Saturday, May 30, 2015

Extracts and transcripts from some Australian court cases . . .

For the lawyers . . .

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A self represented litigant seeking special leave from the High Court:

MR WILSON: Down in Canberra they have erected the Magna Carta monument. Have you been to see it? You will not answer? Mr Callinan, have you seen it?

CALLINAN J: Look, you cannot really ask me questions, but, yes, I did see it, Mr Wilson.

MR WILSON: Well, this is a two-way thing, you were asking me questions and I am asking you.

GUMMOW J: No, it is not a two-way thing, actually.

MR WILSON: It is not?


MR WILSON: You are a dictator, are you?


MR WILSON: “You just lay down and I say nothing.”


MR WILSON: It is not on.

GUMMOW J: No, you are here to make your submissions on which we then rule.


GUMMOW J: We try to assist you by asking questions so that you can respond to what is on our mind.

MR WILSON: Your job - - -

GUMMOW J: Do not lecture us on what our job is, please.

MR WILSON: Your job is to ensure fairness.

GUMMOW J: No, it is not.

MR WILSON: It is not?

GUMMOW J: It is to apply justice, according to law.

MR WILSON: And what is justice? Justice is the protection of rights and the punishment of wrongs and justice is what I am after. Justice means - - -

GUMMOW J: Justice, according to law.

- Wilson v St George Bank Ltd (S284/2001) [2003] HCATrans 597

* * * * * * * *
STARKE J: This is an appeal from the Chief Justice, which was argued by this Court over nine days, with some occasional assistance from the learned and experienced counsel who appeared for the parties. The evidence was taken and the matter argued before the Chief Justice in two days. This case involves two questions, of no transcendent importance, which are capable of brief statement, and could have been exhaustively argued by the learned counsel in a few hours.

- Federal Commissioner of Taxation v Hoffnung & Co Ltd (1928) 42 CLR 39, 62

* * * * * * * *
KIRBY J: Could you explain to me what a BMX bike is? My rather cloistered life has prevented my ever getting to know what that form of bicycle is.

MR R J DOUGLAS SC: I join with your Honour. I have had to find out. Your Honour, it is a smaller form of bike than the conventional rally bike or the sort of bike we were used to in our youth. It is a squat form of bike which in modern times in the last decade or two has been utilised for quick performance use by persons usually, as in this case, on tracks which have mounds which one speeds up towards and jumps from place to place. So it is a form of performance bike within a confined environment.

KIRBY J: I see.

MR DOUGLAS: Is that a sufficient explanation for your Honour?

KIRBY J: I think I might have seen one, so I think I know. …

-  Leyden v Caboolture Shire Council [2007] HCATrans 475

* * * * * * * *
GLEESON CJ: You will explain to us how you find a matching bet?

MR S J GAGELER SC: I will, yes. That brings me to the little demonstration, your Honours. Your Honours ought have a bundle of material which is entitled “Demonstration of Online Betting”.

HAYNE J: How much of this is on the CD?

MR GAGELER: This is all on the CD, your Honour. On the CD it is——

KIRBY J: We had a Playstation shown to us in Sony and it was very exciting. Why did you not try that?

MR GAGELER: This is more fun.

KIRBY J: It is one of the most exciting things that has happened in my time here.

-  Betfair Pty Ltd v Western Australia [2007] HCATrans 634

* * * * * * * *
CALLINAN J: Mr Jackson, it seems to me that clearly the people at the party, including Ms Joslyn and Mr Berryman, went out with the intention of getting drunk.

MR D F JACKSON QC: It would be a big night, your Honour, big night.

CALLINAN J: With the intention of getting drunk and they fulfilled that intention.

MR JACKSON: Well, your Honour, young people sometimes——

KIRBY J: I just think “drunk” is a label and I am a little worried about—it is not necessary to put that label. It is just that they were sufficiently affected by alcohol to affect their capacity to drive.


KIRBY J: “A drunk” has all sorts of baggage with it.

HAYNE J: Perhaps “hammered” is the more modern expression, Mr Jackson, or “well and truly hammered”.

MR JACKSON: I am indebted to your Honour.

KIRBY J: I do not know any of these expressions.

McHUGH J: No, no. Justice Hayne must live a very different life to the sort of life we lead.

KIRBY J: I have never heard that word “hammered” before, never. Not before this very minute.

-  Joslyn v Berryman (2003) 214 CLR 552

* * * * * * * *
Judgment of the Full Court in respect of an ex parte application to summon a grand jury pursuant to s 354 of the Crimes Act 1958 (Vic), unrepresented litigant:

[15]... Mr Shaw explains that he has concealed his address because every Freemason has taken an oath to maim or kill. Although his Honour is not named as one of the alleged offenders for the purposes of the present application, the material alleges that one judge of the Supreme Court and his associate have committed a criminal offence by attempting to pervert the course of justice. ...

[16] The exhibits to the affidavits in support of the application are numerous and most varied. Sometimes they are themselves copies of affidavits. At times they consist of extracts from an Act of Parliament. Sometimes they contain long passages from the Scriptures ... One affidavit of Mr Shaw, comprising, with exhibits, some 50 pages, deals with the prosecution of a woman ... last May on a charge of speeding. ... Matters which he attempted to debate included whether the 1855 Constitution was lawful and ... whether the statutes of this State were invalid by reason of the invalidity of that Constitution ... With the assistance no doubt of Mr Shaw, [the woman] unsuccessfully tried to appeal to the Supreme Court against her conviction and fine, basing herself either on the Constitution of 1855 or -- it is not clear -- the supposed invalidity of that Constitution. ...

[22] The material contains a large collection of what are in some sense said to be Masonic oaths. ... Most of the oaths are notable for the imprecation with which they conclude. The taker of the oath asks that if he should violate it his tongue be torn out by the root and buried in the sand of the sea at low water mark or a cable's length from the shore; or that he "incur the fearful penalty of having my eyeballs pierced to the centre with a three-edged blade"; or that his left breast be laid open and his heart torn therefrom and given to the ravenous birds of the air or devouring beasts of the field as a prey; or that the wine he now drinks become a deadly poison to him, as the hemlock juice drunk by Socrates, and thatthe cold arms of the skeleton -- a role played "convincingly" by a costumed colleague -- should forever encircle him. These are all very colourful, but it is, if we may say so, childish to imagine that a man who takes an oath of this kind -- if indeed men do so nowadays -- is, by reason of the colourful images in the imprecation, to be regarded as a potential murderer or a potential victim of murder.

Unsurprisingly, the application was unsuccessful:

[24] There are several reasons why this application must fail. One or two of the defects are, or may be, capable of being cured, but we should make it clear that in our view there is no reason for supposing that the papers ever would or ever could be put into a state which would warrant the summoning of a grand jury. There is a wide range of deficiencies. Most of the affidavits fail to state the deponent’s place of residence. … In addition, the affidavits are objectionable by reason of the way in which they put before the Court a hotch-potch of documents and assertions, inadequately identified and sourced. No-one would wish to see an applicant in person suffer as a result of inability to assemble and verify material as a lawyer would, but benevolent indulgence cannot be stretched to the point of accepting what has been put forward in this case. Quite apart from questions of proper form and admissibility, even applicants in person cannot expect a court to wade through material of the present kind in the hope that there may be found “a grain or two of truth among the chaff”. What, for example, are we expected to make of the vicissitudes of Mr Fyffe, said to be currently lodged in Port Phillip prison for threatening to kill, or those which have beset Ms McKinnon in her attempts to defeat her prosecution for a traffic offence? …

[26] We gave the applicants great latitude in arguing their application — more than we should have. They have made it plain that they regard every part of the legal system as infested — that is the kind of word they would use — with Freemasons and that they are convinced that the courts in general and we in particular will never give them the justice to which they are entitled. Many of the expressions were offensive. (“You break the law by the week.” “The courts cannot be trusted. You bend the statute law at the whim of whatever decision you want to make. But God’s law will win.” These are only examples of repeated imputations of bad faith.) The applicants have said to us that, each time their application is dismissed, “We will be back tomorrow.” We realise that nothing we say will deflect them from their course. We have, however, during the argument, tried to convey to them a little about abuse of process.

[27] The application is hopeless and it must be, and is, dismissed.

-  Application by Shaw [2001] VSCA 175 (12 October 2001)

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Bonus item:  a transcript of the exchange between Edward “Ned” Kelly and Justice Sir Redmond Barry, 1880:

His Honour: Edward Kelly, the verdict pronounced by the jury is one, which you must have fully expected.

The Prisoner: Yes, under the circumstances.

His Honour: No circumstances that I can conceive could have altered the result of the trial.

The Prisoner: Perhaps not from what you now conceive, but if you had heard me examine the witnesses it would have been different.

His Honour: The facts are so numerous, and so convincing, not only as regards the original offence with which you are charged, but with respect to a long series of transactions covering a period of eighteen months, that no rational person would hesitate to arrive at any other conclusion but that the verdict of the jury is irresistible, and that it is right. I have no desire to inflict on you any personal remarks.  It is not becoming that I should endeavour to aggravate the sufferings with which your mind must be sincerely agitated.

The Prisoner: No, I don't think that. My mind is as easy as the mind of any man in this world, as I am prepared to show before God and man.

His Honour: It is blasphemous for you to say that.   You appear to revel in the idea of having put men to death.

The Prisoner: More men than I have put men to death, but I am the last man in the world that would take a man's life.  Two years ago - even if my own life was at stake - and I am confident, if I thought a man would shoot me - I would give him a chance of keeping his life and would part with my own; but if I knew that through him innocent persons' lives were at stake, I certainly would have to shoot him if he forced me to do so; but I would want to know that he was really going to take my [sic] [an] innocent life.

His Honour: Your statement involves a cruelly wicked charge of perjury against a phalanx of witnesses.

The Prisoner: I dare say; but a day will come, at a bigger Court than this, when we shall see which is right and which is wrong. No matter how long a man lives he is bound to come to judgement somewhere, and as well here as anywhere. It will be different the next time there is a Kelly trial; for they are not all killed.  It would have been good for the Crown had I examined the witnesses and I would have stopped a lot of the reward, I can assure you and I don't know, but I won't do it yet if allowed.

His Honour: An offence of this kind is of no ordinary character. Murders had been discovered, which had been committed under circumstances of great atrocity. They proceeded from motives other than those which actuated you. They had their origin in many sources. Some have been committed from a sordid desire to take from others the property they had acquired; some from jealousy, some from a desire of revenge, but yours is a more aggravated crime, and one of larger proportions; for, with a party of men, you took arms against society, organised as it is for mutual protection and for respect of law.

The Prisoner: That is how the evidence came out here. It appeared that I deliberately took up arms, of my own accord and induced the other three to join me, for the purpose of doing nothing but shooting down the police.

His Honour: In new communities, where the bonds of societies are not so well linked together as in older countries, there is unfortunately a class which disregards the evil consequences of crime. Foolish, inconsiderate, ill-conducted, and unprincipled youths unfortunately abound and unless they are made to consider the consequences of crime, they are led to imitate notorious felons, [outlaws] whom they regard as self made heroes. It is right, therefore, that they should be asked to consider and reflect upon what the life of a felon is. A felon, who has cut himself off from all and who declines all the affections, charities and all the obligations of society, is as helpless and as degraded as a wild beast of the field; he has nowhere to lay his head; he has no one to prepare for him the comforts of life; he suspects his friends, and he dreads his enemies.  He is in constant alarm, lest his pursuers should reach him and his only hope is that he might lose his life, in what he considers a glorious struggle for existence. That is the life of an outlaw or felon and it would be well for those
young men, who are so foolish as to consider that it is brave of a man, to sacrifice the lives of his fellow creatures in carrying out his own wild ideas, to see that it is a life to be avoided by every possible means and to reflect that he unfortunate termination of the felon's life is a miserable death. 

New South Wales joined with Victoria is providing ample inducement to persons to assist in having you and your companions apprehended; but by some spell, which I cannot understand -- a spell which exists in all lawless communities more or less and which may be attributed either to a sympathy for the outlaws, or a dread of the consequences which would result from the performance of their duty -- no persons were found who would be tempted by the reward, or love of country, or the love of order, to give you up.  The love of obedience to the law has been set aside, for reasons difficult to explain and there is something extremely wrong in a country, where a lawless band of men are able to live for eighteen months, disturbing [???] society.  During your short life you have stolen according to your own statements over 200 horses.

The Prisoner: Who proves that?

His Honour: More than one witness has testified that you made that statement on several occasions.

The Prisoner: That charge has never been proved against me and it is held in English law that a man is innocent until proven guilty.

His Honour: You are self-accused.  The statement was made voluntarily by yourself that you and your companions committed attacks on two banks and appropriated there from large sums of money amounting to several thousands of pounds.

Further, I cannot conceal from myself the fact that an expenditure of 50,000 pounds has been rendered necessary in consequence of acts with which you and your party have been connected.

We have had samples of felons, all of whom have come to ignominious deaths. Still the effect expected from their punishment has not been produced. This is much to be deplored.

When such examples as those are so often repeated society must be reorganised, or it must soon be seriously affected Your unfortunate and miserable companions have died a death which probably you might rather envy, but you are not offered the opportunity.

His Honour then sentenced the prisoner to death in the usual form, ending with the words: "May the Lord have mercy on your soul."

The Prisoner: “I will go a little further than that and say I will see you there when I go.”

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Eerily, on 23 November 1880, only twelve days after Kelly's execution, Sir Redmond Barry died from what the doctors described as 'congestion of the lungs and a carbuncle in the neck'.


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