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 >> 


 

 

« Late for the list | Main | Migratory thoughts »
Wednesday
Mar162016

Difficulty with the word "could" 

Another expert queries the mysteries of the High Court in ICAC v Cunneen ... Legal historian Evan Whitton draws inspiration from Bob Trimbole ... Appeal courts akin to casinos 

Reid: top appeal cases could be decided either way

Barry Lane says six appellate judges - John Basten, Julie Ward (NSW), Robert French, Ken Hayne, Susan Kiefel, Geoffrey Nettle (High Court) - were wrong to say ICAC had no power to investigate an officer of the NSW Supreme Court, Margaret Cunneen, on suspicion of corruption in connection with a motor accident.

Mr Lane's view will not surprise lawyers; Lord Reid said nearly half the rulings by the Judicial Committee of the House of Lords could have gone either way. 

That tends to confirm my suggestion that appeal courts are "casinos, lacking only scantily-clad young ladies offering the gamblers high-octane cocktails. Lawyers can advise clients to have another roll of the dice; they might win, however dubious their case". 

High octane court of appeal

Appellate judges may thus be at risk of dismissal for incapacity, but who is watching? In Germany, they watch judges like hawks to see if a pattern emerges. 

The Casino Effect may partly derive from a peculiarity of the common law. Judging is obviously different from advocacy, but in exactly 850 years judges in England and its hapless colonies have never been trained as judges separately from lawyers, as they are in France.

Nonetheless, the Cunneen matter should not have taxed judges' brains unduly.   

The first part of section 8(2) of the ICAC Act defines corrupt conduct as: "... any conduct that adversely affects ... the exercise of official functions by any public official ..." 

The majority High Court view seems to be that a suspect's conduct is not corrupt if it did not adversely affect an official's function.

Bob Trimbole refutes the learned judges thus. Suppose he offered a judge a bribe, but the beak knocked him back. The official's function was not adversely affected, but Trimbole's conduct could obviously be investigated by the appropriate authorities. 

Trimbole: no corruption if his bride was knocked back

(That reminds me that I had the honour of being the only reptile to attend Bob's entertaining funeral service out in the wilds of Minchinbury - now the home of my hero, Aldi - and so heard a priest with a sense of fun, Fr John Massore, take as his text: All human life is as grass. A 1,200-word sketch of the service can be seen here.)

The second part of s.8(2) is a fortiori, as they say in the trade.

It turns on the word "could". If a suspect's conduct could adversely affect an official's action, that should mean the conduct is corrupt regardless of whether it did or did not adversely affect the official's action. 

Reader Comments

There are no comments for this journal entry. To create a new comment, use the form below.
Member Account Required
You must have a member account on this website in order to post comments. Log in to your account to enable posting.