The media and the law

The Australian's Chris Merrit has had a good week reporting on Chief Justice Marilyn Warren's Richard Searby oration. By my count, there have been at least three separate reports and the oration has prompted one editorial in the Australian. The Sydney Morning Herald and the Age have also gotten in on the act, publishing edited extracts of the speech and on Friday the Herald Sun joined the chorus.

Though while scorekeeping can be an interesting game in itself, the more interesting part concerns the particular responses of the media.

Say again

After almost 2 years of operation, we finally have some appellate guidance on the meaning of s66(2A) of the Uniform Evidence Act. In R v XY, the New South Wales Court of Criminal Appeal confirmed that the section was effective in doing what it was created to do - To wind back the unduly restrictive interpretation the High Court gave the expression 'fresh in the memory' in Graham v R.

Warning: The following contains some details of sexual offending against a child and may distress some readers.

Victim impact statements and judicial sensitivity

The last 24 hours has seen the Herald Sun and affiliated newspapers run an article on the drama that unfolded during the sentencing hearing of Leon Borthwick. The article is available here.

The Facts
On 16 November 2008, Mark Zimmer was killed when he was struck by a van driven by Leon Borthwick. Borthwick was charged with murder and after a trial, was convicted by a jury of manslaughter. Yesterday, Kornelia Zimmer sought to read parts of her victim impact statement. Borthwick's counsel, Carmen Randazzo objected to several lines on the basis of relevance. Justice Katherine Williams agreed and directed that certain passages in the statement be admitted.

Today, Kornelia Zimmer took to the airwaves to share the omitted portions of her statement with 3AW's listeners.

Public punitiveness and judicial minimalism

WCB v R is an interesting example of the judiciary's willingness to engage in the public debate concerning sentencing standards (summary of reasons available here).

The bulk of the judgment concerns the following ground of appeal:

The learned sentencing judge erred in sentencing the appellant on the basis that ‘The community would expect you to be imprisoned for a lengthy period.

Statements of this nature are quite common in sentencing remarks. As the judgment records at [36], courts have often spoken of the community's justifiable concern about sexual abuse of children, and the need to respond to such concern with appropriately severe penalties.

Despite this straightforward point, the court spends 15 pages responding to one reasonable simple ground of appeal. The analysis includes:

The wrong question

Giuseppe De Simone, property developer, ice-cream lover and human rights campaigner, has had another unsuccessful experience in the Court of Appeal.

Last Friday, in De Simone v Bevnol Constructions, the Court knocked back Mr De Simone's latest attempt to obtain a stay of civil proceedings concerning a dispute over the construction of a retirement village in Ocean Grove. The case concerns the principles from McMahon v Gould, and the power of an inferior court or tribunal to refer questions of law to the Supreme Court.