Veembur Mana

To return to our narrative.

Maternal grandmother (lady in white) had three brothers. Marriage of the eldest brother was fixed; he was to marry the sister of my maternal grandfather. Before marriage he died.

 Undeterred by this tragedy, the elders decided that the next in line marry her. God’s ways are strange. The would-be bridegroom too died. The elders were unmoved. The third son, Bhavadasan  married my mother’s aunt. VBS is her grandson, Bhavadasan (junior) being elder and Krishnan, only one year elder to me, being the third. Like the brothers Karamazovs, the threesome are dissimilar to each other. They had two living sisters, Sreedevi and Savitry (both no more).

Being closely related, they took care of our monetary needs like school fees; from a loan interest we got our monthly budget of Rs.10. The compound surrounding the mud hut was full of areca nut trees. The fallen leaves were collected by ma and used as fuel. She would carry water from the faraway well (normally the well is attached to the kitchen and we draw water from the well, standing inside the kitchen).I have nonchalantly watched it, but never offered help. Now I see my wife working in the kitchen and her daughter watching TV. Is this a rule of nature?

We got a meagre quantity of rice from tenants. I would go to the farmers, enjoying the scenery en route, collect rice and bring it home in a country canoe. My elder brother being unconcerned, I became the father figure at the age of thirteen.

One day uncle (VBS’s father) told me we were entitled for ration card being below poverty line;as instructed, I went to the Tehsildar office some ten miles way, handed over the application, waited patiently till 4.50 pm, when, pitying my innocence and helplessness, the peon told the clerk to do the needful and I returned with the ration card !

 Naraphan-short for Narayanaphan.

 I don’t remember him. He was VBS’s grandfathr’s son by his second wife who was half mad. The whole property of Veembur Kadalayil became a matter of litigation with a Tamil Brahmin from whom heavy sums were borrowed for construction of the tile factory, the first in our area,which still stands near level crossing at Ollur railway station, and, for maintaining luxurious living (every time maternal grand mother came home, she was given a gold sovereign-a coin prevalent then).  At one stage, the vakil of the opponent secretly visited our ancestor and advised him to deny in the court that he borrowed money; a Nambudiri’s word was taken as true even by a court in those days. A Nambudiri may never lie. True to tradition, the honest ancestor refused to lie and the whole property came into Tamil Brahmin’s hands.

Litigation continued. As he was educated, Naraphan shouldered the responsibility. By 6am train, he would leave for Ernakulam where the High Court is located. We can only guess the number of times the poor fellow travelled to Ernakulam, sometimes without pocket money, in the hope of ultimate success!

At long last, the gods smiled-he won the case but lost his life. To celebrate the victory, he ate sumptuously at a restaurant. It was cholera epidemic time. As soon as he returned home, he started vomiting. He died, his mad mother died and even VBS’s sister Gauri, still a girl, died……Triumph of Death over Life…

I have vague memories of attending pindam ceremony. (Why don’t we leave the dead alone?)

 VBS’s father worked hard to keep the family going. He even worked as poojari at Pisharikal temple where tradition forbade us Kadalayil family members to do pooja.

And yet he was always cheerful and full of humour and wit. VBS was studying in college. His elder brother was in army (he was discharged for being sympathetic to the left-Britain ruled by proxy) and Krishnettan was in Ooty (as cashier in some restaurant-he became fair as a white man when he returned) Uncle and I were together. One day he was so upset that he told me “your mother is mad”.

I had learned to stoically suffer almost anything in this life. I must have looked like an idiot which I actually am.

by Paul Thornton

A TEENAGER who soaked his girlfriend in petrol and then set her on fire after she threatened to dump him has been found guilty of murder.

Evil Stewart Blackburn, 18, doused terrified Jessica McCagh, 17, in fuel before torching her at his Arbroath flat after she told friends she was going to leave him.

As helpless Jessica burned to death in his bedroom, sick Blackburn even held the door closed to stop her from escaping despite her screams.

He later claimed he had been in a “huff”.

Blackburn was found guilty on all counts at the High Court in Livingston today.

Judge Lord Bracadale said: “The jury has found you guilty of the murder of Jessica McCagh by throwing petrol over her and setting her alight.

“She was your girlfriend, aged 17 years, and she died a terrible death at your hands.

“Her family are left bereft.

“These acts demonstrate a degree of wickedness on your part which will leave all right thinking people disturbed.”

Sentence was deferred for background reports until January 5 at the High Court in Edinburgh.

Mum Marion, 47, and dad Garry, 50, attended the High Court in Livingston to hear the verdict read out having had to give evidence against him.

Statement

Detective Sergeant Brian Smith from Tayside Police issued a statement on behalf of the family afterwards.

It said: “Blackburn had been found guilty of murdering our beautiful daughter in the most terrible and terrifying way.

“No parent should ever have to bury their child and we hope no parent will ever have endure the anguish we have suffered since Jessica was taken from us.

“We want to thanks the police and the prosecution for bringing Blackburn to justice today for his wicked actions.

“We also want to thank Ricci Foreman for trying to save Jessica.”

“We will always be grateful to him for his bravery.

“Jessica was the baby of the family and we miss everything about her and always will.”

Jessica died in Dundee’s Ninewells Hospital from fourth degree burns inflicted by the horror incident which affected more than 85 per cent of her body.

Gruesome

Before she passed away, tragic Jessica told her parents: “I don’t want to die – I love you.”

The jury in the murder trial was forced to endure evidence so gruesome some images were held back from them.

But it was enough to convince them of Blackburn’s guilt.

Neighbour Ricci Foreman – who heard her desperate screams – earlier told how he had arrived just in time to see Blackburn fleeing the scene and witness Jessica’s brave bid to get out of the Arbroath flat while being eaten alive by flames.

Ricci, 19, had repeatedly tipped a fish tank full of water over Jessica in a frantic bid to douse the fire which engulfed her slight frame before she was finally dragged from the inferno onto a grassy patch in front of the building.

Her father Garry – who had been woken by Blackburn – made it to the scene with his wife in time to hear his daughter beg: “I don’t want to die dad, I love you.”

Blackburn was arrested on April 25 – the day of the blaze and of Jessica’s death.

Over the course of three police interviews, Blackburn admitted throwing petrol on her from a five litre jerry can following an argument.

But he claimed he had not meant to set her on fire and blamed embers – “bombers” from a joint of cannabis for starting the inferno.

He went on to offer prosecutors a guilty plea of culpable homicide, but denied murder.

His plea was turned down by Prosecutors and following an emotion packed two week trial at the High Court in Livingston Blackburn was found guilty of all charges by a unanimous jury of 10 men and five women.

The court had heard eight days of at times heart wrenching evidence from Jessica’s family and friends, Blackburn’s neighbours, police officers, medical staff and forensic fire experts.

Forensic experts said that over a litre of petrol had been used to set the blaze and added that a naked flame had to be used to set Jessica alight.

Paramedics said the stench of petrol coming from Jessica’s charred body had lingered in their ambulance for more than a day.

A plastic surgeon described how Jessica suffered massive burns and had no chance of surviving her injury.

Dr Annis Nasan said surgeons desperately slashed through Jessica’s skin to prevent her burns tightening and cutting off her blood supply.

But she lost her fight for life in an intensive care unit just hours after the blaze with her family around her.

More than 400 people attended her funeral in Arbroath on May 14 – her body only being released after pathologists had studied her for clues.

Dr David Sadler – who performed the post mortem on Jessica – said her death had been caused by the fire and her injuries had been “unsurvivable”.

Blackburn was held in custody following court appearances just days after the blaze and required regular breaks in evidence as Jessica’s family sat through evidence as first taking the witness stand.

Parents Marion, 47, and Garry, 50, described Blackburn turning up at their home in just his boxer shorts and a t-shirt at 4am shouting “Jessica, Jessica’s dead”.

During the trial they learned that Blackburn had been given 150 hours of community service at Arbroath Sheriff Court in January after admitting a catalogue of crimes including theft by house breaking and assaulting Garry.

Jessica’s mother, Marion, left the court in tears several times as graphic details of her daughters death were recalled and experiments showing burning mannequins were played to the jury.

Blackburn variously wept, giggled and fidgeted and several times torn pieces of paper cups could be seen littering the dock.

It was revealed during one of three police interviews which were played to jurors that Blackburn had tried to take his own life while in custody.

Blackburn will now be sentenced in the New Year.

Mr Justice David Eady, the High Court Judge who presided over a number of high-profile court cases which turned media law on its head, today said that judges who made these decisions were becoming a target for the media to vent their anger at.

Speaking at a conference by the human rights organisation Justice and legal publishers Sweet and Maxwell, Eady said he had been subjected to personal attacks and abuse by the media after his decisions in some high-profile privacy cases, especially the Max Mosely case.

This issue came to a head at the Society of Editors Conference last year, when Daily Mail editor, Paul Dacre, attacked Eady for creating a common law on privacy. Dacre and the Daily Mail had previously been ordered to pay a massive £60,000 to Mr Mosley after exposing him for his tendency for sadomasochistic sex sessions and implying there was a Nazi theme to the encounters.

Dacre had obviously been lashing out as a scorned man who had been firmly put in his place.  But his attack was an incredibly personal one on Eady.

But Eady made a valid point in his speech today. Parliament’s lack of willingness to legislate on the issue of privacy and the media has forced judges, particularly Eady, who is the expert on the matter, to make the law. They have not had much of a choice, which leaves them directly in the firing line when it does not go the media’s way.

The decision in the Mosely case was a landmark one, and opened up floodgates for numerous other celebrities, including Sienna Miller and Ashley Cole to cite privacy as their defence against the newspaper who intruded into their privacy lives. Whether celebrities deserve their privacy is another topic for debate.

The whole situation is a mess, leaving editors and reporters not sure of what they can and can’t print or where the line in drawn. The same with those whose privacy is invaded.  Previously the law looked at confidentiality and there was nowhere else to look for guidance on the privacy issue when it started to come up as an issue in the court.

Clarification is needed on the matter, so judges, reporters, editors and any victims can be clear. At the moment, each case is resting on one individual, the judge (which is usually Eady) who then has to take any repercussions of being brave enough to stand against the national press. Parliament needs to legislate, as the longer the issue goes on, the more confusing it will become.

by ANDREA McCALLUM

A TEEN who murdered a dad-of-two in an unprovoked attack has been jailed for life.

Thomas Main, 18, kicked and stamped Michael Wood to death in Aberdeen in June this year.

Mr Wood’s face was “smashed” during the attack and he died from his injuries.

Today (Monday) at the High Court in Livingston, thug Main was jailed for life after he previously admitted killing him.

Judge Lord Bracadale said the murder was “unprovoked” and ruled that Main must serve a minimum of 13 years before he can be considered for parole.

Defending, Mark Stewart QC, said Main had left school at an early age and had “drifted” into a life of drink and drugs.

He said: “It was the combination of his taking drink and drugs on the date in question which led to the incident which resulted in the attack and death of Mr Wood.

“There’s nothing which I can say which in any way explains or justifies the assault on Mr Wood – the apology I’m instructed to make will mean little to those affected by Mr Wood’s death.

“There is some understanding of the extremely serious nature of what occurred that day.

“There is some insight reported in the report in to the full extent of what he was responsible for and there is some indication that he understands the consequences of his actions.”

Lord Bracadale said to that the unprovoked attacked on Mr Wood involved Main “forcing” his victim down a flight of stairs and stamping on his head whilst he was unconscious, resulting in his whole face being “smashed in”.

He added: “This was a very serious assault which went on for some time.

“You have previous convictions of assault – one of which involved a weapon – and you were under the influence of drugs and alcohol.

“These are incriminating facts which will increase the length of imprisonment.

“I do take into account you age, that there was no weapon used and it was not pre-meditated.”

Relatives of Mr Wood present in the court room were elated and whispered shouts of joy when Main was handed down his sentence.

Main, was aged just 17 when he kicked 43-year-old Michael Wood “like a ball” so hard it left the distinctive pattern of his shoes imprinted on him during the attack in Balnagask Terrace late on Tuesday 9 June.

Headlock

The court heard previously that dad of two Mr Wood had split from his wife, suffered from an alcohol problem and had been on a binge with friends.

Main, who had five previous convictions for serious violence, had in turn been drinking vodka and Jack Daniels and was described as being “hyper” before he began punching Mr Wood in the face.

In evidence, the court heard previously how Main grabbed the older man in a headlock and during the struggle they both fell down stairs.

Main fell on top of the unconscious Mr Wood, breaking his fall.

But almost as soon as the teenage thug got to his feet again,he started kicking and stamping on Mr Wood’s head.

As he stamped on Mr Wood’s head one witness heard what he described as a ‘big snap’ – but still the attack continued.

Mr Wood was rushed to Aberdeen Royal Infirmary after but he died from his injuries.

A Post Mortem examination later revealed his entire face had been “fragmented” with only his jaw bone still intact.

Main initially denied any involvement.

However he later admitted punching Mr Wood and kicking him “like kicking a ball” although claimed he had not meant to kill him.

Police earlier described the assault as a “cowardly and brutal attack on a vulnerable and defenceless man”

See more of our pictures at our Flickr site and videos at our dedicated channel,  Deadline TV.

By Michael MacLeod

AN evil child rapist twice slipped through cops’ fingers during a near decade-long reign of abuse when he was caught drink driving.

Vile Mutasim Al Mutasim, 35, was caught drunk behind the wheel of his car twice in the midst of horror attacks on primary school children.

He was stopped first in September 2006 at the capital’s Duddingston Road West and later again January 2007 at Hay Avenue, where cops found him well over three times the drink-drive limit.

But police said last night they had no way of knowing he and his brother, Eldirdeery, 24, were sexually abusing girls as young as five.

It wasn’t until April 2008 that detectives snared the Sudanese dish-washer for horrific child sex offences which were described by one judge as “beyond the understanding of a caring and civilised society”.

And a police insider revealed last night that if wasn’t for his brother getting reported over the rapes; Al Mutasim could have slipped through the net completely.

“No way of knowing”

They said: “We had no way of knowing he was a rapist when we got him for drink driving.

“In fact it was when Eldirdeery was being interviewed that the spotlight turned onto his older brother, Mutasim.”

Al Mutasim, 35, is now serving five years behind bars for a campaign of abuse on two Edinburgh girls aged five and ten.

Today (Friday) the Sudanese dish-washer was told he will be banned from the roads for eight years on his release from prison, and had a month added to his sentence.

Handcuffed to a prison guard throughout his appearance at Edinburgh Sheriff Court yesterday, Al Mutasim hung his head as details of his chaotic driving were read out.

He admitted both offences – something he refused to do during the rape trial at the High Court in Kilmarnock earlier this month.

He and his brother Eldirdeery were convicted of a string of charges following a trial and put on the Sex Offenders Register indefinitely.

Judge Lord Turnbull slammed the older brother’s “disgraceful” dominance over the five year-old girl in particular.

“most despicable”

Al Mutasim raped her after she came to him for protection from his brother, who was ultimately jailed for ten years.

The pair, who have a Scottish mother and had been living in Edinburgh, were found guilty of repeated attacks in Edinburgh between July 1999 and April 2008.

They insisted throughout the trial that their victims made the abuse claims up in revenge for an unpaid debt.

Judge Lord Turnbull commented: “You used the dominance that provided to perpetrate the most disgraceful breach of trust.

“Not only did you have regular intercourse with both young girls but in the most despicable turn of events you raped one of them after she had come to you seeking protection from her other abuser.”

And when the drink driving charges emerged yesterday, Sheriff Isabella McColl extended Al Mutasim’s jail term and disqualified him from driving for eight years.

Speaking through an Arabic interpreter she said she would have fined him £500, but instead added a month onto his sentence as he was already being held in custody.

A spokesperson for Lothian and Borders Police confirmed there had not been any reports of sexual abuse at the time of Al Mutasim’s drink driving offences. 

See more of our pictures at our Flickr site and videos at our dedicated channel,  Deadline TV.

By Cara Sulieman

THE DAUGHTERS of a woman who was stabbed in the face with a corkscrew by her husband have called on the judge to “lock him up and throw away the key”.

Debra MacLeod, 46, suffered eight stab wounds and had part of her cheek torn away after the savage attack by her husband who attacked her in her own home.

Ian MacLeod beat his estranged wife at her home in Thurston Manor Holiday Park in Dunbar before punching her in the face with the corkscrew.

Her daughters, Danielle and Melissa Baillie, have branded their step-father an “evil monster” and a “disgusting beast”.

“Evil”

Danielle, 22, an assistant office manager from Leith in Edinburgh said: “He’s always been a coward and a bully. It’s difficult to find the words to say how much we despise him.

“What he did to our mum was unbelievable and shows what an evil monster he is.

“We’ve been told to expect he will get at least five years, but he deserves a life sentence.

“The judge should lock him up and throw away the key. He’s a psychotic person and I know he will hurt someone again when he gets out of prison.

“Our mum is lucky to be alive after what he did to her. She has been through so much trauma and knows she will never look like herself again.

“It’s difficult to look at her face now as she looks like a different person, but at least he is out of her life and she’s a strong person. What has happened was terrible but she’s getting on with her life now.”

“Unrecognisable”

Debra’s other daughter Melissa, a retail worker also from Leith, said that the family would be in court to see MacLeod sentenced.

The 20-year-old said: “She was unrecognisable when we came to the hospital and saw her. We were told that she had a slim chance of survival after what happened, but she pulled through.

“He’s a disgusting beast and our whole family will be in court to watch him get sent away.”

MacLeod has been remanded in custody and is due to be sentenced at the High Court in Edinburgh next month.

See more of our pictures at our Flickr site and videos at our dedicated channel,  Deadline TV.

You can also get it from the PDF, but in case you dont have PDF (lol), it is here:

© 2009 Jeremy Shum 1
ADMINISTRATIVE LAWMERITS (COMMONWEALTH & STATE) Commonwealth Merits review State Merits review
Existence
Creature of statute, which will confer:
 Who may seek Merits Review of a decision
 Imposing pre-conditions upon that Merits Review
 Imposing time limits upon seeking review
 Varying the normal procedure of the Merits Review body
Depends upon standing1
Decision
Review body standing in shoes of original decision maker
 Fresh decision based on facts before them2
 Can review any “decision”, even if it wasn’t even in the correct jurisdictional initially3
 Can admit new facts to tribunal4 5, based on new law (even if changed since)6
 Can be with power beyond that of the original decision-maker7
 Rules of evidence/procedure do not apply, but can still take witness and take oaths8
 Decision maker will provides reasons9
 Can obtain reasons from original decision maker10
 Is not bound by Government policy (but will not do so without “cogent reasons”)11
Generally not “de novo” (full merits review) rehearing as under Cth AAT, but rather, is an appeal in a strict sense12 unless there exist “cogent reasons”13
 Based purely upon facts in front of original decision maker14
 “Cogent reasons” is an “injustice”15, “persuasive, compelling or convincing”, “more than mere disagreement”16.
Remedy
Fresh substantive decision17
 Can affirm original decision18
Fact/Law distinction
Merits review considers both questions of facts, and questions of law JUDICIAL REVIEW (COMMONWEALTH & STATE) Commonwealth Judicial review State Judicial review
Existence
Common law development
Decision
Court limited to legal error (including lack of procedural fairness, unreasonableness, acting for improper purpose, failure to exercise jurisdiction)
Remedy
Quashed, remitted to original decision maker to be remade
 These equitable remedies19:
o Declaration: No coercive effect, but declares rights/obligations
o Prohibition injunction: Similar to prohibition
o Mandatory injunction: Similar to mandamus
 Since Supreme Court exercises jurisdiction of English Court of King’s Bench, we grant these “prerogative writs”20:
o Certiorari: Quash a decision already made
o Prohibition: Prohibit/prevent unlawful action being taken
o Mandamus: Order/command certain action be taken
Jurisdiction
 Constitution21 (High Court): No remedy for certiorari or declaration
 Judiciary Act22 (Federal Court): Essentially duplicates the Constitution jurisdiction (but does NOT include Federal Magistrates)
 AD(JR) Act23 (Federal and Federal Magistrates Court): Reviews only decisions24 of an “administrative character, made under an enactment”25 (rather than contract law26 27 28, by a private corporation29), excluding G-G decisions & others in Schedule 1 of the Act. AD(JR) reviews are preferred, if possible (is fully statute, and isn’t a common law remedy like the others).
 Supreme Court Act30 (Supreme Court)
Justiciability (Requirement)
“Justiciable” means suitable for judicial review (DOES NOT apply to AD(JR) Act, which requires decisions to be of an “administrative character”), of which immunities (“non-justiciable matters”) are based upon the subject matter of the decision in question:
 Includes defense and national security, and foreign relations31
 Includes powers relating to administration of justice32
 Includes polycentric decisions (affecting a lot of people)33
 Does not include “in-principle” Ministerial and Cabinet Decisions34 35
 Does not include prima-facie prerogative powers36 37 (doesn’t mean, it will automatically happen!)
Standing (Requirement)
“Locus standi” means action brought by person with “sufficient interest”:
 Attorney-General (fiat) ALWAYS has standing, but rare due to political nature
 Public interest litigation: Must have “special interest”38:
o Includes more than mere intellectual/emotional concern39
o Includes matters a part of their job40
o Includes matters relating to the environment (if cared about by people)41
o Includes parties with involvement in statutory process42
o Includes a Union representing members43
o Includes commercial competitors44
o Excludes bias Acts of Court45
o Excludes mere commercial interest46
Remedy Standing test
Certiorari
Person Aggrieved
Prohibition
Person Aggrieved
Mandamus
Special Interest
Injunction (equitable remedy)
Special Interest
Declaration (equitable remedy)
Special Interest
AD(JR) Act
Person Aggrieved
Fact/Law distinction (Requirement)
In judicial review, only questions of law are reviewable; unless questions of fact are unreasonable (not just wrong). So it depends on whether reference is made to:
 Finding primary facts: A question of fact, unless there is:
o No evidence47 48 (even more restrictive for the ADJR Act) which is a question of law
o Drawing “unreasonable” inferences49: If 1 inference can only be drawn, and the decision maker draws a different inference, which is a question of law
 Determining the law: A question of law, otherwise as shown below50 (these propositions are criticized as being ‘artificial, if not illusory’51).
o Whether a word or phrase in statute is to be given its ordinary/technical/other meaning is a question of law
o Ordinary English word, or its non-legal technical meaning is a question of fact
 If a word is defined in statute (e.g. the word “business”), its correct meaning is always a question of law
 A word in statute if it has been subject of judicial consideration in previous binding decision is a question of law
 If from its overall statutory context, making it clear, that a legal meaning is intended, it is a question of law
o Meaning of a technical legal term is a question of law
o Effect or construction of a term whose meaning or interpretation is established is a question of law
o Whether facts fully found fall within the provision of a statutory enactment properly construed is a question of law
 Applying law to the facts: Generally an error of fact:
o Where application of law to facts is a question of degree (e.g. “well founded fear of persecution”), it is a question of law
© 2009 Jeremy Shum 2
o It is plainly unreasonable52, it is a question of law
Preconditions to power (Requirement) Jurisdictional facts Subjective opinion clauses Procedural preconditions
Facts that must exist (these are exceptions to that court cannot look at facts)
Requires the administrator’s subjective opinion
How to challenge
Show facts required to exist did not. To show that facts are jurisdictional53:
 Include: Statute conditions existence of fact
 Include: Fact objectively required, not just the decision maker’s subjective opinion that it exists
 Include: Fact is central to the statutory scheme, in that different “regulatory schemes” come into operation depending upon the facts’ existence or not
 Exclude: If fact requires a lot of subjective value judgment, less likely to be jurisdictional
 Exclude: Question of fact is the whole of the matter committed to the decision maker
Courts can receive new evidence54.
That there was NO evidence, or plainly unreasonable55, giving review to all facts and circumstances56 (Otherwise, it is VERY hard to argue due to the subjectivity57) Examples of subjective (“reasonable cause to believe”58) requirements:
 “If the Minister is satisfied”
 “Reasonable cause to believe”
 “Believes, on reasonable grounds”
 “If, in the Minister‟s opinion”
Show procedures required did not occur
Remedy
Does not always invalidate the subsequent administrative action59; test is, “whether it was a purpose of the legislation that an act done in breach of the provision should be invalid”60.
Hearing rule (procedural fairness) (Ground of review)
What: A chance to have a say before a right is deprived of. Note these are not automatic rights; each applicant must show WHY it would be unfair to make a decision without these “rights”.
 A right to notice (case to meet, and consequences) of a potential adverse decision being made61, with sufficient time62
 A right to disclosure of substance (not every detail) of adverse allegations63 / information known to the decision maker
o But doesn’t necessarily have to be an oral hearing, unless credibility is an issue64
 A right to present ones „case‟ in response
 A discretion to allow documents, witnesses, making submissions
 A right to adjournment65
 A right against unreasonable delay66
 Do not necessarily include processes depending on the context of the investigation67
 Do not necessarily need a lawyer68
 Do not necessarily need to cross-examine others69
When: The Kioa test70, whether the decision affects upon the:
1. Rights: Includes legal rights and statutory entitlements such as licenses, the historical scope of the procedural fairness rule;
2. Interests: Broader than rights, main thing is that the interest is different from that of the public generally; or
3. Legitimate expectations: Where government has represented that a benefit will be granted or a procedure followed (such as UN Treaties71), may be unfair to depart from that representation without warning
Whether the effect is (meets the following qualifications)
1. Effect must be sufficiently direct and individualized: Those made about a particular person or class of persons. It does NOT apply to “policy” decisions of generally application, e.g., decisions to impose new taxes, where a hearing would be impractical; and
2. Can be excluded by clear statutory intent72: They may not be easily convinced the legislature intends this73. Some exclusions include:
a. Urgency or emergency powers: Excluded in full, but doesn’t include the need for political urgency74
b. Anti-terrorism “control orders”: But UK House of Lords has noted need for procedural fairness75
c. Criminal intelligence: As in bikie76 and liquor licensing77 cases
Rule against bias (Ground of review)
What: That decision makers should be impartial78, and not have prejudice. They also need to be SEEN as impartial. Note there are different standards for different types of people, particularly a (seemingly) lower standard for Ministers79. Two types of bias:
1. Actual bias: Court’s reluctant , as may bring into disrepute institutions. Test is80, “a state of mind so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.”
2. Apprehended bias (also known as “ostensible”, “imputed” or “apparent” bias). Test is81, “Where a fair minded observer might reasonably apprehend that the decision maker did not bring an impartial mind to the matter”, also showing a “logical connection between the interest and the feared deviation from impartiality”82. Sub-categories of apprehended bias, include83:
a. “Interest”, for example financial interest84,; but does not include very small share interest85
b. “Association”, for example, close personal relationship, Director of lobby group involved86 (exclude’s husband’s seeming pre-judging statement87; requires reasonable proximity88)
c. Inappropriate contact between the decision maker and one side89, such as meeting one team’s lawyers outside chambers90 (may also be overridden by detailed judging summary91)
d. Acting as both judge and prosecutor92
e. Pre-judgment, might be evident from rude conduct93; previous statements made94; previous decisions95
Exceptions to the bias rule include:
1. Necessity, where an impartial decision maker cannot be found96, or the intended operation of the statutory scheme would be frustrated by the application of the rule
2. Waiver: Failure to object to bias may amount to waiver, at least where you know your rights97 98.
Abuse of discretion (Ground of review)
Abuse of discretion includes:
 Acting for an improper purpose99: Not authorized by statute. Also provided for by the ADJR Act100. If there are multiple purposes, a decision will be invalidated if the unauthorized purpose was “substantial”, that “but-for”101 the existence, it is likely a different decision would have been made. Finding the statute purpose is a process of statutory interpretation:
o Start with express objects/purposes if any
o If not, read statute as a whole, looking for any textual indications of purposes of its Act (e.g. title, structure, nature of power exercised)102
Political purposes can be argued103, but has to be supported by facts104. Other unapproved purposes include:
o Gaining money, using a statute for another purpose105
© 2009 Jeremy Shum 3
o Clearly unreasonable purpose prima facie106
 Bad faith: Rarely argued; similar to improper purpose, but involves deliberate misuse of statutory power.
 Taking into account legally irrelevant considerations107 108 109; Failing to take into account a legally relevant matter110 111: This is easier to prove than “improper purpose” as there is NO “but-for” test. Few questions:
o Which matters are legally relevant and irrelevant (question of law)? Considers may be expressly stated112, but may not be exhaustive113. Considerations may be implied from the subject matter, scope and purposes of the power.
o How tightly defined are the relevant matters? A broad policy discretion makes it more difficult to prove irrelevant considerations114.
o What does it mean to “consider”? Silence does not prove non-consideration115
o What has been considered (question of fact)?
 Acting unreasonably: Rarely successful. Also provided for by under AD(JR) Act116. It is that “no reasonable person/body/administrator would have made the decision that was in fact made”117, including discrimination without justification118, where the administrative decision is not proportional to the goal to be achieved119, failure to execute duty of (very basic) inquiry120, or unreasonable application of statutory words to facts121.
 (Substantive ultra vires): Government acting without power122 123 124 125. Similar to “jurisdictional fact”. Also available under the AD(JR) Act126.
 (Procedural ultra vires): Similar to “procedural preconditions”. Also available under the AD(JR) Act127.
Failure to exercise discretion (Ground of review)
Principle:
 Appointed statutory holders of discretionary powers must NOT allow any other person to exercise the power for them
o Cannot delegate a discretionary power: But can be override by:
 Express powers to delegate: In the statute
 Implied powers to delegate: Recognizes “administrative necessity”128, and implies delegation. Need to look at statutory indicators, such as frequency of power; high level policy; complexity; discretion; specification. But it depends on the fact; sometimes Minister is required129.
o Cannot give discretion to a person higher in the administrative hierarchy (“rule against dictation”)130: But statute can provide higher level decision makers to give “general directions” (but not control the outcome) 131, even control process132. Orders found too extreme include veto power133. Excludes Cabinet decisions (assumed this will occur). Provided for under the AD(JR) Act134.
o Policy cannot be inflexibly applied: Policies are likely to exist135, but discretion upon decision makers, means they cannot be bound by inflexible application of policy. They:
 Must not be ultra vires to the statute136
 Must not be inflexibly applied: Must give regard to the individual merits of the case at hand. However, if discretions are based upon power grounds, the decision maker can be less flexible.
o Statutory holder cannot fetter the future exercise of their discretion either by contract or by representation:
 The discretionary nature of the power must also be retained
 Failure to act (or acting with unreasonable delay): An objective test137
Note that estoppel is NOT available in relation to the exercise of public powers138.
Jurisdictional error (Requirement)
What: Body’s authority to decide an issue. Even though the starting jurisdiction is right, it is possible to make a “jurisdictional” error of law subsequently139. Jurisdictional error includes:
 Purporting to exercise a jurisdiction they do not possess
 Failing to exercise a jurisdiction they possess
 Constructive jurisdictional error, where the administrative body has:
o Misconstrued its power
o Misunderstood the nature of its powers or functions
o Applied the wrong statutory test
o Asked itself the wrong question
No need for an error of law to be “jurisdictional” under the AD(JR) Act140. Note that jurisdictional error does NOT apply to the ordinary decision maker (they have “decision making grounds”)!! The presence of jurisdictional error depends on whether the error of law is by an inferior court or tribunal141 (note that names are not conclusive142):
 Errors of law by inferior courts143 do not put it outside of its jurisdiction (but denial of procedural fairness may attract remedy anyway)
 Errors of law by tribunals will put it outside of its jurisdiction
Craig may change though, since this law has waxed and waned. Commonwealth Judicial review State Judicial review
Privative clauses
What: Legislative section that purports to exclude judicial review Courts are likely to get around this144.
Always a minimum level of judicial review145 A privative clause will protect a decision as long as that decision146:
1. was a BONA FIDE attempt to exercise the power
2. relates to the subject matter of the legislation
3. is reasonably capable of reference to the power given to the tribunal
But in addition, in S157147, as a matter of statutory interpretation:
4. Inviolable limits must be respected
5. Imperative duties must be complied with
Ultimately, “jurisdictional errors” are NOT to be protected from review
Because no constitutional entrenchment of judicial review:
 Must judges exclude judicial review as per privative clauses148 149 150 151, using a very literal meaning
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1 S27 2 Drake v Minister for Immigration and Ethnic Affairs (1979) (per Bowen CJ and Deane J): Full Federal Court allowed the appeal on the basis that the Tribunal „failed to make an independent assessment … and, in the result failed properly to perform its function of reviewing the Minister‟s decision that a deportation order be made in respect of the plaintiff.” “The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.” “Tribunal entitled to treat … Government policy as a relevant factor for the Tribunal to take into account in reviewing the decision … But the tribunal is not … entitled to abdicate its function of determining whether the decision made was … the correct or preferable one in favor of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.” 3 Collector of Customs v Brian Lawlor (1979): The facts, Commissioner of Customs revoked a warehouse license held by Brian Lawlor Automotive. BUT, they DIDN‟T have the right to do that; the Customs Act only empowered the Commissioner to revoke licenses for non-payment of fees. There was no express (or implied) provision to revoke a license in other circumstances (BL had paid its fees). The issue is, how could the AAT review the decision, as it was NOT in fact made under the Act, but only purported to be? Under s25(4), AAT has power “to review any decision in respect of which application is made to it under an enactment.” 4 S38-40 5 Re Greenham (1979) 2 ALD 137 6 Kavvadias v Commonwealth Ombudsman (1984) 1 FCR 80 7 Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32, in decision to recover overpayment, could consider waiver provisions also… 8 s40 9 S28 10 S37 11 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) (per Brennan J): Rehearing of the application of Drake in the Tribunal, bearing in mind the “Tribunal is as free as the Minister to apply or not to apply a policy”, however emphasizing the consistency of decisions. However, tribunal should not formulate policy. “The very independence of the Tribunal demands that it be apolitical; and the creation of its deportation jurisdiction is intended to improve the adjudicative rather than the policy aspects of deportation decisions.” The TEST is, “these considerations warrant the Tribunal‟s adoption of a practice of applying lawful Ministerial policy, unless there are cogent reasons to the contrary.” 12 Coal & Allied Operations Pty Ltd (2000), per Gleeson CJ, Gaudron & Hayne JJ 13 District Court Act s42E: Conduct of appeal: The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it. The Court, on an appeal- Is not bound by the rules of evidence but may inform itself as it thinks fit; and Must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not
depart from the decision except for cogent reasons. 15 Mooney [2009] Brennan J used the same phrase in Drake (No 2) 16 Mooney, Tilmouth J 17 Administrative Appeals Tribunal Act 1975 (Cth) 18 Evans v Repatriation Commission [2009] AATA 7 (January 8, 2009): Facts are, Mr. & Mrs. Evans received a lump sum from the U.K. government, as back pay on their U.K. pensions over 7.5 years. However, had it have been paid gradually over those 7.5 years, it would not have affected their Australian entitlements. However, s46 of the Veterans Entitlement Act was applied, and the income was treated as received over 52 weeks, and their Australian pension entitlements were correspondingly reduced. The AAT looked at the legislation (s46) but agreed with the original interpretation. Also looked at the facts afresh, but no real disagreement over the facts. Came to same conclusion, and AFFIRMED the original decision (but made virtually no reference to the original decision under review; made its own FRESH decision). 19 Judicial review of Commonwealth decisions: Commonwealth Constitution makes express provision for “an entrenched minimum” of judicial review. In All matters (s75(v) of the Constitution): (iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party; (v) in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth; The High Court shall have original jurisdiction. 20 S17 Supreme Court Act (SA), can conduct judicial review as part of the “inherent” jurisdiction of the Supreme Court, and grant “orders in the nature of” the prerogative writs. Procedure is controlled by the Rules of Courts. It is also possible to launch an action for declarations and/or injunctions in the Supreme Court‟s equitable jurisdiction. A number of important SA admin cases have actually been framed in this fashion… 21 S75(v) of the Constitution 22 S39B Judiciary Act 23 AD(JR) Act 24 Australian Broadcasting Tribunal v Bond [1990], ABT made a series of factual findings regarding Mr. Bond‟s behavior. Inferred he would not be a fit and proper person to hold a broadcasting license. Mr Bond sought to challenge these decisions in the Federal Court. 25 AD(JR) Act s3 26 ANU v Burns (1982): Facts are, Professor at ANU (Canberra), Court held decision to appoint Mr. Burns would be reviewable, because it was conferred to the University by Statute. However, once he was employed he was employed under contract. Once in contract, decision to dismiss Mr. Burns would be under that Contract. Therefore, a remedy would be under Contract Law. 27 General Newspapers (1993): Federal Court decision which involved a decision by Telstra to void a contract for a printing of the Yellow Pages. Following ANU v Burns, you would say that is a decision to enter a contract, therefore reviewable. However, Federal Court said NO; not reviewable. Even though there was statutory power to enter into contracts; entering into contracts was within normal contract law. 28 Griffith University v Tang [2005]: Facts are, involved decision to dismiss a PhD student on grounds on alleged misconduct. Decision made in Queensland; review sought under Queensland Judicial Review Act (almost identical to Commonwealth Act). High Court , decision was NOT reviewable.
29 Neat Domestic Trading: Involving AWBI, one part of privatized Australian Wheat Board. AWBI was granted a statutory monopoly for exporting wheat from Australia. If you wanted to export wheat, you would have to seek the public authority permission. Legislation was written in such a way
public authority couldn‟t grant licenses without authority of AWBI. This was challenged in High Court. Said that AWBI was a private corporation, under Corporations Act, therefore not a decision made under an enactment. 30 Supreme Court Act (1935), s17 31 CCSU Case, House of Lords 1985: Facts are, Margaret Thatcher issued an “order in council”, made under Prerogative Power, banning union membership amongst employees at GCHQ, a “secret” spy listening station in the UK. Union claimed denial of procedural fairness. House of Lords, Lord Diplock said, no automatic immunity merely because decision was made in exercise of Prerogative Power. However, subject matter, defense and national security, rendered the issue UNFIT for judicial review (so STILL non-justiciable; not merely because of being a prerogative power, but subject matter.) 32 CCSU Case, House of Lords 1985: Facts are, Margaret Thatcher issued an “order in council”, made under Prerogative Power, banning union membership amongst employees at GCHQ, a “secret” spy listening station in the UK. Union claimed denial of procedural fairness. House of Lords, Lord Diplock said, no automatic immunity merely because decision was made in exercise of Prerogative Power. However, subject matter, defense and national security, rendered the issue UNFIT for judicial review (so STILL non-justiciable; not merely because of being a prerogative power, but subject matter.) 33 Peko-Wallsend (1987) 34 SA v O’Shea (1987) 35 “The Cabinet being essentially a political organization not specifically referred to in the Constitution and not usually referred to in any statute, there is much to be said for the view that the sanctions which bind it to act in accordance with the law and in a rational manner are political ones with the consequence that it would be inappropriate for the court to interfere with what it does” (Sheppard J in Peko-Wallsend [1987]). 36 R v Secretary of State for Foreign and Commonwealth Affairs, Ex parte Abbasi [2003] 37 Mason J in R v Toohey (1981), “The statutory discretion is in so many instances readily susceptible to judicial review for a variety of reasons. Its exercise very often affects the rights of the citizen; there may be a duty to exercise the discretion one way or another; the discretion may be precisely limited in scope; it may be conferred for a specific or an ascertainable purpose; and it will be exercisable by reference to criteria or considerations express or implied. The prerogative powers lack some or all of these characteristics. Moreover, they are in some instances by reason of their very nature not susceptible of judicial review.” 38 Australian Conservative Foundation v Commonwealth (1980): Facts are, there was going to be a tourist development in Queensland. The Australian Conservative Foundation sought declarations and an injunction, on the basis that EIS procedures associated with a development had not been compiled with. High Court stated ACF lost on the basis of having “no standing”. Gibbs J, standing requires that the plaintiff have a “special interest in the subject matter of the action; an ordinary member of the public, who only shares the interest of every other member of the public in seeing that the law if upheld, does not have standing; a special interest is not a ‘mere intellectual or emotional concern’. 39 Onus v Alcoa (1981): Facts are, Aboriginal custodians (with ties with that area) concerned that the construction of an aluminum smelter would damage relics. Court found, this amounted to more than an intellectual or emotional concern. 40 Ogle v Strickland (1987): Facts are, two Priests had standing based on their vocational interests to challenge a decision of the Censorship Board regarding the classification of a film, which they found “blasphemous”. Federal Court said they had standing, because they were Priests, where a part of their job was to repel blasphemy.
41 ACF v Min Resources (1989): Ten years later, ACF had standing regarding decision related to logging within the “National Estate” (in a not
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dissimilar matter). Davies J said distinctive because “10 years later”… more people care about the environment… WTF??? “Time has passed” upsets the doctrine of precedence. 42 US Tobacco v AFCO: US Tobacco was challenging ban. AFCO were entitled on the basis of involvement in statutory process. 43 Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995): Union representing its members had standing to challenge a decision regarding Sunday retail trading; „The rule is flexible and the nature and subject matter of the litigation will dictate what amounts to a special interest.‟ 44 Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Limited (1998) 45 Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 46 R v Commissioners of Customs exp Cooke [1970] 1 All ER 1068 and R v Salisbury Corp, exp Burns Philip (1986) 47 Sinclair v Mining Warden at Maryborough (1975); and ABT v Bond 48 ADJR s5(3) 49 Hope v Bathurst City Council [1980] 50 Collector of Customers v Pozzolanic Enterprises Pty Ltd 51 Collector of Customs v Agfa-Gevaert Ltd 52 Glass JA in Azzopardi 53 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 54 Enfield v Dev Assessment Commission (2000) per Gaudron J: “Once it is appreciated that it is the rule of law that requires the courts to grant whatever remedies are available and appropriate to ensure that those possessed of executive … powers exercise them only in accordance with the laws … it follows that there is very little scope for the notion of judicial deference with respect to findings by an administrative body of jurisdictional facts.” Courts can receive new evidence related to a jurisdictional fact, but are likely to accord substantial weight to a tribunal‟s findings where the evidence before both is substantially the same. 55 R v Connell (1944): Considered the meaning of a regulation which gave power to alter remuneration rates only „where satisfied’ that the existing rates were anomalous. High Court held, it was insufficient for the Decision Maker to merely hold this opinion, MORE was required. “Where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which can be formed by a reasonable man who correctly understanding the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist.” 56 McKinnon v Treasury [2006]: Federal Treasurer empowered to issue a “conclusive certificates” effectively blocking Freedom of Information requests where he believed „on reasonable grounds‟ that the release of the requested documents would not be in the public interest. High Court (especially Gleeson & Kirby) spelt out in more detail what it means to have “reasonable grounds”, using a “global approach” (all facts and circumstances when making a “reasonable” consideration). 57 Gibbs CJ in Buck v Bavone (1976), “Where the matter of which an authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred … or that its decision could not reasonably have been reached. In such cases, the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.” 58 Liversidge v Anderson [1942]: Facts are, Liversidge was locked up on the basis he was a German living in Britain, “reasonably suspected”. Liversidge was detained in 1940 & commenced an action for false imprisonment on the basis that his detention was unlawful. Lord MacMillan said: “Is the standard of reasonableness which must be satisfied an impersonal standard independent of the Secretary of State’s own mind, or is it the personal
standard of what the Secretary of State himself deems reasonable?” If the former, open to judicial review, and the facts upon which the Secretary relied on must be disclosed to the Court. If the latter, “it is for the Secretary of State alone to decide in the forum of his own conscience whether he has reasonable cause of belief, and he cannot, if he acted in good faith, be called on to disclose to anyone the facts and circumstances which have induced his belief.” Majority of the House of Lords held the latter test applied. 59 Project Blue Sky v ABA [1998]: Facts are, Project Blue Sky was a NZ Broadcasting Company which had the object of “encouraging the profitability of the NZ film and TV industry”. It challenged the Australian Broadcasting Authority‟s imposition of the “Australian Content Standards” on TV which restricted Blue Sky‟s access to the Australian TV market. Argued this was in breach of FTA between Australia and NZ, Court agreed with this, and that the statute required compliance. 60 Brennan CJ, distinguished between:
1. A procedural condition which must be satisfied before a power can be exercised
2. A procedural condition which directs the manner of the exercise of the power, and must be followed
3. A procedural condition which requires something to be done before the power is exercised but for which non-compliance does not invalidate the exercise of the power
61 Anamunthodo: Gentleman charged with breach of Union rules. He went to a hearing; the hearing needed to be reconvened (he did not attend re-convened hearing), but in absence, they brought other penalty. Breach of the notice requirement 62 Ex parte Polemis: Involved ship discharging oil, due to sail very afternoon in high tide; dragged off the Magistrate Court immediately. Judicial Review court said, insufficient time to prepare case in response to charges. 63 See Brennan J in Kioa v West [1985], “in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavor to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious…” 64 Chen Zhen Zi (1994) 65 O’Sullivan v Repatriation Comm [2003], cross-examination of the applicant before the AAT was directed to securing his agreement to the proposition that he had received no income whatsoever from his practice as a barrister in what the cross-examiner wrongly assumed was the 1998-1999 year. The applicant (who was then aged 79) became confused and distressed at what appeared to be a failure on his part to include in the tax return any income or expenses referable to his practice as a barrister. This led the applicant to request an opportunity to examine his own records in Canberra in order to explain the apparent omissions rebut the allegation. Tribunal member did not grant an adjournment and delivered an ex tempore judgment. HELD, this was a breach of procedural fairness. 66 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005), initial hearing in 1997/RRT hearing in 1998 and again in 2001. Decision in 2003, based upon credibility. Per Gleeson CJ, Kirby J agreeing, the delay created a real and substantial risk that the Tribunal‟s capacity to assess the applicants‟ evidence and evaluate their claims was impaired, so that the applicants were denied a fair hearing. Per Callinan and Heydon JJ, procedural unfairness can spring not only from a denial of an opportunity to present a case, but from denial of an opportunity to consider it. The applicants‟ demeanor and credibility were relevant to the Tribunal‟s decision. The Tribunal had deprived itself of its capacity to assess their oral evidence.
67 NCSC v Newscorp (High Court, 1984), facts are, NCSC investigating Newscorp regarding unauthorized share transactions. Newscorp said
they were denied procedural fairness, since lawyers wanted to see people giving tip-off‟s, and turn it into court proceeding. High Court said NO, this is a decision WHETHER to proceed with charges or not. 68 White v Ryde Municipal Council, facts are, White kept 30 cats in his property, neighbor didn‟t like it, Council asked White to get rid of all except two. He challenged at meeting, refused to bring a lawyer. White needs to argue he needed a lawyer. He couldn‟t argue this, because having a lawyer there can interpret statutes, cases, cross-examine people, none of these skills needed 69 O’Rourke v Miller, facts are, Police Cadets in Victoria graduating, used Police badges to gain entry into good looking girls at shop. What happened subsequently is unclear, but one woman made a complaint to the Police Commissioner. Result was both dismissed. They challenged that decision, all the way to the High Court, saying they should have had right to cross-examine witness. High Court said no need to since there was no reason why they made up stuff. 70 Mason CJ in Kioa v West [1985], “a common law duty to act fairly … in the making of administrative decisions which affects rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intent…” Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. 71 Minister of State for Immigration Ethnic Affairs v Ah Hin Teoh [1995], also known as Teoh’s case, High Court 1995, involving decision to export Teoh, regarding importing Heroin (he claimed was for his wife). They had seven children, of whom were qualified to remain in Australia. Australia had signed and ratified UN Convention on the Rights of the Child. Article 3: In all decisions concerning children, the best interests of those children will be treated as a primary concern. Merits Review Teoh had been convicted of heroin importation, Minister decided to deport him. 7 children included some Australian citizens. Children’s best interest WERE considered, but NOT treated as primary consideration. High Court found, decision maker had NOT complied with that requirement. 72 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001]: Refugee refused by Refugee Tribunal. He argued Procedural Fairness. Majority held that a comprehensive code for dealing with visa applications did not exclude the common law right to procedural fairness. Provision of full merits review from the decisions? Again, discussed in Miah. Procedural Fairness will also be excluded in Urgency; Emergency powers. Adverse “country information” was not disclosed to applicant for refugee status. At common law, was a clear breach of Procedural Fairness. Minister argued, “code” for making decisions under Migration Act expressed legislative intent, Decision Maker‟s simply had to comply with the procedures in the Act. In any event, Full Merits Review was available to the RRT, displacing any additional Procedural Fairness requirements. 73 Dixon CJ and Webb J said in Commissioner of Police v Tanos (1958)
74 SA v Slipper, Commonwealth Minister wanted to acquire land in SA for a nuclear waste dump. SA said it would declare the land to be a public park. S42 of the Commonwealth Lands Acquisition Act prevented the compulsory acquisition of a public park without the SA‟s consent. Before SA could act, the Commonwealth Minister expedited the acquisition by certifying under S24(1)(a) that there was “an urgent necessity for the acquisition and it would be contrary to the public interest for the acquisition to be delayed” by the usually notification and review processes. Without affording SA an opportunity to be heard in relation to the decision, the Minister then declared that the land was compulsorily acquired under s41 of the
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Act. Held, the Minister‟s desire to avoid the operation of S42 of the Act is not a factor that constitutes “an urgent necessity for the acquisition”. Therefore, could not avoid the procedural requirements of notice and review. 75 The consequences of a successful terrorist attack are likely to be so appalling that there is an understandable wish to support the system that keeps those who are considered to be most dangerous out of the circulation for as long as possible. But the slow creep of complacency must be resisted. If the rule of law is to mean anything, it is in cases such as these that the court must stand by principle. It must insist that the person affected by told what is alleged against him. (UK House of Lords, Sec for Home Department v AF) 76 Gypsy Jokers Motorcycle Club v Comm of Police (WA) [2008]: „Anti-fortification‟ notices were issued 77 K-Generation v Liquor Licensing Court (SA) [2009]: Applications for liquor licenses were denied. In each case, the relevant Police Commissioner certified that information was “criminal intelligence” which must not be disclosed to the adversely affected person. High Court UPHELD both decisions. 78 Dr Bonham’s Case (1610), decision of the Royal College of Physicians, to convict, imprison and fine a Dr Bonham, for practicing medicine without a license. The fine was collected and kept by the College. The problem is decision-maker took the fine money. Basic principle: A person should not determine a matter in which they have an interest, should not be both a judge and an interested party. 79 Minister for Immigration v Jia Legeng [2001]: Claimed bias on part of Ruddock. Alleged statements to show bias were when he was interviewed on talkback radio. It was said ministers need to do this. Gleeson CJ and Gummow J, emphasized the multifaceted role of the Minister, “functions in the arena of public debate, political controversy, and democratic accountability”. “At the same time, the Minister’s exercise of statutory power is subject to the rule of law, and the form of accountability which that entails”. 80 Minister for Immigration v Jia Legeng [2001] 81 Livesey v NSW Bar Association (1983) 82 Ebner v Official Trustee in Bankruptcy [2000] 83 Deane J in Webb (1994) 84 Dimes v Grand Junction Canal (1852), Lord Chancellor made decision in favor of company in which he owned shares. Held, irrebuttable presumption of bias. 85 Australia moves to the “reasonable apprehension” test: Ebner v Official Trustee in Bankruptcy [2000], judge with shares in bank which was a party to proceedings, bank was liquidating… It WAS automatic disqualification, but High Court said unrealistic, since EVERYBODY has shares these days. 86 Pinochet (No 2) [2000], Lord Hoffman was unpaid Director & Chairman of an Amnesty International charity. Amnesty had intervened in proceedings in relation to extradition of Pinochet. Lord Hoffman part of 3:2 majority. Held, Lord Hoffman was sufficiently connected to Amnesty that should be DISQUALIFIED when Amnesty was a PARTY to the proceedings. 87 Kaycliff v ABT (1989): Investigation of group of companies owned by Christopher (media magnate), by the ABT, chair of woman was woman… her husband expressed a view on the case well before matter is concluded. The view is, husband is expressing views of wife, and it shows prejudgment on her behalf. Court said NO, you can‟t attribute statements of husband to wife. 88 Smits v Roach [2006], judges brother was Chairman of Partners at Freehills law firm, indirectly concerned with proceedings. High Court thought UNREASONABLE. 89 Ex parte Ciccone [1973], magistrate travelled to a “view” of the scene with lawyers for one party (in their car). INAPPROPRIATE! 90 Re JRL; ex parte CJL (1986), Family Court Judge met in chambers with counselor who was a witness. INAPPROPRIATE!
91 Webb v R (1994), murder trial in Mt Gambier; juror sent flowers to mother of victim; trial judge did not discharge the jury; HC held that any apprehension of bias was overcome (SO NO BIAS) through the detailed summing up of the judge. 92 Stollery v Greyhound Racing Control Board (1972), nomination forms for dogs came with $200 in envelope, a “wedding present” to Mr Smith? Mr Smith reported to board; but he stayed in boardroom during determination of matter. This gave rose to an apprehensive bias. 93 Damjanovic v Sharpe & Hume [2001]: NSW District Court judge persistently critical of and rude to party and interrupting them … then decided against them on credibility grounds. Ruled there was apprehension of bias 94 Vakauta v Kelly [1989]: Insurance litigation with professional witness. Trial judges talked about medical witness, the “unholy trinity”, always believing you can do a full day‟s work on an arm and leg. He was probably right, but the High Court said he should have been quite about this; and looked more at individual facts, rather than discarding them altogether. 95 Livesey v NSW Bar Association (1983), barrister and law student went to see criminal and bailed him out, using money they said was theirs, but wasn‟t, it was from the family. NSW Court of Appeal disqualified barrister, then subsequently 2 of 3 Court of Appeal disqualified law student. Court said unable to do that, since they had already expressed their views in a closely related matter. 96 Laws v Australian Broadcasting Tribunal [1990]. If entire ABT board was found to be biased, the decision STILL needs to be made. 97 Vakauta v Kelly [1989], “Where [a comment by a judge gives rise to an impression of bias] a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then .. Attack the judgment on the ground that … there was a failure to observe the requirement of the appearance of impartial judgment.” 98 Smits v Roach, judge presented draft judgment to parties for purpose of resolving issues of confidentiality. At this point, suggestion of apprehension of bias raised. Held by the High Court that it had been waived. 99 Padfield v Minister of Agriculture [1968] 100 ADJR Act: ss 5(2)(c) and 6(2)(c): „an exercise of a power for a purpose other than the purpose for which the power is conferred‟. 101 Samrein v Metropolitan Water Sewerage & Drainage Board (1982) 102 Woollahra MC (1991): Decision made to grant licenses/leases to run a private university within a National Park. Under s151(1)(f), may grant licenses to occupy or use lands within NP; Under S152(1), may grant licenses to carry on trades, businesses or occupations within NP. The Act did NOT expressly state its purpose (or purposes). The powers to grant leases and licenses were limited to actions taken for the purposes of the preservation and protection of NP‟s – and matters related to that… There was nothing untoward in the intent of the decision makers. They saw an opportunity to get rundown buildings restored at no public expense and bring in income which could then be used for other (legitimate) purposes. Hence – there was no moral wrong doing. The problem was simply that their powers under the Act – as interpreted by the Court – did not extend to acting for these purposes. Their purposes were not authorized by the statutory scheme. 103 Padfield v Minister for Agriculture, Fisheries and Food [1968], ministerial refusal to refer a politically embarrassing complaint (regarding a milk marketing scheme) for investigation by a committee. Authority that decisions by Ministers is reviewable 104 NAALAS v Bradley: 2 year limited term appointment of Chief Magistrate in NT, claim of IP, weakening independence, found facts/evidence couldn’t support possible ‘political purpose’.
105 MC Sydney v Campbell [1925]: Power under relevant legislation to acquire land under Sydney Council area. Acquired Martin Square (in city), and also in surrounding areas (to gain more $$$).
Decision was invalidated under improper purpose (i.e. power not conferred to gain $$$). 106 R v Toohey (1981): Land claim in area surrounding Darwin, with relevant legislation providing whilst aboriginal people could make land claim; couldn’t claim land apart of township. Government thus declared “town land” (therefore exempt). However, it was 25x larger than Darwin. Thus, improper purpose. 107 Murphyores Inc Pty Ltd v Commonwealth (1976): Grant to conduct sand mining in Fraser Island. Environmental considerations not irrelevant to exercise of BROAD DISCRETION to grant export license 108 R v ABT; exp 2HD: Broad “public interest” discretion, media concentration not irrelevant 109 Padfield: Also an unconfined discretion but possible political embarrassment WAS irrelevant 110 Edelsten v Wilcox: Dr. Edelsten was a medical entrepreneur, who was ordered ATO lot of money. Because Medibank was paying him, the ATO asked the Medibank to pay them. Federal Court found two relevant considerations: (1) 95% or 100% of income; and (2) ongoing dispute regarding whether he really owed the money. 111 Phosphate Mining v EPA (1978): Decision made to grant under EPA (license to pollute), got it, but had heavy conditions, which made it unattractive. Argued should have considered more than environmental (but also economic) factors. High Court said NO, they arrived at the conclusion from looking at the legislation. 112 R v Hunt; ex parte Sean Investments (1979) 113 Peko-Wallsend (1986) 114 Minister for the Environment and Heritage v QLD Conservation Council [2004]: Minister approved the Nathan dam in QLD. Opposition based on concerns regarding downstream effects. Minister considered only DIRECT environmental effects of the dam approval. QCC argued that INDIRECT environmental consequences were also “relevant considerations” and should have been taken into account. s75(2) of the Cth EPBC Act stated Minister is required to consider “ALL ADVERSE IMPACTS” of a decision. Minister DID consider impacts upon threatened species. He DID NOT consider impacts upon world heritage area. He considered that these (although foreseeable) were too remote or indirect. What does “impact” mean? COURT DISAGREED, “Impact” in its ordinary meaning can readily include the “indirect” consequences of an action and may include the results of acts done by persons other than the principal actor. “Impact” in this sense is not confined to direct physical effects of the action. It includes effects which are sufficiently close to the action to allow it to be said… that they are, or would be, the consequences of the action on the protected matter. 115 ACF v Forestry Commission (1988): Decisions regarding where logging could be done (and where prohibited). Silence does not prove non-consideration, in the context of many decisions regarding possible heritage listing of forests 116 AD(JR) Act ss5(2)(g) & 6(2)(g) 117 Wednesbury case per Lord Greene 118 Parramatta City Council v Pestell (1972) 119 R v Barnsley Corp; ex parte Hook [1976] 120 Prasad v Min Immigration and Ethnic Affairs (1985) 121 Chan Yee Kin v Minister for Immigration (1989) 122 Entick v Carrington (1765), Government must have a source of power for its actions 123 Hamdi v Rumsfeld (2004): U.S. Supreme Court which said that unlimited detention of U.S. citizen has no source of authority 124 Hamdan v Rumsfeld (2006): Commission to trial people, must have authority to do it 125 Ruddock v Vadarlis [2001]: Held no power in Migration Act to do so; later, full federal court found extrinsic power in Constitution to do so, though 126 AD(JR) Act, ss 5(1)(d) and 6(1)(d) which provide that review is available … „where a decision was not authorized by the enactment in pursuance of which it was purported to be made‟.
© 2009 Jeremy Shum 7
127 ADJR Act. ss 5(1)(b) and 6(1)(b) provide for review on the grounds that ‘the procedures that were required by law to be observed in connection with the making of the decision were not observed’. 128 Carltona [1943] 129 Peko-Wallsend 130 Roncarelli v Duplessis: Restaurant owner dispute with Premier, Premier said do not give license. Very improper 131 ADC v Hand (1998) 132 Nemer v Holloway (2003): Acting A-G stepped into case, and directed DPP to appeal. Found A-G action was legitimate. 133 NSW Aboriginal Legal Service v Min (1996): Allegations of misuse of public funds, so Minister stated had to go through special auditor for suitability. Successful, held that Minister went too far, giving auditor “veto”, 134 ADJR ACT ss 5(2)(e) & (6)(2)(e) 135 British Oxygen Co Ltd v Minister of Technology [1971] AC 610 136 Green v Daniels: School leaver, where Green (age 16) finished year 11, and go on the dole, then later wanted to go back to school. Social security developed policy, that school leaver would not qualify for unemployment effects, until after 12 weeks. Policy inconsistent with statute 137 Thornton v Repatriation Commission (1981) 138 Gummow J in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 139 Anisminic v FCC- House of Lords (1969): Decision by FCC as to whether a particular corporation qualified to make a claim against a compensation fund. FCC was clearly deciding the matter entrusted to it by Statute. Made a clear and serious error in interpreting the statute, and denied the plaintiff’s claim. Lord Reid expanded jurisdictional error to include (at least): Failure to observe the rules of natural justice; the presence of bad faith; misconstruction of the statutory power (“asking the wrong question”); consideration of irrelevant matters; the failure to take account of relevant matters required to be taken into account. 140 AD(JR) Act Section 5(1)(f) and 6(1)(f) 141 Craig v South Australia (1995): Hearing in SA District court, larceny charges. Craig made a “Dietrich” application, that his trial should be stayed as he was unrepresented “through no fault of his own”. Application granted by trial judge. Crown disagreed with Trial Judge’s interpretation of the Dietrich test: but had no statutory appeal rights in CLCA, so sought judicial review. High Court did not finally decide if district court judge had made an error of law. But held that in any event, it would NOT be a JURSDICTIONAL error. Strong distinction between approach to decisions of inferior courts and decisions of tribunals. INFERIOR COURTS, many errors of law will not go to jurisdiction. TRIBUNALS, errors of law will usually be “jurisdictional”. 142 Craig v WCT found that Workers Compensation Tribunal is a “court”, not a tribunal 143 In SA, at least the following are inferior courts: District Court, Magistrates Court; SA Workers Compensation TRIBUNAL; ERDC; Industrial Relations Court; Youth Court, Licensing Court… Other possibilities including the Coroners Court and Wardens Court. 144 R v Coldham (1983) (High Court): “Subject to this Act, an award (including an award made on appeal) – (a) is final and conclusive; (b) shall not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus or injunction in any court on any account”. Eventually, prohibition and mandamus were granted. 145 S75(5) of the Constitution 146 R v Hickman; ex parte Fox & Clinton (1945): A local reference board had power to settle disputes in relation to the COAL MINING INDUSTRY. A strong privative clause attempted to exclude judicial review of LRB decisions. The plaintiffs operated trucks which hauled coal from the mines. An award was made in relation to their drivers by the LRD. They argued (successfully) that they were in the TRANSPORT industry, and NOT the coal mining industry. The result in Hickman: This
was NOT a decision in relation to a dispute in the coal mining industry. Thus, the necessary jurisdictional fact was lacking. The Hickman provisos were NOT satisfied. The privative clause did NOT protect the decision from judicial review. 147 Plaintiff S157/2002 v Commonwealth (2003): Privative clause inserted into the Migration Act (s474). High Court rejected Hickman and offered a new approach to privative clauses. The S157 clause: (1) A privative clause decision: (a) is FINAL AND CONCLUSIVE; and (b) MUST NOT BE CHALLENGED, APPEALED AGAINST, REVIEWED, QUASHED OR CALLED IN QUESTION IN ANY COURT; and (c) IS NOT SUBJECT TO PROHIBITION, MANDAMUS, INJUNCTION, DECLARATION OR CERTIORARI IN ANY COURT ON ANY ACCOUNT. (Section 2 defined privative clause decisions, this covered a majority of decisions made under the Act). The result in S157: Was the clause invalid? NO. But, SUBSTANTIALLY, read down fro constitutional reasons, as only applying to “decisions” made “under the Act” (validly). “PURPORTED DECISIONS”, infected by jurisdictional error, were NOT protected by the privative clause. SO, the clause could not prevent review of any JURISDICTIONAL errors, which included denial of procedural fairness. The High Court in S157: It’s all a process of statutory interpretation, Gleeson CJ refers to a range of these principles. Hickman theory expressly rejected. A review court must “reconcile” the privative clause with provisions found elsewhere in the statute to determine the “inviolable limits and imperative duties”. 148 Darling Casino (1997): Gaudron and Gummow JJ, if sufficiently clear privative clause may “preclude review for errors of any kind”… “the decision in question is entirely beyond review so long as it satisfies the Hickman principle”. 149 Mitchforce v Industrial Relations Commission (NSW) [2003], NSW Court of Appeal: S106 conferred jurisdiction to remedy unfair contracts in relation to a “contract whereby a person performs work in any industry”. NSW IRC had made a series of decisions with a very broad view of this jurisdiction, in this case a commercial lease. S179 was a privative clause “in the widest terms”, it excluded review of even “PURPORTED decisions”. The outcome: Majority (Spigelman CJ and Mason P), held that IRC lacked a jurisdictional fact, and had made a “jurisdictional” error. Despite this, held that S179 (privative clause) protected even that “jurisdictional” error from review. Even some “purported” decisions were protected from review by S179. But see Batterham v QSR [2006], “ref to purported decisions inserted for more abundant caution…” (i.e., it makes no real difference) 150 Tsimpinos v Allianz [2004]; Craig v Workers Compensation Tribunal [2004]: Craig argued that he had been denied procedural fairness (court agreed), and hence the WCT had exceeded its jurisdiction. Held (Doyle CJ, Perry J and Sulan J agreeing), procedural fairness denied, and hence relevant matter not considered. This was a “failure to exercise jurisdiction”, NOT an excess of jurisdiction. WCT was required to act fairly, BUT WCT was a COURT and procedural fairness was NOT a jurisdictional error for a court. S157 was distinguished on this basis. 151 McGee v Gilchrist-Humphrey [2005]: McGee sought declaration that privilege against self incrimination was not abrogated by Royal Commissions Act 1917. S9, “No decision, determination, certificate, or any other act or proceeding of the commission, or anything done, or the omission of anything, or anything done or omitted to be done, by the commission, shall, in any manner whatsoever, be questioned or reviewed, or be restrained or removed by prohibition, injunction, certiorari, or otherwise howsoever.” HELD (Doyle CJ), S157 applied, DECLARATION WAS available despite S9, not expressly listed amongst the excluded remedies.

by RORY REYNOLDS

A MAN who tried to kill a jeweller after robbing him on the way to his shop has been jailed for 10 years.

Alastair Thomson attacked Gareth Steven with a hammer and a knife as he walked to his shop in Prestwick, Ayrshire.

Gareth, 30, was scarred for life in the attack which left him dying in a pool of blood in the street.

A passer-by previously told the High Court how she helped save his life after she found Gareth pleading for help after the savage attack in November 2007.

Martha Clark told the court: “He said ‘help me, help, me – tell my mum and dad that I love them.”

The incident saw Thomas make off with £50,000 worth of jewellery in a brief-case that he snatched from his victim who gave chase.

HIGH COURT: sitting at Livingston

Today at a hearing at the High Court sitting in Livingston Thomson was sentenced to 10 years in prison after being found guilty by a jury last month of robbing and attempting to murder the stricken jeweller.

He will also be placed on licence for two years when released.

Judge Lord Bracadale said that the extended custodial sentence was handed down because Thomson was prepared to use “extreme violence” against his victim.

He added that the incident was a particularly “savage” attack.

Risk

He said: “You left him in a condition that but for his rescue he could have died.

“The Consultant Surgeon did not expect him to survive.”

Gavin Anderson QC, speaking in defence of his client, told the court that Thomson had no previous conviction and was not otherwise deemed a “high risk” to the public.

DNA evidence heard previously helped with the conviction of Thomson’s Ayr United football scarf was found near the scene.

His victim Gareth was left with near fatal injuries to the head, diaphragm, stomach, spleen and liver in the brutal assault.

He had to undergo an emergency operation which left him with a scar running from his shoulder to his belly button.

During the trial, Gareth who had chased the robber for his brief case, previously recalled the attack. saying: “I grabbed him and he fell back down off the wall.

“I could clearly see he had my brief case in his left hand and a knife in his right.

“He spun round to show me the knife and I raised my hands towards him and emplored him ‘please don’t’.

“He said ‘don’t make me use this’.

“I reached out my right hand to take my briefcase and he stabbed me.”

See more of our pictures at our Flickr site and videos at our dedicated channel,  Deadline TV.

La High Court ha stabilito il congelamento dei beni di Sean Gerard Hughes e consorte, per sospetto riciclaggio di denaro

Sean Gerard Hughes, giudicato dalla House of Commons come uno dei più spietati killer dell’IRA, si è visto congelare le proprie proprietà e i conti bancari per sospetto riciclaggio di denaro.
Stessa sorte è toccata anche alla moglie Annette.
Il Serious Organised Crime Agency ritiene che le proprietà siano il risultato di riciclaggio dei proventi derivatin da frodi ipotecarie, evasione e frode fiscale.
La decisione presa dalla High Court di Belfast è stata duramente contestata da Conor Murphy del Sinn Fein.
“Sean Hughes è un noto repubblicana. Egli ha trascorso la sua vita adulta impegnandosi nella lotta per l’unità e l’indipendenza irlandese”.
“Ha sostenuto il processo di pace e la campagna per porre fine alla politica della polizia. Ci sono stati numerosi tentativi nel corso degli anni di calunniare il personaggio di Sean.”
“I raid di oggi a casa di Sean e  di alcuni suoi parenti hanno provocato una profonda rabbia nel South Armagh. Non vi è alcuna giustificazione per bersagliato oggi deliberatamente, Sean e la sua famiglia.
“Sean è stato accusato di nulla. Così come alcun membro della sua famiglia. E’ inaccettabile”.

Traduci l’articolo…

Republican’s assets frozen by High Court (NewsLetter)
A man accused in the House of Commons of being one of the IRA’s most ruthless killers has had his properties seized for suspected money laundering.
The High Court in Belfast granted an order freezing assets held by Sean Gerard Hughes and his wife, Annette, from south Armagh.
The Serious and Organised Crime Agency alleged his properties were the result of laundering the proceeds of mortgage fraud, tax evasion and benefit fraud.

Alleged IRA killer’s assets seized (U TV)
The assets of a south Armagh man, who was accused in the House of Commons of being one of the IRA’s most ruthless killers, has had his assets seized by the Serious Organised Crime Agency.
SOCA has been granted a court order to take control of properties and bank accounts belonging to Sean Gerard Hughes of Aghadavoyle Road, Drumintee.
East Belfast DUP MP and now party leader Peter Robinson used parliamentary privilege in December 2002 to link Hughes to the South Quay bombing at London’s Canary Wharf in 1996, which killed two people and brought the previous IRA ceasefire to an end.
He said Hughes was also responsible for the murder of 12 soldiers at Warrenpoint, Co Down, a mortar bomb in Newry, Co Down, and the killing of Lord Chief Justice Maurice Gibson and his wife Cecily in 1987.
He said Hughes was the most “ruthless killer and thug” in the ranks of the IRA.
Sean Hughes has denied being a member of the IRA Army Council.
The agency claimed the assets came from laundering the proceeds of mortgage fraud, tax evasion and benefit fraud.
The assets frozen include eight houses in south Armagh, an apartment in south Belfast, the proceeds of the sale of three other houses in south Armagh and a number of bank accounts.
The agency has also taken control of assets belonging to 10 other people in the south Armagh area, including Mr Hughes wife, Annette.
‘Unacceptable’
But Sinn Fein MP Conor Murphy hit out at Soca and criticised the decision to stage police raids at the south Armagh properties on Tuesday morning.
“Sean Hughes is a sound republican. He has spent his entire adult life engaged in the struggle for Irish unity and independence,” said Mr Murphy.
“He has championed the peace process and the campaign to end political policing. There have been numerous attempts over the years to smear Sean’s character.”
He added: “The raids today on Sean’s home and those of a number of his relatives have caused deep anger in south Armagh. There is no justification for the deliberate targeting of Sean and his family today.
“Sean has been charged with nothing. Neither have any members of his family. It is unacceptable.”

The Mirror, Vol. 13, No. 637

“Immediately after the Cambodian government appointed Mr. Thaksin Shinawatra as Samdech Dekchor Hun Sen’s and the government’s adviser, Bangkok was angry and summoned its ambassador back to Thailand as a so-called diplomatic retaliation. The Thai ambassador left Cambodia in the night of 5 November 2009. In response, the Minister of the Council of Ministers, Deputy Prime Minister Sok An, summoned the Cambodian ambassador to return to Phnom Penh. He considers that this is a normal reciprocity measure between government and government. Regarding this diplomatic dispute, there has not been any new report about border tensions between the two countries.

“Relating to Thailand recalling its ambassador, Mr. Sok An said that this is not the cutting off of diplomatic ties. When Thailand sends its ambassador to Cambodia again, we will send our ambassador to Thailand. He explained that there is no problem in the relations between both countries’ citizens and in commerce.

“He noted that Thailand did so, following a demand from the yellow-shirt group [of government supporters].

“He explained also that it is an internal affairs of Cambodia to nominate Thaksin Shinawatra, and Cambodia had appointed foreigners as advisers before, for example the current president of South Korea. He had also been an adviser of Samdech Dekchor.

“He criticized that Thailand has hurt Cambodia by sending troops to invade the Preah Vihear border areas in Cambodian territory. The second point is that when Cambodia proposed to list the Preah Vihear Temple as a world heritage site, Thailand had sent partisans to disturb it.

“Contrastingly, [Thai] Deputy Prime Minister Sutheb Thaugsuban asked, ‘What would Cambodia think if Thailand nominated [the opposition party president] Mr. Sam Rainsy as adviser?’ Mr. Sok An answered, ‘Cambodia would welcome such a nomination, because Cambodia has a citizen appointed by foreign country. Therefore, Thai people should be happy as one of their citizens is named adviser.’

“The decision of the Bangkok government to summon their diplomatic official like this, pushed the diplomatic ties between both countries to fall to a terrible level, threatening even political, economic, and cultural relation between both countries, as well as the solidarity in ASEAN.

“Prime Minister Abhisit Vijjajiva said that Thailand summoned their ambassador back to Bangkok as a sign of first diplomatic retaliation toward Cambodia for appointing Thaksin Shinawara as adviser, and for rejecting to extradite him. He said that Thailand wants Cambodia to know the dissatisfaction of the Thai people.

“Immigration officials at the Phnom Penh International Airport said that the Thai ambassador boarded the plane at around 9:00 p.m. to travel back to Bangkok.

“Political analysts said that the decision of the Bangkok government will make ASEAN to be viewed as a quite fractioned institution, making the initative to establish the ASEAN community by 2015 to be in hazard, and it is necessary that there is a regional mechanism to restore the situation.

Cambodian Troops Are Prepared to Defend the Country from an Invasion

“At the border, the commander of special Intervention Unit 3, Mr. Srey Dek, said that the Cambodian troops are always on alert. He added, ‘If they dare to enter only half a millimeter, we will attack (open fire) immediately. But he said that so far, there is nothing abnormal.

“The Banteay Meanchey governor, Mr. Ung Oeung, said that the border situation remains normal. But there might be some psychological war coming relating to border closings. But there is nothing visible yet.

Thaksin Is Happy while Abhisit Is Pale

“The Thai former prime minister, Mr. Thaksin Shinawatra, said on Thursday that he accepted the position as economic adviser of the Royal Government of Cambodia, and he expressed appreciation toward Prime Minister Hun Sen for offering this honorable position. He said on his website, ‘I can refresh my brain while I am not yet able to serve the Thai people. I will ask for the permission from Thai people to provide economic advice to the Cambodian government, based on the appointment by King Sihamoni, until I can go back to my country. In fact, I have already become adviser of a government. I accept this position in order to keep my brain to remain fresh, otherwise it would become lame if I don’t keep it up to obtain new ideas and new developments. I want to work with the Thai people, but I cannot. The Thai government does not even allow me to carry a Thai passport.’

“Mr. Thaksin Shinawatra added, ‘Our neighbor is not an enemy. We must be close to each other forever. It is good that we are friends.’

“In the mean time, a legal adviser of Mr. Thaksin, [the former minister of foreign affairs who resigned after the high court found he had violated the Thai constitution] Mr. Noppadon Pattama, spoke to the former prime minister, regarding the issue that Thaksin Shinawatra feels that he has received a great honor, and he will provide advice on how to solve Cambodia’s economic problems and overcome poverty.

“Mr. Noppadon Pattama added that it is not necessary that Mr. Thaksin comes to live in Cambodia, because he can give advice through the telephone or the Internet. He said, ‘Thaksin Shinawatra has no plan to go to Cambodia at this time. Therefore, the government needs not worry or feel afraid, because it is not a political affair or seeking asylum. Mr. Hun Sen decided to appoint Thaksin, because he sees his value and ability.’

“Nevertheless, Thailand does not understand it as Mr. Noppadon does. On 5 November 2009, Thailand summoned their ambassador back to their country immediately as a move of disapproval of Cambodia for offering a position to Thaksin.

“The Thai Prime Minister Abhisit Vijjajiva said to journalist, ‘We have summoned our ambassador as the first diplomatic retaliation toward the Cambodian government so as to let the Thai people’s dissatisfaction known. The announcement of the Cambodian governments disrespects the legal system, and does influence the feeling of the Thai public.

“Abhisit said also that [Thai] aid for Cambodia will be suspended also, but the border between both countries are still open, and the relations between the people will not be affected.” Rasmei Kampuchea, Vol.17, #5040, 6.11.2009

Newspapers Appearing on the Newsstand:
Friday, 6 November 2009

Kampuchea Thmey, Vol.8, #2091, 6.11.2009

• Cambodia and Thailand Decided to Downgrade Their Diplomatic Ties; [the Thai ousted prime minister] Thaksin Shinawatra Thanks Samdech Dekchor Hun Sen after He Was Nominated Adviser
• Samdech Dekchor Hun Sen Will Attract More Japanese Investors to Cambodia [during his visit to attend the Mekong-Japan summit in Tokyo on 6 and 7 November 2009]
• Sihanoukville Governor, Mr. Sbang Sarath Was Accused because of Illegal Constructions

Khmer Machas Srok, Vol.3, #523, 6.11.2009

• The Khmer Government Rejected the Demand of Siam [Thailand] to Control Two Thirds of Seabed Mineral Resources
• The Sam Rainsy Party: The Prime Minister Does Not Deal with the Existing Internal Affairs of Cambodia, but Thinks about Siamese [Thai] Issues

Koh Santepheap, Vol.42, #6798, 6.11.2009

• The Thai Prime Minister [Mr. Abhisit Vijjajiva] Summoned the [Thai] Ambassador Back, to Leave Cambodia, and He Opposes Thaksin Shinawatra’s Nomination [as Prime Minister Hun Sen's and the governments economic adviser]
• The Appeal Court Will Hold a Hearing This Morning over the Acid Attack Case [where the actress In Soklida's aunt was attacked]
• [More than 200] Romorque Motos [and Tuk-Tuk] Drivers Protested in Front of the Municipality to Demand a Delay to Make Number Plates and to Fine Them
• A Man like an Animal Raped Three Daughters Two Times Each [he was arrested - Sihanoukville]
• Within More Than One Week, Four People Were Killed by Murderers [four perpetrators were arrested - Battambang]

Phnom Penh Post [Khmer Edition], Vol.1, #40, 6.11.2009

• The Diplomatic War between Cambodia and Thailand Regarding Thaksin Shinawatra’s Case Leads to the Withdrawal of the Respective Ambassadors
• The Government Explained the Increase of the Military Budget [from US$223 million in 2009 to US$277 million in 2010 to civil society organizations, saying that the budget will be used to strengthen the national defense capacity in order to improve the military sector in Cambodia; however, civil society representatives said that the government should address root problems in the military sector, rather than increase the budget]
• Mr. Sam Rainsy Announced to Lodge Complaints [at international institutions, against neighboring countries] over the Loss of Territory

Rasmei Kampuchea, Vol.17, #5040, 6.11.2009

• The Khmer Rouge Tribunal Announced Places in 19 Cities and Provinces for Investigations over the Case 002 [involving five Khmer Rouge leaders: Ieng Sary, Ieng Thirith, Khieu Samphan, and Nuon Chea]
• More Than 300 ATM Machines of Different Banks Have Been Set Up in Cambodia
• Guards of Fishing Lot Number 10 Shot a Man to Death [two perpetrators were arrested and police is seeking to arrest another guard - Kampong Chhnang]
• Wild Animals [67 turtles and 22 pythons] Loaded in a Car from Siem Reap to Phnom Penh Were Seized by Moung Russey District Police [the car driver was arrested - Battambang]

Have a look at the last editorial – you can access it directly from the main page of the Mirror.
And please recommend us also to your colleagues and friends.

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Ripreso il procedimento per la richiesta della libertà su cauzione di Colin Duffy. Nuovo rinvio subordinato alla decisione delle autorità sul luogo a procedere contro l’imputato

Gli esiti delle indagini che si stavano aspettando per procedere nell’udienza per la concessione della libertà su cauzione a Colin Duffy, ha svelato presunte nuove prove a suo discapito.
Le analisi sul terreno ritrovato sotto ad uno stivale del repubblicano, sarebbero infatti compatibili con quello rinvenuto all’interno dell’auto utilizzata dagli attentatori alla base militare di Massereene lo scorso 7 marzo 2009.
Il pubblico ministero ha anche sostenuto che per quanto riguarda il profilo di DNA rinvenuto sulla punta di un dito di un guanto in lattice, esiste la possibilità di 1: 1 miliardo che possa appartenere ad un individuo differente.
Altri profili misti di almeno tre persone, sono state rintracciate sulla fibia di una cintura di sicurezza dell’auto, ed uno sarebbe compatibile con quello di Colin Duffy.
I pubblici ministeri ritengono che ci siano ’schiaccianti’ probabilità che il prigioniero repubblicano decida di fuggire nel caso gli venga concessa la libertà su cauzione, per la quale la famiglia Duffy sarebbe disposta a fornire in fideiussione la propria abitazione del valore di circa 90.000 sterline.
Mulholland, l’avvocato difensore, affermando che il suo assistito continua a dichiarsi estraneo all’accaduto, ha rimarcato il fatto che dal 14 marzo ad oggi, a distanza di 8 mesi, le autorità devono ancora decidere se portare avanti le accuse contro l’imputato.
Colin Duffy è accusato dell’omicidio di Mark Quinsey e Patrick Azimkar, oltre a 5 tentati omicidi connessi all’attentato.
Sentite entrambe le parti in causa, il giudice Weatherup della High Court, convinto che Duffy non avrebbe alcuna ragione per fuggire, ha rinviato l’udienza fino alla data in cui il pubblico ministero non avrà deciso se procedere o meno contro il prigioniero.
“Questa situazione non può continuare senza una specifica giustificazione  per il protrarsi della detenzione. Perciò è necessario che la giustificazione venga fornita prima di riunirci nuovamente dinnanzi a questa Corte”.

Traduci l’articolo…

DNA ‘match’ in Massereene murder case (U TV)
The High Court has heard that soil found on a boot belonging to high-profile republican Colin Duffy matches a sample in the getaway car used by terrorists who murdered two soldiers outside a Co Antrim military base.
Prosecutors also claimed the chances of a DNA profile on a latex glove particle recovered from the floor of the vehicle belonging to anyone else were less than one in a billion.
Duffy, 41, of Forest Glade, Lurgan, Co Armagh, is charged with the murders of sappers Mark Quinsey, 23, and Patrick Azimkar, 21, who were gunned down by dissident republicans at the gates of Massereene army barracks in March.
He is also accused of five counts of attempted murders and possession of firearms with intent in connection with the Real IRA ambush of soldiers collecting food from pizza delivery men.
Opposing his application for bail, a Crown barrister said on the night of the attack two masked gunmen fired more than 60 rounds at the victims before escaping in a waiting car.
Massereene army barracks
Tessa Kitson told the court it was later found partially burnt out in Randalstown, with forensic examinations carried out on the tip of a glove retrieved from the front passenger side of a vehicle said to have been purchased the previous month.
She said: “The result from that is the chance of obtaining a matching profile of DNA other than that from this applicant would be less than one in one billion.”
Mixed profiles from up to three people were also found on a seatbelt buckle. A forensic scientist concluded that one of them could have come from Duffy, according to the prosecution.
Further searches of a glove compartment located the same type of ammunition used in the attack, while a hold-all found in the boot contained camouflage jackets, trousers and more bullets, the court heard.
Mrs Kitson revealed detectives believe the bag was taken from an unidentified hide.
“It’s clear this attack was neither spontaneous nor opportunistic. It involved a considerable degree of planning,” she said.
“It was an attack in which all of the injured parties… had no opportunity at all to defend themselves.”
Sappers Mark Quinsey and Patrick Azimkar, who were gunned down outside Massereene barracks in Antrim
The barrister claimed that because of the length of sentence Duffy faces should he be convicted there would be an “almost overwhelming” temptation to flee the country if released on bail.
“It is felt this applicant is very much involved in a dissident group which is bent on causing complete destabilising in the community.”
She also disclosed that soil comparisons were carried out after footwear was seized during searches of his home.
“The forensic expert concludes that the soil taken from the applicant’s boot matches the soil found in the car at that time.”
But Mark Mulholland, defending, claimed the report only stated the earth may have come from the same location.
Mr Mulholland contended that this reflected the “paucity” of the case against his client, and stressed that eight months after the murders the authorities have still to decide whether to press ahead with the charges against Duffy, who denies any involvement in the attack.
“Mr Duffy makes no bones about the fact, and never has done, that he is known as a prominent republican, in the mainstream sense of the word, in Lurgan,” the barrister said.
“But at no time did the police ever arrest him in relation to dissident republican activity prior to his arrest on March 14th this year.”
Death threats
The court was told that Duffy himself has received death threats from rogue republicans in the past.
Mr Mulholland added that the accused, a father of six, was prepared to put up the deeds of his home – with an equity of up to £90,000 – as surety in a bid to be granted bail ahead of any trial which could be a year away.
After hearing both sides Mr Justice Weatherup adjourned the application until prosecutors can confirm whether or not a case is to proceed against Duffy.
Although the judge said he was not satisfied that no risk existed by releasing the accused, he stressed that any potential delay in bringing the case to trial was unacceptable.
He added: “This situation cannot continue without specific justification for continued detention. Therefore I require that justification to be presented when this matter next appears before the court.”

Etihad Airways and Aldar Properties have been ordered to pay the Force India Formula 1 team $4.6 million as a compensation for terminating a sponsorship deal.

Etihad Aldar had become the team’s title sponsor in 2007, when it raced under the Spyker name, after signing a three-year deal with the Silverstone-based squad.

The company, however, terminated the deal and moved to Ferrari in 2008, citing a conflict with Kingfisher, the airline owned by Force India boss Vijay Mallya.

On Wednesday, a High Court judge ordered the company to pay Force India $4.6 million in damages, ruling that Etihad had wrongfully terminated the contract.

Reference: Autosport.com

Entrerà in vigore il 9 novembre prossimo, la legge sulla presunzione di morte

Si parla ancora di Disappeard. Il 9 novembre entrerà infatti in vigore la nuova legge “Presumption of Death Bill “(riconoscimento di morte presunta), che permetterà alle famiglie dei Disappeard di poter finalmente chiudere quel capitolo della propria vita.
La legge consentirà ai familiari di un individuo, di ricevere il certificato di morte quando la persona risulti scomparsa da almeno 7 anni.
“Per le famiglie, come quelle dei desaparecidos, spero che questa legge potrà alleviare loro, in qualche modo, le sofferenze che hanno sopportato”, ha dichiarato Sammy Wilson, Ministro delle Finanze.
Spetterà alla High Court decidere della morte presunta di una persona scomparsa, rilasciando in questo modo il certificato di morte.

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Disappeared law to come into force (U TV)
New legislation to help relatives of those murdered and dumped by the IRA will come into force next week.
The Presumption of Death Bill will allow the families of the so-called Disappeared, who have never found the bodies of the victims, to settle their affairs.
It will enable families to receive death certificates if their loved ones have been missing for seven years, paving the way for resolution of their estate.
“Whilst very few people will have any need for this, there are families across Northern Ireland who have suffered the tragedy of having a family member go missing for so long, or in such circumstances that the inescapable conclusion is that they have died”, Finance Minister Sammy Wilson said.
“For those families, such as those of the Disappeared, I hope that this Act will ease some of the suffering that they have endured.”
The High Court may declare that a missing person may be presumed dead for the issuing of death certificates.
Last week it emerged west Belfast man Peter Wilson, 21, who vanished from his home in 1973, may have become the latest IRA abduction victim.
There are now 14 Disappeared – people who were abducted, murdered and secretly buried by republicans.
A total of five of them, Eamon Molloy, Brian McKinney, John McClory, Jean McConville and Danny McIlhone, have been found.
The IRA admitted in 1999 that it murdered and buried nine of the victims – Seamus Wright, Kevin McKee, Ms McConville, Columba McVeigh, Brendan Megraw, Mr McClory, Mr McKinney, Mr Molloy and Mr McIlhone – in secret locations.
Others who vanished during the conflict include Gerry Evans, Charles Armstrong, Robert Nairac – who are also thought to have been murdered by the IRA – and Seamus Ruddy, who disappeared in France and whose murder was admitted by the splinter republican group the Irish National Liberation Army.