Revenge law, aka affront/contempt law, has reared its beastly head again. Thus:
Brave lads and lasses on their way to or from the terrors of the Baghdad front are gloomily aware that no force on earth can stop Little Jackie (LLB Syd) elbowing his way into a photo-op.
As future veterans, they became even more tenebrous when they learned in February 2004 that Jackie’s government had secretly knocked back a recommended $650 million increase in benefits to vets. A servant of the public, Desmond Kelly, was charged with unauthorised disclosure, which carries a max of two years.
The disclosees, Gerard McManus and Michael Harvey, of the Melbourne Herald Sun, are ethically obliged not to pimp on sources. The prosecution would have known that, and also that their inevitable refusal to dob would put them at risk of prison. The question was put to them at Mr Kelly’s committal hearing in the Victorian County Court on Tuesday August 23, 2005. They declined to answer.
Questioned next day about this debacle, Nickie Munchkin (LLB ANU, Cert of Law NSW – seen here), intoned: “No one is above the law.” But what IS the law? A short trot round revenge law is in order.
Origin. The law derives from mediaeval superstition: an inscrutable deity appointed the monarch; the monarch appointed the judge. It followed that an affront to the beak was an affront to the deity, and required instant revenge.
Blaze of Glory. The learned proprietor of this magisterial organ recalled in January 2000 that “Justice” Sir J. Eardley Wilmot (1709-1792) said (R v Almon, 1765) that contempt charges were necessary to keep a blaze of glory around the courts.
Translation. In that deliriously corrupt century, affront law was an aid to deterring reptiles from reporting that most judges were bent. The government’s bagman, the Duke of Newcastle, probably appointed Wilmot in 1755.
Privilege. The client-lawyer privilege of secrecy enables them to get away with criminal conspiracies. Should not there be a client-reporter privilege to enable clients to avoid distressing consequences of whistle-blowing: deprivation of livelihood, kneecapping, incarceration, assassination?
In BSC v Granada (1981), Lord (Cyril) Salmon (1903-91) adopted the formula of the Master of the Rolls, Lord (Alf) Denning (1899-1999 – seen here):
“The public has a right of access to information which is of public concern and of which the public ought to know. The newspapers are the agents, so to speak, of the public to collect that information and to tell the public of it. In support of this right of access, the newspapers should not in general be compelled to disclose their sources of information.”
Amazingly, the Thatchist regime agreed. Section 10 the Contempt of Court Act 1981 stated:
“No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible unless it is established to the satisfaction of the court that disclosure is necessary in the interests of justice, national security, or for the prevention of disorder or crime.”
Lord Humpties would have none of it. They butchered Section 10 in Tisdall (1983), Warner (1987) and Goodwin (1990), thus reasserting that the private right of revenge takes precedence over the public right to information.
Trial without jury. The first Chief Justice (1789-95) of the US, John Jay (1745-1829), told jurors in Georgia v Brailsford (1794) they “have … a right … to judge the law as well as the fact in controversy”.
Forty years ago, Victorian jurors exercised that right when doctors were charged with abortion: they simply refused to convict. Might not jurors likewise decline to convict reporters in circumstances such as the Kelly case?
They wont get a chance. The egregious Wilmot said in R v Almon it was “immemorial usage and practice” for judges to give contempt verdicts. His opinion was never delivered, but it is still the leading authority on trial without jury in Australian affront cases. That is taking precedent about as far as it can go.
Judicial self-esteem. Although judicial work is the most error-riddled industry there is*, some judges seem to succumb to the mediaeval superstition of divine appointment, and insist on being treated as if enveloped in a Christ-like blaze of glory.
In his reptilian days at the Sydney Bulletin in 1977, M. Bligh Turnbull (BCL Oxon) signally failed to make the proper obeisance: he referred to judges by surname only. “Justice” Harry (a profit is a loss) Gibbs (LLM Qld) sternly warned him that he “felt it was a contempt of court to refer to a judge other than as ‘Mr Justice Bloggs’.”
Malcolm, who is now petrifying various drones who aspire to succeed Jackie, in effect told Harry to grow up.
It is time revenge law grew up.
*The Master of the Rolls noted in Board of Inland Revenue v Haddock (1933): “In other trades to be wrong is regarded as a matter of regret; in the law alone is it regarded as a matter of course.” See: Justinian, October 20, 2004.