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Evan Whitton
15 July, 2008  
Papal ratbaggery, and worse

Evan Whitton covers the Pope’s visit and cruelly brings up some Vatican crimes … From October civil judges in Britain will have to dress up at home … Rugby quizz … And how come Labor hack Eddie McTiernan’s limpet view on “beyond reasonable doubt” still stands?

imageWhen Sol Chandler, my old master at The Whore of La Trobe Street, was managing editor, i.e. chief knacker, at The Daily Express, he came up with this splash on a very slow news day:


Just now, the former J. Ratzinger (pic), now 81, and his man in Australia, G. Pell, 67 (DPhil. Oxon) wouldn’t mind a bit of that.

I asked a nice New Zealand lady who was brought up as a Catholic if she was looking forward to the Pope’s visit. She replied starchily: “I have never seen so much ratbaggery in my entire life.”

Just so. The, at best, ridiculous NSW government threatened condign punishment for annoying pilgrims.

Sol said: “We cannot break the law.” Just in case, you won’t catch me wearing an FTP t-shirt. Pilgrim lads and lasses might take the letters, once popular on Belfast walls, as an annoying suggestion that they flirt, or some such, with His Holiness.

It has to be said that the papacy, like the common law, has generally suffered a sad declension since Pope Innocent III reinvented truth as the basis of justice in November 1215.

More recently, Pontiffs have exhibited a distressing tolerance for organised criminals. Items:

  • Giulio Andreotti’s Christian Democrat Party was virtually the political arm of the Vatican and the Sicilian Mob.
  • The Polish Pope, John Paul II, protected the Vatican banker, Archbishop Paul Marcinkus, of Chicago, who was imageinvolved in all manner of criminal activities.
  • John-Paul II and Benedict XVI have protected Archbishop Bernard Law (pic), of Boston, who covered-up the crimes of paedophile priests.
  • Last January, the Vatican was reported to be behind the fall of Romano Prodi’s Italian government and the inevitable return to power of Silvio Berlusconi, the most investigated Prime Minister in a parliament as corrupt, if such is possible, as those in Russia or the United States of America.

    Meanwhile, G. Pell has been put to the exigency of denying a claim that he covered-up for a priestly paedophile.

    We must believe him; a cover-up of a crime is a crime in itself, perversion of the course of justice. A prince of the church would surely never do that.

    I fear, however, that reportage of the allegation by the ABC and SMH have ruined any hope G. Pell may have had of succeeding J. Ratzinger.

    Concocting a defence: the final solution

    imageMiss Schapelle Corby is doing 20 years for bringing four kg of marijuana into Indonesia in a boogie board bag, whatever that is, in 2005.

    Robin Tampoe (pic), of Brisabne, her former lawyer, handsomely admitted on June 22, 2008 that he made up the defence that Australian baggage handlers planted the grass in the bag.

    Mr Tampoe is to be applauded for being perhaps the first common lawyer to admit to the widespread practice of concocting a theory of the case, i.e. cutting a defence from the whole cloth.

    As noted here on Nov. 14, 2005, the theory is that it wasn’t our guy so it must have been some other person or thing, e.g. if a victim had scratches on her body, the murderer may have been a polar bear.

    Mr Adrian Gallagher, of Dapto (SMH, June 23), offered a remedy for such fabrication: make lawyers take an oath to tell the truth.

    Lawyers will go to the barricades on that one; it would sadly mean the end of the anti-truth absurdity system.

    Upholding the majesty of the law in the privacy of your own home

    Poncing about in wigs has been a British nonsense since the late 17th century.

    Sir Tony Mason rid the High Court of wigs in 1988, and in 2000 Victorian AG Rob Hulls, 51, (DipLaw RMIT) issued what amounted to an anti-poncing edict: he planned to stop barristers wearing wigs.

    When the Bar got all teary, Mr Hulls said he would not object to barristers wearing wigs in the privacy of their own homes, but eventually relented.

    The Brits are going to abandon wigs and adopt rather less resplendent dress in civil cases from October, but we may not take the cue.

    imageJim Spigelman CJ NSW, still being touted as the next High Court CJ despite, or perhaps because of, his remarkable beliefs that the absurdity system seeks the truth and that Owie Dixon was our greatest jurist, will have a major voice in any decision.

    In these chilly days, J. Spig looks really cosy in his giant wig and crimson dress with the furry white armbands and the furry white cuffs. But what’s it like in summer, Jim?

    Never mind, there is always the privacy of one’s own home.

    Rugby quiz

    Wearing my other t-shirt as Justinian representative on the London Rugby Union Writers’ Club, I append an esoteric question supplied by my old chum, Bill Flamsteed, now in the bizzo of guiding earth-moving machines by satellite-based equipment.

    The wording of his question inevitably recalled a brief and entirely one-sided conversation with the great D.M. Connor at Normanby Oval, Brisbane, recorded in a book called Amazing Scenes.

    Jack Pollard’s Australian Rugby (Pan-Macmillan 1994), has this on Connor by another old pal, The New Zealand Herald’s Sir Terry McLean, greatest of all Rugby writers:

    “He has a long, clumping break from the scrum, a long, fast pass, a long and prodigiously powerful punt, a reverse pass which no opponent could possibly foresee, and a character so fine that players were attracted to him and inspired by him.”

    imageBill and the dread Kevin (Tick) Ryan (seen here), barrister-at-law and amateur heavyweight boxing champion, had a spat which degenerated to an all-in wrestling match on the pitch.

    I was moving in to lend a hand when Connor, my opposite number, plucked the sleeve of my jersey. “Leave them alone,” he said, calm and judicious, “they’re doing no harm”.

    Inspired by his sanity, I stayed my hand.

    Q. Des Connor played for the Wallabies AND the All Blacks, but who played for both teams in the same season?

    *Find the answer is at the end of the piece.

    Afghanistan: an epitaph

    It seems to be old pals’ week. My dear wife, Noela, who used to know yards of poetry by heart, offers this for the gravestones of Bush, Howard, Rudd, and the poor devils in Afghanistan.

    And we are here as on a darkling plain
    Swept with confused alarms of struggle and flight,
    Where ignorant armies clash by night.

    Dover Beach (1851, published 1867) by Matthew Arnold (1822-88).

    Eddie freaking McTiernan and the elephant in the room

    A Melbourne lawyer (ML) has kindly added to the sum of my knowledge on what he calls “the elephant in the room”, i.e. the formula for the standard of proof, reasonable doubt.

    As we know, untrained British judges invented reasonable doubt early in the 19th century after they surrendered control of the criminal process to fellow sophists at the bar.

    If the Barton Hypothesis** is correct, the function of the formula is to enhance criminal barristers’ cash flow by making them seem clever at getting criminals off. That is certainly the effect: it alone ensures that a quarter escape justice.

    I mentioned here on June 23 that appellate judges have forbidden trial judges to tell jurors that it actually means: Are you convinced? And that trial judges will be overturned if they go beyond saying, in some prolix fashion, that reasonable doubt means reasonable doubt.

    ML noted a case in which “the obviously bloody-minded jury”, having been given “the required but totally unhelpful non-direction on the standard of proof … responded with a question: ‘Reasonable doubt – 70 to 80 percent’?”

    ML said the judge and a majority of counsel “agreed that the judge would repeat the standard direction (with the jury no doubt wondering what on earth did this idiot have for breakfast or lunch depending on when the redirection was given) but on no account mention the ‘P’ [percentage] word lest the silly sods get the idea that such a test is permissible in some way”.

    He added:

    ”[You] might be interested to know, that trial directions are now publicly available on the web – see them at the Judicial College of Victoria website.”

    Thus encouraged, I turned up the site and the Bench Notes to the Victorian Criminal Charge Book and learned two amazing – at least to me – facts. The notes state:

    “Although in England the term ‘beyond reasonable doubt’ is seen to be synonymous with the term ‘sure’ (see e.g., R v Hepworth and Fearnley [1955] 2 QB 600; R v Onufrejczyk [1955] 1 QB 388), this is not the case in Australia (Thomas v R (1960) 102 CLR 584; Dawson v R (1961) 106 CLR 1; R v Punj [2002] QCA 333).”

    That means that for half a century, Britain, home of the absurdity system, has allowed judges to tell jurors what the elephant means, but the colony has obstinately persisted in error for 48 years.

    imageThe date of Thomas v R, 1960, means the guilty men were on the High Court run by Owie Dixon (1886-1972, High Court 1929-64, CJ 1952-64).

    When he was CJ, his court was billed as one of the great common law benches in history.

    Exactly. Dixon (pic) claimed to be a black letter lawyer, but he was actually highly activist on behalf of lawyers’ cash flow.

    In two atrociously wrong decisions, the Dixon Court made zillions for (a) tax shysters, and (b) criminal shysters, thus further firming-up the Barton Hypothesis.

    In Keighery (1957), the court y said “absolutely” in the 1936 Tax Act does not mean “absolutely”. Pace J. Spig, their excuse presumably was that the common law says truth does not matter.

    And in Thomas v R, the lead judgment purported to have been written by McTiernan J. (1892-1990, Labor MP 1929-30, High Court 1930-76).

    imageEddie freaking McTiernan!

    Why would any future judge take the slightest notice of that ancient Labor hack and world champion judicial limpet?

    More to the point, how many murderers, rapists and white collar organised criminals have escaped justice since Eddie (pic) saved reasonable doubt in 1960?

    *Answer to Rugby Quiz question: The Northern Command Band.

    **“Many legal outcomes can be explained, and future cases predicted, by asking a very simple question: is there a plausible legal result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will be decided in the way that offers the best result for the legal profession.” Associate Professor (law) Benjamin Barton, University of Tennessee, Alabama Law Journal, December 2007.