HIGH COURT UNDER THE MICROSCOPE; R V BUCCA 2015 "The danger of identity assumptions"

HIGH COURT UNDER THE MICROSCOPE; R V BUCCA 2015 – AWAITING DECISION. 

The danger of identity assumptions 

The case today is a case awaiting a decision. So I thought it would be interesting examine the submissions of the appellant. Submissions are papers written by defending council that outline the issues at hand. They are interesting to read – particularly for young law students because they show the application of law to legal matters. 

 Today’s case is about the use of evidence and its implications in a court of justice. When we see evidence, we like to assume it favors one side more than the other. However, in this case, you will see the impact of circumstantial evidence. Circumstantial evidence is a two-edged sword. From one angle it will support an argument and from another, it can defeat it. Phones are strong circumstantial evidence. The courts will often refuse to take the view that the accused did not have their phone on them. They can be used to track locations, motive, messages and previous history.   

CASE FACTS 

In the supreme court of South Australia Wesley Gange was convicted of shooting an Adrian McDonald. McDonald was killed in Parafield, South Australia. The prosecution argued that Gange shot McDonald. They claimed he had hidden in the boot of a car not far from where McDonald stood. McDonald and Gange were once in a relationship.

 The relationship had broken down and caused issues between them. Both of them were involved in drugs, firearms, and violent behavior. Gange had previously sold drugs to McDonald. 

His assistant Tristan Castle was sitting in the driver’s seat. Telecommunication records were used to show the movements of Gange and Castle’s phones. Before this event, Gange had sent texts to McDonald which were derogatory and contained threats.

 There was the use of an alibi for Gange. Gange’s girlfriend ‘M’ remembered seeing him at home on that day. However, disputes arose about the veracity of the evidence. She suffered from psychosis, false beliefs, auditory hallucinations, detachment from reality, paranoia and impaired reasoning. It was appealed to the Court of Criminal Appeal. The appeal was on the basis that the judge had failed to direct the jury properly about the evidence of Gange’s involvement. 

The evidence was highly circumstantial. There is was brought to light that Gange and M used multiple phones interchangeably. It is hard to discern who made what texts and who had which phone. It became more impractical when both Gange and M admitted that because of drug use they often didn’t remember where they were or what they’d done. When the judge failed to show the holes properly in the evidence, the jury gave the circumstantial evidence too much weight. The judge should have given it little weight. The failure to do so made the conviction unjust and inevitable. 

 SUMMARY 

The court believed beyond reasonable doubt that the appellant shot the deceased. They based this belief on telephone records, motive evidence, proof of planning and a confrontation via text. The text messages recorded on the phone of the accomplice, Castle. There were documents placing Gange in a different location at the time of the shooting. 

There were also tracked movements through his phone that placed him at the crime scene. Expert evidence pointed out that phones were not a confirmation of identity. It could never be completely confirmed who was on the other end of the phone. However, the courts overlooked this and claimed the evidence was an important¬part of proof. They were allowed to be equally considered by the jury. 

 APPEAL TO HIGH COURT 

The case went to the high court for two reasons

 - Court of criminal appeal erred in holding that the learned trial judge correctly admitted evidence of the appellant’s past possession of firearms 

- The court of criminal appeal erred by not finding that the learned trial judge misdirected the jury about the weight given to each piece of evidence. 

You have to have specific legal reasons for going to the High Court. You can’t just decide that you don’t want to accept the verdict. The Court of Appeal has the right to refuse you ‘leave’ to go to the High Court. 

WHY NOT BELIEVE THE EVIDENCE? 

The evidence appears to be valid. 

However, if you examine the circumstances under which the evidence appears you will realize that it is highly circumstantial. 

 Firstly, the location of Gange’s phone was unimportant. He had left it behind in Castle’s car. They had not met up for a few days. That makes the connection between his placement and the murder further removed. 

Additionally, it was possible that his girlfriend was using the phone. M had purchased and paid for the phone. Their friends recorded that couple was close and mixed communication devices often. They shared friendship groups. 

If M had been using the phone, anything she said could not be taken into account against Gange. Her medical issues, including paranoia, hallucinations, and delusions suggest that anything she said may not be true. 

 Evidence also confirmed that while Gange used this phone, he also had an additional prepaid phone. M sometimes used this prepaid phone. Connecting a particular party to a phone is impossible. The two did not identify themselves before texting. A phone number is only associated with the phone and not its user at the time. Therefore, the courts had to assume an identity for the phone. That identity could never be guaranteed. 

It was shown that others might have been in possession of the tracked phone. Gange could not identify the exact date that he had it return to him. Some evidence suggested that it had been in possession of others during the day of the murder. 

The value of the tracked movements lessened when applied to the social habits of the accused. The shooting occurred during social hours. But because of the use of drugs neither Gange or Castle kept reasonable hours. Thus tracking whose movement was where and which may have been faked was a concern. While Gange admitted that he sometimes didn’t sleep for weeks, the courts had to apply some weight to the fact that the tracked movements reflected a pattern of someone with relatively normal waking hours.

 ISSUES

 There are many more issues connected to this case. In fact, the submissions of the appellant are 22 pages long. However, I wanted to focus on the use of circumstantial evidence in criminal law. 

When used the evidence appears to make a conflicting statement about the right to fair trial. We are all familiar with this right. Therefore, committing someone on a circumstantial case alone appears unfair. 

The Bucca Case has not yet come to trial, but it will be interesting to see the High Court’s remarks upon the extreme reliance on the assumption of identity. 

 New technologies have increased the ability for police to track charged individuals. However, it also leads to confusion and greater misunderstanding. Phone numbers are not identity codes, yet it appears the court has begun to treat them as such. It would be interesting to remove the evidence of Gange’s phone and re-run the trial. My prediction would be that without the critical assumption that a phone indicates the identity of a person, no case could be completed.

 I look forward to hearing your thoughts on this issue. Also for those who don't listen to the podcast. This week I am celebrating two years of running my studyblr and theunderagelawyer.blogspot.com. In celebration I will be releasing a 'printables' package which will be available online in the next episode.

How to speed read like an expert

Hello everyone and welcome to another blog post on the underage lawyer.

 One of the topics that have been coming up frequently in my conversations with others is speed reading. It’s a skill that you probably only think about when you have three days to complete an essay, and you haven’t started researching yet. However, speed reading is an important skill that can assist you in everyday life. It shouldn’t be disregarded as useless skills. 

Those who want to pursue a career in law need to know that they will spend every day of their life reading. 


Client’s files can be anything from one to forty volumes long – and it’s your job to read and study them all. Reading is also the best way to expand your vocabulary and improve your thinking capabilities.

 Think of reading as upgrading technology. The more you do it, the better it gets. The less you do it, you eventually fall behind. Here are a few ways to improve your reading speed:

 1. Read a lot

 This is a basic essential. The more you read the faster you get. The less the read the slower you will become. Some scientific studies suggest that reading things on the screen of a computer is actually different to reading on paper. I’m not entirely convinced, but just to be certain you’re actually reaping the benefits of reading make sure you read both on and off screen. To improve your reading, think of it a little like sprinting. You have to run as fast as you can regardless of whether you can maintain the speed or not. When you are first beginning training yourself to speed read, don’t worry so much about comprehension. As your retrain your eyes to move along the page at a faster rate, you’ll begin to take more in.

 2. Pick the operative words 

One fatal mistake when it comes to non-recreational reading is that we read all of it. It’s very rare that all of the text will be relevant to you. To improve your reading pace identify what it is you’re looking for. Then pick three or four words that will describe that thing. From there you can run your eyes over the text. Every time you see a relevant word stop and read a few sentences surrounding the word. If it applies, congratulations. If it doesn’t apply, then keep skimming through. This way you’ll be able to ascertain just how relevant the material is. If you don’t see any words that seem relevant then either rethink your operative words or move on to the next paper. 

3. Read the first and last line 

There’s a lot to be said for introductions and conclusions. Remember learning about topic sentences in high school? Well, this is why you use them. Academic literature uses these to highlight what they’re going to say. When you’re in a rush, don’t bother with the rest of the paragraph. Just focus on the first lines of every article. By the time you reach the end, you’ll have a general idea of what’s being said. Additionally, if you read the last line of every paragraph, you’ll have a concluding statement and a linking statement. The linking statement usually explains how the next section will connect to the first. This is important because it will show you the pace that the essay evolves at and any assumptions that you need to be aware of. 

 4. Don’t sound the words aloud in your head 

When reading a lot of readers like to ‘speak’ the words in their head. This is a waste of time. Your brain is capable of comprehending the phrase without sounding it out. The more you read, the more you will be able to do this. But to begin with, help yourself to lose the habit by reciting random words in your head as you read. I began doing this by saying ‘aeiou’ over and over again while I was reading. To do this at first, it is best, to start with relatively simple reads. Try reading opinion articles or Buzzfeed pieces. They’re much easier to comprehend than academic literature and will build your confidence. You may be surprised at how much you can understand without having to focus too much on sounding out the words. 

 5. Dot point as you go 

A critical issue with speed reading is that people are concerned they can’t read quickly and understand the text. A simple way to of getting around this is to write one word describing the paragraph. Skim read the article as fast as you can and then summarize it immediately. The use of summaries in one or two words helps to lessen the fear of not understanding. The human brain is far less reliant on the sound of the words than people think. When reading the shape of the letters is just as important.

 6. When you don’t understand keep reading 

This may sound a little counter-intuitive. However, the biggest trap for slow readers is that they are hesitant to move on before they understand something. That will slow you down. Some points are poorly explained, and it will take multiple readings to understand. You need to know that if a point is badly explained it’s likely not essential to the argument and is irrelevant to your reading. It may also be that you’ll come to understand it when you read something later in the document. Your best bet when trying to rush your way through a massive pile of information is just to keep reading. Stopping and rereading things will break the rhythm of the reading. That may also cause you to read slower.

Why successful people talk to themselves

I want to talk about the importance of self-communication. There are a lot of buzzwords surrounding the skill of communication. It’s something that we all promote that we have when we apply for a new job or attempt to make new friends. It’s a skill that we could not survive in this universe without. Communication is as essential as breathing, but what is often forgotten about is self-communication.

It sounds complex but the reality is simple

To some extent, self-communication is talking to yourself as if you were another person. It is strange to think about, as society often rejects the notion of talking to yourself as something that mentally unwell people do. But in truth self-communication is the process of the subconscious mind talking to the conscious mind.

I want to bring this to your attention, as a young lawyer, because I think it’s so important to understand yourself. A lot of lawyers work late hours, deal with traumatic or confronting situations and find themselves walking the line between morality and the law. These compromising situations are quickly repressed and ignored in the mind, leading to later issues.

Suppressing the complicated feelings that arise from facing such issues is unhealthy and such repression can lead to ignoring your subconscious thoughts. This is where I will raise the concept of self-communication.

What I mean by this term, is to talk to yourself as if you were talking to another person. For example, if you find yourself not focusing on a task that you know must be done, rather than getting angry you would initiate the self talk.

The conversation would begin with an investigation into why you were not focusing. Are you craving nutrients, sleep, comfort, warmth or are you in pain? These five things may appear obvious, but many people who are under stress or skilled at ignoring their body’s cues can often miss these essential human needs.

Skipping a meal can be very bad for
your focus - and your stomach!

It’s not uncommon for me to lose focus only to realize I forgot a meal time or have goosebumps. This most commonly happens during the period before exams when there is lots of work to be done and little time to do it. Forcing yourself to ask the question may seem childish or irrelevant, but it is important to draw your attention to these five pillars.

It refers back to Maslow's hierarchy of needs. For those who aren’t aware, Maslow is a philosopher who created a theory that humans cannot function unless they have certain requirements met first. The lowest tiers include basic necessities such as shelter, safety, food, sleep, and comfort. They are not privileges to be awarded once your work is done.

A stern reminder to all students and professionals, your job will never be complete. The longer that you withhold things from yourself that are required for your body and mind to function properly the worse your attention and focus will become. Often your mental health will suffer before your physical, and that is why critical indicators such as lack of interest or regression to unhealthy habits, like overeating, hair pulling or overwhelming negative thoughts must be paid attention to.

Negative self-talk is the most harmful consequence of failing to build your skill of self-communication. Those people who cannot understand their subconscious needs often find themselves lost in a mixture of confusion, negative habits, and low self-esteem. It is not an insignificant correlation that lack of self-communication results in poor habits and frustration.

If you do have low self-communication and you’re struggling to focus, I’d like to extend a challenge to you. In fact, even if you’re not facing an issue at work, but struggling to come to terms with a complex event in your life I’d like you to attempt my challenge.

Maybe treat yourself to a hot drink after
writing this letter, you deserve it!

My challenge is to write yourself a letter. Please don’t type it, use a physical piece of paper and pen.

The letter must have four components

a)    Tell yourself what’s going wrong

b)    Tell yourself why you have to do this task

c)    Explain to yourself what’s been happening in your day, week and month

d)    Answer the question; what would I rather be doing?

If, at any point during your letter you feel that you’re leaving the question or statement that I’ve asked you to write about don’t stop yourself. Often putting pen to paper is a calming physical motion that encourages you to feel safe due to the repetition of the movement. This calm can help you to feel safe and for any overriding emotional issues that you may not have dealt with to come to the surface. This is why I encourage you not to stop yourself from going on a tangent and writing about anything that your brain takes an interest in.

Sometimes it may be that you have watched or read something that was emotionally disturbing. I have been impacted by news articles or legal cases that were morally challenging, emotionally disturbing or similar to something that I have experienced in my own life. However as we all lead busy lives, it's hard to bring that disturbance to the surface, leaving it to fester and destroy your work ethic or mental clarity.

I hope the letter that you write to yourself becomes a useful tool that you re-use to develop stronger self-communication skills. Sometimes initially writing the letter won’t bring you an immediate understanding of what is going on. Don’t assume that this means nothing is wrong. Our bodies and minds are more intelligent than we give them credit for and often they tell us more than we know. If it so happens that you read your letter back after writing it and actually believe that there is nothing behind it, that is okay, but if there is something unusual about your behavior I’d recommend leaving it for an hour or so.

You can do it!

After the time, away from your letter re-read it and consider any reoccurring themes. Sometimes you may realize that there was an unusual focus on losing an item, having a bad day or wanting something. These simple circumstances can indicate many different things, usually though they will reflect back on Maslow's hierarchy of needs and suggest that you are missing one of the lower tier requirements. Missing one of these requirements does prevent you from focusing your brain and having a productive work session.



Good luck on building your self-communication skills and I hope you will all promote this challenge to your friends and please tag me on #theunderagelawyer if you found my task helpful.

Unique DIY study board; perfect for exam time!

Hello everyone, I hope you are all having a productive holiday – if you’re studying in Australia that is. Either way I have had a super productive week at home and thought I’d love to share this ‘study-planner board.’

It’s a quirky DIY that aims to help you shape up for whatever big events you have planned. This was totally customised to my colour preferences, so whatever colours or materials I suggest feel free to drop them out and try your own colours/materials.

Things you will need:

-          Calendar with space to write details on

-          ‘Priority List’ Paper

-          A4 or bigger decorative paper

-          Staples or tape

-          Pins and decorations to match

-          Pens

-          Tape

-          Weekly planner/ note paper to make one

1.       The board itself

I have a large cork board from IKEA. It costs $8 AUD at press time, but you can usually purchase them from your local craft or discount store.

 These are better than canvas or paper boards because they hold the pins firmly.

2.       Priority list

Write out your top priorities and then order them according to time, difficulty to complete and desire to do them.

It is important that you don’t overwhelm yourself with work. You will quickly become demotivated if you see a long list of seemingly endless tasks.

I use a ‘Top Three Priorities’ List from Kikki K. This list allows me to pick three big tasks for the day and break them into smaller chunks. My work now is more streamlined, polished and focused because I’m not trying to complete twenty tasks in one day.

It is also important that you remain flexible and work intuitively. This means that you need to acknowledge how you are feeling – some days you may feel stressed or anxious. Then it is important to take care of yourself and not to push hard workloads. Doing so will only force your body to become run down and inefficient.

3.       Weekly Planner

This planner can come in any form, you can draw up a seven-day grid and divide it into three-hourly blocks. I bought a ‘Meal Planner’ from Kikki K, this breaks my day up into four sections. It also allows me to block out time for each of my subjects throughout the week.

It is important to use these overall planners because it helps you to gain a picture of how you intend to spend your time. I like to think of this planning like budgeting. Each task demands attention, but there is only so much to go around. By using planners, you can economically and efficiently spend your time. You can also realise where you can improve your time management.

When you create a weekly planner – as you can see on mine, use different colours.

For me;

Blue are the reminders,

Red are loose tasks that I would like to be working on during that time

Brown are items that I need to complete for heath and well being

Purple means it requires planning

Yellow are unavoidable and essential pre-planned events

When completing your weekly planner always fill in pre-planned events first as you need to work around these.

Also, don’t forget to remember your mental health and well-being. Plan in times to exercise, snack and relax. These are not optional because without these activities you will lose motivation and focus for your work.

4.       Monthly planner

Monthly planners are useful for those who have bigger tasks due in months or weeks. They help you to keep track of days and deadlines.

Those who are studying for exams or similar be aware that it is easy to fool yourself about how long you have left. Using monthly planners can help you to remain realistic and practical when organising

social events and breaks.

Studying, particularly for school, can be gruelling and at times demotivating. My article on ‘endurance studying’ may help you find some ideas to beat this challenging issue.

5.       Notes and key reminders

I like to pin on my board some go-packs. These are similar to snack packs that savvy school-moms make.

In each of your subjects write out the topics you have the most difficulty with and summarise each of these. You could put them in snaplock bags or I have included instruction below to DIY cute paper envelopes.

DIY STUDY GO PACK INSTRUCTIONS

1.       Make your materials, how big they are will depend on your envelope size. I fill mine with flash cards and mind maps folded in half. 

2.       Make a triangle shape with your square piece of paper and crease along the middle

3.       Open out your triangle and then turn the paper to make a diamond and fold the lower corner up to the centre.

4.       Roll your paper up so that you can no longer see the small triangle and instead there is a bigger triangle.

5.       Fold one bottom corner of the big triangle in roughly towards the middle. Repeat on the other side, creating two flaps.

6.       With the top flap, fold it back so that you have a backwards triangle and then push it forwards to create another diamond.

7.       Fold down the top triangle and tuck it into the diamond to complete your envelope

8.       Now slide in your materials and label it.

9.       You are now ready to take your go pack anywhere! Happy studying!

For a video and more information click here

On my vision board, I also included some

• -          Informative vocabulary sheets
• -          Tickets to a Geoffrey Robertson lecture who I aspire to meet and work for
• -          Pictures of friends and family
• -          Mind maps for things I am trying to remember
• -          Quotes that I find inspiring

Your vision board should include things that inspire you. I have in the past pinned up logos of universities that I wish to attend, scores I was proud of – or wanted to improve. Customise it to be something that inspires you and makes you feel confident in the future.

Next blog post will be giving you some tips on what to do before you enter the exam room.

Happy Creating!

The Underage Lawyer.

[[No products mentioned were endorsed products. I am not making any promise of quality or suitability.]] 

Has the Royal Commission been compromised? One man's personal decision creates political chaos.

Dyson Heydon has captured the fancy of Australians.

There are allegations against Justice Heydon claiming that his impartiality is compromised because he agreed to give a speech at a liberal dinner party. Despite these accusations, Heydon is refusing to stand down from his position on the Royal Commission. He is determined to remain on the commission as its head.

Heydon claims that he was not aware of the extent of the political connection that the Sir Barfield Barwick address had. It should be noted, that he has subsequently withdrawn his acceptance as he has not yet given the speech.

The belief that the Sir Barwick event was not connected to the liberal party is not unreasonable. Barwick was a QC and Chief Justice of Australia for 17 years making him the longest standing chief justice in history. Therefore, Justice Heydon as an esteemed retired judge of the High Court was a reasonable choice to appear at the address.

However, Barwick was a member of the House of Representatives and a part of the Liberal party. It is not unreasonable to suggest that a judge of Heydon’s caliber should have realized the possible compromise to his impartiality. Especially when he is involved in a delicate political matter as an acting head of a royal commission. It seems only reasonable that he should exercise great caution when interacting with any part of the political arena.

On the other hand how accountable can a speech make an individual? The act of speaking on a topic at a memorial dinner to commemorate the longest running chief justice in history has now constituted extreme bias that can compromise an entire Royal Commission. The calls for Heydon to withdraw the claim that this single event alone has completely jeopardized the impartiality of the entire commission. My concern is that speech at a respectful event, acknowledging the successes of a great legal mind, is not a pro-liberal placard. Somehow, the head of this Royal Commission who has made a life out of separating his personal life from his working life is being made out to have lost all credibility. The credibility is lost in the eyes of the media and political affiliates because in his own time he merely made an agreement to give a speech at a commemorative dinner.

This begs the question, are we interfering too much in peoples’ private lives?

In today's’ 24/7 society have we lost the ability to remove work related responsibilities and personas from a personal life?

We may argue that giving a speech as a retired justice of the high court has a sufficient connection with his work to constitute it as not his personal life but duties connected to work. However, I would reply that a speech, at whatever venue, does not indirectly or directly express support of those behind the veil of the event. If the primary intention of the event is to provide support, such as at a rally, then the speech itself would also exhibit that primary purpose. An even such as the one agreed to by Justice Heydon was an event that proposed to have the main purpose of recognizing the great legal career of Sir Barwick. It has been treated by the media as a liberal love-fest and not a mere commemorative dinner party.

It is hard to reach an objective conclusion given the nature of the media sensationalism surrounding this issue. I would hazard the suggestion, however, that the intentions of Heydon were as he claims, given that there were mixed intentions of the event that were not immediately apparent. Additionally the finding of evidence by the Royal Commission are not the sole discoveries of Heydon but a collective effort. Hence, the Commission cannot be sabotaged by his presence at dinner.

Justice Heydon, agreeing last year to give a speech on August 29^th has no significant influence on the findings or any implications of the evidence. Assuming that our legal system is not corrupt. A single person offering an oration, while he may hold great authority in the provision and presentation of the conclusions of a Royal Commission can still not suppress findings grounded in sound evidence.

As I have mentioned, I am hesitant to give any final form of an opinion. The media has been infamous for neglecting information in vital cases for years. I will instead return to my earlier comments on the value and separation of personal and work life. I am of the opinion that there are parts of an individual’s personal life that should affect the manner in which a person is regarded during their work life.

However, these actions are easily restricted to crimes of a significant nature such as sexual offenses, fraud or grievous bodily harm. A speech given to a group of officials commemorating the honorary Barwick as a retired member of the judiciary appears to be of a more domestic and personal nature than criminal. While the decision to give the speech is controversial, it is still the choice of Heydon to do so. I was unable to find whether he was paid for his time but assuming not there would be no personal benefit to Heydon.

Hence, it appears that while the judge may not have exercised the caution appropriate for the head of a Royal Commission, his right to give a speech at a commemorative event should not be removed. The speech while held at an event connected to the Liberal Party was not the primary intention of the event. Moreover, the royal commissioner has not sacrificed the integrity of the evidence found by the commission. This means that little argument can be made against the findings of the commission despite his actions.

Hello, Hi and Welcome!

Hello, Hi and Welcome to my first blog post.

I am a fourteen-year-old commercial law student at Adelaide University and I have been studying there since I was fourteen I am on an advanced placement scholarship and I am looking forward to sharing my journey through third-year income tax law. Currently, I am only studying one subject of law. Previously I have successfully completed the first and second year of commercial law.

I have not yet begun my full law degree. However, I hope you will follow me on my journey to properly starting law school which – all going well – I will commence at the beginning of next year.

I’m hoping to use this blog as an opportunity to discuss legal topics of interest.

As a keen underage law student, I’m finding out a whole lot of things about law. Be it shocking, fascinating, confusing or hilarious; it’s a blog I’m looking forward to writing with a glass of lemonade and a good textbook.

Rest assured I have every intention to explore every corner of the law before the year is over. I have an immense passion for jurisprudence and will aspire to write an article or two on some of the jurisprudential dissertations I have read. I’ll also be writing about my experience as an awkward mixture of a high school and a university student – which isn’t easy. Hopefully, my struggles to balance out the expectations of university and high school will give you all something to laugh at!