those two cases the beastly behaviour took place over a number of years. In Cahill it was the falsification of mortgages and in Stevens it was the “abrogation of income tax responsibilities for in excess of 20 years”.

In Punch’s case the tribunal was dealing with a single incident that happened in 1995. But that didn’t matter, the public was calling out to be protected.

There was a moving final drum roll:

“The tribunal is of the view that having regard to: the above matters; the need for the protection of the public; the public confidence in the integrity of the disciplinary process itself; and the reputation of the profession it is appropriate that the order take effect immediately.”


Reader Comments

Posted by: Anonymous
Date: May 22, 2008, 9:43 pm

I love Theodora. When can I meet her? This by far the sauciest law column anywhere. Keep it up. Glanville Williams, Hobart.