November 25, 2013
I recently read Annie Cossin’s book “The Baby Farmers” (which the publisher sent to me in the hope that I might blog about it – be careful what you wish for!). As well as being the story of John and Sarah Makin, it is also a glimpse into life in Sydney in the late 19th century. The Makins were “baby farmers” which basically meant that for a fee they would “adopt” the babies of unmarried mothers. Unfortunately the economic reality was that the money wasn’t enough to fund ongoing care and the babies were not fed properly, neglected and allowed to die. An opium based “medicine” called “Godfrey’s Cordial” was used to pacify the dying babies (so the neighbours didn’t notice). It was also used in higher doses to achieve a quicker result.
The book brings this unsavoury part of our history to life and made me contemplate that society’s attitude to unmarried mums has only really changed in the past few decades. For me, the following extract from p258 sums it up: ”[Their] crimes were also the crimes of a society that condoned infanticide while, paradoxically, stigmatising unmarried mothers. The legal status of an illegitimate child was described as ‘filius nulls’, child of no-one, which sums up the legal and social reality of those times. Since these children had no legal status, it is hardly surprising they had little or no social value. Life was cheap for illegitimate babies. Baby farmers provided an unsavoury but necessary service that filled the vacuum left wide open by government policies, the market economy and the limited assistance available through charitable organisations.”
So what happened to the Makins? Although the bodies of 13 babies were been found buried in the backyards of various houses where the Makins had lived in late 1892 (and there were undoubtedly more that went undiscovered), they were both (possibly wrongly) convicted of the murder of only one of them: Amber Murray. After their unsuccessful appeal to the Privy Council, John was hanged and Sarah served 18 years. She was released in 1911.
There are a couple of interesting post scripts to this story:
- The Makin case, remained an authority in relation to similar fact/propensity evidence until those terms were replaced with tendency and coincidence in the 1995 Evidence Act. There are still several references to it in “Cross on Evidence”;
- The book’s author (a UNSW academic by day) got to play Sarah Makin in an episode of the TV series “Deadly Women” which showed on the Discovery channel; and
- With the book under my arm, I also engaged in some (Tony ‘Baldrick’ Robinson style) amateur history work and went to Burren Street, Erskineville to see if the infamous house (where 6 of the bodies were found) was still there. Although the number has changed from 25 to 27, it is there and the photograph above matches a sketch that is in the book. I didn’t have the heart to knock on the door to ask the current occupants if they knew they were living on a 120 year old crime scene!
October 26, 2013
Here’s a photo of me (assisted by curry and Kingfisher) on Feroz Shah Kotla which is the current test cricket venue in New Delhi. For those of you that might be thinking you didn’t know I was good at cricket, it’s because I’m not. Notwithstanding my ability, after a rigorous selection process (i.e. payment of a deposit), I was a member of the Australian Lawyers’ Cricket Council team which participated in the 4th Lawyers’ World Cup of Cricket in India from 11-22 October 2013. Australia actually had two teams in the competition and my contribution (to the B team) was to score 2 runs (in 3 matches played), only one of which was off the bat.
The other participants in the tournament included two teams from Sri Lanka and one each from the English Bar, the West Indies, India and Pakistan. It’s probably not a surprise to anyone that the teams with local knowledge dominated the competition. Pakistan defeated India in the final. The final incidentally was televised live on one of India’s two 24/7 cricket channels. One of the round robin matches involving Australia’s A team was also recorded for broadcast. Everyone knows that India is cricket mad, but I am genuinely unsure why anyone (apart from curious passers by….and there were a few of them) would want to watch “lawyer cricket”.
Apart from cricket, there was a day trip to Agra to see the Taj Mahal and also some sightseeing in and around Delhi itself. I was also able, with the assistance of a local advocate, to visit the Indian Supreme Court (their highest court) on what we would call a “special leave day”. There appeared to be hundreds of matters spread over about 20 courts (each with 2 judges sitting). The judges are surrounded by large piles of files and as each matter is dealt with, the file is literally tossed from their book rests onto the table below where the court officers retrieve them. There were also hundreds (possibly thousands) of advocates jostling for position, both in the courts themselves and on the open verandahs of the grand colonial court complex. It felt as if the whole court complex was jammed with black robes (no wigs) and a variety of suits (including white ones), turbans and footwear (including what were effectively “thongs”). There is no such thing as a busy list in Sydney!
September 27, 2013
On 18 December 2008, three Sri Lankans escaped from the Christmas Island detention facility to avoid being put on a plane that was booked for the following day to take them back to Sri Lanka. While, it’s not a crime to arrive in Australia without a visa and seek asylum, it is a crime to escape from mandatory immigration detention. Each of the three pleaded guilty to escaping and were sentenced to three months imprisonment, principally because the Magistrate was keen to deter others from escaping.
On the sentencing appeal (Warnakulasuriya -v- The Queen  WASC 257), Hall J was obviously more sympathetic to them. He ordered their immediate release (from prison that is) and imposed a $100 bond to be of good behaviour for 12 months. Paragraph  of his judgment is instructive:
“This appears to be conduct that was unplanned. The fact that the appellants surrendered themselves readily when located and were hungry and thirsty [the magistrate described it as "hanging around in the jungle"] attests to the lack of planning. They appear to have had no thought as to what they would do after escaping other than to try to locate a church where they would take sanctuary. There was no prospect of them escaping into the broader Australian community given the location of the detention centre on Christmas Island [the closest point on the mainland is Exmouth which is 1500km away]. There was no property damage caused, nor was any officer or member of the public threatened or assaulted. The appellants were at liberty for a very short period of time and did not travel far. They were easily apprehended and cooperated with the police….Each of the appellants acted out of fear that they may be killed if they were returned to Sri Lanka.”
Begs the question: why do we spend a large amounts of public money on security on Christmas Island? I am also reminded of the words of the second verse of Advance Australia Fair: “….For those who’ve come across the seas, We’ve boundless plains to share….”
Creative commons acknowledgment for the photograph.
August 28, 2013
Thankfully, barristers are prohibited from conducting correspondence in their own name on behalf of anyone else (see NSW Barrister’s Rule 17(b)). As a result I can’t poke fun at judicial comments about aggro correspondence by counsel. However, it would appear from Justice Palmer’s comments in Arena Management Pty Ltd (Admin App) (Rec & Mgrs App) & Anor v Campbell Street Theatre Pty Ltd (No 2)  NSWSC 1230 that some of us can’t help ourselves in our written submissions:
“ There is another aspect….which calls for comment. [Barrister 1], in his written submissions, describes [Barrister 2]‘s submission as to failure to plead fraud as “errant nonsence” – presumably meaning “arrant nonsense”. The use of such language by counsel is to be deplored. Robust advocacy, which is commendable, does not license rudeness, which is not. The use by counsel of intemperate language, particularly when there is, in fact, nothing calling for adverse comment, suggests a degree of emotional involvement which counsel have a duty to avoid if they are to discharge their duties to the client and to the Court with proper professionalism…”
For the avoidance of doubt, we all know from dictionary.com that arrant means “downright; thorough; unmitigated; notorious”, while errant means: “deviating from the regular or proper course; erring; straying” or “journeying or traveling, as a medieval knight in quest of adventure; roving adventurously”.
Shout out to Shane Paterson of HWL Ebsworth for telling me about this case.
Creative commons acknowledgment for the photograph.
July 17, 2013
Back in July 2009 (when this blog was 3 posts old) I wrote about some inappropriate correspondence between solicitors. I have just come across Ezzo v Grille  NSWSC 776, which, somewhat ironically, is a defamation case. The correspondence and Justice Simpson’s comments in the following extracts from the judgment speak for themselves:
 Service of the statement of claim sparked a round of correspondence between the solicitors for the parties, escalating in intensity, and, at times, astonishing in the absence of dispassion that may reasonably be expected of correspondence between legal practitioners. The tone of the correspondence will emerge from the extracts I set out below….. Both the language used and the assertions and contentions made are, at times, extravagant, highly coloured, emotional. The heat generated in the correspondence has not assisted in the resolution of the relatively narrow issue I have to determine.
It all started following publication of an article by a Sydney based psychologist and the initial letter of demand.
 On 27 September 2002 the plaintiff’s solicitors wrote to the defendant, describing the publication as containing: “numerous highly defamatory, false and pernicious imputations”;…..
 On 26 March 2003 the plaintiff’s solicitors wrote again to the defendant’s then solicitors. They claimed that the defendant had: “very severely aggravated and exacerbated the serious damage caused by the publication of the wrongful and malicious article … by the publication of a further scurrilous and highly defamatory letter, which oozes with malice …”
The defendant’s solicitors then wrote pointing out that although they disputed that the imputations arose, an apology had already been published. They also advised that their client was prepared to publish a further apology and pay costs.
 To this the plaintiff’s solicitors replied by characterising many of the statements made in the letter as “patently incorrect” and the letter as “misleading”. They denied knowledge of any general apology ……[why they didn't accept the offer and chose to shoot at the "white flag" is a mystery!]…..
 On 10 July 2003 the plaintiff’s solicitors….repeated the assertion that the 1 July letter of the defendant’s former solicitors constituted grounds for an award of aggravated damages. They described the content of the publication as “despicable”; they asserted that the defendant: “appears to have no defence whatsoever to our client’s claim”, described the opinion expressed in the 4 July letter (that the imputations pleaded do not arise) as “bizarre”. They moved to the statement that the defendant had relied upon the publisher to undertake normal legal checking of the article and characterised this as: “… as perverse as it is cowardly …”. It goes on, and you can read it in its full glory for yourself.
Creative commons acknowledgment for the photograph.
June 27, 2013
“Disentitling conduct” is a concept that practitioners who act in family provision matters occasionally have to deal with. What it boils down to is that if someone has treated the testator badly to the point that they get left out of the will, then they only have themselves to blame. The case of Troja v Troja (1994) 35 NSWLR 182 has undoubtedly set the high water mark.
In June 1990, Joanne Troja deliberately shot her husband and was convicted of manslaughter. She served 8 years in Malawa Correctional Centre. Unfortunately for Joanne, the common law forfeiture rule (that prevents someone from benefiting from their own criminal act) applied and she received nothing from her husband’s estate even though she was the sole beneficiary under his will.
Not to be deterred, in August 1991 she made an application under the Family Provision Act, claiming that she had been left with inadequate provision from her late husband’s estate for her proper maintenance, education and advancement in life.
The Public Trustee successfully sought:
(1) A declaration that [Joanne] has become disentitled to take any benefit under the will of the deceased aforesaid by virtue of her having feloniously killed the deceased on 2 July 1989; and
(2) A declaration that [Joanne's mother] is entitled to take the whole of the estate of the deceased aforesaid as substitute beneficiary under the will.
Nice try – now back to the naughty corner!
Creative commons attribution for the photograph.
May 27, 2013
On my way back from court last week, I saw John Wilson protesting in Queen’s Square (again). Mr Wilson is a campaigner for the right to trial by jury and like may other crusaders he has made himself a “serial pest” in the courts. As it has been some time since I have seen him, curiosity got the better of me and I did a quick Austlii search to see what he’s been up to recently.
It appears that Mr Wilson was declared a vexatious litigant in 2010 (see Attorney General of NSW v Wilson  NSWSC 1008), a decision which he (of course) appealed (see John Wilson v The Attorney General of New South Wales  NSWCA 10). In dismissing the appeal, Justice McColl succinctly summarises his activities as follows:
 The reasons of the primary judge contain a careful analysis of 14 sets of proceedings Mr Wilson commenced in the Court (and almost invariably took on appeal to this Court and by application for special leave to the High Court [see links in footnote below]) between 4 July 1996 and 17 October 2007.
 Mr Wilson has not challenged his Honour’s analysis in any respect. Rather, his written and oral submissions have been directed to reiterating, among other matters, the underlying theme of many of those actions, namely, that any legal action in which he is involved, including those before the primary judge, must be tried by a jury (a right said to be derived from the Bible , the Magna Carta and other instruments such as the Universal Declaration of Human Rights , the International Covenant on Civil and Political Rights and historical sources). He also submits that judicial officers are not properly appointed and therefore have no jurisdiction over him. These submissions have been considered and rejected in many of the cases which form the basis of the Attorney General’s application.
 In addition, as I understand Mr Wilson’s oral submissions this morning, he alleges that the Vexatious Proceedings Act itself is ultra vires, apparently, again, because it does not permit trials by juries. Mr Wilson’s written submissions also refer to principles of natural justice, in particular the rule against bias and the right to be heard, but make no submission that the hearing before the primary judge was affected by any breach of either of those principles. A reading of the transcript of the hearing and of the judgment make it plain that the primary judge approached the matter impartially and went to great lengths to ensure Mr Wilson was given an opportunity to be heard (despite the fact that he had to be removed from court at one stage due his constant interventions and over talking the judge).
If he had too much time on his hands previously, he’ll have even more now!
Footnote: The transcripts of Mr Wilson’s special leave applications in the High Court are interesting to read if you have time:
Wilson v The Prothonotary  HCA Trans 108
Wilson v State of NSW  HCATrans 623
Wilson v Deputy Commissioner of Taxation [2003 HCATrans 403
Creative commons acknowledgment for the photograph.