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

Balkan intrigues ... Old coppers stagger into the Croatian Six inquiry ... 15-year jail terms in 1980 for alleged terrorism ... Miscarriage of justice under review ... Verballing ... Loading-up ... Old fashioned detective "work" ... Evidence so far ... Hamish McDonald reports ... Read more >> 

Politics Media Law Society


Cohn Man ... The ghost of Roy Cohn and the remaking of politics … Cancelling The Apprentice … Anticipatory obedience … NACC Major General’s partially apprehended … Stickler for rectitude … Meretricious sexual services ... Read on ... 

This area does not yet contain any content.
Free Newsletter
Justinian Columnists

Blue sky litigation ... Another costly Lehrmann decision ... One more spin on the never-never ... Arguable appeal discovered in the bowels of the Gazette of Law & Journalism ... Odious litigants ... Could Lee J have got it wrong on the meaning of rape? ... Calpurnia reports from the Defamatorium ... Read more >> 

Blow the whistle

 

News snips ...


Qld Bar 'n Grill announces eight new KCs for 2024 ... Details >>

Justinian's Bloggers

London Calling ... Vitamin D deficiency ... Anti-vax solicitor birched for "friendly warning" to schools ... Budget measures hit private school fee payers and their personal jets ... Robing room "humour" ... Equality and sensitivity training missing in action ... Floyd Alexander-Hunt reports from Blighty ... Read more >> 

"Calls to produce scalps publicly and promptly are unhelpful."  

Major Gen. Paul Brereton, Commissioner of the National Corruption Concealment Commission, defending his secretive and snail paced agenda ... Speaking in Adelaide at a Public Sector Governance Forum ... November 15, 2024  ... Read more flatulence ... 


Justinian Featurettes

Vale Percy Allan AM ... Obit for friend and fellow-traveller ... Prolific writer on economics and politics ... Public finance guru ... Technocrat with humanity and broad interests ... Theatre ... Animals ... Art ... Read more ... 


Justinian's archive

A triumph for Victorian morality ... Ashton v Pratt ... In the sack with Dick Pratt ... Meretricious sexual services renders contract void on public policy grounds ... Justice Paul Brereton applies curious moral standard ... A whiff of hypocrisy ... Doubtful finding ... Artemus Jones reporting ... From Justinian's Archive, January 24, 2012 ... Who knew the NACC commissioner had strong views on the sanctity of marriage ... 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.