Search
This area does not yet contain any content.
Justinian News

Unread emails ... Family law barrister in Adelaide neglects to attend to emails ... Reminders to renew her ticket studiously ignored ... Unravelling chaos ... Trials invalidated ... Liability of Law Society and Conduct Commissioner ... Breach of statutory requirement ... Damages ... From our Team on the Torrens ... Read more >> 

Politics Media Law Society


An Australian Abroad ... An essay with pictures … Egypt and the Grand Museum … No end to the antiquities … Down the Nile on a dahabiya … Tombs and temples … Paris and industrial-scale tourism … The Yarts & Kulture ... Read on >> 

Free Newsletter
Justinian Columnists

Annihilation of the now ...Trump's campaign of destruction ... Fake emergencies ... Pointless and farcical executive orders ... Gangsterism ... Looting ... Corruption ... Shakedowns ... White rage ... Christian nationalism ... Roger Fitch unloads ... Read more >> 

Blow the whistle

 

News snips ...


Tasmanis's Lieutenant Guv (and CJ) Christopher Shenanigans is unlikely to decide the consitiutional impass ... The current guv'nor, former Circuit Court judge and family lawyer Barbara Baker returns to Guv House next week ... Labor hates the Greens and is unlikely to form a coalition government ... Another election looks likely as the numbers for both sides are brittle and unreliable ... However, Baker can ask the Labor leader to test his numbers. 

Justinian's Bloggers

Letter from London ... Weather report ... Starmer sinking ... Farage rising ... Fake law firm ... Fake cases ...  NHS employee cleans up with woke case for hurt feelings ... Floyd Alexander-Hunt files from Blighty ... Read more >> 

"In its self-image, Australia has changed from a nation of tough, resilient Anzacs to a snowflake society of victims. This can be seen in the rise of identity politics, cancel culture, trigger warnings, unconscious bias, workplace Broderickism, LGBTQIA+ pleading, colonisation impacts, hidden disabilities and welfare dependency. Hurt feelings, offensive words, micro-aggressions, workload stress and anxiety now form the basis of workers compensation claims."

Mark Latham MLC - a dissenting statement in a parliamentary report on proposed changes to workers compensation law ... May 2025 ... Read more flatulence ... 


Justinian Featurettes

Zeilgeist litigation ... Matt Collins KC on live-streaming of high-profile trials ... Social media nightmare ... Abuse of barristers ... Chilling emails ... Trials as a form of public entertainment ... Courts sleepwalking into a dangerous zone ... Framework needed to balance competing interests ... Paper delivered to Australian Lawyers Alliance Conference ... Read more >> 


Justinian's archive

Justice Jeff Shaw's bingle ... Supreme Court judge's drink-drive experience ... Cars damaged in narrow Sydney street ... Touch driving ... Missing blood sample ... Equality before the law may not apply to judges ... Judges behind the wheel ... From Justinian's Archive ... November 4, 2004 ... Read more >> 


 

 

« Justice Jeff Shaw's bingle | Main | Solicitor comes a cropper in costs battle »
Monday
Mar252024

The plague of amnesia

Memory and its failures ... Remembering to forget things ... Failure to take account of remissions in sentencing ... Relevant memories of experienced and inexperience judges ... An experienced judge writes ... Justinian's Archive, November 12, 2004 

Strom Thurmond ... don't mention it

The experienced, but forgetful, are usually forgiven their mistakes.

In most fields of human endeavour, experience is the magical factor that can cover all manner of shortcomings. 

Oscar Wilde put it so much better when he declared: "Experience is simply the name we give our mistakes." 

Take barristers. They know from the moment they sign on and get a number that they will, in time, advance and become more senior and experienced members of the bar, in which case they will become wiser and wealthier. 

Who knows, with experience and the right contacts some might even enter that exclusive club the members of which are permitted to wear a rosette on their gowns. If they are more experienced and have the right contacts, they could grasp the Holy Grail and be known as "Your Honour".

Experience in the law, as in politics, confers an over abundance of prestige and respect. 

Although that political legend from South Carolina, Senator J. Strom Thurmond, was a very experienced legislator, having been a member of the US Senate for 48 years, he was also occasionally forgetful. 

For example, for many years he forgot to publicly admit that he had fathered an ex-nuptial child in his younger days. In your correspondent's opinion he can be forgiven for such a lapse, not only because of the public opprobrium which attaches to representatives of the people fathering "love" children, but because the "love" child in question had a permanent tan. 

That particular characteristic would have created an added burden for the senator given that he was, for most of his life, an ardent proponent of racial segregation. 

No doubt many of his constituents were supporters of the same policy and would have been distracted by news that their senator had fathered a mixed-race child, at least to the extent that they might not remember to vote for him. 

In the circumstances, silence and denial were obviously the best strategies. 

Nevertheless, the existence of the ex-nuptial child never seemed to cause any undue concern to the senator who, during his life, acknowledged her as a "family friend". No doubt this was due, in part, to the respect and admiration he engendered because of his experience. 

It was not until after Thurmond died in June 2003 that the child, by then a 78-year-old woman, and the senator's family were able to come clean and publicly disclose the full extent of the Strom's forgetfulness.

A cursory review of some recent judgments from the Victorian Court of Appeal shows that judges too can be plagued by amnesia, but happily for some that does not cause grief. 

Section 16G of the Crimes Act 1914 (Cth) provided [at the time], in effect, that when a Commonwealth prisoner was sentenced in Victoria the sentencing judge in formulating a sentence was required to take into account that the prisoner would not be entitled to remissions if the sentence was to be served in the State. 

The policy of the provision was to ensure that a federal prisoner would not be required to serve a longer sentence due to the abolition of remissions in Victoria compared with a prisoner sentenced for a similar offence in another State. 

One might think that what a sentencer had to do was get out a slide rule or resort to a Cray computer to calculate an appropriate period to reduce the sentence. 

Wrong. According to the appeal judges no mechanistic calculation was necessary. All that a sentencer had to do was take the section "into account", along with a raft of other requirements which go to make up the "instinctive synthesis" of a sentence. 

In other words, a sentencing judge simply had to say the provision has been taken into account. But here's the rub: what if the sentencer had, like Senator Thurmond, experienced a spot of temporary amnesia and forgotten to say so? 

Not to worry. The oversight could be resolved by determining whether the relevant sentencer was "experienced" or not. If experienced, then it's taken as read that the judge had the elusive s.16G tucked away in the RAM somewhere but was temporarily unable to access it. 

If on the other hand, the sentencer was not so experienced, then the lapse was fatal. 

In R v Nguyen and Phan (1997) 1 VR 386 and R v Gaitanis (1998) VSCA 57, where sentencers were said to be either "experienced" or "very experienced" judges, the Court of Appeal knew, as night follows day, that they would have taken s.16G into account but had simply not got around to mentioning it for some reason. 

On the other hand, the poor sod or sodette who sentenced the prisoner in R v Ganglehoff (1998) VSCA 20 was obviously for the chop because there was no mention of whether he or she was "experienced".

So there it is. "Experience" does count for something, although not as much as it did because, along with Strom Thurmond, s.16G was dispatched in 2003. 

 

Reader Comments

There are no comments for this journal entry. To create a new comment, use the form below.
Editor Permission Required
You must have editing permission for this entry in order to post comments.