The concept of the rule of law

In democratic nations such as Australia the primary role of the government is to make laws that serve and protect its citizens. When making these laws, governments have to ensure that they conform to the country’s constitution, which has been designed to prevent any abuse of power. A political party that aspires to form a government has to convince society that its policies are the best available for that society. If the party in government fails to make laws that serve society competently, it is at risk of being voted out of power.

In a democratic society such as Australia the power of parliament is controlled by the Commonwealth Constitution.

Courts are independent of the government. Their role is to interpret the law, determining what it does and does not allow. No person or group stands above the law and no one may violate it without punishment. In essence, the rule of law ensures that the exercise of arbitrary power [1]by any group is not possible. In a democratic

society the law covers all aspects of government, and everyone is considered to be

equal before it. The individual is deemed to have value and dignity.

The Australian legal system embodies a wide variety of inter-related principles, including:

•       independence of the judiciary

•       the right of the accused to a fair trial

•       individual rights in relation to arrest and questioning procedures

•       provision of Legal Aid for those unable to afford their own defence

•       the right of a person not to incriminate themselves                                       

•       the right of the accused to provide a defence that is free from state interference

•        the right of the accused to be informed of the alleged crime with which they are being charged.

•       In addition to all of these, the most important principle is that the law must

•       apply equally to all, regardless of status or position in society.

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[1] Arbitrary power is the exercise of power without any reference to law.

Domestic violence against Men!!!

A survey by Bruce Heady and Dorothy Scott of Melbourne University and David De Vaus of La Trobe University exposes the feminist lie that only women are victims of domestic violence. 

The survey of 1643 persons found that men are assaulted more frequently than women in domestic situations, as the tables below reveal.

How to write a well structured Case analysis

To learn how to write a well structured Case analysis, please go to http://legalresearch.org/docs/process13.html#QL_and_Westlaw

CASE ANALYSIS EXAMPLE

The following analysis of the FCT v. Dixon case is intended as an example of how you might go about the analysis of a case report using the framework suggested in class. This is not a crimnal case but a good example of a brief case report (as a guide to use the same style/structure to write your own case report)

Introduction

in this case it was decided by a 3:2 majority of the High Court in four separate judgments. The two judgments which comprise the majority – the joint judgment of Dixon CJ and Williams J and the judgment of Fullagar J – will be considered in this example.

FCT v. Dixon (1952) 86 CLR 540

The facts

The facts in some detail may be found in the ‘Case Stated’ for the Full High Court at the beginning of the report (at 540-3). The more material of these facts are also repeated in the judgments themselves, and these will be the source of the facts in many other case reports. The facts, with an eye to their materiality, may be summarised thus:

1.      The taxpayer respondent was an employed person who enlisted in the armed forces, thus ceasing his employment with his former employer. (Note that facts such as the name of the employer and the nature of the taxpayer’s duties with that employer are not material for the purposes of this analysis.)

2.      The former employer had a policy of making up the difference in pay between their former wages and those paid by the armed forces for those of its staff who enlisted.

3.      For the income year in question, the former employer paid the taxpayer a total of 104 pounds in accordance with its policy. (While it might be mentioned in your analysis, the actual income year has no relevance in this case. The same might be said also for the actual amount which should not have a bearing on the decision.)

4.      At no time did the taxpayer give an undertaking to return to employment with the former employer on completion of his war service; nor did the former employer give an undertaking to re-employ him. (In other words, re-employment was not a condition of the ‘make-up’ payment.)

The issue

The question of law to be decided by the Full High Court was whether the sum (of 104 pounds) was assessable income of the taxpayer respondent for the year in question. (The relevant assessing provisions argued before the Court were s. 25 and s. 26(e) of the Income Tax Assessment Act 1936.)    

The legal reasoning

Dixon CJ and Williams J

Their Honours found that s. 26(e) had no application in this case because they were ‘not prepared to give [that provision] a construction which makes it unnecessary that the allowance … shall in any sense be a recompense or consequence of the continued or contemporaneous existence of the relation of employer and employee or a reward for services rendered given either during the employment or at or in consequence of its termination’ (at 554). In other words, for s. 26(e) to be applicable they considered that there needed to be a suitable relationship between the payments and the employment of the recipient, even if that relationship was not a direct employment relationship but simply a relationship that contributed to causing the payments to be made. They found that such a relationship between the taxpayer and the former employer did not exist.

However, they took a different view of s. 25, applicable to income under ordinary concepts, in holding that it applied to the sum in question. On this question their Honours said (at 555-7):

In the present case we think the total situation of the taxpayer must be looked at to see whether the receipts of the taxpayer from [the former employer] are of an income character. … from his point of view, the contributions made by [his former employer] meant that the periodical receipts upon which he depended for the maintenance of himself and his dependants remained at the same level as his civilian employment would have given. From his point of view therefore the word ‘income’ would be clearly applicable to the total receipts from his military pay and allowances and from his civilian employers. It does not seem to matter whether these employers are regarded as his former employers, as his future employers or as the other party to a suspended employment. … it is clear that if payments are really incidental to an employment, it is unimportant whether they come from the employer or from somebody else and are obtained as of right or merely as a recognised incident of the employment or work. … (Emphasis added.)

In the present case the employment or service … is that of a soldier. … Because the [amount of 104 pounds] was an expected periodical payment arising out of circumstances which attended the war service undertaken by the taxpayer and because it formed part of the receipts upon which he depended for the regular expenditure upon himself and his dependants and was paid to him for that purpose, it appears to us to have the character of income, and therefore to form part of the gross income within the meaning of s. 25 … .

Thus their Honours decided that the amount was ordinary income because they found it to be incidental to employment and in such circumstances it is irrelevant whether the person paying is the employer or someone else. This is the key part of their ratio. They were also persuaded by the fact that the receipts were regular and that they were used by the taxpayer to support himself and his dependants. Regularity of receipt and the use to which the receipts are put are not necessarily determinative of the question, but may be relevant in looking at ‘the total situation of the taxpayer … to see whether the receipts of the taxpayer … are of an income character’ (see above).

Fullagar J

His Honour also dismissed the application of s. 26(e) in holding that ‘the receipts in question are not so related to any employment of the respondent as to fall … within the terms of s. 26(e) … The payments were made irrespective of any services given by an employee as employee’ (at 563-4).

However, as with Dixon CJ and Williams J, Fullagar J held that the payments constituted ordinary income assessable under s. 25, but by taking a different approach based on what might be styled a ‘substitution’ argument. He said (at 567-8):

It seems to me that the … receipts … must be regarded as having the character of income. They were regular periodical payments … . This consideration, while not unimportant, is not decisive. What is, to my mind, decisive is that the expressed object and the actual effect of the payments made was to make an addition to the earnings, the undoubted income, of the respondent. … What is paid is not salary or remuneration, and it is not paid in respect of or in relation to any employment of the recipient. But it is intended to be, and is in fact, a substitute for … the salary or wages which would have been earned and paid if the enlistment had not taken place. As such, it must be income, even though paid voluntarily … . It acquires the character of that for which it is substituted and that to which it is added.  (Emphasis added.)   

The decision

By majority, the Full High Court held that the payments received by the taxpayer constituted ordinary income assessable under s. 25.

   

Right of the Victim Vs Rights of the Accused

The role of the victim

The law has the responsibility to protect the individual rights of both the victim and the accused. At times this creates conflict, particularly when it is perceived that the rights of the accused are too extensive. The victim plays an important role at the sentencing hearing. Every victim of a crime has the right to make a ‘victim impact statement’ outlining the effects of the crime on the victim and their family. The statement is presented to the court and is seen as a way of making the legal system more accessible to the victims of crime.

Prisoners’ rights

Prisoners have perhaps the fewest rights of any group in society—and those they do have are severely regulated and may be arbitrarily removed. In prison, almost every act that most people take for granted is limited by regulations and is closely supervised. Prisoners have no privacy and are essentially treated like children, with the result that many lose all sense of adult responsibility. This can create problems upon release, as society expects former prisoners to once again take on adult responsibilities.

Upon arrival prisoners are stripped, searched and have all clothing and personal belongings seized. They are then given prison clothing and a prisoner number. Most prisoners are allowed one visit per week and these visits are always supervised. All gifts are searched and a senior officer decides whether the gift is given to the prisoner or returned to the sender. These precautions are taken in a bid to stop weapons and especially drugs from entering the prison.

The prison authorities have a duty of care to all prisoners. This includes providing them with adequate food and medical care and also ensuring that they are free from physical violence. In addition, all prisoners have the right to unlimited visits from their legal representatives.

The Felons (Civil Proceedings) Act 1981 (NSW) grants prisoners the right to sue the government for mistreatment. However, they must first convince the court that they have a prima facie case. There is no right to sue prison officers, unless they can be shown to have acted maliciously. Other prisoners may be sued for assault and other crimes. Legal claims are rare, as they are very difficult to prove, although complaints to the Minister for Corrective Services and the Ombudsman are more common.

Case : Regina v Fajka [2004] NSWCCA 166 (26th May 2004)

Mr Fajka had pleaded guilty to an indictment which contained a single count alleging that he had committed the offence of affray in licensed premises at Bradbury. The offence to which he pleaded guilty was contrary to s.93 of the Crimes Act and carried a maximum penalty of 5 years.

The sentencing Judge Maguire DCJ imposed a sentence of imprisonment of 2 years with a non-parole period of 18 months.

Greg Walsh did not appear on the sentence but successfully applied for a bail on behalf of the Applicant pending his appeal to the Court of Criminal Appeal.

In the course of the sentencing of the Applicant, the sentencing Judge made a finding that he was involved in acts, to wit the stealing of a video tape, which seriously aggravated the facts in respect of which he had entered his plea of guilty. It was argued by Greg Walsh that it was impermissible for the trial Judge to have made such a finding and such finding was in breach of the principle in De Simoni v The Queen [1981] 147 CLR 303.

The New South Wales Court of Criminal Appeal (Hulme J, Simpson J, Howie J) found that it was impermissible for the sentencing Judge to have made such a finding and the application for Leave to Appeal was granted and the appeal allowed and the sentence imposed by Judge Maguire was quashed and in lieu the Applicant was ordered to perform 100 hours of community service.

CaseStudy-Australia's first female to be sentenced to life imprisonment

Regina v Knight (2001) NSWSC 1011

Katherine Mary Knight was arraigned on 2 February, 2001 on a charge of having murdered John Charles Thomas Price at Aberdeen in the State of New South Wales on or about 29 February 2000. She pleaded not guilty. The trial was initially set for 23 July, 2001 but was adjourned due to the illness of her counsel. She maintained her plea of not guilty and the trial was re-set for 15 October, 2001.  There was some minor delay in the beginning of the trial because of the need to augment the jury panel. This arose because of, among other things, the nature of the case and the possible unpleasant effects on the members of the jury of the graphic and unsettling evidence to be called in the trial.

            Morals are defined as conformity to the rules of right conduct. Ethical is defined as relating to or dealing with morals or right and wrong conduct. Moral standards can be private or public. In this particular legal case, it is public as the extent of the outcome is kept well within the moral standards of society as a whole. The outcome of this case reflects the ethical standards of society as it shows who is right and who is wrong. The law often reflects moral and ethical standards of many individuals, so society’s values play a very important role in determining the extent of how moral and ethical standards are viewed.

             The murder of John Price was so gruesome and diabolical that it went beyond the experience of many of the professional people, including experienced psychiatrists, that were involved in the case. The post mortem examination revealed that Mr Price had been stabbed at least 37 times in numerous parts of both the front and back of his body. There may have been more wounds inflicted, but the extent of those found and the succeeding acts of the prisoner in relation to Mr Price’s body rendered it impossible to know how many more there may have been and in particular the number of wounds which may have been inflicted in the area of his neck.

 A number of police officers who were highly experienced in examining crime scenes found the need to take stress leave because of the situation with which they were confronted when examining the crime scene at Mr Price’s house. Objectively the circumstances mark the killing and its accompanying incidents as being of the most gruesome kind, the murder as being in the most serious category of that crime.

            Section 19A of the Crimes Act 1900 provides that :

(1) A person who commits the crime of murder is liable to imprisonment for life.

(2) A person sentenced to imprisonment to life for the crime of murder is to serve that sentence for the term of that person’s natural life.      

            The outcome of this case reflects moral standards in the fact that no person should ever be allowed to take someone’s life the way Katherine Knight did of her de facto. It is of no acceptable conduct and there is no morals in allowing any leniency towards Katherine Knight’s actions. For a person to maliciously stab another thirty-seven times and then conduct in skinning another’s flesh completely does not reflect any moral or ethical standards. Over time there are changes in social attitudes and perceptions of what is morally right and wrong, however, to deprive someone of their life in the manner that Katherine Mary Knight did, will never be seen as morally right. Katherine Knight showed no mercy to Mr Price and the prosecution proved that the murder was to her enjoyment as she had repeatedly expressed threats regarding the taking of his life. No remorse was displayed by Mrs Knight and in sentencing the offender there was only one suitable outcome. As the outcome of this case was that Katherine Mary Knight was the first ever female in Australia to receive imprisonment for life. It is a very definitive reflection of the moral and ethical standards that society upholds. The extent to which the outcome of Katherine Knight’s trial reflects moral and ethical standards is undoubtedly answered in the fact that parole was not considered an option in sentencing her and the judge proclaimed that due to her actions she removed all right to ever walk among us again. The only appropriate penalty for the Katherine Knight is life imprisonment and that parole should never be considered for her. Katherine Knight should never be released.

            Justice for society involves the legal system giving members of society the reassurance and peace of mind that they live in a safe environment. Offenders need to be dealt with quickly and effectively to insure that society as a whole believes they are safe. The effectiveness in the law in achieving justice in this particular case is very strong and compelling. This is justified through the trial in how Katherine Knight pleads her defence through the use of amnesia and is still convicted. In her record of interview taken late in the morning of 4 March 2000, Mrs Knight claimed that she had no recollection whatsoever of the events involving Mr Price’s death. During the trial Mrs Knight chose not to give evidence. In achieving justice it was not made any easier by the offender. Mrs Knight claimed she suffered from amnesia, but due to the amount of recollection she possessed her claim of amnesia was only too convenient for her, both emotionally and litigiously. Mrs Knight’s claims of amnesia is of little or no account in relation to the question of the penalty to be imposed upon her. There was no doubt that her claim to amnesia forms part of her plan to affect madness in order to escape the consequences of her acts and to provide a convenient basis, on which to rely to avoid detailed questioning by the police and escape punishment.

            In achieving justice for the Price family three doctors were used in the trial. To achieve justice they provided essential information in proving that Katherine Knight’s level of culpability was to the level of extreme, and that her mental capacity was not rendered at the time of when she committed the murder. Also the Supreme Court of New South Wales had to determine whether or not the murder was pre-meditated. To achieve justice the standard of proof had to be beyond reasonable doubt. This standard applies to any disputed facts which are not covered by the verdict or plea of guilty. The effectiveness of the law in achieving justice for individuals and society often conflicts with each other. In this particular case there was very little conflict within the interests of society and the individuals. Protection for society and the individuals was a must in deciding the outcome of this case.

            Katherine Knight not only decided to murder Mr Price, but planned the timing and what she was going to do in a manner which left open to her, as she thought, a way of escaping punishment, namely that she would be considered as mad. Furthermore, Mrs Knight has no real prospects of rehabilitation and would be highly dangerous to the community were she to be allowed out of prison. Imprisonment is the only way in which the element of personal deterrence can operate in relation to the Katherine Knight.

            The effectiveness of the law in achieving justice is displayed through the use of doctors to gain evidence, interviews to receive information on Katherine Knight’s background, victim impact statements from the deceased’s children and any other evidence gained to prove that Katherine Knight displayed the reasonable men’s rea when committing the crime. At the end of the trial the offender entered a plea of guilty and finally after almost two years some justice is provided to the Price family. The task of the Court in imposing the sentence was not an easy one. It must have given due weight to all relevant factors. Those included the protection of society, retribution and where appropriate deterrence and reformation.

            As society evolves, the law needs to change to reflect, among other things, economic and technological developments, different social values and new concepts of justice. The law should reflect the conditions that exist in the present society. Changing conditions create a need for reform of the law. The question that is arisen from this case was that did Katherine Knight receive a justifiable punishment in relation to how she took the life of John Price? This case in particular brings forward the question of, is would capital punishment be a necessary means of retribution in this case.                                                                                                                       Concepts of justice are always changing and are very difficult to define at any given time. The movement away from capital punishment is an example of changing views. However, if capital punishment was the sentence in this trial would it have given complete closure to the Price family, did they receive the justice they deserved? In New South Wales life means life - so the maximum sentence is life imprisonment without parole. The issue of law reform to the extent of re-introducing capital punishment would cause a major concern for debate among the media, politicians and society as a whole.                                                                                                           Arguments put in favour for the reintroduction of the death penalty would be when a criminal like Katherine Knight commit’s a crime to the same seriousness that she did they should receive like punishment in return. Capital punishment will almost definitely deter others from committing the same type of offence. It would decrease the cost of maintaining life prisoners in gaol and from the point of view from the R v Knight case if capital punishment was available it may have been the only alternative.

The death penalty affirms the right to life by punishing those who violate it in the most strict form.

            In conclusion, Katherine Knight’s action in regard to the murder of John Price in 2000 were unjustifiable and by no means a reflection of ethical or moral standards upheld by society. The effectiveness of the law in achieving justice for individuals and society played a major role in establishing deterrence for other criminals who are even thinking of committing such a diabolical act like the murder Katherine Knight committed. The outcome of this case not only created history but since then it has caused much debate about whether or not Katherine Knight got the punishment she deserved.

THE BACKPACKER MURDERS

The most infamous crimes in Australian history are the backpacker murders. Forty-Nine year old Ivan Milat was convicted and found guilty of killing seven backpackers. Milat is Australia’s most notorious serial killer.

In 1992, Caroline Clarke and Joanne Walters, who were British travellers, met in Australia and teamed together with the aim of touring around the south of the country. In April that year, they left a backpackers hotel in Sydney and headed for the southeast of New South Wales. In September their bodies were found buried in an area known as "Executioners drop".
In October 1993, two more bodies were discovered along the same stretch of the remote Belanglo Forest. The bodies were identified as those of 19 year old James Gibson and Deborah Everist, also 19. Both had been missing since 1989. It then became apparent that a serial killer had been responsible for all these murders.
On 1 November the same year, a fifth body was found. Dental records were the only resource able to identify the body. It was established that this body, was that of Simone Schmidl, who was a twenty-year-old German national who had vanished in January of 1991.
An intensive search of the area was conducted and two skeletons were found on November 4. These proved to be remains of 21-year-old Gabor Kurt Neugebauer and his 20-year-old girlfriend, Anja Susanne Habschied, who were German tourists that had vanished two years prior. Anja had been decapitated. At the same time police revealed that multiple stab wounds had killed all victims.
Progress continued to be made in the forensic examinations of evidence gathered at the scene - Cartridges from a .22 Ruger rifle had been found near the body of 22 year old Caroline Clarke and these were being tested against some cartridges that had been taken from a farmhouse outside Sydney.
It was not until the end of February 1994, that there was a breakthrough in the police investigation. Two British hitchhikers came forward, following accounts of the murders. A 20-year-old woman stated to police that while she had been backpacking in January 1990, in New South Wales, she was offered a lift, which she had accepted. While in the vehicle the driver had behaved strangely and because of this she had got out of the vehicle and ran into the Belanglo Forest. As she had done so, the driver fired shots at her, but they had missed.
The second British tourist was Paul Onion, who told police that in 1990 he had accepted a lift from a driver in the same area. The driver of the vehicle had produced a gun from the glove compartment of the vehicle. Paul ran away from the vehicle but the driver had fired shots at him. Paul was able to identify this man from police photographs and identify the vehicle that had been used in that incident.
In May 1994 police carried out seven dawn raids on properties and as a result three men were taken into custody. One of these men was 49 year old Ivan Milat, who was charged with armed robbery and discharging a firearm - he was later to be charged with the murders. 
During the raids on Milat’s house police found, a bullet in one of the bedrooms, the sleeping bags of two of his victims and, a bag filled with the personal items of his victims. Police also found a 12-inch Bowie Knife and the .22 Ruger Rifle that had been used to fire shots at the victims. Milat refused to comment on the findings
Milat was taken from his home to Campbelltown police station where he was questioned. The entire interview was recorded on both video and audiotape. During the interview, Milat was evasive and uncooperative.
Ivan Robert Marko Milat was charged with the murders of the seven backpackers and was committed to stand trial in the Supreme Court. At a bail hearing, several weeks after the arrest, Ivan dismissed his lawyer after being advised by his counsel to plead guilty.
Milat’s trial was supposed to commence in June of 1995, however this was delayed while his lawyers argued with the state’s legal aid office over their rate.
Legal Aid is not free and relies on contributions. The amount to be paid is based on financial situation as well as the area of law.
The trial did not commence until this was resolved almost a year later.
The enormous weight of evidence and the long list of witnesses took weeks to present. Gradually, during cross-examination of the prosecution witnesses, the defence tactics unfolded. They were determined to convince the jury that Ivan was not responsible for the murders but instead implied that his brothers, Richard and Walter, committed the crimes and implicated him by "planting" the evidence at his house. Twelve weeks and 145 witnesses later, the prosecution completed its presentation of a strong case.
The first witness called by the defence was Ivan Milat. Milat’s lawyer led him through the accusations that had been made. His defence was simple: he denied everything. During cross-examination, the prosecution proved merciless.
The prosecution lawyer pursued Milat on every point. When asked how he came to be in possession of the property belonging to the victims he answered, "Someone's trying to make me look bad."
Justice Hunt took two days to summarise the evidence for the jury. At 2:42 p.m. on the 24^th July, he sent the jury out to consider their verdict. Three days passed, still no verdict. Meanwhile the Milat family, confident of an acquittal, made plans for a celebratory dinner. A strange ritual considering Ivan's defence was based on the implication of members of his own family.
On Saturday, 27^th July 1995, the remaining jurors filed into the courtroom to deliver their verdict. Justice Hunt asked Ivan to stand by the jury foreman read the verdicts. As each of the eight charges were read, the verdict was the same. Guilty. Ivan Milat was asked if he had anything to say.
He replied, "I'm not guilty of it. That's all I have to say."
The sentences were then handed down. For the attack on Paul Onions, Milat received six years' imprisonment. For the remaining seven counts of wilful murder, a life sentence for each. Ivan Milat was sentenced to prison "for the term of his natural life."
While in prison, Ivan Milat turned to self-mutilation in an attempt to jumpstart his appeal to the High Court in Sydney. He hoped that by swallowing razor blades, staples and a spring from a toilet mechanism, and periodically starving himself, he would get the judge's attention and maybe get the process moving a little faster. However, Ivan's desperate ploy failed to work. In July 2001, Judge William Gummow refused Milat's appeal, stating that "there is no reason to doubt the correctness of the decision by the New South Wales Criminal Court of Appeal," the AP Worldstream reported.
Many, especially the victims' families, were relieved by the court's decision because it would ensure that Ivan would spend the rest of his natural life behind bars. There was little doubt that if he were ever released early he would likely kill again and again. Of course, Ivan denies that he is capable of ever doing such a thing and continues to profess his innocence in the seven murders for which he was earlier convicted.
There are many factors that influence the criminal behaviour of a serial killer like Milat. Some of these are:
            • A minimum of three to four victims, with a "cooling off" period in between;

• The killer is usually a stranger to the victim -- the murders appear unconnected or random;

• The murders reflect a need to sadistically dominate the victim;

• Killers often choose victims who are vulnerable (prostitutes, runaways, etc.)   

All of these factors apply to the behaviour shown by Ivan Milat. There were at least two to three years between the murders. Milat had no personal connection to his victims whatsoever. These murders outline Milat’s sadistic nature and his need to feel in control, or “dominate the victim”.  Milat’s victims were all international tourists therefore they were vulnerable, making them an easy target for Milat.  
Serial killers, in this case Ivan Milat, are sadists, seeking perverse pleasure in torturing the victim. They need to dominate, control, and "own" the person. Yet when the victim dies, they are abandoned again, left alone with their unfathomable rage and self-hatred. This hellish cycle continues until they are caught or killed.     
Throughout the duration of the Milat trial the effectiveness of the law was called into question.
Firstly, Milat’s legal team prolonged the commencement of the case while they argued with the State’s Legal Aid office which pushed the case back by a year.
Secondly after being sentenced Milat was able to make appeal after appeal. Not only did this waste the time of the High Court of Sydney having to deny his requests over and over again, but also his appeals cost taxpayers money as he had previously applied for legal aid.