Wednesday, July 20, 2011

50th anniversary of the "Dutch Courage Rule"

Today marks the 50th anniversary of the House of Lords' decision in Attorney-General for Northern Ireland v Gallagher.  

In this case Gallagher and his wife had been married for 16 years during which time they frequently quarrelled, usually after he "had taken drink", and was on occasion violent towards her.  During a period in 1960 he was in and out of a mental hospital in Omagh.  During one of his periods of release he purchased a knife,  a bottle of Guinness and a bottle of Power's whisky. He went to his wife's house, drank most of the whisky, then brutally murdered his wife. When arrested by police he said: "I have no regrets: she gave me a hell of a life these past three years" and subsequently, having been cautioned, said: "I made up my mind to kill her about a fortnight or three weeks ago."

The issue in the case was delightfully summarised by Lord Denning:

"The man is a psychopath. That is, he has a disease of the mind which is not produced by drink. But it is quiescent. And whilst it is quiescent, he forms an intention to kill his wife. He knows it is wrong but still he means to kill her. Then he gets Himself so drunk that he has an explosive outburst and kills his wife. At that moment he knows what he is doing but he does not know it is wrong. So in that respect—in not knowing it is wrong—fee has a defect of reason at the moment of killing. If that defect of reason is due to the drink, it is no defence in law. But if it is due to the disease of the mind, it gives rise to a defence of insanity. No one can say, however, whether it is due to the drink or to the disease. It may well be due to both in combination. What guidance does the law give in this difficulty?"

The answer to that question, was as follows:

“My Lords, I think the law on this point should take a clear stand. If a
 man, whilst sane and sober, forms an intention to kill and makes preparation 
for it, knowing it is a wrong thing to do, and then gets himself drunk 
so as to give himself Dutch courage to do the killing, and whilst drunk 
carries out his intention, he cannot rely on this self-induced drunkenness 
as a defence to a charge of murder, nor even as reducing it to manslaughter.
  He cannot say that he got himself into such a stupid state that he was 
incapable of an intent to kill. So also when he is a psychopath, he cannot 
by drinking rely on his self-induced defect of reason as a defence of 
insanity.  The wickedness of his mind before he got drunk is enough to 
condemn him, coupled with the act which he intended to do and did do.
 A psychopath who goes out intending to kill, knowing it is wrong, and does
 kill, cannot escape the consequences by making himself drunk before doing 
it. ... . 
I would agree, of course, that if before the killing he had discarded his 
intention to kill or reversed it—and then got drunk—it would be a different
 matter. But when he forms the intention to kill and without interruption
 proceeds to get drunk and carry out his intention, then his drunkenness is 
no defence and none the less so because it is dressed up as a defence of

Nowadays (and in England at the time, but not in Northern Ireland) Gallagher could have successfully raised a defence of diminished responsibility.

Monday, July 11, 2011

Changes to NSW Barristers' Rules

Effective from 8 August 2011, the former NSW Barristers' Rules will be replaced by the Barristers' Conduct Rules.

A comprehensive comparison of the two will be the subject of a later blogpost, but two differences immediately jumped out at me.

First, the former rules were, according to Rule 3, "made in the belief that...the role of barristers as specialist advocates in the administration of justice requires them to act honestly, fairly, skilfully, diligently and bravely."  The new rules no longer believe that barristers are required to act bravely.

Secondly, previously a barrister could return a brief under Rule 99(c) where "fees have not been paid reasonably promptly or in accordance with the costs agreement, and have remained unpaid after reasonable notice by the barrister to the instructing solicitor or client, as the case may be, of the barrister's intention to return the brief for that reason." Now, the only relevant power to return a brief for non-payment of fees appears to be under 99(m) "in accordance with the terms of a costs agreement which provide for return of a brief."

So, for those barristers with a costs agreement, it is time to amend it to provide specifically for the power to return a brief for non-payment of fees.  For those barristers who don't have costs agreement (relying solely upon the fee disclosure regime), it may be time to have one.

UPDATE:  It has been pointed out that new Rule 99(d), which has the chapeau "a barrister may refuse or return a brief to appear before a court", provides that a barrister may do so "if the barrister has reasonable grounds to doubt that the fee will be paid reasonably promptly or in accordance with the costs agreement."  This, it is argued, provides a power to return the brief upon non-payment of fees.  This seems to me to ignore the tense in which 99(d) is expressed, which contemplates the barrister having a belief about non-payment of fees that have not yet been rendered.  While this belief might be evidenced by the fact of non-payment of past fees, the non-payment itself does not give rise to an entitlement to return the brief, and if the client were able to satisfy the barrister that future fees would be paid on time, in my view  there would be no entitlement to return the brief.

Monday, July 4, 2011

Poor state of court reporting

I have often been dismayed about the inaccuracy of newspaper reports of court proceedings.  However, it is quite some time since I have come across one as inaccurate as this.  It pays to read the article first, before continuing with the discussion below: Lawyers argue over cost of bullying.

First, some background.

The proceedings involved a claim for damages for personal injury (consisting of psychiatric injury manifesting itself in anxiety and depression) arising from bullying and harassment at a private secondary college.  The allegation of negligence, in essence, was that the college did not implement its own system to bring an end to ongoing bullying of which it was aware, and to monitor the victim to ensure that it did not continue.  In April 2011 Justice Schmidt delivered her judgment, in which her Honour:

  • found the college liable in negligence for the psychiatric injury sustained by the plaintiff
  • found the plaintiff's injury to be 20% of a worst-case (the plaintiff claimed it was 40%)
  • upheld only part of the plaintiff's claim for past economic loss
  • awarded a "buffer" of $50,000 for future economic loss ($200,000 had been claimed)
  • rejected a claim of $30,000 for domestic assistance
  • rejected substantial parts of the claim for future treatment ($39,000 had been claimed)
As is often the case, her Honour directed the parties to bring in short minutes of order in which the conclusions in relation to damages would be quantified with a judgment entered in the plaintiff's favour for the total amount, and granted liberty to apply for orders in relation to costs other than the usual order (that costs follow the event).

And so, when the matter came before the Court again on 24 June 2011, it was for the purposes of making an order for the judgment amount (otherwise agreed between the parties based upon her Honour's earlier judgment) and to argue costs - the defendant seeking a special costs order as a result of the plaintiff having rejected an offer of compromise for an amount greater than the amount for which judgment was to be entered.

The statements in the article that "it is impossible" to assess, or put a price on etc are in the wrong tense.  What counsel for the plaintiff was saying is not that it "is" impossible to do so (for that is precisely what Schmidt had done in her April 2011 judgment) but that at the time at which the plaintiff was considering the offer of compromise it was impossible to do so.  The wrong tense betrays an ignorance of what the proceedings were about, and an ignorance of what had been decided in April 2011.

Similarly, by the time the case comes back before the Court on 24 June, the plaintiff is not "seeking damages of $539,784".  That's the amount she was seeking and which amount was clearly and obviously rejected by virtue of the reasons delivered in April 2011. 

One starts to get a sense of what the hearing was really about as the article progresses, but only if you have some knowledge and awareness of the law relating to the awarding of costs, and in particular costs on an indemnity basis.  If you know that if a plaintiff does not do better than an offer of compromise served by a defendant the onus may shift to the plaintiff to demonstrate why the rejection of the offer was not unreasonable to avoid paying indemnity costs, then you can make some sense of the article.  But I suspect most lay readers of the article do not know that principle, and so it is unlikely the article conveys the same meaning, and will either be confusing or positively misleading.

Regrettably, the article returns to form in the final paragraph.  Justice Schmidt is not expected to make a decision next month on how much damages the plaintiff will receive.  She is expected to enter judgment for those damages based upon calculations agreed by the parties (so there is no decision for her Honour to now make).  And she will make a decision on who should pay what part of the costs of the proceedings, and on what basis. 

You wouldn't know that from reading the article.

Some moments from the life of Roddy Meagher - RIP

3 July 2011 marked the close of the colourful life of Roderick Pitt Meagher AO QC, universally known as “Roddy”, former justice of the NSW Court of Appeal, legal scholar best-known for the leading text on equity jurisprudence outside of England (and perhaps within), avid collector of art, and benefactor to the arts.

What follows is a collection of favourite episodes from his life along with a number of quotes, and while one would not necessarily endorse the sentiment in them all, one recognises the beauty and wit with which they are expressed:

A recently-retired Federal Court judge, while still at the junior bar, once sought advice from Meagher, asking: ““My gown is looking a bit tired but it still has some life in it.  I was wondering whether I should get a silk gown now, on the basis that I will be able to wear one of those soon - or would that be a bit presumptuous?” to which Meagher reportedly replied:  “If I were you … I would buy two more of those polyester ones”.

During the course of a criminal trial in 1997 John Laws named the accused, said that he was “absolute scum” and was guilty of the murder with which he was charged.  In an appeal involving the penalty imposed on Laws for the obvious contempt of court Meagher, in dissent, said:

“[In respect of Laws] the fine should likewise be $250,000. To fine him $20,000 (or even $50,000) is ludicrous. It is the equivalent of a slap on the wrist. It would operate as a deterrent neither to him nor to any one else. It would not hurt him. It is about the amount he would spend on a small cocktail party: it is a cost he would not feel. It would not pay for a fraction of the costs of the aborting of one trial and recommencing another. I regret to have to say so in plain language, but in my view it would be a reproach to the Court and an insult to the public. It would be a reproach to the Court, because it is the Court’s duty to make appropriate, and not risible, orders. It would be an insult to the public, because the public would think that if you are rich enough and powerful enough you can get away with anything.”

Meagher was once trying to hide an expensive painting from his wife and gave it to Nick Carson to look after.  The painting remained with Carson for years and eventually Carson resented having to look after it indefinitely.  In the end Carson presented the painting to Meagher as a birthday present, meaning not only that Meagher could not say a thing about it but also that Meagher was henpecked by his wife into buying a very nice piece of art for Carson’s next birthday.

Meagher was fond of being unaware of outer suburbs of Sydney.  In one case he described land as being “situated at Bossley Park (wherever that is).”  This prompted Keith Mason, who agreed with Meagher’s judgment, to quip:

“I have had the benefit of reading in draft the reasons of Meagher JA. 

“I also have the benefit of having access to a street directory. Accordingly, I do not share his Honour’s customary doubts about the location of well-known Sydney suburbs lying to the west of Darling Point which sit cheek by jowl with his Honour’s customary lack of doubts about most other matters. A useful resource for those who need to locate Bossley Park is By clicking on “map maker” one can find easy ways of getting from, say Darling Point to that suburb. (–_nsw_bossley%20park_nsw.) [URLs in the original judgment]

However, Meagher was surely having a laugh when in another case he referred to a building as being “situated somewhere in Caringbah, a suburb of Sydney apparently in the Manly area.”

One appeal involved a plaintiff who was working at premises in “North Ryde (which we were informed is a suburb of Sydney)”.  In that case he succinctly described his conclusion that the plaintiff should have succeeded in his claim before Master Harrison in the following terms:

“Both defendants … argued strenuously that neither of them were in any way negligent, and indeed that neither owed Mr Wilke any duty. The Master acceded to their submissions. She held that Mr Wilke had nobody but himself to blame for his misfortune. I must say that, at first blanch, this strikes me as more than a little odd. For a manager (to use a neutral term) to expect a workman to do his job on a narrow beam twelve feet above a concrete floor in a hurry and for extended hours without having some obligation to see that the workman is in some way protected from falling is to indulge in an extreme form of Gradgrindism.”

The reference to Gradgrindism is of course a reference to the notorious headmaster in Dickens’ Hard Times who named his children after utilitarians and was concerned only with filling his pupils with hard, cold, facts but who becomes emotionally-aware when his daughter has an emotional breakdown.

The use of obscure language and literary references has been seen by some as an affectation, but as a classical scholar it came naturally to him.  One can never forget Meagher’s defence of the Macedonians:

“The trial judge found that Mr Videski exaggerated when he gave his evidence. On this slender, and one would have thought unexceptionable observation, his Honour develops an elaborate, and distinctly xenophobic, rodomontade. His Honour says that Mr Videski only exaggerated because he was a Macedonian, all Macedonians are untrustworthy exaggerators, in this respect they do not resemble Anglo Saxons, and judges ought be reeducated unless they appreciate these truths. One cannot permit such sentiments to be uttered without protest.

“Alexander the Great was a Macedonian, and Arrian’s Life of him emphasized his honesty and taciturnity. There was no evidence before the Court that his epigoni have changed. We cannot assume that they have. On the face of it they are not the only people who have exaggerated when giving testimony. Occasionally people of undoubted Anglo Saxon stock do so. I should have thought that an unfortunate propensity to deviate from the paths of honesty is something which occurs regardless of ethnicity. Judges are capable of dealing with it wherever it occurs, and from whatever source.

“It would be unfortunate if his Honour were permitted to utter, with the apparent approval of his brethren, sentiments so markedly at variance with the United Nations’ Optional Protocol on Human Rights, not to mention Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination.”

This prompted Kirby (then President of the NSW Court of Appeal) to respond:

“In our multicultural society it is imperative that judicial officers should avoid expecting from people of different cultural traditions the same emotional imperatives that have, until now, tended to influence Australian values. For all I know, the behaviour in court of this worker, which seems to have struck her Honour as “exaggerated” or “distorted”, would be perfectly normal for a claimant with back pain appearing in a Macedonian courtroom. Perhaps there it would be considered perfectly natural for a person, facing his or her decision maker, to lay emphasis upon the matters of which that person is complaining.

“This is not (as Meagher JA would have it) to “deviate from the paths of honesty . It is to make discomfort known and not to mask or disguise it because that is thought strategically wise in an Australian courtroom. Perhaps in Macedonia the brave understatement of one’s own case would be regarded as a bizarre psychological manipulation of the contra suggestible kind which one would only expect from foreigners. This is speculation. I only mention it to emphasise that we, the Australian judges of today, must be on our guard against the imposition of behavioural stereotypes.

“I reject utterly the contention that this is itself a stereotype. Human conduct is infinitely variable. But it is certainly influenced by cultural norms. What is in issue here is not the honesty of people of Macedonian origin, like the appellant, who may or may not be the epigoni of Alexander the Great. It is the awareness on the part of Australian judges that people from different cultures may not immediately succumb to the heroic norms of our culture when they come into our courtrooms. … To blow this up, as Meagher JA attempts, to a suggested xenophobia and even racial discrimination on my part is self evidently absurd. However, I shall allow his Honour’s comments to pass taking compensatory comfort from the new found interest of Meagher JA in the international instruments of human rights and their application to Australian domestic law.”

In response to the question posed by “Who or what do you consider overrated”, as well as correcting Richard Ackland’s grammatical shortcomings, Meagher responded “Kirby J”.

Though bound by the pronouncements of the High Court, Meagher did not hesitate to indicate his disagreement.  Of a famous footnote in the writings of Sir Frederick Jordan on the effect in equity of the assignment of property Meagher wrote:

“Great as is the homage we all owe to Sir Frederick Jordan, one must state that the footnote is nonsense. It has, of course, been approved by the High Court on about four occasions ... but that does not convert it into sense.”

In opposition to his love of language and the arts was his distrust of sporting endeavours.:

“Whilst all reasonable people know that any form of physical activity is both unpleasant and dangerous, and probably unhealthy as well; and whilst sport, which is communal physical activity, suffers the added feature of exposing its participants to the perils of tribal barbarism; nonetheless the law has never regarded the playing of sport as contrary to public policy or even unreasonable.”

In giving the speech for the NSW Bar on the occasion of Meagher’s retirement from the NSW Court of Appeal Ian Harrison said:

“It is a great sadness for all of us that the late Justice John Lehane is not here to see you off. Justice Lehane was one of nature’s gentlemen with a delightful disposition. The only time he ever confided in me about things that troubled him was when he confessed that writing a book with your Honour had sent his hair prematurely white. That wasn’t as much a concern to him, however, as the fact that your Honour’s hair stayed youthfully brown. Justice Beazley told me that she thinks the colour of your hair could now best be described as Dorian Grey!”

Meagher once pithily noted that a decision of the NSW Industrial Commission was “clearly wrong. Yet, they had jurisdiction to err.”  Even more pithily, he once said in an ex tempore judgment:  “Mr Hall has said all that could possibly be said on behalf of the appellant, and more.”  He did not appreciate the ponderous submission of counsel, once saying:  “Mr Harrison, I am going to sleep now and I don’t want you to be here when I wake up.” *

There will be more to come in the coming days.

* Since originally posting, I am reminded that Ian Harrison admitted during his own swearing-in speech that he had made this story up.  Rather than delete it, I have left it in, if only because it has a ring of truth about it.