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Only in America
5 May, 2009  
Flom goes to Perth

The no holds barred language of the SCOTUS judges might just catch-on with the High Court of Oz … Meanwhile, in Perth the Lloyd Rayney affair catches the attention of Pillsbury Flom

imageThe newly-minted opinion of the Supreme Court of the United States (quaintly referred to as SCOTUS over here) in Federal Communications Commission v Fox Television Stations contrasts the timorous tip-toeing of Justice Nino Scalia around references to obscene language, and his robust and none-too-respectful dispatch of his sister and brother judges’ dissent.

The latter approach is common to the discourse of the judicial utterings of SCOTUS.

It’s a disposition that would offend the sensibilities of most Australian judges, who invariably refer to their fellows as “learned” and employ “with respect” to almost any observation on another judge’s opinion, even be it in glowing terms.

The exception was the most unsettling slur by Robert French CJ of Justice Michael Kirby, who had dared to venture in his departing judgment in Wurridjal v The Commonwealth of Australia that …

“If any other Australians, selected by reference to their race, suffered the imposition on their pre-existing property interests of non-consensual five-year statutory leases, designed to authorise intensive intrusions into their lives and legal interests, it is difficult to believe that a challenge to such a law would fail as legally unarguable on the ground that no ‘property’ had been ‘acquired’.”

Without even a facade of respect, the CJ intemperately remarked that this was a “gratuitous suggestion” by Kirbs.

This is the judicial equivalent of a frenzied attack with a machete.

imageI challenge anyone to find in the canons of Australian judicial pronouncements an equivalent slap-down by one judge of another sitting on the same case.

It sent a nasty shiver down my spine and a creeping terror that Australia’s jurisprudence might descend into the curial gutter of America.

In the FCC case, Nino Scalia (seen here) variously described his brethren who had dissented in a narrow 5-4 vote as …

“like jackals stealing the lion’s kill … stacking the deck … [and of making evaluations each of which was] flawed in its own right.”

Equal opportunity is afforded his sister, Justice Ruth Bader Ginsberg, who described the majority opinion in the 2007 partial-birth abortion case as …

“Alarming … gravely mistaken … [and containing] flimsy and transparent justifications.”

imageHowever, such plain-speaking deserts Nino when he discusses “descriptions or depictions of sexual or excretory functions”.

In the FCC case, he delicately refers to the classic Anglo-Saxonisms as the “F-Word” and the “S-Word”.

One of the live broadcasts in question was Cher (pic) at the Billboard Music Awards who, in Nino’s own words …

“metaphorically suggested a sexual act as a means of expressing hostility to her critics.”

What Cher actually said was:

“I’ve also had critics for the last 40 years saying that I was on my way out every year. Right. So f*** ‘em.”

Scalia went on to uphold the FCC’s sanctions imposed on Fox. Apparently expressions of hostility should be reserved for dissenting judges.

* * *

I’ve actually just returned from your vast continent. In Perth, I not only attended to a few fee earning matters, but also became engrossed by the Lloyd Rayney affair,

imageI hope Mr Rayney (pic) has more success than a US gentleman called Richard Jewell, who was wrongly accused of bombing the 1996 Atlanta Olympics.

Initially he had been hailed as a hero for moving people out of the way before the bomb exploded.

The media claimed to rely on FBI sources for the story.

Jewell was never charged and it turned out he was completely innocent.

He was not only exonerated by the FBI, but ultimately by the US Attorney General.

This did not prevent his life being turned upside down.

One would have thought this was one case that might flower in the infertile fields of US defamation law, but the courts decided Jewell was a public figure and must therefore prove malice instead of mere negligence, effectively gutting his claims.

He died in 2007 at age 44.

Rayney, a former prosecutor with the WA DPP, finds himself in a similar position regarding the murder of his estranged wife in 2007.

In September 2007 the police publicly named him as the prime suspect, several weeks after the victim’s body had been found.

His life and his career as a barrister effectively have been destroyed.

He has never been charged with the crime and finally brought defamation proceedings against the State of Western Australia in September last year.

Rayney has retained Martin Bennett.

The two had previously been involved in the Lang Hancock inquest, but in quite different capacities.

imageThere, the late Peter Hayes QC (pic), representing Gina Rinehart, accused Bennett of hastening Hancock’s death, a suggestion that might charitably be described as a bit of a stretch.

Lloyd Rayney appeared as counsel assisting the inquiry while he was still with the DPP’s office.

It emerged during the course of the enquiry that Rayney had been informed of certain of the payments made by Gina Rinehart to witnesses.

He had not found it necessary to trouble the Coroner or those acting for Rose Porteous, Gina’s principal target in the inquest, with mentioning the witness payments.

After some documents concerning the payments and a host of similar transactions emerged from a private dick who had been previously engaged by Gina the DPP, Robert Cock, pulled Lloyd from the inquest without replacing him, saying that the DPP’s resources were better employed elsewhere.

Bennett went on to play a stunning innings against Peter Hayes in cross-examination, and the whole thing died a natural death, which the inquest found was also the cause of Hancock’s demise.

imageRayney, who was born in India, had been branded a “curry muncher” in 2000 by a triumphant Robert Hughes (seen here) after being cleared of driving charges, which Rayney had prosecuted.

He got the last laugh when the acquittal was overturned on appeal. In 2003 Hughes pleaded guilty shortly after settling for a considerable sum the defamation case Rayney brought against him.

Bennett was also his lawyer in that action.

It seems Bennett is kicking some goals again, albeit of the procedural variety.

In Rayney v The State Of Western Australia Martin CJ observed:

“The state appears to have been conducting these proceedings on the basis that its compliance with the times specified by the Rules of the Supreme Court 1971 (WA) and with directions made by the court is optional, so that if it sees some forensic strategy which it prefers, it can simply ignore those requirements which bind all other litigants.”

Despite the Chief Justice’s evident sympathy for Rayney’s position as a result of the state’s procedural deficiencies, the case is complicated by questions of public interest immunity in the context of the ongoing murder investigation.

The Chief recently allowed the state to put off the provision of further particulars of its defense in deference to the public interest immunity, although cautioning that such an indulgence will not be indefinite.

Lloyd Rayney would also appreciate a little finality all round.