THE COURT UNDER THE MICROSCOPE; BM V R [2017] NSWCCA 133

THE COURT UNDER THE MICROSCOPE

BM V R [2017] NSWCCA 133 – Before; Basten JA, Adamson and Campbell JJ.

On 15 Feb 2016 the DPP presented to the court an indictment against the charged on four counts.

1.      Indecent assault

2.      Multiple counts of indecency

3.      Sexual intercourse (with an underaged person)

The victim was aged between 6 and 9 years, and was referred to throughout the case as MY. Often in cases of sexual assault against minors, or where the information may negatively impact one or more of the persons involved names are changed to conceal their identity. This is done for public policy purposes, and serves no other purpose.

The accused was the partner of the victim’s aunt. In this case his name was also concealed because if the accused was identified it may reveal the identity of the victim. In other circumstances only the victim’s name would be hidden.

On the charges of indecency there was no dispute that the conduct occurred and that it resulted in the relevant offence.  These acts occurred just between the accused and the victim often in a secluded area. The key issue is that while there was little contestation there was little corroborating evidence. Part from some ‘brief and uncontroversial evidence’ delivered by a police officer at trial there were only three people in total who gave evidence at the trial.

That was the complainant, applicant and the aunt. The aunt reported seeing her niece appear ‘mortified’ at one stage but denied awareness that anything sinister was occurring. At the original trial the evidence was over within two weeks and the jury convicted on all four counts.

The appeal was filed on three grounds on the 25^th of January 2017. The first two grounds of appeal were based on the condition that the jury was misdirected during the original judge’s summary. However these grounds require that the defence has leave to appeal. This is because under rule four of the Criminal Appeal Rules (NSW) unless the counsel takes issue as the directions are giving they must be done to appeal on these grounds. The leave was not given on the condition that the complainant could not show that the verdicts were unreasonable and could not be supported with regard to the evidence. They also were not based on a question of law alone, which prevented the complainant from appealing the decision on those grounds alone.  

The misdirection was based on a misstatement by the judge that was easily clarified by reference to prior statements and a hand out that they were provided with prior to the misstatement. It was determined by the judges of this case that the reading of the whole of the summing up would leave the jury in no doubt as to the burden of proof borne by the prosecution.

The second alleged misdirection was given by the judge in regards to the evidence from the aunt. He said;

“Members of the jury, as you heard in the submissions from counsel for the parties, the complainant has given evidence of what she said the accused did to her at certain times. The accused has testified that he did not do so. The only evidence that he did those things comes from the complainant. Where the prosecution has to prove a case beyond reasonable doubt and the only evidence on that topic comes from the complainant, then obviously you will examine her evidence very carefully and decide whether you can be satisfied of its reliability beyond reasonable doubt on the essential elements of one or all of the charges as you consider them separately. So if the proof has to be beyond reasonable doubt, and there is only [the complainant’s] evidence about a particular event occurring, as a matter of logic you have to be satisfied beyond reasonable doubt that her evidence is reliable when she is giving testimony about the essential elements of the charges.”

This evidence is a fairly standard warning, there are many similar situations like this that also arise in a court. Therefore, the complainant alleges that it should have either been repeated or had it pointed out that it should be directed specifically to count for as that was the only place where the aunt’s evidence applied.

This complaint became further irrelevant in paragraph 25 of the case where the judges indicate that the judge had also give a ‘Markuleski direction.’ This direction reminds the jury that that charges are to be considered separately. It also reminds the jury the conclusion of unreliability of one witness does not discount the possibility of a guilty conclusion on other counts.

These directions are often applied in sexual assault cases when the evidence is highly subjective, uncorroborated or emotional. These cases are emotionally charged and can leave many witnesses feeling uncomfortable and unsure. There are carefully designed judicial processes and direction that ensure no matter how emotionally uncomfortable the evidence is the jury will be able to objectively and fairly apply the evidence to determine guilt beyond a reasonable doubt. 

Studying on the run

Studying On The Run

Good god, working and being busy is the worst thing. I love to sit down, set my desk up nicely and have some relaxed study time. There’s no greater indulgence than studying at a slow pace enjoying a cup of coffee and a pastry – but we all know that’s rarely the case. Rather you’ll always find yourself stuck running between academic work, busy court dates and social outings.

so much to do!!

On tumblr I’ve seen a few quick and dirty tips to get you through on the hyper busy times – but really those aren’t very sustainable. The best way to manage studying on the run is to prepare for the siege. Some of the most important ways to prepare is to trim off what isn’t necessary.

Removing the unnecessary;

When your life is busy it’s important to grab five minutes to go over what you really have on. It’s best to do this in that little bit of R&R time you get whenever. While it may be a bummer to lose some of your relax time to work I can guarantee you’ll be getting more chill time in the future.

Firstly, write out everything you do – even the little things like grocery shopping, taking out the trash and vacuuming. These tasks all eat up your time and you need to factor them in.

Some good ways to list out what you’re doing include;

-        Making a general dot point list

-        Using a weekly schedule to map out the time spent on each item

For this you can group together larger tasks like ‘household cleaning’, ‘week preparation’ and place them approximately where you’d do it. The idea is that you can see how much time is spent where.

Also factor in travel time, and preparation time. Things like packing your bag, finding the food and driving to work will add up. For example, if you have a five minute walk to the bus, a twenty minute bus drive and then a three minute walk to the office when you get off the bus, you spend 280 minutes per working week just travelling to and from work.'

Don't forget to save yourself
some time for treats!

Another positive method to try is to use a monthly planner to figure out where your appointments are and then combine it with your weekly general planner to see where you might lose extra time. Calculate the total amount of time you spend doing each activity. Just fill out the general plan and pair it with the weekly schedule to make sure that you cover all your bases.

Now that you know how you chisel away each minute of the day run through the list and figure out where you overspend your time. Think of it like a budget, you can only spend a certain amount of time in each area of your life. This apportionment will be different for everyone depending on your job, study, family and individual needs. However, my preferred break down looks like this;

(Worked out via, portions per day in a 24 hr cycle – using double amount of estimated time to allow for preparation and travel)

Activity	Time/Portion
Administration	1.8%
Exercise and Eating	8.3%
Sleep	33%
Relaxing	16.6%
Work	20%
Study	20.8%

These are basic categories of what I need to do in a day to ensure that I’m maintaining a balanced lifestyle. Using my schedule I often find that I’m overspending time in work or study areas and cutting back on sleep. This causes greater stress – and actually means that you’re working hard but less effectively.

Use your itemized dot point list above to assess which activities you’re doing in each category. When you’re struggling for time any activity that doesn’t contribute towards a ‘specific end goal’, needs to be cut.

End goals are things like;

1.      Maintain all relevant administrative records up to workable standard

This means don’t throw anything out you’ll need later and have it to a standard so that if you need it you could use it. It doesn’t have to be perfect but useable.

2.      Achieve goal 1

3.      Achieve goal 2

4.      Maintain work required not to fall behind in other areas

These are prioritized for a reason. While it is optimal not to fall behind in other areas, when you’re still learning to manage your time you may struggle to maintain number four, but always make sure that number one is followed – otherwise you can end up in a real tangle.

Keeping yourself on task

It goes without saying that even if you schedule your day, if you fail to follow it nothing is going to be resolved. It’s important then that whatever task you’re focusing on – you follow it entirely. Don’t let go of the task until you’re complete – because lots of half-finished tasks are an absolute nightmare.

To make sure that you stay on task – use your administration time wisely. Plan out larger tasks into twenty minute chunks and take a break after every 20 minutes. An example of this break down can be found here;

Additionally, the best way to make sure that you stay on task is to minimize your distractions. Sometimes when you’re really struggling to work you actually need to change up the kind of distractions that you are allowing yourself to have. It is inevitable in this environment that you will always have to combat some distractions.

However, we can use them to our advantage; some days you will work much better in total silence and a few lights on while other ways the hustle and bustle of a café will provide you with the perfect amount of background activity to plow through a huge pile of work. Try to have an armory of different places that you can go to work and be prepared to change things up to suit your needs better.

Streamline your activities

As discussed in a previous post it’s important to have a good admin system so that you can move quickly through each task. I like to set up the routes of the day and have my bag packed to suit each of these activities.

For me, I also like to use time markers throughout the day to ensure that I have to move on. For example at nine I know that I have to be out of bed and at my desk for either study or work. Some days this means that I have that extra bit of flexibility to set up my work space and find the perfect environment, then by 12 I have to have finished up my first activity for the day.

Additionally, give yourself a clipboard or an ipad where you can work on your lap. When I’m exhausted or struggling to maintain focus it’s perfect to be able to give myself 30 minutes or so to curl up on my bed and just work at a bit of a slower pace until I feel recharged.

The most important part if you’re easily distracted is to put blocks up in place so that you can’t be distracted for longer than necessary. I am most easily distracted before appointments. Appointments often mess up my day and when I’m out of the routine I spend hours floundering about trying to figure out what exactly I should be doing. I can’t settle on one task and I’m always thinking about when I should leave. Knowing this I leave all of my small admin or progress tasks to the morning before an appointment so I don’t have to settle in and focus on one thing for too long.

High Court Under the Microscope; Donald Trump and the Refugee Ban

HIGH COURT UNDER THE MICROSCOPE

Donald Trump v International Refugee Assistance Project

These cases are about an executive order made by the United States to alter how foreign nationals enter the country. The key elements of this were to suspend entry from six designated countries for 90 days. This was challenged on two grounds, certiorari – which is ‘a writ or order by which a high court reviews a case tried in a lower court’ – and applications to stay the preliminary injunctions. These were granted.

The executive order presented a policy against countries representing a heightened terrorist risk;

·        Iran

·        Iraq

·        Libya

·        Somalia

·        Sudan

·        Syria

·        Yemen

The officials were told that they must review how adequate it would be to restrict visas from these areas for ninety days. The court was also alerted to an alteration to the United States Refugee Admissions Program which reduced the number of refugees able to enter the country for 120 days.  

A second executive order addressed early concerns made by the Assistance project and requires that the secretary of homeland security conducts a global review to determine which foreign governments provide adequate information about nationals applying for a USA visa. Any countries found to be deficient would be given 50 days to alter their practices. These counties would be required to impose additional procedures as necessary to ensure that individuals seeking admission as refugees do not pose a threat to national security.

Finally – and perhaps most controversially- the order determined that the entry of more than 50,000 refugees in the fiscal year of 2017 would be detrimental to the interest of the USA.

There were several responses to this order but the establishment clause of the first amendment was the most successful. It claimed that this act was not motivated by concerns of national security but islamophobia. In the first instance, most of the court ruled that the primary purpose of clause 2(c) – preventing entry of certain migrants was based on religious fears. This violates the first amendment.

This was further supported by the test that a reasonable person knowing all the claims made against the migration of Muslims into America by Donald trump would conclude that this policy was religiously motivated. Therefore, the court upheld the injunction which prevented the enforcement of s2(c) against foreign nationals seeking to enter the country.

On June 12, a request for a certiorari was entered. In doing so a new issue was added to the cases which is that the courts had not altered the date at which the effect of the act would be moot because 90 days would be over. In response to that issue Donald Trump issued a memorandum determining that ‘the date on which the injunctions in these cases are lifted or stayed with respect to that provision’ – meaning that the provision would continue until otherwise extinguished [Direction of National Intelligence (June 14, 2017).

The injunctions were barred against 2(c) for any person who had no connection with the United States through a relationship or other entity. This means that any married person, child or person connected to other legal entity can still enter the country. However, this is not intended to exclusively determine the rights of the parties but merely to provide temporary equitable relief to both parties. It was done in the overall public interest [University of Tex. V Camenisch 451 U.S. 390, 395 (1981)]. This decision was based on the reason that ‘an unadmitted and nonresident alien…has no constitutional right of entry to this country’. Given that ‘the interest in preserving national security is an urgent objective of the highest order’ it would be inappropriate to prevent the government from pursuing that objective [Holdver v Humanitarian Law Project, 561 U.S. 1, 28 (2010)].

Effectively this ruling acknowledges the delicate balance that the government must walk between pleasing the morals of the public and acknowledging the dangers of the modern world. Whether the order is truly religiously motivated is difficult to infer given the context of global terrorism – and despite the claims of Donald trump against Islam it is difficult to truly draw issue given the lack of explicit mention of Islam. It does beg the question if this order is purely religiously motivated, combined with the brash nature of the current president – why not just prevent the entry of all Muslims if that was the true intention of the order?

Some claim that Trump is merely following the prior policy of President Obama who first identified the countries on the list. It is true that his predecessor did initiate the list and Obama emphasized that it was a part of a continued focus on the threat of foreign fighters. It should also be noted that the act targets countries that have been reviewed and identified as ‘troublesome travel areas’ which means that they are unsafe for American citizens to travel to. While there is some opposition to this counter argument claiming that it was merely the travel to these areas by US citizens that was worried about not the influx of migrants – if US citizens can’t travel to a dangerous country – there must be a concern about the opposite.

The issue is far more complex than some policy makers realize, growing concerns about citizen welfare and greater fear growing in European countries, it’s natural for any leader to want to recognize these concerns.