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30 October, 2008  
Goings on ...

French CJ looking forward to Stuart Littlemore’s appearance … Predatory Pricer runs home with the loot … Supreme Court’s innovative plans for the internet – close it down … No flies on Jeff Shaw … Remembering Justice David Tonge

imageRobert French made some spirited remarks about the local bar ‘n’ grill at his official Sydney welcome as Chief Justice.

He said that he is well acquainted with Sydney barristers having sat there frequently as a Federal Court judge.

As a barrister in Perth he also enjoyed working for and against Sydney counsel. He appearing as junior to Robert Ellicott in a case about dredging, where he was opposed to Tom Hughes and James Allsop, with Richard Conti in the middle.

“James Allsop, I remember, came to town with 15,000 interrogatories. All I had to confront him was an ancient authority called American Flange.”

The Chief Justice also had one of those delightful encounters with Stuart (Keys) Littlemore. He explained:

“The Australian Broadcasting Tribunal was active in Perth in the early 1980s and many of us in the local profession saw quite a lot of the Sydney bar. I recall appearing in one hearing before the tribunal where Mr Stuart Littlemore foreshadowed an unspecified constitutional point.

“I inquired through the tribunal what the point was. Mr Littlemore said it was all there in section 51. He added, gratuitously, that I probably had not had much of an opportunity to peruse that section.

“I have looked forward as a judge, and still do, to having him appear and explain section 51 to me.”

* * *

imageSydney legal identities Alec Leopold (pic), Leanne Norman and Tony Hartnell are over the moon about their stallion Predatory Pricer.

He’s had a terrific trot recently and so far has hauled in a cool $330,000 in winnings.

He came second in his most recent race at the very wet Spring Carnival at Randwick with prize money of $75,000 to boot.

If the gee-gee keeps up the pace these horse flesh fanciers could be able to give the law away and hang about at home in their dressing gowns.

* * *

A challenging new practice note has been issued by Spiggsy Spigelman CJ.

From November 1 parties to criminal proceedings can apply to the court before a jury is empanelled and request that any judgment that may impact on the jury’s deliberations be removed from the internet.

This includes, but is not limited to, repositories such as Austlii and Lawlink.

The practice note says that the Supremes can direct the identified judgment, “which details specifics of the proceedings or related proceedings”, to be temporarily removed from the internet for the duration of the trial, or another appropriate period.

imageSeeing the way judges hand out suppression orders like confetti, particularly to customers like Marcus (The Mensch) Einfeld, it seems inevitable that scads of judgments are going to be torn from the net.

The court has been grappling with the issue for yonks and all sorts of dotty ideas have been floated, including removing from the internet anything touching on an accused.

Nonetheless, Spiggs’ (seen here) latest ukase takes a magnificent broad brush approach to the issue.

Phrases such as “another appropriate period”, raise the prospect that judgments could evaporate from cyberspace for years on end, while appeals and retrials grind their way through the earthly system.

Judgments that “may” impact on juries’ deliberations is a concept open to a wide expanse of imagination.

What’s next? A process for removing sensitive stories from media web archives?

Juries in the information age – how can they ever be cocooned?

It’s interesting that NSW senior crown prosecutor Chris Maxwell now thinks that it’s probably time to say goodbye to juries.

Not that juries get things so wrong, it’s just that a lot can go wrong with juries. Panels of judges hearing trials may be a better way to go. Maxwell said:

“I never, ever would have thought of thinking that, let alone saying it, before I went to work in a different system [prosecutor with the UN mission in Kosovo].”

* * *

imageWhen you’re done for a low range PCA driving offence who do you call on to run an appeal?

Why, the celebrity drink driver, former judge and AG himself, Jeff Shaw QC (snap).

Jeff has had a terrific run of recent results.

He knocked out the WYD regs about harassing pilgrims, he had a victory over the department of Corrective Services’ photo bans and now he’s had a stunning win in the Dizzo for a drink-drive client, who pleaded guilty downstairs.

As Francesco Mendolicchiu contemplated his (second) conviction for a low range blow, this one at 0.055, which resulted in a $900 fine and the cancellation of his driving ticket for 12 months, he decided the whole thing wasn’t fair.

He’d had some cough mixture on the night in question. It contained ethanol. He said that this was why his blood alcohol was pushed over the limit because the wine he’d had at dinner with friends wouldn’t be enough to do the damage on its own.

Jeff Shaw stepped in and persuaded Judge Jack Goldring on appeal of four important things:

  • Francesco should not be punished for an honest mistake about the cough mixture.
  • Driving with a low range PCA might seem to be an offence of strict liability, but it is not really.
  • Once Francesco raised the possibility in his appeal that the cough syrup unwittingly affected his blood alcohol concentration then the onus shifted to the prosecution to prove he was wrong.
  • The prosecution did not discharge the evidentiary burden.

    Judge Jack gave Francesco back the keys to his motor.

    * * *

    A nice obit in The Sydney Morning Herald for David Tonge, the recently deceased former Family Court judge.

    Tonge came to Justinian’s attention when he was the resident family law judge in Newcastle in the 1980s.

    A plumber called Mr Sutters rang with a disturbing story.

    He had shifted out of the family home and had been in the throes of divorce and property proceedings with his ex-missus.

    He still kept his plumbing equipment in a shed at the back of the house and he was amazed early one morning, when walking down the side path, to peek and see Justice Tonge occupying his former matrimonial bedroom.

    He knew it was Tonge because he had seen him before during an earlier appearance in the Family Court.

    Mr Sutters told Justinian he was worried that a connection between his ex-wife and a Family Court judge might affect his prospects.

    We rang Elizabeth Evatt, then the chief justice of the court.

    She told us not to worry because this was a “private” matter and that Justice Tonge no longer was involved with the Sutters’ case.

    I see in the Herald’s obituary that the demised judge’s second wife was Gwen Sutters.

    I wonder, if by any chance, she is related to the Newcastle plumber?


Reader Comments

Posted by: Anonymous
Date: March 21, 2009, 6:59 pm

People in glass houses should not throw stones: Ms M Roberts was it? The man, who was much loved and respected by those who knew him well, is dead and cannot defend himself: was ths piece really necessary?