One more minus … Support for Bernard Collaery … Attempted throttling at chamber’s drinkies … Judges prefer Blackstone … Dog of a case … Adversarial difficulties in Latin America … Theodora reports
In July we reported all the inns-and-outs of the saga that resulted from Minus creating something called AustBar Chambers to promote barristers’ services.
The ABA thought he was stepping on its toes, and hurriedly set about registering its trademarks and stopping Minus using anything similar.
Minus opposed the trademark application, but it went against him. Most recently, he appealed the Registrar of Trademark’s decision to the Federal Circuit Court.
He didn’t have any more luck in that forum.
Judge Phillip Dowdy has dismissed Minus’ appeal on the basis that substantially the same issues had already been determined by Justice Andrew Greenwood in the Federal Court when the ABA applied to stop Minus registering business names similar to its own.
Between a number of unfavourable judgments, Minus is facing costs of over half-a-million-smackers.
In the face of Labor’s silence, others are flocking to the cause of Canberra lawyer Bernard Collaery, charged alongside his client and former intelligence officer “Witness K” by the Commonwealth DPP and attorney general “Christian” Porter with breaching the Intelligence Services Act.
Perth silk Rod Hooper has been encouraging friends and colleagues to nominate Collaery for Senior Australian of the Year as a tribute to his role in exposing Australia’s bugging of the Timor-Leste ministerial offices during the negotiations over boundaries for the Greater Sunrise gas field.
Nominations closed on July 31, and it is understood that there was an gleeful response to Hooper’s call to arms.
The nominations fly in the face of Porter’s ludicrous plea for everyone to keep quiet about the charges so as to avoid an adverse “impact on the fairness and regularity of those proceedings”.
The NSW Labor Shadow Attorney General Paul Lynch also has given notice of a motion in the Legislative Assembly “congratulating Witness K and his lawyer Bernard for their roles in exposing the bugging by Australia of the Cabinet room of the Democratic Republic of Timor-Leste”.
Lynch calls the prosecution “entirely inappropriate”.
The bugging episode was ugly. Australia, through an aid grant, refurbished the East Timorese government cabinet room. In the process, Australian Security Intelligence Service agents installed listening devices that were used to give the Australian government a leg-up in negotiations over the gas field in the waters between Timor-Leste and Australia.
Unsurprisingly, Australia got a very good deal in a 2006 treaty – 80 percent of the gas in the area, with Australian company Woodside Petroleum responsible for its operation.
In 2010, after leaving office as the minister responsible for ASIS and the bugging operation, Alexander Downer – the man with “nation building” in his blood – got a plum consulting job with Woodside.
The annual cocktails at Banco Chambers in Sydney got interesting as some guests became noticeably tired and emotional. So much so that one of the celebrity invitees gripped another around the neck in an overly-vigorous attempt at conversational modification.
Calm was restored, allowing the refreshments to continue unimpeded.
In the UK, James Richardson QC, the former editor of Archbold’s Criminal Pleading, Evidence and Practice, has failed in his bid to get his reference text back on judges’ benches.
In 2016 the Judicial Office decided to switch the official criminal law reference work from Archbold’s, which began publication in 1822, for the much newer Blackstone’s, which had its first print run in 1991.
Richardson believes that lawyers and judges didn’t actually prefer Blackstone’s criminal text as the Judicial Office had claimed and that the decision had been influenced by two improper factors.
First, resentment of the fact that Richardson had critiqued criminal law judges in his other publication, Criminal Law Week.
Second, that Sir Brian Leveson, of Leveson Inquiry fame, was on both the editorial advisory board of Blackstone’s and a member of the judicial committee that recommended dumping Archbold’s.
Lord Justice Philip Sales held that Richardson’s claim was out of time, as it had only been filed this year, and in any case, there was no evidence that the factors Richardson cited had influenced the judge’s decision.
“The mere fact [judges] have been subject to criticism, including trenchant criticism, is not a basis for an inference – even arguably – that they have been improperly motivated in exercise of their functions …”
Of course not. What a dreadful suggestion.
Justice Jonathan Beach has taken an excursion down the rabbit hole in Sill v City of Wodonga as he dealt with the review of a registrar’s decision not to grant an extension of time on an appeal – stemming from a $22.50 fine.
As applicant Jeffrey Sill put it:
“This case started with a notice from my Local Government Office in Wodonga, the notice said I had to pay for a $22.50 annual dog licence by 10 April or I will be fined $389. I sent a letter back on 10 April 2014 saying I will pay the registration fee if they can show me the Assented Legislation requiring the payment. I received a letter back on 28 May quoting the 1994 Domestic Animal Act with no Assent, after a few letters back and forth I received an infringement notice. This offer has always and is still open.”
Things seem to have got out of hand from there. The case went to the County Court, then the Supreme Court because it contained constitutional issues, then a Supreme Court registrar and ultimately to Justice Beach.
In the course of proceedings the applicant made “allegations of treason and assertions that various courts are either unlawful, unconstitutional, illegal or star chambers”.
Sill based his arguments on “the Universal Declaration of Human Rights, the Commonwealth Constitution and the King James Bible”.
The core of the problem seems to be that the applicant does not believe any legislation is valid without the “wet ink signature of the Governor and a wet ink signature with the Royal Seal of Her Royal Majesty Queen Elizabeth the Second”.
Of course, since there is a lot of fake news these days, Sill needs to see those signatures in person.
For the record, the dog’s name is Eckles.
Among Sill’s other arguments were that “the Queen of Australia does not exist”, judges of the Victorian Supreme Court have not taken proper oaths (there is no requirement to swear an oath at all, as Justice Beach noted) and that “Governors of the State of Victoria have not been lawfully appointed”. This, submitted the applicant, “means a lot to me”.
But not to Jonathan Beach.
Developments are no less troubling in Latin America where the adversarial trial system has been adopted by 15 countries, which have switched from the Napoleonic inquisitorial method, with limited success.
The changes have accompanied economic, electoral and welfare reforms in countries throughout the region. But establishing a rule of law system is by no means easy.
In Peru, for instance, which introduced the adversarial system in 2004, there is evidence that drug traffickers have been bribing judges.
A recent investigation found “corruption, influence-peddling and … organised networks inside the judicial system”.
The president of one of the country’s high court regions is now in jail, the justice minister and seven members of the National Judicial Council, which appoints judges, were fired while the head of the judiciary and the public prosecutor resigned.
Old habits die hard. The Economist reports that Peruvians are confirmed in their belief that the the courts are beholden to people who can pay – an issue not confined to Peru.
In Mexico, oral trials conducted openly are now commonplace, with the result that cases are heard more quickly fewer defendants are in custody, and the prosecution must publicly prove its case.
Under the old system judges relied on confessions, often extracted by torture.
The report in The Economist says that because judges have been insufficiently trained in Mexico, there is slippage back to the “old practices”, such as relying on confessions and shelving cases that need investigation.