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The donations button has been fixed…

March 11, 2010 – 12:19 am
By skepticlawyer

… Many thanks to the people who were kind enough to tell us it was busted, as we would never have found out otherwise. We’re not in the habit of checking. With any sort of luck it is now clever enough to spot whether you are in Australia or the UK (where most of our readers come from) and adjust the currencies accordingly.

By skepticlawyer | Posted in Blogging, Events, General | Comments (0)

Making someone pay for bullies

March 10, 2010 – 10:56 am
By Legal Eagle

In an interesting case, the Victorian Supreme Court has decided a victim of bullying may get compensation for threats to kill made to her by a bully when she was eight years old. The compensation is under the Victims of Crime Assistance Act 1996 (Vic) (‘VCAA‘). Among other things, when they were both eight years old, the bully swore at the victim and insulted her, repeatedly threatened to kill the the victim, threatened to have the victim killed by the bully’s uncles, menaced the victim with scissors, menaced the victim with a broken bottle, and frequently punched her, kicked her, pinched her and spat at her. This was part of a sustained campaign of bullying which spanned years and involved other assaults on the victim by the principal bully and other girls. The victim and her parents complained to the school authorities repeatedly. After the threats to kill, her parents reported the bully’s conduct to the police. As a result, the police attended the school and gave a general anti-bullying presentation. The bullying continued after this until eventually the victim had to leave the school. The victim applied to the Victims of Crime Assistance Tribunal (‘VOCAT’) for financial assistance pursuant to s 50 of the VCAA. VOCAT refused that application, and the victim appealed to the Victorian Civil and Administrative Tribunal (‘VCAT’), which affirmed VOCAT’s finding.

The twist in the tale is that s 344 of the Children, Youth and Families Act 2005 (Vic) provides that ‘[i]t is conclusively presumed that a child under the age of 10 years cannot commit an offence.’ Under the common law, the principle of doli incapax requires that it must be proven beyond reasonable doubt that criminal conduct by a child under the age of 14 years is known to be wrongful by the child, and the starting point for the evidence is a rebuttable presumption in favour of the child.

Section 8(1) of the VCAA provides that financial assistance may be awarded to a “primary victim”. “Primary victim” is defined as “a person who is injured or dies as a direct result of an act of violence committed against him or her” (Section 7(1) of the VCAA).

s 3(1) of the VCAA, an “act of violence” means “a criminal act or a series of related criminal acts”; and a “criminal act” is defined to mean:

An act or omission constituting a relevant offence or that would constitute a relevant offence if the person had not been incapable of being criminally responsible for it on account of –

(a) age, mental impairment or other legal incapacity preventing him or her from having a required fault element; or

(b) the existence of any other lawful defence; … .

The VCAT Member found that ‘having regard to the tender age of the perpetrators, I cannot be satisfied on the balance of probabilities, that they amounted to criminal acts rather than bullying. I think it unlikely that they were motivated by criminal intent.’

Cavanough J overturned the findings of VOCAT and VCAT. His Honour said at [34] – [35]:

However, although the Tribunal did not say so, I think it probably was in fact satisfied about basic intent. If not, it plainly should have been. The allegations by BVB [the victim] against K [the principal bully], S and J [the other bullies] were allegations of crimes the commission of which do not necessitate sophisticated thinking. Mainly they were allegations of assaults (including batteries) and threats to kill. There was no suggestion that any of the incidents occurred accidentally. The evidence clearly showed hostility towards BVB on the part of K, S and J at the relevant times. With respect, it is not to the point to say, as the Tribunal did, that a threat to kill by a 10 year old child is more likely to be hollow than to be made with actual criminal intent. It did not matter whether K had the means or the intention of actually carrying out her threats, unless her lack of means and intention were apparent to BVB, and there is no suggestion of that. Indeed, the evidence showed that K fully intended by her threats to put BVB in fear of her life (and she did so). Similarly, according to the uncontradicted and accepted evidence, on each occasion when K, J or S physically hurt BVB by punching, kicking, pinching, pushing or scratching her, they obviously intended to do what they did and they obviously intended to hurt BVB.

It is true that the law conclusively presumes that a child under the age of 10 years cannot commit an offence. And it is also true that the common law includes the principle of doli incapax, whereby knowledge of wrongfulness by a child under the age of 14 years is required to be proven beyond a reasonable doubt; and that that principle is supported by a rebuttable evidentiary presumption in favour of the child. However, at least insofar as it relates to age, the very point of that part of the definition of “criminal act” in s 3 of the VCAA that is expressed in hypothetical terms is to require the court or tribunal to disregard any legal principles or protections specially appurtenant to age that would or might apply outside the confines of the VCAA. This the Tribunal failed to do.

Hopefully at least the money which the victim’s family received helped them to cover the expense of sending their daughter to a new school.

By Legal Eagle | Posted in Children, Economics, Law | Tagged , , , , | Comments (13)

The Long Barrier

March 9, 2010 – 5:43 pm
By skepticlawyer

Someone listened to his cricket coach as a kid: 

A British soldier has described how he picked up a Taliban hand grenade which landed at his feet and threw it back towards the enemy.

Rifleman James McKie was on a tiny rooftop in Sangin. He and two of his platoon could hear the bullets fired by the Taliban below bouncing off the roof.

The 29-year-old soldier had just finished firing back when the grenade thrown by the insurgents bounced off his platoon commander and landed just a foot away from him.

He heard a small pop, “like a fire-cracker,” before he saw the grenade land.

The young soldier, originally from New Zealand, made a split-second decision that was to save his life and those of his two comrades on that roof. He picked up the grenade, and threw it back.

“I saw the grenade, and my first thought was that I knew I had to get it away from us. And my second was ‘I hope this doesn’t hurt too much’,” he says, with a wry smile.

Obviously well-schooled in forming ‘the long barrier’, Rifleman McKie (who is Kiwi originally) ‘got behind it’, fielded it and threw it back. Who knew that cricketing skills had such a direct military application:

Approach the ball at speed and as you get into line with the ball, twist your upper body, leading with the shoulder furthest from the ball.

Bend both knees, so that the knee of the leg nearest to the ball touches the ground, but it is also next to the back of the heel of the other leg.

With fingers down and head forward, pick up the ball and then stand back up ready to deliver an overarm throw.

Don’t, however, try this at home. Except with a cricket ball, of course; that’s all right.

By skepticlawyer | Posted in Cricket, Defence, Terrorism | Tagged , , | Comments (3)

Mummies and Daddies

March 8, 2010 – 11:47 am
By Legal Eagle

I was interested to read today that a woman has failed in her legal bid to stop her former partner from encouraging their six-year-old daughter to call his new partner “Mummy D”. Unfortunately the judgment doesn’t seem to be available online yet.

[The mother] said encouraging the term of endearment was ”an incendiary action” by her former partner and his new partner, even though it was followed by the initial of the stepmother’s first name and they had agreed not to encourage the simple use of ”mum” or ”mummy”.

But Justice Christine Dawe refused to grant the order, saying it was impractical to require the father to stop encouraging the stepmother and the child to use the term ”Mummy D”, and could have led to further litigation.

”Weighing all of the factors up, and particularly that the child has in the past used the expression ‘Mummy [D]‘, and on the basis that I am not satisfied from any of the material before the court that the use of the expression ‘Mummy [D]‘ by the stepmother would undermine the mother’s relationship with the child, I am not satisfied that it is in the best interests of the child [to grant the order],” the judge said.

”I also accept that, at her age, she will develop and in future will be likely to, or may well possibly, adapt to calling each of her step-parents by their first names rather than using expressions of either ‘Mummy’ or ‘Daddy’.”

Patrick Parkinson, a family law professor from the University of Sydney made the following comment about the decision:

”There are limits to what any court can do. You can’t regulate every aspect of family life through court orders,” he said. ”We’ve got to grow up and stop thinking every breakdown can be resolved by the court.”

The case had probably cost the parties a lot of money, time and anxiety, but there was not much that could be done to stop such changes occurring after divorce except to respect the other people involved and recognise their role in a child’s life, he said.

Parkinson is right on the money – there are limits to what the law can achieve. I wish people thought about that more often. I mean, how could such an order be practically enforced? What happens if the child calls her stepmother ‘Mummy D’ of her own volition, despite the court order? How can this kind of thing possibly be good for the child?

I’ve never had a relationship breakdown, but if I did, I would do my best to make things as amicable as possible for the sake of the children. Of course it takes both parties to achieve this, and I know it isn’t always possible. I know a woman whose ex-partner screamed at her and physically threatened her at handovers of their child, and then, when the child recoiled from the father, he accused his ex-wife of “turning” the child against him. (Could he not see that he was turning his own child against him by his behaviour? Apparently not. Of course, this lack of insight was part of the reason the marriage failed in the first place.)

In any case, people just have to accept that their former partner may well find a new partner and that this new partner will have a role in their child’s life. It takes a little compromise on everyone’s part, and the parent who won’t compromise may find that the very thing they fear occurs and they end up alienating their child because of their attitude.

By Legal Eagle | Posted in Children, Law, Marriage, Motherhood | Tagged , , , , | Comments (8)

Ari and Mohammed are now friends

March 7, 2010 – 4:04 am
By DeusExMacintosh

The Israeli military cancelled a planned raid on a Palestinian village after one of its soldiers posted details of the operation on Facebook.

The unnamed soldier revealed the time and place of the raid and the name of his unit on the social networking site. He said on his status update that his unit planned a “clean up” raid.

The soldier was court-martialled and sentenced to 10 days in prison. He was also ousted from his battalion and relieved of combat duties.

“On Wednesday we clean up Qatanah, and on Thursday, God willing, we come home,” the soldier wrote on his Facebook page. Qatanah is a village in the West Bank near Ramallah.

His Facebook friends and fellow soldiers reported the post to the authorities.

The decision to cancel the raid was made by commanders after it was feared the leak would put the unit in danger. The operation went ahead several days later.

- BBC News

By DeusExMacintosh | Posted in Fark!, Free Speech, Funnies, Internet, Law, Middle east, Politics, Religion | Tagged , , , , , , | Comments (12)

Jacob’s Ladder

March 5, 2010 – 6:52 am
By DeusExMacintosh

It was all polite smiles and meticulous protocol as Jacob Zuma met the Queen yesterday afternoon. But just hours before he left for his state visit to Britain, South Africa’s flamboyant President revealed what he really thought of his hosts.

In an astonishing interview given shortly before he boarded his flight to London, Mr Zuma launched a scathing attack on the British, accusing them of being cultural imperialists with colonial attitudes who still viewed Africans as “barbaric”.

“When the British came to our country they said everything we did was barbaric, was wrong, inferior in whatever way,” he told The Independent’s sister group of newspapers in South Africa. “Bear in mind that I’m a freedom fighter and I fought to free myself, and also for my culture to be respected. And I don’t know why they are continuing thinking that their culture is more superior than others, those who might have said so.”

The catalyst for Mr Zuma’s remarkable outburst was criticism from a number of British columnists who questioned the President’s polygamy, a common and accepted practice among South Africa’s Zulus…

However, at a state banquet last night, Mr Zuma praised the help Britain had given South Africa in its transition to a new democratic government. “We cannot forget the extraordinary role they [the British people] played at the forefront of a global movement for a free South Africa, as the global anti-apartheid movement has its roots in this country.”

His comments in the interview threatened to overshadow what was supposed to be a three-day visit to strengthen ties between Britain and South Africa. Gordon Brown stood alongside the Queen to greet Mr Zuma and the two leaders will hold talks today…

For his opening meeting with the Queen and Prince Philip on Horse Guards Parade, Mr Zuma wore a long coat and black suit to protect him from the March chill. In South Africa, the 67-year-old often greets dignitaries wearing the traditional Zulu dress of leopard skin loincloth and shield. Mr Zuma’s Zulu heritage may also have provided the impetus behind the Queen’s gift to him of a mounted bronze stag and a book entitled Hunting And Stalking Deer. A representative from Mr Zuma’s office, however, admitted he had no knowledge of the President being interested in hunting.

Mr Zuma’s gift to the Queen was a sculpted chess set depicting traditional Zulu warriors – although he soon discovered that a similar present had been given to the Duke of Edinburgh by his predecessor Nelson Mandela years earlier. Noticing the hand-painted ceramic set on display in the Palace Picture Gallery, a slightly crestfallen Mr Zuma remarked: “Oh, that’s another set.”

- The Independent

Okay, so I couldn’t resist it either…

UPDATE: My apologies to those eagle-eyed readers who have noticed the corrected funnie. As SL has kindly pointed out, Ian Smith was the racist white prime minister of Rhodesia, PW Botha was the racist white prime minister of South Africa.

By DeusExMacintosh | Posted in England, Events, Funnies, Marriage, Media, Politics, Racism | Tagged , , , | Comments (4)

Such a jaunty little tune

March 5, 2010 – 5:10 am
By skepticlawyer

Amanda Palmer sings and performs in the same tradition as the artists in Cabaret, with jaunty and up little tunes about death, destruction, weird sex and squick. Once part of The Dresden Dolls, she had a large hit with Coin Operated Boy and has since done various other things, including a musical attempt to revive the flagging fortunes of Leeds United Football Club (now sadly languishing in the 3rd Division).

A friend pointed me to the video below, which, I think, combines ‘all the above’ in about equal measure (death, destruction, weird sex and squick). It made me laugh, but in the same way that large chunks of Python make me laugh: with a creeping sense of, oh no, you mustn’t, it’s cruel!

Palmer’s response to the blanket refusal of UK radio stations to play the tune was to point out the following:

I suggested that I might be allowed to play it if I just slowed it way down and played it in a minor key. Think about it. If they heard the same lyrics against the backdrop of a very sad and liliting piano, maybe with some tear-jerking strings thrown in for good measure, would they take issue?

She’s got a point, especially considering the success of Ben Folds Five’s Brick, which does the appropriately sad lilt with a side-serving of ‘rite of passage’. Interestingly enough, Ben Folds is often Amanda Palmer’s producer, so it’s clear that neither disapproves of the other’s approach. They just approach the topic differently. I suspect Palmer’s above comment is a tongue-in-cheek reference to Brick, which even gives us some strings.

Alternatively, Ben Folds just prefers to write sad songs, while Amanda Palmer just prefers to write happy songs. Even about poor old Leeds United, who may have missed the transfer window for all time.

By skepticlawyer | Posted in Feminism, Music | Tagged , , , , , | Comments (1)

A Welcome to Lawyers’ Weekly readers

March 4, 2010 – 5:03 am
By skepticlawyer

Some of the people who write this blog are actually organised. I, alas, am not one of them.

Unbeknown to me, this blog was prominently featured in this week’s issue of leading trade magazine Lawyers’ Weekly. The article discusses several sites across Ozblawgistan, including Stephen Warne’s professional negligence blog (you’ll notice he’s featured on LE’s blogroll) and several we hadn’t discovered, including this fabulous site, done by cartooning lawyer Paul Brennan. Two more specialised sites are also featured: Stephen Page’s divorce blog and his LGBT law blog. Three of these were unknown to me, which not only goes to show my lack of organisation, but also the diversity of Australian blawgs. I’m especially taken with Paul Brennan’s site. Do take a look at it — some of the cartoons are very funny.

Lawyers’ Weekly includes a very nice interview with Legal Eagle, which I’m very glad of as I wasn’t around to assist — the magazine contacted us while I was in the US. 

So, with that out of the way, it’s probably time to invite lurkers to introduce themselves, if they’ve got a mind to do so. Our stats have gone silly this week so we know you’re out there. I realise this kind of thing can sometimes fall flat, but if you found this blog via Lawyers’ Weekly, or have just been quietly reading over time without joining in, we’d like to invite you to leave a comment below.

By skepticlawyer | Posted in Blogging, Law, Media | Tagged , , , | Comments (4)

Contemptuous spam

March 3, 2010 – 10:18 am
By Legal Eagle

Believe it or not, it’s now possible to commit contempt of court by soliciting your supporters to send hundreds of e-mails to the judge.

The case arose when a salesman, Kevin Trudeau, who apparently sells weight loss cures via infomercials on US TV was taken to court by the US Federal Trade Commission for deceptive advertising. The Chicago Tribune reported:

Gettleman [the judge] found Trudeau in contempt last year for using deceptive advertising as he marketed his book “The Weight Loss Cure ‘They’ Don’t Want You to Know About.” He told his audience the book detailed “the easiest method known on planet Earth,” when in fact the book required followers to not eat meat, poultry, starch, fast food or microwaved food, among other rules, and called for hormone injections.

In an effort to sway the judge to his favour, Trudeau asked his followers to e-mail the judge telling them how the cure had changed their lives. Well wasn’t that a mistake? The Chicago Tribune piece continues:

Gettleman came to a boil last week after Trudeau used an Internet radio broadcast and his Web site to urge supporters to e-mail the judge with messages about how Trudeau’s products had changed their lives.

…

Some 300 Trudeau fans responded, crashing the judge’s e-mail account and leading him to find Trudeau in criminal contempt of court. On Wednesday, Gettleman called the e-mail attack a deliberate attempt to “harass, intimidate and influence” him.

According to Virulent Word of Mouse, the judge turned on his computer in court so that counsel could hear the “bings!” as the e-mails hit his inbox. Have a read of the Virulent Word of Mouse post, it’s very funny.

The judge ordered Trudeau to serve 30 days in custody for contempt of court.

(H/T Heath Gibson)

By Legal Eagle | Posted in Internet, Law | Tagged , , , | Comments (12)

Privacy and WAGS

March 2, 2010 – 7:49 pm
By Legal Eagle

I have to say that I never really understood where the acronym WAG came from – I had to look it up on Wikipedia, and I found that it originated as a descriptor of the Wives And Girlfriends of the 2006 English World Cup soccer club. Anyway, I’ve noted that our press has started referring to the wives & girlfriends of the Australian cricket team as WAGs. The woman who I have seen described as a WAG most often appears to be Michael Clarke’s fiancee, Lara Bingle. Her main claim to fame is that she appeared in the ad which asked Where the bloody hell are you? I’ve never had much interest in that kind of thing – the only reason I know who she is is because I like cricket.

Anyway, I saw that Bingle plans to sue footballer Brendan Fevola for releasing images of her taken in the shower some three years ago:

Lara Bingle’s decision to sue Brendan Fevola over the distribution of a near-naked photograph of the swimwear model strikes a blow for women’s rights, says celebrity agent Max Markson.

Bingle decided yesterday to sue the controversy-plagued AFL footballer for allegedly distributing the revealing picture, taken on a mobile phone during the pair’s brief affair in 2006.

Markson confirmed Bingle will take action against for the Brisbane Lions forward for breach of privacy, defamation and misuse of her image after the steamy photo appeared in this week’s Woman’s Day.

I understand that Fevola was distributing the picture amongst his football colleagues and friends, whereupon it found its way to Woman’s Day.

The thing which has amazed me is the venom which has been directed at Bingle for taking this action. This morning, Bingle’s agent, Max Markson, was interviewed by Jon Faine on ABC 774 (excerpt of interview here). Faine asks Markson, “So she’s happy for an image without her clothes on to be circulated as long as she’s paid for it?” In response to Markson’s comment that Bingle hasn’t done fully nude photographs as far as he’s aware, Faine says, “But she has taken her clothes off and posed for men’s magazines?” Markson responds that Bingle has successfully sued Zoo magazine for using unauthorised naked shots of her in the past. “So she’s happy if she’s paid for photos of her?” persists Faine.

Kristen, a talkback caller later takes Faine to task, pointing out that it’s Bingle’s choice that is at issue (atta girl Kristen). In response, Faine says that says that Bingle is just using other people’s moral outrage to protect her brand.

To extend Faine’s argument to a more shocking situation, would Faine argue that if a prostitute is raped it isn’t a problem? After all, a prostitute has sex with random men all the time anyway, and perhaps her problem is that she wasn’t paid in this time? I very much doubt that Faine would argue that. He needs to think about the logical ramifications of his argument here. Just because Bingle makes her living by posing in swimsuits doesn’t mean that she deserves to have naked images of herself taken without her consent disseminated around the Brisbane Lions football club.

And some of the comments on the various articles about Bingle instituting legal action! Apparently the photo was taken when Bingle was in a relationship with Fevola, and he was married at the time. She was 19 years old, and claims that she didn’t realise he was married. A few of the comments exhibit the view that Bingle is a slut and deserves what she got. (No, of course it’s not the married man’s fault that he had an affair, it’s all the woman’s fault.)

The point is that this photo was take without Bingle’s consent (it’s clear that she didn’t want the picture taken from the small version in the linked Herald Sun article). And when Fevola distributes the picture to all his mates, that’s a form of harassment and bullying. It was non-consensual. It’s arguable that its distribution is intended to humiliate and belittle her. It doesn’t matter whether she’s a WAG and a swimsuit model, or that she was having an affair with Fevola at the time. No one should have to put up with that kind of thing.

In terms of defamation, there is precedent on the release of naked photographs where the intention is to subject a person to ridicule and contempt. In Shepherd v Walsh [2001] QSC 358,  Sonia Shepherd successfully sued the publishers of a magazine called The Picture, after it published a nude picture of her. While the picture was of Ms Shepherd, she did not consent to its publication, and it was in fact sent in by her ex-boyfriend and his new girlfriend in revenge. There are also parallels with the case involving Andrew Ettingshausen, a famed rugby league player, who successfully sued GQ Magazine after it published a nude photo of him without first seeking his consent. At trial, he was awarded $350,000 in damages, but damages were reduced to $100,000 on appeal (see Australian Consolidated Press Limited v Ettingshausen (unreported, New South Wales Court of Appeal, 13 October 1993, Gleeson CJ, Kirby P and Clarke JA).

The question will be whether Fevola intended to subject Bingle to ridicule and contempt, or whether he merely sent the image on to a few mates and it got out of hand.

I note Bingle has also claimed breach of privacy – I’ll be very interested to hear where that claim goes. The case could be said to be reminiscent of Giller v Procopets [2008] VSCA 236, where Mr Procopets distributed explicit images of Ms Giller to friends and family after their relationship broke down. As I’ve discussed in a post here, the Court of Appeal did not find it necessary to decide whether there was a tort of invasion of privacy. I’ll be interested to see what happens with this one.

By Legal Eagle | Posted in Feminism, Law, Privacy | Tagged , , , , , , , , | Comments (49)