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Court in the Act
29 March, 2010  
From the transcripts

Judges’ associate Ginger Snatch trawls through transcripts of recent cases and judgments to harvest some moist snippets from the engine room of justice (tempered with mercy)

imageIt’s lovely to come across a judgment with a good opening flourish.

Justice Peter Vickery from the VicSupremes was in good form in the dry-as-dust equity case, Ambridge Investments Pty Ltd (in liq) v Theodore Baker.

By the fifth paragraph he was into Henry 1V Part 2:

“This proceeding relates to a building situated at 176 Wellington Parade, East Melbourne (the Wellington Parade Property). The Wellington Parade Property was purchased at an auction on 24 November 1999 by the Sixth Defendant, Break Fast Investments Pty Ltd (Break Fast), for the sum of $6 million.

It was an attractive investment. The building is constructed in a reinforced concrete frame and slab design with aluminium framed curtain wall facades at the front (south) and rear (north) sides, and solid masonry walls on the east and west sides. The building has a ground floor which contained a café, together with eleven floors of office space and an open roof area. At the time of the purchase the building provided an opportunity for renovation and substantial growth in capital value.

At the time of the trial in October and November 2009, following its refurbishment, there were negotiations on foot to sell the property for $24.5 million.

How could such a seemingly successful commercial enterprise disintegrate into the tortured anatomy of this litigation? Perhaps the answer lies in the lines of Shakespeares Henry IV Part 2:

‘See, sons, what things you are,
How quickly nature falls into revolt
When gold becomes her object’.”

I encourage the judges with whom I associate to include lashings of The Bard in their reasons – so bravo to Pete, winner of the Dame Margaret Rutherford Award for best costume drama woven into a judgment.

* * *

This slice of transcript from the special leave application in Gamage has been unforgiveably overlooked and it’s about time we remedied that omission.

Here we see Kenny Hayne slicing through to the heart of the lettuce:

HH: “Yes. Perhaps then, Mr Gamage and Madam Interpreter, if you would be good enough to take your seats again. Mr De Alwis, would you come to the microphone please? Mr De Alwis, Mr Gamage has asked that I give you leave to speak on his behalf. Are you a lawyer?

De Alwis: I was, your Honour. I was a lawyer admitted in Sri Lanka in 1973, August, then I came to Australia in July 1984 to do post-graduate studies at the Monash University, and I was helped by His Excellency, Justice… to do international law and administration of criminal justice. Then I had certain personal difficulties, family problems, then we went to Sydney where I resumed my post-graduate studies.

HH: Mr De Alwis, my question was quite narrow. Are you a lawyer admitted to practice in the courts of Australia?

De Alwis: That is right, your Honour. I give a brief background to my experience and knowledge.

HH: Mr De Alwis, we will get on much quicker if you attend to my question and answer it.

De Alwis: I apologise, your Honour. I was admitted in Western Australia to the Supreme Court as a barrister and solicitor on 2 March 1995, and I did practise as an immigration lawyer, international law lawyer, human rights lawyer, and before that in Melbourne and Sydney and here too I worked as a migration agent; I was very successful. Then I appeared for a man called Mr Neville Taylor, and according to the advice I have from him, he refused to make a complaint against me when approached by the law complaints officer. His wife was approached by the law complaints officer, and a complaint was made that I misappropriated $10,000, which I vehemently denied and today also I deny. I denied it in the Federal Magistrates Court. I have denied it in the Federal Court when the matter was taken up regarding Mr Gamage. Unfortunately, from mid-2000 I was feeling very dizzy and began collapsing, and until 2002, the 21st night of August, 2002, no doctor, nobody advised me that I was bleeding profusely from my bowels due to stomach ulcers.

HH: Mr De Alwis, I do not wish to embarrass you by delaying about the state of your health. My question is very narrow. Are you a person entitled to practise as a barrister or solicitor in the Supreme Court of a State or in the Federal Courts?

De Alwis: No, your Honour. I was struck off the roll.”

* * *

Another regrettably underplayed judgment also comes from WA where Justice John McKechnie gave magistrate Terry McIntyre a painful public birching in Wragg v Bond.

In the process the Supremo overturned McIntyre’s conviction of Wragg and ordered a new trial.

Here’s his opening par:

“On 12 September 2008 Mr Wragg was working as a security officer at the Brighton Hotel in Mandurah. He ejected a drunken customer. It was alleged that he beat the customer up outside the range of a security camera. There was a young woman in a position to observe things. Mr Wragg was charged with assault occasioning bodily harm. He was entitled to a fair trial before the magistrate. He did not get one. It was as if there was a second prosecutor in the room. The magistrate’s interventions took him metaphorically off the bench and into the battle. The appeal must be allowed and a retrial ordered so that Mr Wragg can secure justice according to law whatever the result of the retrial…

The number and nature of interventions by the magistrate shown on the transcript were such that I doubted whether the transcript was accurate. I have since listened to the entire trial. Any transcription errors are immaterial.”

McIntyre made minimal intervention during the evidence-in-chief of prosecution witnesses, but was heavily interventionist during cross-examination.

Some of his questions were, “plainly inappropriate and adversarial”.

At times the magistrate took control of the examination-in-chief from defence counsel and turned it into a cross-examination.

He then complained that counsel was being repetitive when he attempted to go into more detail.

In relation to prosecution witnesses McKechnie said:

“The effect of his constant interruptions was to distract counsel from the orderly flow of a cross-examination.”

At one point the magistrate said to David Walls, for the defendant: “You are suggesting to the witness that as – this is part of the ‘you didn’t see it, you are making it up’ scenario, is it?”

The appeal judge said this was an “entirely inappropriate comment … justice is more likely to be done if a court sits quietly letting the evidence unfold and be absorbed rather than second guessing counsel at every step”.

McKechnie wound-up his reasons with this:

“They would have heard the magistrate take over the questioning of the defence witnesses from counsel and pose questions in cross-examination appropriate from a prosecutor but partisan from a judicial officer. Neither an independent lay observer nor Mr Wragg could have reasonably felt this was a fair trial.

An appeal court is slow to set aside a conviction because the trial was in some respects less than fair. But there is a duty to do so when the conduct of a judicial officer has so skewed the balance that justice miscarried. Regrettably, this is what happened.”

You can savour some of the flavour of Magistrate Terry McIntyre’s court HERE.

Send Ginger an anonymous tip-off on other worthy moments buried in the transcripts