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.

Illegality and your workplace

Illegality in law

As many of my readers or listeners are those involved in small commercial enterprises, I thought it would be good to explore the doctrine of illegality. Illegality is a simple rule which is subject to many exceptions. At its core, it can completely void a contract in situations where a statute has made the action illegal.

Some may have taken this doctrine for granted believing it unquestionable that contracts for theft, drug dealing or murder were unenforceable in a contract of law. Clearly, illegal acts were the types of contracts that were intended to void with under this doctrine. However, as the society and regulatory standards have evolved so has the application of this principle extended. Leaving some enterprises, contractors and consumers at the mercy of legal interpretation.

Explaining the illegality doctrine

A statute may expressly or impliedly render a contract illegal therefore, requiring courts to make it inoperable leaving neither party with any remedy. Those who have already benefited from the contract will not have to pay back their benefits. However, just because a statute prohibits a contract does not always mean it is unenforceable. ACCC v Baxter found that; A law unilaterally prohibiting the action doesn’t void a contract. It is dependent on factors such as:

-    Language

-    Expertise of the parties

-    Scope

-    Purpose

-    Party intent

For example; if a statute prevents unlicensed homes from breeding animals it does not necessarily prevent a contract to purchase a pregnant dog. Ledlabratories Servier v Apotex Inc puts forward the statement that ‘the decision inevitably turns on their facts.’ The comment shows just how uncontrollable this doctrine can be when dealing with acts that lack the character of illegality.

A statute may encourage the courts to prohibit an action where:

-    There are a variety of public policy factors

-    On balance, it should not be enforced

The precedents in this area must be treated with the same level caution as the statutes because courts may approach the facts differently, leaving much ambiguity. The doctrine of illegality is an excellent example of the importance of courtroom advocacy. An advocate that is capable of disproving the fault of their party has effectively seduced the court for their party.

Applying the doctrine requires that consider ation for the following facts:

-    Prima facie appearance of statutory prohibition

-    Whether illegality applies to the formation or operation of the contract

-    Statutory construction weighed against public policy considerations

There is a vital difference between an illegality that prevents the formation or operation of a contract and one that has a close relationship with public policy. Courts will often consider contracts which are illegal formation or operation more favorably than those that contravene public policy. Mostly, the favorable consideration is because the doctrine is intended to prevent the degradation of law and justice amongst society. It is not designed to circumvent the commercial dealings of general businesses.

Additionally, if the fault between the parties is unequal then the term pari delicito (in equal fault) applies as the presence of fraud, undue influence or oppression prevents the fraudulent party from relying on an illegality defense.

Nelson and Fitzgerald v FJ two prominent precedents in this area support the finding by stating, a contract which is lawful and enforceable upon formation may be binding upon its operation but not those which are against public policy considerations.

If an agreement requires something illegal, it is different to if something illegal must be done to finalize the contract. The statement forms the hard rule of illegality from a Singapore Case; Tien Sew May v Boon Lay Choo. The underlying principle of the case is that while the defense of illegality and public policy isn’t ideal, it may make a contract enforceable if it is beneficial for the general public.

Essentially this means that the courts will enforce an illegal contract if  otherwise more people would suffer unjustly.

When the illegality involves fraud

The principle ex dolo malo non-oritur actio or no right of action can have its origin in fraud, is the underpinning principle of illegality. It means that the defendant will find favor over the plaintiff (the person bringing the action to court) was fraudulent or took part in some of the fraudulent act.

Where they are both equally at fault the courts will apply; potior est conditio defenditis or equal in responsibility better is the state of the possessor. That essentially means that the defendant will benefit more than the plaintiff if the courts see such a case. The holding was applied in Holman v Johnson by Lord Mansfield.

Characterizing the doctrine

This principle is unique as both parties are at fault and not just one. It arises to provide not individual justice but the continued efficacy of the legal system. Therefore, the courts must delicately balance between judging enforceability and not encouraging or frustrating a contract. There are several features that define the leniency and severity of the courts approach to illegal contracts.

The first is the Bowmakers rule; A party to illegality may recover through legal or equitable interest if a claim can establish without reliance on illegality their right to recover. The finding was also seen in part in a later case called Tinsley v Milligan.

Note, the manner in which illegality is articulated in court will alter whether the courts will view the doctrine as a defense, mitigating factor or fundamental limitation. That is essential because it will modify the impact that illegality will have.

The second important factor is windfall gains. Windfall gains is a term used to describe the unexpected benefit of one party at the expense of another. When the plaintiff is likely to receive a windfall gain despite both parties having had a hand in the illegality such as witnessed in Nelson v Nelson the court will not refuse relief as long as the claimant was mistaken or ignorant as to the circumstances which made the contract illegal. It must also be reasonable for them to be ignorant of it, i.e., Signatories to a lease under which a specialty legal statute has recently been enacted. This is interesting because it is one of the few exceptions to the general premise that ‘ignorance is no excuse under the law’.

Thirdly, it may still be the contract may still be enforced when the statute intended to protect a particular class of person for which the claimant is a member. For example, if a law wanted to protect small business construction companies it may continue to enforce the contract if it benefits the small construction company. 

Finally, where the contract's illegal purpose has not achieved the defense of illegality cannot be raised.

As you can see the doctrine of illegality is a very complex area, but with a highly restrictive application. It's nothing to worry about, but it's certainly worth looking into before you engage with any new contracts!

The fault in our democracies

Safe to say coffee won't be going
near my laptop again!

Hello everyone, sorry for the long break in posting. It was supposed to be a short break – but following some computer problems, it quickly turned into a longer one. – Long story short I managed to spill coffee on my laptop…and didn’t that just ruin my love of coffee? 

There have been a lot of interesting things going on in my absence including but not limited to, the rise of Donald Trump, the Medicare scandal and most famously the Brexit decision. There are a lot of legal issues associated with them, but the most common thread between all of them is misinformation causing a false overall decision.

It is the general rule that you cannot intentionally misinform the public without some consequence for your mistake. We witness this most commonly through media shows like today tonight or consumer affairs, which publicly shame businesses for misinforming the public producing a false or unfair result. A couple of years ago a juice company Ribena was rebuked after its ‘black current health drink’, promoted to children and their families, was shown to be incredibly unhealthy. The drink deliberately misled parents to believe that it was safe to consume regularly when in actuality it could have harmful effects on health if regularly consumed without a healthy diet and regular exercise.

I am sure there are much more examples of penalties for companies that misinform the public. 

The law may seem boring, but it is important
for maintaining an equitable society

However, despite penalties existing for businesses, a cone of immunity surrounds the political arena and its delegates. It is fair to say that the most watched democracies; namely the USA and the UK have been the largest culprits of these political scandals. Obviously, there must be some level of inducement made by political parties to promote their message. However, surely it must stop short of behavior that would be unacceptable anywhere else, like lying or harassment. I would like to pick this topic up later as I feel there are many more sides to this argument.

This situation does bring up the question of freedom of speech. When electing politicians, you would think that you would want to give them the freedom to speak openly. However, this privilege is

clearly being abused, especially in America where the constraints on freedom of speech are so minimal that you could just about defame anyone as long as you have the money to defend yourself. Which is probably why Donald Trump has not been sued for making inappropriate and defamatory public statements such as;

‘Barack Obama’s birth certificate is a fraud.'

‘Ariana Huffington is unattractive, both inside and out.'

‘It does not matter what the media write as long as you have got a young and beautiful, piece of ass.'

‘If I were running ‘The View’ I’d fire Rosie O’Donnell. I mean, I’d look at her right in that fat, ugly face of hers, I’d say ‘Rosie, you’re fired.’”

‘The only card [Hilary Cinton] has is the woman’s card. She’s got nothing else to offer and, frankly, if Hillary Clinton were a man, I don’t think she’d get 5 percent of the vote.’

In all of these quotes, Trump either directly defames a famous person or an entire industry. If you do some research, you will find that Trump has managed to escape liability for all of these statements almost entirely.

A lot of what Trump says makes me think of
'Let them eat cake' - Marie Antoinette

I say almost because the one point at which Trump has suffered and I am sure you will all agree is his personal brand. A personal brand is a term usually referring to a person’s professional reputation and transferring it into a market value. Every person has a personal brand, and you may use it when applying for a job, writing an article or networking at a professional event. Merely mentioning ‘Trump’ can end an entire conversation. His reputation is so socially damaged that some would suggest that it was irreparable.

Terrifyingly, America has continued to support this political figure, despite multiple outrageous and inappropriate statements. Some propose that he is only popular because it is a way of people protesting against the weak leadership shown by other candidates indicating the public’s disillusionment with the overall political system. The landside backing of Barack Obama supports this theory– who, although had a high level of integrity, showed strong leadership and distinction in his policies. This can sway public opinion significantly.

It concerns me that this bears a striking similarity to the Brexit result. I will not give my opinion on the final result because I would prefer to perform an analysis of the actual events leading up to it.  The Brexit was fraught with both misinformation and public confusion. The high level of disillusion in Britain with the decisions of the European Union in the past and the lack of democratic influence that they had over Brussels led to uncertainty about the actual consequences of the decision.

Some individuals were able to inform themselves about the role of the European Union and investigated in depth the effects that the British leaving the European Union would have. Yet the majority of people relied upon the media and its coverage of politicians to determine who they would vote for. Similar as to what occurred in Australia during the Medicare Scandal of 2016, one issue led the decision because of media sensationalism.

Immigration.

Immigration is a contentious problem that has advantages and disadvantages on both sides. It would be unreasonable to suggest that migration does not come with difficulties. Every culture from Africa to Britain has its quirks and melding one culture with another will undoubtedly cause conflict. Therefore, finding cultures that are similar are imperative for positive migration with minimal conflict.

Some may suggest that the geographical location of European countries infers a cultural similarity. However, such a suggestion is outdated and ridiculous. Russians and Britains are not similar despite sharing a continent. Same as Norway and Germany are not similar despite sharing a border. Australians and Britains have a culture that is relatively similar despite a geographical distance. The same is true for Canadians and Australians.

History and culture are part of who we are
and should not be ignored when seeking a
new homeland

The history shared by the countries has created a similar culture that allows for the blending of the three of them to be as simple as possible. Therefore, thought needs to be given to the culture and habits of the country to which migrants are traveling. It is terrifying enough to move countries, and I am sure that anyone who has visited other countries knows the relief of coming to a country which bears similarity to its own. It is not racist or insensitive to suggest that the common characteristics of cultures should be matched to another country for refugee migration but a practical consideration for better immigration.

However, it does leave open the issue of diversity. Diversity encourages the development of thought and broader value appreciation. In fact, Australia has benefited from the integration of cultures like the Italian, Greek and Vietnamese. This migration did not come without issues and occurred in numbers that were carefully monitored by the Australian government.

It does not take much research to discover the racist rebuke of Australia towards the influx of migrants. It was not long ago that Australia sported a ‘white Australia’ policy, which operated to prevent the flow of undesired migrants into the country.

While the application of the policy was culturally insensitive and disappointing in reality, the theory is sound. The original idea behind it was that Australia would apply a selective process to determine the characteristics of entrants into the country that would suit the ideology of Australian culture. This process preserves the idiosyncrasies that make up a diverse culture while ensuring that there was a thread of commonality that maintained the national image of Australia.

It was the same concern that drove the disillusionment of the British people. In a belief that their national image was under threat with the influx of unknown and potentially radically different migrants a reactive protest resulted in Britain leaving the European Union.

The concern, however, is that the people of Britain did not understand the true nature or impact of their vote. A false understanding was promoted to the public at mass by political parties such as the Independence Party – with political member Boris Johnson.

The ex-Mayor of London was so confident in his false promotions that he drove around on a bright red bus proclaiming that leaving the European Union would give the NHS 350 Million pounds extra a week. Unsurprisingly, this was later denied to be true by Nigel Farage. Nigel Farage is a British Political, who is the leader of the Independence Party.

One would assume that the head of the independence party would have prevented the overzealous Boris Johnson from spreading misinformation. However, it appears that in this battle, it was more about getting votes for their party than actually informing the public.

This cruel tactic may sound familiar to Australians who recently found themselves at the mercy of the Labor party. Bill Shorten, the leader of the Labor Party, pitched a claim to the public that the Liberal Party had plans to privatize Medicare.

Researching is a serious business ;)

As a country that has prided itself on the provision of healthcare to all in need, it is understandable why the public reacted so violently to the claim. Similar to the Brexit this was not the only issue at hand, as the economic future of Australia was also important. Through media tactics, the Medicare scare quickly took hold in the minds of most Australians preventing other relevant discussions from taking place.

What is evident in all three situations is that there is fast becoming a culture of sensationalism in politics. Democracies will always run the risk of erring too closely to an ‘American Idol’ type contest, where popularity determines the winner and not political sense. It is evident that currently, the media is taking a front seat in driving politics away from an objective debate to a reality television style throw down.

It would be inappropriate to ban the media from participating in election campaigns. Freedom of speech is perpetuated by the press and should never be lost. It was a right that democracies around the globe fought for by the people. They did not fight for the right to spread misinformation and I am shocked to see this occurring around the globe.

I would love to hear your ideas about how we can prevent media sensationalism in the future so please if you enjoyed or disagree with me - please let me know! You can get in contact with me through email, twitter, instagram or tumblr.

The issue with Australian directors

Being a director means more than coffee and cake!

The types of directors and the pools from which they are drawn from clearly lack diversity, new reports from Australia propose. Recruitment firm, Blenheim Partners' Gregort Robinson & Dr Brett Wright in Macquarie University found that failure to consider more than gender diversity on a board of directors is significantly limiting the pool of potential directors and employee career prospects.
conjunction with

Moreover the study found that directors are now operating generally only within an employee capacity. This means that they operate as necessary to maintain capacity. This means that they operate as necessary to maintain their jobs. As a consequence business ventures with greater risks are often rejected by big firms looking to invest. Clearly Australia which is already isolated from other economies is suffering from this complete lack of risky business venture.

The report also suggested that directors were now operating more as business employees than actual representatives of a company. As a consequence we have lost the 'arms and legs' of the business personality and instead employed a variety of guards that keep the business afloat instead of growing.

In Australian business law (contained within several pieces of legislation, particularly the Australian Competition and Consumer law – also please note it is accompanied by much common and case law) there is a legal principal known as the 'veil' this veil exists between a business and its operators. Of course, a business in order to have a usable veil must be incorporated – meaning that the original sole trader or partners extract themselves from the heart of the business in order to manifest as new body which is a non-human trading individual.

For example if I started my own sole tradership called The Underage Lawyer's Coffee, the simplest form of business, I could later incorporate it. In doing so, any debts or profits or trade agreements become part of my financial status. Once the business is incorporated the business becomes a company but it then takes on the ability to create and finish its own contracts.

Yet every person knows a company can not act by itself, hence directors become the metaphorical limbs of the new business body. Hence when a company only operates within the movements necessary to ensure the continuation of the business into the fortune. Clearly many businesses will prefer to remain in business than to look for the means by which they can increase their wealth or support innovation.

The Australian Bureau of Statistics suggests that Australia has lowering levels of innovation in key industries such as manufacturing and retail. This decrease has ongoing rollover effects on employment and living standards. Many people may not stop to consider the overall impact of investment – but programs such as crowdsurf or kickstarter highlight the importance of investment in innovative – although non-traditional- business concepts.

Clearly products such as the pebble smart watch, android gaming console (Ouya) and MaKey Makey would not exist without such support. These products are some of the great stepping stones for our economy to reach increased levels of commericial innovation. Where Australia falls in this support is that our directors are not looking for how to use the company as a means of bettering not only their affiliates significantly but to advantage the surrounding economic climate.

Many business and legal experts have dubbed the phenomenon of helping non-affiliates to better the economic climate corporate philanthropy. While probably closer to patronism in some ways it is a means of advantaging the economy for long term benefit.

This is most likely unpopular with today's director boards because in their capacity as directors they are working constantly to keep their job.

The reasonable person would assume that given directors should only operate for the good of the company by operating in their own interest they are actually failing their duty to the company. Of course with Australia's tight laws on corporate negligence it is often difficult to prove that taking a risk on innovative investments was for the reasonable benefit of the company. But directors must first become the limbs of the company and not its employees. Once this has been achieved the law of Australia can change to provide room for innovative investment.

Given that it will be difficult to prove that the investment made by a company was for purposes of helping a potentially beneficial innovation to enter the market – as fraudulent schemes are often covered by such reason – the government or business industry supervisor must create a certificate of authentication for whatever businesses are recommending themselves to investors. Similar to when a company enters the stock exchange a series of papers and tests and regulations must be performed to ensure that there is no fraudulent behavior existing while the business presents itself to business.

Factors that would be important for the government to consider when forming this scheme: 

1. the leader of the business
2. results previous dealings
3. current capital
4. financial situation
5. Applicability of suggestion
6. Potential sales
7. Any limitations
8. Potential issues/dangers
9. Any necessary certificates
10. Connections or affiliations however small to other businesses.

Australia has much work to do in order to draw in a new breed of businesses. The businesses required would be companies that work with a diverse board of directors who collate their view points in order to manipulate the movements of the larger enterprise. These movements must comprehend the importance of supporting the economic climate and creating a philanthropic culture that perpetuates innovation and entrepreneurship.